Animal and Plant Health Inspection Service
Food and Nutrition Service
Committee for Purchase From People Who Are Blind or Severely Disabled
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Defense Acquisition Regulations System
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Indian Health Service
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Transportation Security Administration
Indian Health Service
Fish and Wildlife Service
Land Management Bureau
Alcohol, Tobacco, Firearms, and Explosives Bureau
Prisons Bureau
Federal Aviation Administration
Federal Transit Administration
Surface Transportation Board
Transportation Security Administration
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Farm Credit Administration.
Final rule; notice of effective date.
The Farm Credit Administration adopted a final rule to establish a regulatory framework for Farm Credit System institutions' use of unincorporated business entities organized under State law for certain business activities. In accordance with the law, the effective date of the final rule is 30 days from the date of publication in the
Under the authority of 12 U.S.C. 2252, the regulation amending 12 CFR parts 604, 611, 612, 619, 620, 621, 622, 623, and 630 published on May 28, 2013 (78 FR 31822) is effective July 22, 2013.
Elna Luopa, Policy Analyst, Office of Regulatory Policy, Farm Credit Administration, McLean, VA 22102–5090, (703) 883–4414, TTY (703) 883–4056;
or
Wendy Laguarda, Assistant General Counsel, Office of General Counsel, Farm Credit Administration, McLean, Virginia 22102–5090, (703) 883–4020, TTY (703) 883–4056.
The Farm Credit Administration adopted a final rule to establish a regulatory framework for Farm Credit System (System) institutions' use of unincorporated business entities (UBEs) organized under State law for certain business activities. A UBE includes limited partnerships (LPs), limited liability partnerships (LLPs), limited liability limited partnerships (LLLPs), limited liability companies (LLCs), and any other unincorporated business entities, such as unincorporated business trusts, organized under State law. The final rule does not apply to UBEs that one or more System institutions may establish as Rural Business Investment Companies (RBICs) pursuant to the institutions' authority under the provisions of title VI of the Farm Security and Rural Investment Act of 2002, as amended (FSRIA), and United States Department of Agriculture (USDA) regulations implementing FSRIA. This rule does apply, however, to System institutions that organize UBEs for the express purpose of investing in RBICs. In accordance with 12 U.S.C. 2252, the effective date of the final rule is 30 days from the date of publication in the
U.S. Small Business Administration.
Final rule; correction.
The U.S. Small Business Administration (SBA) is correcting a final rule that appeared in the
Effective July 22, 2013.
Khem Sharma, Chief, Office of Size Standards, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416.
In FR Doc. 2013–14712 appearing on page 37404 in the June 20, 2013
1. On page 37406, in the heading for column 4 of Table 1, Summary of Revised Size Standards in NAICS Subsector 213, the word “Proposed” is corrected to read “Revised.” The corrected heading for Table 1 reads as follows:
Federal Aviation Administration (FAA), DOT.
Correcting amendment.
The FAA is correcting a final rule published on January 18, 2013
Effective July 26, 2013.
For technical questions concerning this action, contact Jay Turnberg, Engine and Propeller Directorate Standards Staff, ANE–111, Federal Aviation Administration, 12 New England Executive Park, Burlington, Massachusetts, 01803–5299; telephone (781) 238–7116; facsimile (781) 238–7199, email:
On January 18, 2013, the FAA published a final rule titled, “Critical Parts for Airplane Propellers” (78 FR 4038).
In that final rule
Air transportation, Aircraft, Aviation safety, Safety.
In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(g), 40113, 44701–44702, 44704.
(c) The primary failures of certain single propeller elements (for example, blades) cannot be sensibly estimated in numerical terms. If the failure of such elements is likely to result in hazardous propeller effects, those elements must be identified as propeller critical parts. For propeller critical parts, applicants must meet the prescribed integrity specifications of § 35.16. These instances must be stated in the safety analysis.
(d) If reliance is placed on a safety system to prevent a failure progressing to hazardous propeller effects, the possibility of a safety system failure in combination with a basic propeller failure must be included in the analysis. Such a safety system may include safety devices, instrumentation, early warning devices, maintenance checks, and other similar equipment or procedures. If items of the safety system are outside the control of the propeller manufacturer, the assumptions of the safety analysis with respect to the reliability of these parts must be clearly stated in the analysis and identified in the propeller installation and operation instructions required under § 35.3.
Issued under authority provided by 49 U.S.C. 106(f), 44701(a), and 44703 in Washington, DC, on July 19, 2013.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Hartzell Propeller, Inc. propeller models HC–(1,D)2(X,V,MV)20–7, HC–(1,D)2(X,V,MV)20–8, and HC–(1,D)3(X,V,MV)20–8. This AD was prompted by failures of the propeller hydraulic bladder diaphragm and resulting engine oil leak. This AD requires replacement of the propeller hydraulic bladder diaphragm. We are issuing this AD to prevent propeller hydraulic bladder diaphragm rupture, loss of engine oil, damage to the engine, and loss of the airplane.
This AD is effective August 30, 2013.
For service information identified in this AD, contact Hartzell Propeller, Inc., 1 Propeller Place, Piqua, OH 45356; phone: 937–778–4397; fax: 937–778–4391; email:
The Docket Operations office is located at Docket Management Facility, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590.
You may examine the AD docket on the Internet at
Mark Grace, Aerospace Engineer,
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. We have considered the comment received. Hartzell Propeller, Inc. supports the NPRM (78 FR 18255, dated March 26, 2013).
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed.
We estimate that this AD will affect about 400 propellers installed on airplanes of U.S. registry. We also estimate that it will take about 4 hours per propeller to replace the bladder diaphragm. The average labor rate is $85 per hour. We estimate parts costs at $53 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $157,200. Our cost estimate is exclusive of possible warranty coverage.
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.
This AD will not have federalism implications under Executive Order 13132. This AD will 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 that this AD:
(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),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and
(4) 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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective August 30, 2013.
None.
This AD applies to Hartzell Propeller, Inc. propeller models HC–(1,D)2(X,V,MV)20–7, HC–(1,D)2(X,V,MV)20–8, and HC–(1,D)3(X,V,MV)20–8 with a propeller hydraulic bladder diaphragm, part number (P/N) B–119–2, without tab, installed.
This AD was prompted by failures of the propeller hydraulic bladder diaphragm and resulting engine oil leak. We are issuing this AD to prevent propeller hydraulic bladder diaphragm rupture, loss of engine oil, damage to the engine, and loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 12 months after the effective date of this AD, remove from service the propeller hydraulic bladder diaphragm, P/N B–119–2, without tab.
(2) Install a redesigned propeller hydraulic bladder diaphragm, P/N B–119–2, with tab. The bladder diaphragm, eligible for installation, is identified by a tab with a batch/lot number. The tab is visible after installation and confirms the installation of the proper redesigned propeller hydraulic bladder diaphragm, P/N B–119–2, with tab, in the Hartzell propeller assembly.
After the effective date of this AD, do not install into any engine any hydraulic bladder diaphragm, P/N B–119–2, that is without tab.
The Manager, Chicago Aircraft Certification Office, FAA, 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 Mark Grace, Aerospace Engineer, Chicago Aircraft Certification Office, FAA, Propulsion Branch, 2300 E. Devon Avenue, Des Planes, IL 60018; phone: 847–294–7377; fax: 847–294–7834; email:
(2) Refer to Hartzell Alert Service Bulletin No. HC–ASB–61–338 for related information.
(3) For service information identified in this AD, contact Hartzell Propeller Inc., 1 Propeller Place, Piqua, OH 45356–2634; phone: 937–778–4379; fax: 937–778–4391; email:
None.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787–8 airplanes. This AD requires either removal or inspection of the Honeywell fixed emergency locator transmitter (ELT), and corrective action if necessary. This AD was prompted by a report of a fire involving a Honeywell fixed ELT. We are issuing this AD to prevent a fire in the aft crown of the airplane, or to detect and correct discrepancies within the ELT that could cause such a fire.
This AD is effective on July 26, 2013.
We must receive comments on this AD by September 9, 2013.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Kenneth Fairhurst, Senior Aerospace Engineer, Systems and Equipment Branch, ANM–130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6466; fax: 425–917–6590; email:
We have received a report of a fire involving the Honeywell fixed emergency locator transmitter (ELT) on a Model 787–8 airplane. The investigation indicates that the ELT may have initiated the event. Discrepancies within the ELT, if not corrected, could cause a fire in the aft crown of the airplane.
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires either removing the Honeywell fixed ELT, or inspecting the ELT (for discrepancies associated with the ELT, ELT battery, and associated wiring), and doing corrective action if necessary, in accordance with a method approved by the FAA.
The applicability of this AD is limited to in-service airplanes, which have been delivered with Honeywell fixed ELTs having part number 1152682–2. Future production airplanes will be addressed prior to delivery.
We recognize that various civil aviation authorities (CAA) have different operational requirements regarding the use of ELTs. While the United States does not require a fixed ELT to be installed for operation, operation of an airplane without an ELT in a particular country's airspace may require coordination with that country's CAA.
This AD is considered to be interim action. Because the fire occurred on a Model 787–8 airplane, required actions in this AD are focused on Honeywell fixed ELTs installed on that model. However, we acknowledge that ELTs are installed on various other aircraft; therefore, continued investigation is required. Once final action has been identified, we might consider further rulemaking.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because discrepancies within the Honeywell fixed ELT could cause a fire in the aft crown of the airplane. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 6 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
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.
This AD will not have federalism implications under Executive Order 13132. This AD will 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 that this AD:
(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),
(3) Will not affect intrastate aviation in Alaska, and
(4) 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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective on July 26, 2013.
None.
This AD applies to The Boeing Company Model 787–8 airplanes, certificated in any category, line numbers 7 through 9 inclusive, 23, 24, 27, 29, 31, 33 through 35 inclusive, 37, 38, 40 through 42 inclusive, 44 through 72 inclusive, 74 through 78 inclusive, 80, 82 through 84 inclusive, 86, 87, 89, 92, 94 through 99 inclusive, 101, 102, 108, and 111.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 23, Communications.
This AD was prompted by a report of a fire involving the Honeywell fixed emergency locator transmitter (ELT). We are issuing this AD to prevent a fire in the aft crown of the airplane, or to detect and correct discrepancies within the ELT that could cause such a fire.
Comply with this AD within the compliance times specified, unless already done.
Within 10 days after the effective date of this AD, do the actions specified in either paragraph (g)(1) or (g)(2) of this AD.
(1) Remove the Honeywell fixed ELT using a method approved in accordance with the procedures specified in paragraph (h) of this AD.
(2) Inspect the Honeywell fixed ELT for discrepancies, and do all applicable corrective actions before further flight, using a method approved in accordance with the procedures specified in paragraph (h) of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Kenneth Fairhurst, Senior Aerospace Engineer, Systems and Equipment Branch, ANM–130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6466; fax: 425–917–6590; email:
None.
In rule document 2013–16849 beginning on page 42324 in the issue of
On page 42326, in Table 1, the table section beneath the heading “Scenario: (3) Serve as an SIC (first officer) in part 121 operations” should read as follows:
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Montlake Bridge across the Lake Washington Ship Canal, mile 5.2, at Seattle, WA. The deviation is necessary to accommodate vehicular traffic attending football games at Husky Stadium at the University of Washington, Seattle, Washington. This deviation allows the bridge to remain in the closed position two hours before and two hours after each game. Please note that the game times for five of the seven games scheduled for Husky Stadium have not yet been determined due to NCAA television scheduling.
This deviation is effective from 5 p.m. to 7 p.m. and 10 p.m. to 11:59 p.m. on August 31, 2013; 12:01 a.m. to 11:59 p.m. on September 21, 2013; 12:01 a.m. to 11:59 p.m. on September 28, 2013; 12:01 a.m. to 11:59 p.m. on October 12, 2013; 12:01 a.m. to 11:59 p.m. on October 26, 2013; 12:01 a.m. to 11:59 p.m. on November 9, 2013; 10:30 a.m. to 12:30 p.m. and 3:30 p.m. to 5:30 p.m. on November 29, 2013.
The docket for this deviation, [USCG–2013–0620] is available at
If you have questions on this temporary deviation, call or email Steven M. Fischer, Lieutenant Commander, Bridge Specialist, Thirteenth District, Coast Guard; telephone 206–220–7277, email
The Washington State Department of Transportation, on behalf of the University of Washington Police Department, has requested that the Montlake Bridge bascule span remain closed and need not open to vessel traffic to facilitate timely movement of pre-game and post game football traffic. The Montlake Bridge crosses the Lake Washington Ship Canal at mile 5.2 and while in the closed position provides 30 feet of vertical clearance throughout the navigation channel and 46 feet of vertical clearance throughout the center 60-feet of the bridge. These vertical clearance measurements are made in reference to the Mean Water Level of Lake Washington. Vessels which do not require a bridge opening may continue to transit beneath the bridges during this closure period. Under normal conditions this bridge opens on signal, subject to the list of exceptions provided in 33 CFR 117.1051(e).
This deviation period will cover the dates August 31, 2013 to November 29, 2013 as follows. From 5:00 p.m. to 7:00 p.m. and from 10:00 p.m. to 11:59 p.m. on August 31, 2013; from 10:30 a.m. to 12:30 p.m. and from 3:30 p.m. to 5:30 p.m. on November 29, 2013. The times for the closures on September 21, 2013, September 28, 2013, October 12, 2013, October 26, 2013, and November 09, 2013 will be determined and announced in the Coast Guard's Local Notice to Mariners and Broadcast Notice to Mariners as they become available. Due to NCAA television scheduling, the times for the games are not currently available.
The deviation allows the bascule span of the Montlake Bridge to remain in the closed position and need not open for maritime traffic from 5:00 p.m. to 7:00 p.m. and 10:00 p.m. to 11:59 p.m. on August 31, 2013, and from 10:30 a.m. to 12:30 p.m. and 3:30 p.m. to 5:30 p.m. on November 29, 2013, for times to be determined on September 21, 2013, September 28, 2013, October 12, 2013, October 26, 2013, and November 09, 2013. The bridge shall operate in accordance with 33 CFR 117.1051(e) at all other times. Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft. Mariners will be notified and kept informed of the bridge's operational status via the Coast Guard Notice to Mariners publication and Broadcast Notice to Mariners as appropriate. The draw span will be required to open, if needed, for vessels engaged in emergency response operations during this closure period.
In accordance with 33 CFR 117.35(e), the drawbridges must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the Captain of the Port, Sault Sainte Marie zone. This safety zone is intended to restrict vessels from certain portions of water areas within Sector Sault Sainte Marie Captain of the Port zone, as defined by Coast Guard regulations. This temporary safety zone is necessary to protect spectators and vessels from the potential hazards associated with fireworks displays.
This rule is effective from 9:30 p.m. until 11:30 p.m. on July 27, 2013.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2013–0661 and are available online by going to
If you have questions on this temporary rule, call or email MST1 Thomas Link, U.S. Coast Guard Sector Sault Sainte Marie, telephone 906–253–2443, email at
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because doing so would be impracticable. The final details for this event were not received by the Coast Guard with sufficient time to publish an NPRM. Thus, delaying this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect the public from the potential hazards associated with maritime fireworks displays.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
On the evening of July 27, 2013, the Michigan Harley Owners Group will conclude a rally in Alpena, Michigan with a fireworks display. Fireworks will be launched near the end of Mason Street, South of State Avenue, approximately 50 yards west of Thunder Bay in Alpena, Michigan. The Captain of the Port, Sault Sainte Marie has determined that the fireworks event poses hazards to the public, including collisions among spectator craft and debris falling into the water.
With the aforementioned hazards in mind, the Captain of the Port Sault Sainte Marie has determined that this temporary safety zone is necessary to ensure the safety of vessels and people during the fireworks event. The temporary safety zone will encompass all U.S. waters of Lake Huron within an 800-foot radius of the fireworks launch site located near the end of Mason Street, South of State Avenue, at position 45°02′42″ N, 083°26′48″ W (NAD 83). The safety zone will be effective and enforced from 9:30 p.m. to 11:30 p.m. on July 27, 2013.
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Sault Sainte Marie or his designated representative. All persons and vessels permitted to enter the safety zone established by this rule shall comply with the instructions of the Coast Guard Captain of the Port or his designated representative. The Captain of the Port or his designated representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security. We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues.
The safety zone created by this rule will be small and enforced for only two hours. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will only be enforced for two hours. Vessels may safely pass outside the safety zone during the event. In the event that this temporary safety zone affects vessel traffic, vessels may request permission from the Captain of the Port Sault Sainte Marie to transit through the safety zone. Additionally, the Coast Guard will give notice to the public via a Local Notice to Mariners that the regulation is in effect.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket USCG–2013–0661 where indicated under
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port
(3) The “on-scene representative” of the Captain of the Port Sault Sainte Marie is: any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Sault Sainte Marie to act on his or her behalf. The on-scene representative of the Captain of the Port Sault Sainte Marie will be aboard either a Coast Guard or Coast Guard Auxiliary vessel.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Sault Sainte Marie, or his on-scene representative to obtain permission to do so. The Captain of the Port Sault Sainte Marie or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Sault Sainte Marie or his on-scene representative.
Coast Guard, DHS.
Notice of enforcement of regulation.
At various times throughout the month of July, the Coast Guard will enforce certain safety zones located in 33 CFR 165.939. This action is necessary and intended for the safety of life and property on navigable waters during this event. During each enforcement period, no person or vessel may enter the respective safety zone without the permission of the Captain of the Port Buffalo.
The regulations in 33 CFR 165.939(a)(4) will be enforced on July 27, 2013, from 9 p.m. to 10:15 p.m.
If you have questions on this notice, call or email Waterways Management Division, Coast Guard Sector Buffalo, 1 Fuhrmann Blvd., Buffalo, NY 14203; Coast Guard telephone 716–843–9343, email
The Coast Guard will enforce the Safety Zones; Annual Fireworks Events in the Captain of the Port Buffalo Zone listed in 33 CFR 165.939 for the following events:
(1)
Pursuant to 33 CFR 165.23(a)(4), entry into, transiting, or anchoring within these safety zones during an enforcement period is prohibited unless authorized by the Captain of the Port Buffalo or his designated representative. Those seeking permission to enter one of these safety zones may request permission from the Captain of Port Buffalo via channel 16, VHF–FM. Vessels and persons granted permission to enter one of these safety zones shall obey the directions of the Captain of the Port Buffalo or his designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.
This notice is issued under authority of 33 CFR 165.939 and 5 U.S.C. 552(a). In addition to this notice in the
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on Lake Michigan near Winnetka, IL. This safety zone is intended to restrict vessels from a portion of Lake Michigan due to a fireworks display. This temporary safety zone is necessary to protect the surrounding public and vessels from the hazards associated with the fireworks display.
This rule is effective from 9 p.m. until 11 p.m. on August 17, 2013.
Documents mentioned in this preamble are part of docket USCG–2013–0615. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, contact or email MST1 Joseph McCollum, U.S. Coast Guard Sector Lake Michigan, at 414–747–7148 or
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act
Under 5 U.S.C. 553(d)(3), The Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
A fireworks display involving a tug and barge is expected to take place on Lake Michigan near Winnetka, IL during the evening of August 17, 2013. The Coast Guard anticipates that spectators will congregate around the launch position during the display. The Captain of the Port, Lake Michigan, has determined that the fireworks display will pose a significant risk to public safety and property. Such hazards include falling debris, flaming debris, and collisions among spectator vessels.
With the aforementioned hazards in mind, the Captain of the Port, Lake Michigan, has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the fireworks display on Lake Michigan. This zone will be effective and enforced from 9 p.m. until 11 p.m. on August 17, 2013. This zone will encompass all waters of Lake Michigan within a 1000-foot radius of an approximate launch position at 42° 6′24.2″ N, 87°43′7.9″ W (NAD 83).
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Lake Michigan, or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security.
We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be small and enforced for only one day in August. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered the impact of this rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Lake Michigan near Winnetka, IL on August 17, 2013.
This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Lake Michigan or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port, Lake Michigan is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port, Lake Michigan to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Lake Michigan or his on-scene representative to obtain permission to do so. The Captain of the Port, Lake Michigan or his on-scene representative may be contacted via VHF Channel 16.
Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port, Lake Michigan, or his on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on Sister Bay near Sister Bay, WI. This safety zone is intended to restrict vessels from a portion of Sister Bay due to a fireworks display and ski show. This temporary safety zone is necessary to protect the surrounding public and vessels from the hazards associated with the fireworks display and ski show in Sister Bay on August 31, 2013.
This rule is effective from 1 p.m. until 10 p.m. on August 31, 2013. This rule will be enforced from 1 p.m. until 3:15 p.m., and from 8:15 p.m. until 10 p.m. on August 31, 2013.
Documents mentioned in this preamble are part of docket USCG–2013–0614. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, contact or email MST1 Joseph McCollum, U.S. Coast Guard Sector Lake Michigan, at 414–747–7148 or
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because doing so would be impracticable. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a maritime fireworks display and ski show, which are discussed further below.
Under 5 U.S.C. 553(d)(3), The Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Public Law 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
During the afternoon of August 31, 2013, the Village of Sister Bay will sponsor a ski show involving 5 power-boats on the waters of Sister Bay near Sister Bay, Wisconsin. This ski show is scheduled to take place in the vicinity of the Sister Bay Marina. The Coast Guard anticipates a large number of spectator vessels, as well as Marina traffic, during the time of the ski show.
During the evening of August 31, 2013, the Sister Bay Advancement Association will sponsor a fireworks display on the waters of Sister Bay near Sister Bay, Wisconsin. The Coast Guard anticipates a large number of spectators to congregate around the launch position during the display.
The Captain of the Port, Lake Michigan, has determined that the ski show and fireworks display will pose a significant risk to public safety and property. Such hazards include falling debris, flaming debris, and collisions among spectator vessels and vessels involved in the ski show.
With the aforementioned hazards in mind, the Captain of the Port, Lake Michigan, has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the fireworks display and ski show within Sister Bay. This zone will be effective and enforced from 1 p.m. until 3:15 p.m. and from 8:15 p.m. until 10 p.m. on August 31, 2013. This zone will encompass all waters of Sister Bay within a 1000-foot radius of a position at 45°11′33.0″ N, 87°7′23.0″ W (NAD 83).
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Lake Michigan, or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security.
We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be small and enforced for only one day in August. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered the impact of this rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Sister Bay on August 31, 2013.
This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Lake Michigan or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port, Lake Michigan is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port, Lake Michigan to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Lake Michigan or his on-scene representative to obtain permission to do so. The Captain of the Port, Lake Michigan or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port, Lake Michigan, or his on-scene representative.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) Region 1 is publishing a direct final Notice of Deletion of the Cannon Engineering Corp. (CEC), Superfund (Site), located in Bridgewater, Massachusetts, from the National Priorities List (NPL). The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This direct final deletion is being published by EPA with the concurrence of the State of Massachusetts, through the Massachusetts Department of Environmental Protection (MassDEP), because EPA has determined that all appropriate response actions under CERCLA, have been completed. However, this deletion does not preclude future actions under Superfund.
This direct final deletion is effective September 24, 2013 unless EPA receives adverse comments by August 26, 2013. If adverse comments are received, EPA will publish a timely withdrawal of the direct final deletion in the
Submit your comments, identified by Docket ID no. EPA–HQ–SFUND–1983–0002, by one of the following methods:
•
•
•
•
•
Derrick Golden, Remedial Project Manager, U.S. Environmental Protection Agency, Region 1 New England, 5 Post Office Square, Mail code OSRR07–4, Boston, MA 02109–3912, (617) 918–1448,
EPA Region 1 is publishing this direct final Notice of Deletion of the Cannon Engineering Corp. (CEC) Superfund (Site), from the National Priorities List (NPL). The NPL constitutes Appendix B of 40 CFR part 300, which is the Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.
Because EPA considers this action to be noncontroversial and routine, this action will be effective September 24, 2013
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Cannon Engineering Corp. (CEC) Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.
The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:
i. Responsible parties or other persons have implemented all appropriate response actions required;
ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.
The following procedures apply to deletion of the Site:
(1) EPA consulted with the state of Massachusetts prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co- published today in the “Proposed Rules” section of the
(2) EPA has provided the state 30 working days for review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and the state, through the Massachusetts Department of Environmental Protection (MassDEP), has concurred on the deletion of the Site from the NPL.
(3) Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, the Bridgewater Independent. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL.
(4) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.
(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.
Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following information provides EPA's rationale for deleting the Site from the NPL:
The Cannon Engineering Corp. Superfund site (CEC), CERCLIS ID No. MAD079510780, is a 7-acre area of land and is located in a small industrial park in the western part of the Town of Bridgewater, Massachusetts. The site is located approximately 31 miles south from the city of Boston Massachusetts. Prior to 1969, the industrial park consisted of a wooded lowland bordered to the north, south, and east by rural agricultural land. Current land use around the site consists of industrial development in the immediate vicinity to the north and east, and a wooded lowland to the south and west, and agricultural and residential development in the outlying areas.
The CEC facility is one of the four separate but related sites which form the Cannons Site Group. The others are Cannons Plymouth Harbor located in Plymouth, Massachusetts; Tinkham's Garage in Londonderry, New Hampshire; and Gilson Road in Nashua, New Hampshire. All four sites are being handled under one enforcement effort.
CEC first purchased the parcel of land at the Site in November, 1974. The property was developed by them to handle, store, and incinerate chemical wastes. These activities occurred frequently at the Site between 1974 and November, 1980 when operations at the Site ceased after the MassDEP (then called the Department of Environmental Quality Engineering) revoked CEC's Waste License, citing document falsification and other waste reporting violations.
Over 700 drums and approximately 155,000 gallons of liquid waste and sludge in bulk storage were left behind on-site by CEC. Between 1980 and 1982, MassDEP and EPA conducted Site inspections, performed sampling and analyses and confirmed the presence of chemical contamination at the Site. Several tanks and drums were also observed to be leaking. In order to alleviate the problem of leaking contamination and wastes left on-site, the MassDEP performed a removal action. In October 1982, MADEP's contractor, Jet Line Services, Inc., removed approximately 155,000 gallons of sludge and liquid wastes that were stored in tanks and approximately 711 drums from the Site. A subsequent removal was conducted by the group of Potentially Responsible Parties (the “PRP Group”) in June1988. The PRP Group removed the bulk contents of an underground tank, a septic tank, 3 tanker trailers and small (5 gallon or less) containers from laboratory and storage areas at the Site.
In December of 1982, the Site was proposed for inclusion on the NPL, (49 FR 40320) and the site was made final to the NPL on September 8, 1983, (51 FR 21054).
The property was redeveloped in November of 1996, when Osterman Propane, Inc., relocated its propane storage and distribution operations to the Site.
The RI/FS was completed in May of 1987 and evaluated contamination present in air, soils, sediment, surface water and groundwater. Past operations of the facilities at the CEC Site have resulted in the contamination of localized areas of soil, sediments, surface water, and groundwater by chemical wastes.
The findings of the RI/FS determined the following: (1.) Soils, ranging from 4 inches to 22 feet below ground surface, were contaminated with volatile organic compounds (VOCs), semi-organic compounds (SVOCs), polychlorinated biphenyls (PCBs) and pesticides. (2.) Ambient air sampling detected the presence of VOCs. (3.) Groundwater sampling indicated the presence of VOCs, SVOCs and no PCBs nor pesticides. (4.) Sediment sampling results indicated the presence of VOCs, SVOCs and no PCBs and no pesticides. (5.) Surface water sampling results indicated the presence of VOCs, SVOCs and no PCBs nor pesticides. For specific details see the report entitled
In March of 1988, EPA issued a Record of Decision (ROD) for the cleanup of the Site. The cleanup actions were divided into two operable units. The major components of the cleanup remedies for the site included:
The MOM portion of the remedy included a twenty year groundwater monitoring program to assure that contamination above the Maximum Contaminant Levels (MCLs) did not migrate off-site, and to also assure that contaminant levels on-site naturally attenuated. The 1988 ROD estimated that groundwater cleanup target levels, based on the ingestion of on-site groundwater, would be achieved within 15 to 20 years. The Year 20 groundwater sampling event was completed in September of 2010. The management of migration remedy also required that institutional controls be placed on the property to restrict the use of groundwater at the Site. The institutional controls were implemented in 1991 in the form of a deed restriction on the properties.
In summary, the source control portion of the remedy provided for fencing the entire Site to restrict access, onsite thermal aeration of soils contaminated with volatile organic compounds (VOCs) and treatment of PCB contaminated soils offsite by incineration.
In addition, onsite buildings and tanks were decontaminated and removed, and soils under those structures were sampled, along with other soil locations. Any contaminated soils that posed a threat to human health and the environment, were remediated via one of the above mentioned thermal treatment technologies.
All remedial actions, construction activities and cleanup levels related to the Source Control Operable Unit were completed and achieved. Therefore, on September 30, 1991, EPA prepared an Interim Close-out Report (ICOR) for the Site and it is included into the Administrative Record.
The remedial action objectives, as set forth in the 1988 ROD, identified to mitigate threats to public health are as follows:
• Prevent direct contact with contaminated soils throughout the site
• prevent ingestion of contaminated soils, standing water in the wet area
• prevent ingestion of contaminated groundwater
• prevent exposure to contaminants in the buildings, aboveground and underground tanks, and associated structures
The remedial action objectives identified to mitigate threats to the environment are as follows:
• Prevent the exposure of wildlife to contaminated soil, sediments, and standing water in the wet area
• prevent future wetlands contamination from surface water runoff and discharge
There are no ROD amendments for the Site; however an Explanation of Significant Differences (ESD) was signed in May of 2013. The ESD was issued to explain a modification to the selected cleanup levels for the MOM portion of the remedy, as set forth in the March 31, 1988, ROD for the Site. The MOM groundwater remedy was selected in 1988, before the 1993 revisions to the Massachusetts Contingency Pan (MCP). The MCP is the clean up regulations for the Massachusetts Department of Environmental Protection (MassDEP). Prior to 1993, the MCP classified all groundwater within the Commonwealth as a Class 1, or a potable aquifer. Therefore in the 1988 ROD the ingestion of groundwater was assumed to be a potential exposure pathway and Maximum Contaminant Levels (MCLs) were applicable. However, in 1993, MassDEP revised the MCP, which now established new groundwater categories for purpose of remediating waste sites. MassDEP conducted a reevaluation of site groundwater in the fall of 2012 and determined that the site is no longer located in a Class 1 or a potable aquifer. Because the ingestion of site groundwater is no longer considered a potential exposure pathway, MCL's are no longer applicable nor appropriate for cleanup goals at the Site.
Due to the reclassification of groundwater use at the Site, in March of 2012, EPA's risk assessor conducted a cumulative human health and ecological risk assessment. This assessment was performed on all of the remaining contaminated groundwater using the annual groundwater data from 2009, 2010 and 2011. The conclusions of the cumulative risk assessment determined that that there is no unacceptable human health risks because there is no foreseeable use of this groundwater for drinking water purposes at the site. The EPA risk assessment memo is included as attachment 2 to the May 2013 ESD, which is included in the Administrative Record for the Site.
Furthermore because the MOM and SC remedial actions are complete and both human health and ecological risks are within EPA's acceptable range, EPA prepared a Final Close Out Report (FCOR), dated June 2013. The FCOR is included in the administrative record and deletion docket for the site and a copy was also sent to the Bridgewater public library.
As required in the ROD, fencing of the perimeter to restrict uncontrolled access was completed in December 1988. As part of the Remedial Design, an asbestos inspection was performed and asbestos containing materials (ACMs) were found in several of the former onsite buildings. The proper removal and offsite disposal of all ACMs was completed in the spring of 1990. Decontamination, demolition and disposal of all on-site structures, including buildings, storage tanks, piping and an electrical transformer, was completed in February of 1990.
Approximately 397 tons of PCB contaminated soils were excavated transported and properly incinerated offsite. Post-excavation confirmatory samples verified that PCB concentrations in the remaining soils were below the 9 ppm cleanup level.
Between June 11, 1990 and October 10, 1990, a total of 11,330 tons of VOC contaminated soils were excavated and thermally aerated on-site using the Low Temperature Thermal Aeration Unit (LTTA). Post-excavation confirmatory sampling verified that VOC contaminated soil removal to the remedial design excavation levels was achieved. The VOC treated soils were replaced on site and used as part of the fill material in the excavations.
The MOM component of the remedy included the installation of 6 new overburden monitoring wells and 3 new bedrock monitoring wells for the long term monitoring of groundwater quality. Long term groundwater, surface water, sediment and seep monitoring began in 1990 and were completed in September of 2010.
The final field activities involved Site restoration that included wetland restoration of 35,000 square feet of wetlands and then topsoil material was added and then re-graded and seeded. The entire upland area, approximately 99,000 square feet, was backfilled with the treated VOC and SVOC soils and was also re-graded and seeded. Drainage and erosion controls were implemented as part of the final Site restoration activities. All remedial action activities were complete by July of 1991, when the roll-off containers were removed from the Site and all of the final grading, seeding, and landscaping activities were completed.
The soil and groundwater cleanup levels were established in part, from utilizing an Organic Leaching Model, as well as expressions for partitioning and retardation of contaminant movement relative to groundwater. The cleanup levels were set to be within EPA's acceptable risk range of 1 × 10
Overall, a total of 11,330 tons of VOC and SVOC impacted soils were excavated and thermally aerated onsite and 396.65 tons of PCB impacted soils were excavated and incinerated off-site. These removal quantities were sufficient to satisfy the specified clean-up levels as verified by the confirmatory sampling programs and is documented in the September 1991 Interim Final Closeout Report, EPA.
Long Term groundwater, sediment, surface water and seep sampling was conducted at the site for twenty years, per the 1988 ROD. These sampling efforts were completed in September of 2010. EPA will continue to conduct future Five Year Reviews at the site to ensure the remedies remain protective of both human health and the environment. The PRP Group shall adhere to and maintain compliance with the institutional controls/deed restrictions for the Site. At some point in the future, the PRP Group may need to properly abandon the groundwater monitoring wells as directed by EPA, with MassDEP concurrence.
Institutional Controls (ICs), in the form of a deed restriction, was placed on the properties which comprise the Site. The ICs state the following:
• The Site is restricted to certain types of municipal or town uses, until EPA and MassDEP provide certification that other uses are permissible, i.e., no residential use.
• No excavation is allowed from below the level of the groundwater table, until EPA and MassDEP provide certification otherwise.
• No groundwater may be extracted from any point on the site nor shall it serve as a drinking water supply or be used for any other purpose until EPA and MassDEP provide certification otherwise.
These ICs were placed on the Site in 1991 and were recorded and filed with the Plymouth Massachusetts Registry of Deeds. The ICs currently remain in place and were verified in the 2010 Five Year Review.
Five Year Reviews have been competed for the Site in 1995, 2000, 2005, and 2010.
All of these Five Year Review determined that:
• The source control remedy, as documented by EPA, was complete in 1991, and judged by EPA to still be protective
• The groundwater remedy for the Cannon Engineering Corp. Site is expected to be protective of human health and the environment upon completion, and in the interim, exposure pathways that could result in unacceptable risks are being controlled through institutional controls.
The next Five Year Review will be completed in 2015.
In 1982, EPA released a community relations plan which kept the local citizens group and other interested parties informed through activities such as informational meetings, community updates, press releases and public meetings. A hard copy of the 2010 Five Year Review was provided to the Bridgewater Town Clerk and Health Agent. A notice announcing the Five Year Review was placed in a local newspaper of general circulation. A notice announcing EPA's intent to delete the site from the NPL was placed in a local newspaper, the Bridgewater Independent.
The implemented remedy achieves the degree of cleanup specified in the ROD for all pathways of exposure. All selected remedial action objectives and clean-up levels are consistent with agency policy and guidance. No further Superfund responses are needed to protect human health and the environment at the Site.
The National Contingency Plan (NCP) specifies that EPA may delete a site from the NPL if “all appropriate responsible parties or other persons have implemented all appropriate response actions required” or “all appropriate fund financed response under CERCLA has been implemented and no further response action by responsible parties is appropriate”. EPA, with the concurrence of the Commonwealth of Massachusetts through the MassDEP by a letter dated May 22, 2013, believes these criteria for deletion have been satisfied. Therefore EPA is proposing the deletion of the Site from the NPL. All of the completion requirements for the Site have been met as described in the Cannons Engineering Final Closeout Report (FCOR), dated June 2013.
The EPA, with concurrence of the Commonwealth of Massachusetts through the MassDEP, has determined that all appropriate response actions under CERCLA, other than Five Year Reviews have been completed. Therefore, EPA is deleting the Site from the NPL.
Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective September 24, 2013
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
For the reasons set out in this document, 40 CFR part 300 is amended as follows:
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Federal Maritime Commission.
Final rule.
The Federal Maritime Commission (FMC or Commission) amends its Rules of Practice and Procedure regarding practice before the Commission, parties to proceedings, and rulemakings, to update, clarify, and reduce the burden on parties to proceedings before the Commission.
Effective: July 29, 2013.
Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573–0001, Tel.: (202) 523–5725, Email:
The Commission's Rules of Practice and Procedure, 46 CFR Part 502, govern procedures before the Commission. 46 CFR 502.1–502.991. The rules are in place to secure just, speedy, and inexpensive resolution of proceedings before the Commission. The Commission is engaged in an ongoing process of reviewing its rules of practice and revising those that are outdated, unclear, or unduly burdensome. This effort resulted in revision to Subpart A to modernize and clarify general filing requirements effective February 24, 2011, and amendments to Subparts E and L, effective November 12, 2012. See 76 FR 10258, Feb. 24, 2011 and 77 FR 61519, Oct. 10, 2012. As part of this continuing process, the Commission has determined to amend Subparts B, C, D, and certain additional sections in E. The amendments include transferring certain rules from one subpart to another without change in substance to better reflect the subject matter addressed by existing subparts. The amendments also include revisions for purposes of clarification, modernization, or to reflect current practice, technical, non-substantive changes to effect renumbering and removal of rules, as well as correction of some typographical errors in the rules.
A description of the more significant changes follows:
The Final Rule restates the presiding officer's authority presently contained in Subpart J § 502.147 and includes in separate paragraphs the provisions presently found in §§ 502.145, 146, and 149. The Commission has determined that provisions related to the presiding officer's authority and functions are more appropriately described in proximity to the definition of the presiding officer in “Subpart B—Appearance and Practice Before the Commission.” Subheadings are added describing the presiding officer's authority for ease of reference without change in substance of the enumerated powers. Current § 502.148 governing the consolidation of proceedings is moved and restated in a new § 502.79 in Subpart E governing proceedings.
Section 502.27 is amended to streamline the Commission's rules regarding practice before the Commission by persons who are not admitted to the practice of law by a State bar. The rule is updated to provide that the application for admission may be obtained on-line or from the Secretary. The provisions previously found in Sections 502.29 and 502.30 governing a non-attorney's qualifications for admission to practice, to continue representing others after admission, and the right to a hearing in the event of denial of admission, suspension, or disbarment are folded into this section for clarity.
Exhibit No. 1 to Subpart B, a sample format for a Notice of Appearance, is amended to request an indication of authority for representation, and to allow for selection of technologically current methods of service of notices and orders in proceedings. The revised form is consistent with current Commission practice.
Section 502.41 of Subpart C is revised to add to the term “party” a unit of a government agency representing such agency. It also reflects the current citations of other rules that were renumbered by prior amendments.
Section 502.42 is amended to simplify the language describing when the Bureau of Enforcement may become a party to proceedings.
Section 502.43 is modified to harmonize the language of the Federal Rules of Civil Procedure.
Section 502.44 is eliminated as unnecessary.
Language in §§ 502.52, 502.53, 502.54, and 502.55 is revised for clarity. The requirement that service on prior participants be made when submitting comments or replies beyond the initial round in proposed rulemaking proceedings, also found in § 502.114, is reiterated in § 502.57
New § 502.79 restates the language of current § 502.148 authorizing the consolidation of proceedings involving substantially the same issues. The Commission has determined that this provision is more appropriately stated in Subpart E, governing proceedings.
Section 502.201(h) is amended to make the timing of the parties' conference consistent with the requirements of § 502.64. It also corrects a typographical error with respect to the discovery period which was changed to 150 days effective November 12, 2012.
These amendments affect only the Commission's Rules of Practice and Procedure and, as such, are not subject to the general notice of proposed rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. 553(b)(A). The Commission has determined to publish the amendments as a final rule. Therefore, this final rule is not subject to the Regulatory Flexibility Act, 5 U.S.C. 601,
This Final Rule is not a “major rule” under 5 U.S.C. 804(2).
Administrative practice and procedure, Claims, Equal access to justice, Investigations, Lawyers, Maritime carriers, Penalties, Reporting and recordkeeping requirements.
For the reasons stated in the
5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561–569, 571–596; 5 U.S.C. 571–584; 18 U.S.C. 207; 28 U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C. 305, 40103–40104, 40304, 40306, 40501–40503, 40701–40706, 41101–41109, 41301–41309, 44101–44106; E.O. 11222 of May 8, 1965.
(b)
(c)
(a) Upon filing of a complaint instituting proceedings or filing of an answer to an order or complaint, the party filing shall notify the Commission of the name(s), address(es), telephone number(s), and email address(es) of the person or persons who will represent the party in the pending proceeding. Each person who appears in a representative capacity in a proceeding must deliver a written notice of appearance to the Secretary stating for whom the appearance is made. Such notice must indicate whether the representative wishes to be notified of notices, orders and decisions by either email or facsimile transmission. All appearances shall be noted in the record. Motions for leave to intervene must indicate the name(s), address(es), telephone number(s), and email address(es) of the person or persons who will represent the intervenor in the pending proceeding if the motion is granted.
(c) An attorney must represent in the Notice of Appearance that he is admitted to practice and in good standing. A non-attorney must describe his or her authority to act in such capacity.
(d) If an attorney or other representative of record is superseded, there shall be filed a stipulation of substitution signed both by the attorney(s) or representative(s) and by the party, or a written notice from the party to the Commission with a Notice of Appearance included. Substitution of counsel or representative will not, by itself, be considered good cause for delaying a proceeding.
(e) If an attorney wishes to withdraw from representing a party, and written consent is not obtained, or if the party is not otherwise represented, the withdrawing attorney shall file an appropriate motion seeking permission to withdraw and provide appropriate reasons for making the motion. Such motion will be decided in consideration of the factors and standards set forth in Rule 1.16 of the American Bar Association's Model Rules of Professional Conduct and by the courts. [Rule 23.]
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(c)
(d)
(e)
(1) Upon the service by the Commission of a Notice of Filing of Complaint and Assignment of complaint filed pursuant to § 502.62, or § 502.182, or upon referral under subpart T of this part; or
(2) Upon reference by the Commission of a petition for a declaratory order pursuant to § 502.68; or
(3) Upon forwarding for assignment by the Office of the Secretary of a special docket application pursuant to § 502.271; or
(4) Upon the initiation of a proceeding and ordering of hearing before an administrative law judge pursuant to § 502.63.
(f)
(g)
(a) * * *
(2) The application for admission to practice before the Commission by persons not attorneys at law can be downloaded from the Commission's Web site,
(3) All applicants must complete the following certification:
I. _ (Name) _, certify under penalty of perjury under the laws of the United States, that I have not been convicted, after September 1, 1989, of any Federal or State offense involving the distribution or possession of a controlled substance, or that if I have been so convicted, I am not ineligible to receive Federal benefits, either by court order or operation of law, pursuant to 21 U.S.C. 862.
(b) The Commission, in its discretion, may call upon the applicant for a full statement of the nature and extent of his or her qualifications. If the Commission is not satisfied as to the sufficiency of the applicant's qualifications, it will so notify him or her by registered mail, whereupon he or she shall be granted a hearing upon request for the purpose of showing his or her qualifications. If the applicant presents to the Commission no request for such hearing within twenty (20) days after receiving the notification above referred to, his or her application shall be acted upon without further notice.
(c) The Commission may deny admission to, suspend, or prohibit any person from practice before the Commission who it finds does not possess the requisite qualifications to represent others or is lacking in character, integrity, or proper professional conduct. Non-attorneys who have been admitted to practice before the Commission may be excluded from such practice only after being afforded an opportunity to be heard.
(d) A non-attorney may not practice before the Commission unless and until an application has been approved.
(e) Paragraph (d) of this section shall not apply, however, to any person who appears before the Commission on his or her own behalf or on behalf of any corporation, partnership, or association of which he or she is a partner, officer, or regular employee. [Rule 27.]
Docket No. ____:
Please enter my appearance in this proceeding as counsel for ____.
Indicate authority for representation [choose one of the following]:
__ I am an attorney admitted to practice and in good standing before the courts of the State of ____.
__ I am admitted to practice before the Commission pursuant to 46 C.F.R. 502.27.
__ I am an officer, director, or regular employee of the party.
I request to be informed of service of notices, orders and decisions in this proceeding by [choose one of the following]:
The term “party,” whenever used in this part, includes any natural person, corporation, association, firm,
The Bureau of Enforcement shall be a party to proceedings upon designation by the Commission or upon leave to intervene granted pursuant to § 502.68. The Bureau's representative shall be served with copies of all papers, pleadings, and documents in every proceeding in which the Bureau is a party. The Bureau shall actively participate in any proceeding to which it is a party, to the extent required in the public interest, subject to the separation of functions required by section 5(c) of the Administrative Procedure Act. [Rule 42]
The Commission or presiding officer may order an appropriate substitution of parties in the event of a party's death, incompetence, transfer of its interest, or other appropriate circumstance. [Rule 43]
(b) Except where notice or hearing is required by statute, paragraph (a) of this section shall not apply to interpretative rules, general statements of policy, rules of agency organization, procedure, or practice of the Commission, or when the Commission for good cause finds (and incorporates the findings and a brief statement of reasons therefor in the rules issued) that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. [Rule 52]
(c) Where a formal hearing is held in a rulemaking proceeding, interested persons will be afforded an opportunity to participate through submission of relevant, material, reliable, and probative written evidence properly verified, except that such evidence submitted by persons not present at the hearing will not be made a part of the record if objected to by any party on the ground that the person who submits the evidence is not present for cross-examination.
The Commission will incorporate in any publication of proposed or final rules a concise and general statement of their basis and purpose. [Rule 54.]
The publication or service of any substantive rule shall be made not less than thirty (30) days prior to its effective date except:
(a) As otherwise provided by the Commission for good cause found that notice and public procedure thereon are impractical, unnecessary, or contrary to the public interest;
(b) In the case of rules granting or recognizing exemption or relieving restriction; interpretative rules; or statements of policy.
(c) Interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice. [Rule 55.]
Service on all prior commenters must be shown when submitting comments or replies beyond the initial round on a notice of proposed rulemaking. A list of all participants may be obtained from the Secretary of the Commission.
The Commission or the Chief Administrative Law Judge (or designee) may order two or more proceedings which involve substantially the same issues consolidated and heard together.
By the Commission.
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection associated with the Commission's Annual Report for Mobility Fund Phase I Support and Record Retention, adopted as part of the Connect America Fund & Intercarrier Compensation Reform Order and the Third Order on Reconsideration. This notice is consistent with the Order, which stated that the Commission would publish a document in the
The rules in §§ 54.1008(d) and (e), 54.1009(a) through (c) and 54.1010, published at 76 FR 73830, November 29, 2011 are effective July 26, 2013.
Rita Cookmeyer, Wireless
This document announces that on March 28, 2013, OMB approved, for a period of three years, the information collection requirements contained in 47 CFR 54.1008(d) and (e), 54.1009(a) through (c) and 54.1010 and the new FCC Form 690. The Commission publishes this document to announce the effective date of these rule sections. See, In the Matter of Connect America Fund; A National Broadband Plan for Our Future; Establishing Just and Reasonable Rates for Local Exchange Carriers; High-Cost Universal Service Support, WC Docket Nos. 10–90, 07–135, 05–337, 03–109; GN Docket No. 09–51; CC Docket Nos. 01–92, 96–45; WT Docket No. 10–208; FCC 11–161, 76 FR 73830 and FCC 12–52, 77 FR 30904, May 24, 2012. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Judith B. Herman, Federal Communications Commission, Room 1–B441, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060–1185, in your correspondence. The Commission will also accept your comments via email at
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on March 28, 2013, for the information collection requirements contained in 47 CFR part 54. Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060–1185. The foregoing notice is required by the Paperwork Reduction Act of 1995, Pub. L. 104–13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) amends its rules to permit the certification, licensing, and use of foreign object debris (FOD) detection radar equipment in the 78–81 GHz band. The presence of FOD on airport runways, taxiways, aprons, and ramps poses a significant threat to the safety of air travel. FOD detection radar equipment will be authorized on a licensed basis.
Effective August 26, 2013.
Tim Maguire, Mobility Division, Wireless Telecommunications Bureau, (202) 418–2155.
This is a summary of the Commission's
1. Foreign object debris (FOD) at airports, including any substance, debris, or object in a location that can damage aircraft or equipment, can seriously threaten the safety of airport personnel and airline passengers, and can have a negative impact on airport logistics and operations. Trex
2. In the
3. No commenter supports part 90 licensing of any 78–81 GHz band non-Federal radiolocation other than FOD detection. We therefore amend part 90 to authorize only FOD detection radar on a licensed basis.
4. We do not adopt technical specification for FOD detection radar in the 78–81 GHz band. Applications will be considered and authorized on a case-by-case basis. FOD detection radar will be licensed on the condition that the main beamwidth of the antenna (azimuth or elevation) does not illuminate a public roadway near the airport.
5. Authorization of other potential uses of the 78–81 GHz band will be considered in other proceedings. The Commission may at that time consider whether to adopt additional rules governing FOD detection radar in the band (such as the adoption of technical specifications) in order to ensure compatibility between FOD detection radar and other uses, including those that may operate on an unlicensed basis under part 15 of the Commission's rules. Until such technical specifications or other rules are adopted, we will consider the technical parameters required under the waiver when authorizing FOD equipment. During this period we will also accept applications for equipment authorization for devices using similar or more conservative parameters than those specified in the waiver. Any request for equipment authorization of devices with parameters that, in our evaluation, may be considered to cause more interference as compared with the technical parameters in the waiver will be reviewed on a case-by-case basis.
6. This document does not contain new or modified information collection requirements.
7. The Commission will send a copy of the
8. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the
9. The rules adopted in the
10. No comments were submitted specifically in response to the IRFAs. Nonetheless, we have considered the potential economic impact on small entities of the rules discussed in the IRFAs, and we have considered alternatives that would reduce the potential economic impact on small entities of the rules enacted herein.
11. 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 rules 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 Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Below, we further describe and estimate the number of small entity licensees and regulatees that may be affected by the rules changes adopted in this
12. The SBA has developed a small business size standard for airport operations within the two broad economic census categories of “Air Traffic Control” and “Other Airport Operations.” Under both categories, the SBA deems a business to be small if it has average annual receipts of seven million dollars or less. For the census category of Airport Operations, Census Bureau data for 2007 show that there were 1,895 firms in this category that operated for the entire year. Of this total, 1,567 had annual revenue of less than five million dollars, and 167 had annual revenue between five and ten million dollars. Thus, under this category and associated small business size standard, the majority of firms can be considered small.
13. The Census Bureau defines the category of “RF Equipment Manufacturers” as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: All such firms having 750 or fewer employees. According to Census bureau data for 2007, there were a total of 939 firms in this category that operated that year. Of this total, 912 had fewer than 500 employees and 27 had 500 or more
14. There are no projected reporting, recordkeeping or other compliance requirements.
15. The RFA requires an agency to describe the steps it has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.
16. We believe the changes adopted in the
17. The Commission will send a copy of the
Communications equipment; Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 87 and 90 as follows:
47 U.S.C. 154, 303 and 307(e), unless otherwise noted.
Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7), and Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112–96, 126 Stat. 156.
(b) * * *
(c) * * *
(30) Use is limited to foreign object debris detection in airport air operations areas (see section 87.5 of this chapter). The radar must be mounted and utilized so when in use it does not, within the main beamwidth of the antenna (azimuth or elevation), illuminate a public roadway near the airport.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973 (Act), as amended, for diamond darter (
This rule becomes effective August 26, 2013.
This final rule is available on the Internet at
John Schmidt, Acting Field Supervisor, West Virginia Fish and Wildlife Office (see
This rule will finalize the listing of the diamond darter (
Please refer to the proposed listing rule for the diamond darter (77 FR 43906, July 26, 2012) for a detailed description of previous Federal actions concerning this species.
We will also finalize a designation of critical habitat for the diamond darter under the Act in the near future.
Please refer to the proposed listing rule for the diamond darter (77 FR 43906, July 26, 2012) for a complete summary of the species' information.
The diamond darter, a fish species in the perch family, inhabits medium to large, warmwater streams with moderate current and clean sand and gravel substrates (Simon and Wallus 2006, p. 52). In the Elk River of West Virginia, the diamond darter has been collected from riffles and pools where swift currents result in clean-swept, predominately sand and gravel substrates that lack silty depositions (Osier 2005, p. 11).
Historical records of the species indicate that the diamond darter was distributed throughout the Ohio River Basin and that the range included the Muskingum River in Ohio; the Ohio River in Ohio, Kentucky, and Indiana; the Green River in Kentucky; and the Cumberland River Drainage in Kentucky and Tennessee. The species is currently known to exist only within the lower Elk River in Kanawha and Clay Counties, West Virginia, where it was rediscovered in 1980 (Cincotta and Hoeft 1987, p. 133), and is considered extirpated from the remainder of the Ohio River Basin (Cicerello 2003, p. 3; Welsh and Wood 2008, pp. 62, 68). The species has not been collected since 1899 in Ohio, 1929 in Kentucky, and 1939 in Tennessee (Grandmaison
Despite extensive surveys using multiple gear types, including many specifically targeting the diamond darter, no diamond darters have been found anywhere besides the Elk River, West Virginia, in more than 70 years. The diamond darter has been extirpated from most of its historical range, and is currently known to occur only within a single reach of the Elk River in West Virginia. Extirpation from these historical habitats likely resulted from a progression of habitat degradation and subsequent reductions in fish populations; this started with a significant increase in siltation due to land use changes beginning in the mid 1800s and continuing into the early 1900s, followed by water quality degradation associated with increases in sewage, industrial discharges, and mining effluents entering the water, and then finally the impoundment of rivers that inundated riffle habitat and further increased the amount of siltation (Preston and White 1978, pp. 2–4; Trautman 1981, pp. 21–29; Pearson and Pearson 1989, pp. 181–184). The combination of these factors, culminating in the impoundment of rivers, likely led to population reductions and then eventual extirpations of the diamond darter from historical habitats.
A number of factors have likely allowed the Elk River to continue to support this species. The Elk River watershed is dominated by steep, relatively inaccessible terrain. As a result, the area was not easy to settle or develop, and large-scale land use changes, industrial development, and human population increases, along with the resultant siltation and reductions in water quality, did not begin in this area until much later and were much less pervasive than in many other portions of the species' range (Northern and Southern West Virginia Railroad Company 1873, pp. 9–32; Brooks 1910, p. 1; West Virginia Agricultural Experiment Station 1937, p. 1; Trautman 1981, pp. 13–35; Strager 2008, p. 9). In addition, the Elk River is located adjacent to the main Appalachian Plateau, with steep valleys and underlying porous soils. This allows for the absorption of a considerable portion of rainfall, which tends to retard runoff and maintain the flow of larger streams in the watershed even in periods of low rainfall (Baloch
Very little information is available on the reproductive biology and early life history of the diamond darter (Welsh
After hatching, the larvae are pelagic and drift within the water column (Osier 2005, p. 12; Simon and Wallus 2006, p. 56; NatureServe 2008, p. 1). The larva may drift downstream until they reach slower water conditions such as pools, backwaters, or eddies (Lindquist and Page 1984, p. 27). Darter larva may be poorly developed skeletally and unable to hold position or swim upstream where stronger currents exist (Lindquist and Page 1984, p. 27). It is not known how long diamond darters or crystal darters remain in this pelagic phase, but the pelagic phase of other darters adapted to larger rivers lasts for 15 to 30 days (Rakes 2013, p.
Although there are currently insufficient data available to develop an overall population estimate for the species, the results of numerous survey efforts confirm that the species is extremely rare. Fish surveys have been conducted in the Elk River in 1936, 1971, 1973, 1978 to 1983, 1986, 1991, 1993, 1995, 1996, and every year since 1999 (Welsh
For example, previous research documented that diamond darters are most likely to be captured in shoals and concentrate in these areas to forage. In 2012, additional focused survey efforts were conducted in selected shoals that had previously been mapped, and either had previous diamond darter captures or appeared to be highly suitable habitat for the species based on visual assessments (Ruble 2011a, p. 1; Welsh
In the proposed rule to list the diamond darter as endangered and designate critical habitat that published on July 26, 2012 (77 FR 43906), we requested that all interested parties submit written comments by September 25, 2012. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Charleston Gazette and the Courier Journal, which in combination cover all affected counties in West Virginia and Kentucky. We did not receive any requests for a public hearing. The second comment period opened on March 29, 2013, and closed on April 29, 2013 (78 FR 19172), and requested comments on the proposed rule and a draft economic analysis (DEA) prepared in support of the proposed critical habitat designation.
During the first comment period, we received 14 comment letters, 1 of which was a duplicate, from 13 individuals or entities directly addressing the proposed listing of the diamond darter as endangered. During the second comment period, we received 10 additional comment letters, 1 of which bulk-submitted approximately 4,840 form letters, from 9 individuals or entities. General, nonsubstantive comments of an editorial nature were incorporated in the final rule as appropriate. Substantive comments regarding the proposed listing are summarized and addressed below. Comments addressing the proposed designation of critical habitat and the associated DEA, rather than the proposed listing, are discussed and addressed under a separate rulemaking finalizing a designation of critical habitat for the diamond darter under the Act, that we intend to publish in the near future.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from five knowledgeable individuals with scientific expertise on the diamond darter and its habitat, biological needs, and threats. We received individual responses from three of the peer reviewers. One peer reviewer's response was incorporated into comments submitted by his employer, the WVDNR. Those comments are addressed under
We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the listing of the diamond darter. The peer reviewers all generally concurred with our conclusions and provided supporting information on the taxonomy, distribution, and threats described in the proposed rule. Two peer reviewers explicitly concurred that threats to the only remaining population of the diamond darter in the Elk River, West Virginia, were accurately
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The only Federal agency comments we received were from the Natural Resources Conservation Service (NRCS). The NRCS submitted comment letters during each of the two comment periods.
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Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” We received comments from two State agencies, the WVDNR and the West Virginia Department of Environmental Protection (WVDEP). Comments received from the State agencies are summarized below, followed by our responses to their additional substantive comments.
The WVDNR concurred with the proposed designation and stated that the Service has “conclusively substantiated that the only known population of this species . . . is vulnerable to destruction, modification, or curtailment of its habitat or range, and is without adequate existing regulations to assist its continued survival.” The agency further stated that the Service has provided an “overwhelming amount of data” that the species meets the criteria for endangered status, and that the only known population of this species could be extirpated by a single adverse event or from chronic pollution or sedimentation. The agency provided additional comments supportive of our description of the species' taxonomy, and of our descriptions of habitats used by the species.
The WVDNR agreed with our assessment of the threats to the species' habitat and range as listed under the Summary of Factors Affecting the Species—Factor A, including sedimentation, mining, and oil and gas development. The agency stated that the documentation provided demonstrates conclusively that the threats described may either independently or cumulatively impact the existence of the diamond darter in the Elk River. The agency particularly noted the threats associated with sedimentation, and described it as one of the most underrated impacts to aquatic environments in the State. The agency suggested that increased inspections and enforcement of regulations at mining, gas, and forestry sites to control sedimentation within the Elk River watershed should occur. The WVDNR concurred that there were no major threats associated with overutilization or disease or predation as described under the Summary of Factors Affecting the Species—Factors B and C, respectively, but expressed a willingness to develop additional protections for this species through the West Virginia scientific collecting or fishing permit process, if this is deemed necessary. In regard to Factor D, the WVDNR concurred that existing regulatory mechanisms are often vague and are not directly applicable to the needs of the diamond darter. Existing laws such as the Clean Water Act, Surface Mining Control and Reclamation Act, and State natural resource laws may indirectly mitigate threats, but protections under the Act may be necessary to provide for the continued maintenance and preservation of the last remaining population. Finally, the WVDNR expressed a willingness to work with us on developing a recovery plan.
The WVDEP concurred that the diamond darter's small remaining population is susceptible to the effects of diminished genetic variability and invasive species such as
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It is also reasonable to assume that water quality improvements since the late 1970s may have had a positive effect on diamond darter populations, similar to the effect on populations of other fish species. In addition to the data cited by the WVDNR, surveys on the Ohio River mainstem between 1957 and 2001 documented a general improvement in abundance and diversity of fish populations over that time. Of the 56 species whose population trends could be analyzed, 35 (62 percent) showed an increase (Thomas
Therefore, we concur that the diamond darter was likely more abundant and widespread than may be indicated by historical surveys, and also may have responded positively to previous water quality improvements. However, we lack empirical data on which to base historical estimates of population or distribution beyond the actual results of collections as described in the
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We concur with the WVDEP that the diamond darter is susceptible to the effects of siltation, which is the accumulation of fines, or particles smaller than sand, while being dependent upon a relative abundance of natural sand to fulfill certain life-history functions. We have therefore clarified in the final rule that the diamond darter requires substrates that are not embedded with fine silts or clays, and removed references to measures of embeddedness that are not consistently defined.
We have also clarified our use of the terms siltation and sedimentation. We note that many publications use these two terms interchangeably and do not define or differentiate between the terms. For the final rule, we have used the term siltation to specifically refer to the pollution of water by fine particulate terrestrial material, with a particle size dominated by silt or clay. It refers both to the increased concentration of suspended sediments and to the increased accumulation (temporary or permanent) of fine sediments on stream bottoms; whereas, sedimentation refers to the deposition of suspended soil particles of various sizes from large rocks to small particles (Wikipedia 2013a, p. 1; Wikipedia 2013b, p. 1). Sedimentation is used as the opposite of erosion, is often caused by land use changes or disturbances, and is a common source of siltation in a stream (Wikipedia 2013b, p. 1). However, while we have clarified terminology, the best available data illustrate that the diamond darter requires low levels of siltation and substrates with naturally high percentages of sands that are not embedded with silts and clays. Excess sedimentation can degrade diamond darter habitat by both increasing siltation resulting in increased substrate embeddedness and by destabilizing stream channels, banks, and substrates.
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As discussed in the proposed rule (77 FR 43906) and below, the diamond darter has already been extirpated from most of its historical range. As described in our response to comment #5, these extirpations were likely a result of the cumulative effects of siltation, water quality degradation, and impoundment. Our response to comment #3 provides more information on how other fish populations in the Ohio River basin have responded to water quality improvements since major
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The WVDEP reports detailing the results of the Elk River benthic macroinvertebrate surveys state that larger rivers, as opposed to smaller rivers, offer a wider variety of microhabitats, and, therefore, the high benthic macroinvertebrate scores may mask some degradation in water quality (WVDEP 1997, p. 41). These WVDEP reports also identify coal mining, oil and gas development, erosion and sedimentation, timber harvesting, water quality degradation, and poor wastewater treatment as threats to the Elk River watershed (WVDEP 1997, p. 15; WVDEP 2008b, pp. 1–2; WVDEP 2011b, pp. viii–ix). We conclude that the Elk River's listing as a high-quality stream and high benthic macroinvertebrate scores are insufficient evidence to conclude that there are no significant threats to the watershed.
We received public comments from 12 individuals or organizations. Four individuals provided letters supporting the listing, and one of these individuals provided substantive information corroborating our threats analysis. Three organizations, The Nature Conservancy (TNC), the West Virginia Rivers Coalition (WVRC), and Kentucky Waterways Alliance, also supported the proposed rule and provided substantive comments or additional supporting information corroborating our threats analysis. The Center for Biological Diversity (CBD), on behalf of 16 additional organizations, submitted comments in support of the proposed listing and reiterated information presented in the proposed rule. In addition, approximately 4,840 individuals associated with CBD provided form letters supporting the proposed listing that reiterated the comments provided by CBD. The WVRC, CBD, and associated individuals urged the Service to act quickly to finalize the listing of the species, with the WVRC suggesting that protection is needed now while there still may be a viable breeding population of diamond darters. Four organizations, the WVCC, the West Virginia Oil and Natural Gas Association (WVONGA), the West Virginia Coal Association (WVCA), and the West Virginia Forestry Association (WVFA), did not support the proposed rule and provided additional substantive comments. These four organizations each submitted separate comments during both of the comment periods, and all urged the Service to delay listing of the species until a more thorough record regarding the proposal was developed. A summary of the substantive comments we received regarding the proposed listing and our responses are provided below.
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In addition, there are a number of threats that are not addressed by any existing regulatory mechanisms. Unregulated threats include geographic isolation, invasive species, accidental spills and catastrophic events, and non-forestry-related activities occurring on private lands that contribute sediments and other non-point-source pollutants to the Elk River watershed. Because the only remaining population of this species is restricted to one small reach of one stream, these unregulated threats alone make listing the diamond darter warranted. The cumulative effects of all the threats listed under the Summary of Factors Affecting the Species—Factors A, B, C, and E, including ongoing habitat degradation, coupled with the
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We also concur that conductivity varies naturally from region to region due to the availability of different ionic constituents, so that data on conductivity from one region of the country may not be applicable to other regions. Studies from West Virginia (that included data from watersheds immediately adjacent to the Elk River) and Kentucky found that an aquatic conductivity level of 300 microSiemans/cm (μS/cm) should avoid the local extirpation of 95 percent of native stream macroinvertebrate species. The study noted that, because 300 μS/cm would only protect against total extirpation rather than just a reduction in abundance, conductivity level was not fully protective of sensitive species or higher quality, exceptional waters (USEPA 2011, p. xiv). These data, coupled with the information provided on fish species such as the Cumberland darter and the Kentucky arrow darter (
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We fully considered comments from peer reviewers, State and Federal agencies, and the public on the proposed rule to develop this final listing of the diamond darter. This final rule incorporates appropriate changes to our proposed listing based on the received comments discussed above and newly available scientific and commercial data. Substantive changes include new or additional information on: (1) Why the species was extirpated from most of its historical range and why it has survived in the Elk River; (2) the results of survey efforts and research conducted since the proposed rule; (3) threats from invasive riparian plants; (4) definitions for substrate embeddedness and siltation and the threat that they pose; (5) potential threats from increased conductivity; and (6) conservation measures and cumulative effects. Although our analysis of these threats is somewhat different from that in our proposed rule, the analysis and our conclusions are a logical outgrowth on the proposed rule commenting process, and none of the information changes our determination that listing this species as endangered is warranted.
In addition, we added Indiana to the diamond darter's historical range column of the § 17.11 endangered and threatened wildlife table in the regulatory section of the final rule. Although Indiana was included in the Historical Range/Distribution discussion of the proposed rule, we inadvertently left it out of the § 17.11 endangered and threatened wildlife table in the regulatory section of the proposed rule. Inclusion of Indiana in the historical range column of the § 17.11 endangered and threatened wildlife table in the regulatory section of the final rule corrects that error.
Section 4 of the Act and its implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Each of these factors is discussed below.
As indicated by the continued persistence of the diamond darter, the Elk River in West Virginia currently provides overall high-quality aquatic habitat. The Elk River is one of the most ecologically diverse rivers in the State (Green 1999, p. 2), supporting more than 100 species of fish and 30 species of mussels, including 5 federally listed mussel species (Welsh 2009a, p. 1). The river, including those portions that are within the range of the diamond darter, is listed as a “high quality stream” by the WVDNR (WVDNR 2001, pp. 1, 2, 5). Streams in this category are defined as having “significant or irreplaceable fish, wildlife, and recreational resources” (WVDNR 2001, p. iii). In an evaluation of the watershed, the WVDEP noted that all four sampling sites tested within the mainstem of the Elk River scored well for benthic macroinvertebrates on the West Virginia Stream Condition Index, with results of 77 or higher out of a potential 100 points (WVDEP 1997, p. 41).
Criteria for placement on the high-quality streams list are based solely on the quality of fisheries populations and the utilization of those populations by the public and do not include water quality or threats to the watershed (WVDNR 2001, p. 36; Brown 2009, p. 1). Despite the high quality of the fishery populations, continuing and pervasive threats exist within the watershed. In fact, the WVDEP evaluation also noted that because larger rivers offer a wider variety of microhabitats, the high benthic macroinvertebrate scores may mask some degradation in water quality (WVDEP 1997, p. 41). Noted threats to the Elk River watershed include sedimentation and erosion, coal mining, oil and gas development, timber harvesting, water quality degradation, and poor wastewater treatment (WVDEP 1997, p. 15; Strager 2008, pp. 1–39; WVDEP 2008b, pp. 1–2). Significant degradation to the water quality has also been documented in the Elk River's tributaries (WVDEP 2011b, p.viii). Water quality in these tributaries directly contributes to and affects the ecological condition of the mainstem Elk River. Water quality degradation of tributaries is also important because diamond darters congregate and forage in shoals that are often located near tributary mouths (Welsh
Many sources have recognized that
Many publications use the terms siltation and sedimentation interchangeably, and do not define or differentiate between the terms. For this rule, we have used the term siltation specifically to refer to the pollution of water by fine particulate material, with a particle size dominated by silt or clay. It refers both to the increased concentration of fine-sized suspended sediments and to the increased accumulation (temporary or permanent) of fine sediments on stream bottoms, whereas sedimentation refers to the deposition of suspended soil particles of various sizes from large rocks to small particles. Sedimentation is used as the opposite of erosion, is often caused by land use changes or disturbances, and is a common source of siltation in a stream.
The USEPA has identified excess sediment as the leading cause of impairment to the Nation's waters (USEPA 2013, p. 1). Excess sediment in streams and resulting sedimentation can degrade fish habitat by altering the stability of the stream channel, scouring stream banks and substrates, destabilizing the substrates and habitats that fish such as the diamond darter rely on, and aggrading the stream bottom, which covers the substrates with excess sediments and buries, crushes, or suffocates benthic invertebrates, fish eggs, and fish larvae (Waters 1995, pp. 114–115; USEPA 2013, pp. 1–6). Excess sediment in streams can also lead to siltation.
Siltation has long been recognized as a pollutant that alters aquatic habitats by reducing light penetration, changing heat radiation, increasing turbidity, and covering the stream bottom (Ellis 1936 in Grandmaison
Many researchers have noted that
Siltation, along with excess sedimentation, has been identified as a threat to the Elk River system. Portions of the lower Elk River were listed as impaired due to elevated levels of iron and, previously, aluminum (USEPA 2001b, p. 1–1; Strager 2008, p. 36; WVDEP 2008a, p. 18; WVDEP 2008b, p. 1; WVDEP 2012, pp. 14–15). The WVDEP has since revised the water quality criteria for aluminum to address bioavailability of that metal, and established maximum amounts of pollutants allowed to enter the waterbody (known as Total Maximum Daily Loads (TMDL)) (WVDEP 2008a, p. A–2; WVDEP 2010, p. 26). The WVDEP identified that impairment due to metals, including iron, usually indicates excess sediment conditions (WVDEP 2008b, p. 5), and identified coal mining, oil and gas development, timber harvesting, all-terrain vehicle usage, and stream bank erosion as sources of increased sediment entering the Elk River watershed (USEPA 2001b, pp. 1–1, 3–4 and 6; WVDEP 2008b, p. 1). Within two subwatersheds that make up approximately 11 percent of the total Elk River watershed area, the WVDEP identified 433 kilometers (km) (269 miles (mi)) of unimproved dirt roads and 76 km (47 mi) of severely eroding stream banks (WVDEP 2008b, p. 5). An estimated 1,328 hectares (ha) (3,283 acres (ac)) of lands were actively timbered in those two watersheds in 2004 (WVDEP 2008b, p. 6). A review of the West Virginia Department of Forestry (WVDOF) inventory of registered logging sites estimated 16,381 ha (40,479 ac) of harvested forest, 1,299 ha (3,209 ac) of land disturbed by forestry-related roads and landings, and 518 ha (1,281 ac) of burned forest within portions of the Elk River watershed that are impaired by excess sediment and metals (WVDEP 2011c, pp. 34–35).
Coal mining occurs throughout the entire Elk River watershed. Most of the active mining occurs in the half of the watershed on the south side of the Elk River, which flows east to west (Strager 2008, p. 17). The most recent summarized data, as of January 2008, indicates more than 5,260 ha (13,000 ac) of actively mined areas including 91 surface mine permits, 79 underground mine permits, 1,351 ha (3,339 ac) of valley fills, 582 km (362 mi) of haul roads, 385 km (239 mi) of mine drainage structures, 473 National Pollutant Discharge Elimination System (NPDES) discharge points associated with mines, and 3 mining related dams (Strager 2008, pp. 19–21). There are also 615 ha (1,519 ac) of abandoned mine lands and 155 mine permit sites that have forfeited their bonds and have not been adequately remediated (Strager 2008, p. 18). Approximately 47 percent of the entire Elk River watershed is within the area that the USEPA has identified as potentially being subject to mountaintop removal mining activities (Strager 2008, p. 17).
Coal mining can contribute significant amounts of sediment to streams and degrade their water quality. Impacts to instream water quality (chemistry) occur through inputs of dissolved metals and other solids that elevate stream conductivity, increase sulfate levels, alter stream pH, or a combination of these (Curtis 1973, pp. 153–155; Pond 2004, pp. 6–7, 38–41; Hartman
High ionic salt concentrations associated with increased conductivity impede effective osmoregulation in fish and other aquatic organisms and impair their physiological systems that extract energy from food, regulate internal pH and water volume, excrete metabolic wastes, guide embryonic development,
Water quality impacts from both active and historical mining have been noted in the Elk River watershed (WVDEP 2011b, pp. 29, 37, 41, 63). For example, in the Jacks Run watershed, a tributary to the Elk River, one-third of the entire watershed had been subject to mining-related land use changes that cleared previously existing vegetation. In a sampling site downstream of mining, the WVDEP documented substrates embedded with dark silt, most likely from manganese precipitate or coal fines, and benthic scores that indicated severe impairment (WVDEP 1997, p. 60). Another Elk River tributary, Blue Creek, had low pH levels associated with contour mining and acid drainage, and three sample sites had pH values of 4.2 or less (WVDEP 1997, p. 47; WVDEP 2008b, p. 6). At pH levels of 5.0 or less, most fish eggs cannot hatch (USEPA 2009, p. 2).
Sampling sites below a large mining reclamation site in the Buffalo Creek drainage of the Elk River watershed had violations of the West Virginia water quality criteria for acute aluminum and manganese, poor habitat quality, and substrates that were heavily embedded with coal fines and clay (WVDEP 1997, pp. 4, 56–57). Other sites in the watershed, where topographic maps showed extensive surface mining, had pH readings of 4.7, elevated aluminum levels, and benthic communities that were dominated by acid-tolerant species (WVDEP 1997, pp. 4, 56–57).
A U.S. Geological Survey (USGS) study of the Kanawha River Basin, which includes the Elk River, found that streams draining basins that have been mined since 1980 showed increased dissolved sulfate, decreased median bed-sediment particle size, and impaired benthic invertebrate communities when compared to streams not mined since 1980. Stream-bottom sedimentation in mined basins was also greater than in undisturbed basins (USGS 2000, p. 1). In streams that drained areas where large quantities of coal had been mined, the benthic invertebrate community was impaired in comparison to rural parts of the study area where little or no coal had been mined since 1980 (USGS 2000, p. 7). That report notes that benthic invertebrates are good indicators of overall stream water quality and that an impaired invertebrate community indicates that stream chemistry or physical habitat, or both, are impaired, causing a disruption in the aquatic food web (USGS 2000, p. 8).
In another study that specifically evaluated fish data, the Index of Biotic Integrity (IBI) scores at sites downstream of valley fills were significantly reduced by an average of 10 points when compared to unmined sites, indicating that fish communities were degraded below mined areas (Fulk
Threats from coal mining also include the potential failure of large-scale mine waste (coal slurry) impoundment structures contained by dams constructed of earth, mining refuse, and various other materials, which could release massive quantities of mine wastes that could cover the stream bottoms. There are currently two coal slurry impoundments within the Elk River watershed. These impoundments have a capacity of 6,258,023 and 1,415,842 cubic meters (m
Abandoned underground mines also have potential to fill with water and “blow out,” causing large discharges of sediment and contaminated water. Similar events have happened in nearby areas, including one in Kanawha County, West Virginia, in April 2009 that discharged “hundreds of thousands of gallons of water” onto a nearby highway, and caused a “massive earth and rock slide” (Marks 2009, p. 1). A second situation occurred in March 2009 in Kentucky where water from the mine portal was discharged into a nearby creek at an estimated rate of 37,854 liters (l) (10,000 gallons (ga)) a minute (Associated Press 2009, p. 1). In addition to the increased levels of sediment and potential smothering of stream habitats, discharges from abandoned mine sites often have elevated levels of metals and low pH (Stoertz
The Elk River watershed is also subject to oil and gas development, with more than 5,800 oil or gas wells in the watershed according to data available through January 2011 (WVDEP 2011a, p. 1). The lower section of the Elk River, which currently contains the diamond darter, has the highest concentration of both active and total wells in the watershed, with more than 2,320 active wells and 285 abandoned wells (WVDEP 2011a, p. 1).
Although limited data are available to quantify potential impacts, development of oil and gas resources can increase sedimentation rates in the stream and degrade habitat and water quality in a manner similar to that described for coal mining. Oil and gas wells can specifically cause elevated chloride levels through discharge of brine and runoff from materials used at the site, and the erosion of roads associated with these wells can contribute large amounts of sediment to the streams (WVDEP 1997, p. 54). For example, WVDEP sampling sites within Summers Fork, a tributary to the Elk River with a “high density of oil and gas wells,” had elevated chloride and conductivity levels, as well as impaired benthic invertebrate scores, despite “good benthic substrate” (WVDEP 1997, p. 52). Within the Buffalo Creek watershed, another Elk River tributary, the impaired benthic invertebrate scores at sample sites were attributed to oil compressor stations next to the creek, pipes running along the bank parallel to the stream, and associated evidence of past stream channelization (WVDEP 1997, p. 55).
High levels of siltation have been noted in the impaired sections of the Elk River (USEPA 2001b, pp. 3–6). Oil and gas access roads have been identified as a source that contributes “high” levels of sediment to the Elk River (USEPA 2001b, pp. 3–7). The WVDEP estimates the size of the average access road associated with an oil or gas well to be 396 meters (m) (1,300 feet (ft)) long by 7.6 m (25 ft) wide or approximately .30 ha (0.75 ac) per well site (WVDEP 2008b, p. 10). If each of the wells in the watershed has this level of disturbance, there would be more than 1,821 ha (4,500 ac) of access roads contributing to increased sedimentation and erosion in the basin. Lack of road maintenance, improper construction, and subsequent use by the timber industry and all-terrain vehicles can increase the amount of erosion associated with these roads (WVDEP 2008b, pp. 5–6).
Shale gas development is an emerging issue in the area. Although this is currently not the most productive area of the State, the entire current range of the diamond darter is underlain by the Marcellus and Utica Shale formation and potentially could be affected by well drilling and development (National Energy Technology Laboratory (NETL) 2010 pp. 6–10). The pace of drilling for Marcellus Shale gas wells is expected to increase substantially in the future, growing to about 700 additional wells per year in West Virginia starting in 2012 (NETL 2010, p. 27). This amount is consistent with what has been reported in the area around the Elk River. In March 2011, there were 15 Marcellus Shale gas wells reported within Kanawha County (West Virginia Geological and Economic Survey (WVGES) 2011, p. 1). As of January 2012, there were 188 completed Marcellus Shale gas wells within Kanawha County and an additional 27 wells that had been permitted (WVGES 2012, p. 1). Data specific to the Elk River watershed are not available for previous years, but currently at least 100 completed and 21 additional permitted Marcellus Shale gas wells are within the watershed (WVGES 2012, p. 1). The WVONGA suggests that the region where the diamond darter exists may experience a surge in oil and natural gas exploration and drilling above the levels experienced in the previous 5 years (WVONGA 2013).
Marcellus Shale gas wells require the use of different techniques than previously used for most gas well development in the area. When compared to more traditional methods, Marcellus Shale wells usually require more land disturbance and more water and chemicals for operations. In addition to the size and length of any required access roads, between 0.8 and 2.0 ha (2 and 5 ac) are generally disturbed per well (Hazen and Sawyer 2009, p. 7). Each well also requires about 500 to 800 truck trips to the site (Hazen and Sawyer 2009, p. 7). Construction of these wells in close proximity to the Elk River and its tributaries could increase the amount of siltation in the area due to erosion and subsequent sedimentation from the disturbed area, road usage, and construction.
Shale gas wells typically employ a technique called hydrofracking, which involves pumping a specially blended liquid mix of water and chemicals down a well, into a geologic formation. The pumping occurs under high pressure, causing the formation to crack open and form passages through which gas can flow into the well. During the drilling process, each well may use between 7 and 15 million liters (2 and 4 million ga) of water (Higginbotham
In addition to water withdrawals, there is a potential for spills and discharges from oil and gas wells, particularly Marcellus Shale drilling operations. Pipelines and ponds used to handle brine and wastewaters from fracking operations can rupture, fail, or overflow and discharge into nearby streams and waterways. In Pennsylvania, accidental discharges of brine water from a well site have killed fish, invertebrates, and amphibians up to 0.4 mi (0.64 km) downstream of the discharge even though the company immediately took measures to control and respond to the spill (PADEP 2009, pp. 4–22). In 2011, the WVDEP cited a company for a spill at a well site in Elkview, West Virginia. Up to 50 barrels of oil leaked from a faulty line on the oil well site. The spill entered a tributary of Indian Creek, traveled into Indian Creek and then flowed into the Elk River (Charleston Gazette 2011, p. 1). This spill occurred within the reach of the Elk River known to be occupied by the diamond darter and, therefore, could have affected the species and its habitat.
One common source of chemical water quality impairments is untreated or poorly treated wastewater (sewage). Municipal wastewater treatment has improved dramatically since passage of the 1972 amendments to the Federal Water Pollution Control Act (which was amended to become the Clean Water Act in 1977), but some wastewater treatment plants, especially smaller plants, continue to experience maintenance and operation problems that lead to discharge of poorly treated sewage into
Untreated domestic sewage (straight piping) and poorly operating septic systems are still problems within the Elk River watershed (WVDEP 1997, p. 54; WVDEP 2008b, p. 3). Untreated or poorly treated sewage contributes a variety of chemical contaminants to a stream, including ammonia, pathogenic bacteria, nutrients (e.g., phosphorous and nitrogen), and organic matter, that can increase biochemical oxygen demand (BOD) (Chu-Fa Tsai 1973, pp. 282–292; Cooper 1993, p. 405). The BOD is a measure of the oxygen consumed through aerobic respiration of micro-organisms that break down organic matter in the sewage waste. Excessive BOD and nutrients in streams can lead to low dissolved oxygen (DO) levels in interstitial areas of the substrate where a high level of decomposition and, consequently, oxygen depletion takes place (Whitman and Clark 1982, p. 653). Low interstitial DO has the potential to be particularly detrimental to fish such as the diamond darter, which live on and under the bottom substrates of streams and lay eggs in interstitial areas (Whitman and Clark 1982, p. 653). Adequate oxygen is an important aspect of egg development, and reduced oxygen levels can lead to increased egg mortality, reduced hatching success, and delayed hatching (Keckeis
Elevated nutrients in substrates can also make these habitats unsuitable for fish spawning, breeding, or foraging and reduce aquatic insect diversity, which may impact availability of prey and ultimately fish growth (Chu-Fa Tsai 1973, pp. 282–292; Wynes and Wissing 1981, pp. 259–267). Darters are noted to be “highly sensitive” to nutrient increases associated with sewage discharges, and studies have demonstrated that the abundance and distribution of darter species decreases downstream of these effluents (Katz and Gaufin 1953, p. 156; Wynes and Wissing 1981, p. 259). Elevated levels of fecal coliform signal the presence of improperly treated wastes (WVDEP 2008a, p. 7) that can cause the types of spawning, breeding, and foraging problems discussed above.
The reach of the Elk River from the mouth to River Mile 102.5, which includes the area supporting the diamond darter, was on the State's list of impaired waters under section 303(d) of the CWA due to violations of fecal coliform levels in 2008 and 2010 (WVDEP 2008a, p. 18; WVDEP 2010, p. 26). There have been noticeable increases in fecal coliform near population centers adjacent to the Elk River, including the cities of Charleston, Elkview, Frametown, Gassaway, Sutton, and Clay (WVDEP 2008b, p. 8). Elk River tributaries near Clendenin also show evidence of organic enrichment and elevated levels of fecal coliform (WVDEP 1997, p. 48). The WVDEP notes that failing or nonexistent septic systems are prevalent throughout the lower Elk River watershed (WVDEP 2008b, p. 1). To address water quality problems, the WVDEP conducted a more detailed analysis of two major tributary watersheds to the lower Elk River. The agency found that all residences in these watersheds were “unsewered” (WVDEP 2008b, p. 7). The Kanawha County Health Department Sanitarians estimate that the probable failure rate for these types of systems is between 25 and 30 percent, and monitoring suggests it may be as high as 70 percent (WVDEP 2008b, p. 7).
In another study, it was noted that straight pipe and grey water discharges are often found in residences within the Elk River watershed because the extra grey water would overburden septic systems. These untreated wastes are discharged directly into streams. This grey water can contain many household cleaning and disinfectant products that can harm stream biota (WVDEP 1997, p. 54). Finally, there is the potential for inadvertent spills and discharges of sewage waste. In 2010, a section of stream bank along the Elk River near Clendenin failed and fell into the river, damaging a sewerline when it fell. The line then discharged raw sewage into the river (Marks 2010, p. 1). The diamond darter is known to occur in the Elk River near Clendenin; therefore, this discharge likely affected the species.
Impoundment of previously occupied rivers was one of the most direct and significant historical causes of range reduction and habitat loss for the diamond darter. One of the reasons the diamond darter may have been able to persist in the Elk River is because the river remains largely unimpounded. Although there is one dam on the Elk River near Sutton, an approximately 161-km (100-mi) reach of the river downstream of the dam, including the portion that supports the diamond darter, retains natural, free-flowing, riffle and pool characteristics (Strager 2008, p. 5; Service 2008). All the other rivers with documented historical diamond darter occurrences are now either partially or completely impounded. There are 4 dams on the Green River, 8 dams on the Cumberland River, and 11 locks and dams on the Muskingum River. A series of 20 locks and dams have impounded the entire Ohio River for navigation. Construction of most of these structures was completed between 1880 and 1950; however, the most recent dam constructed on the Cumberland River was completed in 1973 (Clay 1975, p. 3; Trautman 1981, p. 25; Tennessee Historical Society 2002, p. 4; American Canal Society 2009, p. 1; Ohio Division of Natural Resources 2009, p. 1).
These impoundments have permanently altered habitat suitability in the affected reaches and fragmented stream habitats, blocking fish immigration and emigration between the river systems, and preventing recolonization (Grandmaison
There is the potential for direct disturbance, alteration, and fill of diamond darter habitat in the Elk River. Since 2009, at least three proposed projects had the potential to directly disturb habitat in the Elk River in reaches that are known to support the species. Plans for these projects have not yet been finalized. Project types have included bridges and waterline crossings. Direct disturbances to the habitat containing the diamond darter could kill or injure adult individuals, young, or eggs. Waterline construction that involves direct trenching through
In addition, the expansion of gas development in the basin will likely lead to additional requests for new or upgraded gas transmission lines across the river. The WVONGA suggests that the region where the diamond darter exists may experience a surge in oil and natural gas exploration and drilling above the levels experienced in the previous 5 years, and that new pipeline stream crossings are expected because the industry is working to provide new users with access to this expanded supply (WVONGA 2013).
Pipeline stream crossings can affect fish habitat; food availability; and fish behavior, health, reproduction, and survival. The most immediate effect of instream construction is the creation of short-term pulses of highly turbid water and total suspended solids (TSS) downstream of construction (Levesque and Dube 2007, pp. 399–400). Although these pulses are usually of relatively short duration and there is typically a rapid return to background conditions after activities cease, instream construction has been shown to have considerable effects on stream substrates and benthic invertebrate communities that persist after construction has been completed (Levesque and Dube 2007, pp. 396–397). Commonly documented effects include substrate compaction, as well as silt deposition within the direct impact area and downstream that fills interstitial spaces and reduces water flow through the substrate, increasing substrate embeddedness and reducing habitat quality (Reid and Anderson 1999, p. 243; Levesque and Dube 2007, pp. 396–397; Penkal and Phillips 2011, pp. 6–7). Construction also directly alters stream channels, beds, and banks resulting in changes in cover, channel morphology, and sediment transport dynamics. Stream bank alterations can lead to increased water velocities, stream degradation, and stream channel migrations. Removal of vegetation from the banks can change temperature regimes and increase sediment and nutrient loads (Penkal and Phillips 2011, pp. 6–7).
These instream changes not only directly affect the suitability of fish habitat, but also affect the availability and quality of fish forage by altering the composition and reducing the density of benthic invertebrate communities within and downstream of the construction area (Reid and Anderson 1999, pp. 235, 244; Levesque and Dube 2007, pp. 396–399; Penkal and Phillips 2011, pp. 6–7). Various studies have documented adverse effects to the benthic community that have been apparent for between 6 months and 4 years post-construction (Reid and Anderson 1999, pp. 235, 244; Levesque and Dube 2007, pp. 399–400). Stream crossings have also been shown to affect fish physiology, survival, growth, and reproductive success (Levesque and Dube 2007, p. 399). Studies have found decreased abundance of fish downstream of crossings, as well as signs of physiological stress such as increased oxygen consumption and loss of equilibrium in remaining fish downstream of crossings (Reid and Anderson 1999, pp. 244–245; Levesque and Dube 2007, pp. 399–401). Increased sediment deposition and substrate compaction from pipeline crossing construction can degrade spawning habitat, result in the production of fewer and smaller fish eggs, impair egg and larvae development, limit food availability for young-of-the-year fish, and increase stress and reduce disease resistance of fish (Reid and Anderson 1999, pp. 244–245; Levesque and Dube 2007, pp. 401–402).
The duration and severity of these effects depends on factors such as the duration of disturbance, the length of stream segment directly impacted by construction, and whether there are repeated disturbances (Yount and Niemi 1990, p. 557). Most studies documented recovery of the affected stream reach within 1 to 3 years after construction (Yount and Niemi 1990, pp. 557–558, 562; Reid and Anderson 1999, p. 247). However, caution should be used when interpreting results of short-term studies. Yount and Niemi (1990, p. 558) cite an example of one study that made a preliminary determination of stream recovery within 1 year, but when the site was reexamined 6 years later, fish biomass, fish populations, macroinvertebrate densities, and species composition were still changing. It was suspected that shifts in sediment and nutrient inputs to the site as a result of construction in and around the stream contributed to the long-term lack of recovery. In another study, alterations in channel morphology, such as increased channel width and reduced water depth, were evident 2 to 4 years post-construction at sites that lacked an intact forest canopy (Reid and Anderson 1999, p. 243).
There is also the potential for cumulative effects. While a single crossing may have only short-term or minor effects, multiple crossings or multiple sources of disturbance and sedimentation in a watershed can have cumulative effects on fish survival and reproduction that exceed the recovery capacity of the river, resulting in permanent detrimental effects (Levesque and Dube 2007, pp. 406–407). Whether or how quickly a stream population recovers depends on factors such as the life-history characteristics of the species and the availability of unaffected populations upstream and downstream as a source of organisms for recolonization (Yount and Niemi 1990, p. 547). Species such as the diamond darter that are particularly susceptible to the effects of siltation and resulting substrate embeddedness, and that have limited distribution and population numbers, are likely to be more severely affected by instream disturbances than other more common and resilient species. The WVONGA suggests that the region where the diamond darter exists may experience a surge in oil and natural gas exploration and drilling above the levels experienced in the previous 5 years (WVONGA 2013).
The NRCS and the Federal Highway Administration/West Virginia Department of Transportation have worked with the Service to develop programmatic agreements on how their agencies will address federally listed species for many of their routine project types. After the diamond darter became a candidate species in 2009, both agencies voluntarily agreed to update their programmatic agreements to address protection of the diamond darter. These agreements now include a process to determine when the species may be affected by projects, avoidance measures that can be used to ensure their projects are not likely to adversely affect the species, conditions describing when additional consultation with the Service shall occur, and, in some cases, other measures that can be incorporated into projects to benefit the species. These programmatic agreements, which were completed in 2011, should help reduce or avoid effects from small-scale highway construction projects and NCRS conservation practices, and can help these agencies design and implement projects to benefit the species.
In summary, there are significant threats to the diamond darter from the present and threatened destruction, modification, or curtailment of its
Due to the small size and limited distribution of the only remaining population, the diamond darter is potentially vulnerable to overutilization. Particular care must be used to ensure that collection for scientific purposes does not become a long-term or substantial threat. It is possible that previous scientific studies may have impacted the population. Of the fewer than 50 individuals captured through 2011, 14 either died as a result of the capture or were sacrificed for use in scientific studies. Nineteen were removed from the system and were used for the establishment of a captive breeding program. Two have died in captivity. It should be noted that there were valid scientific or conservation purposes for most of these collections. To verify the identification and permanently document the first record of the species in West Virginia, the specimen captured in 1980 was preserved as a voucher specimen consistent with general scientific protocols of the time. Subsequent surveys in the 1990s were conducted for the specific purpose of collecting additional specimens to be used in the genetic and morphological analyses required to determine the taxonomic and conservation status of the species. The extent and scope of these studies were determined and reviewed by a variety of entities including the WVDNR, the Service, USGS, university scientists, and professional ichthyologists (Tolin 1995, p. 1; Wood and Raley 2000, pp. 20–26; Lemarie 2004, pp. 1–57; Welsh and Wood 2008, pp. 62–68).
In addition, when these collections were initiated, insufficient data were available to establish the overall imperiled and unique status of the species. Because these studies are now complete, there should be limited need to sacrifice additional individuals for scientific analysis, and thus, this potential threat has been reduced. The captive-breeding program was established after a review of the conservation status of the species identified imminent threats to the last remaining population, and species experts identified the need to establish a captive “ark” population to avert extinction in the event of a spill or continued chronic threats to the species. The establishment of this program should contribute to the overall conservation of the species and may lead to the eventual augmentation of populations. However, caution must still be used to ensure that any additional collections do not affect the status of wild populations.
It is possible that future surveys conducted within the range of the species could inadvertently result in mortality of additional individuals. For example, during some types of inventory work, fish captured are preserved in the field and brought back to the lab for identification. Young-of-the-year diamond darters are not easily distinguished from other species, and their presence within these samples may not be realized until after the samples are processed. This was the case during studies recently conducted by a local university (Cincotta 2009a, p. 1). Future surveys should be designed with protocols in place to minimize the risk that diamond darters will be inadvertently taken during nontarget studies. The WVDNR currently issues collecting permits for all surveys and scientific collections conducted within the State and incorporates appropriate conditions into any permits issued for studies that will occur within the potential range of the species. This limits the overall potential for overutilization for scientific purposes.
We know of no recreational or educational uses for the species. Although the species has no present commercial value, it is possible that live specimens may be collected for the aquarium trade or for specimen collections (Walsh
In response to the proposed listing of the diamond darter, the WVDNR has incorporated wording into State fishing regulations to clarify that collection of the diamond darter for any purpose is not authorized unless conducted under a valid State scientific collecting permit (WVDNR 2013, p. 8).
We find that overutilization for commercial, recreational, scientific, or educational purposes is a minor threat to the diamond darter at this time. For a species like the diamond darter, with a small range and population size, there is the potential that overutilization for scientific purposes or personal collections could have an effect on the viability of the species. However, there is limited need for additional research that would require the sacrifice of individuals. Based on our review of the best available scientific and commercial data, the threat of overutilization is not likely to increase in the future.
There is no specific information available to suggest that disease or predation presents a threat to diamond darters. Although some natural predation by fish and wildlife may occur, darters usually constitute only an almost incidental component in the diet of predators (Page 1983, p. 172). This incidental predation is not considered to pose a threat to the species.
Commonly reported parasites and diseases of darters, in general, include black-spot disease, flukes, nematodes, leeches, spiny-headed worms, and copepods (Page 1983, p. 173). None of the best available data regarding diamond darters captured to date, or reports on the related crystal darter, note any incidences of these types of issues. As a result, we find that disease or predation does not currently pose a threat to the species, and we have no available data that indicate disease or predation is now or likely to become a threat to the diamond darter in the future.
Since neither disease nor predation currently present threats to the diamond
Few existing Federal or State regulatory mechanisms specifically protect the diamond darter or its aquatic habitat where it occurs. The diamond darter and its habitats are afforded some protection from water quality and habitat degradation under the Clean Water Act of 1977 (33 U.S.C. 1251 et seq.)(CWA), the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1234–1328), the West Virginia Logging and Sediment Control Act (WVSC § 19–1B), the West Virginia Pollution Control Act (WVSC § 22–11–1.), the West Virginia Horizontal Well Act (WVSC § 22–6A), the West Virginia Abandoned Well Act (WVSC § 22–10–1), and additional West Virginia laws and regulations regarding natural resources and environmental protection (WVSC § 20–2–50; § 22–6A; § 22–26–3). Many of these regulations and requirements were specifically designed with protection of water quality and the reduction of sedimentation as their primary goals. However, as demonstrated under Factor A, degradation of habitat for this species is ongoing despite the protection afforded by these existing laws and corresponding regulations. These laws have resulted in some improvements in water quality and stream habitat for aquatic life, including the diamond darter, but water quality degradation, sedimentation and siltation, non-point-source pollutants, and habitat alteration continue to threaten the species.
Although water quality has generally improved since major environmental regulations like the CWA and Surface Mining Control and Reclamation Act (30 U.S.C. 1234–1328) were enacted or amended in the late 1970s, degradation of water quality within the range of the diamond darter continues. In 2010, a total of 102 streams within the Elk River watershed totaling 1,030 km (640 mi) were identified as impaired by the WVDEP and were placed on the State's CWA 303(d) list (WVDEP 2010, p. 16). Identified causes of impairment that were identified include existing mining operations, abandoned mine lands, fecal coliform from sewage discharges, roads, oil and gas operations, timbering, land use disturbance (urban, residential, or agriculture), and stream bank erosion (WVDEP 2011b, pp. viii–ix).
For water bodies on the CWA 303(d) list, States are required to establish a TMDL for the pollutants of concern that will improve water quality to meet the applicable standards. The WVDEP has established TMDLs for total iron, dissolved aluminum, total selenium, pH, and fecal coliform bacteria in the Elk River watershed (WVDEP 2012, pp. viii–x). The total iron TMDL is used as a surrogate to address impacts associated with excess sediments (WVDEP 2011b, p. 47). The TMDLs for the Elk River watershed were approved in 2012, and address 165 km (102.5 mi) of Elk River from Sutton Dam to the confluence with the Kanawha River, including the entire reach known to support the diamond darter, and 214 other impaired tributaries in the watershed. The draft 2012 WVDEP CWA 303(d) report places these impaired streams in a category where TMDLs have been developed but where water quality improvements are not yet documented (WVDEP 2012, pp. 14–15). An additional six streams, totaling 63 km (39 mi) within the Elk River watershed, were listed as having impaired biological conditions due to mining, but TMDLs for these streams were not developed (WVDEP 2012, p. 9).
Because these TMDLs for some of these impaired streams have just recently been established, it is not known how effective they will be at reducing the levels of these pollutants, or how long streams within the Elk River watershed will remain impaired. The TMDLs apply primarily to point-source discharge permits, not the non-point sources that may also contribute to sediment loading in the watershed. The Service is not aware of any other current or future changes to State or Federal laws that will substantially affect the currently observed degradation of water quality from point-source pollution that is considered to be a continuing threat to diamond darter habitats.
When existing laws that regulate some of these activities are fully complied with and vigorously enforced they can be effective at reducing the scope of threats from the regulated activity. For example, when forestry BMPs are fully and correctly applied they can be effective at reducing sedimentation into waterways. Studies have found a strong correlation between BMP application and prevention of sediment movement into surface water (Schuler and Briggs 2000 p. 133). However, these same studies also found that imperfect application of BMPs reduced their effectiveness and that logging operations can increase sediment loading into streams if they do not have properly installed BMPs (Schuler and Briggs 2000 p. 133; WVDEP 2011b, p. 35). One study evaluating the effects of forestry haul roads documented that watershed turbidities increased significantly following road construction and that silt fences installed to control erosion became ineffectual near stream crossings, allowing substantial amounts of sediment to reach the channel (Wang
The WVDOF periodically evaluates compliance with BMPs; this evaluation indicates a trend of increasing compliance with BMPs (Wang
West Virginia State laws regarding oil and gas drilling, including recently enacted changes to West Virginia State Code § 22–6A, are generally designed to protect fresh water resources like the diamond darter's habitat, but the laws do not contain specific provisions requiring an analysis of project impacts to fish and wildlife resources. They also do not contain or provide any formal mechanism requiring coordination with, or input from, the Service or the WVDNR regarding the presence of federally threatened, endangered, or candidate species or other rare and sensitive species. They also do not contain any provisions that would avoid or minimize direct loss of diamond darters.
West Virginia State Code § 20–2–50 prohibits taking fish species for scientific purposes without a permit. The WVDNR issues collecting permits for surveys conducted within the State and incorporates appropriate conditions into any permits issued for studies that will occur within the potential range of the species. This should limit the number of individuals impacted by survey and research efforts. Current West Virginia fishing regulations prohibit collecting any diamond darter specimens in the State without a West Virginia scientific collecting permit, and further specify that the diamond darter
The diamond darter is indirectly provided some protection from Federal actions and activities through the Act because the Elk River also supports five federally endangered mussel species. The reach of the Elk River currently known to support the diamond darter also supports the pink mucket (
Few existing laws specifically protect the diamond darter. A number of existing Federal and State regulatory mechanisms are designed to protect water quality and reduce sedimentation, which could reduce threats to the diamond darter. However, degradation of water quality and habitat is ongoing throughout the current range of the diamond darter, despite these existing regulatory mechanisms governing some activities that contribute to this threat. We have no information indicating that these threats are likely to be appreciably reduced in the future.
The presence of
While didymo was previously thought to be restricted to coldwater streams, it is now known to occur in a wider range of temperatures, and it has been documented in waters with temperatures that were as high as 27 °C (80 °F) (Spaulding and Elwell 2007, pp. 8, 10, 16). It can also occur in a wide range of hydraulic conditions including slow-moving, shallow areas and areas with high depths and velocities (Spaulding and Elwell 2007, pp. 16–17). Didymo can be spread large distances either through the water column or when items such as fishing equipment, boots, neoprene waders, and boats are moved between affected and unaffected sites (Spaulding and Elwell 2007, pp. 19–20). For example, in New Zealand, didymo spread to two sites over 100 km (62.1 mi) and 450 km (279.6 mi) away from the location of the first documented bloom within 1 year (Kilroy and Unwin 2011, p. 254).
Although didymo has not been documented to occur in the lower Elk River where the diamond darter occurs, in 2008 the WVDNR documented the presence of didymo in the upper Elk River, above Sutton Dam near Webster Springs, which is over 120 km (74.5 mi) upstream from known diamond darter locations (WVDNR 2008, p. 1). Anglers have also reported seeing heavy algal mats, assumed to be didymo, in the upstream reach of the river (WVDNR 2008, p. 1). Therefore, there is potential that the species could spread downstream to within the current range of the diamond darter in the future. If it does spread into the diamond darter habitat, it could degrade habitat quality and pose a significant threat to the species.
Invasive, nonnative plants associated with riparian areas, such as Japanese knotweed, have the potential to adversely affect diamond darter populations in the Elk River. Japanese knotweed is a species native to eastern Asia that was introduced in the United States as an ornamental landscape plant (Barney 2006, p. 704). The species forms dense, monotypic stands that exclude native vegetation (Urgenson 2006, p. 6). Once introduced into an area, it spreads rapidly through riparian areas as flood waters carry root and stem fragments downstream and these fragments then regenerate to form new populations (Urgenson 2006, p. 1).
Healthy, functioning, riparian forests are an essential component of maintaining water and habitat quality in streams, and streams are adversely affected when riparian areas are invaded by species such as Japanese knotweed (Urgenson 2006, p. 35). Streambanks dominated by Japanese knotweed populations are less stable and more prone to erosion because Japanese knotweed has shallower roots compared to native riparian trees and woody shrubs. Because Japanese knotweed dies back in winter, it also leaves streambanks more exposed to erosive forces (Urgenson 2006, pp. 35–36). Thus, knotweed can increase streambank erosion, increase sedimentation in streams, and alter channel morphology. In addition, riparian areas dominated by Japanese knotweed change the natural composition of leaf litter entering the stream. This change affects nutrient cycling and organic matter inputs into the aquatic food web, and can have long-lasting effects on microhabitat conditions and aquatic life of affected stream systems (Urgenson 2006, pp. i, 31). Because leaf litter from Japanese knotweed is of lower nutritional quality than native vegetation, it can negatively impact the productivity of aquatic macroinvertebrates, which are a primary food source for fishes like the diamond darter (Urgenson 2006, p. 32).
Japanese knotweed has already been found in the upstream portions of the Elk River watershed (Schmidt 2013, p. 1). In 2012, Service biologists and their partner organizations documented and initiated control measures on 25 Japanese knotweed populations on the mainstem Elk River and its tributaries. These populations were located near the Randolph-Webster County line approximately 161 km (100 mi) upstream of the range of the diamond darter. Some of these populations were over 0.1 ha (0.25 ac) in size and had doubled in size in the 2 years since first documented (Schmidt 2013, p. 1). Japanese knotweed is difficult to control and eradicate. Effective eradication requires many years of focused efforts, and often populations are discovered downstream before 100 percent mortality is achieved in the treated area (Urgenson 2006, p. 37).
The one existing diamond darter population is small in size and range, and is geographically isolated from other areas that previously supported the species. The diamond darter's distribution is restricted to a short stream reach, and its small population size makes it extremely susceptible to extirpation from a single catastrophic event (such as a toxic chemical spill or storm event that destroys its habitat). Its small population size reduces the potential ability of the population to recover from the cumulative effects of smaller chronic impacts to the population and habitat such as progressive degradation from runoff (non-point-source pollutants) and direct disturbances.
Species that are restricted in range and population size are more likely to suffer loss of genetic diversity due to genetic drift, potentially increasing their susceptibility to inbreeding depression and reducing the fitness of individuals (Soule 1980, pp. 157–158; Hunter 2002, pp. 97–101; Allendorf and Luikart 2007, pp. 117–146). Similarly, the random loss of adaptive genes through genetic drift may limit the ability of the diamond darter to respond to climate change and other changes in its environment and the catastrophic events and chronic impacts described above (Noss and Cooperrider 1994, p. 61). Small population sizes and inhibited gene flow between populations may increase the likelihood of local extirpation (Gilpin and Soulé 1986, pp. 32–34). The long-term viability of a species is founded on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93–104). These separate populations are essential for the species to recover and adapt to environmental change (Harris 1984, pp. 93–104; Noss and Cooperrider 1994, pp. 264–297). The current population of the diamond darter is restricted to one section of one stream. This population is isolated from other suitable and historical habitats by dams that are barriers to fish movement. The level of isolation and restricted range seen in this species makes natural repopulation of historical habitats or other new areas following previous localized extirpations virtually impossible without human intervention.
Climate change (as defined by the Intergovernmental Panel on Climate Change (2007, p. 78)) has the potential to increase the vulnerability of the diamond darter to random catastrophic events and to compound the effects of restricted genetic variation and population isolation. Current climate change predictions for the central Appalachians indicate that aquatic habitats will be subject to increased temperatures and increased drought stress, especially during the summer and early fall (Buzby and Perry 2000, p. 1774; Byers and Norris 2011, p. 20). There will likely be an increase in the variability of stream flow, and the frequency of extreme events, such as droughts, severe storms, and flooding, is likely to increase Statewide (Buzby and Perry 2000, p. 1774; Byers and Norris 2011, p. 20). While the available data on the effects of climate change are not precise enough to predict the extent to which climate change will degrade diamond darter habitat, species with limited ranges that are faced with either natural or anthropomorphic barriers to movement, such as the dams that fragmented and isolated the historical diamond darter habitat, have been found to be especially vulnerable to the effects of climate change (Byers and Norris 2011, p. 18). Thus, the small population size and distribution of the diamond darter makes the species particularly susceptible to risks from catastrophic events, loss of genetic variation, and climate change.
The West Virginia Invasive Species Working Group (WVISWG) is a group of State and Federal agencies, nongovernmental organizations, and private stakeholders dedicated to working together on nonnative invasive species issues that affect West Virginia. The primary mission of the WVISWG is to maintain an inclusive Statewide group to facilitate actions for the prevention or reduction of negative impacts of invasive species on managed and natural terrestrial and aquatic communities through coordinated planning and communication, assessment and research, education, and control. The WVISWG is developing a Statewide invasive species strategic plan to provide guidance and coordination for invasive species management actions across the State. These voluntary efforts may help to reduce the spread of didymo and Japanese knotweed and other invasive riparian plants that are a threat to the diamond darter and its habitat.
The Service, WVDNR, USGS West Virginia Cooperative Fish and Wildlife Research Unit at West Virginia University, and Conservation Fisheries, Inc. (CFI) are working together to conduct research on the reproductive biology and life history of the diamond darter and are attempting to establish a captive population to avert extinction and preserve genetic diversity. Although diamond darters have successfully bred in captivity, no larvae have survived to adulthood. Additional research and funding is needed for this effort to be fully successful.
In summary, because the diamond darter has a small geographic range and small population size, it is subject to several other ongoing natural and manmade threats. These threats include the spread of invasive, nonnative species such as
Some of the threats discussed in this rule could work in concert with one another to cumulatively create situations that potentially impact the diamond darter beyond the scope of the individual threats that we have already analyzed. As described in Factor A, the reach of the Elk River inhabited by the diamond darter is threatened by numerous sources of habitat and water quality degradation, including
There are no unaffected populations or stream reaches available to the diamond darter. The diamond darter's current range is already severely restricted and isolated from other suitable habitats by dams and impoundments. The one remaining diamond darter population is small and occurs in one reach of a single river that is already affected by multiple chronic sources of degradation. Thus, the current remaining population has very little resiliency and a very limited ability to recover from additional individual disturbances. Cumulatively, these factors make the diamond darter particularly susceptible to extinction from additional threats such as direct disturbances, invasive species, spills, and long-term effects of climate change. These ongoing cumulative threats to the diamond darter are occurring throughout the species' entire current range. We have no information indicating that these threats are likely to be appreciably reduced in the future.
We have carefully assessed the best scientific and commercial data available regarding the past, present, and future threats to the diamond darter. The primary threats to the diamond darter are related to the present or threatened destruction, modification, or curtailment of its habitat or range (Factor A) and other natural or manmade factors affecting its continued existence (Factor E). The species is currently known to exist only in the lower Elk River, West Virginia. This portion of the watershed is impacted by ongoing water quality degradation and habitat loss from activities associated with coal mining and oil and gas development, sedimentation and siltation from these and other sources, inadequate sewage and wastewater treatment, and direct habitat loss and alteration. The impoundment of rivers in the Ohio River Basin, such as the Kanawha, Ohio, and Cumberland Rivers, has eliminated much of the species' habitat and isolated the existing population from other watersheds that the species historically occupied. The small size and restricted range of the remaining diamond darter population makes it particularly susceptible to extirpation from spills and other catastrophic events, the spread of invasive species, and effects of genetic inbreeding.
The species could be vulnerable to overutilization for scientific or recreational purposes (Factor B), but the significance of this threat is minimized through the State's administration of scientific collecting permits. There are no known threats to the diamond darter from disease or predation (Factor C). Although some regulatory mechanisms exist (Factor D), they do not succeed in alleviating these threats. In addition to the individual threats discussed under Factors A and E, each of which is sufficient to warrant the species' listing, the cumulative effect of these factors is such that the magnitude and imminence of threats to the diamond darter are significant throughout its entire current range.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that the diamond darter, which consists of only one population (occurrence), is presently in danger of extinction throughout its entire range, due to the immediacy, severity, and scope of the threats described above. Because the species is currently limited to one small, isolated population in an aquatic environment that is currently facing numerous, severe, and ongoing threats to its habitat and water quality, we find that the diamond darter does not meet the definition of a threatened species. Therefore, on the basis of the best available scientific and commercial data, we list the diamond darter as endangered in accordance with sections 3(6) and 4(a)(1) of the Act.
Under the Act and our implementing regulations, a species may warrant listing if it is threatened or endangered throughout all or a significant portion of its range. The diamond darter is highly restricted in its range and the threats to the survival of the species are not restricted to any particular significant portion of that range. Therefore, we assessed the status of the species throughout its entire range. Accordingly, our assessment and determination apply to the species throughout its entire range.
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protections required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribal, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.
Once this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Kentucky, Ohio, Tennessee, and West Virginia will be eligible for Federal funds to implement management actions that promote the protection or recovery of the diamond darter. Information on our grant programs that are available to aid species recovery can be found at:
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they carry out, authorize, or fund are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with the Service.
Federal agency actions within the species' habitat that may require consultation as described in the preceding paragraph include the issuance of section 404 Clean Water Act permits by the ACOE; construction and management of gas pipeline and power line rights-of-way or hydropower facilities by the Federal Energy Regulatory Commission; construction and maintenance of roads, highways, and bridges by the Federal Highway Administration; pesticide regulation by the USEPA; and issuance of coal mining permits by the Office of Surface Mining.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.21 for endangered wildlife, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import, export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. Under the Lacey Act (18 U.S.C. 42–43; 16 U.S.C. 3371–3378), it is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species, and at 17.32 for threatened species. With regard to endangered wildlife, a permit must be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.
Our policy, as published in the
(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens at least 100 years old, as defined by section 10(h)(1) of the Act.
(2) Violation of any permit that results in harm or death to any individuals of this species or that results in degradation of its habitat to an extent that essential behaviors such as breeding, feeding and sheltering are impaired.
(3) Unlawful destruction or alteration of diamond darter habitats (e.g., unpermitted instream dredging, impoundment, water diversion or withdrawal, channelization, discharge of fill material) that impairs essential behaviors such as breeding, feeding, or sheltering, or results in killing or injuring a diamond darter.
(4) Unauthorized discharges or dumping of toxic chemicals or other pollutants into waters supporting the diamond darter that kills or injures individuals, or otherwise impairs essential life-sustaining behaviors such as breeding, feeding, or finding shelter.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the West Virginia Ecological Services Field Office (see
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes.
A complete list of all references cited in this rule is available on the Internet at
The primary author of this document is staff from the West Virginia Field Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:
16 U.S.C. 1361–1407; 1531–1544; 4201–4245; unless otherwise noted.
(h) * * *
Federal Energy Regulatory Commission.
Notice of proposed rulemaking.
The Federal Energy Regulatory Commission proposes to incorporate by reference in its regulations Version 003 of the Standards for Business Practices and Communication Protocols for Public Utilities adopted by the Wholesale Electric Quadrant (WEQ) of the North American Energy Standards Board (NAESB). These standards modify NAESB's WEQ Version 002 and Version 002.1 Standards.
Comments are due September 24, 2013.
Comments, identified by Docket No. RM05–5–022, may be filed in the following ways:
• Electronic Filing through
•
1. In this notice of proposed rulemaking (NOPR), the Federal Energy Regulatory Commission (Commission) proposes to amend its regulations under the Federal Power Act
2. These revised standards update earlier versions of these standards that the Commission previously incorporated by reference into its regulations at 18 CFR 38.2. These new and revised standards include modifications to support Order Nos. 890, 890–A, 890–B and 890–C,
3. The Version 003 Standards also include modifications to the OASIS-related standards that NAESB states support Order Nos. 676, 676–A, 676–E and 717 and add consistency.
4. NAESB is a non-profit standards development organization established in January 2002 that serves as an industry forum for the development and promotion of business practice standards that promote a seamless marketplace for wholesale and retail natural gas and electricity. Since 1995, NAESB and its predecessor, the Gas Industry Standards Board, have been accredited members of the American National Standards Institute (ANSI), complying with ANSI's requirements that its standards reflect a consensus of the affected industries.
5. NAESB's standards include business practices that streamline the transactional processes of the natural gas and electric industries, as well as communication protocols and related standards designed to improve the efficiency of communication within each industry. NAESB supports all four quadrants of the gas and electric industries—wholesale gas, wholesale electric, retail gas, and retail electric. All participants in the gas and electric industries are eligible to join NAESB and participate in standards development.
6. NAESB develops its standards under a consensus process so that the standards draw support from a wide range of industry members. NAESB's procedures are designed to ensure that all industry members can have input into the development of a standard, whether or not they are members of NAESB, and each standard NAESB adopts is supported by a consensus of the relevant industry segments. Standards that fail to gain consensus support are not adopted.
7. In Order No. 676, the Commission not only adopted business practice standards and communication protocols for the wholesale electric industry, it also established a formal ongoing process for reviewing and upgrading the Commission's OASIS standards and other wholesale electric industry business practice standards. In later orders in this series, the Commission incorporated by reference: (1) The Version 001 Business Practice Standards;
8. In Order No. 890, the Commission revisited the
9. A number of the findings made by the Commission in the Order No. 890 series of orders necessitated revisions to the Business Practice Standards for Public Utilities so that there would be no inconsistency between the requirements of Order No. 890 and the Business Practice Standards. Accordingly, NAESB set up a work project to review the existing business practice standards, identify which standards would need revision to prevent any inconsistencies with the Order No. 890 requirements, and develop and adopt the needed revised standards. Those revised standards form
10. In total, NAESB's WEQ Version 003 business practice standards include the following standards:
11. The Version 003 standards include five categories of standards not previously incorporated by reference by the Commission that were developed by NAESB in response to the Order No. 890 series of orders. These include: (1) Standards that NAESB previously submitted to support SAMTS;
12. In Order No. 717, the Commission made several modifications related to the posting requirements associated with the Standards of Conduct. Specifically, the Commission discontinued the requirement for public utilities to post standards of conduct information on their OASIS sites.
13. The Joint Electric Scheduling Subcommittee (JESS), a standing joint subcommittee made up of participants from NAESB and the North American Electric Reliability Corporation (NERC), has been tasked with coordinating efforts to maintain and modify, as needed, the coordinate interchange business practice standards in WEQ–004 with their associated reliability standards. JESS now leads the effort to harmonize the Coordinate Interchange (WEQ–004) standards with the WEQ–001, WEQ–003 and WEQ–013 Business Practice Standards in light of revisions made to the Electronic Tagging Functional Specification, previously maintained by NERC, and now maintained and updated, as needed, by NAESB. The WEQ adopted additional modifications to the WEQ–004 standards to use abbreviations, acronyms, definitions and terms consistent with those in Standard WEQ–000 and to provide consistency across all WEQ standards.
14. WEQ adopted modifications to support consistency between the WEQ business practice standards and the Wholesale Gas Quadrant (WGQ) Gas/Electric Coordination standards. In addition, WEQ made modifications to the business practice standards to harmonize the terms and definitions contained within the WEQ business practice standards with the definitions of those terms used in the business practice standards for other quadrants. These changes were also coordinated to be consistent with definitions and terms contained in the NERC Glossary.
15. Also included in the WEQ Version 003 standards are standards developed to support Smart Grid applications as well as standards related to the measurement and verification of Demand Response (DR) and Energy Efficiency (EE) products. These standards have been referenced in earlier reports filed with the Commission before the completion of the WEQ Version 003 standards. The Smart Grid application standards had been referenced in a report filed with the Commission on July 7, 2011 in Docket No. RM05–5–021. The DR and EE measurement and verification standards were referenced in a report filed with the Commission on May 2, 2011 in Docket No. RM05–5–021 and have been the subject of Commission action.
16. Finally, NAESB's September 18 Filing includes an interpretation of standards WEQ–001–9.1 and WEQ–001–10.1 and recites the results of a quadrant wide effort to provide a common location for all abbreviations, acronyms and definitions of terms that created the WEQ–000 Business Practice Standards and addresses both internal inconsistencies and inconsistencies between the standards and terms and definitions in the NERC Glossary.
17. As discussed below, with certain enumerated exceptions, we propose to
18. We note that, in a separate rulemaking (in Docket No. RM13–17–000) being issued concurrently with this NOPR, the Commission is proposing new standards on coordination between natural gas and electricity markets. Depending on the outcome of that proceeding, we are considering situating the incorporation by reference that we are proposing in this NOPR in a different section in Part 38 than section 38.2. This should not, however, affect the substance of our proposal.
19. In the NAESB WEQ Version 003 standards, NAESB has developed new standards and revised existing standards designed to ensure consistency with certain policies articulated by the Commission in Order Nos. 890, 890–A and 890–B.
20. The SAMTS business practice standards were developed to provide a process for customers to complete cross-regional transactions in response to the Commission's requirement that transmission providers develop business practice standards in this area.
21. Network Integration Transmission Service allows a Network Customer to integrate, economically dispatch and regulate its current and planned Network Resources to serve its Network Load in a manner comparable to the way a Transmission Provider uses its Transmission System to serve its Native Load Customers.
22. The new/revised standards are designed to provide functionality that:
• Allows transmission providers to handle requests (loads, designation of a network resource, non-designated resources) on a customer-by-customer basis,
• allows the option of tracking designated network resource scheduling rights, and
• allows a customer to designate an agent to administer OASIS transactions on its behalf.
23. NAESB has proposed Standard WEQ–001–106.2.5, which appears to contemplate a Transmission Provider refusing a request to terminate a secondary network service. We request comment on the purpose of this standard and on whether the Commission should incorporate this standard by reference. We note that, in Order No. 890–A, the Commission found that it was not appropriate to allow a Transmission Provider to deny requests to terminate network resource designations, although Order No. 890–A did not directly address the issue of terminating secondary network service.
24. In Order No. 676, the Commission incorporated by reference NAESB's proposed standards for dealing with redirects, with the exception of WEQ–001–9.7 which the Commission viewed as inconsistent with the
25. In the Version 003 standards, NAESB modified WEQ–001–9.7 so that it would conform to the Commission's policy granting rollover rights to requests for redirect on a firm
26. In the Version 003 Standards, NAESB added standards WEQ–001–10.3.1.1 and WEQ–001–9.1.3.1, which provide that transmission providers are to process redirect requests in a manner that considers the available transfer capability encumbered by the parent reservation as available for the redirected request. The revised standards were designed to avoid violation of first come, first served queue priority principles.
27. NAESB proposed modifications to the introduction and applicability sections of the OASIS standards to promote consistency within the standards. The introductory section of the standards provides a brief description of the purpose of the standard, while the applicability section identifies the entities that are affected by the standard. In addition, modifications were made to the organization and the structure of standards WEQ–001 and WEQ–013 for purposes of consistency.
28. With the exceptions noted, we propose to incorporate by reference Version 003 of these standards into the Commission's regulations.
29. In Version 003, NAESB also made modifications to address three issues not related to the requirements established in the Order No. 890 and not the subject of a report previously provided to the Commission. In Order No. 717, the Commission modified the posting requirements for waivers and exercises of discretion as well as some other posting requirements.
30. In Order No. 676–E, the Commission declined to incorporate NAESB WEQ–001–14.1.3 and WEQ–001–15.1.2 (both related to ATC Narrative) because these standards did not meet the Commission's requirement to post the ATC narrative as soon as feasible.
31. In addition, NAESB made minor modifications to standards WEQ–013–2.6.8.1 and WEQ–013–2.6.8.2 to clarify that the listings of service types therein constitute examples and are not definitive. With the exceptions noted, we propose to incorporate by reference Version 003 of these standards into the Commission's regulations.
32. As explained above, JESS is leading efforts to modify the Coordinate Interchange (WEQ–004) standards and, additionally, to make related modifications to WEQ–001, WEQ–003 and WEQ–013 Business Practice Standards to ensure that the standards are consistent with current Electronic Tagging Functional specifications (now maintained by NAESB) as well as to incorporate a guideline standardizing the rounding of partial megawatt hours schedules.
33. In the Version 003 standards, NAESB made modifications to eliminate inconsistencies between definitions used by the NAESB quadrants as well as the NERC Glossary.
34. NAESB first developed Public Key Infrastructure (PKI) Standards in 2007 and the Commission incorporated the PKI standard (Standard WEQ–12), Version 001, by reference into its regulations in Order No. 676–C.
35. On rehearing, in Order No. 676–D, the Commission explained that the NAESB standards apply to Certificate Authorities seeking certification from NAESB, but did not require that public utilities use PKI. The Commission explained: “the PKI Standards are designed to provide uniform standards for an encryption system that companies can,
36. In a series of filings, NAESB reported on its updated PKI standards for Version 003. The revised standards are divided into two sections. First, Standard WEQ–012 specifies those transactions for which public utilities need to use PKI. The WEQ–012 standards specify the minimum authentication requirements that end entities
37. Second, NAESB developed ACA Accreditation Requirements and ACA Process requirements that ACAs must meet to receive certification from NAESB. NAESB has not adopted these accreditation requirements as standards.
38. NAESB explains
39. Given the improvement represented by the revised standards over the Version 002 standards, we propose to incorporate by reference the NAESB WEQ–012 standards. These standards, when adopted, will require public utilities to conduct transactions securely when using the internet and will eliminate confusion over which transactions involving public utilities must follow the approved PKI procedures to secure their transactions. We also understand the necessity for the standards to require that all ACAs be certified under a common set of certification requirements so that all participants have a common list of ACAs from which they can choose. Having a common list of ACAs enhances the efficiency of transactions as each party can be assured that a counter party's certificate meets these minimum requirements.
40. The NAESB WEQ Version 003 Business Practice Standards include five wholesale business practice standards related to Smart Grid that define use cases, data requirements, and a common model to represent customer energy usage:
• NAESB WEQ–016—Specifications for Common Electricity Product and Pricing Definition;
• NAESB WEQ–017—Specifications for Common Schedule Communication Mechanism for Energy Transactions;
• NAESB WEQ–018—Specifications for Wholesale Standard Demand Response Signals;
• NAESB WEQ–019—Customer Energy Usage Information Communication; and
• NAESB WEQ–020—Smart Grid Standards Data Elements Table.
41. We propose, in this NOPR, to incorporate by reference standards WEQ–016, WEQ–017, WEQ–018, WEQ–019 and WEQ–020 into the Commission's regulations. The Commission notes that NAESB ratified changes to Standard WEQ–019 on March 21, 2013. We understand that this standard provides for energy usage information and this revision is consistent with the Green Button Initiative, promoted by the White House Office of Science and Technology Policy,
42. The Version 003 WEQ Business Practice Standards create a common location for all abbreviations, acronyms and definitions of terms and houses this information in a newly created standard WEQ–000. In accordance with Commission guidance.
43. With the exceptions noted, we propose to incorporate by reference Version 003 of these standards into the Commission's regulations.
44. Consistent with our past practice, we propose that, once the Commission incorporates these standards by reference into its regulations, public utilities must implement these
45. The NAESB WEQ Version 003 Business Practice Standards were adopted by NAESB under NAESB's consensus procedures.
46. Office of Management and Budget Circular A–119 (section 11) (February 10, 1998) provides that Federal Agencies should publish a request for comment in a NOPR when the agency is seeking to issue or revise a regulation proposing to adopt a voluntary consensus standard or a government-unique standard. In this NOPR, the Commission is proposing to incorporate by reference a voluntary consensus standard developed by the WEQ.
47. The following collection of information contained in this proposed rule is subject to review by the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d). OMB's regulations require approval of certain information collection requirements imposed by agency rules.
48. The Commission solicits comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques.
49. The following burden estimate is based on the projected costs for the industry to implement the new and revised business practice standards adopted by NAESB and proposed to be incorporated by reference in this NOPR.
The estimated annual costs are as follows:
50.
51.
52. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street NE., Washington, DC 20426 [Attn: Ellen Brown, email:
53. Comments concerning the information collections proposed in this NOPR and the associated burden estimates should be sent to the Commission at this docket and may also by email to the Office of Management and Budget, Office of Information and Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by email to OMB at the following email address:
54. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
55. The Regulatory Flexibility Act of 1980 (RFA)
56. The Commission seeks comment on the estimated impact of the proposed rule on small business entities. The Commission estimates that 5 of the 132 respondents are small. The Commission estimates that the impact on these entities is consistent with the paperwork burden of $2,592 per entity used above.
57. Based on the above, the Commission certifies that the proposed Reliability Standards will not have a significant impact on a substantial number of small entities. Accordingly, no initial regulatory flexibility analysis is required.
58. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due September 24, 2013. Comments must refer to Docket No. RM05–5–022, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments.
59. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at
60. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.
61. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.
62. In addition to publishing the full text of this document in the
63. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
64. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at 202–502–6652 (toll free at 1–866–208–3676) or email at
Conflict of interests, Electric power plants, Electric utilities, Incorporation by reference, Reporting and recordkeeping requirements.
By direction of the Commission.
In consideration of the foregoing, the Commission proposes to amend Chapter I, Title 18, Part 38 of the
16 U.S.C. 791–825r, 2601–2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352.
(a) * * *
(1) Abbreviations, Acronyms, and Definition of Terms (WEQ–000, Version 003, July 31, 2012, as modified by NAESB final actions ratified on Oct. 4, 2012, Nov. 28, 2012 and Dec. 28, 2012);
(2) Open Access Same-Time Information System (OASIS), Version 2.0 (WEQ–001, Version 003, July 31, 2012, as modified by NAESB final actions ratified on Dec. 28, 2012) with the exception of Standards 001–14.1.3 and 001–15.1.2);
(3) Open Access Same-Time Information System (OASIS) Business Practice Standards and Communication Protocols (S&CP), Version 2.0 (WEQ–002, Version 003, July 31, 2012, as modified by NAESB final actions ratified on Nov. 28, 2012 and Dec. 28, 2012);
(4) Open Access Same-Time Information System (OASIS) Data Dictionary Business Practice Standards, Version 2.0 (WEQ–003, Version 003, July 31, 2012, as modified by NAESB final actions ratified on Dec. 28, 2012);
(5) Coordinate Interchange (WEQ–004, Version 003, July 31, 2012, as modified by NAESB final actions ratified on Dec. 28, 2012);
(6) Area Control Error (ACE) Equation Special Cases (WEQ–005, Version 003, July 31, 2012);
(7) Manual Time Error Correction (WEQ–006, Version 003, July 31, 2012);
(8) Inadvertent Interchange Payback (WEQ–007, Version 003, July 31, 2012);
(9) Transmission Loading Relief (TLR)—Eastern Interconnection (WEQ–008, Version 003, July 31, 2012);
(10) Gas/Electric Coordination (WEQ–011, Version 003, July 31, 2012);
(11) Public Key Infrastructure (PKI) (WEQ–012, Version 003, July 31, 2012, as modified by NAESB final actions ratified on Oct. 4, 2012);
(12) Open Access Same-Time Information System (OASIS) Implementation Guide, Version 2.0 (WEQ–013, Version 003, July 31, 2012, as modified by NAESB final actions ratified on Dec. 28, 2012);
(13) Measurement and Verification of Wholesale Electricity Demand Response (WEQ–015, Version 003, July 31, 2012);
(14) NAESB Specifications for Common Electricity Product and Pricing Definition (WEQ–016, Version 003, July 31, 2012);
(15) Specifications for Common Schedule Communication Mechanism for Energy Transactions (WEQ–017, Version 003, July 31, 2012);
(16) Specifications for Wholesale Standard Demand Response Signals (WEQ–018, Version 003, July 31, 2012);
(17) NAESB Customer Energy Usage Information Communication (WEQ–019, Version 003, July 31, 2012);
(18) Smart Grid Standards Data Element Table (WEQ–020, Version 003, July 31, 2012); and
(19) Measurement and Verification of Energy Efficiency Products (WEQ–021, Version 003, July 31, 2012).
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Proposed rule.
This proposed rule would amend the Manufactured Home Model Installation Standards by adopting recommendations made by the Manufactured Home Consensus Committee to revise existing requirements for ground anchor installations and establish standardized test methods to determine ground anchor performance and resistance. The performance of conventional ground anchor assemblies is critical to the overall quality and structural integrity of manufactured housing installations. While HUD's Model Manufactured Home Installation Standards reference a nationally recognized testing protocol for ground anchor assemblies, there is currently no national test method for rating and certifying ground anchor assemblies in different soil classifications. This proposed rule would establish a uniform test method that could be used by all states for rating and certifying the performance of ground anchor assemblies.
Interested persons are invited to submit comments regarding this rule to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10276, Washington, DC 20410–0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.
1.
2.
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.
Henry S. Czauski, Acting Deputy Administrator, Office of Manufactured Housing Programs, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 9164, Washington, DC 20410; telephone number 202–708–6409 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800–877–8339.
The National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5401–5426) (the Act) authorizes HUD to establish the Federal Manufactured Home Construction and Safety Standards (the Construction and Safety Standards, or Standards) codified in 24 CFR part 3280. The Act was amended in 2000 by the Manufactured Housing Improvement Act of 2000 (Pub. L. 106–569), which expanded the purposes of the Act and created the Manufactured Housing Consensus Committee (MHCC). The Manufactured Housing Improvement Act also authorized the Department to establish Model Installation Standards and program requirements pertaining to the installation of new manufactured homes, and assigned responsibility to the MHCC to develop and submit to the Secretary proposed model manufactured home installation standards.
The MHCC began work on its installation standards recommendations in 2002. In August 2005, as part of that standards development process, the Installation Subcommittee of the MHCC developed a draft Ground Anchor Assembly Test Protocol (GAATP). Because of past concerns regarding ground anchor performance, identified during prior research conducted by the Department, and since the draft GAATP had not been independently validated, HUD elected not to include the proposal in the Model Manufactured Home Installation Standards final rule, which was published on October 19, 2007 (72 FR 59338). Instead, HUD sponsored an extensive literature review and multisite ground anchor testing study to verify the adequacy of the draft testing protocol and to determine whether any areas in the draft GAATP required change or enhancement to improve reliability. HUD's ground anchor assembly site study is available on the HUD user database at
Because there was no nationally recognized testing protocol in 2005 that was universally accepted for testing and certifying ground anchor assemblies in different soil classifications throughout the country, HUD elected to include a provision in § 3282.402 to act as a place-marker in the Model Installation Standards while the research was being completed.
Ground anchors consist of a specific assembly designed to transfer home anchoring loads to the ground. Ground anchors are used extensively in manufactured housing installations and are economical, readily available, and can be installed with relatively lightweight tools and equipment. Anchors are typically constructed with a circular shaft of one or more helixes. A head connects at the opposite side of the anchor which then connects with the home's frame or sidewalls. Helical anchors are designed to be augured into the ground and may also be installed with stabilizer plates to increase the lateral capacity of the anchor.
One significant limitation of ground anchors arises from multiple soil-anchor response mechanisms as a function of soil type, anchor depth, and load configuration. In cohesive soils, excessive anchor movements in a vertical direction can approach or exceed the soil's shear strength. In such cases, the ground anchor is supported by the soil's residual shear strength, resulting in a decrease in anchor capacity. In granular soils, large lateral movements may produce failure planes that can reduce the strength on the vertical direction. In either case, ground anchor movements of several inches can have significant negative impacts on long-term performance and the safety of the home.
The ground anchor assembly site study was conducted to provide HUD with an assessment of the draft GAATP using various ground anchor assemblies, test configurations, and under different site soil conditions. A new test rig was developed for the field testing program in order to facilitate an efficient and repeatable method of ground anchor testing. A total of 74 conventional anchors were tested, at three different locations, with the testing rig developed for the project. An additional 30 duplicate tests were conducted at the Georgia test site using one of the anchor manufacturers testing apparatus for comparative testing purposes. Overall, 104 tests were performed.
Ground anchor resistance varies significantly based on the type of soil in which the anchor is embedded, and is significantly lower in weaker soil conditions. One of the major issues examined in the study was the impact and reliability of anchor performance when the type of site soil was determined by the Unified Soil Classification System (USCS) recommended in the draft GAATP and § 3285.202, as compared to other soil testing methods. The test data from the study found that the USCS was generally a very poor indicator of ground anchor performance and should not be relied upon to determine anchor resistance, unless a significantly higher factor of safety is used to rate the anchor.
Although there were major differences between the project test rig and the lever arm test rig employed by the anchor manufacturer, similar results were achieved in the comparative testing of duplicate anchors that was performed between the two testing approaches.
In the HUD sponsored study, only one of the anchors tested actually achieved the ultimate load testing resistance requirements in the draft GAATP. However, ground anchor manufacturers who witnessed the testing stated that, with properly sized anchors for the soil classifications tested, their anchors would be capable of achieving the ultimate loads and deflection limits required by the draft test protocol. All of the angle pull anchors were tested at a minimum angle of 30 degrees to the ground. This is consistent with the current requirements of § 3285.402 and the earlier findings of field testing performed by ground anchor manufacturers in developing the draft GAATP. The anchor manufacturers' field tests had earlier found that ground anchor assemblies repeatedly failed well below the load resistance levels required by the draft GAATP, when tested at strap angles of 17–30 degrees. In view of those findings, the HUD sponsored field study only included anchor testing for angles of 30 degrees or greater.
Various improvements to the draft GAATP test procedures were employed in the study and were subsequently recommended to improve reliability and repeatability of ground anchor testing results (see section 5.6 of the Ground Anchor Verification Testing Task 2D Report, Final Report, March 1, 2008). These included the use of a test rig that limits the angle of pull to plus or minus (+/−) two degrees during the angle-pull anchor test and the proximity of the anchor to the test stand supports; use of a maximum and test displacement rate of 0.6 inches per minute; increasing the anchor pre-tension load to 1,000 pounds to set the anchor shaft to the stabilizer plate for angle-pull test configurations; standardizing anchor and stabilizer plate installations; and proper soil characterization at the test site, which did not rely solely on the USSC, such as provided in § 3285.202 of the Model Installation Standards.
In 2003, the MHCC identified the need to develop criteria for testing and evaluating ground anchor assemblies used to secure manufactured homes against wind forces at the installation site. Its initial effort resulted in the draft GAATP that was developed by the Installation Subcommittee of the MHCC. Through extensive deliberation at 10, in-person and conference-call meetings of the Committee, review of public input on the draft documents, and consideration of test reports and research conducted by the Department, the MHCC voted unanimously at their March 2011 meeting to recommend that HUD adopt a revised version of its earlier ground anchor assembly testing proposal.
The following modifications were made to the draft GAATP in the MHCC proposal, entitled, “Standard Test Methods for Establishing Working Load Design Values of Ground Anchor Assemblies Used for New Manufactured Home Installations”:
1. The soil test torque probe method would be required to be used in at least three locations to classify the soil at the certification test site (§ 3285.402(b)(3)(ii));
2. For soil classifications 3, 4A, and 4B, site testing would be required to be performed in the lower 50 percentile torque probe value and for soil classifications 1 and 2 the torque probe value would not be permitted to exceed 750 inch-pounds (§ 3285.402(b)(7)(iii));
3. A User Note would be added with regard to the positioning of the test rig supports and their proximity to the anchor assembly being tested (§ .3285.402(b)(7)(iii));
4. The number of field tests required would be reduced from a minimum of 6 tests to a minimum of 3 tests, due to improved reliability resulting from certification testing being conducted at the test site by the torque probe method, for the anchor certification to be determined in the lower 50 percentile of the soil classification being tested.
5. The anchor head would be not be able to extend more than
6. The ground anchor would be permitted to be pretensioned up to 1,000 pounds so the anchor shaft contacts the stabilizer plate, instead of the 500-pound maximum pretensioning force allowed by the draft GAATP (§ 3285.402(b)(8));
7. The load and displacement criteria would be enhanced to require a minimum of five data points with a minimum of 500–1,000 pound increments of loading;
8. The working load design value and soil classification would now be required to be included for each type of anchor installation in the ground anchor assembly listing or certification;
9. A ground anchor tested in a given soil classification number could not be approved for use in a weaker or higher soil classification unless it is also tested in those soil conditions; and
10. The test report would be required to include the soil classification(s), including moisture content and methods for determining soil characteristics for each type of soil for which each ground anchor was evaluated and is certified for use, and the working load design value and minimum ultimate capacity for these soil classification(s).
HUD has reviewed the above described changes to the draft GAATP and the proposal from the MHCC and, other than formatting and editorial changes, is in agreement with these recommendations. The proposed rule would require determination of soil classification by the test probe method, at each testing site for which each anchor assembly is being certified, and would require the tests to be conducted in weaker soils at the lower 50 percentile torque probe value of the soil in which the anchor is being tested. A minimum of three tests must be performed at each certification test site and the anchor assembly must resist at least 4,725 pounds (3,150 pounds × 1.5 factor of safety) in the direction of the pull for each test method for which the anchor is being certified.
The proposed rule includes standard test methods for evaluating ground anchors by the anchor assembly/stabilizer plate test method, the vertical in-line anchor assembly test method, and the in-line ground anchor assembly test method. Failure criteria would be established as a displacement of 2 inches in either the horizontal or vertical direction prior to reaching a total working load of 3,150 pounds, or when the ground anchor head displaces 2 inches in the vertical direction or 3 inches in the horizontal direction prior to reaching a total load of 4,725 pounds, or when any component of the ground anchor shaft fails prior to reaching a total load of 4,725 pounds.
The proposed rule would require the working load design value for each installation method and soil classification to be reported in the ground anchor assembly listing or certification. The proposed rule would
The public is invited to comment on any of the specific provisions included in this proposed rule and is also invited to comment on the following questions and on any other related matters or suggestions regarding this proposed rule:
1. Are three anchor tests at each test certification site sufficient to ensure adequate reliability in rated anchor performance, in view of the variation and impact of soil type on the resistance of ground anchor assemblies, or should a minimum of six tests be required, as initially proposed in the draft GAATP?
2. Should the proposed rule be amended to include test requirements for an evenly controlled rate of anchor displacement (0.5 to 0.6 inches per minute) to prevent higher anchor load resistance from being certified, as found in the comparison tests in the HUD research study?
3. Should anchor certifications performed by a professional engineer be required to include follow-up investigations and/or testing to assure ongoing quality of ground anchor products and assemblies?
As has been discussed in this preamble, this rule proposes to amend the Manufactured Home Model Installation Standards by adopting recommendations made by the MHCC to revise existing requirements for ground anchor installations. Specifically, the rule would establish a national standard for rating and certifying the performance of ground anchor assemblies. While difficult to predict, HUD has determined that the discounted benefits of the rule, including prevented property damage, personal injury, and loss of life are expected to exceed the estimated, one-time costs of between $250,000 and $375,000 imposed by this rule.
Under current practice, ground anchor producers hire third-party certifiers to test the performance of ground anchors in various soil types in order to provide installation instructions. To the extent that producers have not already tested to the proposed standards, they would need to retest and recertify the performance of their ground anchors. No subsequent retesting would be required. Based on estimates provided by one supplier of ground anchors, testing would cost each producer between $50,000 and $75,000. This one-time cost includes 2 to 3 days of testing at two different soil class sites, engineering costs for witnessing the tests, and costs for preparing the reports and certifications. There are five ground anchor producers. Thus, the aggregate one-time cost of this rule totals between $250,000 and $375,000. The true cost would most likely be near the lower end of this range since Florida has existing ground anchor standards that exceed those proposed in this rule.
The benefits provided by the rule would more than offset these one-time costs. Initially, the proposed standards, once implemented, will reasonably decrease the damage resulting from the failure of anchor systems, particularly during high wind events, including hurricanes and tornados, and in seismic events. John Krigger
According to the U.S. Census Bureau's Survey of Manufactured Homes, the sales price of a new manufactured home in August 2012 was $62,600. This provides an upper bound on the value of damage to a single home. Using this upper bound, costs would equal benefits if between 4 and 6 homes were not destroyed in the first year due to the new anchor standards. This is less than 0.02 percent of the total placements in 2011, which totaled 47,000.
The proposed rule might also reduce the number of injuries and deaths resulting from failed ground anchors. Brooks and Doswell
Due to the lack of specific data on the damage and deaths caused by failed ground anchors, a precise measure of the prevented damage cannot be calculated. However, based on the above discussion, it appears likely that the benefits would more than offset the one-time costs imposed by this rule.
The information collection requirements contained in this proposed rule have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520) and given OMB control number 2502–0253. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments, and on the private sector. This proposed rule does not impose any Federal mandate on any State, local, or tribal government, or on the private sector, within the meaning of UMRA.
A Finding of No Significant Impact with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The Finding of No Significant Impact is available for public inspection between the hours of 8 a.m. and 5 p.m., weekdays, in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10276, Washington, DC 20410–0500.
Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has Federalism implications and either imposes substantial direct compliance costs on State and local governments and is not required by statute, or preempts State law, unless the relevant requirements of section 6 of the Executive Order are met. This rule does not have Federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order. The Model Installation Standards by themselves do not affect governmental relationships or distribution of power. Therefore, HUD has determined that the Model Manufactured Home Ground Anchor Installation Standards do not have Federalism implications that warrant the preparation of a Federalism Assessment in accordance with Executive Order 13132.
The Regulatory Flexibility Act (5 U.S.C. 601
Notwithstanding HUD's determination that this rule would not have a significant economic effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that would meet HUD's and Federal statutory objectives.
The Catalogue of Federal and Domestic Assistance number is 14.171.
Housing standards, Incorporation by reference, Installation, Manufactured homes.
Administrative practice and procedure, Consumer protection, Intergovernmental relations, Manufactured homes, Reporting and recordkeeping requirements.
Accordingly, for the reasons discussed in this preamble, HUD proposes to amend 24 CFR parts 3285 and 3286 as follows:
1. The authority citation for part 3285 continues to read as follows:
42 U.S.C. 3535(d), 5403, 5404, and 5424.
(a)
(b)
(1)
(i) These testing procedures provide standard test methods for establishing both ultimate loads and load resistance design values.
(ii) Each assembly or component of an anchor assembly must be tested by the methods established by this section, and, therefore, be suitable, as listed or certified for installation in an appropriately classified soil, for installation of manufactured homes.
(iii) To secure approval of ground anchor assembly products and components, ground anchor manufacturers must have their products tested and listed by a nationally recognized testing laboratory, or tested and certified by an independent registered professional engineer.
(iv) The testing laboratory or independent registered engineer must be free from any conflict of interest from the product manufacturer and any of the product manufacturer's affiliates.
(2)
(3)
(i) General Description of Soil Classification. The general description of soil classification shall be permitted by the use of the Table to § 3285.202.
(ii) Standards for Identification of Soil and Soil Classification. The soil test torque probe method must be used at the certification test site for soil classification. At a minimum, the soil test torque probe must be used at three sample locations representative of the extent of the certification site test area. Soil characteristics must be measured at a depth below ground surface of not greater than the anchor helix depth and not less than
(iii) Classification in Non-Cohesive Soils. Ground anchor assemblies must be tested and listed or certified, and labeled for use in non-cohesive soil. Ground anchor assemblies are permitted to be tested, listed or certified, and labeled for use in cohesive soil.
(4)
(i) The testing equipment for conducting tests to list or certify a ground anchor assembly for use in a classified soil must be capable of meeting the requirements of paragraph (b)(7) of this section, as determined by the testing agency.
(ii) The testing equipment shall be calibrated to meet the testing requirements of paragraph (b)(7) of this section, as determined by the testing agency.
(5)
(i) Test specimens are to be examined by the independent testing, listing, or certifying entity for conformance with engineered drawings, specifications, and other information provided by the ground anchor manufacturer or producer including:
(A) Dimensions and specifications on all welds and fasteners;
(B) Dimensions and specifications of all metal or material;
(C) Model number and its location on the ground anchor; and
(ii) Necessary test specimens and products for the installed anchor assembly tests must be randomly selected by the independent testing, listing, or certifying entity.
(6)
(i) Field tests must be performed on each anchor assembly installed in a classified soil as defined in paragraph (b)(3) of this section.
(ii) Field test apparatuses must be as specified in paragraph (b)(4) of this section and must conform to the testing requirements of paragraph (b)(7) of this section.
(iii) Testing equipment shall be adequate for testing as determined by the testing agency.
(7)
(i) The soil characteristics at the certification test site must be identified and recorded according to paragraph (b)(3) of this section. The date, approximate time, and names of persons conducting and witnessing the anchor assembly tests must also be recorded at each certification test site.
(ii) Connection of the testing apparatus to the anchor assembly head must provide loading conditions to the anchor head, similar to actual site conditions. Adequacy of the connection must be determined by the testing agency or test engineer.
(iii) For soil classifications 3, 4A, and 4B, testing must be performed in the lower 50 percentile torque probe value of the soil classification being tested. For soil classifications 1 and 2, the torque probe value must not exceed 750 inch-pounds.
As a recommended practice, the test rig soil reactions (bearing pads) should not be located closer to the center of the anchor assembly (anchor head) than the lesser of D, 4d, or 32 inches where D is the depth of the anchor helix and d is the diameter of the anchor helix, both in inches. However, experience with a particular test rig, types of anchors, and soil conditions may justify other acceptable dimensional tolerances.
(iv) A minimum of three tests must be performed and the result of each test must meet or exceed 4,725 pounds pull (3,150 × 1.5 factor of safety) in the direction of pull.
(v) Special-purpose anchor assemblies, including those needed to accommodate unique design loads identified by manufacturers in their installation instructions, may be certified under this section or to more stringent requirements such as higher working loads, more restrictive anchor head displacements, and/or tested angle limitations.
(vi) Angle of Pull. Where the test apparatus configuration results in a changing angle of pull due to anchor assembly displacement during a lateral angle pull test, the angle of pull at the Ultimate Anchor Load is to be recorded as the load angle for the test. Load angles are to be measured relative to the plane of the ground surface and shall be permitted to be rounded to the nearest 5-degree increment.
(vii) Displacement Measurement. Vertical displacement (for all tests) and horizontal displacement (for lateral angle pull tests) must be measured relative to the centerline of the test apparatus' connection to the ground anchor assembly (anchor head) and the ground. A stable ground reference point for displacement measurements must be located independent of the test apparatus and not closer to the anchor assembly than the soil reaction points of the test apparatus. Displacement measurements shall be taken using a device with not less than
(8)
(i) An anchor assembly must be tested in accordance with one or more of the assembly configurations addressed in paragraphs (b)(7)(iii), (iv), and (v) of this section. The as-tested configuration of any anchor assembly is a condition of the listing or certification. Alternate configurations are acceptable provided test conditions appropriately simulate actual end-use conditions and the as-tested configuration is addressed in the manufacturer's installation instructions.
(ii) Anchor assemblies designed for multiple connections to the manufactured home must be individually tested as specified in paragraphs (b)(8)(iii) and (iv) of this section.
(iii) Anchor assembly/stabilizer plate method. The following anchor assembly installation and testing must be consistently applied for all tests:
(A) The ground anchor is to be installed at an angle of 10–15 degrees from vertical to a depth of one-half (
(B) A stabilizer plate is to be driven vertically on the side of the ground anchor shaft facing the tensioning equipment three inches (3″) from the shaft, and the top of the plate must be installed flush with the soil surface or not more than one inch below the soil surface.
(C) The ground anchor is to be driven to its full depth into the soil with the bottom of the anchor head not more than
(D) The ground anchor head is to be attached to the tensioning equipment such that the tension load and displacement can be recorded. The tensioning equipment must be positioned to load the ground anchor and stabilizer plate at the minimum angle to the test site ground surface for which the anchor is being evaluated.
Additional testing at angles of pull greater than the minimum angle of pull may be used to provide design values for specific angles of pull greater than the minimum angle for which evaluation is sought.
(E) The ground anchor is to be pretensioned to 500 pounds so that the anchor shaft contacts the stabilizer plate. If the anchor shaft does not come into contact with the stabilizer plate, an anchor setting load not to exceed 1,000 pounds is permitted to be applied and then released prior to reapplication of the 500-pound pretension force.
(F) The location of the ground anchor head is to be marked after it is pretensioned for measuring subsequent movement under test loading.
(G) Increase the load throughout the test. The recommended rate of load application must be such that the loading to not less than 4725 pounds is reached in not less than 2 minutes from the time the 500 pound pretension load is achieved.
(H) Record the load and displacement, at a minimum of 500–1000 pound increments, such that a minimum of five data points will be obtained to determine a load deflection curve. For each datum, the applied load and the ground anchor head displacement is to be recorded. In addition, the load and displacement is to be recorded at the failure mode identified in paragraph (b)(10) of this section. It is permissible to halt the addition of load at each loading increment for up to 60 seconds to facilitate taking displacement readings. The ultimate anchor load of the ground anchor assembly and corresponding displacement is to be recorded. The pretension load of 500 pounds should be included in the 4725 pound ultimate anchor load test. It is permissible to interpolate between displacement and load measurements to determine the ultimate anchor load.
(I) All ground anchor assemblies must be tested to the following:
(
(
(iv) Vertical in-line anchor assembly method. Anchor assembly installation and withdrawal procedures for test purposes are to be as follows, and are to be used consistently throughout all tests:
(A) The ground anchor must be installed vertically.
(B) The ground anchor must be driven to its full depth into the soil.
(C) The ground anchor head must be attached to the tensioning equipment such that the load and ground anchor head displacement can be recorded.
(D) The ground anchor must be pulled in line with the ground anchor shaft.
(E) The ground anchor shall be pretensioned to 500 pounds.
(F) The location of the ground anchor head must be marked after it is pretensioned for measuring subsequent movement under test loading.
(G) Increase the load throughout the test. The recommended rate of load application shall be such that the loading to not less than 4725 pounds is reached in not less than 2 minutes from the time the 500 pound pretension load is achieved.
(H) Record the load and displacement, at a minimum of 500–1000 pound increments, such that a minimum of five data points will be obtained to determine a load deflection curve. For each datum, the applied load and the ground anchor head displacement is to be recorded. In addition, the load and displacement is to be recorded at the failure mode identified in paragraph (b)(10) of this section. It is permissible to halt the addition of load at each loading increment for up to 60 seconds to facilitate taking displacement readings. The ultimate anchor load of the ground anchor assembly and corresponding displacement is to be recorded. The pretension load of 500 pounds should be included in the 4725 pound ultimate anchor load test. It shall be permissible to interpolate between displacement and load measurements to determine the ultimate anchor load.
(I) All ground anchor assemblies must be tested to the following:
(
(
(v) In-line ground anchor assembly method. Ground Anchor Assembly installation and withdrawal procedures for test purposes must be as follows, and must be used consistently throughout all tests:
(A) The ground anchor must be installed at an angle from the horizontal ground surface at which it is to be rated.
(B) The ground anchor must be driven to its full depth into the soil.
(C) The ground anchor head must be attached to the tensioning equipment such that tension and displacement can be recorded.
(D) The anchor must be pulled in line with the ground anchor shaft.
(E) The ground anchor shall be pretensioned 500 pounds.
(F) The location of the ground anchor head is to be marked after it is pretensioned for measuring subsequent movement under test loading.
(G) Increase the load throughout the test. The recommended rate of load application must be such that the loading to not less than 4725 pounds is reached in not less than 2 minutes from the time the 500 pound pretension load is achieved.
(H) Record the load and displacement, at a minimum of 500–1000 pound increments, such that a minimum of five data points will be obtained to determine a load deflection curve. For each datum, the applied load and the ground anchor head displacement are to be recorded. In addition, the load and displacement are to be recorded at the failure mode identified in paragraph (10) of this section. It shall be permissible to halt the addition of load at each loading increment for up to 60 seconds to facilitate taking displacement readings. The ultimate anchor load of the ground anchor assembly and corresponding displacement must be recorded. The pretension load of 500 pounds should be included in the 4725 pound ultimate anchor load test. It is permissible to interpolate between
(I) All ground anchor assemblies must be tested to the following:
(
(
(9)
(i) When the ground anchor head, or its attachment point, displaces 2 inches in the vertical or horizontal direction from its pretensioned measurement position prior to reaching a total load of 3150 pounds (including any pretension load).
(ii) When the ground anchor head, or its attachment point, displaces 2 inches in the vertical direction or 3 inches in the horizontal direction from its pretensioned measurement position prior to reaching a total load of 4725 pounds (including any pretension load).
(iii) When breakage of any component of the ground anchor shaft occurs prior to reaching a total load of 4725 pounds.
(10)
(i) The working load design value is the lowest ultimate anchor load determined by testing, divided by a 1.5 factor of safety.
(ii) The working load design value, for each installation method and soil classification, shall be stated in the ground anchor assembly listing or certification. An anchor tested in a given soil classification number must not be approved for use in a higher/weaker soil classification number. For example, an anchor tested in soil classification 3 must not be approved for soil classification 4A or 4B unless it is also tested in those soils. The 500 pound pretension is included in the ultimate anchor load.
(11)
(i) A copy of all test data accumulated during the testing.
(ii) The soil characteristics, including moisture content and methods for determining soil characteristics, for each type of soil for which the ground anchoring assembly was evaluated.
(iii) The model of the ground anchor assembly tested.
(iv) The ground anchor assembly test method used.
(v) Detailed drawings including all dimensions of the ground anchor assembly and its components.
(vi) Method of installation at the test site.
(vii) Date of installation and date of testing.
(viii) Location of the certification test site.
(ix) Test equipment used.
(x) A graph or chart for each anchor specimen tested indicating the loading increments in pounds and resulting displacement in inches.
(xi) The working load design value and ultimate anchor load, determined in accordance with paragraph (b)(10) of this section.
(xi) If required, a description of the stabilizer plate used in each ground anchor assembly/stabilizer plate test, including the name of the manufacturer.
(xii) Angle(s) of pull for which the anchor has been tested.
(xiii) Embedment depth of the ground anchor assembly.
(xiv) The application and orientation of the applied load.
(xv) A description of the mode and location of failure for each ground anchor assembly tested.
(xvi) Name and signature of the nationally recognized testing agency or registered professional engineer certifying the testing and evaluation.
(xvii) The soil classification(s) for which each ground anchor assembly is certified for use and the working load design value and minimum ultimate load capacity for those soil classification(s).
(12)
(i) Drawings showing ground anchor installation.
(ii) Specifications for the ground anchor assembly including:
(A) Soil classifications listed or certified for use;
(B) The working load and minimum ultimate anchor load capacity for the anchor assembly in the soil classification(s) for which it is listed or certified for use;
(C) Model number and its location on the anchor;
(D) Instructions for use, including pretensioning;
(E) Angle(s) of pull for which the anchor has been listed and certified; and
(F) Manufacturer, size, and type of stabilizer plate required.
Torque Probe Method for determining soil classification: This kit contains a 5-foot-long steel earth-probe rod, with a helix at the end. It resembles a wood-boring bit, on a larger scale. The tip of the probe is inserted as deep as the bottom helix of the ground anchor assembly that is being considered for installation. The torque wrench is placed on the top of the probe. The torque wrench is used to rotate the probe steadily so one can read the scale on the wrench. If the torque wrench reads 551 inch-pounds or greater, then a class 2 soil is present according to the Table to 24 CFR 3285.202(a)(3). A class 3 soil is from 351 to 550 inch-pounds. A class 4A soil is from 276 to 350 inch-pounds, and a class 4B soil is from 175 to 275 inch-pounds. When the torque wrench reading is below 175 inch-pounds, a professional engineer should be consulted.
42 U.S.C. 3535(d), 5404, and 5424.
(e) Anchorage including verification that the ground anchors have been installed in accordance with the manufacturer's instructions, in a soil classification permitted by the anchor listing or certification, with the required size and type of stabilizer plate, if required by the listing or certification, and at an orientation and angle of pull permitted by its listing or certification.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Missouri to EPA in a letter dated May 4, 2012. The purpose of the SIP revision is to amend Missouri's regulation for the Control of Volatile Organic Compounds (VOC) and meet the requirement to adopt reasonably available control technology (RACT) for sources covered by EPA's Control Technique Guidelines (CTG) for Industrial Cleaning Solvents. We are proposing to approve this revision because it satisfies the applicable requirements of the Clean Air Act (CAA) with respect to RACT for the Missouri portion of the St. Louis Metropolitan 1997 8-hour ozone nonattainment area.
Comments must be received on or before August 26, 2013.
Submit your comments identified by Docket ID No. EPA–R07–OAR–2012–0767, by one of the following methods:
1.
2.
3.
Ms. Lachala Kemp, Air Planning and Development Branch, U.S. Environmental Protection Agency Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number (913) 551–7214; email address:
Throughout this document, “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following questions:
EPA is proposing to approve a SIP revision submitted by the State of Missouri to EPA on May 4, 2012. The purpose of this revision is to control the emissions of VOCs, consistent with Control Techniques Guidelines (CTGs) issued by EPA, and to satisfy the RACT requirements of the CAA for the Missouri portion of the St. Louis metropolitan 1997 8-hour ozone nonattainment area. Specifically, the revision incorporates an amendment to an existing SIP-approved Missouri regulation 10 Code of State Regulations 10–5.455 to control emissions from Industrial Solvent Cleaning Operations in the St. Louis metropolitan area. The revision includes lowering the allowable emissions threshold for VOCs released per day from the use, storage and disposal of industrial cleaning solvents, and adds requirements for facilities that exceed the applicability threshold. EPA is proposing to approve this revision because the adoption by Missouri of this regulation represents RACT control levels for CTGs issued by EPA after 2006. In addition, EPA is proposing to approve this revision because it meets the requirements of the conditional approval the EPA issued on January 10, 2012.
CAA section 172(c)(1) requires that SIPs for nonattainment areas “provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards.” The St. Louis metropolitan area—which includes the counties of Franklin, Jefferson, St. Charles and St. Louis and the city of St. Louis in Missouri—is currently designated as a moderate nonattainment area under the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS).
EPA has defined RACT as the lowest emissions limitation that a particular source is capable of meeting by the application of control technology that is reasonably available, considering technological and economic feasibility. See 44 FR 53761 (September 17, 1979). EPA provides states with guidance concerning what types of controls could constitute RACT for certain source categories through the issuance of CTGs.
Section 183(e) of the CAA provides that EPA may issue a CTG in lieu of a national regulation for categories of consumer or commercial products where the Administrator determines that such guidance will be substantially as effective as regulations in reducing VOC emissions in ozone nonattainment areas.
On January 10, 2012, EPA took final action to conditionally approve a SIP revision submitted by the State of Missouri to EPA on January 17, 2007, with a supplemental revision submitted to EPA on June 1, 2011. See 77 FR 3144 (January 23, 2012). As part of that action, EPA also approved several VOC rules adopted by Missouri and submitted to EPA in a letter dated August 16, 2011. All of these rules addressed VOC RACT requirements for sources in categories for which EPA issued CTGs during 2006–2008. However, in August 2011, Missouri did not submit a RACT rule for inclusion into the Missouri SIP to address one CTG: Solvent Cleanup Operations. Based on Missouri's commitment to submit a rule for inclusion into the SIP to address this remaining CTG by December 31, 2012, EPA conditionally approved the Missouri SIP revisions that address the requirements of RACT.
On May 4, 2012, the Missouri Department of Natural Resources (MDNR) submitted to EPA a proposed SIP revision demonstrating compliance with the RACT requirements set forth by the CAA under the 8-hour ozone NAAQS. This submittal addressed source categories for Industrial Cleaning Solvents, a new CTG issued by EPA on October 5, 2006, for which states were required to address by October 5, 2007 (71 FR 58745).
This revision will ensure that the requirements of this CTG will be incorporated into the VOC RACT rules for the St. Louis moderate ozone nonattainment area. EPA has reviewed this new VOC rule revision with respect to the RACT requirements and the recommendations in the new CTG and proposes to find that this revision meets RACT. Moreover, this rule is designed to fulfill the requirements of EPA's conditional approval of Missouri's VOC RACT SIP. A brief description of the VOC rule that is proposed for approval in this action is provided below.
This rule is intended to reduce the VOC emissions from industrial cleaning operations that use organic solvents. The rule amendment adopted by Missouri on April 28, 2011, and submitted to EPA for inclusion into the Missouri SIP lowered the allowable emissions threshold for volatile organic compounds released per day from the use, storage and disposal of industrial cleaning solvents, and added requirements for facilities that exceed the applicability threshold. The rule amendment adopted by Missouri on February 2, 2012, incorporated equipment cleaning work practices as a compliance option for manufacturers of coatings, inks and resins. EPA believes that these changes make the limits consistent with the recommendations in the Federal CTG for this source category.
As discussed above, EPA published a final rulemaking which approved Missouri's submittal with respect to several other VOC rules to address RACT requirements.
In today's action, EPA is proposing to approve a revision to Missouri's VOC rule 10 CSR 10–5.455 into Missouri's SIP, as EPA believes that this rule satisfies RACT for the Missouri portion of the St. Louis nonattainment area for Industrial Cleaning Solvents. EPA also believes that this rule satisfies the requirements of the conditional approval of Missouri's VOC RACT SIP referenced above. This action, if final, would mean that the Missouri SIP meets all of the applicable VOC RACT requirements for St. Louis under section 182(b)(2) of the Act, as they relate to the 1997 ozone NAAQS.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the Antelope Valley Air Quality Management District (AVAQMD) portion of the California State Implementation Plan (SIP). These revisions concern standards for continuous emissions monitoring systems and oxides of sulfur (SO
Any comments must arrive by August 26, 2013.
Submit comments, identified by docket number EPA–R09–OAR–2013–0508, by one of the following methods:
1.
2.
3.
Stanley Tong, EPA Region IX, (415) 947–4122,
Throughout this document, “we,” “us,” and “our” refer to EPA.
Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board.
On April 9, 2013 for AVAQMD Rules 218 and 218.1, and on June 26, 2013 for AVAQMD Rule 431.1, EPA determined the submittals met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.
We approved an earlier version of Rule 218 into the SIP on September 2, 2008 (73 FR 51226). AVAQMD adopted revisions to the SIP-approved version on July 17, 2012 and CARB submitted them to us on February 6, 2013.
There is no previous version of Rule 218.1 in the SIP. AVAQMD adopted Rule 218.1 on July 17, 2012 and CARB submitted it to us on February 6, 2013.
We approved an earlier version of Rule 431.1 into the SIP on October 19, 1984 (49 FR 41028).
While we can act on only the most recently submitted version of these rules, we have reviewed materials provided with previous submittals.
Oxides of Nitrogen (NO
Rule 218 establishes requirements for continuous emission monitors of NO
Rule 218.1 is a new rule and contains requirements for the certification of CEMS, the performance specifications of CEMS, and the operation and maintenance of CEMS.
Rule 431.1 limits the sulfur content of fuels such as landfill gases, sewage digester gases, refinery gases and other gaseous fuels.
EPA's technical support documents (TSD) have more information about these rules.
Generally, SIP rules must be enforceable (see section 110(a) of the Act) and must not relax existing requirements (see sections 110(l) and 193). The AVAQMD regulates an ozone nonattainment area classified as severe for the 1997 8-hour ozone NAAQS. AVAQMD is in attainment for the 1971 primary CO standard and designated as “better than national standard” for the 1971 primary SO
Guidance and policy documents that we use to evaluate enforceability requirements consistently include the following:
We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. AVAQMD's staff report for Rule 431.1 estimates there is a maximum SOx emissions shortfall of approximately 10 pounds per day (~2 tons per year) when the locally enforced limit of 40 ppm is raised to 250 ppm. Since the existing SIP limit is 250 ppm, we do not consider this a SIP relaxation. AVAQMD also amended the 250 ppm sulfur limit in Rule 431.1 for selling sewage digester gases. The rule now allows two compliance options. The first option, a 40 ppm daily average, is clearly more stringent than the existing 250 ppm SIP limit. The second option, a 40 ppm monthly average combined with a 500 ppm 15-minute average allows short term intermittent emissions to exceed the existing 250 ppm SIP limit for selling sewage digester gas. We do not believe this short term 500 ppm 15-minute average would adversely impact the District's ability to maintain the SO
Our comments to draft Rule 431.1 recommended AVAQMD revisit its Best Available Control Technology (BACT) analysis at a future date and consider cost information and data that may become available on carbon adsorption technology being tested under an experimental research permit in the South Coast Air Quality Management District. We are including this recommendation for the District to evaluate the next time AVAQMD amends Rule 431.1. We have no recommendations for Rules 218 or 218.1.
Because EPA believes the submitted rules fulfill all relevant requirements, we are proposing to fully approve them as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate these rules into the federally enforceable SIP.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• 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 et seq.);
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Carbon monoxide, Reporting and recordkeeping requirements, Sulfur dioxide.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the State of Ohio's requests to redesignate the Cleveland-Akron-Lorain area (Cleveland Area) to attainment for the 1997 annual and 2006 24-hour National Ambient Air Quality Standards (NAAQS or standards) for fine particulate matter (PM
Comments must be received on or before August 26, 2013.
Submit your comments, identified by Docket ID Nos. EPA–R05–OAR–2011–0868 and EPA–R05–OAR–2012–0463, by one of the following methods:
1.
2.
3.
4.
5.
Kathleen D'Agostino, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–1767,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
Fine particulate pollution can be emitted directly from a source (primary PM
The first air quality standards for PM
On January 5, 2005, at 70 FR 944, EPA published air quality area designations for the 1997 annual PM
On October 17, 2006, at 71 FR 61144, EPA retained the annual PM
On November 13, 2009, at 74 FR 58688, EPA published air quality area designations for the 2006 24-hour PM
In response to legal challenges of the 2006 annual PM
On September 14, 2011, at 76 FR 56641, EPA issued a final determination that the Cleveland area attained the 1997 annual PM
On October 5, 2011, the Ohio Environmental Protection Agency (Ohio EPA) submitted a request to EPA to redesignate the Cleveland area to attainment for the 1997 annual PM
In this proposed redesignation, EPA takes into account two recent decisions of the D.C. Circuit. In the first of the two Court decisions, the D.C. Circuit, on August 21, 2012, issued
The CAA sets forth the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows redesignation provided that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable SIP for the area under section 110(k) of the CAA; (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from the implementation of the applicable SIP, Federal emission control regulations, and other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA; and, (5) the state containing the area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.
As noted above, on September 14, 2011, EPA determined that the Cleveland area had attained the 1997 annual PM
In this action EPA is proposing to determine that the Cleveland area continues to attain the 1997 annual PM
The redesignation request includes monitoring data for the 2008–2010 time period. Certified monitoring data are also now available for the 2009–2011 and 2010–2012 time periods. Table 1, below, provides a summary of the PM
Two monitors were operated in Lake County during the 2008–2012 time period. Site 39–085–3002 shut down on December 31, 2008 and site 39–085–0007 began operating on January 1, 2009. EPA approved the combination of these monitors for purposes of calculating the design value.
The data in Tables 1 and 2 show that all relevant PM
Site 39–103–0003 in Medina County ceased operation on December 31, 2010, collecting complete data for all quarters in 2008–2010. Site 39–103–0004 began operation on September 1, 2009. However, because the site only began submitting data to EPA's Air Quality System in 2011, three years of data are not available for evaluation. Because the monitor in Medina County has historically recorded one of the lowest PM
In this action EPA is proposing to determine that the Cleveland area has attained the 2006 24-hour PM
The redesignation request includes monitoring data for the 2008–2010 time period. Certified monitoring data are also now available for the 2009–2011 and 2010–2012 time periods. Table 3, below, provides a summary of the PM
The data in Tables 3 and 4 show all relevant PM
As noted previously, two monitors were also operated in Medina County during the 2008–2012 time period. Site 39–103–0003 ceased operation on December 31, 2010, collecting complete data for all quarters in 2008–2010. Site 39–103–0004 began operation on September 1, 2009, began submitting data to EPA's Air Quality System in 2011, and does not have three years of data available for evaluation. Because the monitor in Medina County has historically recorded one of the lowest PM
Data for monitoring site 39–035–0060 are incomplete in 2009. However, data for the other sites in Cuyahoga County are complete and well below the 24-hour standard, with the highest 98th percentile 24-hour concentration being 29.9 μg/m
We have determined that Ohio's SIP meets all applicable SIP requirements for purposes of redesignation for the Cleveland area under section 110 of the CAA (general SIP requirements) and all SIP requirements currently applicable for purposes of redesignation under part D of title I of the CAA, in accordance with section 107(d)(3)(E)(v). In addition, with the exception of the emissions inventory under section 172(c)(3), we have approved all applicable requirements of the Ohio SIP for purposes of redesignation, in accordance with section 107(d)(3)(E)(ii). As discussed below, in this action EPA is proposing to approve Ohio's 2005 and 2008 emissions inventories as meeting the section 172(c)(3) comprehensive emissions inventory requirement.
In making these determinations, we have ascertained which SIP requirements are applicable to the area for purposes of redesignation, and have determined that there are SIP measures meeting those requirements and that they are fully approved under section 110(k) of the CAA.
Section 110(a) of title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a state must have been adopted by the state after reasonable public notice and hearing, and, among other things, must: (1) Include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; (2) provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor ambient air quality; (3) provide for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; (4) include provisions for the implementation of part C, Prevention of Significant Deterioration (PSD) and part D, New Source Review (NSR) permit programs; (5) include criteria for stationary source emission control measures, monitoring, and reporting; (6) include provisions for air quality modeling; and, (7) provide for public and local agency participation in planning and emission control rule development.
Section 110(a)(2)(D) of the CAA requires that SIPs contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. EPA holds that the requirements linked with a particular nonattainment area's designation are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, we conclude that these requirements should not be construed to be applicable requirements for purposes of redesignation.
Further, we conclude that the other section 110 elements described above
We have reviewed the Ohio SIP and have concluded that it meets the general SIP requirements under section 110 of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of Ohio's SIP addressing section 110 requirements, including provisions addressing particulate matter, at 40 CFR 52.1870. On December 5, 2007, and September 4, 2009, Ohio made submittals addressing “infrastructure SIP” elements required by section 110(a)(2) of the CAA. EPA approved elements of Ohio's submittals on July 13, 2011, at 76 FR 41075. The requirements of section 110(a)(2), however, are statewide requirements that are not linked to the PM
EPA is proposing to determine that, upon approval of the base year emissions inventories discussed in section IV.B. of this rulemaking, the Ohio SIP will meet the applicable SIP requirements for the Cleveland area applicable for purposes of redesignation under part D of the CAA. Subpart 1 of part D, found in sections 172–176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. Subpart 4 of part D, found in sections 185–190 of the CAA, provides more specific requirements for particulate matter nonattainment areas.
For purposes of evaluating these redesignation requests, the applicable section 172 SIP requirements for the Cleveland area are contained in sections 172(c)(1)–(9). A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).
Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all Reasonably Available Control Measures (RACM) as expeditiously as practicable and to provide for attainment of the primary NAAQS. EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in each area as components of the area's attainment demonstration. Because attainment has been reached, no additional measures are needed to provide for attainment, and section 172(c)(1) requirements are no longer considered to be applicable as long as the area continues to attain the standard until redesignation. See 40 CFR 51.1004(c).
The Reasonable Further Progress (RFP) requirement under section 172(c)(2) is defined as progress that must be made toward attainment. This requirement is not relevant for purposes of this redesignation because the Cleveland area is monitoring attainment of the 1997 annual and 2006 24-hour PM
Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. Ohio submitted 2005 and 2008 emissions inventories along with their redesignation request and supplemented the inventories on April 30, 2013. As discussed below in section IV.B., EPA is proposing to approve the 2005 and 2008 emission inventories as meeting the section 172(c)(3) emissions inventory requirement for the Cleveland area.
Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA approved Ohio's current NSR program on January 10, 2003 (68 FR 1366). Nonetheless, since PSD requirements will apply after redesignation, the area need not have a fully-approved NSR program for purposes of redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Ohio has demonstrated that the Cleveland area will be able to maintain the standard without part D NSR in effect; therefore, the state need not have a fully approved part D NSR program prior to approval of the redesignation request. The state's PSD program will become effective in the Cleveland area upon redesignation to attainment. See rulemakings for Detroit, Michigan (60 FR 12467–12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469–20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834–31837, June 21, 1996).
Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the standard. Because attainment has been reached, no additional measures are needed to provide for attainment.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, we find that the Ohio SIP meets the section 110(a)(2) requirements applicable for purposes of redesignation.
Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway projects, conform to the air quality planning goals in the applicable SIPs. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded, or approved under Title 23 of the U.S. Code and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity).
Section 176(c) of the CAA was amended by provisions contained in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU), which was signed into law on August 10, 2005 (Pub. L. 109–59). Among the changes Congress made to this section of the CAA were streamlined requirements for state transportation conformity SIPs. State transportation conformity regulations must be consistent with Federal conformity regulations and address three specific requirements related to consultation, enforcement and enforceability. EPA believes that it is reasonable to interpret the transportation conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) for two reasons.
First, the requirement to submit SIP revisions to comply with the transportation conformity provisions of the CAA continues to apply to areas after redesignation to attainment since such areas would be subject to a section 175A maintenance plan. Second, EPA's Federal conformity rules require the performance of conformity analyses in the absence of Federally-approved state rules. Therefore, because areas are subject to the transportation conformity requirements regardless of whether they are redesignated to attainment and, because they must implement conformity under Federal rules if state rules are not yet approved, EPA believes it is reasonable to view these requirements as not applying for purposes of evaluating a redesignation request.
EPA approved Ohio's general conformity SIP on March 11, 1996 (61 FR 9646) and Ohio's transportation conformity SIP on and May 30, 2000 (65 FR 34395), and April 27, 2007 (72 FR 20945). Ohio is in the process of updating its approved transportation conformity SIP, and EPA will review its provisions when they are submitted.
Ohio has submitted onroad MVEBs for the Cleveland area of 1,371.35 tons per year (tpy) and 880.89 tpy primary PM
As discussed above, on January 4, 2013, in
EPA is proposing to determine that the Court's January 4, 2013, decision does not prevent EPA from redesignating the Cleveland area to attainment. Even in light of the Court's decision, redesignation for this area is appropriate under the CAA and EPA's longstanding interpretations of the CAA's provisions regarding redesignation. EPA first explains its longstanding interpretation that requirements that are imposed, or that become due, after a complete redesignation request is submitted for an area that is attaining the standard, are not applicable for purposes of evaluating a redesignation request. Second, EPA then shows that, even if EPA applies the subpart 4 requirements to the Cleveland redesignation requests and disregards the provisions of its 1997 PM
With respect to the 1997 PM
EPA's view that, for purposes of evaluating the Cleveland redesignation, the subpart 4 requirements were not due at the time the state submitted the redesignation requests is in keeping with the EPA's interpretation of subpart 2 requirements for subpart 1 ozone areas redesignated subsequent to the D.C. Circuit's decision in
EPA's interpretation derives from the provisions of CAA Section 107(d)(3). Section 107(d)(3)(E)(v) states that, for an area to be redesignated, a state must meet “all requirements `applicable' to the area under section 110 and part D”. Section 107(d)(3)(E)(ii) provides that the EPA must have fully approved the “applicable” SIP for the area seeking redesignation. These two sections read together support EPA's interpretation of “applicable” as only those requirements that came due prior to submission of a complete redesignation request. First, holding states to an ongoing obligation to adopt new CAA requirements that arose after the state submitted its redesignation request, in order to be redesignated, would make it problematic or impossible for EPA to act on redesignation requests in accordance with the 18-month deadline Congress set for EPA action in section 107(d)(3)(D). If “applicable requirements” were interpreted to be a continuing flow of requirements with no reasonable limitation, states, after submitting a redesignation request, would be forced continuously to make additional SIP submissions that in turn would require EPA to undertake further notice-and-comment rulemaking actions to act on those submissions. This would create a regime of unceasing rulemaking that would delay action on the redesignation request beyond the 18 month timeframe provided by the CAA for this purpose.
Second, a fundamental premise for redesignating a nonattainment area to attainment is that the area has attained the relevant NAAQS due to emission reductions from existing controls. Thus, an area for which a redesignation request has been submitted would have already attained the NAAQS as a result of satisfying statutory requirements that came due prior to the submission of the request. Absent a showing that unadopted and unimplemented requirements are necessary for future maintenance, it is reasonable to view the requirements applicable for purposes of evaluating the redesignation request as including only those SIP requirements that have already come due. These are the requirements that led to attainment of the NAAQS. To require, for redesignation approval, that a state also satisfy additional SIP requirements coming due after the state submits its complete redesignation request, and while EPA is reviewing it, would compel the state to do more than is necessary to attain the NAAQS, without a showing that the additional requirements are necessary for maintenance.
In the context of this redesignation, the timing and nature of the Court's January 4, 2013, decision in
To require the state's fully-completed and pending redesignation requests to comply now with requirements of subpart 4 that the Court announced only in its January, 2013, decision on the 1997 PM
Even if EPA were to take the view that the Court's January 4, 2013, decision requires that, in the context of pending redesignations for the 1997 and 2006 PM
With respect to evaluating the relevant substantive requirements of subpart 4 for purposes of redesignating the Cleveland area, EPA notes that subpart 4 incorporates components of subpart 1 of part D, which contains general air quality planning requirements for areas designated as nonattainment.
For the purposes of this redesignation, in order to identify any additional requirements which would apply under subpart 4, we are considering the Cleveland area to be a “moderate” PM
The permit requirements of subpart 4, as contained in section 189(a)(1)(A), refer to and apply the subpart 1 permit provisions requirements of sections 172 and 173 to PM
With respect to the specific attainment planning requirements under subpart 4,
The requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing that the State will make RFP towards attainment will, therefore, have no meaning at that point.
The General Preamble also explained that
EPA similarly stated in its 1992 Calcagni memorandum that, “The requirements for reasonable further progress and other measures needed for attainment will not apply for redesignations because they only have meaning for areas not attaining the standard.”
It is evident that even if we were to consider the Court's January 4, 2013, decision in
Moreover, even outside the context of redesignations, EPA has viewed the obligations to submit attainment-related SIP planning requirements of subpart 4 as inapplicable for areas that EPA determines are attaining the standard. EPA's prior “Clean Data Policy” rulemakings for the PM
Elsewhere in this notice, EPA proposes to determine that the area has attained the 2006 PM
Thus, EPA is proposing to conclude that the requirements to submit an attainment demonstration under 189(a)(1)(B), a RACM determination under section 172(c)(1) and section 189(a)(1)(c), a RFP demonstration under 189(c)(1), and contingency measure requirements under section 172(c)(9) are satisfied for purposes of evaluating the redesignation requests.
The D.C. Circuit in
EPA's 1997 PM
The Court in its January 4, 2013, decision made reference to both section 189(e) and 40 CFR 51.1002, and stated that, “In light of our disposition, we need not address the petitioners' challenge to the presumptions in [40 CFR 51.1002] that volatile organic compounds and ammonia are not PM
Elsewhere in the Court's opinion, however, the Court observed:
Ammonia is a precursor to fine particulate matter, making it a precursor to both PM
For a number of reasons, EPA believes that its proposed redesignation of the Cleveland area is consistent with the Court's decision on this aspect of subpart 4. First, while the Court, citing section 189(e), stated that “for a PM
However, even if EPA takes the view that the requirements of subpart 4 were deemed applicable at the time the state submitted the redesignation requests, and disregards the implementation rule's rebuttable presumptions regarding ammonia and VOC as PM
Precursors in subpart 4 are specifically regulated under the provisions of section 189(e), which requires, with important exceptions, control requirements for major stationary sources of PM
In the General Preamble, EPA discusses its approach to implementing section 189(e).
EPA notes that its 1997 PM
Although, as EPA has emphasized, its consideration here of precursor requirements under subpart 4 is in the context of a redesignation to attainment, EPA's existing interpretation of subpart 4 requirements with respect to precursors in attainment plans for PM
In sum, even if Ohio were required to address precursors for the Cleveland area under subpart 4 rather than under subpart 1, as interpreted in EPA's remanded PM
A discussion of the impact of the Court's decision on the maintenance plan required under sections 175A and 107(d)(3)(E)(iv) can be found in section IV.A.4.d. below.
Upon final approval of Ohio's comprehensive 2005 and 2008 emissions inventories, EPA will have fully approved the Ohio SIP for the Cleveland area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (See page 3 of the Calcagni memorandum;
EPA finds that Ohio has demonstrated that the observed air quality improvement in the Cleveland area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other state-adopted measures.
In making this showing, Ohio EPA has calculated the change in emissions between 2005, one of the years in the period during which the Cleveland area monitored nonattainment, and 2008, one of the years in the period during which the Cleveland area monitored attainment. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that the Cleveland area and upwind areas have implemented in recent years.
The following is a discussion of permanent and enforceable measures that have been implemented in the area:
Some of the emissions reductions resulting from the consent decrees occurred during the attainment period, while other reductions will aid in maintenance of the standards.
A March 18, 2005, consent decree with Ohio Edison Company required the Eastlake Power Plant, located in Eastlake, Ohio, to reduce NO
A December 9, 2005, consent decree required Saint Gobain Performance Plastics Corporation to pay, in addition to a civil penalty, $12,000 to Ohio EPA's Clean Diesel School Bus Program Fund.
A September 30, 2011, consent agreement and final order requires Potters Industries, Inc. to retrofit a fleet, fleets, or portion thereof, of diesel buses or diesel vehicles contracted for public use, located within 50 miles of Cleveland. Potters Industries is required to spend a minimum of $50,000 and complete the project by May 18, 2012.
A May 11, 2012, consent order and final judgement between Ohio and Procex, Ltd. requires several actions by Procex, including implementing the following no later than November 30, 2012: (1) An air pollution capture system for the collection of particulate emissions from emissions units P003, P005, and P007, and associated operations; (2) ductwork and an exhaust fan to transfer the collected emissions from the air pollution capture system for all four emissions units to air pollution
A September 28, 2012, consent agreement and final order order with Charter Manufacturing Company, Inc. requires the following which had already been completed by Charter Manufacturing: (1) By August 2010, modification of the existing canopy area to better contain and evacuate emissions; (2) by June 1, 2012, submission to EPA of a protocol to performance test the melt shop baghouse; (3) by July 1, 2012, performance testing of the melt shop baghouse; and, (4) by August 15, 2012, submission to EPA of a report of the performance testing results. In addition, Charter Manufacturing is required to: (1) Submit an application to Ohio EPA requesting the conditions and emission rates associated with stainless steel production be removed from title V and other air permits; (2) comply with the melt shop baghouse pressure drop operational and monitoring requirements specified in the administrative consent order; and, (3) keep the door at the west end of the melt shop closed, except for times when a scrap car needs to enter or exit the melt shop.
Reductions in fine particle precursor emissions have occurred statewide and in upwind areas as a result of Federal emission control measures, with additional emission reductions expected to occur in the future. Federal emission control measures include the following:
Given the significance of sulfates and nitrates in the Cleveland area, the area's air quality is strongly affected by regulation of SO
On December 30, 2011, the D.C. Circuit issued an order addressing the status of CSAPR and CAIR in response to motions filed by numerous parties seeking a stay of CSAPR pending judicial review. In that order, the Court stayed CSAPR pending resolution of the petitions for review of that rule in
On August 21, 2012, the D.C. Circuit issued a decision to vacate CSAPR. In that decision, it also ordered EPA to continue administering CAIR “pending the promulgation of a valid replacement.”
In light of these unique circumstances and for the reasons explained below, to the extent that attainment is due to emission reductions associated with CAIR, EPA is here proposing to determine that those reductions are sufficiently permanent and enforceable for purposes of CAA sections 107(d)(3)(E)(iii) and 175A. EPA therefore proposes to approve the redesignation requests and the related SIP revisions for the Cleveland area, including Ohio's plan for maintaining attainment of the PM
As directed by the D.C. Circuit, CAIR remains in place and enforceable until substituted by a valid replacement rule. Ohio submitted a CAIR SIP which was approved by EPA on February 1, 2008 (73 FR 6034). On July 15, 2009 Ohio submitted revisions to its CAIR SIP, which EPA approved on September 25, 2009 (74 FR 48857). In its redesignation requests, Ohio notes that in 2008 and 2009 facilities began preparing for and implementing control programs to address CAIR and consent decrees. Thus, it is likely that some of the emissions reductions that lead to monitored attainment of the 1997 annual and 2006 24-hour PM
To the extent that Ohio is relying on CAIR in its maintenance plan, the directive from the D.C. Circuit in
Further, in vacating CSAPR and requiring EPA to continue administering CAIR, the D.C. Circuit emphasized that the consequences of vacating CAIR “might be more severe now in light of the reliance interests accumulated over the intervening four years.”
Ohio developed annual emissions inventories for NO
The emission inventories submitted by Ohio EPA were developed with the assistance of the Lake Michigan Air Directors Consortium (LADCO). The main purpose of LADCO is to provide technical assessments for and assistance to its member states on problems of air quality. LADCO's primary geographic focus is the area encompassed by its member states (Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin) and any areas which affect air quality in its member states.
The 2005 nonattainment inventory was developed as described below. Point source emissions for 2005 were compiled by Ohio EPA using source specific data reported by facilities through the state's STARShip database program. The data are reported by facilities annually and include emissions, process rates, operating schedules, emissions control data and other relevant information. Ohio EPA quality assured the database files and submitted the data to LADCO for emissions processing through the Emissions Modeling System (EMS). LADCO used the Electric Generating Unit (EGU) inventory compiled by EPA's Acid Rain Program, based on facility reported emissions as measured by continuous emissions monitors.
Area source sector emissions were calculated using surrogate emissions factors based on energy usage, population, employment records, or other reliable data. Ohio EPA used Emission Inventory improvement Program methodologies or selected other methodologies which are shared by other states. The decision of which methodology to use was largely based on Ohio's data availability.
Nonroad source sector emissions estimates were generated using EPA's National Mobile Inventory Model (NMIM), with the following modifications: Emission factors were added for diesel tampers/rammers; the PM
Onroad mobile source emissions estimates were developed using the EPA's MOVES2010 model.
The 2008 attainment year inventory was developed as follows. Point source emissions for 2008 were compiled from Ohio's STARShip database. Onroad emissions projections were based on EPA's MOVES2010 model. Area and nonroad emissions were grown from the 2005 inventory using LADCO's growth factors.
NO
Table 5 shows that the Cleveland area reduced primary PM
On April 30, 2013, Ohio submitted supplemental information regarding emissions of VOC and ammonia. This information is reviewed below. However, EPA believes that the improvement in air quality is attributable to the PM
In conjunction with Ohio's requests to redesignate the Cleveland nonattainment area to attainment status, Ohio EPA submitted SIP revisions to provide for maintenance of the 1997 annual and 2006 24-hour PM
Section 175A of the CAA sets forth the required elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after EPA approves a redesignation to attainment. Eight years after redesignation, the state must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for ten years following the initial ten year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures with a schedule for implementation as EPA deems necessary to assure prompt correction of any future PM
The September 4, 1992, John Calcagni memorandum provides additional guidance on the content of a maintenance plan. The memorandum states that a maintenance plan should address the following items: The attainment emissions inventories, a maintenance demonstration showing maintenance for the ten years of the maintenance period, a commitment to maintain the existing monitoring network, factors and procedures to be used for verification of continued attainment of the NAAQS, and a contingency plan to prevent or correct future violations of the NAAQS.
The Ohio EPA developed annual emissions inventories for NO
Along with the redesignation requests, Ohio EPA submitted revisions to the Ohio PM
As discussed in detail in the section below, Ohio's maintenance plan submissions expressly document that the area's emissions inventories will remain below the attainment year inventories through 2022. In addition, for the reasons set forth below, EPA believes that the state's submissions, in conjunction with additional supporting information, further demonstrate that the area will continue to maintain the PM
Ohio's plans demonstrate maintenance of the 1997 annual and 2006 24-hour PM
For NO
LADCO has developed growth and control files for point, area and nonroad categories. These files were used along with LADCO's 2009 and 2018 emission inventories to develop the 2015 and 2022 emissions estimates. NOACA and ODOT developed onroad emissions projections using the MOVES model.
As discussed in section IV.3.a. above, many of the control programs that helped to bring the area into attainment of the standard will continue to achieve additional emission reductions over the maintenance period. These control programs include Tier 2 emission standards for vehicles and gasoline sulfur standards, the heavy-duty diesel engine rule, the nonroad diesel rule, and the nonroad large spark-ignition engine and recreation engine standards. In addition, implementation of CAIR was assumed in the projections. Emissions data for all sources by source sector are shown in Tables 6 through 8, below.
Tables 6–8 show that emissions of NO
The rate of decline in emissions of PM
In addition, as Tables 2 and 4 demonstrate, monitored PM
Based on the information summarized above, Ohio has adequately demonstrated maintenance of the PM
After evaluating the effect of the Court's remand of EPA's implementation rule, a rule that included presumptions against consideration of VOC and ammonia as PM
Based on its review of Ohio's maintenance plan and related information, EPA believes that the primary influences on future air quality in the Cleveland area will be emissions of NO
First, as noted above in EPA's discussion of section 189(e), VOC emission levels in this area have historically been well-controlled under SIP requirements related to ozone and other pollutants. Second, total ammonia emissions throughout the Cleveland area are relatively low, estimated to be less than 13,200 tons per year.
Ohio's maintenance plans show that emissions of NO
Given that the Cleveland area is already attaining the 1997 annual and 2006 24-hour PM
In addition,
Thus, EPA believes that there is ample justification to conclude that the Cleveland area maintenance plans
Ohio currently operates twelve monitors for purposes of determining attainment with the 1997 annual and 2006 24-hour PM
Continued attainment of the PM
The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to ensure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the state will implement all measures with respect to control of the pollutant(s) that were contained in the SIP before redesignation of the area to attainment. See section 175A(d) of the CAA.
As required by section 175A of the CAA, Ohio has adopted contingency plans for the Cleveland area to address possible future 1997 annual and 2006 24-hour PM
An Action Level Response will be prompted by any one of the following: A two year average of the weighted annual means of 15.0 μg/m
i. Diesel reduction emission strategies;
ii. Alternative fuel (e.g., liquid propane and compressed natural gas) and diesel retrofit programs for fleet vehicle operations;
iii. Tighter NO
iv. Impact crushers located at recycle scrap yards—upgrade wet suppression;
v. Concrete manufacturing—upgrade wet suppression; and,
vi. Additional NO
EPA believes that Ohio's contingency plan satisfies the pertinent requirements of section 175A(d).
As required by section 175A(b) of the CAA, Ohio commits to submit to EPA updated maintenance plans eight years after redesignation of the Cleveland area to attainment of the 1997 annual and 2006 24-hour PM
EPA has concluded that the maintenance plan adequately addresses the five basic components of a maintenance plan: Attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan.
As discussed above in section IV.A.2.a.ii., section 173(c)(3) of the CAA requires areas to submit a comprehensive, accurate and current emissions inventory. As part of the redesignation request, Ohio submitted 2005 and 2008 emissions inventories for NO
On April 30, 2013, Ohio submitted 2007/2008 ammonia and VOC emissions inventories to supplement the comprehensive emissions inventories submitted as part of the redesignation requests. These emissions inventories were developed by LADCO, in conjunction with its member states, as described below.
To generate point source emissions estimates, LADCO ran the EMS model using STARShip data provided by Ohio. For area sources, LADCO ran the EMS model using the 2008 National Emissions Inventory (NEI) data provided by Ohio. LADCO followed Eastern Regional Technical Advisory Committee (ERTAC) recommendations on area sources when preparing the data. Agricultural ammonia emissions were not taken from NEI; instead
Onroad mobile source emissions were generated using EPA's MOVES2010a emissions model. Nonroad mobile source emissions were generated using the NMIM2008 emissions model. LADCO also accounted for three other nonroad categories not covered by the NMIM model: Commercial marine vessels, aircraft, and railroads. Marine emissions were based on reports prepared by Environ entitled “LADCO Nonroad Emissions Inventory Project for Locomotive, Commercial Marine, and Recreational Marine Emission Sources, Final Report, December 2004” and “LADCO 2005 Commercial Marine Emissions, Draft, March 2, 2007.” Aircraft emissions were provided by Ohio and calculated using AP–42 emission factors and landing and take-off data provided by the Federal Aviation Administration. Rail emissions were based on the 2008 inventory developed by ERTAC.
EPA notes that the emissions inventory developed by LADCO is documented in “Regional Air Quality Analyses for Ozone, PM
EPA has concluded that the emissions inventories provided by the state are complete and as accurate as possible given the input data available for the relevant source categories. EPA also believes that these inventories provide information about VOC and ammonia as PM
Under the CAA, states are required to submit, at various times, control strategy SIP revisions and maintenance plans for PM
Under 40 CFR part 93, a MVEB for an area seeking a redesignation to attainment is established for the last year of the maintenance plan. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188).
Under section 176(c) of the CAA, transportation plans and transportation improvement programs (TIPs) must be evaluated to determine if they conform with the area's SIP. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing air quality violations, or delay timely attainment of the NAAQS or any required interim milestone. If a transportation plan or TIP does not conform, most new transportation projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP.
When reviewing SIP revisions containing MVEBs, including attainment strategies, rate-of-progress plans, and maintenance plans, EPA must affirmatively find “adequate” or approve for use in determining transportation conformity before the MVEBs can be used. Once EPA affirmatively approves or finds the submitted MVEBs to be adequate for transportation conformity purposes, the MVEBs must be used by state and Federal agencies in determining whether transportation plans and TIPs conform to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining the adequacy of MVEBs are set out in 40 CFR 93.118(e)(4). Additionally, to approve a motor vehicle emissions budget EPA must complete a thorough review of the SIP, in this case the PM
EPA's process for determining adequacy of a MVEB consists of three basic steps: (1) Providing public notification of a SIP submission; (2) providing the public the opportunity to comment on the MVEB during a public comment period; and, (3) EPA taking action on the MVEB. The process for determining the adequacy of submitted SIP MVEBs is codified at 40 CFR 93.118.
A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. As shown in Table 6, NO
The transportation conformity rule allows areas to allocate all or a portion of a “safety margin” to the area's motor vehicle emissions budgets. (40 CFR 93.124(a))
The maintenance plans submitted by Ohio for the Cleveland area contain primary PM
The transportation conformity rule allows areas to allocate all or a portion of a “safety margin” to the area's motor vehicle emissions budgets. (40 CFR 93.124(a)) The state is not requesting allocation to the MVEBs of the entire available safety margins reflected in the demonstration of maintenance. Therefore, even though the state has submitted MVEBs that exceed the projected onroad mobile source emissions for 2015 and 2022 contained in the demonstration of maintenance, the increase in onroad mobile source emissions that can be considered for transportation conformity purposes is well within the safety margins of the PM
Ohio did not provide emission budgets for SO
EPA issued conformity regulations to implement the 1997 PM
First, as noted above, EPA's conformity rule implementing the 1997 PM
The availability of the SIP submissions with these 2015 and 2022 MVEBs was announced for public comment on EPA's Adequacy Web site on October 6, 2011, for the 1997 annual PM
EPA has reviewed the submitted budgets for 2015 and 2022, including the added safety margins using the conformity rule's adequacy criteria found at 40 CFR 93.118(e)(4) and the conformity rule's requirements for safety margins found at 40 CFR 93.124(a). EPA has determined that the area can maintain attainment of the 1997 annual and 2006 24-hour PM
EPA is proposing to determine that the Cleveland area is attaining the 1997 annual and 2006 24-hour PM
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those
• Are not “significant regulatory actions” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• are 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
• do 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);
• do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• are 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
• do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because a determination of attainment is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter.
Environmental protection, Air pollution control, National parks, Wilderness areas.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the State of Ohio's request to redesignate the Dayton-Springfield nonattainment area (Dayton) to attainment for the 1997 annual National Ambient Air Quality Standards (NAAQS or standard) for fine particulate matter (PM
Comments must be received on or before August 26, 2013.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2011–0596, by one of the following methods:
1.
2.
3.
4.
5.
Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6524,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
On June 1, 2011, Ohio submitted a request for EPA to redesignate the Dayton-Springfield, Ohio nonattainment area to attainment of the 1997 annual PM
In a supplemental submission to EPA on April 30, 2013, Ohio submitted ammonia and VOC emissions inventories to supplement the emissions inventories for PM
Air quality standards for PM
On January 5, 2005, at 70 FR 944, EPA designated the Dayton area as nonattainment for the 1997 PM
On October 17, 2006, at 71 FR 61144, EPA retained the annual average standard at 15 μg/m
In response to legal challenges of the annual standard promulgated in 2006, the DC Circuit remanded the standard to EPA for further consideration. See
On September 14, 2011, at 76 FR 56641, EPA issued a final determination that the Dayton area attained the 1997 annual PM
Fine particle pollution can be emitted directly or formed secondarily through chemical reactions in the atmosphere. Sulfates are a type of secondary particle formed from SO
Given the significance of sulfates and nitrates in the Dayton area, the area's air quality is strongly affected by regulations of SO
EPA issued CSAPR on August 8, 2011, at 76 FR 48208. CSAPR addresses interstate transport of emissions with respect to the 1997 ozone and the 1997 and 2006 PM
In this proposed redesignation, EPA takes into account two recent decisions of the D.C. Circuit. In the first of the two Court decisions, the D.C. Circuit, on August 21, 2012, issued
The requirements for redesignating an area from nonattainment to attainment are found in CAA section 107(d)(3)(E). There are five criteria for redesignating an area. First, the Administrator must determine that an area has attained the applicable NAAQS based on current air quality data. Second, the Administrator has fully approved the applicable SIP for the area under CAA section 110(k). The third criterion is for the Administrator to determine that the air quality improvement is the result of permanent and enforceable emission reductions. Emission reductions resulting from requirements approved into the SIP and from Federal air pollution control requirements are considered permanent and enforceable. Fourth, the Administrator has fully approved a maintenance plan meeting the CAA section 175A requirements. The fifth criterion is that the state has met all the redesignation requirements of CAA section 110 and part D.
EPA is proposing to determine that the Dayton area continues to attain the PM
EPA examined monitoring data to determine if the area currently meets the PM
EPA makes the determination of whether an area's air quality is meeting the PM
Ohio submitted its requests based on 2008 to 2010 monitoring data showing that the Dayton area continues to attain the PM
Greene County has a single PM
EPA examined air quality in Greene County in several ways. First, EPA examined data for the most recent complete three years of data at this site. The most recent three-year period with complete data is 2007 to 2009, during which Greene County recorded a design value of 12.1 μg/m
Second, Ohio performed an analysis of the missing data for the Greene County monitoring site. Ohio substituted data from the other monitors in the Dayton area for the 17 missing values from August and September 2010. There are two other monitors in the area, one each in Clark and Montgomery Counties. The state determined that the Clark County monitor data had a 0.9236 correlation with the Greene County data. The substitute values in the third quarter actually lower the 2010 average from 13.2 to 12.2 μg/m
Third, EPA examined the monitoring data history for Greene County. The site
Looking back further, Greene County has recorded annual design values of 13.6 μg/m
For all these reasons, EPA believes that the Dayton area continues to attain the annual PM
The requirements for a state to have a fully approved SIP meeting all relevant requirements are specified in CAA sections 107(d)(3)(E)(ii) and 107(d)(3)(E)(v).
EPA has determined that Ohio has met all currently applicable SIP requirements for purposes of redesignation for the Dayton area under CAA section 110, general SIP requirements. EPA has also determined that the Ohio SIP meets all SIP requirements currently applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(v). In addition, with the exception of the emissions inventory under section 172(c)(3), we have approved all applicable requirements of the Ohio SIP for purposes of redesignation, in accordance with section 107(d)(3)(E)(ii). As discussed below, in this action EPA is proposing to approve Ohio's 2005 and 2008 emissions inventories as meeting the section 172(c)(3) comprehensive emissions inventory requirement.
In making these determinations, EPA ascertained what SIP requirements are applicable to the area for purposes of this redesignation and determined that the portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. SIPs must be fully approved only with respect to currently applicable requirements of the CAA.
Section 110(a) of title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a state must have been adopted by the state after reasonable public notice and hearing, and, among other things, must: Include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor ambient air quality; provide for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; include provisions for the implementation of part C, Prevention of Significant Deterioration (PSD) and part D, NSR permit programs; include criteria for stationary source emission control measures, monitoring, and reporting; include provisions for air quality modeling; and provide for public and local agency participation in planning and emission control rule development.
Section 110(a)(2)(D) of the CAA requires that SIPs contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. EPA holds that the requirements linked with a particular nonattainment area's designation are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, we conclude that these requirements should not be construed to be applicable requirements for purposes of redesignation.
EPA believes that section 110 elements not connected with nonattainment plan submissions and not linked to an area's nonattainment status are not applicable requirements for redesignations. EPA reviews the state's request to redesignate an area to attainment based on the CAA requirements.
This approach is consistent with EPA's existing policy on applicability of conformity and oxygenated fuels requirements for redesignation purposes, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174–53176, October 10, 1996) and (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio 1-hour ozone redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania 1-hour ozone redesignation (66 FR 50399, October 19, 2001).
We have reviewed the Ohio SIP and have concluded that it meets the general SIP requirements under section 110 of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of Ohio's SIP addressing section 110 requirements, including provisions addressing particulate matter, at 40 CFR 52.1870. On December 5, 2007, and September 4, 2009, Ohio made submittals addressing “infrastructure SIP” elements required by section 110(a)(2) of the CAA. EPA approved elements of Ohio's submittals on July 13, 2011, at 76 FR 41075. The requirements of section 110(a)(2), however, are statewide requirements that are not linked to the PM
EPA is proposing to determine that, upon approval of the base year emissions inventories discussed in
For purposes of evaluating these redesignation requests, the applicable section 172 SIP requirements for the Dayton area are contained in sections 172(c)(1)–(9). A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).
Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all Reasonably Available Control Measures (RACM) as expeditiously as practicable and to provide for attainment of the primary NAAQS. EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in each area as components of the area's attainment demonstration. Since attainment has been reached, no additional measures are needed to provide for attainment, and section 172(c)(1) requirements are no longer considered to be applicable as long as the area continues to attain the standard until redesignation. See 40 CFR 51.1004(c). The Reasonable Further Progress (RFP) requirement under section 172(c)(2) is defined as progress that must be made toward attainment. This requirement is not relevant for purposes of this redesignation because the Dayton area is monitoring attainment of the 1997 annual PM
Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. Ohio submitted 2005 and 2008 emissions inventories along with their redesignation request and supplemented the inventories on April 30, 2013. As discussed in section IV.B., EPA is proposing to approve the 2005 and 2008 emission inventories as meeting the section 172(c)(3) emissions inventory requirement for the Dayton area.
Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA approved Ohio's current NSR program on January 10, 2003 (68 FR 1366). Nonetheless, since PSD requirements will apply after redesignation, the area does not need to have a fully-approved NSR program for purposes of redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment” (Nichols memorandum). Ohio has demonstrated that the Dayton area will be able to maintain the standard without part D NSR in effect; therefore, the state does not need to have a fully approved part D NSR program prior to approval of the redesignation request. Ohio's PSD program will become effective in the Dayton area upon redesignation to attainment. See rulemakings for Detroit, Michigan (60 FR 12467–12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469–20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834–31837, June 21, 1996).
Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the standard. As attainment has been reached, no additional measures are needed to provide for attainment.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted, EPA finds that the Ohio SIP meets the section 110(a)(2) requirements applicable for purposes of redesignation.
Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway projects, conform to the air quality planning goals in the applicable SIPs. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded, or approved under title 23 of the U.S. Code and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity).
Section 176(c) of the CAA was amended by provisions contained in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU), which was signed into law on August 10, 2005 (Pub. L. 109–59). Among the changes Congress made to this section of the CAA were streamlined requirements for state transportation conformity SIPs. State transportation conformity regulations must be consistent with Federal conformity regulations and address three specific requirements related to consultation, enforcement, and enforceability. EPA believes that it is reasonable to interpret the transportation conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) for two reasons.
First, the requirement to submit SIP revisions to comply with the transportation conformity provisions of the CAA continues to apply to areas after redesignation to attainment since such areas would be subject to a section 175A maintenance plan. Second, EPA's Federal conformity rules require the performance of conformity analyses in the absence of Federally-approved state rules. Therefore, because areas are subject to the transportation conformity requirements regardless of whether they are redesignated to attainment and, because they must implement conformity under Federal rules if state rules are not yet approved, EPA believes it is reasonable to view these requirements as not applying for purposes of evaluating a redesignation request.
EPA approved Ohio's general conformity SIP on March 11, 1996 (61 FR 9646), and Ohio's transportation conformity SIP on May 30, 2000 (65 FR 34395), and April 27, 2007 (72 FR 20945). Ohio is in the process of updating its approved transportation conformity SIP, and EPA will review its provisions when they are submitted. Ohio also submitted onroad motor vehicle emission budgets for transportation conformity purposes, which EPA reviews in section IV.C below.
As discussed above, on January 4, 2013, in
EPA is proposing to determine that the Court's January 4, 2013, decision does not prevent EPA from redesignating the Dayton area to attainment. Even in light of the Court's decision, redesignation for this area is appropriate under the CAA and EPA's longstanding interpretations of the CAA's provisions regarding redesignation.
With respect to the 1997 PM
EPA's view that, for purposes of evaluating the Dayton redesignation, the subpart 4 requirements were not due at the time the state submitted the redesignation request is in keeping with the EPA's interpretation of subpart 2 requirements for subpart 1 ozone areas redesignated subsequent to the D.C. Circuit's decision in
EPA's interpretation derives from the provisions of CAA section 107(d)(3). Section 107(d)(3)(E)(v) states that, for an area to be redesignated, a state must meet “all requirements `applicable' to the area under section 110 and part D.” Section 107(d)(3)(E)(ii) provides that the EPA must have fully approved the “applicable” SIP for the area seeking redesignation. These two sections read together support EPA's interpretation of “applicable” as only those requirements that came due prior to submission of a complete redesignation request. First, holding states to an ongoing obligation to adopt new CAA requirements that arose after the state submitted its redesignation request, in order to be redesignated, would make it problematic or impossible for EPA to act on redesignation requests in accordance with the 18-month deadline Congress set for EPA action in section 107(d)(3)(D). If “applicable requirements” were interpreted to be a continuing flow of requirements with no reasonable limitation, states, after submitting a redesignation request, would be forced continuously to make additional SIP submissions that in turn would require EPA to undertake further notice-and-comment rulemaking actions to act on those submissions. This would create a regime of unceasing rulemaking that would delay action on the redesignation request beyond the 18-month timeframe provided by the CAA for this purpose.
Second, a fundamental premise for redesignating a nonattainment area to attainment is that the area has attained the relevant NAAQS due to emission reductions from existing controls. Thus, an area for which a redesignation request has been submitted would have already attained the NAAQS as a result of satisfying statutory requirements that came due prior to the submission of the request. Absent a showing that unadopted and unimplemented requirements are necessary for future maintenance, it is reasonable to view the requirements applicable for purposes of evaluating the redesignation request as including only those SIP requirements that have already come due. These are the requirements that led to attainment of the NAAQS. To require,
In the context of this redesignation, the timing and nature of the Court's January 4, 2013, decision in
To require the state's fully-completed and pending redesignation request to comply now with requirements of subpart 4 that the Court announced only in January, 2013, would be to give retroactive effect to such requirements when the state had no notice that it was required to meet them. The D.C. Circuit recognized the inequity of this type of retroactive impact in
Even if EPA were to take the view that the Court's January 4, 2013, decision requires that, in the context of pending redesignations, subpart 4 requirements were due and in effect at the time the State submitted its redesignation request, EPA proposes to determine that the Dayton area still qualifies for redesignation to attainment. As explained below, EPA believes that the redesignation request for the Dayton area, though not expressed in terms of subpart 4 requirements, substantively meets the requirements of that subpart for purposes of redesignating the area to attainment.
With respect to evaluating the relevant substantive requirements of subpart 4 for purposes of redesignating the Dayton area, EPA notes that subpart 4 incorporates components of subpart 1 of part D, which contains general air quality planning requirements for areas designated as nonattainment.
For the purposes of this redesignation, in order to identify any additional requirements which would apply under subpart 4, we are considering the Dayton area to be a “moderate” PM
The permit requirements of subpart 4, as contained in section 189(a)(1)(A), refer to and apply the subpart 1 permit provisions requirements of sections 172 and 173 to PM
With respect to the specific attainment planning requirements under subpart 4,
The requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing that the State will make RFP towards attainment will, therefore, have no meaning at that point.
The General Preamble also explained that
EPA similarly stated in its 1992 Calcagni memorandum that, “The requirements for reasonable further progress and other measures needed for attainment will not apply for redesignations because they only have meaning for areas not attaining the standard.”
It is evident that even if we were to consider the Court's January 4, 2013, decision in
Moreover, even outside the context of redesignations, EPA has viewed the obligations to submit attainment-related SIP planning requirements of subpart 4 as inapplicable for areas that EPA determines are attaining the standard. EPA's prior “Clean Data Policy” rulemakings for the PM
EPA proposes to determine that the area has attained the 1997 PM
Thus, EPA is proposing to conclude that the requirements to submit an attainment demonstration under 189(a)(1)(B), a RACM determination under section 172(c)d section 189(a)(1)(c), a RFP demonstration under 189(c)(1), and contingency measure requirements under section 172(c)(9) are satisfied for purposes of evaluating the redesignation request.
The D.C. Circuit in
EPA's 1997 PM
The Court in its January 4, 2013, decision made reference to both section 189(e) and 40 CFR 51.1002, and stated that, “In light of our disposition, we need not address the petitioners' challenge to the presumptions in [40 CFR 51.1002] that volatile organic compounds and ammonia are not PM
Elsewhere in the Court's opinion, however, the Court observed:
Ammonia is a precursor to fine particulate matter, making it a precursor to both PM
For a number of reasons, EPA believes that its proposed redesignation of Dayton area is consistent with the Court's decision on this aspect of subpart 4. First, while the Court, citing section 189(e), stated that “for a PM
However, even if EPA takes the view that the requirements of subpart 4 were deemed applicable at the time the state submitted the redesignation request, and disregards the implementation rule's rebuttable presumptions regarding ammonia and VOC as PM
Precursors in subpart 4 are specifically regulated under the provisions of section 189(e), which requires, with important exceptions, control requirements for major stationary sources of PM
In the General Preamble, EPA discusses its approach to implementing section 189(e).
EPA notes that its 1997 PM
Although, as EPA has emphasized, its consideration here of precursor requirements under subpart 4 is in the context of a redesignation to attainment, EPA's existing interpretation of subpart 4 requirements with respect to precursors in attainment plans for PM
In sum, even if Ohio were required to address precursors for the Dayton area under subpart 4 rather than under subpart 1, as interpreted in EPA's remanded PM
A discussion of the impact of the Court's decision on the maintenance plan required under sections 175A and 107(d)(3)(E)(iv) can be found in section IV.A.4.d.
Upon final approval of Ohio's comprehensive 2005 and 2008 emissions inventories, EPA will have fully approved the Ohio SIP for the Dayton area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (See page 3 of the Calcagni memorandum;
EPA finds that Ohio has demonstrated that the observed air quality improvement in the Dayton area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other state-adopted measures.
In making this showing, Ohio EPA has calculated the change in emissions between 2005, one of the years in the period during which the Dayton area monitored nonattainment, and 2008, one of the years in the period during which the Dayton area monitored attainment. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that the Dayton area and upwind areas have implemented in recent years.
The following is a discussion of permanent and enforceable measures that have been implemented in the area:
Reductions in fine particle precursor emissions have occurred statewide and in upwind areas as a result of Federal emission control measures, with additional emission reductions expected to occur in the future. Federal emission control measures include the following:
Given the significance of sulfates and nitrates in the Dayton area, the area's air quality is strongly affected by regulation of SO
On December 30, 2011, the D.C. Circuit issued an order addressing the status of CSAPR and CAIR in response to motions filed by numerous parties seeking a stay of CSAPR pending judicial review. In that order, the Court stayed CSAPR pending resolution of the petitions for review of that rule in
As noted above, on August 21, 2012, the D.C. Circuit issued the decision in
In light of these unique circumstances and for the reasons explained below, to the extent that attainment is due to emission reductions associated with CAIR, EPA is here determining that those reductions are sufficiently permanent and enforceable for purposes of CAA sections 107(d)(3)(E)(iii) and 175A.
As directed by the D.C. Circuit, CAIR remains in place and enforceable until EPA promulgates a valid replacement rule to substitute for CAIR. The Dayton SIP revision lists CAIR as a control measure that was adopted by the State in 2006 and required compliance by January 1, 2009. CAIR was thus in place and getting emission reductions when Dayton monitored attainment of the 1997 annual PM
To the extent Ohio is relying on CAIR in its maintenance plan to support continued attainment into the future, the directive from the D.C. Circuit in
Further, in vacating CSAPR and requiring EPA to continue administering CAIR, the D.C. Circuit emphasized that the consequences of vacating CAIR “might be more severe now in light of the reliance interests accumulated over the intervening four years.”
Ohio developed emissions inventories for NO
Area source sector emissions were calculated using surrogate emissions factors based on energy usage, population, employment records, or other reliable data. Ohio EPA used Emission Inventory improvement Program methodologies or selected other methodologies which are shared by other states. The decision of which methodology to use was largely based on Ohio's data availability.
Nonroad source sector emissions estimates were generated using EPA's National Mobile Inventory Model (NMIM), with the following modifications: Emission factors were added for diesel tampers/rammers; the PM
Onroad mobile source emissions estimates were developed using the EPA's MOVES2010 model. The 2008 attainment year inventory was
The state aggregated the emission inventories to obtain the total emissions for each category and the grand total emissions for the Dayton area. The emission inventories for the Dayton area by pollutant are presented in Tables 2 to 4. The data in Table 2 indicates PM
In conjunction with Ohio's requests to redesignate the Dayton nonattainment area to attainment status, Ohio EPA submitted SIP revisions to provide for maintenance of the 1997 annual PM
Section 175A of the CAA sets forth the required elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after EPA approves a redesignation to attainment. Eight years after redesignation, the state must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for ten years following the initial ten year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures with a schedule for implementation as EPA deems necessary to assure prompt correction of any future PM
The September 4, 1992, John Calcagni memorandum provides additional guidance on the content of a maintenance plan. The memorandum states that a maintenance plan should address the following items: The attainment emissions inventories, a maintenance demonstration showing maintenance for the ten years of the maintenance period, a commitment to maintain the existing monitoring network, factors and procedures to be used for verification of continued attainment of the NAAQS, and a contingency plan to prevent or correct future violations of the NAAQS.
Ohio developed emissions inventories for NO
Along with the redesignation requests, Ohio EPA submitted revisions to the Ohio PM
Ohio's maintenance plan submissions expressly document that the Dayton area's emissions inventories will remain below the attainment year inventories through 2022. In addition, for the reasons set forth below, EPA believes that Ohio's submission, in conjunction with additional supporting information, further demonstrating that the area will continue to maintain the PM
Ohio's plans demonstrate maintenance of the PM
Ohio is using PM
LADCO has developed growth and control files for point, area, and nonroad categories. These files were used along with LADCO's 2009 and 2018 emission inventories to develop the 2015 and 2022 emissions estimates. Onroad emissions projections were made by using the MOVES model.
As discussed in section IV.3.a., many of the control programs that helped to bring the area into attainment of the standard will continue to achieve additional emission reductions over the maintenance period. These control programs include Tier 2 emission standards for vehicles and gasoline sulfur standards, the heavy-duty diesel engine rule, the nonroad diesel rule, and the nonroad large spark-ignition engine and recreation engine standards. In addition, implementation of CAIR was assumed in the projections. The state then aggregated the emission inventories to obtain the total emissions for each category and the grand total emissions for the Dayton area. The emission inventories for the Dayton area by pollutant are presented in Tables 2 to 4.
The 2015 and 2022 emission inventories indicate that the emission reductions are expected to continue. A 712 tpy, or 32 percent, reduction in PM
In addition, available air quality modeling analyses show continued maintenance of the standard during the maintenance period. The current air quality design value for the Dayton area is 12.3 μg/m
Based on the information summarized above, Ohio has adequately demonstrated maintenance of the PM
After evaluating the effect of the Court's remand of EPA's implementation rule, a rule that included presumptions against consideration of VOC and ammonia as PM
Based on its review of Ohio's maintenance plan and related information, EPA believes that the primary influences on future air quality in the Dayton area will be emissions of NO
First, as noted above in EPA's discussion of section 189(e), VOC emission levels in this area have historically been well controlled under SIP requirements related to ozone and other pollutants. Second, total ammonia emissions throughout the Dayton area are modest, estimated to be about 27,250 tpy.
Ohio's maintenance plan shows that emissions of direct PM
Thus,
Ohio currently operates three monitors for purposes of determining attainment with the PM
Continued attainment of the PM
The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to ensure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the state will implement all measures with respect to control of the pollutant(s) that were contained in the SIP before redesignation of the area to attainment. See section 175A(d) of the CAA.
As required by section 175A of the CAA, Ohio has adopted contingency plans for the Dayton area to address possible future PM
If the annual value trend is rising, control measures to reverse the rising trend are implemented. An “action level” response is triggered whenever the two year average is 15.0 µg/m
Ohio provided a list of potential contingency provisions in its maintenance plan. It listed diesel emission reductions, alternative fuels, fleet diesel retrofit programs, tighter PM
As required by section 175A(b) of the CAA, Ohio commits to submit to EPA updated maintenance plans eight years after redesignation of the Dayton area to attainment of the 1997 annual PM
EPA has concluded that the maintenance plan adequately addresses the five basic components of a maintenance plan: Attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan.
Section 173(c)(3) of the CAA requires areas to submit a comprehensive, accurate and current emissions inventory. As part of the redesignation request, Ohio submitted 2005 and 2008 emissions inventories for NO
On April 30, 2013, Ohio supplemented its emissions inventory information for direct PM
As with its inventories for NO
For area sources inventories for VOC and ammonia, again as with the inventories for NO
Non-road mobile source emissions of VOC and ammonia, similar to the other pollutants, were estimated using the NMIM2008 emissions model. LADCO also accounted for three other non-road categories not covered by the NMIM model: Commercial marine vessels, aircraft, and railroads. Marine emissions were based on reports prepared by Environ entitled “LADCO Nonroad Emissions Inventory Project for Locomotive, Commercial Marine, and Recreational Marine Emission Sources, Final Report, December 2004” and “LADCO 2005 Commercial Marine Emissions, Draft, March, 2, 2007.” Aircraft emissions were provided by Ohio and calculated using AP–42 emission factors and landing and take-off data provided by the Federal Aviation Administration. Rail emissions were based on the 2008 inventory developed by ERTAC. On-road mobile source emissions were generated using EPA's MOVES2010a emissions model.
EPA notes that the emissions inventory developed by LADCO is documented in “Regional Air Quality Analyses for Ozone, PM
Therefore, we are proposing to approve the ammonia and VOC emissions inventories submitted by Ohio in April 2013, in conjunction with the NO
Under the CAA, states are required to submit, at various times, control strategy SIP revisions and maintenance plans for nonattainment areas and for areas seeking redesignation to attainment for a given NAAQS. These emission control strategy SIP revisions (
Under section 176(c) of the CAA, transportation plans and transportation improvement programs (TIPs) must be
When reviewing SIP revisions containing MVEBs, including attainment strategies, rate-of-progress plans, and maintenance plans, EPA must affirmatively find “adequate” or approve for use in determining transportation conformity before the MVEBs can be used. Once EPA affirmatively approves or finds the submitted MVEBs to be adequate for transportation conformity purposes, the MVEBs must be used by state and Federal agencies in determining whether transportation plans and TIPs conform to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining the adequacy of MVEBs are set out in 40 CFR 93.118(e)(4). Additionally, to approve a motor vehicle emissions budget EPA must complete a thorough review of the SIP, in this case the PM
EPA's process for determining adequacy of a MVEB consists of three basic steps: (1) Providing public notification of a SIP submission; (2) providing the public the opportunity to comment on the MVEB during a public comment period; and, (3) EPA taking action on the MVEB. The process for determining the adequacy of submitted SIP MVEBs is codified at 40 CFR 93.118.
A “safety margin” is the difference between the attainment level of emissions from all sources and the projected level of emissions from all sources in the maintenance plan. As shown in Table 3, NO
The transportation conformity rule allows areas to allocate all or a portion of a “safety margin” to the area's motor vehicle emissions budgets (40 CFR 92.124(a)).
The maintenance plan revision submitted by Ohio for the Dayton area contains primary PM
Ohio developed estimates for onroad mobile sources for the three counties in the Dayton area for 2005, 2008, 2015, and 2022. Ohio then summed the emissions for the Dayton area as shown on Table 6.
The transportation conformity rule allows areas to allocate all or a portion of a “safety margin” to the area's motor vehicle emissions budgets (40 CFR 93.124(a)). Ohio is not requesting allocation to the MVEBs of the entire available safety margins reflected in the demonstration of maintenance. Therefore, even though the State has submitted MVEBs that exceed the projected onroad mobile source emissions for 2015 and 2022 contained in the demonstration of maintenance, the increase in onroad mobile source emissions that can be considered for transportation conformity purposes is well within the safety margins of the PM
Ohio did not provide emission budgets for SO
EPA issued conformity regulations to implement the 1997 PM
First, as noted above, EPA's conformity rule implementing the 1997 PM
The availability of the SIP submissions with these 2015 and 2022 MVEBs was announced for public comment on EPA's Adequacy Web site on October 6, 2011, for the 1997 annual PM
EPA has reviewed the submitted budgets for 2015 and 2022, including the added safety margins using the conformity rule's adequacy criteria found at 40 CFR 93.118(e)(4) and the conformity rule's requirements for safety margins found at 40 CFR 93.124(a). EPA has determined that the area can maintain attainment of the 1997 annual PM
EPA is proposing to determine that the Dayton area is attaining the 1997 annual PM
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, these proposed actions do not impose additional requirements beyond those imposed by state law and the CAA. For that reason, these proposed actions:
• Are not “significant regulatory actions” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• are 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
• do 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);
• do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• are 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
• do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because a determination of attainment is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter.
Environmental protection, Air pollution control, National parks, Wilderness areas.
Environmental Protection Agency (EPA).
Proposed rule.
On November 2, 2011, and supplemented on March 28, 2013, the State of North Carolina, through the North Carolina Department of Environment and Natural Resources, Department of Air Quality (NC DAQ), submitted a request for EPA to redesignate the portion of North Carolina that is within the bi-state Charlotte-Gastonia-Rock Hill, North Carolina-South Carolina 8-hour ozone nonattainment area (hereafter referred to as the “bi-state Charlotte Area,” “Area,” or “Metrolina nonattainment area”) to attainment for the 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS); and to approve a State Implementation Plan (SIP) revision containing a maintenance plan for the Area. EPA is proposing to approve the redesignation request for the Area, along with the related SIP revisions, including North Carolina's plan for maintaining attainment of the 1997 8-hour ozone standard in the Area. EPA is also proposing to approve a supplemental SIP revision, submitted to EPA on March 28, 2013, extending the maintenance plan to the year 2025 and updating motor vehicle emission budgets (MVEBs) for nitrogen oxides (NO
Comments must be received on or before August 26, 2013.
Submit your comments, identified by Docket ID No. EPA–R04–OAR–2013–0129, by one of the following methods:
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Jane Spann or Sara Waterson of the Regulatory Development Section, in the Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Ms. Spann may be reached by phone at (404) 562–9029, or via electronic mail at
EPA is proposing to take the following two separate but related actions, one of which involves multiple elements: (1) To redesignate the North Carolina portion of the bi-state Charlotte Area to attainment for the 1997 8-hour ozone NAAQS; and (2) to approve into the North Carolina SIP, under section 175A of the CAA, North Carolina's plan for maintaining the 1997 8-hour ozone NAAQS (1997 ozone NAAQS maintenance plan). EPA's proposed action for the maintenance plan also includes proposed approval of the associated MVEBs. Through today's rulemaking, EPA is also notifying the public of the status of EPA's adequacy determination for the MVEBs for the North Carolina portion of the bi-state Charlotte Area. The bi-state Charlotte Area consists of Cabarrus, Gaston, Lincoln, Mecklenburg, Rowan, Union and a portion of Iredell County (Davidson and Coddle Creek Townships), North Carolina; and a portion of York County, South Carolina. These actions are summarized below and described in greater detail throughout this notice of proposed rulemaking.
First, EPA proposes to determine that the North Carolina portion of the bi-state Charlotte Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of Cabarrus, Gaston, Iredell, Lincoln, Mecklenburg, Rowan and Union Counties in their entireties, and a portion of Iredell County (Davidson and Coddle Creek Townships) in North Carolina from nonattainment to attainment for the 1997 8-hour ozone NAAQS.
Second, EPA is proposing to approve North Carolina's November 2, 2011, SIP revision (as supplemented by a March 28, 2013, SIP submittal) for the 1997 8-hour ozone NAAQS maintenance plan for the North Carolina portion of the bi-state Charlotte Area as meeting the requirements of section 175A (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to help keep the bi-state Charlotte Area in attainment of the 1997 8-hour ozone NAAQS through 2025. Consistent with the CAA, EPA is proposing to take action to approve the 2013 and 2025 MVEBs in North Carolina's March 28, 2013, SIP revision.
EPA is also notifying the public of the status of EPA's adequacy process for the newly-established NO
Today's notice of proposed rulemaking is in response to North Carolina's November 2, 2011, SIP revision (as supplemented by a March 28, 2013, SIP submission). These SIP revisions address the specific issues summarized above and the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the North Carolina portion of the bi-state Charlotte Area to attainment of the 1997 8-hour ozone NAAQS.
On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS of 0.08 parts per million (ppm). Under EPA's regulations at 40 CFR part 50, the 1997 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered) (69 FR 23857, April 30, 2004). Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. The ambient air quality monitoring data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of part 50.
Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS, based on the three most recent years of complete, quality assured, and certified ambient air quality data at the conclusion of the designation process. The bi-state Charlotte Area was designated nonattainment for the 1997 8-hour ozone NAAQS on April 30, 2004 (effective June 15, 2004) using 2001–2003 ambient air quality data (69 FR 23857, April 30, 2004). At the time of designation, the bi-state Charlotte Area was classified as a moderate nonattainment area for the 1997 8-hour ozone NAAQS. In the April 30, 2004, Phase I Ozone Implementation Rule, EPA established ozone nonattainment area attainment dates based on Table 1 of section 181(a) of the CAA. This established an attainment date six years after the June 15, 2004, effective date for areas classified as moderate areas for the 1997 8-hour ozone nonattainment designations. Section 181 of the CAA explains that the attainment date for moderate nonattainment areas shall be as expeditiously as practicable, but no later than six years after designation, or June 15, 2010. Therefore, the bi-state Charlotte Area's original attainment date was June 15, 2010.
On November 12, 2009,
The bi-state Charlotte Area did not attain the 1997 8-hour ozone NAAQS by June 15, 2010 (the applicable attainment date for moderate nonattainment areas); however, the Area qualified for an extension of the attainment date. Under certain circumstances, the CAA allows for extensions of the attainment dates prescribed at the time of the original nonattainment designation. In accordance with CAA section 181(a)(5), EPA may grant up to two one-year extensions of the attainment date under specified conditions. On May 31, 2011,
On November 2, 2011, North Carolina requested redesignation of the North Carolina portion of the bi-state Charlotte Area to attainment for the 1997 8-hour ozone NAAQS. The redesignation request included three years of complete, quality-assured ambient air quality data for the 1997 8-hour ozone NAAQS for 2008–2010, indicating that the 1997 8-hour ozone NAAQS had been achieved for the Area. Under the CAA, nonattainment areas may be redesignated to attainment if sufficient, complete, quality-assured data is available for the Administrator to determine that the area has attained the standard and the area meets the other CAA redesignation requirements in section 107(d)(3)(E).
Subsequently, on November 15, 2011 (76 FR 70656), EPA determined that the bi-state Charlotte Area attained the 1997 8-hour ozone NAAQS. The determination of attaining data was based upon complete, quality-assured and certified ambient air monitoring data for the 2008–2010 period, showing that the Area had monitored attainment of the 1997 8-hour ozone NAAQS. The requirements for the Area to submit an attainment demonstration and associated RACM, RFP plan, contingency measures, and other planning SIP revisions related to attainment of the standard were suspended as a result of the determination of attainment, so long as the Area continues to attain the 1997 8-hour ozone NAAQS.
On January 12, 2012, North Carolina withdrew the North Carolina portion of the Area's attainment demonstration (except RFP, emissions statements, and the emissions inventory) as allowed by 40 CFR 51.918. Therefore, EPA was not required to take action on the aforementioned portion of the attainment demonstration. EPA approved the emissions statements portion of the attainment demonstration SIP revision on April 24, 2012 (77 FR 24382). Additionally, EPA approved the baseline emissions inventory portion of the attainment demonstration SIP revision on May 4, 2012 (77 FR 26441). EPA approved the RFP portion on October 12, 2012 (77 FR 62159).
The March 28, 2013, supplemental SIP revision extends the final year of the maintenance plan to 2025. Specifically, this revision updates emissions data, emissions projections, MVEBs, and safety margins to 2025. Additionally, it provides updated ozone design values for the bi-state Charlotte Area.
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and, (5) the state containing such area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.
On April 16, 1992, EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:
On November 2, 2011, and later supplemented on March 28, 2013, the State of North Carolina, through NC DAQ, requested the redesignation of the North Carolina portion of the bi-state Charlotte Area to attainment for the 1997 8-hour ozone NAAQS. EPA's evaluation indicates that the entire bi-state Charlotte Area has attained the 1997 8-hour ozone NAAQS, and that North Carolina meets the requirements for redesignation for its portion of the bi-state Charlotte Area as set forth in section 107(d)(3)(E), including the maintenance plan requirements under section 175A of the CAA. As a result, EPA is proposing to take the two related actions summarized in section I of this notice.
As stated above, in accordance with the CAA, EPA proposes in today's action to: (1) Redesignate the North Carolina portion of the bi-state Charlotte Area to attainment for the 1997 8-hour ozone NAAQS; and (2) approve the North Carolina portion of the bi-state Charlotte Area's 1997 8-hour ozone NAAQS maintenance plan, including the associated MVEBs, into the North Carolina SIP. These actions are based upon EPA's determination that the entire bi-state Charlotte Area continues to attain the 1997 8-hour ozone NAAQS, and that all other redesignation criteria have been met for the North Carolina portion of the bi-state Charlotte Area. The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.
For ozone, an area may be considered to be attaining the 1997 8-hour ozone NAAQS if it meets the 1997 8-hour ozone standard, as determined in accordance with 40 CFR 50.10 and Appendix I of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain these NAAQS, the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year must not exceed 0.08 ppm. Based on the data handling and reporting convention described in 40 CFR part 50, Appendix I, the NAAQS are attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in the EPA Air Quality System (AQS) database. The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.
As mentioned above, on November 15, 2011 (76 FR 70656), EPA determined that the bi-state Charlotte Area was attaining the 1997 8-hour ozone NAAQS. For that action, EPA reviewed ozone monitoring data from monitoring stations in the bi-state Charlotte Area for the 1997 8-hour ozone NAAQS for 2008–2010. These data have been quality-assured and are recorded in AQS. EPA has reviewed the 2009–2011 certified and 2010–2012 preliminary data which indicate that the Area continues to attain the 1997 8-hour ozone NAAQS beyond the submitted 3-year attainment period of 2008–2010. The fourth-highest 8-hour ozone average for 2008, 2009 and 2010, and the 3-year average of these values (i.e., design values), are summarized in the following Table 1 of this proposed rulemaking.
The 3-year design value for 2008–2010 submitted by North Carolina for redesignation of its portion of the bi-state Charlotte Area is 0.082 ppm at the 29 N at Mecklenburg Cab Co. monitor,
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that North Carolina has met all applicable SIP requirements for the North Carolina portion of the Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that the North Carolina SIP satisfies the criterion that it meets applicable SIP requirements for purposes of redesignation under part D of title I of the CAA (requirements specific to 1997 8-hour ozone nonattainment areas) in accordance with section 107(d)(3)(E)(v). Further, EPA proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were applicable prior to submittal of the complete redesignation request.
Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants (e.g., NO
In addition, EPA believes that other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements that are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (i.e., for redesignations) of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements.
EPA completed rulemaking on a December 12, 2007, submittal and a clarification in a June 20, 2008, submission addressing “infrastructure SIP” elements required under CAA section 110(a)(2) on February 6, 2012.
The General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992) also discusses the evaluation of the section 172 and 182 requirements in the context of EPA's consideration of a redesignation request. The General Preamble sets forth EPA's view of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard (General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992)).
Because attainment has been reached in the bi-state Charlotte Area, no additional measures are needed to provide for attainment, and section 172(c)(1) requirements for an attainment demonstration and RACM are no longer considered to be applicable for purposes of redesignation as long as the Area continues to attain the standard until redesignation.
Pursuant to sections 172(c)(2) and 182(b)(1), nonattainment plans for areas classified as moderate and above for ozone must contain provisions that require reasonable further progress toward attainment. These requirements are not relevant for purposes of redesignation because EPA has determined that the bi-state Charlotte Area has monitored attainment of the 1997 8-hour ozone NAAQS.
Section 172(c)(3) and section 182(b) require submission and approval of a comprehensive, accurate, and current inventory of actual emissions. Section 182(b) references section 182(a) of the CAA which requires, in part, for states to submit a current inventory of actual emissions (182(a)(1)). As part of North Carolina's attainment demonstration for the North Carolina portion of the Area, NC DAQ submitted a 2002 base year emissions inventory. EPA approved the 2002 base year inventory submitted with the attainment demonstration on May 4, 2012, as meeting the section 172(c)(3) and section 182(b) (182(a)(1))
Section 172(c)(4) requires the identification and quantification of allowed emissions from major new and modified stationary sources in an area, and section 172(c)(5) and section 182(b) that require permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, because PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” North Carolina has demonstrated that the North Carolina portion of the bi-state Charlotte Area will be able to maintain the NAAQS without part D NSR in effect, and therefore North Carolina need not have fully approved part D NSR programs prior to approval of the redesignation request. Nonetheless, North Carolina currently has an approved part D NSR program in place. North Carolina's PSD program will become applicable in the North Carolina portion of the bi-state Charlotte Area upon redesignation to attainment. Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the NAAQS. Because attainment has been reached, no additional measures are needed to provide for attainment.
Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes the North Carolina SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.
Section 182(b) references, in part, section 182(a)(3), which requires states to submit periodic inventories and emissions statements. Section 182(a)(3)(A) of the CAA requires states to submit a periodic inventory every three years. The periodic emissions inventory is discussed in more detail in Criteria (4)(e),
Section 182(a)(3)(B) of the CAA requires states with areas designated nonattainment for the ozone NAAQS to submit a SIP revision to require emissions statements to be submitted to the state by sources within that nonattainment area. EPA approved North Carolina's emissions statements requirement on August 1, 1997, and approved the updated counties on April 24, 2012.
Section 182(b)(2) of the CAA requires states with areas designated nonattainment for the ozone NAAQS to submit a SIP revision to require reasonably available control technology (RACT) for all major VOC and NO
The CTGs established by EPA are guidance to the states and provide recommendations only. A state can develop its own strategy for what constitutes RACT for the various CTG categories, and EPA will review that strategy in the context of the SIP process and determine whether it meets the RACT requirements of the CAA and its implementing regulations. If no major sources of VOC or NO
North Carolina did a RACT analysis for major VOC and NO
North Carolina submitted a SIP revision on May 1, 2013, to EPA to address the requirements of the conditional approval to correct the deficiencies for which EPA proposed conditional approval related to North Carolina's RACT submission. On June 7, 2013, EPA proposed to approve portions of North Carolina's May 1, 2013, SIP revision which included changes to the State's RACT rules to correct deficiencies and add new changes.
Under section 202(a)(6) of the CAA, 42 U.S.C. 7521(a)(6), the requirements of section 182(b)(3) do not apply in moderate ozone nonattainment areas after EPA promulgated the onboard refueling vapor recovery (ORVR) standards on April 6, 1994 (59 FR 16262), codified at 40 CFR parts 86 (including 86.098–8), 88 and 600. As mentioned above, the bi-state Charlotte Area was designated as a moderate area for the 1997 8-hour ozone NAAQS and therefore was not subject to the Stage II requirements as set forth in section 182(b)(3).
Section 182(b)(4) of the CAA requires states with areas designated nonattainment with moderate or above classification for the ozone NAAQS to submit SIPs requiring inspection and maintenance of vehicles (I/M). North Carolina's I/M rule for the North Carolina portion of the nonattainment area, called the Clean Air Bill, was submitted to EPA on August 7, 2002, and approved by EPA on October 30, 2002 (67 FR 66056), effective December 30, 2002. EPA believes that the North Carolina SIP meets the requirements of section 182(b)(4) applicable for purposes of redesignation.
Section 182(b)(5) of the CAA requires that for purposes of satisfying the emission offset requirements of Part D, the ratio of total emission reductions of VOCs to total increase emissions of VOCs must be at least 1.15 to 1. North Carolina currently requires these offsets.
EPA interprets the conformity SIP requirements
For all of the reasons discussed above, the North Carolina portion of the bi-state Charlotte Area has satisfied all applicable requirements for purposes of redesignation under section 110 and part D of title I of the CAA.
EPA may rely on prior SIP approvals in approving a redesignation request (
On April 29, 2013, EPA signed a
As indicated above, EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions nor linked to an area's nonattainment status are not applicable requirements for purposes of redesignation.
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable Federal air pollution control regulations and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA believes that North Carolina has demonstrated that the observed air quality improvement in the bi-state Charlotte Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other state adopted measures.
State, local, and Federal measures enacted in recent years have resulted in permanent emission reductions. Most of these emission reductions are enforceable through regulations. A few non-regulatory measures also result in emission reductions.
The state and local measures that have been implemented to date and relied upon by North Carolina to demonstrate attainment and/or maintenance include the Clean Air Bill I/M program; open burning ban; NO
When all of the nonroad spark-ignition and recreational engine standards are fully implemented, an overall 72 percent reduction in hydrocarbons, 80 percent reduction in NO
EPA has considered the relationship of the North Carolina portion of the bi-state Charlotte Area's maintenance plan to the reductions currently required pursuant to CAIR. CAIR was remanded to EPA, and the process of developing a replacement rule is ongoing. However, the remand of CAIR does not alter the requirements of the NO
The NO
All NO
To the extent that the North Carolina submittal relies on CAIR reductions that occurred through 2012, the recent directive from the D.C. Circuit in
Further, in vacating CSAPR and requiring EPA to continue administering CAIR, the D.C. Circuit emphasized that the consequences of vacating CAIR “might be more severe now in light of the reliance interests accumulated over the intervening four years.”
For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate the North Carolina portion of the bi-state Charlotte Area to attainment for the 1997 8-hour ozone NAAQS, NC DAQ submitted a SIP revision to provide for the maintenance of the 1997 8-hour ozone NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA believes that this maintenance plan meets the requirements for approval under section 175A of the CAA.
Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future 1997 8-hour ozone violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed more fully below, EPA finds that North Carolina's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the North Carolina SIP.
The bi-state Charlotte Area attained the 1997 8-hour ozone NAAQS based on quality-assured monitoring data for the 3-year period from 2008–2010. North Carolina selected 2010 as the attainment emissions inventory year. The attainment inventory identifies a level of emissions in the Area that is sufficient to attain the 1997 8-hour ozone NAAQS. North Carolina began development of the attainment inventory by first generating a baseline emissions inventory for the State's portion of the bi-state Charlotte Area. As noted above, the year 2010 was chosen as the base year for developing a comprehensive emissions inventory for NO
The emissions inventory is composed of four major types of sources: point, area, on-road mobile, and non-road mobile. The complete descriptions of how the inventories were developed are discussed in the Appendix B of the March 28, 2013, submittal, which can be found in the docket for this action. Point source emissions are tabulated from data collected by direct on-site measurements of emissions or from mass balance calculations utilizing emission factors from EPA's AP–42 or stack test results. For each projected year's inventory, point sources are adjusted by growth factors based on Standard Industrial Classification codes generated using growth patterns obtained from County Business Patterns. For the electric generating utility sources, the estimated projected future year emissions were based on information provided by the utility company. For the sources that report to the USEPA's Clean Air Markets Division, the actual 2010 average summer day emissions were used. For the other Title V sources, the 2009 data was used which was the latest data available. For the small sources that only report emissions every 5 years, the most recently reported data was used and assumed to be equivalent to 2009 emissions since these sources do not vary much from year to year. The 2009 emissions data was grown to 2010 using the USEPA's EGAS model.
For area sources, emissions are estimated by multiplying an emission factor by some known indicator of collective activity such as production, number of employees, or population. For each projected year's inventory, area source emissions are changed by population growth, projected production growth, or estimated employment growth.
The non-road mobile sources emissions are calculated using EPA's NONROAD2008a model, with the exception of the railroad locomotives and aircraft engine. For each projected year's inventory, the emissions are estimated using EPA's NONROAD2008a model with activity input such as projected landing and takeoff data for aircraft and national fuel use from the Energy Information Administration for locomotives.
For highway mobile sources, EPA's Motor Vehicle Emission Simulator (MOVES) mobile model is run to generate emissions. The MOVES model includes the road class vehicle miles traveled (VMT) as an input file and can directly output the estimated emissions. For each projected year's inventory, the highway mobile sources emissions are calculated by running the MOVES mobile model for the future year with the projected VMT to generate emissions that take into consideration expected Federal tailpipe standards, fleet turnover, and new fuels.
The 2010 NO
The March 28, 2013, submittal updates the maintenance plan included in the November 2, 2011, maintenance plan for the North Carolina portion of the Area. The maintenance plan:
(i) Shows compliance with and maintenance of the 1997 8-hour ozone NAAQS by providing information to support the demonstration that current and future emissions of NO
(ii) Uses 2010 as the attainment year and includes future emissions inventory projections for 2013, 2016, 2019, 2022, and 2025.
(iii) Identifies an “out year” at least 10 years (and beyond) after the time necessary for EPA to review and approve the maintenance plan. Per 40 CFR part 93, NO
(iv) Provides actual and projected emissions inventories, in tons per day (tpd), for the North Carolina portion of the bi-state Charlotte Area, as shown in Tables 2 through 4 below.
Tables 2 through 4 summarize the 2010 and future projected emissions of NO
As discussed in section VI of this proposed rulemaking, a safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. North Carolina selected 2010 as the attainment emissions inventory year for the North Carolina portion of the bi-state Charlotte Area. North Carolina calculated safety margins in its submittal for years 2013, 2016, 2019, 2022, and 2025. The State has decided to allocate a safety margin to the 2013 and 2025 MVEB for the bi-state Charlotte Area. For the year 2013, the NO
The State has decided to allocate a portion of the safety margin to the MVEBs to allow for unanticipated growth in VMT, changes and uncertainty in vehicle mix assumptions, etc, that will influence the emission estimations. NC DAQ developed and implemented a four-step approach for determining a factor to use to calculate the amount of safety margin to apply to the MVEBs. The MVEBs to be used for transportation conformity proposes is discussed in section VI. This allocation and the resulting available safety margin for the North Carolina portion of the bi-state Charlotte Area are discussed further in section VI of this proposed rulemaking.
There are currently seven monitors measuring ozone in the North Carolina portion of the bi-state Charlotte
The State of North Carolina, through NC DAQ, has the legal authority to enforce and implement the requirements of the North Carolina portion of the Area 1997 8-hour ozone maintenance plan. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future ozone attainment problems.
The large stationary sources are required to submit an emissions inventory annually to NC DAQ or MCAQ. NC DAQ will commit to review these emissions inventories to determine if any unexpected growth in NO
Additionally, under the Consolidated Emissions Reporting Rule (CERR) and Air Emissions Reporting Requirements (AERR), NC DAQ is required to develop a comprehensive, annual, statewide emissions inventory every three years that is due twelve to eighteen months after the completion of the inventory year. The CERR and AERR inventory years are within a year of the baseline, interim, and final years of the maintenance plan. Therefore, NC DAQ commits to compare the CERR and AERR inventories as they are developed with the maintenance plan to determine if additional steps are necessary for continued maintenance of the 1997 8-hour ozone NAAQS in this Area.
The contingency measures are designed to promptly correct a violation of the NAAQS that occurs after redesignation. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by the state. A state should also identify specific indicators to be used to determine when the contingency measures need to be implemented. The maintenance plan must include a requirement that a state will implement all measures with respect to control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d).
In the November 2, 2011, and March 28, 2013, submittals, North Carolina affirms that all programs instituted by the State and EPA will remain enforceable and that sources are prohibited from reducing emissions controls following the redesignation of the Area. The contingency plan included in the submittal includes a triggering mechanism to determine when contingency measures are needed and a process of developing and implementing appropriate control measures. The primary trigger of the contingency plan will be a violation of the 1997 8-hour ozone NAAQS (i.e., when the three-year average of the 4th highest values is equal to or greater than 0.085 ppm at a monitor in the Area). The trigger date will be 60 days from the date that the State observes a 4th highest value that, when averaged with the two previous ozone seasons' fourth highest values, would result in a three-year average equal to or greater than 0.085 ppm.
The secondary trigger will apply where no actual violation of the 1997 8-hour ozone NAAQS has occurred, but where the State finds monitored ozone levels indicating that an actual ozone NAAQS violation may be imminent. A pattern will be deemed to exist when there are two consecutive ozone seasons in which the 4th highest values are 0.085 ppm or greater at a single monitor within the Area. The trigger date will be 60 days from the date that the State observes a 4th highest value of 0.085 ppm or greater at a monitor for which the previous season had a 4th highest value of 0.085 ppm or greater.
Once the primary or secondary trigger is activated, the Planning Section of the NC DAQ, in consultation with SC DHEC and MCAQ, shall commence analyses including trajectory analyses of high ozone days and an emissions inventory assessment to determine those emission control measures that will be required for attaining or maintaining the 1997 8-hour ozone NAAQS. By May 1 of the year following the ozone season in which the primary or secondary trigger has been activated, North Carolina will complete sufficient analyses to begin adoption of necessary rules for ensuring attainment and maintenance of the 1997 8-hour ozone NAAQS. The rules would become State effective by the following January 1, unless legislative review is required.
At least one of the following contingency measures will be adopted and implemented upon a primary triggering event:
• NO
• diesel inspection and maintenance program;
• implementation of diesel retrofit programs, including incentives for performing retrofits;
• additional controls in upwind areas.
Similarly, the tertiary trigger will not be an actual violation of the 1997 8-hour ozone NAAQS. This trigger will be a first alert as to a potential air quality problem on the horizon. The trigger will be activated when a monitor in the Area has a 4th highest value of 0.085 ppm or greater, starting the first year after the maintenance plan has been approved. The trigger date will be 60 days from the date that the State observes a 4th highest value of 0.085 ppm or greater at any monitor.
Once the tertiary trigger is activated, the Planning Section of the NC DAQ, in consultation with the SC DHEC and MCAQ, shall commence analyses including meteorological evaluation, trajectory analyses of high ozone days, and emissions inventory assessment to understand why a 4th highest exceedance of the standard has occurred. Once the analyses are completed, the NC DAQ will work with SC DHEC, MCAQ and the local air awareness program to develop an outreach plan identifying any additional voluntary measures that can be
EPA has concluded that the maintenance plan adequately addresses the five basic components of a maintenance plan: attainment inventory, monitoring network, verification of continued attainment, and a contingency plan. Therefore, the maintenance plan SIP revision submitted by North Carolina for the State's portion of the Area meets the requirements of section 175A of the CAA and is approvable.
Under section 176(c) of the CAA, new transportation plans, programs, and projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the state's air quality plan that addresses pollution from cars and trucks. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any interim milestones. If a transportation plan does not conform, most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP. The regional emissions analysis is one, but not the only, requirement for implementing transportation conformity. Transportation conformity is a requirement for nonattainment and maintenance areas. Maintenance areas are areas that were previously nonattainment for a particular NAAQS but have since been redesignated to attainment with an approved maintenance plan for that NAAQS.
Under the CAA, states are required to submit, at various times, control strategy SIPs and maintenance plans for nonattainment areas. These control strategy SIPs (including RFP and attainment demonstration) and maintenance plans create MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. Per 40 CFR part 93, a MVEB must be established for the last year of the maintenance plan. A state may adopt MVEBs for other years as well. The MVEB is the portion of the total allowable emissions in the maintenance demonstration that is allocated to highway and transit vehicle use and emissions.
As part of the consultation process on setting MVEBs, the NC DAQ discussed several options for setting the geographic extent of the MVEBs with the transportation partners. NC DAQ requested feedback on these options or other alternatives for consideration from the transportation partners. NC DAQ received feedback from only two of the transportation partners. As part of the public comment process, the NC DAQ provided several options for establishing the MVEBs.
After considering the comments received, the NC DAQ chose to establish subarea MVEBs based on geographical areas that correspond to the Metropolitan Planning Organization (MPO) and/or Rural Planning Organization (RPO) boundaries. This option is consistent with the Cabarrus-Rowan MPO (CRMPO) request and takes into consideration two of the comments from Mecklenburg-Union MPO (MUMPO). NC DAQ believes that this option is a good compromise between how MVEBs have been established in the past, addressing NC DAQ's concern with Mecklenburg County's on-road mobile source emissions and the preferences of the transportation partners. Further, NC DAQ believes this approach provides additional flexibility to the transportation partners while providing adequate assurance that the 1997 8-hour ozone NAAQS will be maintained in the Metrolina nonattainment area. Accordingly, NC DAQ established MVEBs for the CRMPO (Cabarrus and Rowan Counties), for the Gaston Urban Area MPO and Lake Norman RPO (Gaston, Iredell, and Lincoln Counties), and for the MUMPO and Rocky River RPO (Mecklenburg and Union Counties) geographical areas. Tables 5 through 7 below provide the subarea NO
As mentioned above, the North Carolina portion of the Area has chosen to allocate a portion of the available safety margin to the NO
Through this rulemaking, EPA is proposing to approve the subarea MVEBs for NO
When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA may affirmatively find the MVEB contained therein adequate for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB must be used by state and Federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.
EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: Public notification of a SIP submission, a public comment period, and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM
As discussed earlier, North Carolina's March 28, 2013, maintenance plan submission includes NO
EPA intends to make its determination on the adequacy of the 2013 and 2025 subarea MVEBs for the North Carolina portion of the bi-state Charlotte Area for transportation conformity purposes in the near future by completing the adequacy process that was started on February 21, 2013. After EPA finds the 2013 and 2025 MVEBs adequate or approves them, the new subarea MVEBs for NO
As discussed above, section 172(c)(3) of the CAA requires areas to submit a base year emissions inventory. EPA approved the 2002 base year emissions inventory for the North Carolina portion of the bi-state Charlotte Area (as submitted in North Carolina's November 12, 2009, 1997 8-hour ozone attainment demonstration SIP revision) on May 4, 2012.
EPA's proposed actions establish the basis upon which EPA may take final action on the issues being proposed for approval today. Approval of North Carolina's redesignation request would change the legal designation of Cabarrus, Gaston, Iredell, Lincoln, Mecklenburg, Rowan and Union Counties in their entireties, and a portion of Iredell County (Davidson and Coddle Creek Townships) in North Carolina, as found at 40 CFR part 81, from nonattainment to attainment for the 1997 8-hour ozone NAAQS. Approval of North Carolina's request would also incorporate a plan for maintaining the 1997 8-hour ozone NAAQS in the North Carolina portion of the bi-state Charlotte Area through 2025 into the SIP. This maintenance plan includes contingency measures to remedy any future violations of the 1997 8-hour ozone NAAQS and procedures for evaluation of potential violations. The maintenance plan also establishes NO
EPA previously determined that the entire bi-state Charlotte Area was attaining the 1997 8-hour ozone NAAQS on November 15, 2011, at 76 FR 70656. EPA is now taking two separate but related actions regarding the redesignation and maintenance of the 1997 8-hour ozone NAAQS for the North Carolina portion of the bi-state Charlotte Area. Today's notice of proposed rulemaking is in response to North Carolina's November 2, 2011, SIP revision (as supplemented by a March 28, 2013, SIP revision).
EPA is proposing to determine, based on complete, quality-assured, and certified monitoring data for the 2008–2010 monitoring period that the entire bi-state Charlotte Area is attaining the 1997 8-hour ozone NAAQS. Further, based on NC DAQ's November 2, 2011, SIP revision (as supplemented by a March 28, 2012, SIP revision), EPA is proposing to determine that the North Carolina portion of the bi-state Charlotte Area has met the criteria under CAA section 107(d)(3)(E) for redesignation from nonattainment to attainment for the 1997 8-hour ozone NAAQS. On this basis, EPA is proposing to approve North Carolina's redesignation request for the North Carolina portion of the bi-state Charlotte Area.
EPA is also proposing to approve the maintenance plan for the North Carolina portion of the Area, including the NO
If finalized, approval of the redesignation request would change the official designation of Cabarrus, Gaston, Iredell, Lincoln, Mecklenburg, Rowan and Union Counties in their entireties, and a portion of Iredell County (Davidson and Coddle Creek Townships) in North Carolina, as found at 40 CFR part 81, from nonattainment to attainment for the 1997 8-hour ozone NAAQS.
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, 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, these proposed actions merely approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For this reason, these proposed actions:
• Are not “significant regulatory action[s]” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• are 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
• do 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);
• do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• are 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
• do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental protection, Air pollution control.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Notification of submission to the Secretary of Agriculture.
This document notifies the public as required by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) that the EPA Administrator has forwarded to the Secretary of the United States Department of Agriculture (USDA) a draft regulatory document concerning Pesticides; Agricultural Worker Protection Standard Revisions. The draft regulatory document is not available to the public until after it has been signed and made available by EPA.
See Unit I. under
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2011–0184, is available at
Jeanne Kasai, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–3240; email address:
Section 25(a)(2)(A) of FIFRA requires the EPA Administrator to provide the Secretary of USDA with a copy of any draft proposed rule at least 60 days before signing it in proposed form for publication in the
No. This document is merely a notification of submission to the Secretary of USDA. As such, none of the regulatory assessment requirements apply to this document.
Agricultural worker safety, Environmental protection, Farmworker, Pesticide and pests, Pesticide safety training, Pesticide worker safety, Worker protection standard regulations.
Environmental Protection Agency (EPA).
Proposed rule; notice of intent.
The Environmental Protection Agency (EPA) Region 1 is issuing a Notice of Intent to Delete the Cannon Engineering Corp. (CEC), Superfund Site (Site) located in Bridgewater, Massachusetts, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of Massachusetts, through the Massachusetts Department of Environmental Protection (MassDEP), have determined that all appropriate response actions under CERCLA, other than five-year reviews, have been completed. However, this deletion does not preclude future actions under Superfund.
Comments must be received by August 26, 2013.
Submit your comments, identified by Docket ID no. EPA–HQ–SFUND–1983–0002, by one of the following methods:
•
•
•
•
Derrick Golden, Remedial Project Manager, U.S. Environmental Protection Agency, Region 1 New England, 5 Post Office Square, Mail code OSRR07–4, Boston, MA 02109–3912, (617) 918–1448,
In the “Rules and Regulations” Section of today's
For additional information, see the direct final Notice of Deletion which is located in the Rules section of this
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Department of Energy.
Notice of reopening of public comment period.
On June 12, 2013, the Department of Energy (DOE) published a proposed rulemaking in the
Written comments must be received on or before close of business August 23, 2013.
You may submit comments, identified by “DEAR: Export Control and RIN 1991–AB99,” by any of the following methods:
•
•
•
Lawrence Butler, (202) 287–1945 or
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by August 26, 2013 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that the Animal and Plant Health Inspection Service has prepared a preliminary determination regarding a request from GENECTIVE SA, seeking a determination of nonregulated status of maize designated as VCO–01981–5, which has been genetically engineered for resistance to the herbicide glyphosate. We are also making available for public review our plant pest risk assessment, environmental assessment, and preliminary finding of no significant impact for the preliminary determination of nonregulated status.
We will consider any information that we receive on or before August 26, 2013.
You may submit any information by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Supporting documents are also available on the APHIS Web site at http://www.aphis.usda.gov/biotechnology/petitions_table_pending.shtml under APHIS Petition Number 11–342–01p.
Dr. Rebecca Stankiewicz Gabel, Chief, Biotechnology Environmental Analysis Branch, Environmental Risk Analysis Programs, Biotechnology Regulatory Services, APHIS, 4700 River Road Unit 147, Riverdale, MD 20737–1236; (301) 851–3927, email:
Under the authority of the plant pest provisions of the Plant Protection Act (7 U.S.C. 7701
The regulations in § 340.6(a) provide that any person may submit a petition to the Animal and Plant Health Inspection Service (APHIS) seeking a determination that an article should not be regulated under 7 CFR part 340. APHIS received a petition (APHIS Petition Number 11–342–01p) from GENECTIVE SA of Chappes, France, seeking a determination of nonregulated status of maize (
According to our process
APHIS received 79 comments on the petition. Several of these comments included electronic attachments consisting of a consolidated document of many identical or nearly identical letters, for a total of 4,693 comments. Issues raised during the comment period include outcrossing and cross-pollination concerns and effects of herbicide use, such as the development of herbicide-resistant weeds and effects on non-target organisms. APHIS has evaluated the issues raised during the comment period and, where appropriate, has provided a discussion of these issues in our environmental assessment (EA).
After public comments are received on a completed petition, APHIS evaluates those comments and then provides a second opportunity for public involvement in our decisionmaking process. According to our public review process (see footnote 1), the second opportunity for public involvement follows one of two approaches, as described below.
If APHIS decides, based on its review of the petition and its evaluation and analysis of comments received during the 60-day public comment period on the petition, that the petition involves a GE organism that raises no substantive new issues, APHIS will follow Approach 1 for public involvement. Under Approach 1, APHIS announces in the
If APHIS decides, based on its review of the petition and its evaluation and analysis of comments received during the 60-day public comment period on the petition, that the petition involves a GE organism that raises substantive new issues, APHIS will follow Approach 2. Under Approach 2, APHIS first solicits written comments from the public on a draft EA and PPRA for a 30-day comment period through the publication of a
As part of our decisionmaking process regarding a GE organism's regulatory status, APHIS prepares a PPRA to assess the plant pest risk of the article. APHIS also prepares the appropriate environmental documentation—either an EA or an environmental impact statement—in accordance with NEPA, to provide the Agency with a review and analysis of any potential environmental impacts associated with the petition request.
APHIS has prepared a PPRA and has concluded that maize event VCO–01981–5 is unlikely to pose a plant pest risk. In section 403 of the Plant Protection Act, “plant pest” is defined as any living stage of any of the following that can directly or indirectly injure, cause damage to, or cause disease in any plant or plant product: A protozoan, a nonhuman animal, a parasitic plant, a bacterium, a fungus, a virus or viroid, an infectious agent or
APHIS has prepared an EA in which we present two alternatives based on our analysis of data submitted by GENECTIVE SA, a review of other scientific data, field tests conducted under APHIS oversight, and comments received on the petition. APHIS is considering the following alternatives: (1) Take no action, i.e., APHIS would not change the regulatory status of maize event VCO–01981–5 and it would continue to be a regulated article, or (2) make a determination of nonregulated status of maize event VCO–01981–5.
The EA was prepared in accordance with (1) NEPA, as amended (42 U.S.C. 4321
Based on APHIS' analysis of field and laboratory data submitted by GENECTIVE SA, references provided in the petition, peer-reviewed publications, information analyzed in the EA, the PPRA, comments provided by the public, and discussion of issues in the EA in response to those public comments, APHIS has determined that maize event VCO–01981–5 is unlikely to pose a plant pest risk. We have therefore reached a preliminary decision to make a determination of nonregulated status of maize event VCO–01981–5, whereby maize event VCO–01981–5 would no longer be subject to our regulations governing the introduction of certain GE organisms.
We are making available for a 30-day review period APHIS' preliminary regulatory determination of maize event VCO–01981–5, along with our PPRA, EA, and preliminary FONSI for the preliminary determination of nonregulated status. The EA, preliminary FONSI, PPRA, and our preliminary determination for maize event VCO–01981–5, as well as the GENECTIVE SA petition and the comments received on the petition, are available as indicated under
After the 30-day review period closes, APHIS will review and evaluate any information received during the 30-day review period. If, after evaluating the information received, APHIS determines that we have not received substantive new information that would warrant APHIS altering our preliminary regulatory determination or FONSI, substantially changing the proposed action identified in the EA, or substantially changing the analysis of impacts in the EA, APHIS will notify the public through an announcement on our Web site of our final regulatory determination. If, however, APHIS determines that we have received substantive new information that would warrant APHIS altering our preliminary regulatory determination or FONSI, substantially changing the proposed action identified in the EA, or substantially changing the analysis of impacts in the EA, then APHIS will notify the public of our intent to conduct additional analysis and to prepare an amended EA, a new FONSI, and/or a revised PPRA, which would be made available for public review through the publication of a notice of availability in the
7 U.S.C. 7701–7772 and 7781–7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a new collection to obtain data on how State and local WIC agencies calculate NSA costs; how recent Program changes have impacted NSA costs; and how administrative costs and policies compare to those of Supplemental Nutrition Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF).
Written comments must be received on or before September 24, 2013.
Comments are invited on (a) whether the proposed data 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, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Written comments may be sent to: Dr. Melissa Abelev, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Dr. Melissa Abelev at 703–305–2209 or via email to
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5:00 p.m., Monday through Friday) at 3101 Park Center Drive, Room 1014, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Dr. Melissa Abelev at 703–305–2209.
NSA costs, the focus of this study, are the direct and indirect costs, which State and local agencies determine to be necessary to support WIC Program operations, exclusive of food costs. NSA costs include, but are not limited to, the costs of Program administration, start-up, monitoring, auditing, the development of and accountability for food delivery systems, nutrition education and breastfeeding promotion and support, outreach, certification, and developing and printing food instruments and cash-value vouchers.
The current federal WIC regulations are designed to encourage women to breastfeed and to provide appropriate nutritional support for WIC participants. As part of these provisions, States must spend a minimum amount of grant funds, as determined by a national formula, on nutrition education and breastfeeding support services.
The last study on NSA costs took place in 2000. Since then, there have been many changes in the WIC Program—from new food packages, to the Value Enhanced Nutrition Assessment (VENA), to Management Information System (MIS) upgrades, and the start of the mandated conversion to Electronic Benefit Transfer (EBT) cards—all of which have impacted NSA costs. A census of state and local agencies will be conducted to provide insight into how NSA grant funds are used and have been impacted by recent changes. It will also provide a point of comparison with the administrative costs of other federal assistance programs by collecting data from state and local officials overseeing SNAP and TANF.
Data will be collected in four ways: (1) The collection of extant WIC State agency documents as summarized annually on FNS Forms 798 and 798–A (currently approved under 0584–0045); (2) a web survey of all WIC State and local agencies (preceded by a letter of introduction and recruitment); (3) key informant interviews with WIC administrators in 14 WIC State agencies plus interviews with 32 local agency directors within these State agencies; and (4) key informant interviews with state SNAP and TANF officials in nine jurisdictions plus interviews with two local SNAP/TANF agency officials (preceded by a letter of introduction and recruitment).
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This is a new collection for Enhancing Completion Rates for SNAP Quality Control Reviews.
Written comments must be received on or before September 24, 2013.
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, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology.
Comments may be sent to Steven Carlson, Office of Research and Analysis, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Steven Carlson at 703–305–2576 or via email to
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5:00 p.m. Monday through Friday) at 3101 Park Center Drive, Room 1014, Alexandria, VA 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Steven Carlson at 703–305–2017.
Section 17 [7 U.S.C. 2026] (a)(1) of the Food and Nutrition Act of 2008, provides general legislative authority for the planned data collection. It authorizes the Secretary of Agriculture to enter into contracts with private institutions to undertake research that will help improve the administration and effectiveness of SNAP in delivering nutrition-related benefits.
States conduct monthly quality control (QC) reviews of a statistical sample of households participating in SNAP to assess the validity of SNAP cases and, ultimately, the error rate for SNAP. This requires completing as many reviews as possible. However, beginning in 1985, the completion rate of sampled QC reviews decreased nationally, reaching a low in FY 2006. The completion rate has increased somewhat since then, but not to previous levels. Completion rates vary considerably among States as well. This research will identify the factors associated with incomplete reviews in active SNAP cases and recommend ways to enhance completion rates for SNAP QC reviews.
Primary data collected from persons involved in conducting and monitoring the QC reviews and extant State administrative data, will be analyzed to compare information across the States; provide descriptive estimates of the contribution to payment error associated with incomplete reviews; and assess the need to adjust the current procedures for treating incomplete cases.
The information collection includes site visits at six State agencies, in-depth (semi-structured) interviews with SNAP QC staff during those site visits, and Web and telephone interviews with SNAP QC staff in the remaining 47 States not being visited. The SNAP QC director, up to two SNAP QC supervisors and up to five State QC reviewers from each State will be interviewed.
The specific research objectives are to: describe the process of conducting a QC review at the State and Federal levels; describe the characteristics of incomplete cases and compare them to complete cases using extant administrative case file data; describe the challenges and best practices in the QC review process at the State level; determine whether incomplete cases are being reviewed and processed correctly; determine the impact of incomplete cases on overall payment error; and determine the extent to which incomplete cases bias the data in the QC database.
State Employees: Respondent groups identified include (1) State QC directors, if the position exists or State SNAP directors, in all 53 SNAP States; (2) State QC supervisors in 53 SNAP States, up to 2 per State (if more than 2 in a State, selected as a sample of convenience); and (3) State QC reviewers from 53 SNAP States, up to 5 per State (if more than 5 in a State, selected as a sample of convenience).
The total estimated number of respondents is 424. This includes 53 State QC or State SNAP directors (1 in the pretest, 100 percent of whom will complete interviews; 6 in person, 100 percent of whom will complete interviews; and 46 online or by telephone, 78 percent of whom will complete surveys); 106 State QC supervisors (3 in the pretest, 100 percent of whom will complete interviews; 12 in person, 100 percent of whom will complete interviews; and 91 online or by telephone, 81 percent of whom will complete surveys); and 265 State QC reviewers (5 in the pretest, 100 percent of whom will complete interviews; 30 in person, 100 percent of whom will complete interviews; and 230 online or by telephone, 81 percent of whom will complete surveys).
All respondents (State SNAP QC directors or State SNAP directors, State SNAP QC supervisors, and State SNAP QC reviewers) will respond once each, either one in-person interview or one Web or telephone survey. In addition, all SNAP QC directors will be contacted with an advance letter and six will receive follow-up communications to arrange site visits.
The estimated total annual responses is 1,040, including initial recruitment and coordination communications, pretests and completed interviews and surveys.
Response times may vary from 0.05 to 1 hour depending on actual activity and respondent group. The estimated time per interview is 0.5 hours to 1 hour, depending on respondent group and interview mode, as shown in the table below.
The estimated total annual burden on respondents is 255.60 hours (including recruitment communications and completed and attempted interviews and surveys). See the table below for estimated total annual burden for each type of respondent.
Food and Nutrition Service, USDA.
Notice.
This notice announces the annual adjustments to the national average payment rates for meals and snacks served in child care centers, outside-school-hours care centers, at-risk afterschool care centers, and adult day care centers; the food service payment rates for meals and snacks served in day care homes; and the administrative reimbursement rates for sponsoring organizations of day care homes, to reflect changes in the Consumer Price Index. Further adjustments are made to these rates to reflect the higher costs of providing meals in the States of Alaska and Hawaii. The adjustments contained in this notice are made on an annual basis each July, as required by the laws and regulations governing the Child and Adult Care Food Program.
These rates are effective from July 1, 2013 through June 30, 2014.
Tina Namian, Section Head, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302–1594, 703–305–2590.
The terms used in this notice have the meanings ascribed to them in the Child and Adult Care Food Program regulations, 7 CFR part 226.
Pursuant to sections 4, 11, and 17 of the Richard B. Russell National School Lunch Act (42 U.S.C. 1753, 1759a and 1766), section 4 of the Child Nutrition Act of 1966 (42 U.S.C. 1773) and 7 CFR 226.4, 226.12 and 226.13 of the Program regulations, notice is hereby given of the new payment rates for institutions participating in the Child and Adult Care Food Program (CACFP). These rates are in effect during the period, July 1, 2013 through June 30, 2014.
As provided for under the law, all rates in the CACFP must be revised annually, on July 1, to reflect changes in the Consumer Price Index (CPI), published by the Bureau of Labor Statistics of the United States Department of Labor, for the most recent 12-month period. In accordance with this mandate, the United States Department of Agriculture (USDA) last published the adjusted national average payment rates for centers, the food service payment rates for day care homes, and the administrative reimbursement rates for sponsoring organizations of day care homes, for the period from July 1, 2012 through June 30, 2013, on July 24, 2012, in the
The following national average payment factors and food service payment rates for meals and snacks are in effect from July 1, 2013 through June 30, 2014. All amounts are expressed in dollars or fractions thereof. Due to a higher cost of living, the reimbursements for Alaska and Hawaii are higher than those for all other States. The District of Columbia, Virgin Islands, Puerto Rico, and Guam use the figures specified for the contiguous States. These rates do not include the value of USDA foods or cash-in-lieu of USDA foods which institutions receive as additional assistance for each lunch or supper served to participants under the Program. A notice announcing the value of USDA foods and cash-in-lieu of USDA foods is published separately in the
Payments for breakfast served are:
Payments for lunch or supper served are:
Payments for snack served are:
Payments for breakfast served are:
Payments for lunch or supper served are:
Payments for snack served are:
Monthly administrative payments to sponsors for each sponsored day care home are:
The following chart illustrates the national average payment factors and food service payment rates for meals and snacks in effect from July 1, 2013 through June 30, 2014.
The changes in the national average payment rates for centers reflect a 2.27 percent increase during the 12-month period, May 2012 to May 2013, (from 237.262 in May 2012, as previously published in the
The changes in the food service payment rates for day care homes reflect a 0.77 percent increase during the 12-month period, May 2012 to May 2013, (from 231.518 in May 2012, as previously published in the
The changes in the administrative reimbursement rates for sponsoring organizations of day care homes reflect a 1.36 percent increase during the 12-month period, May 2012 to May 2013, (from 229.815 in May 2012, as previously published in the
The total amount of payments available to each State agency for distribution to institutions participating in CACFP is based on the rates contained in this notice.
This action is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 601–612) and thus is exempt from the provisions of that Act. This notice has been determined to be exempt under Executive Order 12866.
CACFP is listed in the Catalog of Federal Domestic Assistance under No. 10.558 and is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR Part 3015, Subpart V, and final rule related notice published at 48 FR 29114, June 24, 1983.)
This notice has been determined to be not significant and was reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866. This notice imposes no new reporting or recordkeeping provisions that are subject to OMB review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3518).
Sections 4(b)(2), 11a, 17(c) and 17(f)(3)(B) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1753(b)(2), 1759a, 1766(f)(3)(B)) and section 4(b)(1)(B) of the Child Nutrition Act of 1966 (42 U.S.C. 1773(b)(1)(B)).
Food and Nutrition Service, USDA.
Notice.
This notice announces the national average value of donated foods or, where applicable, cash in lieu of donated foods, to be provided in school year 2014 (July 1, 2013 through June 30, 2014) for each lunch served by schools participating in the National School Lunch Program (NSLP), and for each lunch and supper served by institutions participating in the Child and Adult Care Food Program (CACFP).
Anne Fiala, Program Analyst, Policy Branch, Food Distribution Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Alexandria, Virginia 22302–1594, or via telephone
(703) 305–2662.
These programs are listed in the Catalog of Federal Domestic Assistance under Nos. 10.555 and 10.558 and are subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V, and final rule related notice published at 48 FR 29114, June 24, 1983.)
This notice imposes no new reporting or recordkeeping provisions that are subject to Office of Management and Budget review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). This action is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 601–612) and thus is exempt from the provisions of that Act. This notice was reviewed by the Office of Management and Budget under Executive Order 12866.
This notice implements mandatory provisions of sections 6(c) and 17(h)(1)(B) of the Richard B. Russell National School Lunch Act (the Act) (42 U.S.C. 1755(c) and 1766(h)(1)(B)). Section 6(c)(1)(A) of the Act establishes the national average value of donated food assistance to be given to States for each lunch served in the NSLP at 11.00 cents per meal. Pursuant to section 6(c)(1)(B), this amount is subject to annual adjustments on July 1 of each year to reflect changes in a three-month average value of the Price Index for Foods Used in Schools and Institutions for March, April, and May each year (Price Index). Section 17(h)(1)(B) of the Act provides that the same value of donated foods (or cash in lieu of donated foods) for school lunches shall also be established for lunches and suppers served in the CACFP. Notice is hereby given that the national average minimum value of donated foods, or cash in lieu thereof, per lunch under the NSLP (7 CFR part 210) and per lunch and supper under the CACFP (7 CFR Part 226) shall be 23.25 cents for the period July 1, 2013 through June 30, 2014.
The Price Index is computed using five major food components in the Bureau of Labor Statistics Producer Price Index (cereal and bakery products; meats, poultry and fish; dairy; processed fruits and vegetables; and fats and oils). Each component is weighted using the relative weight as determined by the Bureau of Labor Statistics. The value of food assistance is adjusted each July 1 by the annual percentage change in a three-month average value of the Price Index for March, April, and May each year. The three-month average of the Price Index increased by 2.0 percent from 200.89 for March, April, and May of 2012, as previously published in the
Sections 6(c)(1)(A) and (B), 6(e)(1), and 17(h)(1)(B) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1755(c)(1)(A) and (B) and (e)(1), and 1766(h)(1)(B)).
Food and Nutrition Service, USDA.
Notice.
This Notice announces the annual adjustments to the “national average payments,” the amount of money the Federal Government provides States for lunches, afterschool snacks and breakfasts served to children participating in the National School Lunch and School Breakfast Programs; to the “maximum reimbursement rates,” the maximum per lunch rate from Federal funds that a State can provide a school food authority for lunches served to children participating in the National School Lunch Program; and to the rate of reimbursement for a half-pint of milk served to non-needy children in a school or institution which participates in the Special Milk Program for Children. The payments and rates are prescribed on an annual basis each July. The annual payments and rates adjustments for the National School Lunch and School Breakfast Programs
These rates are effective from July 1, 2013 through June 30, 2014.
William Wagoner, Section Chief, School Programs Section, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 640, Alexandria, VA 22302 or phone (703) 305–2590.
For the period July 1, 2013 through June 30, 2014, the rate of reimbursement for a half-pint of milk served to a non-needy child in a school or institution which participates in the Special Milk Program is 20.25 cents. This reflects an increase of 6.13 percent in the Producer Price Index for Fluid Milk Products from May 2012 to May 2013 (from a level of 208.8 in May 2012, as previously published in the
As a reminder, schools or institutions with pricing programs that elect to serve milk free to eligible children continue to receive the average cost of a half-pint of milk (the total cost of all milk purchased during the claim period divided by the total number of purchased half-pints) for each half-pint served to an eligible child.
To supplement these section 4 payments, section 11 of the Richard B. Russell National School Lunch Act (42 U.S.C.1759 (a)) provides special cash assistance payments to aid schools in providing free and reduced price lunches. The section 11 National Average Payment Factor for each reduced price lunch served is set at 40 cents less than the factor for each free lunch.
As authorized under sections 8 and 11 of the Richard B. Russell National School Lunch Act (42 U.S.C. 1757 and 1759a), maximum reimbursement rates for each type of lunch are prescribed by the Department in this Notice. These maximum rates are to ensure equitable disbursement of Federal funds to school food authorities.
The following specific section 4, section 11 and section 17A National Average Payment Factors and maximum reimbursement rates for lunch, the afterschool snack rates, and the breakfast rates are in effect from July 1, 2013 through June 30, 2014. Due to a higher cost of living, the average payments and maximum reimbursements for Alaska and Hawaii are higher than those for all other States. The District of Columbia, Virgin Islands, Puerto Rico and Guam use the figures specified for the contiguous States.
In school food authorities which served 60 percent or more free and reduced price lunches in School Year 2011–12, payments are:
School food authorities certified to receive the performance-based cash assistance will receive an additional 6 cents (adjusted annually) added to the above amounts as part of their section 4 payments.
For schools “not in severe need” the payments are:
For schools in “severe need” the payments are:
The following chart illustrates the lunch National Average Payment Factors with the sections 4 and 11 already combined to indicate the per lunch amount; the maximum lunch reimbursement rates; the reimbursement rates for afterschool snacks served in afterschool care programs; the breakfast National Average Payment Factors including “severe need” schools; and the milk reimbursement rate. All amounts are expressed in dollars or fractions thereof. The payment factors and reimbursement rates used for the District of Columbia, Virgin Islands, Puerto Rico and Guam are those specified for the contiguous States.
This action is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 601–612) and thus is exempt from the provisions of that Act.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), no new recordkeeping or reporting requirements have been included that are subject to approval from the Office of Management and Budget.
This notice has been determined to be not significant and was reviewed by the Office of Management and Budget in conformance with Executive Order 12866.
National School Lunch, School Breakfast and Special Milk Programs are listed in the Catalog of Federal Domestic Assistance under No. 10.555, No. 10.553 and No. 10.556, respectively, and are subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR Part 3015, Subpart V, and the final rule related notice published at 48 FR 29114, June 24, 1983).
Sections 4, 8, 11 and 17A of the Richard B. Russell National School Lunch Act, as amended, (42 U.S.C. 1753, 1757, 1759a, 1766a) and sections 3 and 4(b) of the Child Nutrition Act, as amended, (42 U.S.C. 1772 and 42 U.S.C. 1773(b)).
On March 25, 2013, the Piedmont Triad Partnership, grantee of FTZ 230, submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board on behalf of Oracle Flexible Packaging, Inc., within Site 28, in Winston-Salem, North Carolina.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
NAFTA Secretariat, United States Section, International Trade Administration, Department of Commerce.
On June 24, 2013, a Notice of Motion to requesting termination of the panel review of the final results of the U.S. Department of Commerce's 2010 — 2011 New Shipper Antidumping Administrative Review of Seamless Refined Copper Pipe and Tube from Mexico (Secretariat File No. USA–MEX–2012–1904–03) was filed by the Complainant, GD Affiliates S. de R.L. de C.V. Motions consenting to the dismissal were filed by the Petitioner, Cerro Flow Products, LLC, Wieland Copper Products LL,C, and Mueller Copper Tube Co., on July 1, 2013 and the U.S. Investigating Authority, the U.S. Department of Commerce, on July 3, 2013.
Pursuant to the Notice of Motion requesting termination of the panel review by a participant and consented to by all the participants, and pursuant to Rule 71(2) of the Rules of Procedure for Article 1904 Binational Panel Review, the panel review is terminated as of July 3, 2013. A panel has not been appointed to this panel review.
Ellen Bohon, United States Secretary, NAFTA Secretariat, Suite 2061, 14th
Chapter 19 of the North American Free Trade Agreement (“Agreement”) established a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty cases involving imports from a NAFTA country with review by independent binational panels. When a Request for Panel Review is filed, a panel is established to act in place of national courts to review expeditiously the final determination to determine whether it conforms with the antidumping or countervailing duty law of the country that made the determination.
Under Article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United States, the Government of Canada, and the Government of Mexico established Rules of Procedure for Article 1904 Binational Panel Reviews (“Rules”). These Rules were published in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public hearing meeting.
The South Atlantic Fishery Management Council (SAFMC) will hold a public hearing meeting pertaining to: Amendment 5 to the Dolphin Wahoo Fishery Management Plan (FMP); and the Generic Dealer Amendment.
The meeting will be held on August 15, 2013, from 4 p.m. to 6 p.m.
The meeting will be held at the Radisson Airport Hotel, 2081 Post Road, Warwick, RI 02886; telephone: (401) 739–3000.
Kim Iverson, Public Information Officer, SAFMC; telephone: (843) 571–4366 or toll free: (866) SAFMC–10; fax: (843) 769–4520; email:
The items of discussion are as follows:
1. This amendment would revise the Allowable Biological Catches (ABCs), Annual Catch Limits (ACLs), Accountability Measures (AMs) and Annual Catch Targets (ACTs) for Dolphin and Wahoo that were implemented through the Comprehensive ACL Amendment.
2. Additionally, the amendment would revise management framework in the Dolphin Wahoo FMP as well as commercial trip limits for Dolphin.
3. Written comments may be directed to Bob Mahood, Executive Director, SAFMC (see Council address) or via email to:
1. The Generic Dealer Amendment would create a universal federal dealer permit that would be required to purchase all species managed by the SAFMC and the Gulf of Mexico Fishery Management Council (GMFMC).
2. The amendment also includes actions to create new requirements for dealer reporting (frequency and methods) as well as requirements to maintain dealer permits.
3. Written comments may be directed to Bob Mahood, Executive Director, SAFMC (see Council address) or via email to:
Council staff will present an overview of the amendments and will be available for informal discussions and to answer questions. Members of the public will also have the opportunity to go on record to record their comments on the public hearing topics for consideration by the SAFMC and GMFMC.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
Committee for Purchase From People Who Are Blind or Severely Disabled.
Clarification of Sourcing Requirements for Commodities and other Products on the Procurement List that have been identified as Satisfying Government-wide Requirements
The Committee for Purchase From People Who Are Blind or Severely Disabled (operating as the U.S. AbilityOne Commission (Commission)) is clarifying the sourcing requirements for commodities and other products on the Procurement List that have been identified for satisfying Government-wide requirements and thus subject to the AbilityOne Program's Government-wide procurement preference. The full list of products with this Government-wide procurement preference furnished under the auspices of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) and the AbilityOne Program is posted at
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Arlington, VA 22202—4149.
Barry S. Lineback, Telephone 703–603–2118, Fax: 703–603–0655, or email
The Commission previously published a notice in the
In order to take full advantage of the Department of Defense (DoD) 4140.1–R, DoD Supply Chain Materiel Management Regulation, the AbilityOne Program is designating the Defense Logistics Agency (DLA) as an additional contracting activity for products within the A List and B List categories. The DoD 4140.1–R, May 23, 2003, AP7: Appendix 7, Agreement between the Department of Defense and the General Services Administration Governing Supply Management Relationships Under the National Supply System provides DLA the authority to procure and supply certain assigned products for the entire Government within the terms of that Agreement. The AbilityOne Program's addition of DLA as an additional contracting activity for products that have the Procurement List procurement preference across all entities of the Government (A List) or that have purchasing preference across a broad selection of Federal agencies (B List) is supported by this regulation. This change enhances the availability of AbilityOne Program products to Government agencies (civil and military) regardless of which organization (DLA or GSA) manages a particular Federal Supply Classification.
When proposing to add a product to its Procurement List, the Commission's notices published in the
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Addition to and Deletions from the Procurement List.
The Committee is proposing to add a service to the Procurement List that will be provided by a nonprofit agency employing persons who are blind or have other severe disabilities, and deletes services previously provided by such agencies.
Comments Must Be Received on Or Before: August 26, 2013.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia, 22202–4149.
Patricia Briscoe, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
This notice is published pursuant to 41 USC 8503 (a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed addition, the entity of the Federal Government identified in this notice will be required to procure the service listed below from the nonprofit agency employing persons who are blind or have other severe disabilities.
The following service is proposed for addition to the Procurement List for provision by the nonprofit agency listed:
The following services are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds a products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia, 22202–4149.
Patricia Briscoe, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 5/31/2013 (78 FR 32631–32632); 6/7/2013 (78 FR 34350–34351); and 6/14/2013 (78 FR 35874–35875), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or
2. The action will result in authorizing small entities to provide the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 USC 8501–8506) in connection with the products and services proposed for addition to the Procurement List.
Accordingly, the following products and services are added to the Procurement List:
Defense Information Systems Agency, DoD.
Notice to alter a System of Records.
The Defense Information Systems Agency proposes to alter a system of records in its existing inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action will be effective on August 26, 2013 unless comments are received which result in a contrary determination. Comments will be accepted on or before August 26, 2013.
You may submit comments, identified by docket number and title, by any of the following methods:
* Federal Rulemaking Portal:
* Mail: Federal Docket Management System Office, 4800 Mark Center Drive, East Tower, 2nd Floor, Suite 02G09, Alexandria, VA 22350–3100.
Ms. Jeanette Weathers-Jenkins, DISA Privacy Officer, Chief Information Office, 6916 Cooper Avenue, Fort Meade, MD 20755–7901, or by phone at (301) 225–8158.
The Defense Information Systems Agency notices for system of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
Recall Roster/Locator Records (July 6, 2005, 70 FR 38892)
Delete entry and replace with “Defense Information Systems Agency (DISA), Chief Information Office (CIO), 6916 Cooper Ave., Ft. Meade, MD 20755–7901.”
Delete entry and replace with “Civilian employees, military personnel and contractors assigned to DISA.”
Delete entry and replace with “Individual's name, emergency contact information, organizational and home address, work and home telephone numbers, email address, and cell phone number.”
Delete entry and replace with “5 U.S.C. 301, Department Regulations; 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; E.O. 12656, Assignment of Emergency Preparedness Responsibilities; Presidential Decision Directive 67, Enduring Constitutional Government and Continuity of Government Operations; Federal Preparedness Circular 65, Federal Executive Branch Continuity of Operations; and DoD Directive 3020.36, Assignment of National Security Emergency Preparedness (NSEP) Responsibilities to DoD Components.”
Delete entry and replace with “Information is collected and maintained to ensure that DISA has the capability to recall personnel to their place of duty when required, for use in emergency notification, and to perform
Delete entry and replace with “Records may be stored on paper and/or electronic storage media.”
Delete entry and replace with “Retrieve by full name.”
Delete entry and replace with “Records are maintained in a controlled facility. Physical entry is restricted by the use of locks, guards, password protection and is accessible only to authorized personnel. Access to records is limited to person(s) responsible for servicing the record in performance of their official duties and who are properly screened and cleared for need-to-know. Access to computerized data is restricted by Common Access Card (CAC) and/or password which are changed periodically.”
Delete entry and replace with “Records are continuously updated. Records that are no longer current are destroyed by shredding, pulping, macerating, or burning. Obsolete computer records are erased or overwritten.”
Delete entry and replace with “DISA Privacy Officer, Defense Information Systems Agency (DISA), Chief Information Office (CIO), 6916 Cooper Ave, Fort Meade, MD 20755–7901.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Defense Information Systems Agency, Chief Information Office (CIO), 6916 Cooper Ave, Fort Meade, MD 20755–7901.
The full name, home address, and telephone number of the requesting individual will be required to determine if the system contains a record about him or her. As proof of identity the requester must present a current DISA identification badge or a driver's license.”
Delete entry and replace with “Individuals seeking access to information about them contained in this system of records should address written inquiries to the Defense Information Systems Agency, Chief Information Office (CIO), 6916 Cooper Ave, Fort Meade, MD 20755–7901.
The full name, home address, telephone number of the requesting individual will be required to determine if the system contains a record about him or her. As proof of identity the requester must present a current DISA identification badge or a driver's license.”
Delete entry and replace with “DISAs rules for accessing records, for contesting content and appealing initial agency determinations are published in DISA Instruction 210–225–2; 32 CFR part 316; or may be obtained from the DISA Privacy Officer.”
Delete entry and replace with “Information is obtained from the subject individual and official personnel office documents.”
Office of the Inspector General, DoD.
Notice to alter a System of Records.
The Office of the Inspector General proposes to alter a system of records, CIG–16, Defense Case Activity Tracking System (D–CATS), in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. This system records complaints, allegations of wrongdoing, and requests for assistance; documents inquiries; compiles statistical information; provides prompt, responsive and accurate information regarding the status of ongoing cases; provides a record of complaint disposition and records actions taken and notifications of interested parties and agencies.
This proposed action will be effective on August 26, 2013 unless comments are received which result in a contrary determination. Comments will be accepted on or before August 26, 2013.
You may submit comments, identified by docket number and title, by any of the following methods:
*
*
Mark Dorgan, DoD IG FOIA/Privacy Office, Department of Defense, Inspector General, 4800 Mark Center Drive, Alexandria, VA 22350–1500 or telephone: (703) 699–5680.
The Office of the Inspector General notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed systems reports, as required by 5 U.S.C. 552a of the Privacy Act of 1974, were submitted on July 10, 2013, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A–130, “Federal Agency Responsibilities for Maintaining Records about Individuals,” dated February 8, 1996, (February 20, 1996, 61 FR 6427).
DoD Hotline Program Case Files (October 15, 2008, 73 FR 61089).
Delete entry and replace with “Defense Case Activity Tracking System (D–CATS).”
Delete entry and replace with “DoD Hotline, Office of Communications and Congressional Liaison, and Office of the Assistant Inspector General for Administrative Investigations, Office of the Inspector General of the Department of Defense (DoD), 4800 Mark Center Drive, Alexandria, VA 22350–1500.”
Delete entry and replace with “Individual's name, and case number; records resulting from the referral of, and inquiry into, hotline complaints, whistleblower reprisal investigations, improper mental health evaluations and senior official investigations, including the allegations submitted to the DoD Inspector General, referral documents to DoD components, investigative reports, information received from witnesses, records of action taken, disposition of the case, and supporting documentation.”
Delete entry and replace with “Public Law 95–452 as amended, Inspector General Act of 1978; and DoD Directive 5106.01, Inspector General of the Department of Defense.”
Delete entry and replace with “To record complaints, allegations of wrongdoing, and requests for assistance; to document inquiries; to compile statistical information; to provide prompt, responsive and accurate information regarding the status of ongoing cases; to provide a record of complaint disposition and to record actions taken and notifications of interested parties and agencies.
Complaints appearing to involve criminal wrongdoing will be referred to the Defense Criminal Investigative Service or other criminal investigative units of DoD components.”
Delete entry and replace with “By individual's name, subject matter, or case number.”
Delete entry and replace with “Full access is limited to DoD Hotline and Administrative Investigations staff. Read only access is provided to authorized DoD IG personnel consistent with their official duties. Paper and automated records are stored in rooms protected by cipher lock. The automated system is restricted to personnel with designated access, and regular back-ups of data are performed.”
Delete entry and replace with “Hotline case files not referred for further review are destroyed after 2 years. Automated and paper records of Hotline cases referred for investigation, whistleblower reprisal cases and senior official cases are destroyed ten years after case closure.”
Delete entry and replace with “Assistant Inspector General for Administration and Management, Office of the Inspector General of the Department of Defense, 4800 Mark Center Drive, Alexandria, VA 22350–1500.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Chief, Freedom of Information Act Requester Service Center/Privacy Act Office, Assistant Inspector General for Communications and Congressional Liaison, Office of the Inspector General, DoD, 4800 Mark Center Drive, Alexandria, VA 22350–1500.
For verification purposes, individuals shall provide their full name, address, any details that may assist in locating records of the individual and their signature.
In addition, the requester must provide a notarized statement or a signed declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States:
`I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).' (Signature).
If executed within the United States, its territories, possessions, or commonwealths: `I declare under penalty of perjury that the foregoing is true and correct. Executed on (date).' (Signature).”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Chief, Freedom of Information Act Requester Service Center/Privacy Act Office, Assistant Inspector General for Communications and Congressional Liaison, Office of the Inspector General, DoD, 4800 Mark Center Drive, Alexandria, VA 22350–1500.
For verification purposes, individuals shall provide their full name, address, any details that may assist in locating records of the individual and their signature.
In addition, the requester must provide a notarized statement or a signed declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).' (Signature).
If executed within the United States, its territories, possessions, or commonwealths: `I declare under penalty of perjury that the foregoing is true and correct. Executed on (date).' (Signature).”
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Consideration will be given to all comments received by August 26, 2013.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
International and Foreign Language Education, Office of Postsecondary Education, Department of Education.
Notice.
The Department of Education (Department) International and Foreign Language Education (IFLE) announces a joint technical assistance workshop and project directors' meeting to be held in Washington, DC, September 22–24, 2013. The objective for the technical assistance workshop is to provide applicants with guidance on how to develop high-quality grant applications for programs authorized by Title VI of the Higher Education Act (HEA) that the Department expects to hold competitions for in FY 2014.
Cheryl E. Gibbs, IFLE, U.S. Department of Education, 1990 K Street NW., Washington, DC 20006–8521. Telephone: (202) 502–7634 or by email:
If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll free, at 1–800–877–8339.
The technical assistance workshop will provide assistance to applicants for the National Resource Centers (NRC) Program, the Foreign Language and Area Studies (FLAS) Fellowships Program, and the Centers for International Business Education (CIBE) Program, and the Language Resource Centers (LRC) Program. The project directors' meeting will provide assistance to FY 13 grantees of the Undergraduate International Studies and Foreign Language (UISFL) Program.
Workshop sessions include, but are not limited to sessions about the selection criteria, performance measures, program and project evaluation, and competition priorities. Technical assistance information will also include panels that will be open to all participants on topics such as language assessment, education abroad opportunities for students, integrating international education competencies into teacher education programs, outreach to underrepresented groups and institutions, and the role of international education programs in responding to President Obama's goals for achieving global competitiveness and improved college completion rates, among other topics.
The UISFL project directors' meeting will cover Department guidance for grant administration and risk management, budget and project revisions, the challenges facing project directors and key staff in administering their UISFL projects, and best practices gleaned from funded projects. UISFL program staff will discuss strategies for achieving successful project implementation and long-term sustainability, resource leveraging, and activities that could be conducted in coordination with NRC and LRC institutions.
A tentative agenda for the joint meeting is available at
Please be advised that this notice announces only the joint technical assistance workshop and project directors' meeting. The Department has not established deadline dates for any FY 2014 competitions. All FY 2014 competition notices will be published at a later time.
Other Information: Participants from NRC, FLAS, CIBE, and LRC institutions must not use grant funds for any costs associated with the technical assistance workshop. Project directors and participants from FY 13 UISFL grantee institutions are permitted to use grant funds to attend their meeting.
The site for the joint technical assistance workshop and project directors' meeting is accessible to individuals with disabilities. If you need an auxiliary aid or service to participate (e.g., interpreting service, assistive listening device, or materials in an alternative format), notify the contact person listed under
Registration: There is no registration fee for attending this joint meeting. All participants, however, should register online at
Use the “Contact Us” page on the Web site
You may also access documents of the Department published in the
20 U.S.C. §§ 1121–1123 and 1130–1131.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before August 26, 2013.
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2003–0079, by one of the following methods:
•
•
•
•
•
Mr. H. Lynn Dail, Air Quality Policy Division, Office of Air Quality Planning and Standards, Mail Code C539–01, Environmental Protection Agency, T.W. Alexander Drive, Research Triangle Park, NC 27711; telephone number: (919) 541–2363; fax number: 919–541–0824; email address:
The EPA has established a public docket for this ICR under Docket ID No. EPA–HQ–OAR–2003–0079, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the
(ii) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) enhance the quality, utility and clarity of the information to be collected; and
(iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical or other technological collection techniques or other forms of information technology, e.g., by permitting electronic submission of responses. In particular, the EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that the EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under DATES.
7. To ensure proper receipt by the EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date and
The ICR provides a detailed explanation of the agency's estimate, which is only briefly summarized here:
There is neither an increase nor a decrease of hours in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB.
The EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, the EPA will issue another
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Revision to FR Notice Published 06/21/2013; Extending Comment Period from 08/05/213 to 08/30/2013.
Revision to FR Notice Published 07/12/2013; Extending Comment Period from 08/26/2013 to 09/25/2013.
Federal Communications Commission.
Notice; request for comments.
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. 3502 -3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: 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; the accuracy of the Commission's burden estimates; ways to enhance the quality, utility, and clarity of the information collected; 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; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before August 26, 2013. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at 202–395–5167 or via Internet at
Judith B. Herman, Office of Managing Director, FCC, at 202–418–0214.
The Commission adopted rules in this information collection to implement the First Report and Order on Reconsideration issued in CC Docket No. 96–98 implementing parts of sections 251 and 252 of the Telecommunications Act of 1996 that affect local competition. Incumbent local exchange carriers (LECs) are required to offer interconnection, unbundled network elements (UNEs), transport and termination, and wholesale rates for certain services to new entrants. Incumbent LECS must price such services and rates that are cost-based and just and reasonable and provide access to right-of-way as well as establish reciprocal compensation arrangements for the transport and termination of telecommunications traffic.
Section 251(b)(2) of the Communications Act of 1934, as amended, requires LECs to “provide, to the extent technically feasible, number portability in accordance with requirements prescribed by the Commission.” Through the LNP process, consumers have the ability to retain their phone number when switching telecommunications service providers, enabling them to choose a provider that best suits their needs and enhancing competition. In the
The information collected in the standard local service request data fields is necessary to complete simple wireline-to-wireline and intermodal ports within the one business day porting interval mandated by the Commission and will be used to comply with Section 251 of the Telecommunications Act of 1996.
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required b y the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3502–3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: 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; the accuracy of the Commission's burden estimates; ways to enhance the quality, utility, and clarity of the information collected; 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; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be
Direct your PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at 202–395–5167 or via Internet at
Judith B. Herman, Office of Managing Director, FCC, at 202–418–0214.
To implement certain reforms to universal service support, the Commission's Wireline Competition Bureau and the Wireless Telecommunications Bureau in an Order, DA 13–598, adopted the form and content for a survey of urban rates for fixed voice and fixed broadband residential services. The information collected in this survey will be used to establish a rate floor that eligible telecommunications carriers (ETCs) receiving high-cost loop support (HCLS) or frozen high-cost support must meet to receive their full support amounts and to help ensure that universal service support recipients offering fixed voice and broadband services do so at reasonably comparable rates to those in urban areas.
Specifically, the Commission directed the Bureaus to “develop a methodology” to survey a representative sample of facilities-based fixed voice service providers taking into account the relative categories of fixed voice providers as determined in the most recent FCC Form 477 data collection.
“The Commission also delegated authority to conduct an annual survey, in order to specify an appropriate minimum for usage allowances and to adjust such a minimum over time.”
Federal Communications Commission.
Federal Communications Commission.
Notice; request for comments.
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 take this opportunity to comment on the following information collection(s). Comments are requested concerning: 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; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; 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; and ways to further reduce the information burden for small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before September 24, 2013. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Benish Shah, Federal Communications Commission, via the Internet at
Benish Shah, Office of Managing Director, (202) 418–7866.
The Commission now seeks OMB approval for a revision. On May 24, 2012, the Commission released a Report
Board of Governors of the Federal Reserve System.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board of Governors of the Federal Reserve System (Board) its approval authority under the Paperwork Reduction Act (PRA), pursuant to 5 CFR 1320.16, to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board under conditions set forth in 5 CFR 1320 Appendix A.1. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instruments are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Comments must be submitted on or before September 24, 2013.
You may submit comments, identified by FR 1374, by any of the following methods:
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All public comments are available from the Board's Web site at
Additionally, commenters may send a copy of their comments to the OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235 725 17th Street NW., Washington, DC 20503 or by fax to (202) 395–6974.
A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Federal Reserve Board's public Web site at:
Federal Reserve Board Clearance Officer—Cynthia Ayouch—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452–3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263–4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
The following information collection, which is being handled under this delegated authority, has received initial Board approval and is hereby published for comment. At the end of the comment period, the proposed information collection, along with an analysis of comments and recommendations received, will be submitted to the Board for final approval under OMB delegated authority. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;
b. The accuracy of the Federal Reserve's estimate of the burden of the proposed 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 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.
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before August 19, 2013.
Interested parties may file a comment at
Stephen W. Rodger (202–326–3643), FTC, Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for July 19, 2013), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before August 19, 2013. Write AGeneral Electric, File No. 131 0069” on your comment. Your comment B including your name and your state B will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any A[t]rade secret or any commercial or financial information which * * * is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write AGeneral Electric, File No. 131 0069” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary,
Visit the Commission Web site at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Order (“Consent Agreement”) with General Electric Company (“GE”), which is designed to remedy the anticompetitive effects of its proposed acquisition of the aviation business of Avio S.p.A. (“Avio”). Under the terms of the proposed Consent Agreement, GE would be required, among other things, to avoid interference with Avio's design and development work on a critical engine component—the accessory gearbox (“AGB”)—on the Pratt & Whitney PW1100G engine for the Airbus S.A.S. (“Airbus”) A320neo aircraft. GE and Pratt & Whitney are the only manufacturers of engines for the A320neo, and compete head-to-head for sales of engines to purchasers of that aircraft.
The proposed Consent Agreement has been placed on the public record for thirty days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty days, the Commission will again review the proposed Consent Agreement and the comments received, and will decide whether it should withdraw from the proposed Consent Agreement, modify it, or make final the accompanying Decision and Order (“Order”).
Pursuant to an Agreement dated December 21, 2012, GE proposes to acquire Avio's aviation business for approximately $4.3 billion. The Commission's Complaint alleges that the proposed acquisition is in violation of Section 5 of the FTC Act, as amended, 15 U.S.C 45, and that the acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the FTC Act, as amended, 15 U.S.C. 45, by lessening the competition in the worldwide market for engine sales on the A320neo aircraft. That is because the acquisition would provide GE with the ability and incentive to disrupt the design and certification of the AGB for the Pratt & Whitney PW1100G engine, which in turn would provide GE with market power in the market for engines for the A320neo aircraft, allowing it to raise prices, reduce quality, or delay delivery of engines to A320neo customers. The proposed Consent Agreement will remedy the alleged violations by eliminating GE's ability and incentive to engage in such anticompetitive conduct post-merger.
GE, headquartered in Connecticut, is one of the world's largest companies, with business segments serving a wide variety of industries throughout the globe. GE's aviation segment, among other things, designs and manufactures jet engines for commercial and military aircraft. GE sells narrow-body commercial aircraft engines through its 50% stake in CFM International (“CFM”), a joint venture with the French engine manufacturer Snecma S.A.
Avio is headquartered in Torino, Italy, and is an important designer and manufacturer of component parts for civil and military aircraft engines. Avio provides, among other things, structural parts, gearboxes, and electrical systems for aircraft engines. Avio is currently the sole designer of the AGB on the Pratt & Whitney PW1100G engine.
AGBs use the mechanical power of the rotating turbine shaft in a jet engine to power various accessory systems needed by the engine and the aircraft, including oil and hydraulic pumps and electrical systems. Although AGBs on different aircraft engines perform similar functions, AGBs are designed for the specific engine in which it will be used to account for the shape of that engine, the position of the AGB in the engine, and the configuration and specifications of the various accessory systems the gearbox will power. Because AGBs require significant cost and time to develop, and because the aircraft engine—with its AGB—must be tested extensively and certified for flight by aviation authorities before it can be put into service, an engine manufacturer cannot quickly or easily replace an engine's AGB if it encounters difficulties with its component supplier.
Avio has the sole design responsibility for the AGB on the forthcoming Pratt & Whitney PW1100G engine, which will be one of two engines available on the Airbus A320neo aircraft. While Avio is in the advanced stages of designing this AGB, further development and testing must be completed before the AGB and the PW1100G engine will be certified for use by aviation authorities. Beyond that, further design work may be necessary even after the AGB and engine receive certification. Pratt & Whitney has no viable alternative to continuing to work with Avio to develop the AGB for the PW1100G, even after its rival engine manufacturer, GE, acquires Avio.
Aircraft engines provide the thrust necessary for flight and must be specifically engineered for the requirements and mission profile of the aircraft on which they are to be installed. When designing a new airplane, an aircraft manufacturer typically approaches engine manufacturers as potential suppliers and selects one or more to provide engines for the aircraft under development. These engines become customers' only options for that aircraft platform. Airbus chose to work with only Pratt & Whitney and CFM to develop engines for the A320neo platform. Aside from the PW1100G, the only other engine available for the Airbus A320neo is the CFM Leap 1–A engine, in which GE has a 50% interest. These two engines compete for sales on the A320neo aircraft platform, and because other engine manufacturers could not design, or attain certification for, an alternate A320neo engine within several years, purchasers of this aircraft do not have other viable substitutes for these engines.
The relevant geographic market in which to analyze the effects of the proposed transaction is the entire world. Engine component developers located around the world supply components to engine manufacturers who are also located worldwide. The aircraft manufacturers themselves are located across the globe, sell to customers worldwide, and do not significantly alter aircraft features for specific national markets.
Entry into the relevant markets would not be timely, likely, or sufficient in magnitude to deter or counteract the anticompetitive effects likely to result from the proposed transaction. AGB design for large commercial aircraft like the A320neo requires significant
The proposed transaction, if consummated, would provide GE with both the ability and the incentive to disrupt the design and certification of the Avio-supplied AGB for the Pratt & Whitney PW1100G engine. A delay in the development of the PW1100G engine would substantially increase GE's market power for the sale of engines for the A320neo, as it manufactures the only other engine option for that aircraft. In response to such a delay, a significant number of Pratt &Whitney customers would likely switch to the CFM Leap 1–A, and GE would likely use its increased market power to raise price, reduce quality, or delay delivery of engines to customers of the A320neo aircraft.
The proposed Consent Agreement remedies the acquisition's likely anticompetitive effects by removing GE's ability and incentive to disrupt Avio's AGB work during the design, certification, and initial production ramp-up phase. The proposed Consent Agreement incorporates portions of a recent commercial agreement between GE, Avio, and Pratt & Whitney and Pratt & Whitney's original contract with Avio that relate to the design and development of the AGB and related parts for the PW1100G. A breach by GE of these aspects of these agreements therefore would constitute a violation of the Consent Agreement.
The Consent Agreement further requires GE not to interfere with Avio staffing decisions as they relate to work on the AGB for the PW1100G. It allows Pratt & Whitney to have a technical representative and a customer representative on-site at GE/Avio's facility to observe work on the PW1100G AGB. In addition, should Pratt & Whitney terminate its agreement with Avio, GE will be required to provide certain transition services, including licenses to intellectual property and access to specialized Avio tools, to help Pratt & Whitney or a third-party supplier produce AGBs and related parts for the PW1100G. The Consent Agreement also contains a firewall provision that limits GE's access, through Avio, to Pratt & Whitney's proprietary information relating to the AGB. Finally, the Consent Agreement allows for the appointment of an FTC-approved monitor to oversee GE's compliance with its obligations under the Consent Agreement.
The purpose of this analysis is to facilitate public comment on the proposed Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Consent Agreement or to modify its terms in any way.
By direction of the Commission, Commissioner Wright recused.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning rights in data and copyrights.
Submit comments on or before September 24, 2013.
Submit comments identified by Information Collection 9000–0090, Rights in Data and Copyrights, by any of the following methods:
• Regulations.gov:
Submit comments via the Federal eRulemaking portal by searching the OMB control number. Select the link “Submit a Comment” that corresponds with “Information Collection 9000–0090, Rights in Data and Copyrights”. Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “Information Collection 9000–0090, Rights in Data and Copyrights” on your attached document.
• Fax: 202–501–4067.
• Mail: General Services Administration, Regulatory Secretariat (MVCB), 1800 F Street NW., Washington, DC 20405. ATTN: Hada Flowers/IC 9000–0090, Rights in Data and Copyrights.
Ms. Marissa Petrusek, Procurement Analyst, Contract Policy Branch, GSA (202) 501–0136 or email
Subpart 27.4, Rights in Data and Copyrights is a regulation which concerns the rights of the Government and contractors with whom the Government contracts, regarding the use, reproduction, and disclosure of information developed under such contracts. The delineation of such rights is necessary in order to protect the contractor's rights to not disclose proprietary data and to ensure that data developed with public funds is available to the public. The specific clauses associated with this information collection are as follows:
(1) FAR 52.227–15, Representation of Limited Rights Data and Restricted Computer Software. This clauses is included in solicitations if the contracting officer requires an offeror to state whether limited rights data or restricted computer software are likely to be used in meeting the requirements. FAR 52.227–15 requires the contractor to identify whether data proposed for fulfilling the requirements is limited to data rights or restricted software. If the government does not receive unlimited rights, the contractor must provide a list of the data not covered. This
(2) FAR 52.227–16, Additional Data Requirements. This clause is included in all contracts for experimental, developmental, research, or demonstration work (other than basic or applied research to be performed solely by a university or college where the contract amount will be $500,000 or less). The clause requires that the contractor keep all data first produced in the performance of the contract for a period of three years from the final acceptance of all items delivered under the contract.
FAR 52.227–16 allows the Government to require delivery of data not initially asked for at anytime during the contract and up to three years after completion. All data covered by this clause is paid for by the Government. FAR 52.227–16 also requires a record-keeping burden from the contractor to maintain data first produced or specifically used in performance of the contract within three years after acceptance of all items delivered under the contract. Much of this data will be in the form of the deliverables provided to the Government under the contract (final report, drawings, specifications, etc.). Some data, however, will be in the form of computations, preliminary data, records of experiments, etc., and these will be the data that will be required to be kept over and above the deliverables. The purpose of such recordkeeping requirements is to ensure that the Government can fully evaluate the research in order to ascertain future activities and to ensure that the research was completed and fully reported, as well as to give the public an opportunity to assess the research results and secure any additional information.
When FAR 52.227–16 was first proposed, comments were received from educational institutions, which stated that requiring their investigators to keep records of unlimited rights data for three years after acceptance of deliverables was unreasonable because investigators do not segregate their research by contract, but rather combine it with other data to continue their research. In light of this, a $500,000 threshold was adopted after surveying the major civilian R&D agencies, whose data suggested that the average value of an R&D contract ranged between $250,000 to $300,000; commensurate with other clause thresholds (
(3) FAR 52.227–17, Rights in Data-Special Works. This clause is included in solicitations and contracts primarily for production or compilation of data. FAR 52.227–17 is used in rare and exceptional circumstances to permit the Government to limit the Contractor's rights in data by preventing the release, distribution and publication of any data first produced in the performance of the contract. This clause may also be limited to particular items and not the entire contract.
(4) FAR 52.227–18, Rights in Data-Existing Works. This clause is included in contracts for audiovisual or similar works. FAR 52.227–18 is used when the Government is acquiring existing audiovisual or similar works, such as books, without modification. This clause requires contractors to grant license for the Government to reproduce, prepare derivative works, and perform or display the materials publically.
(5) FAR 52.227–19, Commercial Computer Software License. This clause is used in contracts and purchase orders for the acquisition of commercial software. FAR 52.227–19 requires the Government to set forth the minimum data rights it requires above and beyond what is set forth in the contractor's standard commercial license. The contractor is responsible for affixing a notice on any commercial software delivered under the contract that provides notice that the Government's rights regarding the data are set forth in the contract.
(6) FAR 52.227–20, Rights in Data—SBIR Program. This clause is only required for small business innovation research (SBIR) contracts and it limits the Government's rights to disclose data first produced under the contract.
(7) FAR 52.227–21, Technical Data Declaration, Revisions and Withholding of Payment—Major Systems. This clause requires the contractor to certify that the data delivered under the contract is complete, accurate and compliant with the requirements of the contract.
(8) FAR 52.227–22 Major Systems—Minimum Rights. This clause is used in Civilian Agency Contracts, except for NASA and Coast Guard, providing the Government unlimited rights in any technical data, other than computer software, developed in the performance of the contract and related to a major system or supplies for a major system. As this provision is for major systems only, and few civilian agencies have such major systems, only about 30 contracts will require this certification.
(9) FAR 52.227–23, Rights to Proposal Data (technical). This clause allows the Government to identify pages of a proposal that, as a condition of contact award, would be subject to unlimited rights in the technical data.
(10) FAR 52.227–14, Rights in Data—General. Paragraph (d) outlines a procedure whereby a contracting officer can challenge restrictive markings on data delivered. Under civilian agency contracts, limited rights data or restricted computer software is rarely, if ever, delivered to the Government. Therefore, there will rarely be any challenges. Thus, there is no burden on the public and no information collection associated with this clause.
A reassessment of the rights in data and copyright provisions was performed. Based on the comprehensive reassessment performed, this information collection requirement represents a decrease from what was published in the
There is no centralized database in the Federal Government that maintains information regarding the use of rights in data and copyright clauses. Subject matter experts in the intellectual property law field were consulted to obtain additional information that helped in estimating the revised public burden. FedBizOpps was searched to determine the use of these clauses in competitive contract solicitations throughout the Government. The Federal Procurement Data System (FPDS) was used to determine the likely contracts that would contain rights in data and copyright provisions. An assumption was made that sole source contracts citing the existence of limited rights in data, patent rights, copyrights or secret processes would contain the rights in data and copyright clauses, and were used as the basis for this information collection. Consequently, the FPDS data formed the basis for the estimated the number of respondents per year based on the likely contracts awarded that would include the applicable clauses associated with this collection (52.227–15 through 52.227–23). The estimated number of contracts was then totaled to determine the
Total Burden Hours:
The annual recordkeeping burden is estimated as follows:
Obtaining Copies of Proposals: Requesters may obtain a copy of the information collection documents from the General Services Administration, Regulatory Secretariat (MVCB), 9000–0090, Rights in Data and Copyrights, telephone (202) 501–4755. Please cite OMB Control No. 9000–0090, Rights in Data and Copyrights, in all correspondence.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension of an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning anti-kickback procedures. A notice was published in the
Submit comments on or before August 26, 2013.
Submit comments identified by Information Collection 9000–0091, Anti-Kickback Procedures, by any of the following methods:
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Submit comments via the Federal eRulemaking portal by searching the OMB control number. Select the link “Submit a Comment” that corresponds with “Information Collection 9000–0091, Anti-Kickback Procedures”. Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “Information Collection 9000–0091, Anti-Kickback Procedures” on your attached document.
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Ms. Cecelia L. Davis, Procurement Analyst, Office of Governmentwide Acquisition Policy, GSA, (202) 219–0202 or email
Federal Acquisition Regulation (FAR) 52.203–7, Anti-Kickback Procedures, requires that all contractors have in place and follow reasonable procedures designed to prevent and detect in its own operations and direct business relationships, violations of 41 U.S.C. chapter 87, Kickbacks. Whenever prime contractors or subcontractors have reasonable grounds to believe that a violation of the statute may have occurred, they are required to report the possible violation in writing to the contracting agency inspector general, the head of the contracting agency if an agency does not have an inspector general, or the Department of Justice. The information is used to determine if any violations of the statute have occurred.
There is no Governmentwide data collection process or system which identifies the number of alleged violations of 41 U.S.C. chapter 87, Kickbacks that are reported annually to agency inspectors general, the heads of the contracting agency if an agency does not have an inspector general, or the Department of Justice.
The analysis of the public comment is summarized as follows:
• The actual number of respondents subject to the information collection is likely 25 to 50 times greater than the estimate of 100 respondents (i.e., 2500 to 5000);
• There is no basis provided for the estimate of 1 response per respondent; and
• The estimate of 1 hour per response is unreasonably low and unsubstantiated. The estimated burden hours should be modified in this instance for the same reasons that they were modified upward in FAR Case 2007–006, Contractor Business Ethics Compliance Program and Disclosure Requirements.
Therefore, the only contractors and subcontractors included in the estimate of respondents to the information collection requirement are those contractors or subcontractors that are reporting a suspected violation of the Kickback statute in a given year. Based on discussions with subject matter experts with experience in an Office of the Inspector General, the estimate of 100 responses per year more than likely exceeds the actual responses. It is also unlikely, that the same respondent would be reporting instances of kickback violations more than once in a year. The estimated number of respondents and responses remain as previously approved.
With regard to the estimated information collection burden hours, as stated in the
We cannot effectively address the broad allegations with regard to the accuracy and utility of the entire collective burden imposed on all Federal acquisitions. We can only effectively address each individual information collection requirement that is under consideration for OMB approval. As stated, the respondent has not pointed out any aspect of the Anti-Kickback clause that could be amended to reduce the information collection burden imposed by that clause. Further, the respondent specifically does not challenge the propriety of the underlying information collection requirement. We constantly review information collection requirements imposed by FAR regulations for ways to reduce the burdens and still achieve the objectives of the regulations, whether based on policy or statute. We would welcome any specific recommendations as to information collection requirements (other than those required by statute) in which the burden is perceived to outweigh the benefit, with specific recommendations as to how the burden should be reduced.
Office of Government-wide Policy, U.S. General Services Administration (GSA).
Meeting Notice.
The Presidential Commission on Election Administration (PCEA), a Federal Advisory Committee established in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C., App., and Executive Order 13639, as amended by EO 13644, will hold a meeting open to the public on Thursday, August 8, 2013.
Mr. Mark Nejbauer, Designated Federal Officer, General Services Administration, Presidential Commission on Election Administration, 1776 G Street NW., Washington, DC 20006, email
The agenda will be as follows:
• Introductions & Statement of Plan for The Meeting
• Testimony by state, county and local election officials
• Receipt of reports by experts in some of the subject areas detailed in Executive Order 13639
• Testimony by interested members of the public
Contact Mark Nejbauer at
The public is invited to submit written comments for this meeting until 5:00 p.m. eastern time on Monday, August 5, 2013, by either of the following methods:
Office of the Secretary, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary, Department of Health and Human Services, announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). The ICR is for extending the use of the approved information collection assigned OMB control number 0990–0360, which expires on September 30, 2013. Prior to submitting that ICR to OMB, Office of the Secretary seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on the ICR must be received on or before September 24, 2013.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the document identifier HHS–OS–20078–60D for reference.
Office of the Secretary specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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
Impact Evaluation of CDC's Colorectal Cancer Control Program (CRCCP)—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Colorectal cancer (CRC) is the second leading cause of cancer deaths in the U.S.; however, screening can effectively reduce CRC incidence and mortality. CDC's Colorectal Cancer Control Program (CRCCP) was established to increase population-level screening rates to 80 percent. Currently, 25 states and four tribal organizations receive CDC funds to increase colorectal cancer screening rates. The CRCCP is the first cancer prevention and control program funded by CDC emphasizing both the direct provision of screening services and broader screening promotion. CRCCP grantees are required to establish evidence-based colorectal cancer screening delivery programs for persons
The CRCCP offers a unique and important opportunity to evaluate the efficacy of this new public health model. CDC plans to conduct an impact evaluation to determine whether CRCCP program activities increase state-level colorectal cancer screening rates and other proximal outcomes. The impact evaluation will use a quasi-experimental, control group design with pre- and post-tests involving a total of six states: three CRCCP grantee states (Alabama, Nebraska, and Washington) represent the intervention programs and three non-CRCCP states (Tennessee, Oklahoma, and Wisconsin) represent the control states.
CDC plans to complete two cycles of information collection over a three-year period. The first information collection will be initiated in 2013 and the second information collection will be initiated in 2015. Three types of information will be collected at each time, including: (1) A general population survey administered by telephone with a state-based, representative, cross-sectional, random sample of adults aged 50–75 (population survey); (2) a mail-back, written, survey of a state-based, representative sample of primary care providers (provider survey); and (3) qualitative case studies of program implementation (case studies) based on interviews with Colorectal Control Program staff, program evaluators, and state and local partners in both grantee and non-grantee states. Information will be collected from each site to identify interviewees and prepare for the site visit.
The general population survey includes questions related to knowledge of and attitudes toward colorectal cancer, history of colorectal cancer screening and intentions for future screening, and barriers to screening. The estimated burden per response is 23 minutes. The provider survey of primary care physicians includes questions related to knowledge of colorectal cancer screening guidelines and screening quality, office systems that support screening, and patterns of referrals to screening. The estimated burden per response is 12 minutes. For the case studies, interview guides will be used to conduct interviews with program staff and stakeholders to gather detailed information about colorectal cancer screening provision and promotion efforts. The estimated burden for each interview is one hour to one hour and 15 minutes. Evaluation staff will also collect information through document review and field observation.
The information to be collected will be used to assess the impact of the CRCCP in improving proximal outcomes (e.g., provider knowledge, population attitudes) and in increasing population-level CRC screening rates. Results of the evaluation will be used to improve program performance, plan future public health programs, and improve efficiencies. OMB approval is requested for three years. The total estimated annualized burden hours are 2,425. There are no costs to respondents other than their time.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395–6974
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
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Since each OPO has a monopoly on organ procurement within its designated service area (DSA), we must hold OPOs to high standards. Collection of this information is necessary for us to assess the effectiveness of each OPO and determine whether it should continue to be certified as an OPO and designated for a particular donation service area by the Secretary or replaced by an OPO that can more effectively procure organs within that DSA.
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Based upon being able to identify co-located providers, FIs, MACs, and CMS will be able to track patient shifting between LTCHs and other in-patient providers which will lead to appropriate payments under § 412.532. That section limits payments to LTCHs where over 5 percent of admissions represent patients who had been sequentially discharged by the LTCH, admitted to an on-site provider, and subsequently readmitted to the LTCH. Since each discharge triggers a Medicare payment, we implemented this policy to discourage payment abuse.
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• The effect of such initiatives on the use of health care services by Medicaid beneficiaries participating in the program;
• The extent to which special populations (including adults with disabilities, adults with chronic illnesses, and children with special health care needs) are able to participate in the program;
• The level of satisfaction of Medicaid beneficiaries with respect to the accessibility and quality of health care services provided through the program; and
• The administrative costs incurred by state agencies that are responsible for administration of the program.
6.
We are requesting the physician-owned hospital ownership information, investment information or both, previously collected in Attachment 1 of the CMS 855A enrollment application to become a stand-alone form with a unique OMB number for the following reasons:
• The physician-owned data collection has a small targeted audience of approximately 140 physician-owned hospitals nationwide.
• The physician-owned data collection is required annually, as noted above.
• The data required under section 6001 is more specific than the data currently collected on the CMS–855A provider enrollment application.
• The data is not required for Medicare provider enrollment purposes.
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Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by September 24, 2013:
When commenting, please reference the document identifier or OMB control number (OCN). To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
Information Collections
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CMMI is authorized by Section 1115A of the Social Security Act, as established by section 3021 of the ACA and was established to “test innovative payment and service delivery models to reduce program expenditures. . .while preserving or enhancing the quality of care furnished” to Medicare, Medicaid and CHIP beneficiaries. Implicit across all of CMMI activities is an emphasis on diffusion—finding and validating innovative models that have the potential to scale, facilitating rapid adoption, and letting them take root in organizations, health systems, and communities across America.
The Medicare Current Beneficiary Survey (MCBS) is the most comprehensive and complete survey available on the Medicare population and is essential in capturing data not otherwise collected through our operations. The MCBS is an in-person, nationally-representative, longitudinal survey of Medicare beneficiaries that we sponsor and is directed by the Office of Information Products and Data Analytics (OIPDA) in partnership with the CMMI. The survey captures beneficiary information whether aged or disabled, living in the community or facility, or serviced by managed care or fee-for-service. Data produced as part of the MCBS are enhanced with our administrative data (e.g. fee-for-service claims, prescription drug event data, enrollment, etc.) to provide users with more accurate and complete estimates of total health care costs and utilization. The MCBS has been continuously fielded for more than 20 years (encompassing over 1 million interviews), and consists of three annual interviews per survey participant.
The MCBS continues to provide unique insight into the Medicare program and helps both us and our external stakeholders better understand and evaluate the impact of existing programs and significant new policy initiatives. In the past, MCBS data have been used to assess potential changes to the Medicare program. For example, the MCBS was instrumental in supporting the development and implementation of the Medicare prescription drug benefit by providing a means to evaluate prescription drug costs and out-of-pocket burden for these drugs to Medicare beneficiaries.
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All states have enacted legislation defining a patient's right to make decisions regarding medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives. Participating hospitals, skilled nursing facilities, nursing facilities, home health agencies, providers of home health care, hospices, religious nonmedical health care institutions, and prepaid or eligible organizations (including Health Care Prepayment Plans (HCPPs) and Medicare Advantage Organizations (MAOs) such as Coordinated Care Plans, Demonstration Projects, Chronic Care Demonstration Projects, Program of All Inclusive Care for the Elderly, Private Fee for Service, and Medical Savings Accounts must provide written information, at explicit time frames, to all adult individuals about: a) the right to accept or refuse medical or surgical treatments; b) the right to formulate an advance directive; c) a description of applicable State law (provided by the State); and d) the provider's or organization's policies and procedures for implementing an advance directive.
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Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice sets forth the final allotments of federal funding available to each State, the District of Columbia, and each U.S. Territory and Commonwealth for fiscal year 2013. Title XXI of the Social Security Act (the Act) authorizes payment of federal matching funds to States, the District of Columbia, and the U.S. Territories and Commonwealths to initiate and expand health insurance coverage to uninsured, low-income children under the Children's Health Insurance Program (CHIP). The fiscal year allotments contained in this notice were determined in accordance with the funding provisions and final regulations published in the February 17, 2011
This notice is effective on August 26, 2013. Final allotments for fiscal year 2013 may be available for expenditure by states beginning with October 1, 2012.
Richard Strauss, (410) 786–2019.
This notice sets forth the allotments available to each state, the District of Columbia, and each U.S. Territory and Commonwealth for fiscal year (FY) 2013 under title XXI of the Social Security Act (the Act). States may implement the Children's Health Insurance Program (CHIP) through a separate state program under title XXI of the Act, an expansion of a State Medicaid program under title XIX of the Act, or a combination of both. CHIP allotments for FY 2009 and subsequent fiscal years are available to match expenditures under an approved state child health plan for 2 fiscal years, including the year for which the allotments were provided. As specified by the Act, the allotments are available to states for FY 2013, and the unexpended amounts of such allotments for a state may be carried over to FY 2014 for use by the state. Federal funds appropriated for title XXI of the Act are limited, and the law specifies a methodology to divide the total fiscal year appropriation into individual allotments available for each state, the District of Columbia, and each U.S. Territory and Commonwealth with an approved child health plan.
Section 2104(b) of the Act requires states, the District of Columbia, and U.S. Territories and Commonwealths to have an approved child health plan for the fiscal year in order for the Secretary to provide an allotment for that fiscal year. All states, the District of Columbia, and U.S. Territories and Commonwealths have approved plans for FY 2013. Therefore, the FY 2013 allotments contained in this notice pertain to all states, the District of Columbia, and U.S. Territories and Commonwealths.
In general, funding is appropriated under section 2104(a) of the Act for purposes of providing allotments to states under CHIP for each fiscal year. Section 2104(a) was amended by section 10203(d)(1) of the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111–148, enacted on March 23, 2010) (the Affordable Care Act) to extend appropriations for funding for CHIP fiscal year allotments through FY 2015.
Section 2104(a)(1) through (18) of the Act appropriates federal funds for providing states' allotments for FYs 2009 through 2015. In particular, the appropriated amounts available for allotments for FYs 2009 through 2015, are as follows: $10,562,000,000 for FY 2009; 12,520,000,000 for FY 2010; $13,459,000,000 for FY 2011; $14,982,000,000 for FY 2012; $17,406,000,000 for FY 2013, $19,147,000,000 for FY 2014; and $2,850,000,000 for each of the first and second half of FY 2015. Also, section 108 of the Children's Health Insurance Program Reauthorization Act of 2009 (Pub. L. 111–3, enacted on February 4, 2009) (CHIPRA), as amended by section 10203(d) of the Affordable Care Act, provides for a one-time appropriation of $15,361,000,000 for allotments for the first half of FY 2015. Therefore, the total appropriation for providing allotments during FY 2015 is $21,061,000,000 (determined as the sum of $2,850,000,000, $15,361,000,000, and $2,850,000,000).
On September 16, 2009 we published a proposed rule in the
The final methodology is determined in accordance with the September 16, 2009
The FY 2013 allotments for the 50 States and the District of Columbia, and the Commonwealths and Territories, are provided from the FY 2013 appropriation ($17,406,000,000). The amounts of these allotments are subject to a proration adjustment described in section II.B.7 of this notice, if necessary. Section 2104(m)(2)(B)(i) of the Act, as amended by the Affordable Care Act, requires a “rebasing” process be used for determining the FY 2013 allotments; the rebasing methodology means the states' payments rather than their allotments for FY 2012 must be considered in calculating the FY 2013 allotments. In particular, the FY 2013 allotments are determined by multiplying the allotment increase factor for FY 2013 for the state by the sum of: any federal payments made from the states' available allotments in FY 2012; any amounts provided as redistributed allotments in FY 2012 to the state; and any federal payments attributable to any contingency fund payments made to the State for FY 2012 determined under section 2104(n) of the Act.
The FY 2014 allotments for the 50 States and the District of Columbia, and the Commonwealths and Territories, are provided from the FY 2014 appropriation of $19,147,000,000, and are subject to a proration adjustment described in section II.B.7 of this notice, if necessary. Under section 2104(m)(2)(B)(ii) of the Act, as amended by the Affordable Care Act, the FY 2014 allotment for each State is determined by multiplying the allotment increase factor for FY 2014 for the state, by the sum of: the state's FY 2013 allotment; and any contingency fund payment made to the state for FY 2013, as determined in section 2104(n) of the Act.
For the 50 States and the District of Columbia, under section 2104(m)(6) of the Act, the FY 2014 allotment may include additional amounts in situations where such states have submitted an expansion allotment adjustment request before August 31, 2013.
Under section 2104(m)(3) of the Act, the FY 2015 allotments for the 50 states and the District of Columbia, and the Commonwealths and Territories, are comprised of 2 components related to the first half of FY 2015 (that is, the period of October 1, 2014 through March 31, 2015) and second half of FY 2015 (that is, April 1, 2015 through September 30, 2015). The FY 2015 allotments for the first and second half of FY 2015 are subject to a proration adjustment described in section II.B.7 of this notice, as necessary.
The allotments for the first half of FY 2015 are provided from a total available appropriation of $18,211,000,000, comprised of $2,850,000,000 appropriated under section 2104(a)(18)(A) of the Act, and $15,361,000,000 appropriated by section 108 of CHIPRA, as amended by the Affordable Care Act. The allotments for the first half of FY 2015 are equal to the “first half ratio” multiplied by the allotment increase factor for FY 2015 multiplied by the sum of any federal payments made from the States' available allotments in FY 2014; any amounts provided as redistributed allotments in FY 2014 to the state; and any federal payments attributable to any contingency fund payments made to the State for FY 2014 as determined under section 2104(n) of the Act. The first half ratio is the percentage determined by dividing $18,211,000,000 (calculated as the sum of $2,850,000,000 (the appropriation for the first half of FY 2015) and 15,361,000,000 (the one-time appropriation for the first half of the FY 2015)) by $21,061,000,000 (calculated as the sum of $2,850,000,000(the appropriation for the second half of FY 2015) and $18,211,000,000).
The states' CHIP allotments for the second half of FY 2015 are provided from a total available appropriation of $2,850,000,000, appropriated under section 2104(a)(18)(B) of the Act. The allotments for the second half of FY 2015 are equal to $2,850,000,000 multiplied by a percentage equal to the amount of the allotment for the state for the first half of FY 2015 divided by the sum of all such first half of FY 2015 allotments for all States.
Under section 2104(m)(4) of the Act, if the amount of States' (including the 50 States, the District of Columbia, and the Commonwealths and Territories) allotments for a fiscal year, or in the case of FY 2015, the amount of an allotment for each half of the fiscal year, exceeds the total appropriations available for such periods, the total allotments for each of these periods will be reduced on a proportional basis. The total amount available nationally for the period is multiplied by a proration percentage determined by dividing the amount determined for the period by the sum of such amounts.
Under section 2104(m)(5) of the Act, the allotment increase factor for a fiscal year is equal to the product of 2 amounts for the fiscal year: the per capita health care growth factor and the child population growth factor.
The per capita health care growth factor for a fiscal year is equal to 1 plus the percentage increase in the projected per capita amount of the National Health Expenditures from the calendar year in which the previous fiscal year ends to the calendar year in which the fiscal year involved ends, as most recently published by CMS before the beginning of the fiscal year involved.
In general, for the 50 States and the District of Columbia, the Child Population Growth Factor (CPGF) for a fiscal year is equal to 1 plus the percentage increase (if any, expressed in decimal format) in the population of children in the State from July 1 in the previous fiscal year to July 1 in the fiscal year involved, as determined by CMS based on the most recent published estimates of the Census Bureau available before the beginning of the fiscal year involved, plus 1 percentage point (expressed as 0.01). In the determination of the CPGF, section 2104(m)(5)(B) of the Act refers to “the percentage increase (if any)” of the population of children in the State. In this regard, the CPGF refers only to increases in the population of children. Thus, if there was a decrease in the population of children over the indicated period, the CPGF for such State would be1 plus 0.0 percent plus 1 percentage point; that is, negative growth in the children population would not result in the growth factor being less than 101 percent (expressed as 1.01).
Section 2104(m)(1)(B) of the Act provided for 2009 allotments for the commonwealths and territories based upon the highest amount available for any fiscal year from 1999 through 2008, multiplied by the allotment increase factor with the term “United States” substituted for the term “the State” (so that the increase for the commonwealths and territories will be based on the CPFG rate for the entire country rather than specific to the commonwealth or territory). For fiscal years
We calculated the FY 2013 allotments as discussed in section II.B.4 of this notice and in accordance with section 2104(m) of the Act and final regulations at 42 CFR 457.609 (published in the February 17, 2011
Following are the keys and associated tables for the CHIP funding provisions as discussed in previous sections (note that for purposes of presentation and due to rounding, not all numbers following decimals are shown in the following tables):
Column A =
Column B =
Columns C through F =
Column C =
Column D =
Column E =
Column F = FY 2013
Column G = FY 2013
Column A =
Column B =
Column C =
Column D =
Column E =
Column F =
Column G =
This document does not impose any information collection or recordkeeping requirements. Consequently, it is not subject to Office of Management and Budget review under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(Section 1102 of the Social Security Act (42 U.S.C. 1302))
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice sets forth the States' final allotments available to pay the Medicare Part B premiums for Qualifying Individuals (QIs) for the Federal fiscal year (FY) 2012 and the preliminary QI allotments for FY 2013. The amounts of these QI allotments were determined in accordance with the methodology set forth in regulations and reflect funding for the QI program made available under recent legislation.
The final QI allotments for payment of Medicare Part B premiums for FY 2012 are effective October 1, 2011. The preliminary QI allotments for FY 2013 are effective October 1, 2012.
Richard Strauss, (410) 786–2019.
Section 110 of the Medicare and Medicaid Extenders Act of 2010 (Pub. L. 111–309, enacted on December 15, 2010) (MMEA) extended the authority and funding for the QI program for the first quarter of FY 2012 (that is, through December 31, 2011) by providing $280 million available for the first quarter of FY 2012. Section 310 of the Temporary Payroll Tax Cut Continuation Act of 2011 (Pub. L. 112–78, enacted on December 23, 2011) (TPTCA) provided temporary continued authority and an additional $150 million in funding for the QI program for the period January 1, 2012 through February 29, 2012. With the enactment of TPTCA, the QI program was authorized and funded at a total amount nationally of $430 million ($280 million plus $150 million) for FY 2012 through February 29, 2012. Section 3101 of the Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112–96, enacted on February 22, 2012) (MCTRJCA) extended the authority and funding for the QI program for FY 2012; in particular, authority for the QI program was extended for all of FY 2012 and funding for the program for the period January 1, 2012 through September 30, 2012 was increased to $450 million. Therefore, the total funding available for the QI program for FY 2012 is $730 million ($280 million plus $450 million).
Section 3101 of the MCTRJCA extended the authority and funding for the QI program by providing $280 million, available for the period October 1, 2012 through December 31, 2012, the first quarter of FY 2013. Most recently, section 621 of the American Taxpayer Relief Act of 2012 (Pub. L. 112–240, enacted on January 2, 2013) (ATRA), extended the authority for the QI program for all of FY 2013 and provided $485 million in additional funding for the program for the period January 1, 2013 through September 30, 2013. Therefore the total funding available for the QI program for FY 2013 is $765 million ($280 million plus $485 million).
Finally, section 621 of ATRA further extended the authority and funding for the QI program by providing $300 million, available for the period October 1, 2013 through December 31, 2013, the first quarter of FY 2014.
The amounts of the states' final FY 2012 and preliminary FY 2013 QI allotments, contained in this notice, were determined in accordance with the methodology set forth in existing regulations at 42 CFR 433.10(c)(5) and reflect funding for the QI program made available under the legislation discussed above.
The final QI allotments for FY 2012 and the preliminary QI allotments for FY 2013 are shown by state in Chart 1 and Chart 2 below, respectively:
Chart 1—Final Qualifying Individuals Allotments for October 1, 2011 through September 30, 2012.
Chart 2—Preliminary Qualifying Individuals Allotments for October 1, 2012 through September 30, 2013.
The following describes the information contained in the columns of Chart 1 and Chart 2:
Column A—
Column B—
Column C—
Column D—
Columns E through L show the determination of the States' Final QI Allotments for FY 2012 (Chart 1) or Preliminary QI Allotments for FY 2013 (Chart 2).
Column E —
Column F—
Column G—
Column H —
Column I—
Column J—
Column K—
Column L—
This notice does not impose any information collection or recordkeeping requirements. Consequently, it does not need Office of Management and Budget review under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(Section 1102 of the Social Security Act (42 U.S.C. 1302))
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces the final federal share disproportionate share hospital (DSH) allotments for federal fiscal year (FY) 2012 and the preliminary federal share DSH allotments for FY 2013. This notice also announces the final FY 2012 and the preliminary FY 2013 limits on aggregate DSH payments that states may make to institutions for mental diseases (IMDs) and other mental health facilities. This notice also includes background information describing the methodology for determining the amounts of states' FY DSH allotments and IMD DSH limits.
Richard Strauss, (410) 786–2019.
In general, in accordance with the methodology specified under section 1923(f)(3) of the Social Security Act (the Act), a state's federal fiscal year (FY) disproportionate share hospital (DSH) allotment is calculated by increasing the amount of its DSH allotment for the preceding FY by the percentage change in the Consumer Price Index for all Urban Consumers (CPI–U) for the previous FY. Also in accordance with section 1923(f)(3) of the Act, a state's DSH allotment for a FY is subject to the limitation that an increase to a state's DSH allotment for a FY cannot result in the DSH allotment exceeding the greater of the state's DSH allotment for the previous FY or 12 percent of the state's total medical assistance expenditures for the allotment year (this is referred to as the 12 percent limit).
Furthermore, under section 1923(h) of the Act, federal financial participation (FFP) for DSH payments to institutions for mental diseases (IMDs) and other mental health facilities is limited to state-specific aggregate amounts determined in accordance with the methodology specified under such section. Under this provision, the aggregate limit for DSH payments to IMDs and other mental health facilities is the lesser of a state's FY 1995 total computable (state and federal share) IMD and other mental health facility DSH expenditures applicable to the state's FY 1995 DSH allotment (as reported on the Form CMS–64 as of January 1, 1997), or the amount equal to the product of the state's current year total computable DSH allotment and the applicable percentage specified in section 1902(h) of the Act (the applicable percentage is the IMD share of DSH total computable expenditures as of FY 1995).
In general, we determine states' DSH allotments and IMD DSH limits for a FY using the most recent available estimates of or actual medical assistance expenditures, including DSH expenditures in their Medicaid programs and the most recent available change in the CPI–U used for the FY in accordance with the methodology prescribed in statute. The indicated estimated or actual expenditures are obtained from states for each relevant FY from the most recent available quarterly Medicaid budget reports (Form CMS–37) or quarterly Medicaid expenditure reports (Form CMS–64), respectively, submitted by the states. For example, as part of the initial determination of a state's FY DSH allotment (referred to as the preliminary DSH allotments) that is determined before the beginning of the FY for which the DSH allotments and IMD DSH limits are being determined, we use estimated expenditures for the FY obtained from the August submission of the CMS–37 submitted by states prior to the beginning of the FY; such estimated expenditures are subject to update and revision during the FY before such actual expenditure data become available. We also use the most recent available estimated CPI–U percentage change that is available before the beginning of the FY for determining the states' preliminary FY DSH allotments; such estimated CPI–U percentage change is subject to update and revision during the FY before the actual CPI–U percentage change becomes available. In determining the final DSH allotments and IMD DSH limits for a FY we use the actual expenditures for the FY and actual CPI–U percentage change for the previous FY.
Chart 1 of the Addendum to this notice provides the states' final FY 2012 DSH allotments determined in accordance with section 1923(f)(3) of the Act. As described in the background section, in general, the DSH allotment for a FY is calculated by increasing the FY DSH allotment for the preceding FY by the CPI–U increase for the previous fiscal year. For purposes of calculating the states' final FY 2012 DSH allotments, the preceding final fiscal year DSH allotments (for FY 2011) were contained in the
Chart 2 of the Addendum to this notice provides the preliminary FY 2013 DSH allotments determined in accordance with section 1923(f)(3) of the Act. The preliminary FY 2013 DSH allotments contained in this notice were determined based on the most recent available estimates from states of their FY 2013 total computable Medicaid expenditures. Also, the preliminary FY 2013 allotments contained in this notice were determined by increasing the final FY 2012 DSH allotments as contained in this notice (and described in section II.A.1. above) by 2.4 percent, representing the most recent available estimate of the percentage increase in the CPI–U for FY 2012 (the previous FY to FY 2013). In this regard, we note that in September of 2012 for purposes of calculating preliminary FY 2013 DSH allotments for states (which at that time was prior to the beginning FY 2013), we
States' final FY 2013 DSH allotments will be published in future rulemaking based on the states' four quarterly Medicaid expenditure reports (Form CMS–64) for FY 2013 available following the end of FY 2013 and the actual change in the CPI–U for FY 2012.
Section 1923(h) of the Act specifies the methodology to be used to establish the limits on the amount of DSH payments that a state can make to IMDs and other mental health facilities. FFP is not available for IMD or DSH payments that exceed the IMD limits. In this notice, we are publishing the final FY 2012 and the preliminary FY 2013 IMD DSH Limits determined in accordance with the provisions discussed above.
Charts 3 and 4 of the “Addendum” to this notice detail each state's final FY 2012 and preliminary FY 2013 IMD DSH Limit, respectively, determined in accordance with section 1923(h) of the Act
This notice does not impose any new or revised information collection or recordkeeping requirements. The requirements and burden associated with Form CMS–37 (OMB No. 0938–0101), and Form CMS–64 (OMB No. 0938–0067) are unaffected by this notice. Consequently, this notice, the Form CMS–37, and Form CMS–64 are not subject to Office of Management and Budget review under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have examined the impact of this notice as required by Executive Order 12866 on Regulatory Planning and Review (September 1993), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96–354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104–4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Order 12866 directs 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). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This notice reaches the $100 million economic threshold and thus is considered a major rule under the Congressional Review Act.
The final FY 2012 DSH allotments being published in this notice are approximately $20 million more than the preliminary FY 2012 DSH allotments published in the July 24, 2012
The preliminary FY 2013 DSH allotments being published in this notice are about $182 million more than the final FY 2012 DSH allotments being published in this notice. The increase in the DSH allotments is due to the application of the statutory formula for calculating DSH allotments under which the prior fiscal year allotments are increased by the percentage increase in the CPI–U for the prior fiscal year. The preliminary FY 2013 IMD DSH limits being published in this notice are about $13 million more than the final FY 2012 IMD DSH limits being published in this notice. The increase in the IMD DSH limits is because the DSH allotment for a FY is a factor in the determination of the IMD DSH limit for the FY. Since the preliminary FY 2013 DSH allotments are greater than the final FY 2012 DSH allotments, the associated preliminary FY 2013 IMD DSH limits for some states also increased.
The RFA requires agencies to analyze options for regulatory relief of small businesses, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.0 million to $34.5 million in any one year. Individuals and states are not included in the definition of a small entity. We are not preparing an analysis for the RFA because the Secretary has determined that this notice will not have significant economic impact on a substantial number of small entities. Specifically, any impact on providers is due to the effect of the various controlling statutes; providers are not impacted as a result of the independent regulatory action in publishing this notice. The purpose of the notice is to announce the latest distributions as required by the statute.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Core-Based Statistical Area for Medicaid payment regulations and has fewer than 100 beds. We are not preparing analysis for section 1102(b) of the Act because the Secretary has determined that this notice will not have a significant impact on the operations of a substantial number of small rural hospitals.
The Medicaid statute specifies the methodology for determining the amounts of states' DSH allotments and IMD DSH limits; and as described previously, the application of the methodology specified in statute results in the decreases or increases in states' DSH allotments and IMD DSH limits for the applicable FYs. The statute applicable to these allotments and limits does not apply to the determination of the amounts of DSH payments made to specific DSH hospitals; rather, these allotments and limits represent an overall limit on the total of such DSH
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2013, that threshold is approximately $141 million. This notice will have no consequential effect on state, local, or tribal governments, in the aggregate, or on the private sector.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. Since this notice does not impose any costs on state or local governments, the requirements of E.O. 13132 are not applicable.
The methodologies for determining the states' fiscal year DSH allotments and IMD DSH Limits, as reflected in this notice, were established in accordance with the methodologies and formula for determining states' allotments as specified in statute. This notice does not put forward any further discretionary administrative policies for determining such allotments.
As required by OMB Circular A–4 (available at
This proposed regulation is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.) and has been transmitted to the Congress and the Comptroller General for review.
In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.
This addendum contains the charts 1 through 4 (preceded by associated keys) that are referred to in the preamble of this notice.
Centers for Medicare and Medicaid Services, HHS.
Final notice.
This final notice announces our decision to approve the Center for Improvement in Healthcare Quality (CIHQ) as a national accrediting organization for hospitals that wish to participate in the Medicare or Medicaid programs.
This final notice is effective July 26, 2013 through July 26, 2017.
Cindy Melanson, (410) 786–0310. Monda Shaver, (410) 786–3410. Patricia Chmielewski, (410) 786–6899.
Under the Medicare program, eligible beneficiaries may receive covered services in a hospital provided certain requirements are met. Section 1861(e) of the Social Security Act (the Act) establishes distinct criteria for facilities seeking designation as a hospital. Regulations concerning provider agreements are at 42 CFR part 489 and those pertaining to activities relating to the survey and certification of facilities are at 42 CFR part 488. The regulations at 42 CFR part 482 specify the conditions that a hospital must meet to participate in the Medicare program, the scope of covered services, and the conditions for Medicare payment for hospitals.
Generally, to enter into an agreement, a hospital must first be certified by a State survey agency as complying with the conditions or requirements set forth in part 482. Thereafter, the hospital is subject to regular surveys by a State survey agency to determine whether it continues to meet these requirements. However, there is an alternative to surveys by State agencies. Certification by a nationally recognized accreditation program can substitute for ongoing State review.
Section 1865(a)(1) of the Act provides that, if a provider entity demonstrates through accreditation by an approved national accrediting organization (AO) that all applicable Medicare conditions are met or exceeded, we will deem that provider entity as having met the requirements. Accreditation by an AO is voluntary and is not required for Medicare participation.
If an AO is recognized by the Secretary as having standards for accreditation that meet or exceed Medicare requirements, any provider entity accredited by the national accrediting body's approved program would be deemed to have met the Medicare conditions. A national AO applying for approval of its accreditation program under part 488, subpart A, must provide CMS with reasonable assurance that the AO requires the accredited provider entities to meet requirements that are at least as stringent as the Medicare conditions. Our regulations concerning the approval of AOs are set forth at § 488.4 and § 488.8(d)(3). The regulations at § 488.8(d)(3) require AOs to reapply for continued approval of their accreditation program every 6 years, or sooner, as determined by CMS.
Section 1865(a)(3)(A) of the Act provides a statutory timetable to ensure that our review of applications for CMS-approval of an accreditation program is conducted in a timely manner. The Act provides us 210 days after the date of receipt of a complete application, with any documentation necessary to make the determination, to complete our survey activities and application process. Within 60 days after receiving a complete application, we must publish a notice in the
On February 22, 2013, we published a proposed notice in the
• An onsite administrative review of CIHQ's: (1) Corporate policies; (2) financial and human resources available to accomplish the proposed surveys; (3) procedures for training, monitoring, and evaluation of its surveyors; (4) ability to investigate and respond appropriately to complaints against accredited facilities; and, (5) survey review and decision-making process for accreditation.
• The comparison of CIHQ's accreditation to our current Medicare hospital conditions of participation.
• A documentation review of CIHQ's survey process to determine the following:
++ Determine the composition of the survey team, surveyor qualifications, and CIHQ's ability to provide continuing surveyor training.
++ Compare CIHQ's processes to those of State survey agencies, including survey frequency, and the ability to investigate and respond appropriately to complaints against accredited facilities.
++ Evaluate CIHQ's procedures for monitoring hospitals out of compliance with CIHQ's program requirements. The monitoring procedures are used only when CIHQ identifies noncompliance. If noncompliance is identified through validation reviews, the State survey agency monitors corrections as specified at § 488.7(d).
++ Assess CIHQ's ability to report deficiencies to the surveyed facilities and respond to the facility's plan of correction in a timely manner.
++ Establish CIHQ's ability to provide CMS with electronic data and reports necessary for effective validation and assessment of the organization's survey process.
++ Determine the adequacy of staff and other resources.
++ Confirm CIHQ's ability to provide adequate funding for performing required surveys.
++ Confirm CIHQ's policies with respect to whether surveys are announced or unannounced.
++ Obtain CIHQ's agreement to provide CMS with a copy of the most current accreditation survey together with any other information related to the survey as we may require, including corrective action plans.
In accordance with section 1865(a)(3)(A) of the Act, the February 22, 2013 proposed notice also solicited public comments regarding whether CIHQ's requirements met or exceeded the Medicare conditions of participation for hospitals. We received 56 comments in response to our proposed notice. The commenters expressed unanimous support for CIHQ's hospital
We compared CIHQ's hospital requirements and survey process with the Medicare conditions of participation and survey process as outlined in the State Operations Manual (SOM). Our review and evaluation of CIHQ's hospital application, which were conducted as described in section III of this final notice, yielded the following:
• To meet the requirements at § 482.13(a)(2), CIHQ revised its standards to address the hospital's responsibility to provide a process for prompt resolution of patient grievances.
• To meet the requirements at § 482.13(b)(2), CIHQ revised its standards to address the role of the patient's representative (as allowed under State law) .
• To meet the requirements at § 482.13(b)(3), CIHQ revised its standards to include the requirements at § 489.100, § 489.102, and § 489.104 regarding advance directives.
• To meet the requirements at § 482.13(d)(2), CIHQ revised its standards to ensure that hospitals have a responsibility to meet patient requests for access to information as quickly as its record keeping system permits.
• To meet the requirements at § 482.13(e)(4)(i), CIHQ modified its standards to require the hospital update the patient's plan of care when restraints or seclusion are utilized.
• To meet the requirements at § 482.13(e)(5), CIHQ modified its standards to include the provision allowing other licensed independent practitioners, who are responsible for the care of the patient, to write orders for restraint or seclusion.
• To meet the requirements at § 482.13(e)(8)(ii), CIHQ modified its standards to include the reference to a physician or other licensed independent practitioner, as delineated at § 482.12(c).
• To meet the requirements at § 482.13(e)(11), CIHQ modified its standards to address that the physician and other licensed independent practitioners training requirements must be specified in hospital policy.
• To meet the requirements at § 482.13(g)(1), CIHQ modified its standards to permit the hospital to communicate deaths to CMS by facsimile or electronically as determined by CMS.
• To meet the requirements at § 482.13(h)(1), CIHQ modified its standards to require the hospital to inform each patient of his or her visitation rights.
• To meet the requirements at § 482.22(a)(2), CIHQ modified its standards to require that a candidate who has been recommended by the medical staff and appointed by the governing body be subject to all medical staff bylaws, rules, and regulations, in addition to the requirements contained at § 482.22.
• To meet the requirements at § 482.23(b)(3), CIHQ modified its standards to include language that a registered nurse must supervise the care of each patient.
• To meet the requirements at § 482.23(c)(1), CIHQ modified its standards to address biologicals.
• To meet the requirements at § 482.23(c)(1)(ii), CIHQ modified its standards to address pre-printed and electronic standing orders, order sets, and protocols for orders related to the preparation and administration of drugs and biologicals.
• To meet the requirements at § 482.23(c)(4), CIHQ modified its standards to address the requirement that blood and intravenous medication administration occurs only in accordance with state law and approved medical staff policies and procedures.
• To meet the requirements at § 482.24(c)(1) through (c)(3)(iv), CIHQ modified its standards to address the requirements related to the appropriate authentication of all orders, including verbal orders; the appropriate use of standing orders, order sets and protocols within nationally recognized guidelines; the periodic review of such orders and protocols; and the authentication of such orders and protocols within the medical record.
• To meet the requirements at § 482.25, CIHQ modified its standards to address the medical staff's responsibility to oversee the development of policies and procedures to minimize drug errors.
• To meet the requirements at § 482.25(a), CIHQ modified its standards to require that the pharmacy or drug storage area be administered in accordance with accepted professional principles.
• To meet the requirements at§ 482.25(b)(4), CIHQ modified its standards to limit the removal of drugs and biologicals from the pharmacy or storage area only by personnel designated in the policies of the medical staff and pharmaceutical service, in accordance with federal and sState law.
• To meet the requirements at § 482.25(b)(5), CIHQ modified its standards to address the medical staff's responsibility to predetermine a reasonable time to automatically stop drugs and biologicals.
• To meet the requirements at § 482.25(b)(6), CIHQ modified its standards to address the immediate reporting of drug errors, adverse reactions, and incompatibilities to the attending physician.
• To meet the requirements at § 482.26, CIHQ modified its standards to clearly identify radiologic services as a service that the hospital is required to provide its patients.
• To meet the requirements at § 482.41(a), CIHQ modified its standards to delineate that building inspections and maintenance are to be conducted on an on-going basis. CIHQ also modified its standards to specify that if a hospital intends to provide medical treatment to the victims of a disaster, it must be in compliance with NFPA99, Section 11–3.
• To meet the requirements at § 482.41(b)(7) and NFPA 101 (LSC) 18/19.7.1, CIHQ modified its standards to require: a written evacuation and relocation plan be available to all supervisory personnel and employees; that employees are informed of their duties under the plan; and that a copy of the plan is to be readily available at all times in the telephone operator's position or at the security center. In addition, CIHQ modified its standards to require that the hospital instruct employees on life safety procedures and devices.
• To meet the requirements at § 482.41(b)(7), the NFPA 101 (LSC) 18/19.7.2.1, and the Life Safety Code Annex A 19.7.1.2, CIHQ modified its standards to require signal transmission of alarms for all fire drills and that all fire drills be scheduled unannounced on a random basis.
• To meet the requirements at § 482.43, CIHQ modified its standards to address the hospital's responsibility to have a discharge planning process in writing that applies to all patients.
• To meet the requirements at § 482.43(b)(6), CIHQ modified its standards to require that the results of the discharge planning evaluation be discussed with the patient or an individual acting on behalf of the patient.
• To meet the requirements at § 482.51, CIHQ modified its standards to specify that if outpatient surgical services are offered, the services must be
• To meet the requirements at § 482.51(b)(5), CIHQ modified its standards to require that the operating room register be complete and up-to-date.
• To meet the requirements at § 482.51(b)(6), CIHQ modified its standards to address the requirement that an operative report must be written or dictated immediately following surgery and signed by the surgeon.
• To meet the requirements at § 482.56(a)(2), CIHQ modified its standards to include the reference to part 484 of the Code of Federal Regulations.
• To meet the survey process requirements in Appendix A of the SOM, CIHQ revised its policies outlining the survey size and composition to require that every survey will include at least one registered nurse with hospital survey experience.
• To meet the survey process requirements in Appendix Q of the SOM, CIHQ revised its policies to require notification to CMS of an immediate jeopardy situation, the content of the CMS notification, and the appropriate level of citation related to immediate jeopardy findings.
• To meet the requirements found at Section 2728B of the SOM, CIHQ revised its policies to require a more detailed monitoring plan that includes frequency of monitoring, duration of monitoring, sample size and target threshold, as part of a hospital's plan of correction for deficiencies found on survey.
• To meet the requirements found at Section 2005A2 of the SOM, CIHQ revised its policies to require the issuance of an accreditation denial for hospitals initially seeking participation in the Medicare program when the hospital has been found to be non-compliant with a condition of participation.
• To meet the requirements at § 498.13 and Section 2008D of the SOM, CIHQ revised its policies to clearly state that the final accreditation decision is based on the final survey report in which the provider meets all requirements or the date, which the provider is found to meet all conditions but has lower level deficiencies and CIHQ has received an acceptable plan of correction.
• To meet the requirements at Section 3012 of the SOM, CIHQ revised its policies to accurately reflect the requirement that follow-up surveys must be conducted within 45 calendar days from the survey end-date of the survey, which the condition level finding was cited.
• To clarify the survey process and to ensure the consistent application of survey activities, CIHQ updated its policies, survey tools and guidance to surveyors related to tracer activities, patient interviews, and staff interviews.
• To eliminate any real or perceived conflict of interest between CIHQ's consulting services through “Accreditation Resource Services” and its accreditation activities, CIHQ updated its plan to ensure that both entities are separated by a firewall and that information is not shared.
Based on our review and observations described in section III of this final notice, we have determined that CIHQ's requirements for hospitals meet or exceed our requirements. Therefore, we approve CIHQ as a national accreditation organization for hospitals that request participation in the Medicare program, effective July 26, 2013. through July 26, 2017.
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This quarterly notice lists CMS manual instructions, substantive and interpretive regulations, and other
It is possible that an interested party may need specific information and not be able to determine from the listed information whether the issuance or regulation would fulfill that need. Consequently, we are providing contact persons to answer general questions concerning each of the addenda published in this notice.
The Centers for Medicare & Medicaid Services (CMS) is responsible for administering the Medicare and Medicaid programs and coordination and oversight of private health insurance. Administration and oversight of these programs involves the following: (1) Furnishing information to Medicare and Medicaid beneficiaries, health care providers, and the public; and (2) maintaining effective communications with CMS regional offices, state governments, state Medicaid agencies, state survey agencies, various providers of health care, all Medicare contractors that process claims and pay bills, National Association of Insurance Commissioners (NAIC), health insurers, and other stakeholders. To implement the various statutes on which the programs are based, we issue regulations under the authority granted to the Secretary of the Department of Health and Human Services under sections 1102, 1871, 1902, and related provisions of the Social Security Act (the Act) and Public Health Service Act. We also issue various manuals, memoranda, and statements necessary to administer and oversee the programs efficiently.
Section 1871(c) of the Act requires that we publish a list of all Medicare manual instructions, interpretive rules, statements of policy, and guidelines of general applicability not issued as regulations at least every 3 months in the
While we are publishing the quarterly notice required by section 1871(c) of the Act, we will no longer republish duplicative information that is available to the public elsewhere. We believe this approach is in alignment with CMS' commitment to the general principles of the President's Executive Order 13563 released January 2011entitled “Improving Regulation and Regulatory Review,” which promotes modifying and streamlining an agency's regulatory program to be more effective in achieving regulatory objectives. Section 6 of Executive Order 13563 requires agencies to identify regulations that may be “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand or repeal them in accordance with what has been learned.” This approach is also in alignment with the President's Open Government and Transparency Initiative that establishes a system of transparency, public participation, and collaboration.
Therefore, this quarterly notice provides only the specific updates that have occurred in the 3-month period along with a hyperlink to the full listing that is available on the CMS Web site or the appropriate data registries that are used as our resources. This information is the most current up-to-date information and will be available earlier than we publish our quarterly notice. We believe the Web site list provides more timely access for beneficiaries, providers, and suppliers. We also believe the Web site offers a more convenient tool for the public to find the full list of qualified providers for these specific services and offers more flexibility and “real time” accessibility. In addition, many of the Web sites have listservs; that is, the public can subscribe and receive immediate notification of any updates to the Web site. These listservs avoid the need to check the Web site, as notification of updates is automatic and sent to the subscriber as they occur. If assessing a Web site proves to be difficult, the contact person listed can provide information.
This notice is organized into 15 addenda so that a reader may access the subjects published during the quarter covered by the notice to determine whether any are of particular interest. We expect this notice to be used in concert with previously published notices. Those unfamiliar with a description of our Medicare manuals should view the manuals at http://www.cms.gov/manuals.
(Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance, Program No. 93.774, Medicare—Supplementary Medical Insurance Program, and Program No. 93.714, Medical Assistance Program)
The Indian Health Service (IHS) is accepting competitive cooperative agreement applications for Enhanced HIV/AIDS Screening and Engagement in Care. This program is funded by the Office of the Secretary (OS), Department of Health and Human Services (HHS). Funding for the HIV/AIDS award will be provided by OS via an Intra-Departmental Delegation of Authority dated 07/17/13 to IHS to permit obligation of funding appropriated by the Department of Defense, Military Construction and Veterans Affairs, and Full-Year Continuing Appropriations Act, 2013, Public Law 113–6. This program is described in the Catalog of Federal Domestic Assistance under 93.933.
The IHS Office of Clinical and Preventive Services (OCPS), National Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome (HIV/AIDS) Program serves as the primary source for national education, policy development, budget development, and allocation for clinical, preventive, and public health HIV/AIDS programs for the IHS, Area Offices, and Service Units. It provides leadership in articulating the clinical, preventive, and public health needs of American Indian/Alaska Native (AI/AN) communities and developing, managing, and administering program functions related to HIV/AIDS.
The purpose of this cooperative agreement is to meet community needs for the enhancement of HIV/AIDS testing activities and the provision of HIV/AIDS-related services among AI/AN people. Such programs are necessary to reduce the incidence of HIV/AIDS and improve quality of life for People Living with HIV/AIDS (PLWHA). The main goals are to: increase the number of AI/AN with awareness of his/her HIV status; and, improve engagement and retention in care among PLWHA. Awardee activities will seek to: increase access to HIV related services, reduce stigma, make HIV testing routine, and improve engagement in care. Emphasis should be placed on increasing routine HIV screening for adults as per 2006 Centers for Disease Control and Prevention (CDC) guidelines, provide pre- and post-test counseling (when indicated), and developing or deploying strategies for engaging PLWHA in appropriate, culturally responsive HIV-related care.
Cooperative Agreement.
The total amount of funding identified for the current fiscal year 2013 is approximately $320,000. Individual award amounts are anticipated to be between $60,000 and $90,000. All competing and continuation awards issued under this announcement are subject to the availability of funds. In the absence of funding, the IHS is under no obligation to make any awards selected for funding under this announcement.
Approximately four awards will be issued under this program announcement. OS and IHS will concur on the final decision as to who will receive awards.
The project period will be for five years and will run consecutively from September 1, 2013 to August 31, 2018.
In the Department of Health and Human Services (HHS), a cooperative agreement is administered under the same policies as a grant. The funding agency (OS) is required to have substantial programmatic involvement in the project during the entire award segment. Below is a detailed description of the level of involvement required for both the funding agency and the grantee. OS, through IHS, will be responsible for activities listed under section A and the awardee will be responsible for activities listed under section B as stated:
Provide funded organizations with ongoing consultation and technical assistance to plan, implement, and evaluate each component of the comprehensive program as described under Grantee Cooperative Agreement Award Activities below. Consultation and technical assistance will include, but not be limited to, the following areas:
(1) Interpretation of current scientific literature related to epidemiology, statistics, surveillance, Healthy People 2020 Objectives, and other HIV disease control activities;
(2) Design and implementation of program components (including, but not limited to, program implementation methods, surveillance, epidemiologic analysis, outbreak investigation, development of programmatic evaluation, development of disease control programs, and coordination of activities);
(3) Implementation of program management best practices;
(4) Conduct site visits to assess program progress and provide programmatic technical assistance as travel funds allow; and
(5) Coordination of these activities with all IHS HIV activities on a national basis.
• Assist AI/AN communities and Tribal organizations in increasing the number of AI/ANs with awareness of their HIV status. The grantee will assist and facilitate reporting of HIV diagnoses to local and State public health authorities in the region as required by applicable law.
• Test at least one previously untested (not tested in the prior five years) patient for every $75.00 in cooperative agreement funds received, inclusive of all ancillary and indirect costs.
• Collaborate with national IHS programs by providing standardized, anonymous HIV surveillance data on a quarterly basis, and in identifying and documenting best practices for implementing routine HIV testing.
• Participate in the development of systems for sharing, improving, and disseminating aggregate HIV data at a national level for purposes of education for AI/AN communities, Government Performance Results Act of 1993 (GPRA), Healthy People 2020 and other national-level activities.
• Develop or deploy services for PLWHA to engage or re-engage (link) them into appropriate medical care, including treatment and prevention services for comorbid conditions.
• Provide a three page mid-year report and no more than a ten page summary annual report at the end of each project year. The report should include the HHS HIV common indicators and establish the impact and outcomes of various methods of implementing routine screening tried during the funding period.
This is a full competition announcement.
Eligible Applicants must be one of the following:
i. An Indian Tribe as defined by 25 U.S.C. 1603(14);
ii. A Tribal organization as defined by 25 U.S.C. 1603(26); or
iii. An Urban Indian organization as defined by 25 U.S.C. 1603(29). Applicants must provide proof of non-profit status with the application, e.g. 501(c)(3).
Please refer to Section IV.2 (Application and Submission Information/Subsection 2, Content and Form of Application Submission) for additional proof of applicant status documents required such as Tribal resolutions, proof of non-profit status, etc.
The IHS does not require matching funds or cost sharing for grants or cooperative agreements.
If application budgets exceed the highest dollar amount outlined under the “Estimated Funds Available” section within this funding announcement, the application will be considered ineligible and will not be reviewed for further consideration. If deemed ineligible, IHS will not return the application. The applicant will be notified by email by the Division of Grants Management (DGM) of this decision.
Tribal Resolution—A tribal resolution is not required for Urban Indian organization applicants, however all applying Urban Indian organizations must provide proof of non-profit status and a letter from the Board of Directors authorizing the application. Board of Directors letters are required to accompany the application submission. This can be attached to the electronic application. An Indian Tribe that is proposing a project affecting another Indian Tribe must include resolutions from all affected Tribes to be served. Applications by Tribal organizations will not require a specific Tribal resolution if the current Tribal resolution(s) under which they operate would encompass the proposed grant activities. Draft resolutions are acceptable in lieu of an official resolution. However, an official signed Tribal resolution must be received by the DGM prior to the beginning of the Objective Review. If an official signed resolution is not received by the Review Date listed under the Key Dates section on page one of this announcement, the application will be considered incomplete and ineligible.
Organizations claiming non-profit status must submit proof. A copy of the 501(c)(3) Certificate must be received with the application submission by the Application Deadline Date listed under the Key Dates section on page one of this announcement.
An applicant submitting any of the above additional documentation after the initial application submission due date is required to ensure the information was received by the IHS by obtaining documentation confirming delivery (i.e. FedEx tracking, postal return receipt, etc.).
The application package and detailed instructions for this announcement can be found at
The applicant must include the project narrative as an attachment to the application package. Mandatory documents for all applicants include:
○ Proposed scope of work, objectives, and activities that provide a description of what will be accomplished, including a one-page Timeframe Chart.
Acceptable forms of documentation include:
A. Project Narrative: This narrative should be a separate Word document that is no longer than 15 pages and must: be single-spaced, be type written, have consecutively numbered pages, use black type not smaller than 12 characters per one inch, and be printed on one side only of standard size 8
Be sure to succinctly answer all questions listed under the evaluation
There are three parts to the narrative: Part A—Program Information; Part B—Program Planning and Evaluation; and Part C—Program Report. See below for additional details about what must be included in the narrative.
Section 1: Needs.
Describe how the Indian Tribe or organization has determined it has the administrative infrastructure to support activities to increase HIV/AIDS screening and assist individuals with accessing care. Explain any previous planning activities the Tribe or organization has completed relevant to this or similar goals.
Section 1: Program Plans.
Describe fully and clearly the direction the Indian Tribe or organization plans to take in the implementation of this program, including how the Tribe plans to demonstrate improved health and services to the community it serves. Include proposed timelines. The total timeline should be no longer than one page.
Section 2: Program Evaluation.
Describe fully and clearly the improvements that will be made by the awardee to manage the program and identify the anticipated or expected benefits for the Tribe or AI/AN people served.
Section 1: Describe major accomplishments.
Please identify and describe significant program achievements associated with the delivery of quality health services or outreach services in the past 24 months in implementing previous grants, cooperative agreements, or other related activities. Provide a comparison of the actual accomplishments to the goals established for the project period, or if applicable, provide justification for the lack of progress.
Section 2: Describe major activities over the last 24 months.
Please identify and summarize recent major health related project activities of the work done during the project period.
B. Budget Narrative: This narrative must describe the budget requested and match the scope of work described the project narrative. The budget narrative should not exceed five pages.
Applications must be submitted electronically through Grants.gov by 12:00 a.m., midnight Eastern Standard Time (EST) on the Application Deadline Date listed in the Key Dates section on page one of this announcement. Any application received after the application deadline will not be accepted for processing, nor will it be given further consideration for funding. The applicant will be notified by the DGM via email of this decision.
If technical challenges arise and assistance is required with the electronic application process, contact Grants.gov Customer Support via email to
If the applicant needs to submit a paper application instead of submitting electronically via Grants.gov, prior approval must be requested and obtained (see Section IV.6 below for additional information). The waiver must be documented in writing (emails are acceptable), before submitting a paper application. A copy of the written approval must be submitted along with the hardcopy that is mailed to the DGM. Once the waiver request has been approved, the applicant will receive a confirmation of approval and the mailing address to submit the application. Paper applications that are submitted without a waiver from the Acting Director of DGM will not be reviewed or considered further for funding. The applicant will be notified via email of this decision by the Grants Management Officer of DGM. Paper applications must be received by the DGM no later than 5:00 p.m., EST, on the Application Deadline Date listed in the Key Dates section on page one of this announcement. Late applications will not be accepted for processing or considered for funding.
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
• Pre-award costs are not allowable.
• The available funds are inclusive of direct and appropriate indirect costs.
• Only one grant/cooperative agreement will be awarded per applicant.
• IHS will not acknowledge receipt of applications.
All applications must be submitted electronically. Please use the
If the applicant receives a waiver to submit paper application documents, they must follow the rules and timelines that are noted below. The applicant must seek assistance at least ten days prior to the Application Deadline Date listed in the Key Dates section on page one of this announcement.
Applicants that do not adhere to the timelines for System for Award Management (SAM) and/or
Please be aware of the following:
• Please search for the application package in
• If you experience technical challenges while submitting your application electronically, please contact Grants.gov Support directly at:
• Upon contacting Grants.gov, obtain a tracking number as proof of contact. The tracking number is helpful if there are technical issues that cannot be resolved and a waiver from the agency must be obtained.
• If it is determined that a waiver is needed, the applicant must submit a request in writing (emails are acceptable) to
• If the waiver is approved, the application should be sent directly to the DGM by the Application Deadline Date listed in the Key Dates on page one of this announcement.
• Applicants are strongly encouraged not to wait until the deadline date to begin the application process through Grants.gov as the registration process for SAM and Grants.gov could take up to fifteen working days.
• Please use the optional attachment feature in Grants.gov to attach additional documentation that may be requested by the DGM.
• All applicants must comply with any page limitation requirements described in this Funding Announcement.
• After electronically submitting the application, the applicant will receive an automatic acknowledgment from Grants.gov that contains a Grants.gov tracking number. The DGM will download the application from Grants.gov and provide necessary copies to the appropriate agency officials. Neither the DGM nor the OCPS will notify the applicant that the application has been received.
• Email applications will not be accepted under this announcement.
All IHS applicants and grantee organizations are required to obtain a DUNS number and maintain an active registration in the SAM database. The DUNS number is a unique 9-digit identification number provided by D&B which uniquely identifies each entity. The DUNS number is site specific; therefore, each distinct performance site may be assigned a DUNS number. Obtaining a DUNS number is easy, and there is no charge. To obtain a DUNS number, please access it through
All HHS recipients are required by the Federal Funding Accountability and Transparency Act of 2006, as amended (“Transparency Act”), to report information on subawards. Accordingly, all IHS grantees must notify potential first-tier subrecipients that no entity may receive a first-tier subaward unless the entity has provided its DUNS number to the prime grantee organization. This requirement ensures the use of a universal identifier to enhance the quality of information available to the public pursuant to the Transparency Act.
Organizations that were not registered with Central Contractor Registration (CCR) and have not registered with SAM will need to obtain a DUNS number first and then access the SAM online registration through the SAM home page at
Additional information on implementing the Transparency Act, including the specific requirements for DUNS and SAM, can be found on the IHS Grants Management, Grants Policy Web site:
The instructions for preparing the application narrative also constitute the evaluation criteria for reviewing and scoring the application. Weights assigned to each section are noted in parentheses. The 15 page narrative should include only the first year of activities; information for multi-year projects should be included as an appendix. See “Multi-year Project Requirements” at the end of this section for more information. The narrative section should be written in a manner that is clear to outside reviewers unfamiliar with prior related activities of the applicant. It should be well organized, succinct, and contain all information necessary for reviewers to understand the project fully. Points will be assigned to each evaluation criteria adding up to a total of 100 points. A minimum score of 60 points is required for funding. Points are assigned as follows:
(1) Define the project's target population, identify unique characteristics, and describe the impact of HIV on the population.
(2) Describe the gaps/barriers in HIV testing for the population.
(3) Describe challenges to providing HIV care in the population.
(4) Describe the cultural or sociological barriers of the target population in seeking or accessing services.
i. Describe the objectives of the program and how they will increase HIV screening in (self-reported) previously untested clients.
ii. Describe how the objectives of the program will improve linkages to care for PLWHA in the community.
i. Identify the proposed program activities and explain how these activities will increase and sustain HIV screening.
ii. Describe policy and procedure changes anticipated for testing implementation that include:
1. Support of CDC 2006 Revised Testing Recommendations.
2. Increasing community awareness of new HIV testing and support availability. Include activities meant to address and reduce stigma.
3. Reaching a wide range of persons including diverse age and sex categories. If specific groups will receive specific outreach, explain why and how.
4. Provide a clear timeline with quarterly milestones for project activities.
i. Describe how the program will ensure that clients receive their test results, particularly clients who test positive.
ii. Describe how the program will ensure that individuals with initial HIV positive test results will receive confirmatory tests. If you do not provide confirmatory HIV testing, you must provide a letter of intent or Memorandum of Understanding with an external laboratory documenting the process through which initial HIV positive test results will be confirmed.
iii. Describe the program strategies to linking seropositive patients to care and effectively engaging them in care.
iv. Describe the program procedures for reporting seropositive patients to the
v. Describe the program quality assurance strategies.
vi. Describe how the program will ensure client confidentiality.
vii. Describe how the program will ensure that services are culturally sensitive and relevant.
viii. Describe how the program will streamline procedures so as to reduce the overall cost per test administered.
(1) Grantee shall provide a plan for monitoring and evaluating implementation of HIV tests and identify best practices related to engagement and retention in care.
(2) Evaluation planning must include reporting of the following:
i. Facility-level information on gender, age, and race/ethnicity of persons tested, with no personal identifiers.
ii. Number of HIV tests performed.
iii. Number of HIV tests performed in patients who self-report that they have previously been untested (in the last 5 years).
iv. Number of positive tests.
v. Number of positive tests confirmed.
vi. Number of newly diagnosed HIV infections.
vii. Number of persons with positive tests who receive their results.
viii. Number of persons with positive tests who are actively linked to HIV care, as defined by attendance of at least one medical appointment within three months of diagnosis.
ix. Measures in place to protect confidentiality.
(3) Optional Measures:
i. Number of clients refusing testing due to previous knowledge of status.
ii. Sustainability measures undertaken to continue testing following the end of this funding.
This section outlines the broader capacity of the organization to complete the project outlined in the work plan. It includes the identification of personnel responsible for completing tasks and the chain of responsibility for successful completion of the project outlined in the work plan.
(1) Describe the organizational structure.
(2) Describe what equipment (i.e., phone, Web sites, etc.) and facility space (i.e., office space) will be available for use during the proposed project. Include information about any equipment not currently available that will be purchased throughout the agreement.
(3) List key personnel who will work on the project.
i. Identify staffing plan, existing personnel and new program staff to be hired.
ii. In the appendix, include position descriptions and resumes for all key personnel. Position descriptions should clearly describe each position and duties indicating desired qualifications, experience, and requirements related to the proposed project and how they will be supervised. Resumes must indicate that the proposed staff member is qualified to carry out the proposed project activities and who will determine if the work of a contractor is acceptable.
iii. If the project requires additional personnel beyond those covered by the supplemental grant, (i.e., IT support, volunteers, interviewers, etc.), note these and address how these positions will be filled and, if funds are required, the source of these funds.
iv. If personnel are to be only partially funded by this supplemental grant, indicate the percentage of time to be allocated to this project and identify the resources used to fund the remainder of the individual's salary.
i. Briefly describe the facility and user population.
ii. Describe the Tribe or the organization's ability to conduct this initiative through: Linkages to treatment and care: partnerships established to refer out of the facility as needed for specialized treatment, care, confirmatory testing (if applicable) and counseling services.
Provide a clear estimate of the project program costs and justification for expenses for the entire grant period. The budget and budget justification should be consistent with the tasks identified in the work plan. The budget focus should be on increasing and sustaining HIV testing services as well as supporting entry and retention into care.
(1) A categorical budget (Form SF 424A, Budget Information Non-Construction Programs) completing each of the budget periods is requested.
(2) Budget narrative that serves as justification for all costs, explaining why each line item is necessary or relevant to the proposed project. Include sufficient details to facilitate the determination of allowable costs.
(3) Budget justifications should include a brief narrative for the second year.
(4) If indirect costs are claimed, indicate and apply the current negotiated rate to the budget. Include a copy of the rate agreement in the appendix.
Projects requiring second, third, fourth, and/or fifth year must include a brief project narrative and budget (one additional page per year) addressing the developmental plans for each additional year of the project.
• Work plan, logic model and/or time line for proposed objectives.
• Position descriptions for key staff.
• Resumes of key staff that reflect current duties.
• Consultant or contractor proposed scope of work and letter of commitment (if applicable).
• Current Indirect Cost Agreement.
• Organizational chart(s) highlighting proposed project staff and their supervisors as well as other key contacts within the organization and key community contacts.
• Map of area to benefit project identifying where target population resides and project location(s). Include trails, parks, schools, bike paths and other such applicable information.
• Additional documents to support narrative (i.e. data tables, key news articles, etc.).
Each application will be prescreened by the DGM staff for eligibility and completeness as outlined in the funding announcement. Incomplete applications and applications that are non-responsive to the eligibility criteria will not be referred to the ORC. Applicants will be notified by DGM, via email, to outline minor missing components (i.e., signature on the SF–424, audit documentation, key contact form) needed for an otherwise complete application. All missing documents must be sent to DGM on or before the due date listed in the email of notification of missing documents required.
To obtain a minimum score for funding by the ORC, applicants must address all program requirements and provide all required documentation. If an applicant receives less than a minimum score, it will be considered to be “Disapproved” and will be informed via email by the IHS Program Office of their application's deficiencies. A summary statement outlining the strengths and weaknesses of the application will be provided to each disapproved applicant. The summary
The Notice of Award (NoA) is a legally binding document signed by the Grants Management Officer and serves as the official notification of the grant award. The NoA will be initiated by the DGM in our grant system, GrantSolutions (
Applicants who received a score less than the recommended funding level for approval, 60 points, and were deemed to be disapproved by the ORC, will receive an Executive Summary Statement from the IHS program office within 30 days of the conclusion of the ORC outlining the weaknesses and strengths of their application submitted. The IHS program office will also provide additional contact information as needed to address questions and concerns as well as provide technical assistance if desired.
Approved but unfunded applicants that met the minimum scoring range and were deemed by the ORC to be “Approved”, but were not funded due to lack of funding, will have their applications held by DGM for a period of one year. If additional funding becomes available during the course of FY 2013, the approved application may be re-considered by the awarding program office for possible funding. The applicant will also receive an Executive Summary Statement from the IHS program office within 30 days of the conclusion of the ORC.
Any correspondence other than the official NoA signed by an IHS Grants Management Official announcing to the Project Director that an award has been made to their organization is not an authorization to implement their program on behalf of IHS.
Cooperative agreements are administered in accordance with the following regulations, policies, and Office of Management and Budget (OMB) cost principles:
A. The criteria as outlined in this Program Announcement.
B. Administrative Regulations for Grants:
• 45 CFR Part 92, Uniform Administrative Requirements for Grants and Cooperative Agreements to State, Local and Tribal Governments.
• 45 CFR Part 74, Uniform Administrative Requirements for Awards and Subawards to Institutions of Higher Education, Hospitals, and other Non-profit Organizations.
C. Grants Policy:
• HHS Grants Policy Statement, Revised 01/07.
D. Cost Principles:
• 2 CFR Part 225—Cost Principles for State, Local, and Indian Tribal Governments (OMB Circular A–87).
• 2 CFR Part 230—Cost Principles for Non-Profit Organizations (OMB Circular A–122).
E. Audit Requirements:
• OMB Circular A–133, Audits of States, Local Governments, and Non-profit Organizations.
This section applies to all grant recipients that request reimbursement of indirect costs (IDC) in their grant application. In accordance with HHS Grants Policy Statement, Part II–27, IHS requires applicants to obtain a current IDC rate agreement prior to award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate covers the applicable grant activities under the current award's budget period. If the current rate is not on file with the DGM at the time of award, the IDC portion of the budget will be restricted. The restrictions remain in place until the current rate is provided to the DGM.
Generally, IDC rates for IHS grantees are negotiated with the Division of Cost Allocation (DCA)
The grantee must submit required reports consistent with the applicable deadlines. Failure to submit required reports within the time allowed may result in suspension or termination of an active grant, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in one or both of the following: (1) The imposition of special award provisions; and (2) the non-funding or non-award of other eligible projects or activities. This requirement applies whether the delinquency is attributable to the failure of the grantee organization or the individual responsible for preparation of the reports. Reports must be submitted electronically via GrantSolutions. Personnel responsible for submitting reports will be required to obtain a login and password for GrantSolutions. Please see the Agency Contacts list in section VII for the systems contact information.
The reporting requirements for this program are noted below.
Program progress reports are required semi-annually, within 30 days after the budget period ends. These reports must include a brief comparison of actual accomplishments to the goals established for the period, or, if applicable, provide sound justification for the lack of progress, and other pertinent information as required. A final report must be submitted within 90 days of expiration of the budget/project period.
Federal Financial Report FFR (SF–425), Cash Transaction Reports are due 30 days after the close of every calendar quarter to the Division of Payment Management, HHS at:
Grantees are responsible and accountable for accurate information being reported on all required reports: the Progress Reports and Federal Financial Report.
This award may be subject to the Transparency Act subaward and executive compensation reporting requirements of 2 CFR Part 170.
The Transparency Act requires the OMB to establish a single searchable
IHS has incorporated a Term of Award into all IHS Standard Terms and Conditions, NoAs, and funding announcements regarding the FSRS reporting requirement. This IHS Term of Award is applicable to all IHS grant and cooperative agreements issued on or after October 1, 2010, with a $25,000 subaward obligation dollar threshold met for any specific reporting period. Additionally, all new (discretionary) IHS awards (where the project period is made up of more than one budget period) and where: (1) The project period start date was October 1, 2010 or after and (2) the primary awardee will have a $25,000 subaward obligation dollar threshold during any specific reporting period will be required to address the FSRS reporting. For the full IHS award term implementing this requirement and additional award applicability information, visit the Grants Management Grants Policy Web site at:
Telecommunication for the hearing impaired is available at: TTY (301) 443–6394.
1. Questions on the programmatic issues may be directed to: Lisa C. Neel, MPH, HIV Program Analyst, 801 Thompson Avenue, Suite 200, Rockville, MD 20852, Phone: 301–443–4305 Email:
2. Questions on grants management and fiscal matters may be directed to: Andrew Diggs, Grants Management Officer, 801 Thompson Avenue, TMP Suite 360, Rockville, MD 20852, Phone: 301–443–2262 Email:
3. Questions on systems matters may be directed to: Paul Gettys, Grant Systems Coordinator, 801 Thompson Avenue, TMP Suite 360, Rockville, MD 20852, Phone: 301–443–2114; or the DGM main line 301–443–5204, Fax: 301–443–9602 E-Mail:
The Public Health Service strongly encourages all cooperative agreement and contract recipients to provide a smoke-free workplace and promote the non-use of all tobacco products. In addition, Public Law 103–227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of the facility) in which regular or routine education, library, day care, health care, or early childhood development services are provided to children. This is consistent with the HHS mission to protect and advance the physical and mental health of the American people.
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 meetings.
The meetings 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 a meeting of the National Advisory Council on Drug Abuse.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the 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
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this notice at least 10 days in advance of the meeting. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee by forwarding their statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
This notice announces a meeting of the Scientific Advisory Committee on Alternative Toxicological Methods (SACATM). SACATM advises the Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM), the National Toxicology Program (NTP) Interagency Center for the Evaluation of Alternative Toxicological Methods (NICEATM), and the Director of the National Institute of Environmental Health Sciences (NIEHS) and NTP regarding statutorily mandated duties of ICCVAM and activities of NICEATM. Information about the meeting and registration are available at
Dr. Lori White, Designated Federal Officer for SACATM, Office of Liaison, Policy and Review, Division of NTP, NIEHS, P.O. Box 12233, K2–03, Research Triangle Park, NC 27709. Phone: 919–541–9834, Fax: 919–541–0295, Email:
Persons wishing to present oral comments are encouraged to pre-register on the SACATM meeting registration form (
SACATM was established in response to the ICCVAM Authorization Act [Section 285
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.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276–1243.
Comments are invited on: (a) Whether the proposed collections of information are 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.
The Substance Abuse and Mental Health Services Administration (SAMHSA) is conducting message testing to inform the development and implementation of a tobacco use prevention and cessation campaign aimed at youth with substance use and/or mental health conditions.
The purpose of the project is to inform messaging efforts, through focus groups with youth and in-depth interviews with health care providers, to improve tobacco use prevention and cessation efforts in populations with mental health and substance use concerns, particularly youth and vulnerable populations. The focus groups and interviews are an integral
SAMHSA will screen parents (because focus group participants are under the age of consent) and youth, conduct focus groups with youth with substance use and/or mental health conditions, and interview health care professionals who treat youth with these conditions. The screen will be administered by telephone to parents first and, as eligible, to youth and will take 10 minutes to complete for parents and for youth. Questions will include a mix of open-ended and closed-ended responses and are intended to gather information on previous diagnosis and symptomology of mental health conditions and availability to participate in the focus group. The focus groups with youth will be conducted in person and will take up to 90 minutes. Questions are primarily open-ended and intended to gather information on the reasons youth with substance use and/or mental health conditions use tobacco, the barriers and facilitators to tobacco use prevention and cessation, the appeal of various tobacco use prevention and cessation messages, and the best dissemination strategies and communication channels for a future campaign aimed at this specialized group. The interviews with health care professionals who treat youth with mental health and/or substance use conditions will be conducted in person, as feasible, or by telephone and will take up to 45 minutes. Questions are primarily open-ended and intended to gather information to better understand how various health care professionals screen for and address tobacco use in youth receiving care in their practice, identify messages and materials aimed at health care professionals to address tobacco use prevention and cessation in youth with substance use and/or mental health conditions, determine the most efficient communication strategies and channels to disseminate this information. All data collections are voluntary.
Below is the table of the estimated total burden hours:
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 2–1057, One Choke Cherry Road, Rockville, MD 20857
Notice of Federal Advisory Committee charter renewal.
The Secretary of Homeland Security has determined that the renewal of the charter of the Homeland Security Science and Technology Advisory Committee (HSSTAC) is necessary and in the public interest in connection with the Department of Homeland Security, Science and Technology Directorate's performance of its duties. This determination follows consultation with the Committee Management Secretariat, General Services Administration.
If you desire to submit comments on this action, they must be submitted by August 24, 2013. Comments must be identified by (DHS–2011–0023) and may be submitted by
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Mary Hanson, HSSTAC Executive Director, Science and Technology Directorate, Department of Homeland Security, 245 Murray Lane, Bldg. 410, Washington, DC 20528, 202–254–5866(O) 202–254–5823 (F),
The committee addresses areas of interest and importance to the Under Secretary for Science and Technology, such as new developments in systems engineering, cyber-security, knowledge management and how best to leverage related technologies funded by other federal agencies and by the private sector. The committee also advises the Under Secretary on policies, management processes, and organizational constructs as needed. Upon request, the committee provides scientifically- and technically-based advice to the Homeland Security Advisory Council.
National Protection and Programs Directorate, DHS.
Committee Management Notice of an Open Federal Advisory Committee Teleconference.
The President's National Security Telecommunications Advisory Committee (NSTAC) will meet on Tuesday, August 20, 2013, via conference call. The meeting will be open to the public.
The NSTAC will meet on Tuesday, August 20, 2013, from 2:00 p.m. to 3:00 p.m. Please note that the meeting may close early if the committee has completed its business.
The meeting will be held via conference call. For access to the conference bridge, contact Ms. Gallop-Anderson by email at
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Mike Echols, NSTAC Alternate Designated Federal Officer, Department of Homeland Security, telephone (703) 235–5469.
Notice of this meeting is given under the
Editorial Note: FR Doc. E3–17541 was originally published at page 44140 in the issue of Tuesday, July 23, 2013. In that publication an incorrect version was published. The corrected document is republished below in its entirety. In addition, the heading is corrected to read as set forth above.
Transportation Security Administration, DHS.
60-day Notice.
The Transportation Security Administration (TSA) invites public comment on a new Information Collection Request (ICR) abstracted below that we will submit to the Office of Management and Budget (OMB) for approval in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The collection involves the submission of biographic and biometric information by individuals seeking to enroll in the TSA Pre✓
Send your comments by September 23, 2013.
Comments may be emailed to
Susan L. Perkins at the above address, or by telephone (571) 227–3398.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The Transportation Security Administration (TSA) is implementing the TSA Pre✓
Under the TSA Pre✓
TSA seeks to establish enrollment sites and implement a mobile enrollment capability. Those seeking to become a TSA Pre✓
Eligibility for the TSA Pre✓
Within 30 days after being advised that the criminal record received from the FBI discloses a disqualifying criminal offense, the applicant must notify TSA in writing of his or her intent to correct any information he or she believes to be inaccurate. The applicant must provide a certified revised record, or the appropriate court must forward a certified true copy of the information, prior to TSA approving eligibility of the applicant for the TSA Pre✓
The TSA Pre✓
For the initial six months of the program, TSA intends to pilot a limited number of enrollment sites and then add additional locations over time; TSA estimates approximately 88,111 respondents will participate in the pilot. Assuming full program rollout following the pilot phase, TSA estimates in the first year following the pilot there will be approximately 383,131 respondents. TSA estimates the total burden to be 27,466 hours for the pilot, and 119,430 hours in the year following the pilot.
TSA will establish a TSA Pre✓
Editorial Note: FR Doc. 2013–17541 was originally published at page 44140 in the issue of Tuesday, July 23, 2013. The corrected document is republished in its entirety.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–5564 (this is not a toll-free number) or email
Arlette Mussington, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street SW., (L'Enfant Plaza, Room 2206), Washington, DC 20410; telephone 202–402–4109 This is not a toll-free number. Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877–8339. Copies of available documents submitted to OMB may be obtained from Ms. Mussington.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The FSS program, which was established in the National Affordable Housing Act of 1990, promotes the development of local strategies that coordinate the use of public housing assistance and assistance under the Section 8 rental certificate and voucher programs (now known as the Housing Choice Voucher Program) with public and private resources to enable eligible families to increase earned income and financial literacy, reduce or eliminate the need for welfare assistance, and make progress toward economic independence and self-sufficiency. Public Housing Agencies consult with local officials to develop an Action Plan, enter into a Contract of Participation with each eligible family that opts to participate in the program, compute an escrow credit for the family, report annually to HUD on implementation of the FSS program, and complete a funding application for the salary of an FSS program coordinator.
This notice is soliciting comments from members of the pubic and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of burden of the proposed collection of information;
(3) Ways to enhance the quality, utility and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of Labor Relations, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Saundra A. Green, Administrative Officer, Office of Labor Relations, Department of Housing and Urban Development, 451 7th Street SW., Room 2124, Washington, DC 20410–5000; telephone 202–402–5537 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
Information collected on the HUD 4731, Federal Labor Standard Complaint Intake form, will be used by HUD and agencies administering HUD programs to collect information from complainants alleging violations of Federal labor standards on HUD-assisted projects. The information collected is primarily used in the conduct of investigations into the allegations.
Generally, enforcement actions, including investigations, are geared to the respondent's benefit, that is, to determine whether the respondent was underpaid and to ensure the payment of wage restitution to the respondent, if so.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of Labor Relation, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Saundra A. Green, Administrative Officer, Office of labor Relation, Department of Housing and Urban Development, 451 7th Street SW., Room 2124, Washington, DC 20410–5000; telephone 202–402–5537 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
Note: Preparer of this notice may substitute the chart for everything beginning with estimated number of respondents above:
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402–3970; TTY number for the hearing- and speech-impaired (202) 708–2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800–927–7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, and suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Theresa Ritta, Office of Enterprise Support Programs, Program Support Center, HHS, Room 12–07, 5600 Fishers Lane, Rockville, MD 20857; (301) 443–2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1–800–927–7588 for detailed instructions or write a letter to Ann Marie Oliva at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (i.e., acreage, floor plan, existing sanitary facilities, exact street address), providers should contact the appropriate landholding agencies at the following addresses:
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (U.S. Fish and Wildlife Service, Service) have sent an Information Collection Request (ICR) to OMB for review and approval. We summarize the ICR below and describe the nature of the collection and the estimated burden and cost. This information collection is scheduled to expire on August 31, 2013. We 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. However, under OMB regulations, we may continue to conduct or sponsor this information collection while it is pending at OMB.
You must submit comments on or before August 26, 2013.
Send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB—OIRA at (202) 395–5806 (fax) or
To request additional information about this ICR, contact Hope Grey at
There is no requirement for wildlife sanctuaries to submit applications to qualify for the accredited wildlife sanctuary exemption. Wildlife sanctuaries themselves will determine if they qualify. To qualify, they must meet all of the following criteria:
• Approval by the United States Internal Revenue Service (IRS) as a corporation that is exempt from taxation under section 501(a) of the Internal Revenue Code of 1986, which is
• Do not engage in commercial trade in the prohibited wildlife species, including offspring, parts, and products.
• Do not propagate the prohibited wildlife species.
• Have no direct contact between the public and the prohibited wildlife species.
The basis for this information collection is the recordkeeping requirement that we place on accredited wildlife sanctuaries. We require accredited wildlife sanctuaries to maintain complete and accurate records of any possession, transportation, acquisition, disposition, importation, or exportation of the prohibited wildlife species as defined in the CWSA (50 CFR 14, subpart K). Records must be up to date and include: (1) the names and addresses of persons to or from whom any prohibited wildlife species has been acquired, imported, exported, purchased, sold, or otherwise transferred; and (2) the dates of these transactions. Accredited wildlife sanctuaries must:
• Maintain these records for 5 years.
• Make these records accessible to Service officials for inspection at reasonable hours.
• Copy these records for Service officials, if requested.
We again invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. 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 OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) is preparing a Resource Management Plan (RMP) Amendment and Associated Environmental Assessment (EA) to consider leasing Federal coal in response to lease application ALES–55199 for Jefferson County, Alabama. Coal industry representatives, State and local governments, and the general public are encouraged to submit information to assist in determining coal development potential and possible environmental consequences, as well as development conflicts with other resources.
This notice initiates the public scoping process for the Draft RMP Amendment and associated EA for the lease application. Comments on issues may be submitted in writing until August 26, 2013.
Comments may be submitted to the Bureau of Land Management, Southeastern States Field Office, 411 Briarwood Drive, Suite 404, Jackson, MS 39206 or via email:
Gary Taylor or Randall Mills, Southeastern States Field Office at 601–977–5400 or by email at
The coal lease application, filed by Best Coal, Inc., is located in Jefferson County, Alabama. The lease application area is approximately 5 miles north of Mt. Olive, Alabama, on Glovers Bend Road. The proposed lease area, totaling 160 acres, is described as follows:
An interdisciplinary team will prepare the RMP Amendment and associated EA for the lease application. Preliminary issues, subject to change as a result of public input, are (1) Potential impacts of coal development on the surface and subsurface resources; and (2) Consideration of restrictions on lease rights to protect surface resources.
Preliminary planning criteria developed to guide the preparation of the planning analysis, subject to change as a result of public input, are as follows:
1. Land use planning and environmental analysis will be conducted in accordance with laws, regulations, executive orders and manuals. Planning will be conducted for the Federal coal mineral estate (Federal leasable mineral estates such as coal are under the administration of the BLM).
2. A mine plan scenario will be prepared for the Federal coal resource as an analytical tool to inform the National Environmental Policy Act (NEPA) analysis.
3. Resource data needed to evaluate the impacts of coal mining will be collected.
4. The planning team will work cooperatively with (a) Federal, State, county, and local governments and agencies; (b) Tribal governments; (c) Groups and organizations; and (d) Individuals. Comments relating to the preliminary issues and planning criteria should be submitted in writing to the address provided above.
An individual, business entity, or public body may participate in this process by providing information regarding coal or other resource information to assist in determining conflicts that may result from issuance of the coal lease. For other resource information, participants are asked to identify the particular resource value, to provide the reason that the resource would conflict with coal development and provide a map (minimal scale 1:24,000) showing the location of the resource.
The information available to the interdisciplinary team will be considered in addressing the specific resources and uses identified in the 20 Unsuitability Criteria listed at 43 CFR subpart 3461. Screening of the Federal coal lands in the application area through the Unsuitable Criteria will result in a determination as to which lands are (1) Acceptable for further leasing consideration with standard stipulations; (2) Acceptable for further leasing consideration with special stipulations; or (3) Unacceptable for further consideration for leasing.
Written comments should address one or more of the following: (1) Issues to be considered; (2) Whether the preliminary planning criteria are adequate for the issues; (3) Feasible and reasonable alternatives to examine; or (4) Relevant coal or other resource information.
The BLM will utilize and coordinate the NEPA commenting process to satisfy the public involvement process for Section 106 of the National Historic Preservation Act (16 U.S.C. 470f) as provided for in 36 CFR 800.2(d)(3). Native American tribal consultations were conducted in accordance with policy, and tribal concerns will be given due consideration, including impacts on Indian trust assets. Federal, State, and local agencies, along with other stakeholders that may be interested or affected by the BLM's decision on this project, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate as a cooperating agency.
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.
43 CFR 1610.2(c).
Bureau of Land Management, Interior.
Notice of Intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) Oklahoma Field Office, Tulsa, Oklahoma, intends to prepare a Resource Management Plan (RMP) with an associated Environmental Impact Statement (EIS) for the Oklahoma, Kansas, and Texas planning area. This notice announces the beginning of the scoping process to solicit public comments and identify issues. The RMP will replace the existing Oklahoma RMP (1994), the Kansas RMP (1991), and the Texas RMP (1996), and the associated EIS for the RMP will also analyze Bureau of Indian Affairs (BIA) management decisions for lands and minerals managed by the BIA in the three states.
This notice initiates the public scoping process for the RMP with an associated EIS. Comments on issues may be submitted in writing until August 26, 2013]. The dates and locations of any scoping meetings will be announced at least 15 days in advance through local media,
You may submit comments on issues and planning criteria related to the Oklahoma/Kansas/Texas RMP by any of the following methods:
•
•
•
•
Laurence Levesque, Planning and Environmental Specialist; telephone 918–621–4136; address 7906 East 33rd Street, Suite 101, Tulsa, OK 74145; email B
This document provides notice that the BLM Oklahoma Field Office, Tulsa, Oklahoma, intends to prepare an RMP with an associated EIS for the Oklahoma, Kansas, and Texas planning area RMP; announces the beginning of the scoping process; and seeks public input on issues and planning criteria. The EIS for the RMP will also analyze decisions for Indian mineral interests administered by the BIA Eastern Oklahoma and Southern Plains Regional Offices. The BLM will be the lead agency in the RMP development effort, and the BIA will participate as a cooperating agency and sign a separate Record of Decision for management decisions for Indian mineral interests administered by the BIA Eastern Oklahoma and Southern Plains Regional Offices.
The planning area encompasses about 100,000 acres of public land; 5,863,000 acres of Federal mineral interests; and 670,000 acres of Indian mineral interests. The BLM and the BIA will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns. The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the planning process.
Preliminary issues for the planning area have been identified by the BLM and BIA personnel; Federal, State, and local agencies; and other stakeholders. The issues include:
1. How should the BLM and the BIA facilitate energy development, both renewable and non-renewable, while allowing for multiple uses and appropriate protection of public lands and resources?
2. What management actions, best management practices, and mitigation measures are necessary to protect or enhance resources, such as, visual, air quality, groundwater, watersheds and riparian areas, recreational areas, vegetation, soils, cultural sites, special designations, wildlife and special status species habitat, and rangeland health?
3. Where are helium resources located and how can these reserves, as well as the Federal Helium Plant, be best managed for the public?
4. How should the BLM address long-term grassland pasture facilities for wild horses and burros transferred from western rangelands?
5. Which public lands should be identified for retention, proposed for withdrawal, disposal, or acquisition to facilitate more efficient land management?
6. Which public lands should be identified as open, limited, or closed to motorized vehicle travel to meet resource and recreational demands?
1. The RMP will be in compliance with FLPMA, NEPA, and all other applicable laws and regulations.
2. Land use decisions in the RMP will apply to the surface and subsurface estate managed by the BLM and the BIA. The BLM will not make any recommendations or decisions that affect Federal mineral estate beyond its explicit authority under applicable laws and regulations.
3. Public participation and collaboration will be an integral part of the planning process.
4. The BLM and the BIA will work cooperatively and collaboratively with cooperating agencies and all other interested groups, agencies, and individuals.
5. The RMP will incorporate, where applicable, management decisions brought forward from existing planning documents.
6. Identification of any lands for further consideration for coal leasing will be limited to any areas with development potential.
7. Final title analysis has not yet been conducted for all Federal mineral ownership. Although the BLM will plan for these tracts, it will not lease, transfer or otherwise authorize any action(s) prior to verification of title for the properties.
You may submit comments on issues and planning criteria in writing to the BLM at any public scoping meeting, or by using one of the methods listed in the “
1. Issues to be resolved in the plan;
2. Issues to be resolved through policy or administrative action; or
3. Issues beyond the scope of this plan.
The BLM will provide an explanation in the Draft RMP/EIS as to why an issue was placed in category two or three. The public is also encouraged to help identify any management questions and concerns that should be addressed in the plan. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns.
The BLM will use NEPA public participation requirements to assist the agency in satisfying the public involvement requirements under Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. 470(f)) pursuant to 36 CFR 800.2(d)(3). The information about historic and cultural resources within the area potentially affected by the proposed action will assist the BLM in identifying and evaluating impacts to such
The BLM will consult with Indian tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the proposed action that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the environmental analysis as a cooperating agency.
The BLM will use an interdisciplinary approach to develop the plan in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines will be involved in the planning process: minerals and geology, archaeology, wildlife and fisheries, lands and realty, hydrology, soils, livestock grazing, recreation, sociology, and economics.
40 CFR 1501.7; 43 CFR 1610.2
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) has prepared a Proposed California Desert Conservation Area (CDCA) Plan Amendment and Final Environmental Impact Statement (EIS) for the San Diego Gas & Electric (SDG&E) Ocotillo Sol Solar Project in Imperial County, California, and by this notice is announcing its availability.
BLM planning regulations state that any person who meets the conditions as described in the regulations may protest the Proposed CDCA Plan Amendment. A person who meets the conditions and files a protest must file the protest within 30 days of the date that the Environmental Protection Agency publishes its notice of availability for the EIS in the
Copies of the Ocotillo Sol Solar Project Final EIS/Proposed CDCA Plan Amendment have been sent to affected Federal, State, and local government agencies and to other stakeholders, including tribal governments. Copies are also available in the BLM California Desert District Office at 22835 Calle San Juan de los Lagos, Moreno Valley, CA 92553 and at the El Centro Field Office, 1661 S. 4th Street, El Centro, CA 92243.
Interested persons may also review the Final EIS/Proposed CDCA Plan Amendment on the Internet at
Regular Mail: BLM Director (210), Attention: Brenda Williams, P.O. Box 71383, Washington, DC 20024–1383.
Overnight Mail: BLM Director (210), Attention: Brenda Williams, 20 M Street SE., Room 2134LM, Washington, DC 20003.
Noel Ludwig, Project Manager, telephone 951–697–5368; address 22835 Calle San Juan de Los Lagos, Moreno Valley, CA 92553; or email
The BLM has received a right-of-way (ROW) application from SDG&E to construct, operate, maintain, and decommission the Ocotillo Sol Solar Project, a solar photovoltaic (PV) power plant facility, on approximately 115 acres of BLM-administered public lands in Imperial County, California. The site for the solar facility would be adjacent to the existing Imperial Valley Substation (IVS), 4 miles south of Interstate 8, approximately 5 miles north of the United States-Mexico border, 5 miles south of Seeley, 9 miles southwest of El Centro, and 82 miles east of San Diego.
The proposed project site is located within the BLM's CDCA, the BLM's Yuha Basin Area of Critical Environmental Concern, and the Yuha Desert Management Area for flat-tailed horned lizard. A portion of the north-south running Juan Bautista de Anza National Historic Trail lies approximately 5 miles southwest of the project site at its closest point. The Jacumba Mountains Wilderness lies 11.7 miles to the west of the project site.
All proposed project components, including a temporary 15-acre construction laydown area, would be located on BLM-administered lands. The proposed Ocotillo Sol project components would include the PV modules and mounting structures, a maintenance building with an associated parking area, internal roads, inverters, transformers, and the combining switchgear. An existing road to the IVS would provide access to the proposed project site. New minor internal roads would be constructed between the module rows. The interconnection to the IVS would be via underground trench. Once approved and operational, the proposed Ocotillo Sol project is expected to have an average generating capacity of 15 to 18 megawatts (MW), depending on the specific technology chosen, with a peak output of up to 20 MW.
In connection with its decision on the proposed Ocotillo Sol project, the BLM will also include potential amendments to the CDCA Plan, as analyzed in the Final EIS. The CDCA Plan, while recognizing the potential compatibility of solar energy facilities on public lands, requires that all sites associated with power generation or transmission not identified in the Plan be considered through the land use plan amendment process. The BLM is deciding whether to amend the CDCA Plan to identify the Ocotillo Sol project site as suitable or unsuitable for solar energy development.
The Final EIS describes the following three alternatives: (1) A No Action/No CDCA Plan Amendment; (2) The Applicant's Proposed Project to construct, operate, maintain, and decommission a 100-acre solar PV facility on BLM-managed lands under an authorized ROW, plus utilization of a 15-acre temporary ROW for construction laydown; and (3) A Reduced Footprint Alternative which would retain the 100-acre facility but reduce the laydown area from 15 acres to 2 acres. All of the alternatives except the No Action/No CDCA Plan Amendment would include an amendment to the CDCA Plan.
The issues evaluated in the Final EIS include the physical, biological, cultural, socioeconomic, and other resources that have the potential to be affected by the proposed project and alternatives. These issues include air quality, greenhouse gases and climate change, geology and soil resources, water resources, biological resources, cultural resources, paleontological resources, fire and fuels, lands and realty, special designations, lands with wilderness characteristics, recreation, visual resources, transportation and public access, noise and vibration, public health and safety, socioeconomics, and environmental justice.
The BLM hosted two public scoping meetings in El Centro, California, on August 10, 2011. During the public scoping period, two Federal agencies, eight interest groups, and three individuals provided comments. Two public comment meetings for the Ocotillo Sol Draft EIS/Draft CDCA Plan Amendment were held in El Centro on June 4, 2012. The formal comment period commenced with the publication of the Draft EIS/Draft CDCA Plan Amendment on April 20, 2012 and ended 90 days later on July 19, 2012. The BLM received 13 comment letters (including public comment forms from public meetings, postal letters, emails, and faxes) from individuals, agencies, organizations, and groups during the public comment period.
Comments on the Draft EIS/Draft CDCA Plan Amendment received from the public and internal BLM review were considered and incorporated as appropriate into the Final EIS/Proposed CDCA Plan Amendment. Public comments resulted in the addition of clarifying text, but did not significantly change the analysis, alternatives, or proposed land use plan decisions.
Instructions for filing a protest with the Director of the BLM regarding the Proposed CDCA Plan Amendment may be found in the “Dear Reader” Letter of the Final EIS/Proposed CDCA Plan Amendment and at 43 CFR 1610.5–2.
All protests must be in writing and mailed to the appropriate address, as set forth in the
Before including your address, phone number, email address, or other personal identifying information in your protest, you should be aware that your entire protest—including your personal identifying information—may be made publicly available at any time. While you can ask us in your protest to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2
Bureau of Land Management, Interior.
Public Land Order.
This order withdraws approximately 5,610 acres of National Forest System lands from location and entry under the United States mining laws, and leasing under the mineral and geothermal leasing laws, for a period of 5 years. This withdrawal will protect the scenic and recreational segments of the Chetco Wild and Scenic River corridor in Curry County, Oregon, while Congress considers a technical correction to the Wild and Scenic Rivers Act.
Michael L. Barnes, Bureau of Land Management, Oregon/Washington State Office, 333 SW 1st Avenue, Portland, OR 97204, 503–808–6155, or Dianne Torpin, United States Forest Service, Pacific Northwest Region, 333 SW 1st Avenue, Portland, OR 97204, 503–808–2422. 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 either of the above individuals. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with either of the above individuals. You will receive a reply during normal business hours.
On October 28, 1988, 44.5 miles of the Chetco River located in the Siskiyou National Forest was designated a Wild and Scenic River (102 Stat. 2782 (1988)). Of the designated 44.5 river miles, the lower 19 miles were designated scenic and recreational and remained open to location and entry under the United States mining laws. The United States Forest Service requests that, subject to valid existing rights, the lower 19 miles be closed to location and entry under the United States mining laws and to leasing under the mineral and geothermal leasing laws while legislation is being considered to make a technical correction to Section 3(a)(69) of the Wild and Scenic Rivers Act (16 U.S.C. 1274(69)).
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714, it is ordered as follows:
1. Subject to valid existing rights, the following described National Forest System lands are hereby withdrawn from location and entry under the United States mining laws, and from leasing under the mineral and geothermal leasing laws, but not the mineral materials laws, for a 5-year period, to protect the Scenic and Recreational Segment of the Chetco Wild and Scenic River corridor:
The Point of Beginning, being the southwest corner of Section 31; thence S. 83°43′ E., 599.5 ft. along the south section line of Section 31 to a point which is 100 ft. westerly of and perpendicular to the centerline of Forest Service Road (FSR) 1107–650; thence paralleling FSR 1107–650, 100 ft. westerly and northwesterly of centerline to point 100 ft. westerly of and perpendicular to FSR 1107–650 at intersection of the centerline of FSR 1107; thence N. 74°10′ E., 3572.4 ft. to a point at the end point of FSR 1107–632; thence N. 34°33′ E., 1245.8 ft. to a point at the end point of FSR 1107–630; thence N. 73°50′ E., 785.5 ft. to a point on the east section line of Section 30, which is
The lands aggregate approximately 5,610 acres, more or less, in Curry County.
2. The withdrawal made by this order does not alter the applicability of those public land laws governing the use of the National Forest System lands under lease, license, or permit, or governing the disposal of the mineral or vegetative resources other than under the mining, mineral, and geothermal leasing laws.
3. This withdrawal will expire 5 years from the effective date of this order, unless as a result of a review conducted prior to the expiration date pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714(f), the Secretary determines that the withdrawal shall be extended.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) proposes to sell a 9.26 acre parcel of public land in Jackson County, Oregon, by modified competitive bidding sale procedures for the approved appraised fair market value of $4,500.
The BLM must receive comments regarding the proposed sale on or before September 9, 2013.
Written comments concerning this proposed sale may be submitted to Ashland Resource Area Field Manager, BLM Medford District Office, 3040 Biddle Road, Medford, OR 97504.
Rik Arndt, Supervisory Realty Specialist, 3040 Biddle Road, Medford, OR 97504 or phone at 541–618–2239. 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.
Pursuant to Sections 203 and 209 of the Federal Land Policy and Management Act of 1976, as amended (FLPMA), (43 U.S.C. 1713 and 1719) and regulations at 43 CFR subpart 2710, this conveyance would be made by modified competitive bidding sale procedures, with bidding limited to the two adjacent landowners identified below:
Kurt Wilkening and Toree Wilkening, Trustees or Their Successors in Trust under the Wilkening Living Trust Dated January 27, 1999, P.O. Box 3396, Applegate, OR 97530 and Leslie C. and Rachel A. Martin, 11777 Highway 238, Jacksonville, OR 97530.
The land to be sold is described as follows:
The following land located in Jackson County.
Containing 9.26 acres, more or less.
The parcel was identified in the Medford District 1995 Resource Management Plan (as amended August 2, 2002) as Land Tenure Zone 3 lands, which are suitable for sale or exchange. Land Tenure Zone 3 lands meet the criteria for disposal as outlined in Section 203 of FLMPA. An environmental assessment for the land sale was made available for a 30-day public comment period from October 12, 2011 through November 11, 2011, and no comments were received. Due to the lack of legal access and the small size and irregular shape of the parcel, Federal management of this parcel would be difficult and uneconomical and would provide minimal benefits in the public's interest if retained in Federal ownership. The public interest would be best served by disposing of this parcel to one of the adjacent landowners since the parcel is landlocked. The parcel is L-shaped, with one leg approximately 1,320 feet in length by 74 feet wide, and the second leg approximately 1,070 feet in length by 246 feet wide. The parcel contains no known mineral, geothermal or oil/gas values, and the parcel will be conveyed with no reservation of minerals. Conveyance of the identified public land will be subject to all valid existing
a. A reservation of a right-of-way to the United States for ditches and canals constructed by the authority of the United States under the Act of August 30, 1890 (43 U.S.C. 945).
b. An appropriate indemnification clause protecting the United States from claims arising out of the patentee's use, occupancy, or operation on the patented lands.
c. No ground disturbing activities shall be conducted on the conveyed land, such as grazing, motorized vehicle use/storage/maintenance, water development, construction (commercial, residential or recreational), road construction, renovation, or road use, within 150 feet of waters of the State, including, but not limited to, Keeler Creek, unnamed tributaries, springs, and outflow channels.
d. Vegetation shall not be removed from within the identified 150 feet riparian buffer except for the purpose of on-site fisheries enhancement projects to be approved and administered by local fish and wildlife agencies, primarily the Oregon Department of Fish and Wildlife.
On July 26, 2013, the above described land will be segregated from appropriation under the public land laws, including the mining laws, except the sale provisions of FLPMA. Until completion of the sale, the BLM is no longer accepting land use applications affecting the identified public land. The temporary segregation effect will terminate upon issuance of a conveyance document, publication in the
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.
43 CFR 2710, 2711 and 2720.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On May 16, 2013, a petition was filed with the Commission and Commerce by Bristol Metals, L.P. (Bristol, TN), Felker Brothers Corp. (Marshfield, WI), and Outokumpu Stainless Pipe (Schaumberg, IL), alleging that an industry in the United States is materially injured or threatened with material injury by reason of LTFV imports of welded stainless steel pressure pipe from Malaysia, Thailand, and Vietnam. Accordingly, effective May 16, 2013, the Commission instituted antidumping duty investigation Nos. 731–TA–1210–1212 (Preliminary).
Notice of the institution of the Commission=s investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on July 1, 2013. The views of the Commission are contained in USITC Publication 4413 (July 2013), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on June 21, 2013, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Knowles Electronic, LLC of Itasca, Illinois. A supplement to the complaint was filed on July 9, 2013. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain silicon microphone packages and products containing same by reason of infringement of certain claims of U.S. Patent No. 7,439,616 (“the ‘616 patent”); U.S. Patent No. 8,018,049 (“the ‘049 patent”); and U.S. Patent No. 8,121,331 (“the ‘331 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205–2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of the Secretary, Docket Services Division, U.S. International Trade Commission, telephone (202) 205–1802.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain silicon microphone packages and products containing same by reason of infringement of one or more of claims 1, 2, 8, 11–18, and 21 of the ‘616 patent; claims 1, 15, 16, 19, and 21–26 of the ‘049 patent; and claims 1, 2, 4, 5, and 11–13 of the ‘331 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Knowles Electronics, LLC, 1151 Maplewood Drive, Itasca, Illinois 60143.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations will not participate as a party in this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
On July 23, 2013, the Department of Justice lodged a proposed Third Amendment to the Consent Decree with the United States District Court for the Southern District of Illinois in the lawsuit entitled
Following public notice and opportunity for public comment, on March 18, 2010 the Court entered a Consent Decree resolving certain violations of the federal Clean Air Act, 42 U.S.C. 7401
The United States, the State of New York, and the Lafarge Companies have agreed to further amend the Consent Decree to provide the Lafarge Companies with an extension of time of until July 1, 2016 to complete construction of a replacement kiln at the Ravena, New York cement plant in return for commitments by the Lafarge Companies set forth in the proposed Third Amendment to the Consent Decree. In general, those commitments by the Lafarge Companies are that beginning on January 1, 2013, the Lafarge Companies shall comply with stringent emission caps, specified herein, for sulfur dioxide and nitrogen oxides from the Ravena cement plant, and further that the Lafarge Companies shall fund emission reduction projects in the community surrounding the plant.
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Third Amendment to the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $5.75 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits and signature pages, the cost is $4.25.
60-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until September 24, 2013. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Tracey Robertson, Chief, Federal Firearms Licensing Center, 244 Needy Road, Martinsburg, WV 25405.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
The form is used by the public when applying for a Federal firearms license to collect curios and relics to facilitate a personal collection in interstate and foreign commerce. The information requested on the form establishes eligibility for the license.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: It is estimated that 8,817 respondents will complete a 15 minute form.
(6) An estimate of the total public burden (in hours) associated with the collection: There are an estimated 2,204 annual total burden hours associated with this collection.
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, 145 N Street NE., Room 3W–1407B, Washington, DC 20530.
60-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until September 24, 2013. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Chief, Firearms Industry Programs Branch at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3) Agency form number, if any, and the applicable component of the Department of Justice sponsoring the collection: Form Number: ATF Form 3311.4. Bureau of Alcohol, Tobacco, Firearms and Explosives.
(4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business or other for-profit. Other: None.
Licensed firearms manufacturers and licensed firearms importers must legibly mark firearms manufactured or imported with specific identifying information. ATF may authorize other means of identification (marking variance) upon receipt of a letter application showing that such other identification is reasonable and will not hinder the effective administration of the firearms regulations. ATF Form 3311.4 will be used as a letter application for licensed Federal importers and manufacturers to request approval to use an alternate means for identifying firearms.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: It is estimated that 641 respondents will take 30 minutes to complete the form.
(6) An estimate of the total public burden (in hours) associated with the collection: There are an estimated 321 annual total burden hours associated with this collection.
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, 145 N Street NE., Room 3W–1407B, Washington, DC 20530.
60-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until September 24, 2013. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gary Schaible, National Firearms Act Branch at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3) Agency form number, if any, and the applicable component of the Department of Justice sponsoring the collection: Form Number: ATF F 2 (5320.2). Bureau of Alcohol, Tobacco, Firearms and Explosives.
(4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business or other for-profit. Other: State, Local or Tribal Government.
ATF F 2 (5320.2) is used by a federally qualified firearms manufacturer or importer to report firearms manufactured or imported and to have these firearms registered in the National Firearms Registration and Transfer Record as proof of the lawful existence of the firearm.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: It is estimated that 816 respondents will complete a 45 minute form.
(6) An estimate of the total public burden (in hours) associated with the collection: There are an estimated 3,750 annual total burden hours associated with this collection.
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, 145 N Street NE., Room 3W–1407B, Washington, DC 20530.
60-Day Notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until [insert the date 60 days from the date this notice is published in the
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Christopher Reeves, Chief, Federal Explosives Licensing Center at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
Licensees and permittees whose mailing address will change must notify the Chief, Federal Explosives Licensing Center, at least 10 days before the change. The information is used by ATF to identify correct locations of storage of explosives licensees/permittees and location of storage of explosive materials for purposes of inspection, as well as to notify permittee/licensees of any change in regulations or laws that may affect their business activities.
(5)
(6)
60-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gus Jakowitsch, Accreditation and Technical Support Office, 202–648–8386, 99 New York Avenue NE, Washington, DC 20226.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(1)
(2)
(3)
(4)
The Bureau of Alcohol, Tobacco, Firearms and Explosives provides arson and explosives investigative techniques training to State and local investigators. The registration request form will be used by prospective students.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: It is estimated that 500 respondents will complete a 6 minute form.
(6) An estimate of the total public burden (in hours) associated with the collection: There are an estimated 50 annual total burden hours associated with this collection.
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, 145 N Street NE., Room 3W–1407B, Washington, DC 20530.
60-Day Notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until September 24, 2013. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Chief, Firearms Industry Programs Branch at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
The record keeping requirement is for the purpose of facilitating ATF's authority to inquire into the disposition of any firearm in the course of a criminal investigation.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning
Federal Bureau of Prisons, U. S. Department of Justice.
Notice of intent to prepare a Draft Environmental Impact Statement (EIS).
The Bureau was established in 1930 to provide more progressive and humane care for federal inmates, to professionalize the prison service, and to ensure consistent and centralized administration of federal prisons. The mission of the United States (U.S.) Department of Justice, Federal Bureau of Prisons is to protect society by confining offenders in the controlled environments of prison and community-based facilities that are safe, humane, cost-efficient, and appropriately secure, and that provide work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens. The Bureau accomplishes its mission through the appropriate use of community correction, detention, and correctional facilities that are: Federally-owned and operated; Federally-owned and non-Federally operated; and non-Federally owned and operated.
The federal inmate population has grown continuously since the 1980s. In 1981, the federal inmate population consisted of approximately 23,800 inmates. By 1986, the federal inmate population had increased to about 38,700, a 63 percent increase. Growth continued at a steady rate through the 1990s, and in 1998 the federal inmate population had grown 280 percent, reaching 108,000 inmates. As of March 30, 2013, the Bureau inmate population reached 218,123; this includes 176,039 inmates being housed in 119 Bureau institutions, 29,075 being housed in privately-managed secure facilities, and 13,009 being housed in other contract care. Of the 176,039 inmates housed in Bureau institutions, 22,651 are high-security inmates. The Bureau houses these 22,651 high-security inmates in 19 USPs located throughout six regions within the US: The Mid-Atlantic Region; North Central Region; Northeast Region; South Central Region; Southeast Region; and Western Region. Each region provides facilities for housing inmates at all security levels. The 19 USPs are rated for a total capacity of 14,909 high-security inmates. Therefore, the Bureau is currently 53 percent overcrowded at their high-security institutions and are operating at above rated capacity for their USPs.
The inmate population is continuing to grow throughout the regions and security levels. To meet the current and projected bed space needs, the Bureau evaluates the bedspace needs of the regions using a geographically balanced program. When considering placement of an individual the Bureau does consider the origin of the inmate and attempts to place the inmate in an institution that is within the region of the inmate's origin. Placing inmates within their region of origin provides greater opportunity for visitation with family, which aids in the rehabilitation process.
The proposed action being evaluated in this Draft EIS is the acquisition of property and the construction of a federal correctional facility in Letcher County, Kentucky. The Bureau proposes to acquire approximately 800 acres of land to construct a USP (approximately 61,654 square feet) and FPC (approximately 6,063 square feet) in Letcher County. Inmates housed in the USP would be high-security male inmates and those housed in the FPC would be minimum security male inmates. The facilities would house approximately 1,200 total inmates (approximately 1,088 within the USP and approximately 128 within the FPC). In addition to the USP and FPC, several ancillary facilities necessary for the operation of the USP and FPC would be constructed.
These facilities include the following:
• Central Utility Plant—1,217 square feet
• Firing Range—96 square feet
• Outside Warehouse—3,279 square feet
• UNICOR Warehouse—1,375 square feet
• Staff Training Building—910 square feet
Operation of the USP and FPC would employ approximately 300 full-time staff.
The process of evaluating the potential environmental impacts associated with federal correctional facility development and operation involves the analysis of many factors and features including, but not limited to: Topography, geology, soils, hydrology, biological resources, cultural resources, hazardous materials, visual and aesthetic features, fiscal considerations, population/employment/housing characteristics, community services and facilities, land uses, utility services, transportation systems, air quality, and noise.
The No Action Alternative, other actions considered, but not carried forward, and alternative development areas for the proposed USP and FPC will be analyzed in this Draft EIS. The proposed sites to be examined consist of non-Bureau property near Whitesburg, Letcher County, Kentucky.
During the preparation of the Draft EIS, there will be opportunities for public involvement in order to determine the issues to be examined. The first opportunity will be during the project scoping period which will begin on July 26, 2013 with the publication of the Notice of Intent to prepare a Draft EIS in the
Public notice will be given concerning the availability of the Draft EIS for public review and comment.
Questions concerning the proposed action and the EIS may be directed to: Bridgette Lyles, Site Selection Specialist, Capacity Planning and Site Selection Branch, U.S. Department of Justice, Federal Bureau of Prisons, 320 First Street NW., Washington, DC 20534,
All comments regarding the scoping process must be received or postmarked by August 26, 2013 for consideration in the preparation of the EIS.
Mississippi River Commission.
1:00 p.m., August 12, 2013.
On board MISSISSIPPI V at Riverside Park Landing, La Cross, WI
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the St. Paul District; and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
1:00 p.m., August 13, 2013.
On board MISSISSIPPI V at City Front, Dubuque, IA.
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the Rock Island District; and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
9:00 a.m., August 16, 2013.
On board MISSISSIPPI V at City Front, Alton, IL
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the St. Louis District; and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
9:00 a.m., August 19, 2013.
On board MISSISSIPPI V at City Front, New Madrid, MO
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the Memphis District, and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
9:00 a.m., August 20, 2013.
On board MISSISSIPPI V at Beale Street Landing, Memphis, TN
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the Memphis District; and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
1:00 p.m., August 21, 2013.
On board MISSISSIPPI V at City Front, Vicksburg, MS
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the Vicksburg District; and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
9:00 a.m., August 23, 2013.
On board MISSISSIPPI V at Port Commission Dock, Morgan City, LA
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the New Orleans District, and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
Mr. Stephen Gambrell, telephone 601–634–5766.
National Science Foundation.
Notice of permit emergency provision for hazardous waste stored in Antarctica at South Pole Station for more than 15 months due to an emergency, as specified by § 671.17.
The Program of Environment Safety and Health (PESH) in the Division of Polar Programs (GEO/PLR), in accordance with § 671.17, is giving notice that an emergency relating to considerations of the safety of human life or of ships, aircraft or other equipment and facilities of high value, or the protection of the environment caused hazardous waste to be stored in at South Pole Station for more than 15 months.
Hazardous waste in the form of batteries, regulated medical waste, non-controlled medicines, laboratory chemical waste, contaminated laboratory glassware, gas cylinders, light bulbs and paint cans, with an aggregate of approximately 2000 lbs. net weight, was segregated and packaged for removal from the station.
The waste was to be removed in February 2013, at the end of 2012–2013 austral summer season. The unusual warming and melting of the ice runway at McMurdo Station resulted in reduced flight availability to the South Pole in late January and early February. Compatibility issues related to flying hazardous cargo and passengers further reduced the available flights to removing the hazardous waste material. During the final week of the season, the temperature conditions resulted in the formation of ground level contrails. The resulting hazy conditions and extremely low visibility prevented safe airplane loading operations. Potential damage to the airplane and/or harm to human life were the considerations which prevented the hazardous waste from leaving the station.
During the early part of the 2013–2104 austral summer season, the priority will be to remove the South Pole hazardous waste to McMurdo Station, where it will be removed from the continent.
Dr. Polly A. Penhale at (703) 292–7420.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its Fees Schedule. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fees Schedule. First, the Exchange proposes to eliminate the $200-per-month Hybrid Quoting Infrastructure User Fee, which is assessed to Trading Permit Holders (“TPHs”) to help cover the costs associated with hardware and maintenance services to third-party vendors that provide quoting software used by TPHs to trade on the Exchange's Hybrid Trading System (“Hybrid”). This elimination will allow TPHs to avoid paying this fee, and may encourage more market participants to trade on CBOE.
The Exchange also proposes to make an amendment to the Fees Schedule regarding Clearing Trading Permit Holder Proprietary Facilitation fees. On April 10, 2013, the Exchange amended its Fees Schedule to, in part, make more clear the fact that the Exchange will assess no Clearing Trading Permit Holder Proprietary transaction fees for certain types of facilitation orders (as defined in Footnote 11 of the Fees Schedule), including those executed via the Exchange's Automated Execution Mechanism (“AIM”), in certain classes.
Next, the Exchange proposes to amend its Fees Schedule with regard to fees for SPXPM. On February 19, 2013, the Exchange adopted a set of fees for the trading of SPXPM.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes that the proposed change to cease assessing transaction fees on regular (non-AIM) electronic Clearing Trading Permit Holder Proprietary facilitation orders is reasonable because Clearing Trading Permit Holders who would otherwise have had to pay for such transactions now will not be required to do so. The Exchange believes that this proposed change is equitable and not unfairly discriminatory because it will place regular electronic (non-AIM) Clearing Trading Permit Holder Proprietary facilitation orders on the same footing (with regards to fees) as Clearing Trading Permit Holder Proprietary facilitation orders executed in AIM. Further, the Exchange believes that it is equitable and not unfairly discriminatory to permit Clearing Trading Permit Holders to execute Proprietary Facilitation orders electronically for free and not give this opportunity to other market participants because Clearing Trading Permit Holders have a number of obligations (such as membership with the Options Clearing Corporation), significant regulatory burdens, and financial obligations, that other market participants do not need to take on. Finally, this proposed change applies to all regular electronic (non-AIM) Clearing Trading Permit Holder Proprietary facilitation orders equally.
The Exchange believes that the clarification regarding SPXPM and its eligibility for AIM executions is consistent with the Section 6(b)(5)
The Exchange also believes that assessing Customer transactions in SPXPM (Premium < $1) a fee of $0.35 per contract is consistent with Section 6(b)(4) of the Act,
The Exchange believes that it is equitable and not unfairly discriminatory to offer a higher fee for Customer SPXPM transactions (Premium < $1) than for CBOE Market-Maker/DPM/e-DPM/LMM and Clearing Trading Permit Holder Proprietary SPXPM transactions (Premium < $1) because those market participants undertake certain obligations with respect to trading at CBOE, such as quoting obligations (for CBOE Market-Makers/DPMs/e-DPMs/LMMs) and membership with the Options Clearing Corporation, significant regulatory burdens, and financial obligations, (for Clearing Trading Permit Holders) that Customers do not undertake. The Exchange believes that it is equitable and not unfairly discriminatory to offer a lower Customer fee for SPXPM transactions (Premium < $1) than for similar transactions by Joint Back-Office, Broker-Dealer, Non-Trading Permit Holder Market-Maker, Professional, and Voluntary Professional market participants because such market participants often seek to trade with Customers. Further, the lower fee for Customers will encourage more Customer trading, which provides more liquidity and trading opportunities (with this preferred trading partner) for these other market participants. Also, Customers are often not as sophisticated market participants, and there is a long history of permitting preferential pricing
CBOE does not believe that the proposed rule changes will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change to eliminate the Hybrid Quoting Infrastructure User Fee will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because it applies to all CBOE market participants. The Exchange does not believe that the proposed rule change to cease assessing transaction fees on regular (non-AIM) electronic Clearing Trading Permit Holder Proprietary facilitation orders will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because it places regular (non-AIM) electronic Clearing Trading Permit Holder Proprietary facilitation orders on the same footing (with regards to fees) as Clearing Trading Permit Holder Proprietary facilitation orders executed in AIM. Further, Clearing Trading Permit Holders have a number of obligations (such as membership with the Options Clearing Corporation), significant regulatory burdens, and financial obligations, that other market participants do not need to take on. Finally, this proposed change applies to all regular electronic (non-AIM) Clearing Trading Permit Holder Proprietary facilitation orders equally.
The Exchange does not believe that the proposed clarification regarding SPXPM fees will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because it merely clarifies the Fees Schedule and also applies equally. Further, the Exchange does not believe that assessing Customer transactions in SPXPM (Premium < $1) a higher fee than for CBOE Market-Maker/DPM/e-DPM/LMM and Clearing Trading Permit Holder Proprietary SPXPM transactions (Premium < $1) will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because those market participants undertake certain obligations with respect to trading at CBOE, such as quoting obligations (for CBOE Market-Makers/DPMs/e-DPMs/LMMs) and membership with the Options Clearing Corporation, significant regulatory burdens, and financial obligations, (for Clearing Trading Permit Holders) that Customers do not undertake. The Exchange does not believe that assessing Customer transactions in SPXPM (Premium < $1) a lower fee than for similar transactions by Joint Back-Office, Broker-Dealer, Non-Trading Permit Holder Market-Maker, Professional, and Voluntary Professional market participants because such market participants often seek to trade with Customers. Further, the lower fee for Customers will encourage more Customer trading, which provides more liquidity and trading opportunities (with this preferred trading partner) for these other market participants. Also, Customers are often not as sophisticated market participants, and there is a long history of permitting preferential pricing treatment of Customers in the options industry (indeed, in a number of places, the Exchange Fees Schedule offers lower pricing for Customers than for other market participants).
The Exchange does not believe that the proposed rule changes to eliminate the Hybrid Quoting Infrastructure User Fee and to cease assessing transaction fees on regular (non-AIM) electronic Clearing Trading Permit Holder Proprietary facilitation orders will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because they may encourage other exchanges to adopt fee changes that will provide more attractive pricing on such exchanges (thereby enhancing intermarket competition). Further, all the proposed rule changes apply only to trading on CBOE. Indeed, the Exchange does not believe that assessing Customer transactions in SPXPM (Premium < $1) a fee of $0.35 per contract will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because SPXPM is only traded on CBOE. To the extent that market participants on other exchanges may be attracted to CBOE due to the proposed changes, such market participants may always elect to become CBOE market participants.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the Commonwealth of Pennsylvania dated 07/16/2013.
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 Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 13669 6 and for economic injury is 13670 0.
The States which received an EIDL Declaration # are Pennsylvania; Maryland; West Virginia.
U.S. Small Business Administration.
Amendment 1.
This is an Amendment of the Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Oklahoma (FEMA—4117—DR), dated 06/28/2013.
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 Private Non-Profit organizations in the State of OKLAHOMA, dated 06/28/2013, 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.
Amendment 5.
This is an amendment of the Presidential declaration of a major disaster for the State of Oklahoma (FEMA—4117—DR), dated 05/20/2013.
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 05/20/2013 is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 08/19/2013.
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 Missouri (FEMA—4130—DR), dated 07/18/2013.
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 07/18/2013, 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 Interest Rates are:
The number assigned to this disaster for physical damage is 13674B and for economic injury is 13675B.
In accordance with the Code of Federal Regulations 13—Business Credit and Assistance § 123.512, the following interest rate is effective for Military Reservist Economic Injury Disaster Loans approved on or after July 19, 2013.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes one extension and two revisions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than September 24, 2013. Individuals can obtain copies of the collection instruments by writing to the above email address.
1. Incorporation by Reference of Oral Findings of Fact and Rationale in Wholly Favorable Written Decisions (Bench Decision Regulation)—20 CFR 404.953 and 416.1453—0960–0694. If an administrative law judge (ALJ) makes a wholly favorable oral decision that includes all the findings and rationale for the decision for a claimant of title II benefits or title XVI payments at an administrative appeals hearing, the ALJ sends a Notice of Decision (Form HA–82), as the records from the oral hearing preclude the need for a written decision. We call this the incorporation-by-reference process. In addition, the regulations for this process state that if the involved parties want a record of the oral decision, they may submit a written request for these records. SSA collects
Type of Request: Extension of an OMB-approved information collection.
2. Request for Proof(s) from Custodian of Records—20 CFR 404.703, 404.704, 404.720, 404.721, 404.723, 404.725, & 404.728—0960–0766. SSA sends Form SSA–L707, Request for Proof(s) from Custodian of Records, to records custodians on behalf of individuals who need help obtaining evidence of death, marriage, or divorce in connection with claims for benefits. SSA uses the information from the SSA–L707 to determine eligibility for benefits. The respondents are records custodians including statistics and religious entities, coroners, funeral directors, attending physicians, and State agencies.
Type of Request: Revision of an OMB-approved information collection.
II. SSA submitted the information collection below to OMB for clearance. Your comments regarding the information collection would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than August 26, 2013. Individuals can obtain copies of the OMB clearance package by writing to
Request to Withdraw a Hearing Request; Request to Withdraw an Appeals Council Request for Review; and Administrative Review Process for Adjudicating Initial Disability Claims—20 CFR Parts 404, 405, and 416—0960–0710. Claimants have a statutory right under the Social Security Act and current regulations to apply for Social Security Disabiltiy Insurance (SSDI) benefits or SSI payments. SSA must collect information at each step of the administrative process to adjudicate claims fairly and efficiently. SSA collects this information to establish a claimant's right to administrative review and the severity of the claimant's alleged impairments. SSA uses the information to determine entitlement or continuing eligibility to DIB or SSI payments and to enable appeals of these determinations. In addition, SSA collects information on Forms HA–85 and HA–86 to allow claimants to withdraw a hearing request or an Appeals Council review request. The respondents are applicants for title II SSDI benefits or title XVI SSI payments; their appointed representatives; legal advocates; medical sources; and schools.
Type of Request: Revision of an OMB-approved information collection.
On May 2, 2013, the Department of State certified, pursuant to Section 609 of Public Law 101–162, that 13 nations have adopted programs to reduce the incidental capture of sea turtles in their shrimp fisheries comparable to the program in effect in the United States. The Department also certified that the fishing environments in 26 other countries and one economy do not pose a threat of the incidental taking of sea turtles protected under Section 609.
Marlene M. Menard, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, Department of State, Washington, DC 20520–7818; telephone: (202) 647–5827; email: menardmm@state.gov.
Section 609 of Public Law 101–162 (“Section 609”) prohibits imports of certain categories of shrimp unless the President certifies to the Congress by May 1, 1991, and annually thereafter, either: (1) That the harvesting nation or economy has adopted a program governing the incidental capture of sea turtles in its commercial shrimp fishery comparable to the program in effect in the United States and has an incidental take rate comparable to that of the United States; or (2) that the fishing environment in the harvesting nation or economy does not pose a threat of the incidental taking of sea turtles. The President has delegated the authority to make this certification to the Department of State (“the Department”). Revised State Department guidelines for making the required certifications were published in the
On May 2, 2013, the Department certified 13 nations on the basis that their sea turtle protection programs are comparable to that of the United States: Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Mexico, Nicaragua, Nigeria, Pakistan, Panama, and Suriname. The Department also certified 26 shrimp harvesting nations and one economy as having fishing environments that do not pose a danger to sea turtles. Sixteen nations have shrimping grounds only in cold waters where the risk of taking sea turtles is negligible. They are: Argentina, Belgium, Canada, Chile, Denmark, Finland, Germany, Iceland, Ireland, the Netherlands, New Zealand, Norway, Russia, Sweden, the United Kingdom, and Uruguay. Ten nations and one economy only harvest shrimp using small boats with crews of fewer than five that use manual rather than mechanical means to retrieve nets, or catch shrimp using other methods that do not threaten sea turtles. Use of such small-scale technology does not adversely affect sea turtles. The 10 nations and one economy are: the Bahamas, Belize, China, the Dominican Republic, Fiji, Hong Kong, Jamaica, Oman, Peru, Sri Lanka, and Venezuela.
The Department of State has communicated the certifications under Section 609 to the Office of Field Operations of U.S. Customs and Border Protection.
All DS–2031 forms accompanying shrimp imports from uncertified nations or economies must be originals and signed by the competent domestic fisheries authority.
In order for shrimp harvested with turtle excluder devices (TEDs) in an uncertified nation or economy to be eligible for importation into the United States under the DS–2031 section 7(A)(2) provision for “shrimp harvested by commercial shrimp trawl vessels using TEDs comparable in effectiveness to those required in the United States”, the Department of State must determine in advance that the government of the harvesting nation or economy has put in place adequate procedures to ensure the accurate completion of the DS–2031 forms. At this time, the Department has made such a determination only with respect to Australia, Brazil and France. Thus, the importation of TED-caught shrimp from any other uncertified nation or economy will not be allowed. For Brazil, only shrimp harvested in the northern shrimp fishery are eligible for entry under this provision. For Australia, shrimp harvested in the Exmouth Gulf Prawn Fishery, the Northern Prawn Fishery, the Queensland East Coast Trawl Fishery, and the Torres Strait Prawn Fishery are eligible for entry under this provision. For France, shrimp harvested in the French Guiana domestic trawl fishery are eligible for entry under this provision. An official of the competent domestic fisheries authority for the country or economywhere the shrimp were harvested must sign the DS–2031 form accompanying these imports into the United States.
In addition, the Department has determined that shrimp harvested in the Spencer Gulf region in Australia may be exported to the United States under the DS–2031 section 7(A)(4) provision for “shrimp harvested in a manner or under circumstances determined by the Department of State not to pose a threat of the incidental taking of sea turtles.” An official of the Government of Australia must certify the DS–2031 form accompanying these imports into the United States.
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
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
The Department of State announces a meeting of the U.S. State Department—Overseas Security Advisory Council on August 27—28, 2013. Pursuant to Section 10(d) of the Federal Advisory Committee Act (5 U.S.C. Appendix), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(7)(E), it has been determined that the meeting will be closed to the public. The meeting will focus on an examination of corporate security policies and procedures and will involve extensive discussion of trade secrets and proprietary commercial information that is privileged and confidential, and will discuss law enforcement investigative techniques and procedures. The agenda will include updated committee reports, a strategic planning session, and other matters relating to private sector security policies and protective programs and the protection of U.S. business information overseas.
For more information, contact Marsha Thurman, Overseas Security Advisory Council, U.S. Department of State, Washington, DC 20522–2008, phone: 571–345–2214.
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 August 15, 2013.
You may send comments identified by Docket Number FAA–2013–0294 using any of the following methods:
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Keira Jones (202) 267–4025, Office of Rulemaking, 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 and must be received on or before August 15, 2013.
You may send comments identified by Docket Number FAA–2013–0571 using any of the following methods:
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Keira Jones (202) 267–4024, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Ameriflight requests relief to obtain a 4 year delay to the requirements in 14 CFR § 91.225(a), (b), and (d), Automatic Dependent Surveillance-Broadcast (ADS–B) Out, on all aircraft in its fleet. Specifically, the regulation requires specific operators to be equipped with Extended Squitter (ES) ADS–B and Traffic information Service-Broadcast (TIS–B) operating on the frequency of 1090 Megahertz (MHz) and Universal Access Transceiver (UAT) ADS–B equipment operating on the frequency of 978 MHz by January 1, 2020. The petitioner states the requirement will create an undue burden on its maintenance department, and exceed its capability to remove aircraft from service for the required installation.
Federal Transit Administration (FTA), DOT.
Notice.
This notice announces a final environmental action taken by the Federal Transit Administration (FTA) for a project in New York, NY. The purpose of this notice is to announce publicly the environmental decision by FTA on the subject project and to activate the limitation on any claims that may challenge this final environmental action.
By this notice, FTA is advising the public of a final agency action subject to Section 139(l) of Title 23, United States Code (U.S.C.). A claim seeking judicial review of the FTA action announced herein for the listed public transportation project will be barred unless the claim is filed on or before December 23, 2013.
Nancy-Ellen Zusman, Assistant Chief Counsel, Office of Chief Counsel, (312) 353–2577 or Terence Plaskon, Environmental Protection Specialist, Office of Human and Natural Environment, (202) 366–0442. FTA is located at 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 9:00 a.m. to 5:30 p.m., Monday through Friday, except Federal holidays.
Notice is hereby given that FTA has taken final agency action by issuing a certain approval for the public transportation project listed below. The action on the project, as well as the laws under which such action was taken, are described in
This notice applies to all FTA decisions on the listed project as of the issuance date of this notice and all laws under which such action was taken, including, but not limited to, NEPA [42 U.S.C. 4321–4375], Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303], Section 106 of the National Historic Preservation Act [16 U.S.C. 470f], and the Clean Air Act [42 U.S.C. 7401–7671q]. This notice does not, however, alter or extend the limitation period for challenges of project decisions subject to previous notices published in the
Frank Sherman, Evergreen Trails, Inc. (Evergreen), Cabana Coaches, LLC (Cabana), TMS West Coast, Inc. (TMS), and FSCS Corporation (FSCS) (collectively, Applicants), have filed a verified notice of exemption under the Board's class exemption procedures at 49 CFR 1182.9.
In Docket No. MCF 21047, Applicants indicated that, under the terms of an asset purchase agreement, TMS would have the right to purchase 12 Coach America subsidiaries and would then assign its right to purchase to either FSCS or to Evergreen and Cabana. If the right to purchase were assigned to Evergreen and Cabana, Cabana would receive the right to purchase and consolidate the assets of Coach-Miami and Midnight Sun into Cabana; Evergreen would receive the right to purchase and consolidate the assets of all of the other Coach America subsidiaries into Evergreen. The Board granted the application by decision served on September 6, 2012.
Applicants subsequently decided that, primarily for insurance reasons, it would be more efficient and cost effective to consolidate the assets of Midnight Sun and ACL Miami into Evergreen rather than Cabana, as had been contemplated at the time the acquisition application was filed. Applicants proceeded to assign the assets to Evergreen and state that the assignment of assets did not affect the ultimate control of the assets, which remains with Frank Sherman.
This is a transaction within a corporate family of the type specifically exempted from prior review and approval under 49 CFR 1182.9. Applicants state that the transaction has not and will not result in any change in service levels, significant operational changes, or any change in the competitive balance with carriers outside the corporate family. Applicants also state that (1) the assets of Midnight Sun and ACL Miami were assigned to Evergreen pursuant to an Assumption and Assignment Agreement, and (2) the only effect on employees is that employees that would have been employed by Cabana are now employed by Evergreen.
The transaction was consummated on October 1, 2012.
If the verified notice contains false or misleading information, the Board shall summarily revoke the exemption and require divestiture. Petitions to revoke the exemption under 49 U.S.C. 13541(d) may be filed at any time.
An original and ten copies of all pleadings, referring to Docket No. MCF 21054, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In addition, a copy of each pleading must be served on David H. Coburn, Steptoe & Johnson LLP, 1330 Connecticut Avenue NW., Washington, DC 20036.
Board decisions and notices are available on our Web site at
By the Board, Richard Armstrong, Acting Director, Office of Proceedings.
Commodity Futures Trading Commission.
Interpretive Guidance and Policy Statement.
On July 12, 2012, the Commodity Futures Trading Commission (“Commission” or “CFTC”) published for public comment its proposed interpretive guidance and policy statement (“Proposed Guidance”) regarding the cross-border application of the swaps provisions of the Commodity Exchange Act (“CEA”), as added by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or “Dodd-Frank”). On December 21, 2012, the Commission also proposed further guidance on certain aspects of the Proposed Guidance (“Further Proposed Guidance”).
The Commission has determined to finalize the Proposed Guidance with certain modifications and clarifications to address public comments. The Commission's Interpretive Guidance and Policy Statement (“Guidance”) addresses the scope of the term “U.S. person,” the general framework for swap dealer and major swap participant registration determinations (including the aggregation requirement applicable to the de minimis calculation with respect to swap dealers), the treatment of swaps involving certain foreign branches of U.S. banks, the treatment of swaps involving a non-U.S. counterparty guaranteed by a U.S. person or “affiliate conduit,” and the categorization of the Dodd-Frank swaps provisions as “Entity-Level Requirements” or “Transaction-Level Requirements.”
Gary Barnett, Director, Division of Swap Dealer and Intermediary Oversight, (202) 418–5977,
On July 21, 2010, President Obama signed the Dodd-Frank Act,
Section 722(d) of the Dodd-Frank Act amended the CEA by adding section 2(i),
The potential for cross-border activities to have a substantial impact on the U.S. financial system was apparent in the fall of 2008, when a series of large financial institutional failures threatened to freeze foreign and domestic credit markets. In September 2008, for example, U.S.-regulated insurance company American International Group (“AIG”) nearly failed as a result of risk incurred by the London swap trading operations of its subsidiary AIG Financial Products (“AIGFP”).
A global, complex, and highly integrated business model also played a role in, and complicated, the bankruptcy of former U.S.-based multinational corporation Lehman Brothers Holding Inc. (“LBHI”) in September 2008. In addition to guaranteeing certain swaps for its subsidiary Lehman Brothers International Europe (“LBIE”), estimated at nearly 130,000 OTC derivatives contracts at the time LBIE was placed into administration on September 15, 2008, LBHI and its global affiliates relied on each other for many of their financial and operational services, including treasury and depository functions, custodial arrangements, trading facilitation, and information management.
Even in the absence of an explicit business arrangement or guarantee, U.S. companies may for reputational or other reasons choose, or feel compelled, to assume the cost of risks incurred by foreign affiliates. In 2007, U.S.-based global investment firm Bear Stearns decided to extend loans secured by assets of uncertain value to two Cayman Islands-based hedge funds it sponsored after they suffered substantial losses due to their investments in subprime mortgages, even though Bear Stearns was not legally obligated to support those funds.
Although the Dodd-Frank Act was enacted in the wake of the 2008 financial crisis, the impact of cross-border activities on the health and stability of U.S. companies and financial markets is not new. A decade before the AIG and Lehman collapses, a Cayman Islands hedge fund managed by Connecticut-based Long-Term Capital Management L.P. (“LTCM”) nearly failed.
More recently, J.P. Morgan Chase & Co. (“J.P. Morgan”), the largest U.S. bank, disclosed a multi-billion dollar trading loss stemming in part from positions in a credit-related swap portfolio managed through its London Chief Investment Office.
Efforts to regulate the swaps market in the wake of the 2008 financial crisis are underway not only in the United States, but also abroad. In 2009, leaders of the Group of 20 (“G20”)—whose membership includes the European Union (“EU”), the United States, and 18 other countries—agreed that: (i) OTC derivatives contracts should be reported to trade repositories; (ii) all standardized OTC derivatives contracts should be cleared through central counterparties and traded on exchanges or electronic trading platforms, where appropriate, by the end of 2012; and (iii) non-centrally cleared contracts should be subject to higher capital requirements. In line with the G20 commitment, much progress has been made to coordinate and harmonize international reform efforts, but the pace of reform varies among jurisdictions and disparities in regulations remain due to differences in cultures, legal and political traditions, and financial systems.
For example, the European Commission released a public consultation on revising the Markets in Financial Instruments Directive (“MiFID”) in December 2010.
In October 2011, the European Commission released two public consultations, one to revise MiFID and the other for creating a new regulation entitled the Markets in Financial Instruments Regulation (“MiFIR”).
As of March 15, 2013, the majority of the regulatory technical standards (
The Japanese legislature passed the Amendment to the Financial Instruments and Exchange Act
The failures of Lehman Brothers and the Bear Stearns hedge funds, and the near failures of LTCM's hedge fund and AIG (which required intervention by the government and Federal Reserve), and their collateral effects on the broader economy and U.S. commerce,
To address the scope of the cross-border application of the Dodd-Frank Act, the Commission published the Proposed Guidance on July 12, 2012, setting forth its proposed interpretation of the manner in which it intends that section 2(i) of the CEA would apply Title VII's swaps provisions to cross-border activities.
The public comment period on the Proposed Guidance ended on August 27, 2012. The Commission received approximately 290 comment letters on the Proposed Guidance from a variety of interested parties, including major U.S. and non-U.S. banks and financial institutions that conduct global swap business, trade associations, clearing organizations, law firms (representing international banks and dealers), public interest organizations, and foreign regulators.
Approximately 200 individuals submitted substantially identical letters to the effect that oversight of the $700 trillion global derivatives market is the key to meaningful reform. The letters state that because the market is inherently global, risks can be transferred around the world with the touch of a button. Further, according to these letters, loopholes in the Proposed Guidance could allow foreign affiliates of Wall Street banks to escape regulation. Lastly, the letters request that the Proposed Guidance be strengthened to ensure that the Dodd-Frank derivatives protections will directly apply to the full global activities of all important participants in the U.S. derivatives markets.
The Further Proposed Guidance, issued on December 21, 2012,
The public comment period on the Further Proposed Guidance ended on February 6, 2013. The Commission received approximately 24 comment letters on the Further Proposed Guidance from interested parties including major U.S. and non-U.S. banks and financial institutions, trade associations, law firms (representing international banks and dealers), public interest organizations, and foreign regulators.
Further, the Commission's staff closely consulted with the staff of the SEC in an effort to increase understanding of each other's regulatory approaches and to harmonize the cross-border approaches of the two agencies to the greatest extent possible, consistent with their respective statutory mandates.
The SEC recently published for public comment proposed rules and interpretive guidance to address the application of the provisions of the Exchange Act, added by Subtitle B of Title VII of the Dodd-Frank Act, that relate to cross-border security-based swap activities.
The Commission also recognizes the critical role of international cooperation and coordination in the regulation of derivatives in the highly interconnected global market, where risks are transmitted across national borders and market participants operate in multiple jurisdictions. Close cooperative relationships and coordination with other jurisdictions take on even greater importance given that, prior to the recent reforms, the swaps market has largely operated without regulatory oversight, and given that many jurisdictions are in differing stages of implementing their regulatory reform. To this end, the Commission's staff has actively engaged in discussions with their foreign counterparts in an effort to better understand and develop a more harmonized cross-border regulatory framework. The Commission expects that these discussions will continue as it implements the cross-border interpretive guidance and as other jurisdictions develop their own regulatory approaches to derivatives.
In general, many of the financial institutions and law firms (representing financial institutions) that commented on the Proposed Guidance and Further Proposed Guidance stated that the Commission's proposed interpretation of the extraterritorial application of Title VII of the Dodd-Frank Act was overly broad and unnecessarily complex and unclear.
Other commenters disagreed that the Commission's proposed interpretation of its extraterritorial authority was overly broad, instead arguing that the Commission had not gone far enough.
After carefully reviewing and considering the comments on the Proposed Guidance and the Further Proposed Guidance, the Commission has determined to finalize the Proposed Guidance. This Guidance sets forth the general policy of the Commission in interpreting how section 2(i) of the CEA provides for the application of the swaps provisions of the CEA and Commission regulations to cross-border activities when such activities have a “direct and significant connection with activities in, or effect on, commerce of the United States” or when they contravene Commission rulemaking.
This release is intended to inform the public of the Commission's views on how it ordinarily expects to apply existing law and regulations in the cross-border context. In determining the application of the CEA and Commission regulations to particular entities and transactions in cross-border contexts, the Commission will apply the relevant statutory provisions, including CEA section 2(i), and regulations to the particular facts and circumstances. Accordingly, the public has the ability to present facts and circumstances that would inform the application of the substantive policy positions set forth in this release.
The Commission understands the complex and dynamic nature of the global swap market and the need to take an adaptable approach to cross-border issues, particularly as it continues to work closely with foreign regulators to address potential conflicts with respect to each country's respective regulatory regime. Although the Commission is issuing the Guidance at this time, the Commission will continue to follow developments as foreign regulatory regimes and the global swaps market continue to evolve. In this regard, the Commission will periodically review this Guidance in light of future developments.
This release is organized into four main sections. Section III sets forth the Commission's interpretation of CEA section 2(i) and the general manner in which it intends to apply the swaps provisions of the Dodd-Frank Act to activities outside the United States. Section IV addresses the public comments and Commission Guidance on: (A) The Commission's interpretation of the term “U.S. person”; (B) swap dealer and MSP registration; (C) the scope of the term “foreign branch” of a U.S. bank and consideration of when a swap should be considered to be with the foreign branch of a U.S. bank; (D) a description of the entity-level requirements and transaction-level requirements under Title VII and the Commission's related regulations (“Entity-Level Requirements” and “Transaction-Level Requirements,” respectively); (E) the categorization of Title VII swaps provisions (and Commission regulations) as either Entity-Level or Transaction-Level Requirements; (F) substituted compliance, including an overview of the principles guiding substituted compliance determinations for Entity-Level and Transaction-Level Requirements, a general description of the process for comparability determinations, and a discussion of conflicts arising under foreign privacy and blocking laws; (G) application of the Entity-Level Requirements and “Category A” and “Category B” Transaction-Level Requirements to swap dealers and MSPs; and (H) application of the CEA's swaps provisions and Commission regulations where both parties to a swap are neither swap dealers nor MSPs.
In addition, this Guidance includes the following Appendices, which should be read in conjunction with (and are qualified by) the remainder of the Guidance: (1) Appendix A—The Entity-Level Requirements; (2) Appendix B—The Transaction-Level Requirements: (3) Appendix C—Application of the Entity-Level Requirements; (4) Appendix D—Application of the Category A Transaction-Level Requirements to Swap Dealers and MSPs; (5) Appendix E—Application of the Category B Transaction-Level Requirements to Swap Dealers and MSPs; and (6) Appendix F—Application of Certain Entity-Level and Transaction-Level Requirements to Non-Swap Dealer/Non-MSP Market Participants.
CEA section 2(i) provides that the swaps provisions of Title VII shall not apply to activities outside the United States unless those activities—
• Have a direct and significant connection with activities in, or effect on, commerce of the United States; or
• contravene such rules or regulations as the Commission may prescribe or promulgate as are necessary or appropriate to prevent the evasion of any provision of [the CEA] that was enacted by the [Dodd-Frank Act].
In the Proposed Guidance, the Commission noted that section 2(i) provides the Commission express authority over swap activities outside the United States when certain conditions are met, but it does not require the Commission to extend its reach to the outer bounds of that authorization. Rather, in exercising its authority with respect to swap activities outside the United States, the Commission will be guided by international comity principles.
Some commenters addressing the interpretation of section 2(i) in the Proposed Guidance stated that the activities of the non-U.S. branches and subsidiaries of U.S. persons outside the United States with respect to swaps with non-U.S. persons should not be subject to Dodd-Frank requirements. Sullivan & Cromwell asserted that the non-U.S. branches and subsidiaries generally do not enter into swaps with U.S. persons and therefore the jurisdictional nexus with the United States that would justify application of the Dodd-Frank Act is absent.
Sullivan & Cromwell cited past instances where the Commission has not applied its regulations to firms that deal solely with foreign customers and do not conduct business in or from the United States or to the non-U.S. subsidiaries of entities registered with the Commission.
By contrast, Senator Levin stated that the J.P. Morgan “whale trades” provide an example of how major U.S. financial institutions have integrated their U.S. and non-U.S. swap activities, and therefore supports the application of the swaps provisions of Title VII and Commission regulations to the non-U.S. offices of U.S. financial institutions.
In interpreting the phrase “direct and significant,” the Commission has examined the plain language of the statutory provision, similar language in other statutes with cross-border application, and the legislative history of section 2(i).
The statutory language in new CEA section 2(i) is structured similarly to the statutory language in the Foreign Trade Antitrust Improvements Act of 1982 (the “FTAIA”),
It is appropriate, therefore, to read section 2(i) of the CEA as a clear expression of congressional intent that the swaps provisions of Title VII of the Dodd-Frank Act apply to activities beyond the borders of the United States when certain circumstances are present. These circumstances include, pursuant to paragraph (1) of section 2(i), when activities outside the United States meet the statutory test of having a “direct and significant connection with activities in, or effect on,” U.S. commerce.
An examination of the language in the FTAIA, however, does not provide an unambiguous roadmap for the Commission in interpreting section 2(i) of the CEA. There are both similarities, and a number of significant differences, between the language in CEA section 2(i) and the language in the FTAIA. Further, the Supreme Court has not provided definitive guidance as to the meaning of the “direct, substantial, and reasonably foreseeable” test in the FTAIA, and the lower courts have interpreted the individual terms in the FTAIA differently.
Although a number of courts have interpreted the various terms in the
Other terms in the FTAIA differ from the terms used in section 2(i) of the CEA. First, the FTAIA test explicitly requires that the effect on U.S. commerce be a “reasonably foreseeable” result of the conduct.
As the foregoing textual analysis indicates, Congress crafted section 2(i) differently from its analogue in the antitrust laws. Congress delineated the cross-border scope of the Sherman Act in section 6a of the FTAIA as applying to conduct that has a “direct” and “substantial” and “reasonably foreseeable” “effect” on U.S. commerce. In section 2(i), on the other hand, Congress did not include a requirement that the effects or connections of the activities outside the United States be “reasonably foreseeable” for the Dodd-Frank swaps provisions to apply. Further, Congress included language in section 2(i) to apply the Dodd-Frank swaps provisions in circumstances in which there is a direct and significant connection with activities in U.S. commerce, regardless of whether there is an effect on U.S. commerce. The different words that Congress used in paragraph (1) of section 2(i), as compared to its closest statutory analogue in section 6a of the FTAIA, inform the Commission in construing the boundaries of its cross-border authority over swap activities under the CEA.
As further described in the Proposed Guidance, one of the principal rationales for the enactment of the Dodd-Frank derivatives reforms was the need for a comprehensive scheme of regulation to prevent systemic risk in the U.S. financial system.
In global markets, the source of such risk is not confined to activities within U.S. borders. Due to the interconnectedness between firms, traders, and markets in the U.S. and abroad, a firm's failure, or trading losses overseas, can quickly spill over to the United States and affect activities in U.S. commerce and the stability of the U.S. financial system. Accordingly, Congress did not limit the application of the Dodd-Frank Act to activities within the United States. Rather, in recognition of the global nature of the swaps market, and the fact that risks to the U.S. financial system may arise from activities outside the United States, as well as from activities within the United States, Congress explicitly provided for cross-border application of Title VII to activities outside the United States that pose risks to the U.S. financial system.
Consistent with this overall interpretation, the Commission believes that the term “direct” in CEA section 2(i) should be interpreted in a manner consistent with the position of the Department of Justice Antitrust Division with respect to the meaning of the same term in the FTAIA, and as recently adopted by the Seventh Circuit.
Consistent with the purpose of Title VII to protect the U.S. financial system against the build-up of systemic risks, the Commission does not read section 2(i) so as to require a transaction-by-transaction determination that a specific swap outside the United States has a “direct and significant connection with activities in, or effect on, commerce of the United States” in order to apply the swaps provisions of the CEA to such transactions. Rather, it is the connection of swap activities, viewed as a class or in the aggregate, to activities in commerce of the United States that must be assessed to determine whether application of the CEA swaps provisions is warranted.
This conclusion is bolstered by similar interpretations of other federal statutes regulating interstate commerce. Recently, the Supreme Court reaffirmed a similar “aggregate effects” approach in
The case law in the antitrust area also teaches the importance of recognizing the laws and interests of other countries in applying an ambiguous federal statute across borders; in such circumstances, principles of international comity counsel courts and agencies to act reasonably in exercising jurisdiction with respect to activity that takes place elsewhere. In
In determining whether the exercise of jurisdiction by one nation over activities in another nation would be reasonable, the courts and agencies are guided by the Restatement (Third) of Foreign Relations Law of the United States (the “Restatement”). Drawing upon traditional principles of international law, the Restatement provides bases of jurisdiction to prescribe law, as well as limitations on the exercise of jurisdiction. In addition
The Restatement also provides that even where a country has a basis for jurisdiction, it should not prescribe law with respect to a person or activity in another country when the exercise of such jurisdiction is unreasonable.
(a) the link of the activity to the territory of the regulating state,
(b) the connections, such as nationality, residence, or economic activity, between the regulating state and the persons principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect;
(c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted;
(d) the existence of justified expectations that might be protected or hurt by the regulation;
(e) the importance of the regulation to the international political, legal, or economic system;
(f) the extent to which the regulation is consistent with the traditions of the international system;
(g) the extent to which another state may have an interest in regulating the activity; and
(h) the likelihood of conflict with regulation by another state.
Notably, the Restatement does not preclude concurrent regulation by multiple jurisdictions. However, where concurrent jurisdiction by two or more jurisdictions creates conflict, the Restatement recommends that each country evaluate both its interests in exercising jurisdiction and those of the other jurisdiction, and where possible, to consult with each other.
(3) When it would not be unreasonable for each of the two states to exercise jurisdiction over a person or activity, but the prescriptions by the two states are in conflict, each state has an obligation to evaluate its own as well as the other state's interest in exercising jurisdiction, in light of all the relevant factors, including those set out in Subsection (2), a state should defer to the other state if that state's interest is clearly greater.
Comment e. to section 403 of the Restatement states:
Subsection (3) applies only when one state requires what another prohibits, or where compliance with the regulations of two states exercising jurisdiction consistently with this section is otherwise impossible. It does not apply where a person subject to regulation by two states can comply with the laws of both; for example, where one state requires keeping accounts on a cash basis, the other on an accrual basis. It does not apply merely because one state has a strong policy to permit or encourage an activity which another state prohibits, or one state exempts from regulation an activity which another regulates. Those situations are governed by Subsection (2), but do not constitute conflict within Subsection (3).
Consistent with the Restatement, in determining the extent to which the Dodd-Frank swaps provisions apply to activities abroad, the Commission has strived to protect U.S. interests as determined by Congress in Title VII, and minimize conflicts with the laws of other jurisdictions. The Commission has carefully considered, among other things, the level of the home jurisdiction's supervisory interests over the subject activity and the extent to which the activity takes place within the foreign territory.
The Commission believes that the Guidance strikes the proper balance between these competing factors to ensure that the Commission can discharge its responsibilities to protect the U.S. markets, market participants, and financial system, consistent with the traditions of the international system and comity principles, as set forth in the Restatement. Of particular relevance is the Commission's approach to substituted compliance, which would be expected to mitigate any burden associated with potentially conflicting foreign regulations and would generally be appropriate in light of the supervisory interests of foreign regulators in entities domiciled and operating in its jurisdiction.
In addition, recognizing that close cooperation and coordination with other jurisdictions is vital to the regulation of derivatives in the highly interconnected global market, the Commission's staff expects to remain actively engaged in discussions with foreign regulators as the Commission implements the cross-border interpretive guidance and as other jurisdictions develop their own regulatory requirements for derivatives. The Commission recognizes that conflicts of law may exist and is ready to address those issues as they may arise. In that regard, where a real conflict of laws exists, the Commission strongly encourages regulators and registrants to consult directly with its staff.
Under the Proposed Guidance, the term “U.S. person” identifies those persons who, under the Commission's interpretation, could be expected to satisfy the jurisdictional nexus under section 2(i) of the CEA based on their swap activities either individually or in the aggregate.
Specifically, as set forth in the Proposed Guidance, the Commission's interpretation of the term “U.S. person” would generally include, but not be limited to:
(i) any natural person who is a resident of the United States;
(ii) any corporation, partnership, limited liability company, business or other trust, association, joint-stock company, fund or any form of enterprise similar to any of the foregoing, in each case that is either (A) organized or incorporated under the laws of the United States or having its principal place of business in the United States (legal entity) or (B) in which the direct or indirect owners thereof are responsible for the liabilities of such entity and one or more of such owners is a U.S. person;
(iii) any individual account (discretionary or not) where the beneficial owner is a U.S. person;
(iv) any commodity pool, pooled account, or collective investment vehicle (whether or not it is organized or incorporated in the United States) of which a majority ownership is held, directly or indirectly, by a U.S. person(s);
(v) any commodity pool, pooled account, or collective investment vehicle the operator of which would be required to register as a commodity pool operator under the CEA;
(vi) a pension plan for the employees, officers or principals of a legal entity with its principal place of business inside the United States; and
(vii) an estate or trust, the income of which is subject to U.S. income tax regardless of source.
Under the proposed interpretation, a “U.S. person” would include a foreign branch of a U.S. person; on the other hand, a non-U.S. affiliate guaranteed by a U.S. person would not be within the Commission's interpretation of the term “U.S. person.”
The Further Proposed Guidance included alternatives for two “prongs” of the proposed interpretation of the term “U.S. person” in the Proposed Guidance: prong (ii)(B), which relates to U.S. owners that are responsible for the liabilities of a non-U.S. entity; and prong (iv), which relates to commodity pools and funds with majority-U.S. ownership.
The alternative version of prong (ii)(B) in the Further Proposed Guidance would limit its scope to a non-U.S. legal entity that is directly or indirectly majority-owned by one or more natural persons or legal entities that meet prong (i) or (ii) of the interpretation, in which such U.S. person(s) bears unlimited responsibility for the obligations and liabilities of the legal entity. This alternative prong (ii)(B) would generally not include an entity that is a corporation, limited liability company or limited liability partnership where shareholders, members or partners have limited liability. Further, the Commission stated in the Further Proposed Guidance that the majority-ownership criterion would be intended to avoid capturing those legal entities that have negligible U.S. ownership interests. Unlimited liability corporations where U.S. persons have majority ownership and where such U.S. persons have unlimited liability for the obligations and liabilities of the entity generally would be covered under this alternative to prong (ii)(B).
The alternative prong (ii)(B) in the Further Proposed Guidance was as follows:
(ii) A corporation, partnership, limited liability company, business or other trust, association, joint-stock company, fund or any form of enterprise similar to any of the foregoing, in each case that is either (A) organized or incorporated under the laws of a state or other jurisdiction in the United States or having its principal place of business in the United States or (B) directly or indirectly majority-owned by one or more persons described in prong (i) or (ii)(A) and in which such person(s) bears unlimited responsibility for the obligations and liabilities of the legal entity (other than a limited liability company or limited liability partnership where partners have limited liability);
The Further Proposed Guidance explained that this alternative proposed prong would generally treat an entity as a U.S. person if one or more of its U.S. majority owners has unlimited responsibility for losses of, or nonperformance by, the entity. This prong would reflect that when the structure of an entity is such that the U.S. direct or indirect owners are ultimately liable for the entity's obligations and liabilities, the connection to activities in, or effect on, U.S. commerce would be expected to satisfy the requisite jurisdictional nexus. This “look-through” requirement also would serve to discourage persons from creating such indirect ownership structures for the purpose of engaging in activities outside of the Dodd-Frank regulatory regime. Under the Further Proposed Guidance, this alternative proposed prong generally would not render a legal entity organized or domiciled in a foreign jurisdiction a “U.S. person” simply because the entity's swaps obligations are guaranteed by a U.S. person.
With respect to prong (iv) of the interpretation of the term “U.S. person” in the Proposed Guidance, the Further Proposed Guidance set forth an alternative under which any commodity pool, pooled account, investment fund or other collective investment vehicle generally would be within the interpretation of the term “U.S. person” if it is (directly or indirectly) majority-owned by one or more natural persons or legal entities that meet prong (i) or (ii) of the interpretation of the term “U.S. person.” The Further Proposed Guidance explained that for purposes of this alternative prong (iv), the Commission would interpret “majority-owned” to mean the beneficial ownership of 50 percent or more of the equity or voting interests in the collective investment vehicle. Similar to the alternative prong (ii)(B) discussed above, the Commission generally would not interpret the collective investment vehicle's place of organization or incorporation to be determinative of its status as a U.S. person. The Further Proposed Guidance clarified that under alternative prong (iv), the Commission would interpret the term “U.S. person” to include a pool, fund, or other collective investment vehicle that is publicly traded only if it is offered, directly or indirectly, to U.S. persons.
The alternative prong (iv) in the Further Proposed Guidance was as follows:
(iv) A commodity pool, pooled account, investment fund, or other collective investment vehicle that is not described in prong (ii) and that is directly or indirectly majority-owned by one or more persons described in prong (i) or (ii), except any commodity pool, pooled account, investment fund, or other collective investment vehicle that is publicly-traded but not offered, directly or indirectly, to U.S. persons;
The Further Proposed Guidance explained that this alternative proposed prong (iv) is intended to capture collective investment vehicles that are created for the purpose of pooling assets from U.S. investors and channeling these assets to trade or invest in line with the objectives of the U.S. investors, regardless of the place of the vehicle's organization or incorporation. These collective investment vehicles may serve as a means to achieve the investment objectives of their beneficial owners, rather than being separate, active operating businesses. As such, the beneficial owners would be directly exposed to the risks created by the swaps that their collective investment vehicles enter into.
In general, commenters stated that the proposed “U.S. person” interpretation presented significant interpretive issues and implementation challenges.
A number of commenters requested that the Commission adopt an interim interpretation of “U.S. person” that would allow firms to rely on their existing systems and classifications and avoid the need to develop systems to follow a temporary interpretation of the term “U.S. person” that may change in the near future.
SIFMA also urged the Commission to phase in the “U.S. person” interpretation, citing the implementation difficulties identified by IIB. Specifically, SIFMA recommended that the Commission allow market participants to apply an interim interpretation of “U.S. person” until 90 days after the final interpretation of “U.S. person” is published.
Commenters' concerns were primarily (though not exclusively) directed to three prongs of the proposed “U.S. person” interpretation: prong (ii)(B) relating to U.S. owners that are responsible for the liabilities of a non-U.S. company; prong (iv) relating to commodity pools and funds with majority-U.S. ownership; and prong (v) relating to registered commodity pool operators. Below, the Commission describes the main comments to all the prongs of the proposed interpretation of “U.S. person” in greater detail.
Commenters generally did not comment on prong (i).
With respect to prong (ii)(A), the Investment Industry Association of Canada (IIAC) stated that the Commission should look to the location of a legal entity's management (or the majority of its directors and executive officers), instead of the location of organization.
On the other hand, Senator Levin supported an inclusive interpretation of the term “U.S. person” that would encompass foreign offices and affiliates of U.S. financial institutions and corporations, because requiring a case-by-case analysis of whether they should be subject to the Dodd-Frank Act would be complicated, burdensome, and susceptible to gamesmanship.
With respect to prong (ii)(B) of the interpretation, which addresses situations where the direct or indirect owners of an entity are responsible for its liabilities, several commenters stated that the phrase “responsible for the liabilities” was vague. For example, the Committee on Capital Markets Regulation (“Capital Markets”) stated that the phrase “responsible for the liabilities” was open to interpretation and requested that the Commission provide more details regarding its interpretation of this phrase.
Commenters also expressed concerns about the lack of a minimum U.S.-ownership threshold. For example, Sumitomo Mitsui Trust Bank Ltd. (“Sumitomo”) stated that there should be a minimum level of ownership of the entity in question by one or more U.S. persons for this prong to apply, and suggested that the majority ownership threshold used in prong (iv) apply here as well.
Capital Markets raised a concern that whether a conclusion that the direct or indirect owners of a U.S. legal entity are “responsible for the liabilities” of such entity requires knowledge of each counterparty's legal and ownership structure.
One commenter supported finalization of the alternative prong (ii)(B) in the Further Proposed Guidance, with minor clarifying changes. The Commercial Energy Working Group (“CEWG”) stated that the words “all of” should be added to clarify that this prong would generally apply when U.S. persons that are majority owners bear “unlimited responsibility for all of the obligations and liabilities of the legal entity . . .”
Other commenters stated that the Commission should clarify that the language at the end of the proposed alternative prong (ii)(B), which refers to limited liability companies and limited liability partnerships, would generally also apply to other types of entities where owners have limited liability but where the entities have different names in foreign legal jurisdictions.
Other commenters were critical of the alternative prong (ii)(B). Greenberger/AFR and Better Markets stated that this proposed prong is too narrow, because it appears to require that U.S. persons be both the majority owners of an entity and bear unlimited responsibility for the entity's obligations and liabilities, in order for the entity to be within the Commission's interpretation of the term “U.S. person” based solely on ownership by U.S. persons.
Other commenters suggested that the alternative prong (ii)(B) is too broad, recommending that the ownership element be limited to when a majority of the direct owners of an entity are U.S. persons, because considering the indirect ownership of an entity will be unworkable for many entities.
Commenters were also critical of the element of the alternative prong (ii)(B) that would treat a collective investment vehicle as a U.S. person if its principal place of business is in the United States. They stated that application of this element would be very unclear and difficult on an operational level.
Peabody Energy Corporation (“Peabody”) and SIFMA/AMG stated the Commission should adopt the interpretation of U.S. person in the January Order, which does not include all the elements of the proposed alternative prong (ii)(B).
Commenters generally did not comment on prong (iii) of the proposed interpretation of the term “U.S. person.”
With respect to prong (iv) relating to majority direct- or indirect-owned commodity pools, pooled accounts, or collective investment vehicles, several commenters stated that this prong was unworkable because the proposed interpretation would require potentially unascertainable information.
Cleary urged that the Commission not adopt an interpretation of “U.S. person” based on the composition of fund ownership, at least prior to finalizing the interpretation.
Consideration of majority-ownership is particularly problematic with respect to funds that are publicly traded, according to several commenters.
One commenter strongly supported the alternative prong (iv) in the Further Proposed Guidance. Citadel stated that since the Dodd-Frank clearing and reporting requirements will mitigate systemic risk, increase transparency and promote competition, the U.S. person interpretation should encompass offshore collective investment vehicles that have a sufficient U.S. nexus.
Other commenters argued that the entities that would be covered by the alternative prong (iv) should not be covered by the interpretation of “U.S. person,” which should cover only entities that are directly majority-owned by U.S. persons. For example, SIFMA/
Some commenters stated that whether a collective investment vehicle would be included in the interpretation of U.S. person should depend on whether the fund or other collective investment vehicle is being offered to U.S. persons, arguing that the interpretation should cover collective investment vehicles that are targeted to the U.S. market or to U.S. investors by focusing on activities within the control of the vehicle's manager.
ICI and IAA stated that the Commission should interpret whether an offer is made to U.S. persons in accordance with precedents under the SEC's Regulation S.
Commenters also stated that regardless of the policy adopted in this regard, in the consideration of whether an entity is a U.S. person, only information that is available to third parties or other parties should be considered relevant, and the Commission's policy should contemplate that market participants would rely on a representation of U.S. person status. Also, the Commission's policy should clarify how it would apply during the transition period immediately after expiration of the January Order.
Addressing prong (v) relating to registered commodity pool operators, many commenters stated that the Commission should not adopt an interpretation that looks to the registration status of a fund's operator, because this interpretation could capture a non-U.S. fund that does not itself trigger registration as a commodity pool operator and has a minimal U.S. nexus.
ICI recommended that the Commission, instead, interpret the term “U.S. person” to include a commodity pool, pooled account, or collective investment vehicle that is “offered publicly, directly or indirectly” by the manager/sponsor to U.S. persons.
IIAC recommended that prong (vi) relating to pension plans be modified so that pension plans designed exclusively for foreign employees of a U.S.-based entity are not within the interpretation of the term “U.S. person.” Further, IIAC urged the Commission to clarify that U.S. investment advisers or other fiduciaries not be considered to be within the interpretation of the term “U.S. person” when they are acting on behalf of non-U.S. accounts.
IIB stated that prong (vii) relating to an estate or trust should be replaced, explaining that market participants do not typically identify an estate's or trust's regulatory status on the basis of its tax status. Instead, it recommended that the Commission's interpretation look to the status of the executor, administrator, or trustee. Specifically,
A number of commenters provided substantially different alternative interpretations of the term “U.S. person.”
Many commenters stated that the Commission's policy in this regard should contemplate that a firm would reasonably rely on counterparty representations regarding their U.S. person status.
Viewed as a whole, the proposed interpretation of the term “U.S. person,” would generally not include a non-U.S. affiliate of a U.S. person, even if all of such affiliate's swaps are guaranteed by the U.S. person.
Responding to the Commission's request for comments on this issue, many commenters stated that Title VII requires the Commission to interpret the term “U.S. person” to include foreign affiliates of U.S. persons, and U.S. affiliates of foreign persons, in order to protect U.S. taxpayers from the risks posed by the global swaps market.
Greenberger also expressed support for including foreign swap entities controlled by U.S. parents in the interpretation of the term “U.S. person.” In his view, the Commission's distinction between guaranteed and non-guaranteed foreign subsidiaries is arbitrary, as the absence of a U.S. guarantee does not insulate the U.S. parent from risk exposure.
Other commenters objected to including a non-U.S. entity in the interpretation of the term “U.S. person” solely on the basis of affiliation with a U.S. person or having its swaps guaranteed by a U.S. person. Sullivan & Cromwell argued that foreign operations of a U.S.-based bank do not have a “direct and significant connection with activities in, or effect on,” U.S. commerce based solely on affiliation with or guarantee by a U.S. parent bank.
Japanese Bankers Association did not agree that these situations effect a risk transfer to the U.S. person, arguing that the risk would ultimately be incurred by the non-U.S. person and not by the U.S. guarantor; thus, it believed that the term “U.S. person” should not be interpreted to include a non-U.S. person guaranteed by a U.S. person.
In the Proposed Guidance, the Commission stated that a foreign branch of a U.S. swap dealer should be included in the Commission's interpretation of the term “U.S. person” because it is a part, or an extension, of a U.S. person.
Some commenters believed that the Commission's policy should explicitly adopt the SEC's Regulation S definition of a “U.S. person.” MFA/AIMA stated that Regulation S eliminates problems and inconsistencies in the Commission's proposed interpretation.
A number of commenters voiced concerns regarding potential expansion of the Commission's interpretation of the term “U.S. person,” which they thought could result from the prefatory phrase “includes, but is not limited to,” and requested that the Commission affirmatively state that non-U.S. persons are any persons that would not be covered by the interpretation of the term “U.S. person.”
A number of commenters further stated that the interpretation of the term “U.S. person” should be applied only for purposes of the registration and regulation of swap dealers and MSPs.
The Commission has carefully reviewed and considered the comments received and is finalizing a policy that will generally set forth an interpretation of the term “U.S. person,” as used in this Guidance, with certain modifications to the proposed definition as described below. As explained in the Proposed Guidance, the term “U.S. person,” as used in the context of CEA section 2(i), generally encompasses those persons whose activities—either individually or in the aggregate—have the requisite “direct and significant” connection with activities in, or effect on, U.S. commerce within the meaning of section 2(i).
First, the Commission will include in its consideration the elements in prongs (i) and (ii)(A), as proposed, renumbered as prongs (i) and (iii).
The concept of an operating company having a principal place of business has been addressed by the Supreme Court. In a recent case, the Supreme Court described a corporation's principal place of business as the “place where the corporation's high level officers direct, control, and coordinate the corporation's activities.”
The Commission is of the view that the application of the principal place of business concept to a collective investment vehicle may require consideration of additional factors beyond those applicable to operating companies. A collective investment vehicle is an entity or group of related entities created for the purpose of pooling assets of one or more investors and channeling these assets to trade or invest to achieve the investment objectives of the investor(s), rather than being a separate, active operating business.
The Commission is aware that the formation and structure of collective investment vehicles involve a great deal of variability, including with regard to the formation of the legal entities that will hold the relevant assets and enter into transactions (including swaps) in order to achieve the investors' objectives. Legal, regulatory, tax and accounting considerations may all play a role in determining how the collective investment vehicle is structured and the jurisdictions in which the legal entities will be incorporated.
In view of these circumstances, the Commission believes that for a collective investment vehicle, the locations where the relevant legal entities have registered offices, hold board meetings or maintain books and records are generally not relevant in determining the principal place of business of the collective investment vehicle. Instead, as stated in the
The “high level officers [who] direct, control and coordinate” the collective investment vehicle may be those senior personnel who implement the investment and trading strategy of the collective investment vehicle and manage its risks, and the location where they conduct the activities necessary to implement the investment strategies of the vehicle may be its center of direction, control and coordination. In this regard, the Commission notes that the achievement of the investment objectives of a collective investment vehicle typically depends upon investment performance and risk management. Investors in a collective investment vehicle seek to maximize the return on their investment while remaining within their particular tolerance for risk. Thus, the key personnel relevant to this aspect of the analysis are those senior personnel responsible for implementing the vehicle's investment strategy and its risk management. Depending on the vehicle's investment strategy, these senior personnel could be those responsible for investment selections, risk management decisions, portfolio management, or trade execution.
The achievement of a collective investment vehicle's investment objectives may be closely linked to its formation. Decisions made in the structuring and formation of the collective investment vehicle may have a significant effect on the performance of the vehicle. Thus, for purposes of identifying the vehicle's principal place of business, the Commission may also consider the location of the senior personnel who direct, control and coordinate the formation of the vehicle (
In a comprehensive sense promoter includes those who undertake to form a corporation and to procure for it the rights, instrumentalities and capital by which it is to carry out the purposes set forth in its charter, and to establish it as fully able to do its business. Their work may begin long before the organization of the corporation, in seeking the opening for a venture and projecting a plan for its development, and it may continue after the incorporation by attracting the investment of capital in its securities and providing it with the commercial breath of life.
203 Mass. 159, 177 (1909),
Modern law continues to refer to the responsibility of promoters of legal entities.
The Commission generally does not intend that when the promoters of a collective investment vehicle serve an administrative, purely ministerial function of handling the flow of funds from investors into the vehicle, the location of these personnel would be relevant in this context.
Accordingly, the Commission will generally consider the principal place of business of a collective investment vehicle to be in the United States if the senior personnel responsible for either (1) the formation and promotion of the collective investment vehicle or (2) the implementation of the vehicle's investment strategy are located in the United States, depending on the facts and circumstances that are relevant to determining the center of direction, control and coordination of the vehicle.
Since the Commission recognizes that the structures of collective investment vehicles vary greatly, the Commission believes it is useful to provide examples to illustrate how the Commission's approach could apply to a consideration of whether the “principal place of business” of a collective investment vehicle is in the United States in particular hypothetical situations. However, because of variations in the structure of collective investment vehicles as well as the factors that are relevant to the consideration of whether a collective investment vehicle has its principal place of business in the United States under this Guidance, these examples are for illustrative purposes only. In addition, these examples are not intended to be exclusive or to preclude a determination that any particular collective investment vehicle has its principal place of business in the United States.
An asset management firm located in the United States establishes a collective investment vehicle outside the United States (“Fund A”).
The Commission generally considers all of these functions, although important to the collective investment vehicle, to be ministerial functions that are generally not relevant to the determination of the location of a collective investment vehicle's principal place of business. Thus, even if all of these firms and all the personnel performing these functions were outside the United States, the Commission would nonetheless be inclined to view the principal place of business of Fund A as within the United States.
Additional elements that could be relevant to the determination include the location of the collective investment vehicle's primary assets, and the location of the collective investment vehicle's counterparties. However, the Commission believes that the location of these additional elements outside the United States should generally not preclude an interpretation that the collective investment vehicle's principal place of business is in the United States.
The Commission believes that
An asset management firm located outside the United States establishes a collective investment vehicle located outside the United States (“Fund B”). Personnel of the asset management firm who are located outside the United States will be responsible for implementing Fund B's investment and trading strategy and its risk management. However, personnel in two offices of the asset management firm—one of which is located outside the United States and the other of which is located in the United States—will be involved in managing Fund B's investment portfolio. Although the personnel in the U.S. office may act autonomously on a day-to-day basis, they will be under the direction of senior personnel in the non-U.S. office regarding how they are implementing the investment objectives of Fund B. In terms of the asset management firm's internal organization, the personnel in the U.S. office report to the personnel in the non-U.S. office, who also generally hold higher positions within the firm. Because the personnel located inside the United States merely facilitate the implementation of the investment objectives of Fund B, for which senior personnel outside the United States are responsible, the Commission would be inclined to view the principal place of business of Fund B as not being in the United States.
A financial firm located in the United States establishes a collective investment vehicle outside the United States (“Fund C”). The collective investment vehicle includes a single legal entity organized outside the United States, the assets of which are segregated into several separate classes.
The Commission recognizes that the structures of collective investment vehicles are complex and varied, and it does not intend to establish bright line tests for when the principal place of business of a collective investment vehicle would or would not be within the United States. Rather, the Commission's examples above are intended to illustrate the considerations that would be relevant to whether a collective investment vehicle's principal place of business is in the United States, within the framework of reviewing all the relevant facts and circumstances.
The Commission also understands that non-U.S. individuals, institutions, pension plans or operating companies may retain asset management firms in the United States to provide a range of asset management and other investment-related services. Where the individual, institution, pension plan or operating company is not within any
Second, the Commission will include in its consideration the elements in the alternative version of prong (ii)(B) that was described in the Further Proposed Guidance (and renumbered in the Guidance as prong (vii)). The relevant elements in the alternative version are whether a legal entity is directly or indirectly majority-owned by one or more U.S. persons,
In response to comments on the Proposed Guidance, the Commission intends that this prong would cover entities that are directly or indirectly majority-owned by U.S. person(s), but not those legal entities that have negligible U.S. ownership interests. In the Commission's view, where the structure of an entity is such that the U.S. owners are ultimately liable for the entity's obligations and liabilities, the connection to activities in, or effect on, U.S. commerce would generally satisfy section 2(i), irrespective of the fact that the ownership is indirect. The Commission expects that this “look-through” aspect of the interpretation also would serve to discourage persons from engaging in activities outside of the Dodd-Frank regulatory regime by creating such indirect ownership structures.
In the Commission's view, where one or more U.S. owners has unlimited responsibility for losses or nonperformance by its majority-owned affiliate, there is generally a direct and significant connection with activities in, or effect on, commerce of the United States within the meaning of section 2(i). Therefore, for purposes of section 2(i), the majority-owned entity would appropriately be considered a “U.S. person.”
The Commission has considered the comments requesting that the interpretation include consideration of whether the U.S. person majority owners have unlimited responsibility for “all of” the obligations and liabilities of the entity in connection with this prong of the interpretation. The Commission believes that even if there are some potential obligations and liabilities of the entity that may not flow to the U.S. persons, the risk of unlimited responsibility for other obligations and liabilities would generally be a sufficient nexus to the United States for purposes of section 2(i). Similarly, it would generally not be necessary for all the U.S. persons who are majority owners to bear unlimited responsibility (as some commenters suggested). Rather, if any of the U.S. persons who are direct or indirect majority owners bears unlimited responsibility for the obligations and liabilities of the entity, it would generally be covered by this prong of the interpretation.
In response to requests from commenters on the Proposed Guidance, the Commission clarifies that it does not intend that prong (vii) would cover legal entities organized or domiciled in a foreign jurisdiction but whose swaps obligations are guaranteed by a U.S. person.
Thus, for example, as set forth below, where a non-U.S. affiliate of a U.S. person has its swap dealing obligations with non-U.S. counterparties guaranteed by a U.S. person,
Third, the Commission will include in its interpretation of the term “U.S. person” the elements in prong (iii), (renumbered as prong (viii)), substantially as proposed. Commenters did not comment on, nor object to, this prong. The Commission clarifies that it expects that this prong would encompass a joint account where any one of the beneficial owners is a U.S. person.
Fourth, the Commission will include in its interpretation of the term “U.S. person” the elements in the alternative prong (iv) that was described in the Further Proposed Guidance (renumbered in the Guidance as prong (vi)), with some modifications. The Commission understands from commenters that the determination by some collective investment vehicles of whether they are majority-owned by U.S. persons may pose practical difficulties. In response to these practical difficulties, the Commission has eliminated the reference to “indirect” majority ownership in this prong. As revised, this prong no longer refers to “direct or indirect” majority ownership by U.S. persons.
Under alternative prong (vi), any commodity pool, pooled account, investment fund or other collective investment vehicle that is majority-owned by one or more U.S. person(s)
For example, a limited company is formed under the laws of the Cayman Island as a collective investment vehicle that engages in swap transactions. It has a single investor, which is an investment company registered with the Securities and Exchange Commission under the Investment Company Act of 1940. Shares in the registered investment company are only owned by United States persons and both the Cayman Island limited company and the registered investment company are sponsored by the same investment adviser. The Cayman Island limited company would be viewed as a “controlled foreign corporation” of the registered investment company. Because the Cayman Island limited company is controlled by the same investment adviser as the investor registered investment company, the Cayman Island limited company would be required to “look through” the registered investment company and would be considered majority owned by U.S. persons. Therefore, under revised prong (vi), the Cayman Island limited company generally would be a U.S. person, subject to consideration of all the facts and circumstances.
As another example, a limited company is formed under the laws of the Cayman Island by an investment manager as a collective investment vehicle that engages in swap transactions as part of its investment strategy (“Master Fund”). It has two investors, which are also collective investment vehicles that were formed by the same investment manager for the purpose of investing in the Master Fund. One investor collective investment vehicle is formed under the laws of the state of Delaware and the other investor collective investment vehicle is a limited company formed under the laws of the Cayman Island. Because Master Fund and the two investor collective investment vehicles are under common control by the investment manager, the Master Fund is required to “look through” the two investor vehicles to their beneficial owners to determine whether it is majority owned by U.S. persons. Whether the Master Fund is a U.S. person will require the assessment of whether the majority of its equity is held indirectly by U.S. persons through the two investor vehicles.
However, where a collective investment vehicle is owned in part by an unrelated investor collective investment vehicle, the collective investment vehicle need not “look through” the unrelated investor entity, but may reasonably rely upon written, bona fide representations from the unrelated investor entity regarding whether it is a U.S. person,
The Commission is also including a minor modification to clarify that it expects that the interpretation in prong (vi) would apply irrespective of whether the collective investment vehicle is organized or incorporated in the United States. Similar to the Commission's analysis with respect to prong (vii) discussed above, the Commission's
With respect to a swap between a collective investment vehicle and a non-U.S. swap dealer, the Commission believes that losses borne by the vehicle upon a default by the non-U.S. swap dealer are better seen as losses incurred by the investors in the collective investment vehicle rather than by the vehicle itself. In contrast with a collective investment vehicle, when an operating company enters into a swap with a non-U.S. swap dealer, losses borne by the operating company upon a default by the non-U.S. swap dealer are better seen as losses incurred by the operating company and only indirectly by its shareholders. Therefore, prong (vi) only relates to collective investment vehicles and does not extend to operating companies.
The Commission is also revising its interpretation in prong (vi) to exclude non-U.S. publicly-offered, as opposed to publicly-traded, collective investment vehicles. That is, a collective investment vehicle that is publicly offered to non-U.S. persons, but not offered to U.S. persons, would generally not be included within the interpretation of the term U.S. person. This revision is intended to address comments that publicly-traded funds are only a subset of non-U.S. regulated collective investment vehicles and that ownership verification is expected to be particularly difficult for pools, funds, and other collective investment vehicles that are publicly offered.
In addition, a collective investment vehicle that is publicly offered only to non-U.S. persons and not offered to U.S. persons generally would not fall within any of the prongs of the interpretation of the term “U.S. person.”
Fifth, the Commission will not include in its interpretation of the term “U.S. person” the elements in proposed prong (v), which related to registered commodity pool operators. The Commission agrees with commenters that neither the location (nor the nationality), nor the registration status, of the pool operator would normally, without more, be determinative of whether the underlying pool(s) should be included in its interpretation of the term “U.S. person.” The Commission has further considered that, as discussed above, the relevant elements for a commodity pool or other collective investment vehicle would generally be whether or not its principal place of business is in the United States or it is majority owned by U.S. persons. The Commission believes that proposed prong (v) could be overly broad and have the effect of capturing commodity pools with minimal participation of U.S. persons and a minimal U.S. nexus.
Sixth, the Commission will include in its interpretation of the term “U.S. person” the elements in prong (vi) (renumbered as prong (iv)) relating to pension plans. In response to comments, though, the Commission is clarifying that it does not intend that its interpretation encompass pension plans that are primarily for foreign employees of U.S.-based entities described in prong (iii) of the interpretation. Also, as noted above in the discussion of collective investment vehicles, the Commission does not generally expect that a pension plan which is not a U.S. person would become a U.S. person simply because some of the individuals or entities that manage the investments of the pension plan are located or organized in the United States.
Finally, the Commission will include in its interpretation of the term “U.S. person” the elements in prong (vii) (renumbered as prongs (ii) and (v)) pertaining to an estate or trust, with certain modifications to take into account the views of commenters who addressed this issue, and the legal and practical considerations that are relevant to the treatment of estates and trusts for purposes of the Dodd-Frank Act. The Commission agrees with the commenters who stated that treatment of an estate or trust should generally not depend on whether the income of the estate or trust is subject to U.S. tax. The Commission understands that whether income is subject to U.S. tax can depend on a variety of factors, including the source of the income, which may not be relevant to whether the Dodd-Frank Act should apply to swaps entered into by the estate or trust.
After further consideration, the Commission will include in its interpretation of the term “U.S. person” (a) an estate if the decedent was a U.S. person at the time of death and (b) a trust if it is governed by the law of a state or other jurisdiction in the United States and a court within the United States is able to exercise primary supervision over the administration of the trust. For what it expects to be the relatively few estates that would use swaps (most likely for purposes of investment hedging), the Commission believes that the treatment of such swaps should generally be the same as for swaps entered into by the decedent during life. If the decedent was a party to any swaps at the time of death, then those swaps should generally continue to be treated in the same way after the decedent's death, when the swaps would most likely pass to the decedent's estate. Also, the Commission expects that this element of the interpretation will be predictable and easy to apply for natural persons planning for how their swaps will be treated after death, for executors and administrators of estates, and for the swap counterparties to natural persons and estates.
With respect to trusts, the Commission expects that its approach would be in line with how trusts are treated for other purposes under law. The Commission has considered that each trust is governed by the laws of a particular jurisdiction, which may depend on steps taken when the trust was created or other circumstances surrounding the trust. The Commission believes that if a trust is governed by U.S. law (
The Commission disagrees with commenters that the status of an estate or trust should be based solely on the status of the executor, administrator or trustee.
As described above, many commenters indicated that the information necessary to accurately assess the status of their counterparties as U.S. persons may not be available, or may be available only through overly burdensome due diligence, particularly where the interpretation includes a “look-through” element that considers “direct and indirect” ownership. For this reason, these commenters requested that the Commission's policy contemplate reasonable reliance on counterparty representations as to the relevant elements of the interpretation of the term “U.S. person.”
The Commission agrees with the commenters that a party to a swap should generally be permitted to reasonably rely on its counterparty's written representation in determining whether the counterparty is within the Commission's interpretation of the term “U.S. person.” In this context, the Commission's policy is to interpret the “reasonable” standard to be satisfied when a party to a swap conducts reasonable due diligence on its counterparties, with what is reasonable in a particular situation to depend on the relevant facts and circumstances. The Commission notes that under the External Business Conduct Rules, a swap dealer or MSP generally meets its due diligence obligations if it reasonably relies on counterparty representations, absent indications to the contrary.
The Commission is confirming its interpretation, as proposed, that a foreign branch of a U.S. person is itself a “U.S. person.” As the Commission explained in the Proposed Guidance, a branch does not have a legal identity separate from that of its principal entity. In this respect, the Commission notes that branches are neither separately incorporated nor separately capitalized and, more generally, the rights and obligations of a branch are the rights and obligations of its principal entity (and vice versa). Under these circumstances, the Commission views the activities of a foreign branch as the activities of the principal entity, and thus a foreign branch of a U.S. person is a U.S. person.
Accordingly, the Commission declines to recognize foreign branches of U.S. persons separately from their U.S. principal for purposes of registration. That is, if the foreign branch were to be a swap dealer or MSP, as discussed further below, the U.S. person would be required to register, and the registration would encompass the foreign branch. Upon consideration of principles of international comity and the factors set forth in the Restatement, though, the Commission has calibrated the requirements otherwise applicable to such foreign branches in respects other than broadly excluding them from the U.S. person interpretation. For example, as discussed further below, foreign branches of U.S. persons may comply with Transaction-Level Requirements through substituted compliance, where appropriate, with respect to swaps with foreign counterparties, as well as with a foreign branch of another U.S. person. Further, non-U.S. persons may exclude swaps with foreign branches of registered swap dealers for purposes of determining whether they have exceeded the de minimis level of swap dealing activity under the swap dealer definition.
The types of offices the Commission would consider to be a “foreign branch” of a U.S. bank, and the circumstances in which a swap is with such foreign branch, are discussed further below in section C below.
The Commission has considered the recommendation by several commenters that the Commission follow, entirely or to some extent, the definition of “U.S. person” in the SEC's Regulation S.
Similarly, Regulation S and the Dodd-Frank swaps provisions also serve fundamentally different regulatory objectives with respect to the treatment of collective investment vehicles. Under Regulation S, the SEC will consider certain investment funds and securities issuers that are organized in foreign jurisdictions, but owned by U.S. investors, to be U.S. persons unless the U.S. investors are accredited investors.
The Commission understands that the Regulation S definition of “U.S. person” is generally understood and applied by market participants. However, as the foregoing examples demonstrate, the Regulation S definition of “U.S. person” could fail to capture persons whose activities, the Commission believes, meet the “direct and significant” jurisdictional test of CEA section 2(i)—and whose activities present the type of risk that Congress addressed in Title VII. This potential for underinclusion, together with the fact that the Commission has addressed commenter concerns by providing further details and guidance about its interpretation of the term “U.S. person,” which the Commission expects will facilitate a more consistent understanding of that term among market participants, provides the basis for not importing the Regulation S definition into the Commission's interpretation of CEA section 2(i).
The Commission continues to include the prefatory phrase “include, but not be limited to” in its interpretation of the term “U.S. person,” as it appeared in the Proposed Guidance. While the Commission's policy generally is to limit its interpretation of this term, for purposes of this Guidance, to persons encompassed within the several prongs discussed above, the Commission also expects that there may be circumstances that are not fully addressed by those prongs, or other situations where the interpretation discussed above does not appropriately resolve whether a person should be included in the interpretation of the term “U.S. person.” Thus, the Commission continues to include the prefatory phrase to indicate that there may be situations where a person not fully described in the interpretation above is appropriately treated as a “U.S. person” for purposes of this Guidance in view of the relevant facts and circumstances and a balancing of the various regulatory interests that may apply. In these situations, the Commission anticipates that the relevant facts and circumstances may generally include the strength of the connections between the person's swap-related activities and U.S. commerce; the extent to which such activities are conducted in the United States; the importance to the United States (as compared to other jurisdictions where the person may be active) of regulating the person's swap-related activities; the likelihood that including the person within the interpretation of “U.S. person” could lead to regulatory conflicts; and considerations of international comity.
Finally, in response to commenters' requests for clarification regarding the scope of the applicability of the “U.S. person” interpretation,
In summary, for purposes of the application of CEA section 2(i), the Commission will interpret the term “U.S. person” generally to include, but not be limited to:
(i) Any natural person who is a resident of the United States;
(ii) any estate of a decedent who was a resident of the United States at the time of death;
(iii) any corporation, partnership, limited liability company, business or other trust, association, joint-stock company, fund or any form of enterprise similar to any of the foregoing (other than an entity described in prongs (iv) or (v), below) (a “legal entity”), in each case that is organized or incorporated under the laws of a state or other jurisdiction in the United States or having its principal place of business in the United States;
(iv) any pension plan for the employees, officers or principals of a legal entity described in prong (iii), unless the pension
(v) any trust governed by the laws of a state or other jurisdiction in the United States, if a court within the United States is able to exercise primary supervision over the administration of the trust;
(vi) any commodity pool, pooled account, investment fund, or other collective investment vehicle that is not described in prong (iii) and that is majority-owned by one or more persons described in prong (i), (ii), (iii), (iv), or (v), except any commodity pool, pooled account, investment fund, or other collective investment vehicle that is publicly offered only to non-U.S. persons and not offered to U.S. persons;
(vii) any legal entity (other than a limited liability company, limited liability partnership or similar entity where all of the owners of the entity have limited liability) that is directly or indirectly majority-owned by one or more persons described in prong (i), (ii), (iii), (iv), or (v) and in which such person(s) bears unlimited responsibility for the obligations and liabilities of the legal entity; and
(viii) any individual account or joint account (discretionary or not) where the beneficial owner (or one of the beneficial owners in the case of a joint account) is a person described in prong (i), (ii), (iii), (iv), (v), (vi), or (vii).
Under this interpretation, the term “U.S. person” generally means that a foreign branch of a U.S. person would be covered by virtue of the fact that it is a part, or an extension, of a U.S. person.
For convenience of reference, this Guidance uses the terms “U.S. swap dealer” and “U.S. MSP” to refer to swap dealers and MSPs, respectively, that are within the Commission's interpretation of the term “U.S. person” under this Guidance. The terms “non-U.S. swap dealer” and “non-U.S. MSP” refer to swap dealers and MSPs, respectively, that are not within the Commission's interpretation of the term “U.S. person” under this Guidance; and the term “non-U.S. person” refers to a person that is not within the Commission's interpretation of the term “U.S. person” under this Guidance.
Under section 2(i) of the CEA, the Dodd-Frank swaps provisions, including the swap dealer and MSP registration provisions, do not apply to activities overseas unless such activities have a “direct and significant connection with activities in, or effect on,” U.S. commerce. In the Proposed Guidance, the Commission addressed the general manner in which a person's overseas swap dealing activities or positions may require registration as a swap dealer or MSP, respectively. Specifically, under the Proposed Guidance, the Commission would expect that a non-U.S. person whose swap dealing transactions with U.S. persons exceed the de minimis threshold would register as a swap dealer.
In the consideration of whether a non-U.S. person is engaged in more than a de minimis level of swap dealing, the Proposed Guidance would generally include the notional value of any swaps between such non-U.S. person (or any of its non-U.S. affiliates under common control) and a U.S. person (other than a foreign branch of a registered swap dealer).
Following a similar rationale, under the Proposed Guidance if a non-U.S person holds swaps positions above the requisite threshold, the Commission would expect such non-U.S. person to register as an MSP. In considering whether a non-U.S. person that is a potential MSP meets the applicable threshold, under the Proposed Guidance, the non-U.S. person would have included the notional value of: (1) any swaps entered into between such non-U.S. person and a U.S. person (provided that if the non-U.S. person's swaps are guaranteed by a U.S. person, then such swaps will be attributed to the U.S. guarantor and not the potential non-U.S. MSP); and (2) any swaps between another non-U.S. person and a U.S. person if the potential non-U.S. MSP guarantees the obligations of the other non-U.S. person thereunder.
In general, commenters on the Proposed Guidance did not raise concerns or objections to the Commission's interpretation that non-U.S. persons who engage in more than a de minimis level of swap dealing with U.S. persons should be expected to register as swap dealers.
Similarly, Goldman argued that it would be inconsistent with the Dodd-Frank Act to expect non-U.S. persons to register as swap dealers solely on the basis of guarantees by a U.S. parent, absent any showing of a “direct and significant” jurisdictional nexus. Goldman recommended that any concerns regarding potential evasion of the registration requirement be addressed through the Commission's exercise of its anti-evasion authority.
IIAC requested that the Commission confirm that a guarantee by a foreign holding company would not be deemed to be a guarantee by all of its subsidiaries, including U.S. entities, solely as a result of the indirect ownership.
On the other hand, Senator Levin stated that guarantees are central to concerns regarding cross-border swaps, and that any guarantee, implicit or explicit, by a U.S. parent company to its non-U.S. affiliates effectively transfers risk to the U.S. parent.
AFR stated that the Commission's failure to clarify its interpretation of when affiliates of a “U.S. person” would be treated as guaranteed, or to capture “the large grey area” between explicit and informal guarantees, among other things, creates opportunities to escape Dodd-Frank regulations by shifting business overseas.
Under the Final Entities Rules, a person is required to register as a swap dealer if its swap dealing activity activities over the preceding 12 months exceeds the de minimis threshold of swap dealing. In addition, Commission regulation 1.3(ggg)(4) requires that a person include, in determining whether its swap dealing activities exceed the de minimis threshold, the aggregate notional value of swap dealing transactions entered by its affiliates under common control.
For purposes of determining whether a U.S. person is required to register as a swap dealer, a U.S. person should count all of its swap dealing activity, whether with U.S. or non-U.S. counterparties. This interpretation reflects that swaps markets are global, and therefore, in the Commission's view, all of a U.S. person's swap dealing activities, whether with U.S. persons or non-U.S. persons, have the requisite jurisdictional nexus and potential to impact the U.S. financial system. Similarly, the Commission believes that all of the swap dealing activities of a non-U.S. person that is an affiliate of a U.S. person and that is guaranteed by a U.S. person (a “guaranteed affiliate”),
However, under the Commission's interpretation of section 2(i), a more circumscribed registration policy applies to non-U.S. persons that are not guaranteed or conduit affiliates. In this case, the Commission believes that the non-U.S. person should count only its swap dealing transactions with U.S. persons (other than foreign branches of swap dealers that are registered with the Commission), and with guaranteed affiliates towards the de minimis thresholds for swap dealer registration, with three exceptions, which are described below. Non-U.S. persons that are not guaranteed or conduit affiliates are not required to count swaps with a conduit affiliate towards the swap dealer de minimis calculation.
Similarly, for purposes of determining whether a U.S. person is required to register as an MSP, as the Commission interprets section 2(i), a U.S. person and a guaranteed or conduit affiliate should include all of swap positions with counterparties, whether they are U.S. or non-U.S. persons. With respect to whether a non-U.S. person must calculate whether its swap positions create exposures above the relevant MSP thresholds, the Commission believes, for policy reasons and consistent with principles of international comity, that CEA section 2(i) should not be interpreted to require non-U.S. persons that are not financial entities to include for MSP calculation purposes certain swap positions as explained below.
As the Commission explained in the Proposed Guidance, in the event of a default or insolvency of a non-U.S. swap dealer with more than a de minimis level of swap dealing with U.S. persons, or a non-U.S. MSP with more than the threshold level of swaps positions with U.S. persons, the swap dealer's or MSP's U.S. counterparties could be adversely affected. Such an event may adversely affect numerous persons engaged in commerce within the United States, disrupt such commerce, and increase the risk of a widespread disruption to the financial system in the United States.
Similar effects on U.S. persons and on the U.S. financial system may occur in the event of a default or insolvency of certain non-U.S. person with respect to swap dealing transactions in excess of the de minimis level, or swaps positions above the MSP threshold, entered into such non-U.S. persons with other non-U.S. persons whose swaps obligations are guaranteed by a U.S. person. The Commission interprets section 2(i) of the CEA to encompass swaps entered into by guaranteed or conduit affiliates in addition to encompassing swaps entered into by U.S. persons. In the final rule to further define the term “swap,” the Commission found that a guarantee of a swap is a term of that swap that affects the price or pricing attributes of that swap, and that when a swap has the benefit of a guarantee, the guarantee is an integral part of that swap.
The CFTC is persuaded that when a swap (that is not a security-based swap or mixed swap) has the benefit of a guarantee, the guarantee and related guaranteed swap must be analyzed together. The events surrounding the failure of [AIGFP] highlight how guarantees can cause major risks to flow to the guarantor. The CFTC finds that the regulation of swaps and the risk exposures associated with them, which is an essential concern of the Dodd- Frank Act, would be less effective if the CFTC did not interpret the term “swap” to include a guarantee of a swap.
Accordingly, under section 2(i), the Commission intends to interpret section 2(i) as applying the swaps provisions of the CEA to swaps that are entered into by guaranteed or conduit affiliates in a manner similar to how section 2(i) would apply if a U.S. person had entered into the swap (subject to appropriate considerations of international comity for non-guaranteed, non-U.S. persons facing such guaranteed or conduit affiliates, as discussed below).
Thus, in the case of a guaranteed or conduit affiliate, the Commission interprets CEA section 2(i) to provide that the guaranteed or conduit affiliate is expected to count toward the swap dealer de minimis threshold all of its swap dealing activities.
The Commission believes that while the SEC's proposed approach may be appropriate for the securities-based swaps market, it would not be desirable to follow a similar approach for the swaps markets within the Commission's jurisdiction. Due to the differing characteristics of the markets, such as the involvement of a much larger and more diverse number of commercial companies using swaps as compared to security-based swaps, the risks that may be transmitted through the interconnected financial system from the non-U.S. guaranteed affiliate operating as a swap dealer to the U.S. swaps market may not be adequately managed by the MSP structure, which has relatively high exposure thresholds before registration is required.
In the Final Swap Definition, the Commission also acknowledged that a “full recourse” guarantee would have a greater effect on the price of a swap than a “limited” or “partial recourse” guarantee, yet nevertheless determined that the presence of any guarantee with recourse, no matter how robust, is price forming and an integral part of a guaranteed swap.
A recent example of the importance of implicit guarantees is the collapse of Bear Stearns, which was brought down by the failure of non-guaranteed hedge fund affiliates. These hedge funds were foreign affiliates technically not guaranteed by the parent, and the investment by the parent company in the funds was minimal. However, the firm was forced to try to save the funds for reputational reasons and also because a fire sale of subsidiary assets could have seriously impacted correlated positions held by the parent company. . . . The example of Bear Stearns is only one among many instances where parent companies have been forced to rescue failing affiliates even in the absence of an explicit guarantee.
AFR (Aug. 27, 2012) at 8.
Finally, with respect to the Japanese Bankers Association's concern about potential constraints on their hedging activities, the Commission contemplates that swaps that are between foreign branches of U.S. swap dealers and dealing non-U.S. persons generally will be excluded from the swap dealer registration determination, as further described below. The Commission believes that under section 2(i) of the CEA, it would generally be appropriate for non-U.S. market participants, such as members of the Japanese Bankers Association, to engage in hedging activities with foreign branches of U.S. swap dealers without being expected to count such transactions for purposes of the swap dealer registration determination.
The Commission also is affirming that, for purposes of this Guidance, the Commission would interpret the term “guarantee” generally to include not only traditional guarantees of payment or performance of the related swaps, but also other formal arrangements that, in view of all the facts and circumstances, support the non-U.S. person's ability to pay or perform its swap obligations with respect to its swaps.
Commission regulation 1.3(ggg)(4) requires that a person include, in determining whether its swap dealing activities exceed the de minimis threshold, the aggregate notional value of swap dealing transactions entered by its affiliates under common control.
Numerous commenters objected to the aggregation interpretation regarding swap dealer registration in the Proposed Guidance.
Cleary argued that the positions of a registered swap dealer should be excluded from the de minimis calculation by its affiliate and further added that such aggregation relief should be available to any U.S. or non-U.S. affiliates of any U.S.- or non-U.S. registered swap dealer.
In the Further Proposed Guidance, the Commission proposed an alternative interpretation of the aggregation requirement in Commission regulation 1.3(ggg)(4). Under this alternative, a non-U.S. person would be expected, in the consideration of whether its swap dealing transactions exceed the de minimis threshold, to include the aggregate notional value of swap dealing transactions entered into by all its affiliates under common control (
On the other hand, the Commission also noted in the Further Proposed Guidance that, given the borderless nature of swap dealing activities, a swap dealer may conduct swap dealing activities through various affiliates in different jurisdictions, which suggests that its interpretation should take into account the applicable swap dealing transactions entered by all of a non-U.S. person's affiliates under common control worldwide. Otherwise, affiliated persons may not register solely because their swap dealing activities are divided, such that each affiliate falls below the de minimis level. The Commission noted its concern that a policy under which such affiliates whose swap dealing activities individually fall below the de minimis level, but whose swap dealing activities in the aggregate exceed the de minimis level, would not register as swap dealers could provide an incentive for firms to spread their swap dealing activities among several unregistered affiliates rather than centralize their swap dealing in registered firms. Such a result would increase systemic risks to U.S. market participants and impede the Commission's ability to protect U.S. markets.
Two commenters supported the alternative interpretation of the aggregation requirement set out in the Further Proposed Guidance. Greenberger/AFR stated that the aggregation requirement helps to prevent the spreading of risk, because without aggregation U.S. persons could avoid registration as swap dealers by routing their swap activity through non-U.S. affiliates and thereby remain under the de minimis threshold.
Other commenters were opposed to the alternative interpretation in the Further Proposed Guidance. SIFMA/CH/FSR stated that aggregation of swap dealing activity across affiliates is not appropriate in any circumstance.
Mitsubishi UFJ Financial Group Inc. (“Mitsubishi UFJ”) asked the Commission to clarify its interpretation of the term “control” in the context of a non-U.S. joint venture where only one owner controls and operates, and financially consolidates, the joint venture entity.
In the Further Proposed Guidance, the Commission asked commenters to address several questions regarding the aggregation provision. In particular, the Commission asked whether the alternative interpretation of the aggregation requirement should apply to non-U.S. persons that are guaranteed by a U.S. person with respect to their swaps obligations in the same way that it applies to non-U.S. persons that are not so guaranteed, and if so, should the Commission continue to construe the term “guarantee” for this purpose to mean any collateral promise by a guarantor to answer for the debt or obligation of an obligor under a swap and should the term include arrangements such as keepwells and liquidity puts.
Greenberger/AFR replied to this question affirmatively, stating that the Commission should establish a rebuttable presumption that foreign affiliates are guaranteed by the parent company, and require clear evidence that the market has been explicitly informed that the parent will not stand behind affiliate liabilities in the event of
Other commenters stated that the alternative interpretation should not apply to non-U.S. persons that are guaranteed by a U.S. person in the same way that it applies to non-U.S. persons that are not so guaranteed. SIFMA/CH/FSR stated that a guarantee by a U.S. person is not, in itself, a sufficient nexus for jurisdiction under section 2(i) of the CEA, since swaps may be guaranteed for a number of reasons that do not necessarily implicate U.S. jurisdiction.
The Commission also asked if non-U.S. persons should not be expected to include in the de minimis calculation the swap dealing transactions of their U.S. affiliates under common control, or, alternatively, should the policy of the Commission contemplate that they would exclude from the de minimis calculation the swap dealing transactions of their U.S. affiliates under common control that are registered as swap dealers.
Responding to this question, Greenberger/AFR stated it is important in any case to require aggregation across all non-U.S. affiliates of a global bank, in order to effectively capture transactions spread across multiple foreign affiliates; otherwise, it would be much easier to avoid registration as a swap dealer.
Several commenters were opposed to a policy under which non-U.S. persons would aggregate the swap dealing activities of U.S. affiliates that are registered swap dealers. CEWG argued that this policy could lead to registration of non-U.S. persons as swap dealers because of the activities of their U.S. affiliates, which it asserted would be contrary to the separation sometimes maintained between U.S. and non-U.S. affiliates and unsupported by any policy rationale.
The Mizuho Corporate Bank, Ltd. (“Mizuho”) and Sumitomo submitted a joint letter arguing that the swap dealing activity of U.S. affiliates that are registered as swap dealers should be excluded from aggregation because otherwise the de minimis exception would be effectively unavailable to non-U.S. based firms that conduct U.S.-facing swap dealing activity through a U.S. affiliate that is registered as a swap dealer.
Other commenters went further, stating that non-U.S. persons should not be required to aggregate the swap dealing activities of any of their U.S. affiliates. The Japanese Bankers Association stated U.S. affiliates should be excluded from the non-U.S. person's calculations because the U.S. persons are already subject to Dodd-Frank regulation as warranted by their activities.
Last, the Commission solicited commenters' views on whether a person
Greenberger/AFR opined that any approach that did not require significant aggregation of swap dealing activities across affiliates would create the danger of risk spreading outlined in the Further Proposed Guidance.
The Japanese Bankers Association stated that while the approach in the Further Proposed Guidance could potentially prevent evasion, it would do so at the cost of requiring multiple non-U.S. affiliates to register as swap dealers even if the group of affiliates concentrated its U.S. swap dealing activity in one U.S. entity.
SIFMA/CH/FSR were of the view that it would be burdensome for market participants to use multiple affiliates to avoid swap dealer registration, because moving swap dealing activity between affiliates requires a significant legal, technological and operational investment, and fragmenting the activity among affiliates may make it harder for a multinational institutions to manage risk efficiently.
Based on the comments received on the Proposed Guidance and the Further Proposed Guidance, and its further review of issues related to the aggregation requirement, the Commission's policy is to interpret the aggregation requirement in Commission regulation 1.3(ggg)(4) in a manner that applies the same aggregation principles to all affiliates in a corporate group, whether they are U.S. or non-U.S. persons. Further, the Commission will generally apply the aggregation principle (as articulated in the Final Entities Rules) such that, in considering whether a person is engaged in more than a de minimis level of swap dealing, a person (whether U.S. or non-U.S.) should generally include all relevant dealing swaps of all its U.S. and non-U.S. affiliates under common control,
Stated in general terms, the Commission's interpretation allows both U.S. persons and non-U.S. persons in an affiliated group to engage in swap dealing activity up to the de minimis threshold. When the affiliated group meets the de minimis threshold in the aggregate, one or more affiliate(s) (inside or outside the United States) would generally have to register as swap dealer(s) so that the relevant swap dealing activity of the unregistered affiliates remains below the threshold.
The Commission recognizes the borderless nature of swap dealing activities, in which a dealer may conduct swap dealing business through its various affiliates in different jurisdictions, and the Commission believes that its policy on aggregation outlined above addresses the concern that an affiliated group of U.S. and non-U.S. persons with significant swap dealing transactions with U.S. persons or guaranteed affiliates may not be required to register solely because such swap dealing activities are divided between affiliates that each fall below the de minimis level.
The Proposed Guidance would generally allow a non-U.S. person to exclude from its de minimis threshold calculation its swaps with foreign branches of U.S. swap dealers. This exclusion was intended to allow non-U.S. persons to continue their inter-dealer swap activities with foreign branches of U.S. swap dealers without exceeding the de minimis threshold, thereby triggering a requirement to register as a swap dealer.
Commenters on the Proposed Guidance, such as Goldman Sachs, argued that the rationale for this exclusion is equally applicable when non-U.S. persons that are banks or broker-dealers engage in swap dealing transactions with U.S. swap dealers that do not conduct overseas business through foreign branches. Absent a similar interpretation in these circumstances, the commenters argued, U.S. swap dealers would be at a
The Commission's policy is to generally allow non-U.S. persons that are not guaranteed or conduit affiliates of U.S. persons not to count toward their de minimis thresholds their swap dealing transactions with (i) A foreign branch of a U.S. swap dealer, (ii) a guaranteed affiliate of a U.S. person that is a swap dealer, and (iii) a guaranteed or conduit affiliate that is not a swap dealer and itself engages in de minimis swap dealing activity and which is affiliated with a swap dealer.
The Commission understands that commenters are concerned that foreign entities, in order to avoid swap dealer status, may decrease their swap dealing business with foreign branches of U.S. registered swap dealers and guaranteed affiliates that are swap dealers. Therefore, the Commission's policy, based on its interpretation of section 2(i) of the CEA, will be that swap dealing transactions with a foreign branch of a U.S. swap dealer or with guaranteed affiliates that are swap dealers should generally be excluded from the de minimis calculations of non-U.S. persons that are not guaranteed or conduit affiliates.
With regard to non-U.S. persons that are not guaranteed or conduit affiliates of U.S. persons, such non-U.S. persons also generally would not count toward their de minimis thresholds their swap dealing transactions with a guaranteed affiliate that is not a swap dealer and itself engages in de minimis swap dealing activity and which is affiliated with a swap dealer. This interpretation reflects the Commission's view that when the aggregate level of swap dealing by a non-U.S. person that is not a guaranteed affiliate, considering both swaps with U.S. persons and swaps with unregistered guaranteed affiliates (together with any swap dealing transactions that the non-U.S. person aggregates for purposes of the de minimis calculation as described below) exceeds the de minimis level of swap dealing, the non-U.S. person's swap dealing transactions have the requisite “direct and significant connection with activities in, or effect on, commerce of the United States.”
In addition, non-U.S. persons that are not guaranteed or conduit affiliates of U.S. persons also generally would not count toward their de minimis thresholds their swap dealing transactions with a guaranteed affiliate where the guaranteed affiliate is guaranteed by a non-financial entity.
The Commission notes that under its interpretation of section 2(i), a non-U.S. person that is not a guaranteed or conduit affiliate would not have to count its swap dealing transactions with other non-U.S. persons that are not guaranteed affiliates because, in the Commission's view, such swap dealing activity would not have the requisite “direct and significant connection with activities in, or effect on, U.S. commerce.”
Related to their discussion of the swap dealer de minimis threshold, some commenters, such as SIFMA and Citi, stated that a non-U.S. person should not have to include swaps with foreign branches of U.S. swap dealers towards the MSP calculation.
The Commission has considered whether, under section 2(i), the swaps that a non-U.S. person that is not a guaranteed or conduit affiliate enters into with a foreign branch of a U.S. swap dealer or a guaranteed affiliate that is a swap dealer should be excluded from the calculation of the non-U.S. person's MSP registration threshold. The Commission notes that its policy regarding such swaps for purposes of the MSP registration may reasonably be distinguished from its policy for purposes of the swap dealer registration threshold calculation. As described in the Final Entities Rules, MSP registration is required for non-dealers with swaps positions so large as to pose systemic risk. This is in contrast to swap dealer registration, which is a functional test focused on the nature of activities conducted by a potential registrant. Consequently, if all swaps between a non-U.S. person and foreign branches of U.S. swap dealers or swap dealers that are guaranteed affiliates were generally excluded under the Commission's policy with respect to MSP registration, a market participant that poses systemic risk within the meaning of the MSP definition could potentially be relieved of the requirement to register as an MSP. The Commission believes that such an outcome could undermine the MSP registration scheme. However, the Commission is persuaded that it is possible to control the potential risk of the non-U.S. person's risk with foreign branches of U.S. swap dealers and guaranteed affiliates that are swap dealers under certain limited circumstances and therefore that limited interpretive relief from the MSP calculation requirement is appropriate.
The Commission notes that a non-U.S. person's swaps positions with guaranteed affiliates that are swap dealers and foreign branches of U.S. swap dealers must be addressed in the latter entities' risk management programs. Such programs must account for, among other things, overall credit exposures to non-U.S. persons.
Finally, a non-U.S. person that is not a guaranteed affiliate and is not a financial entity
The Commission believes that when a non-U.S. person that is not a guaranteed or conduit affiliate enters into swaps anonymously on a registered DCM, SEF, or FBOT
The Commission also believes that when a non-U.S. person that is not a guaranteed or conduit affiliate clears a swap through a registered derivatives clearing organization (“DCO”), such non-U.S. person would generally not have to count the resulting swap (
While under the Proposed Guidance swaps conducted by a non-U.S. person, where guaranteed by a U.S. person, would generally be attributed only to the U.S. person in determining who must register as an MSP, the Commission did not expressly address a guarantee by a non-U.S. person of the swaps obligations of its U.S. subsidiary. In SIFMA's view, the Proposed Guidance created ambiguity as to the treatment of guarantees between other types of entities (
Under the Commission's interpretation of section 2(i) of the CEA, the discussion in the Final Entities Rules regarding attribution of swaps positions of guaranteed persons for purposes of the MSP definition should generally apply to non-U.S. persons. That is, as applied to non-U.S. persons, where there is no guarantee or recourse to another person under the swap, the swap should generally be attributed to the person who enters into the swap, and there generally would be no attribution or aggregation of the swaps position with the swaps positions of the person's affiliates.
However, the Commission is also cognizant that, as a matter of international comity,
As to Cleary's request regarding comparable treatment for certain parental guarantees, the Commission agrees that, as a matter of policy, it would generally be appropriate to extend similar treatment to parental guarantees of a subsidiary that is subject to comparable and comprehensive capital oversight by a G20 prudential supervisor. In this respect, the Commission views Basel-compliant capital standards as sufficiently comparable and comprehensive to capital oversight by the Commission, SEC, or banking regulator. Thus, where a subsidiary is subject to Basel-compliant capital standards and oversight by a G20 prudential supervisor, the subsidiary's positions would generally not be attributed to a parental guarantor in the computation of the parent's outward exposure under the MSP definition.
The Commission's policy under this Guidance may be summarized as follows.
The Commission will generally apply the aggregation principle (as articulated in the Final Entities Rules) such that, in considering whether a person is engaged in more than a de minimis level of swap dealing, a person (whether U.S. or non-U.S.) should generally include all relevant dealing swaps of all its U.S. and non-U.S. affiliates under common control, except that swaps of an affiliate (either U.S. or non-U.S.) that is a registered swap dealer are excluded. For this purpose, consistent with the Commission's policy on counting swap transactions towards the de minimis threshold for swap dealer registration detailed above, the dealing swaps of an affiliate under common control with such person would include:
(i) In the case of a U.S. person or a guaranteed or conduit affiliate, all its swap dealing transactions; and
(ii) in the case of a non-U.S. person that is not a guaranteed or conduit affiliate:
a. all dealing swaps with counterparties who are U.S. persons (other than foreign branches of U.S. swap dealers); and
b. all dealing swaps with guaranteed affiliates except:
i. guaranteed affiliates that are swap dealers;
ii. guaranteed affiliates that are not swap dealers but which are affiliated with a swap dealer and where the guaranteed affiliate itself engages in de minimis swap dealing activity;
iii. guaranteed affiliates that are guaranteed by a non-financial entity.
In addition, a non-U.S. affiliate that is not a guaranteed or conduit affiliate may exclude any swaps that are entered into anonymously on a registered DCM, SEF, or FBOT and cleared, as more fully discussed above.
The Commission's interpretation would allow both U.S. persons and non-U.S. persons in an affiliated group to engage in unregistered swap dealing activity up to the de minimis level for the entire group. When the affiliated group nears the de minimis threshold in the aggregate, it would have to register a number of affiliates (inside or outside the United States) as swap dealers sufficient to maintain the relevant dealing swaps of the unregistered affiliates below the threshold.
In determining whether a non-U.S. person holds swap positions above the MSP thresholds, the non-U.S. person should consider the aggregate notional value of:
(i) Any swap position between it and a U.S. person;
(ii) any swap position between it and a guaranteed affiliate (but its swap positions where its own obligations thereunder are guaranteed by a U.S. person should be attributed to that U.S. person and not included in the non-U.S. person's determination); and
(iii) any swap position between another (U.S. or non-U.S.) person and a U.S. person or guaranteed affiliate, where it guarantees the obligations of the other person thereunder.
A non-U.S. person that is not a guaranteed affiliate of a U.S. person and is a financial entity would generally not have to count toward its MSP thresholds its exposure under swaps with foreign branches of U.S. swap dealers or guaranteed affiliates that are swap dealers, provided that the swap is either cleared, or the documentation of the
In addition, a non-U.S. person that is not a guaranteed affiliate and is not a financial entity
As discussed above, the Commission considers a foreign branch of a U.S. person to be a part of the U.S. person. Thus, in the Proposed Guidance, the Commission proposed that the U.S. person would be legally responsible for complying with all applicable Entity-Level Requirements. Under this approach, the foreign branch of the U.S. person would not register separately as a swap dealer. The Commission believes that this approach is appropriate because a foreign branch of a U.S. swap dealer is an integral part of a U.S. swap dealer and not a separate legal entity.
In the Proposed Guidance, the Commission also proposed interpreting 2(i) so that where a swap is with a foreign branch of a U.S.-based swap dealer, irrespective of whether the counterparty is a U.S. person or non-U.S. person, the foreign branch would be expected to comply with most of the Transaction-Level Requirements. The Commission stated that this proposed approach is appropriate in light of the Commission's strong supervisory interests in entities that are a part or an extension of a U.S.-based swap dealer. The Commission also proposed interpreting 2(i) so that swaps between a foreign branch of a U.S. person and a non-U.S. person counterparty (irrespective of whether that non-U.S. person counterparty's obligations under the swap are guaranteed by a U.S. person or not) would be eligible for substituted compliance with respect to Category A Transaction-Level Requirements. As discussed further below, where the counterparty to a swap with a foreign branch is a non-U.S. person (whether or not swaps such non-U.S. person is guaranteed or otherwise supported by, or is an affiliate conduit of, a U.S. person), the Commission continues to be of the view that the swap should be eligible for substituted compliance with respect to Category A Transaction-Level Requirements, to the extent applicable, in light of the supervisory interest of the foreign jurisdiction in the execution and clearing of trades occurring in that jurisdiction. As discussed further in section F below, the Commission's recognition of substituted compliance would be based on an evaluation of whether the requirements of the home jurisdiction are comparable and comprehensive to the applicable requirement(s) under the CEA and Commission regulations based on a consideration of all relevant factors, including among other things: (i) The comprehensiveness of the foreign regulator's supervisory compliance program and (ii) the authority of such foreign regulator to support and enforce its oversight of the registrant's branch or agency with regard to such activities to which substituted compliance applies.
In the January Order, the Commission gave exemptive relief from Transaction-Level Requirements during the pendency of the January Order for swaps between a foreign branch of a U.S. swap dealer or U.S. MSP and a non-U.S. counterparty (including a non-U.S. swap dealer or non-U.S. MSP). Thus, notwithstanding the Commission's view that the foreign branch of a U.S. swap dealer is a U.S. person, the Commission granted temporary relief during the pendency of the January Order for swaps between a foreign branch of a U.S. registrant and a non-U.S. swap dealer, allowing the non-U.S. swap dealer to treat the foreign branch as a non-U.S. person.
In the January Order, the Commission also stated that because it believes a swap between two foreign branches of U.S. registrants is a swap between two U.S. persons, such swaps are fully subject to the Transaction-Level Requirements. Nevertheless, during the pendency of the January Order, the Commission determined it would be appropriate to permit foreign branches of U.S. registrants to comply only with transaction-level requirements required in the location of the foreign branch while the Commission further considered, and worked with international regulators regarding, the treatment of foreign branches of U.S. registrants. However, for purposes of this relief, the Commission stated that for a swap between foreign branches of U.S. registrants, the swap would be treated as with the foreign branch of a U.S. person when: (i) The personnel negotiating and agreeing to the terms of the swap are located in the jurisdiction of such foreign branch; (ii) the documentation of the swap specifies that the counterparty or “office” for the U.S. person is such foreign branch; and (iii) the swap is entered into by such foreign branch in its normal course of business (collectively the “January Order Criteria”). If the swap failed to satisfy all three of the January Order Criteria, the Commission stated that the swap would be treated as a swap of the U.S. person and not as a swap of the foreign branch of the U.S. person, and would not be eligible for relief from transaction-level requirements under the January Order.
The Commission also stated in the January Order that as part of the Commission's further consideration of this issue, additional factors may be relevant to the consideration of whether a swap is with the foreign branch of a U.S. person. These factors could include, for example, that:
(i) The foreign branch is the location of employment of the employees negotiating the swap for the U.S. person or, if the swap is executed electronically, the employees managing the execution of the swap;
(ii) the U.S. person treats the swap as a swap of the foreign branch for tax purposes,
(iii) the foreign branch operates for valid business reasons and is not only a representative office of the U.S. person; and
(iv) the branch is engaged in the business of banking or financing and is subject to substantive regulation in the jurisdiction where it is located (collectively the “Additional Factors”).
The Commission also sought comment from market participants and other interested parties regarding whether it is appropriate to include these or other factors in the consideration of when a swap is with the foreign branch of a U.S. person.
The Commission received several comments on how the Commission should determine whether a swap is “with a foreign branch,” both with regard to swaps between a foreign branch and a non-U.S. swap dealer and swaps between two foreign branches of U.S. swap dealers. In addition, several organizations commented on the term “foreign branch” of a U.S. bank.
Commenters stated that in determining whether a swap between a non-U.S. swap dealer and a non-U.S. branch of a U.S. bank is bona fide with the non-U.S. branch, the Commission should look to whether the swap is booked in the foreign branch (as defined in Regulation K), and that the four
A commenter stated that it does not strongly object to prongs 2, 3 and 4 of the Additional Factors (that the swap is treated as a swap of the foreign branch for tax purposes, that the branch operates for valid business reasons and is not only a representative office, and that the branch is engaged in banking or financing and subject to substantive local regulation) since they could “be reasonable indicia of a
With respect to the proposed tax prong (prong 2 of the Additional Factors), other commenters stated that the income from a swap that is booked in a foreign branch of a U.S. person is subject to taxation in the local jurisdiction in which the foreign branch is resident, which demonstrates that such swaps are bona fide with the non-U.S. branch. The commenters further noted that a foreign tax credit is generally allowed for income taxes paid locally.
With regard to prong 3 of the Additional Factors (that the branch operates for valid business reasons and is not only a representative office), as noted earlier, SIFMA/CH/FSR argued that the only criteria that is relevant in determining whether a swap is bona fide with a foreign branch of a U.S. swap dealer is whether the swap is booked in the foreign branch (as reflected in the trade confirm), with the term “foreign branch” defined with reference to Regulation K. These commenters stated that the definition of a foreign branch in Regulation K makes it clear that a foreign branch of a U.S. bank is not a “representative office.” In addition, Regulation K is a comprehensive regulation of the Federal Reserve Board that ensures that foreign branches operate for valid reasons.
With regard to prong 4 of the Additional Factors (that the branch is engaged in banking or financing and subject to substantive local regulation), SIFMA/CH/FSR argue that this prong is unnecessary because, in addition to being regulated under Regulation K by the Federal Reserve, foreign branches are also subject to substantive local regulation and supervision, including licensing requirements and potentially local derivatives rules that the Commission could find to constitute substituted compliance. Although these commenters acknowledged that the nature and scope of these regulations will vary by jurisdiction, they state that many foreign jurisdictions require the same level of compliance with local regulations that U.S. regulators require of U.S. branches of foreign banks with regards to U.S. laws and regulations. They also stated that requiring foreign branches to show that they are subject to substantive regulation in their local jurisdiction so as to determine whether each swap they enter into is bona fide would be overly burdensome and unnecessary. In their view, the only relevant factor that the Commission should consider is whether the swap has been booked into the foreign branch, which the trade confirm would reflect.
Conversely, one commenter argued that, consistent with clear evidence from the last crisis that the risks accrued by foreign branches, guaranteed subsidiaries, and even non-guaranteed subsidiaries all flow back to the parent entity, foreign branches of U.S. persons should under no circumstances be subject to weaker regulation than the parent company. This commenter also argues that there is no substantive difference between a branch and a subsidiary of a U.S. person in terms of covering derivatives losses, and that both must be held to the same high standards as apply to the U.S. person itself. Otherwise, the U.S. taxpayer will be exposed to the risk of another massive bailout.
In preparing the Guidance, the Commission has carefully considered commenters' concerns and recommendations related to both the appropriate scope of the term “foreign branch” for purposes of this Guidance and Commission consideration of when a swap should be considered to be “with the foreign branch” of a U.S. bank that is a swap dealer or MSP.
The Commission notes that foreign branches of a U.S. bank are part of a
Therefore, the Commission interprets CEA section 2(i) such that, for purposes of this Guidance, the Commission will generally consider a “foreign branch” of a U.S. swap dealer or U.S. MSP to be any “foreign branch” (as defined in the applicable banking regulation) of a U.S. bank that is: (i) Subject to Regulation K
Under Regulation K, 12 CFR part 211, a “foreign branch” is defined as “an office of an organization (other than a representative office) that is located outside the country in which the organization is legally established and at which a banking or financing business is conducted.”
Further, for purposes of this Guidance, the Commission interprets CEA section 2(i) so that generally a foreign branch of a U.S. bank could include an office of a foreign bank that satisfies the foregoing Foreign Branch Characteristics. However, a foreign branch of a U.S. bank would generally not include an affiliate of a U.S. bank that is incorporated or organized as a separate legal entity.
In considering the scope of the term “foreign branch,” the Commission agrees with commenters that stated that Regulation K of the Federal Reserve Board's regulations provides a useful reference because Regulation K provides a comprehensive regime for regulation of foreign branches that ensures that foreign branches of U.S. banks operate for valid reasons and are not “representative offices.” Similarly, the Commission believes that the FDIC International Banking Regulation provides a useful reference for U.S. banks that have foreign branches which are subject to FDIC jurisdiction.
In addition, regardless of a foreign branch of a U.S. bank is subject to Regulation K or the FDIC International Banking Regulation or is otherwise designated as a “foreign branch” by the U.S. bank's primary regulator, the Commission believes that CEA section 2(i) should be interpreted so that, for purposes of this Guidance, a foreign branch of a U.S. bank should generally also be subject to substantive regulation in banking or financing in the jurisdiction where it is located. Finally, the Commission believes that in order for a foreign office of a U.S. bank to be viewed as a “foreign branch” for purposes of this Guidance, another factor should generally be present—the foreign branch should maintain its accounts independently of the home office and of the accounts of other foreign branches, and at the end of each fiscal period the U.S. bank should transfer to its general ledger the profit or loss accrued at each branch as a separate item.
With regard to Commission consideration of whether a swap by a U.S. bank through a foreign office should be considered to be “with a foreign branch” of the U.S. person for purposes of the de minimis calculations for swap dealer and MSP registration
SIFMA/CH/FSR stated that the only criteria that is relevant in determining whether a swap is bona fide with a foreign branch of a U.S. swap dealer is whether the swap is booked in the foreign branch (as reflected in the trade confirmation), with the term “foreign branch” defined with reference to Regulation K. However, the
However, in light of principles of international comity and giving consideration to comments that state that foreign branches of U.S. banks will be at a competitive disadvantage if foreign branches of U.S. banks are not treated the same as non-U.S. persons, the Commission believes that in considering whether a swap should be considered as being with the foreign branch of a U.S. bank under this Guidance, all of the facts and circumstances are relevant. In particular, the Commission's view is that if all of the following factors are present, generally the swap should be considered to be with the foreign branch of a U.S. bank for purposes of this Guidance:
(i) The employees negotiating and agreeing to the terms of the swap (or, if the swap is executed electronically, managing the execution of the swap), other than employees with functions that are solely clerical or ministerial, are located in such foreign branch or in another foreign branch of the U.S. bank;
(ii) the foreign branch or another foreign branch is the office through which the U.S. bank makes and receives payments and deliveries under the swap on behalf of the foreign branch pursuant to a master netting or similar trading agreement, and the documentation of the swap specifies that the office for the U.S. bank is such foreign branch;
(iii) the swap is entered into by such foreign branch in its normal course of business;
(iv) the swap is treated as a swap of the foreign branch for tax purposes; and
(v) the swap is reflected in the local accounts of the foreign branch.
However, if material terms of the swap are negotiated or agreed to by employees of the U.S. bank located in the United States, the Commission believes that generally the swap should be considered to be with the U.S. principal bank, rather than its foreign branch, for purposes of this Guidance.
The Commission also believes that the factors enumerated above would be relevant both to an analysis of whether a swap should be considered to be between a foreign branch of a U.S. bank and a non-U.S. swap dealer and an analysis of whether a swap should be considered to be between two foreign branches of U.S. banks. The Commission discusses each of the enumerated factors in more detail below.
The first of the five factors enumerated above is similar to prong 1 of the Additional Factors (whether the employees negotiating the swap for the U.S. person are located in the foreign branch, or if the swap is executed electronically, the employees managing the execution of the swap); however, the first factor above considers whether the employees negotiating and agreeing to the terms of the swap are located in any foreign branch of the U.S. bank. This modification addresses the objection of commenters that stated that employees that negotiate and agree to swaps are often located outside the foreign branch for bona fide reasons.
The second factor above is similar to prong (ii) of the January Order Criteria (that the documentation of the swap specifies that the counterparty or “office” for the U.S. person is such foreign branch). However, because a foreign branch of a U.S. bank is not a separate legal entity, the Commission believes that the U.S. principal bank generally should be considered to be the counterparty for purposes of this Guidance irrespective of whether the foreign branch is named as the counterparty in the swap documentation. Therefore, the Commission has modified the second factor, consistent with its other interpretations of section 2(i), so that it makes no reference to the foreign branch as counterparty. Rather, the second factor above relates to whether the foreign branch or another foreign branch is the office through which the U.S. bank makes and receives payments and deliveries under the swap on behalf of the foreign branch pursuant to a master netting or similar trading agreement, and whether the documentation of the swap specifies that the office for the U.S. bank is such foreign branch. This modification is consistent with the ISDA Master Agreement, which requires that each party specify an “office” for each swap, which is where a party “books” a swap and/or the office through which the party makes and receives payments and deliveries.
The third factor above (whether the swap is entered into by such foreign branch in its normal course of business) is the same as prong (iii) in the January Order Criteria discussed above. The Commission is concerned about the material terms of a swap being negotiated or agreed by employees of the U.S. bank that are located in the United States and then routed to a foreign branch in order for the swap to be treated as a swap with the foreign branch for purposes of the de minimis calculations for swap dealer and MSP registration or application of the Transaction-Level Requirements under this Guidance.
The fourth factor above (whether the swap is treated as a swap of the foreign branch for tax purposes) is the same as prong 2 of the Additional Factors. The Commission notes that State Street stated that it does not strongly object to prongs 2, 3 and 4 of the Additional Factors (that the swap is treated as a swap of the foreign branch for tax purposes, that the branch operates for valid business reasons and is not only a representative office, and that the branch is engaged in banking or financing and subject to substantive local regulation) since they could “be reasonable indicia of a bona fide non-U.S. branch of a U.S. swap dealer.” However, State Street stated that each of these prongs may be challenging to properly define and evaluate.
The fifth factor above focuses on whether the swap is reflected in the accounts of the foreign branch. The Commission believes that where a swap is bona fide with the foreign branch of a U.S. bank, it generally would be
Title VII of the Dodd-Frank Act establishes a comprehensive new regulatory framework for swap dealers and MSPs that Congress enacted with the goal of reducing systemic risk and enhancing market transparency. Under this framework, a swap dealer or MSP must, among other things, comport with certain standards (and regulations as the Commission may promulgate) governing risk management, internal and external business conduct, and reporting. Further, swap dealers and MSPs are required to comply with all of the requirements applicable to swap dealers and MSPs for all their swaps, not just the swaps that make them a swap dealer or MSP.
Even before the Commission published the Proposed Guidance, a number of commenters recommended that the Commission, in interpreting the cross-border applicability of the Dodd-Frank Act swaps provisions, should distinguish between requirements that apply at an entity level (
Commenters on the Proposed Guidance generally supported the division of Dodd-Frank's swaps provisions (and Commission regulations thereunder) into Entity-Level and Transaction-Level Requirements.
The Commission agrees with the commenters that the various Dodd-Frank Act swaps provisions applicable to swap dealers and MSPs can be conceptually separated into Entity-Level Requirements, which apply to a swap dealer or MSP firm as a whole, and Transaction-Level Requirements, which apply on a transaction-by-transaction basis. Descriptions of each of the Entity-Level Requirements under this Guidance are set out immediately below, followed by descriptions of the Transaction-Level Requirements. Additional information related to the categorization of Entity-Level and Transaction-Level Requirements is discussed in section E.
The Entity-Level Requirements under Title VII of the Dodd-Frank Act and the Commission's regulations promulgated thereunder relate to: (i) Capital adequacy; (ii) chief compliance officer; (iii) risk management; (iv) swap data recordkeeping; (v) swap data repository reporting (“SDR Reporting”); and (vi) physical commodity large swaps trader reporting (“Large Trader Reporting”). The Entity-Level Requirements apply to registered swap dealers and MSPs across all their swaps without distinctions as to the counterparty or the location of the swap (although under this Guidance in some circumstances the availability of substituted compliance may vary based on whether the counterparty is a U.S. person or a non-U.S. person).
The Entity-Level Requirements are split into two categories. The first category of Entity-Level Requirements includes capital adequacy, chief compliance officer, risk management, and swap data recordkeeping under Commission regulations 23.201 and 23.203 (except certain aspects of swap data recordkeeping relating to complaints and sales materials) (“First Category”). The second category of Entity-Level Requirements includes SDR Reporting, certain aspects of swap data recordkeeping relating to complaints and marketing and sales materials under Commission regulations 23.201(b)(3) and 23.201(b)(4) and Large Trader Reporting (“Second Category”).
Each of the Entity-Level Requirements is discussed in the subsections that follow.
Section 4s(e)(2)(B) of the CEA specifically directs the Commission to set capital requirements for swap dealers and MSPs that are not subject to the capital requirements of U.S. prudential regulators (hereinafter referred to as “non-bank swap dealers or MSPs”).
Section 4s(k) requires that each swap dealer and MSP designate an individual to serve as its chief compliance officer (“CCO”) and specifies certain duties of the CCO.
Section 4s(j) of the CEA requires each swap dealer and MSP to establish internal policies and procedures designed to, among other things, address risk management, monitor compliance with position limits, prevent conflicts of interest, and promote diligent supervision, as well as maintain business continuity and disaster recovery programs.
CEA section 4s(f)(1)(B) requires swap dealers and MSPs to keep books and records for all activities related to their business.
CEA section 2(a)(13)(G) requires all swaps, whether cleared or uncleared, to be reported to a registered SDR.
CEA section 4s(f)(1) requires swap dealers and MSPs to “make such reports as are required by the Commission by rule or regulation regarding the transactions and positions and financial condition of the registered swap dealer or MSP.”
CEA section 4t authorizes the Commission to establish a large trader reporting system for significant price discovery swaps (of which the economically equivalent swaps subject to part 20 of the Commission's regulations are a subset).
The Transaction-Level Requirements include: (i) Required clearing and swap processing; (ii) margining (and segregation) for uncleared swaps; (iii) mandatory trade execution; (iv) swap trading relationship documentation; (v) portfolio reconciliation and compression; (vi) real-time public reporting; (vii) trade confirmation; (viii) daily trading records; and (ix) external business conduct standards.
The Transaction-Level Requirements—with the exception of external business conduct standards—relate to both risk mitigation and market transparency. Certain of these requirements, such as clearing and margining, serve to lower a firm's risk of failure. In that respect, these Transaction-Level Requirements could be classified as Entity-Level Requirements. Other Transaction-Level Requirements—such as trade confirmation, swap trading relationship documentation, and portfolio reconciliation and compression—also serve important risk mitigation functions, but are less closely connected to risk mitigation of the firm as a whole and thus are more appropriately applied on a transaction-by-transaction basis. Likewise, the requirements related to trade execution, trade confirmation, daily trading records, and real-time public reporting have a closer nexus to the transparency goals of the Dodd-Frank Act, as opposed to addressing the risk of a firm's failure.
As a result, whether a particular requirement of Title VII should apply on a transaction-by-transaction basis in the context of cross-border activity for purposes of section 2(i) of the CEA requires the Commission to exercise some degree of judgment. Nevertheless, in the interest of comity principles, the Commission believes that the Transaction-Level Requirements may be applied on a transaction-by-transaction basis. The Transaction-Level Requirements are split into two categories. All of the Transaction-Level Requirements except external business conduct standards are in Category A. The external business conduct standards are in Category B.
Each of the Transaction-Level Requirements is discussed below.
Section 2(h)(1) of the CEA requires a swap to be submitted for clearing to a DCO if the Commission has determined that the swap is required to be cleared, unless one of the parties to the swap is eligible for an exception from the clearing requirement and elects not to clear the swap.
Commission regulations implementing the first designations of swaps for required clearing were published in the
Regulation 50.4 establishes required clearing for certain classes of swaps. Currently, those classes include, for credit default swaps: Specified series of untranched North American CDX indices and European iTraxx indices; and for interest rate swaps: Fixed-to-floating swaps, basis swaps, forward rate agreements referencing U.S. Dollar, Euro, Sterling, and Yen, and overnight index swaps referencing U.S. Dollar, Euro, and Sterling. Each of the six classes is further defined in Commission regulation 50.4. Swaps that have the specifications identified in the regulation are required to be cleared and must be cleared pursuant to the rules of any eligible DCO
Generally, if a swap is subject to CEA section 2(h)(1)(A) and part 50 of the Commission's regulations, it must be cleared through an eligible DCO, unless: (i) One of the counterparties is eligible for and elects the end-user exception
Closely connected with the clearing requirement are the following swap processing requirements: (i) Commission regulation 23.506, which requires swap dealers and MSPs to submit swaps promptly for clearing; and (ii) Commission regulations 23.610 and 39.12, which establish certain standards for swap processing by DCOs and/or swap dealers and MSPs that are clearing members of a DCO.
Section 4s(e) of the CEA requires the Commission to set margin requirements for swap dealers and MSPs that trade in swaps that are not cleared.
Integrally linked to the clearing requirement is the trade execution requirement, which is intended to bring the trading of swaps that are required to be cleared and are made available to trade onto regulated exchanges or execution facilities. Specifically, section 2(h)(8) of the CEA provides that unless a clearing exception applies and is elected, a swap that is subject to a clearing requirement must be executed on a DCM or SEF, unless no such DCM or SEF makes the swap available to trade.
CEA section 4s(i) requires each swap dealer and MSP to conform to Commission standards for the timely and accurate confirmation, processing, netting, documentation and valuation of swaps. Pursuant thereto, Commission regulation 23.504(a) requires swap dealers and MSPs to “establish, maintain and enforce written policies and procedures” to ensure that the swap dealer or MSP executes written swap trading relationship documentation.
CEA section 4s(i) directs the Commission to prescribe regulations for the timely and accurate processing and netting of all swaps entered into by swap dealers and MSPs. Pursuant to CEA section 4s(i), the Commission adopted regulations (23.502 and 23.503), which require swap dealers and MSPs to perform portfolio reconciliation and compression, respectively, for all swaps.
Section 2(a)(13) of the CEA directs the Commission to promulgate rules providing for the public availability of swap transaction and pricing data on a real-time basis.
Section 4s(i) of the CEA
Pursuant to CEA section 4s(g), the Commission adopted regulation 23.202, which requires swap dealers and MSPs to maintain daily trading records, including records of trade information related to pre-execution, execution, and post-execution data that is needed to conduct a comprehensive and accurate trade reconstruction for each swap. The final rule also requires that records be kept of cash or forward transactions used to hedge, mitigate the risk of, or offset any swap held by the swap dealer or MSP.
Pursuant to CEA section 4s(h), the Commission has adopted external business conduct rules, which establish business conduct standards governing the conduct of swap dealers and MSPs in dealing with their counterparties in entering into swaps.
As noted above, even before the Commission published the Proposed Guidance, a number of commenters recommended that the Commission, in interpreting the cross-border applicability of the Dodd-Frank Act swaps provisions, should distinguish between requirements that apply at an entity level (
After giving further consideration to the categorization in the Proposed Guidance, including comments received in this area, this Guidance makes a few minor modifications to the proposed categorization of Entity-Level and Transaction-Level Requirements, as described below.
The Proposed Guidance separated the Entity-Level Requirements into two subcategories. The first included capital adequacy, chief compliance officer, risk management, and swap data
The Proposed Guidance separated the Transaction-Level Requirements into two subcategories, “Category A” and “Category B.” The “Category A” Transaction-Level Requirements relate to risk mitigation and transparency: (1) Clearing and swap processing; (2) margining and segregation for uncleared swaps; (3) trade execution; (4) swap trading relationship documentation; (5) portfolio reconciliation and compression; (6) real-time public reporting; (7) trade confirmation; and (8) daily trading records.
The “Category B” Transaction-Level Requirements—the external business conduct standards—are those requirements that may not be necessary to apply to swaps between non-U.S. persons taking place outside the United States. With respect to these swaps, the Commission believes that foreign regulators may have a relatively stronger supervisory interest in regulating sales practices concerns than the Commission.
Commenters generally supported the division of Dodd-Frank's swaps provisions (and Commission regulations thereunder) into Entity-Level and Transaction-Level Requirements.
With regard to reporting and trade-execution requirements, a number of commenters argued that all forms of swaps reporting, including SDR Reporting and Large Trader Reporting, should be treated as Transaction-Level Requirements and thereby could be eligible for substituted compliance for certain transactions with non-U.S. counterparties.
ISDA believed that real-time public reporting and trade execution should be treated like the external business conduct rules. It argued that these rules relate to pre-trade price discovery and market structure and client protections.
On the other hand, Senator Levin stated that reporting and trade execution requirements should be applied broadly to all swaps of non-U.S. swap dealers and non-U.S. MSPs that are affiliates of U.S. financial institutions, so as to provide transparency regarding their swap activities and to protect the U.S. financial system.
Sumitomo stated that certain Transaction-Level Requirements, including swap trading relationship documentation, portfolio reconciliation and compression, daily trading records, and external business conduct standards, should instead be classified as Entity-Level Requirements. It contended that these are not logically linked to particular transactions and would be required to be conducted on a daily basis per counterparty.
Similarly, Senator Levin stated that clearing, margin and portfolio reconciliation and compression requirements and external business conduct standards should be applied to all swaps of non-U.S. swap dealers and non-U.S. MSPs that are affiliates of U.S. financial institutions.
IIB recommended that the daily trading records requirements (Commission regulation 23.202) be categorized as a Category B Transaction-Level Requirement. It reasoned that this rule is most relevant when a non-U.S. swap dealer or non-U.S. MSP is trading with a U.S. person to whom it owes U.S. sales practice obligations and for whom the Commission's interest in addressing market abuses is highest. It also noted that the obligation to make and retain records of pre-execution oral conversations, a principal element of the rule, is most likely to give rise to conflicts with foreign privacy laws.
IIB noted that the internal conflicts of interest requirement (Commission regulation 23.605) is categorized as an Entity-Level Requirement in the Proposed Guidance. It stated that internal research conflicts of interest procedures are intended to promote the integrity of research reports to customers, and that internal clearing conflicts of interest procedures are intended to promote client access to better pricing on execution and clearing. As a result, IIB views the Commission's interest in applying these requirements to non-U.S. clients as minimal and recommends that the internal conflicts of interest requirement be categorized as a new “Category B” Entity-Level Requirement.
SIFMA stated that position limits and anti-manipulation rules, which were not addressed in the Proposed Guidance, should be categorized as Transaction-Level Requirements and, therefore, be eligible for relief in some circumstances. They argued that these rules have a close nexus to market transparency, as opposed to risk mitigation of a firm's failure.
In general, the Commission would apply the Dodd-Frank provisions differently depending on the category (Entity-Level or Transaction-Level) or sub-category (First or Second Category of Entity-Level Requirements or Category A or B of the Transaction-Level Requirements) into which such requirement falls. Therefore, the Commission has carefully reviewed comments on the classification of the Entity-Level Requirements and Transaction-Level Requirements, as well as comments regarding whether and how Entity-Level and Transaction-Level Requirements should apply to swaps between various types of counterparties, and under what circumstances the Commission's policy should contemplate that various swaps should generally be eligible for substituted compliance, or provide that certain of the Commission's requirements would generally not apply.
After careful consideration, the Commission would generally treat swaps requirements as Entity-Level Requirements and Transaction-Level Requirements largely in accordance with the Proposed Guidance, with certain minor modifications described below.
Consistent with CEA section 2(i), the Commission would treat the following requirements as Entity-Level Requirements, as proposed: Capital adequacy, chief compliance officer, risk management, swap data recordkeeping, SDR Reporting, and Large Trader Reporting.
At the core of a robust internal risk controls system is the firm's capital—and particularly, how the firm identifies and manages its risk exposure arising from its portfolio of activities.
SDR Reporting and Large Trader Reporting relate more closely to market transparency and to the Commission's market surveillance program. Among other things, data reported to SDRs will enhance the Commission's understanding of concentrations of risks within the market, as well as promote a more effective monitoring of risk profiles of market participants in the swaps market. Large Trader Reporting, along with an analogous reporting system for futures contracts, is essential to the Commission's ability to conduct effective surveillance of markets in U.S. physical commodity futures and economically equivalent swaps. Given the functions of these reporting requirements, the Commission's view is that each requirement generally should be applied across swaps, irrespective of the counterparty or the location of the swap, in order to ensure that the Commission has a comprehensive and accurate picture of market activities. Otherwise, the intended value of these requirements would be significantly compromised, if not undermined. Therefore, the Commission's policy is to generally treat SDR Reporting and Large Trader Reporting as Entity-Level Requirements.
The Commission did not address in the Proposed Guidance whether position limits and anti-manipulation provisions should fall in the Entity-Level or Transaction-Level Requirements category. It is the Commission's view that these provisions relate more to market integrity, as opposed to the financial integrity of a firm, and it is essential that they apply regardless of the counterparty's status (U.S. person or not) in order to fully achieve the underlying purpose of these respective provisions. Accordingly, these requirements are outside the scope of this Guidance. However, the monitoring of position limits under Commission regulation 23.601 is included in the Entity-Level Requirements under this Guidance.
After considering the input of market participants and others through the comment process, and giving further consideration to how the language in CEA section 2(i) should be interpreted for purposes of applying the Entity-
As explained above, Entity-Level Requirements ensure that registered swap dealers and MSPs implement and maintain a comprehensive and robust system of internal controls to ensure the financial integrity of the firm, and in turn, the protection of the financial system. In this respect, the Commission has strong supervisory interests in applying the same rigorous standards, or comparable and comprehensive standards, to non-U.S. swap dealers and non-U.S. MSPs whose swap activities or positions are substantial enough to require registration under the CEA. Requiring such swap dealers and MSPs to rigorously monitor and address the risks they incur as part of their day-to-day businesses would lower the registrants' risk of default—and ultimately protect the public and the financial system.
Therefore, the Commission contemplates that non-U.S. swap dealers and non-U.S. MSPs will comply with all of the First Category of Entity-Level Requirements. In addition, consistent with principles of international comity, substituted compliance may be available for these Entity-Level Requirements in certain circumstances, as explained further below. In contrast, with regard to Entity-Level Requirements in the Second Category, substituted compliance should generally be available only where the counterparty is a non-U.S. person.
The Commission's policy generally is to treat the requirements related to capital adequacy, chief compliance officer, risk management, and swap data recordkeeping (except swap data recordkeeping relating to complaints and marketing and sales materials under Commission regulations 23.201(b)(3) and 23.201(b)(4), respectively) in the First Category. These requirements address and manage risks that arise from a firm's operation as a swap dealer or MSP. Collectively, they constitute a firm's first line of defense against financial, operational, and compliance risks that could lead to a firm's default.
The First Category is identical to the first subcategory proposed by the Commission in the Proposed Guidance, except that the Commission's policy is to treat swap data recordkeeping under part 43 and part 46 of the Commission's regulations and swap data recordkeeping related to complaints and marketing and sales materials under Commission regulations 23.201(b)(3) and 23.201(b)(4) as part of the “Second Category” of Entity-Level Requirements. As noted above, for Entity-Level Requirements in the First Category, substituted compliance generally would be available for a non-U.S. swap dealer or non-U.S. MSP (including one that is an affiliate of a U.S. person) regardless of whether the counterparty is a U.S. person or a non-U.S. person.
The Commission's policy retains SDR Reporting in the Second Category, as proposed. SDR Reporting furthers the goals of the Dodd-Frank Act to reduce systemic risk, increase transparency and promote market integrity. Specifically, data reported to SDRs under the SDR Reporting rules provide the Commission with information necessary to better understand and monitor concentrations of risk, as well as risk profiles of individual market participants for cleared and uncleared swaps.
The Commission believes that retaining SDR Reporting in the Second Category would be appropriate. Consistent with section 2(i), the Commission's policy is that U.S. swap dealers or MSPs (including those that are affiliates of a non-U.S. person) generally should comply in full with all of the Entity-Level Requirements, including SDR Reporting. Further, non-U.S. swap dealers and non-U.S. MSPs (including those that are affiliates of a U.S. person), generally should comply with SDR Reporting, and substituted compliance should be available (to the extent applicable) only where the swap counterparty is a non-U.S. person, provided that the Commission has direct access (including electronic access) to the relevant swap data that is stored at the foreign trade repository.
The Commission contemplates treating swap data recordkeeping related to complaints and marketing and sales materials under Commission regulations 23.201(b)(3) and 23.201(b)(4) as part of the “Second Category” because, in the Commission's view, non-U.S. swap dealers and non-U.S. MSPs (including those that are affiliates of a U.S. person) generally should comply with SDR Reporting. Further, substituted compliance should be available for non-U.S. swap dealers or MSPs, to the extent applicable, only where the swap counterparty is a non-U.S. person.
Large Trader Reporting furthers the goals of the Dodd-Frank Act to reduce systemic risk, increase transparency and promote market integrity. Large Trader Reporting, in conjunction with the Commission's large trader reporting system for futures contracts, is essential to the Commission's ability to conduct effective surveillance of markets in U.S. physical commodity futures and economically equivalent swaps. Given the regulatory function of Large Trader Reporting, the Commission's policy is to apply these requirements to non-U.S. persons whose trading falls within its scope to the same extent as U.S. persons. Accordingly, as discussed further in section G below, the Commission would not recognize substituted compliance in place of compliance with Large Trader Reporting.
As previously noted, whether a particular Dodd-Frank Act requirement should apply on a transaction-by-transaction basis in the context of cross-border activity for purposes of section 2(i) of the CEA requires the exercise of some degree of judgment. Nevertheless, bearing in mind principles of international comity, the Commission anticipates that, in general, the Transaction-Level Requirements may be applied on a transaction-by-transaction basis.
The Commission's policy contemplates treating as Transaction-Level Requirements all of the requirements that the Commission proposed to include. Thus, the
The Commission contemplates treating the Transaction-Level Requirements in two subcategories, designated as Category A and Category B, largely as proposed. Generally, these categories reflect how the Commission generally contemplates applying various Transaction-Level Requirements to various types of counterparties, and in guiding the consideration of when substituted compliance will be available under this Guidance.
The “Category A” Transaction-Level Requirements relate to risk mitigation and transparency, and included the first eight Transaction-Level requirements referenced above.
The Commission does not believe it would be appropriate to treat, as suggested by commenters, swap trading relationship documentation, portfolio reconciliation and compression, daily trading records and external business conduct standards as Entity-Level Requirements. The Commission recognizes that firms may find a certain degree of operational efficiency in applying these requirements on a firm-wide basis. On the other hand, the Commission expects that treatment of these as Transaction-Level Requirements should allow for greater flexibility in terms of whether and how Dodd-Frank requirements apply. For example, under the Proposed Guidance, the Commission would not interpret section 2(i) generally to apply the Dodd-Frank's clearing requirement to a swap between a non-U.S. swap dealer and a non-U.S. counterparty. In the Commission's judgment, allowing swap trading relationship documentation, portfolio reconciliation and compression and external business conduct standards to be applied on a transaction basis would not undermine the underlying regulatory objectives and, yet, will give due recognition to the home jurisdiction's supervisory interest. Consistent with this rationale, the Commission would treat margin, segregation, and related requirements as Transaction-Level Requirements.
The Commission also is retaining the trade execution requirement, as proposed, in Category A. The trade execution requirement is intended to bring the trading of mandatorily cleared swaps that are made available to trade onto regulated exchanges or execution facilities. By requiring the trades of mandatorily cleared swaps that are made available to trade to be executed on an exchange or an execution facility—each with its attendant pre- and post-trade transparency and safeguards to ensure market integrity—the trade execution requirement furthers the statutory goals of promoting financial stability, market efficiency and enhanced transparency.
The Commission's policy will treat real-time public reporting as a Transaction-Level Requirement. However, for the reasons discussed below, the Commission clarifies that it does not intend that its policy would preclude a market participant from applying real-time public reporting with respect to swap transactions that are not necessarily subject to this Transaction-Level Requirement if doing so would be more efficient for the market participant.
Part 43 of the Commission's regulations and part 45 of the Commission's regulations, respectively, prescribe the data fields that are to be included in real-time public reporting and SDR Reporting reports with respect to a reportable swap transaction.
The Commission understands from commenters that in certain circumstances, reporting part 43 and part 45 data for the same swap transaction in separate reports (“two stream reporting”) could accommodate market participants that have a transactional structure and/or systems that are designed or suited to send separate submissions.
The Commission anticipated that reporting parties might elect to use one data reporting stream for both SDR Reporting and real-time public reporting under part 45 and part 43 respectively, to reduce costs and optimize efficiency, and many market participants have chosen to build and integrate single stream reporting systems.
In view of these concerns, the Commission would, in general, treat real-time public reporting as a Transaction-Level Requirement. However, the Commission does not intend that its policy would preclude a market participant from applying real-time public reporting with respect to swap transactions that are not necessarily subject to this Transaction-Level Requirement if, for example, this would allow the market participant to realize efficiency gains from single stream reporting or otherwise as discussed above.
As proposed, the Commission's policy will treat external business conduct standards as a “Category B” Transaction-Level Requirement for purposes of the general application of this Transaction-Level Requirement to various categories of swap counterparties.
After reviewing the comments on internal conflicts of interest procedures, the Commission has given consideration to whether to treat internal conflicts of interest rules relating to clearing under Commission regulation 23.605 under Category B of the Transaction-Level Requirements. The Commission considered the view of commenters that stated that this particular requirement is generally more akin to the external business conduct standards and, as such, can reasonably be expected to be narrowly targeted to apply only with respect to U.S. clients, without undermining the regulatory benefits associated with the rule. However, because the Commission believes that internal conflicts of interest related to clearing should be applied on a firm-wide basis, the Commission's policy is that this requirement generally should be treated as an Entity-Level Requirement as proposed.
The Commission also has considered whether internal conflicts of interest procedures relating to research should be treated as Entity-Level Requirements as proposed. These informational and supervisory firewalls are designed to ensure that research reports are free from undue influence by the firm's trading personnel. As a practical matter, it is generally difficult, if not impossible, to establish and maintain such safeguards on a transaction or client basis. Because the Commission believes that these firewalls, in order to achieve their regulatory purpose, should be applied on a firm-wide basis, the Commission's policy is that internal conflicts of interest procedures relating to research generally should be treated as Entity-Level Requirements.
In the Proposed Guidance, the Commission stated that a cross-border policy that allows for flexibility in the application of the CEA while ensuring the high level of regulation contemplated by the Dodd-Frank Act and avoiding potential conflicts between U.S. regulations and foreign law is consistent with principles of international comity. To that end, the Commission set forth a general framework for substituted compliance. Under this “substituted compliance” regime, the Commission may determine that certain laws and regulations of a foreign jurisdiction are comparable to and as comprehensive as a corresponding category of U.S. laws and regulations. If the Commission makes such a determination, then an entity or transaction in that foreign jurisdiction that is subject to the category of U.S. laws and regulations for which comparability is determined will be deemed to be in compliance therewith if that entity or transaction complies with the corresponding foreign laws and regulations.
Several commenters urged the Commission to use a principles-based approach and to review the legal regime as a whole, rather than evaluate comparability on an issue-by-issue basis.
Some commenters stated that foreign jurisdiction laws and regulations are unlikely to be identical to those in the United States and that they thus support the Commission's proposed “outcomes based approach” to evaluating whether foreign regulatory requirements meet Dodd-Frank normative objectives.
Commenters stressed the need to avoid imposing duplicative or conflicting regulatory requirements which could result in unnecessary costs.
Some commenters expressed the view that substituted compliance should not require Commission approval if the applicable foreign regulator promulgates applicable regulations in accordance with G20 commitments, or that a presumption that foreign rules are comparable should apply if the rules are consistent with G20 principles.
Commenters, including foreign regulators, requested that the Commission more clearly outline the circumstances under which a particular foreign jurisdiction would be acceptable for substituted compliance purposes.
Some commenters found the Commission's proposed approach to substituted compliance too narrow or limiting. The European Securities and Markets Authority (“ESMA”) stated that when equivalence or substituted compliance is granted for an entire jurisdiction, registration should not be a prerequisite before substituted compliance can apply. ESMA also stated that the Commission's approach is quite limited because it is applied not uniformly but “chapter by chapter,” which ESMA represents contradicts what they described as EMIR's concepts of equivalence and mutual recognition.
Another commenter stated that substituted compliance should be expanded to a broader category of swap transactions, specifically, to the trade execution requirement.
Some commenters urged the Commission to clarify which law is “substituted” for U.S. law and allow swap entities to determine which jurisdictions' laws apply where it could be more than one.
Some commenters expressed concern regarding the timing of reform in other jurisdictions, urging the Commission to delay substituted compliance implementation or provide a grace period for these jurisdictions.
Some commenters urged the Commission not to allow substituted compliance or to use it only sparingly, pointing out the risks of substituted compliance by the Commission. For example, one commenter contended that substituted compliance fails to ensure rigorous regulation of derivatives markets and so should not be allowed for foreign subsidiaries of U.S. parents as these subsidiaries pose a severe risk to the U.S. economy.
Commenters also urged that, to the extent substituted compliance is permitted, a rigorous approach be applied, including examining the history of enforcement in a foreign jurisdiction, the ability to revoke substituted compliance where necessary, the ability of the public to comment on substituted compliance applications, periodic review of the application of substituted compliance and a requirement that the applicant immediately inform the Commission of any material changes in its jurisdiction.
With regard to SDR Reporting, some commenters disagreed with the Commission that a foreign trade repository must allow Commission access to information to be considered comparable, arguing that comparability should be based solely on the foreign jurisdiction's regulatory regime,
International regulators have continued to express commitment to the Pittsburgh G20 reforms of OTC derivatives regulation, including a commitment to harmonize cross-border regulations and allow for substituted compliance or equivalence arrangements when appropriate. However, no international consensus has emerged regarding the implementation of such reforms or the
A group of 25 organizations from numerous nations responded by asserting that the letter to Treasury Secretary Lew “appears to place a higher priority on preventing `fragmentation' in global financial markets than on effective management of global financial risks.”
Once registered, a non-U.S. swap dealer or non-U.S. MSP would become subject to all of the substantive requirements under Title VII of the Dodd-Frank Act that apply to registered swap dealers or MSPs. In other words, the requirements under Title VII of the Dodd-Frank Act related to swap dealers and MSPs apply to all registered swap dealers and MSPs, irrespective of where they are based.
Consistent with CEA section 2(i) and comity principles, the Commission's policy generally is that eligible entities may comply with a substituted compliance regime under certain circumstances, subject, however, to the Commission's retention of its examination authority
In the January Order, the Commission noted that an applicant for registration as a swap dealer or MSP must file a Form 7–R with the National Futures Association and that Form 7–R was being modified at that time to address existing blocking, privacy or secrecy laws of foreign jurisdictions that applied to the books and records of swap dealers and MSPs acting in those jurisdictions.
Upon promulgating part 30, the Commission stated that it “intends to monitor closely the application of this regulatory scheme for the offer and sale of foreign futures and foreign options in the U.S. and to make adjustments in these rules, as necessary, based, in part, on it experience in administering the exemptive procedure [
In part, because many foreign jurisdictions have been implementing OTC derivatives reforms in an incremental manner, the Commission's comparability determinations may be made on a requirement-by-requirement basis, rather than on the basis of the foreign regime as a whole. For example, many jurisdictions have moved more quickly to implement reporting to trade repositories, and so the Commission may focus first on comparability with those requirements. In addition, in making its comparability determinations, the Commission may include conditions that take into account timing and other issues related to coordinating the implementation of reform efforts across jurisdictions.
A non-U.S. swap dealer or non-U.S. MSP, a U.S. bank that is a swap dealer or MSP with respect to its foreign branches, or non-U.S. non-registrant that is a guaranteed or conduit affiliate, to the extent applicable under this Guidance, may comply with regulations in its home jurisdiction (or in the case of foreign branches of a bank, the foreign location of the branch) to the extent that the Commission determines that these requirements are comparable to, and as comprehensive as, the corollary areas of the CEA and Commission regulations.
In evaluating whether a particular category of foreign regulatory requirement(s) is comparable and comprehensive to the applicable requirement(s) under the CEA and Commission regulations, the Commission will take into consideration all relevant factors, including but not limited to, the comprehensiveness of those requirement(s), the scope and objectives of the relevant regulatory requirement(s), the comprehensiveness of the foreign regulator's supervisory compliance program, as well as the home jurisdiction's authority to support and enforce its oversight of the registrant. In this context, comparable does not necessarily mean identical. Rather, the Commission would evaluate whether the home jurisdiction's regulatory requirement is comparable to and as comprehensive as the corresponding U.S. regulatory requirement(s).
In response to comments requesting greater clarity with respect to the substituted compliance determinations, the Commission notes that a comparability analysis would begin with a consideration of the regulatory objectives of a foreign jurisdiction's regulation of swaps and swaps market participants. In this regard, the Commission will first look to foreign regulator's swap-specific regulations. The Commission recognizes, however, that jurisdictions may not have swap-specific regulations in some areas, and instead may have regulatory or supervisory regimes that achieve comparable and comprehensive regulatory objectives as the Dodd-Frank Act requirements, but on a more general, entity-wide, or prudential, basis.
The approaches used will vary depending on the circumstances relevant to each jurisdiction. One example would include coordinating with the foreign regulators in developing appropriate regulatory
Any comparability analysis will be based on a comparison of specific foreign requirements against specific related CEA provisions and Commission regulations in 13 categories of regulatory obligations and will consider the factors described above. After receiving a submission from an applicant, the resulting comparability determination would be made by the Commission with regard to each of the 13 categories of regulatory obligations, as appropriate. More specifically, the Commission could determine that a particular set of foreign laws and regulations provides a sufficient basis for an affirmative finding of comparability with respect to a relevant area of regulatory obligations. Where no comparability determination can be made,
Anyone who is eligible for substituted compliance may apply, either individually or collectively, as may foreign regulators. Persons who may request a comparability determination include: (i) Foreign regulators, (ii) an individual non-U.S. entity, or group of non-U.S. entities; (iii) a U.S. bank that is a swap dealer or MSP with respect to its foreign branches;
Generally, the Commission would expect that the applicant, at a minimum, state with specificity the factual and legal basis for requesting that the Commission find that a particular set of foreign laws and regulations is comparable to, and as comprehensive as, particular Dodd-Frank Act requirements as described above; include with specificity all applicable legislation, rules, and policies; and provide an assessment whether the objectives of the two regulatory regimes are comparable and comprehensive.
The Commission expects that the comparability analysis process would, in most cases, involve consultation with the regulators in each jurisdiction for which a substituted compliance application has been submitted so that the Commission may better analyze the compliance regime of a jurisdiction. Consultations are particularly important in the near future because many jurisdictions are in the process of finalizing and implementing their derivatives reforms incrementally and the Commission's comparability determinations may need to take into account the timing of regulatory reforms that have been proposed or finalized, but not yet implemented.
Further, the Commission expects that, in connection with a determination that substituted compliance is appropriate, it would enter into an appropriate MOU or similar arrangement between the Commission and the relevant foreign regulator(s). Existing information-sharing and/or enforcement arrangements would be indicative of a foreign supervisor's ability to share information and otherwise work with the Commission. However, going forward, the Commission and relevant foreign supervisor(s) would need to establish supervisory MOUs or other arrangements that provide for information sharing and cooperation in the context of supervising swap dealers and MSPs. The Commission contemplates that such a supervisory MOU would establish the type of coordination activities that would continue on an ongoing basis between the Commission and the foreign supervisor(s), including topics such as procedures for confirming continuing oversight activities, access to
The Commission expects that an applicant would notify the Commission of any material changes to information submitted in support of a comparability determination (including, but not limited to, changes in the relevant supervisory or regulatory regime) as the Commission's comparability determination may no longer be valid.
Within four years of issuing any Substituted Compliance Determination, the Commission will reevaluate its initial determination to ascertain whether any changes should be made to its finding and shall reissue the relevant Commission action, conditionally or unconditionally, as it deems appropriate.
SDR Reporting and real-time public reporting would generally be eligible for substituted compliance, as outlined above, but only if the Commission has direct access to all of the reported swap data elements that are stored in a foreign trade repository. The Commission intends that direct access would generally include, at a minimum, real time, direct electronic access to the data and the absence of any legal impediments to the Commission's access to the data. Due to the technical nature of this inquiry, a comparability evaluation for SDR Reporting and real-time public reporting would generally entail a detailed comparison and technical analysis. The Commission notes that while direct access to swap data is a threshold matter to be addressed in a comparability evaluation, a more particularized analysis would generally be necessary to determine whether the data stored in a foreign trade repository provides for effective Commission use, in furtherance of the regulatory purposes of the Dodd-Frank Act.
Comparability determinations for SDR Reporting and real-time public reporting would generally take into account whether the Commission may effectively access and use data stored in foreign trade repositories, both in isolation and when compared to and aggregated with swap data from other foreign trade repositories, as well as registered SDRs. At a minimum, effective use would generally require that the data elements stored in foreign trade repositories are sufficient to permit comparison and aggregation, and that all transactions with comparable required data elements, otherwise required to be reported to a registered SDR, are available in the foreign trade repository.
Potential and actual conflicts between the Commission's regulations and the privacy and blocking laws of some non-U.S. jurisdictions may, in certain circumstances, limit or prohibit the disclosure of data that is required to be reported under the Dodd-Frank Act and implementing regulations.
The Commission recognizes that, notwithstanding the importance of swap data to its mandate under the Dodd-Frank Act, its regulations may be in conflict with the blocking, privacy, and/or secrecy laws of other jurisdictions. The Commission is mindful of the challenges presented by such circumstances and continues to work on a bilateral and multilateral basis with foreign regulators to address these issues. Where appropriate, the Commission may consider reasonable alternatives that allow the Commission to fulfill its mandate while respecting the regulatory interests of other jurisdictions. In that regard, where a real conflict of laws exists, the Commission strongly encourages regulators and registrants to consult directly with its staff.
With respect to acceptable clearing venues, the Commission notes that section 2(h)(1) of the CEA provides that swaps subject to the clearing requirement must be submitted for clearing to a registered DCO or a DCO that is exempt from registration under the CEA.
The Commission has previously recognized the role of foreign-based clearing organizations, including in the context of FBOTs. Specifically, in the final rules pertaining to Registration of Foreign Boards of Trade, the Commission required that an FBOT, in order to be registered, clear through a clearing organization that either is registered with the Commission as a DCO or observes the Principles for Financial Market Infrastructures (“PFMIs”).
In addition, in the final rules adopting the Inter-Affiliate Exemption, the Commission permitted eligible affiliated counterparties that are located in certain jurisdictions to satisfy a condition to electing the exemption (requiring counterparties to clear their swaps with third-parties) by clearing the swap through a registered DCO or a clearing organization that is subject to supervision by appropriate government authorities in the clearing organization's home country and that has been assessed to be in compliance with the PFMIs.
More recently, in the final rulemaking adopting Core Principles and Other Requirements for Swap Execution Facilities, the Commission noted that under section 5b(h) of the CEA it has discretionary authority to exempt DCOs, conditionally or unconditionally, from the applicable DCO registration requirements.
The conditions that may have to be met for a clearing organization to be eligible to qualify as an exempt DCO could include, among other things: (i) The Commission having entered into an appropriate memorandum of understanding or similar arrangement with the relevant foreign supervisor in the clearing organization's home country and (ii) the clearing organization having been assessed to be in compliance with the PFMIs.
The Commission notes that its exemptive authority under CEA section 5b(h) is entirely discretionary. Accordingly, the Commission is not compelled to exempt any clearing organization from the DCO registration requirements, even upon a finding that a facility is “subject to comparable, comprehensive supervision and regulation” by another regulator.
One of the conditions of the Inter-Affiliate Exemption, known as the “treatment of outward-facing swaps” condition, generally requires the clearing of swaps between affiliated counterparties and their unaffiliated counterparties.
For the purposes of the Inter-Affiliate Exemption, consistent with section 2(i), the Commission will permit a non-U.S. person eligible affiliate counterparty to satisfy Commission regulation 50.52(b)(4)(i)(C) for swaps entered into with an unaffiliated non-US person that is not otherwise subject to the CEA (“Foreign End-User”), under certain circumstances. The Foreign End-User may elect the end-user exception as if the provisions of sections 2(h)(7)(A)(i) and (ii) of the CEA apply to the Foreign End-User and the Foreign End-User elects not to clear the swap.
Accordingly, a Foreign End-User may elect not to clear a swap if (1) the Foreign End-User and non-US person eligible affiliate counterparty are not located in a foreign jurisdiction in which the Commission has determined that a comparable and comprehensive clearing requirement exists and that the exceptions and/or exemptions thereto are comparable and comprehensive;
This section sets forth the Commission's policy on application of the Entity-Level and Transaction-Level Requirements to swap dealers and MSPs, including when swaps generally would be eligible for substituted compliance.
As noted in section E above, commenters generally supported the division of Dodd-Frank's swaps provisions (and Commission regulations thereunder) into Entity-Level and Transaction-Level Requirements for purposes of this Guidance. Certain of these commenters, however, made specific recommendations for
In addition, some commenters addressed perceived disparities in the application of Transaction-Level Requirements to U.S. swap dealers, stating that transactions between U.S. swap dealers and non-U.S. counterparties should be eligible for substituted compliance for Transaction-Level Requirements so as to avoid putting U.S. swap dealers at a competitive disadvantage.
Other commenters supported the Commission's proposed application of the Transaction-Level Requirements to the transactions of U.S. persons with non-U.S. persons.
Several commenters objected to the applicability of certain Transaction-Level Requirements to transactions between two non-U.S. parties.
With respect to external business conduct standards, one commenter stated that these standards should not apply to swaps between U.S. swap entities and non-U.S. persons because the Commission's supervisory interest in these transactions are less implicated when the counterparty is a non-U.S. person.
The Commission has carefully considered the comments on Entity-Level and Transaction-Level Requirements. With regard to U.S. swap dealers and U.S. MSPs, the Commission's policy is that they generally would be expected to comply in full with all of the Entity-Level Requirements and Transaction-Level Requirements, without substituted compliance available. The Commission's policy would apply regardless of whether the counterparty to the swap is a U.S. person or non-U.S. person. This is consistent with the Commission's traditional approach to registered FCMs, wherein a person, once registered as an FCM, is subject to the full panoply of regulations applicable to such registrants, without distinctions based on whether the counterparties are U.S. or non-U.S. counterparties.
Further, the Commission believes that its cross-border policy and interpretation with respect to U.S. swap dealers and MSPs must be informed by the purposes of the Dodd-Frank Act. As discussed earlier, the Dodd-Frank Act was enacted to reduce systemic risk, increase transparency, and promote market integrity within the financial system by, among other things, providing for the comprehensive regulation of swap dealers and MSPs. In doing so, Congress understood the highly integrated nature of the global swaps business, with regard to both individual firms and the market at large, and that risk to U.S. firms and in turn, U.S. financial markets may arise anywhere in the world.
In view of the policy goals underlying the Dodd-Frank Act swaps reforms, the Commission's view is that U.S. swap dealers and MSPs should be fully subject to the robust oversight contemplated by the Dodd-Frank Act, without regard to whether their counterparty is a U.S. or non-U.S person. These firms are conducting their swap dealing business within the territory of the United States. That some of their business may be directed to foreign clients does not diminish the Commission's obligation to ensure that swaps between U.S. swap dealers and MSPs and their counterparties are subject to Dodd-Frank's financial safeguards and transparency requirements, to the fullest extent. Therefore, in the Commission's view, substituted compliance is incompatible with the Commission's ability to effectively discharge its statutory responsibilities.
For substantially the same reasons, the Commission believes that full U.S. regulation of U.S. swap dealers and MSPs, even when they transact swaps with non-U.S. counterparties, is a reasonable exercise of U.S. jurisdiction under the principles of foreign relations law. Among the factors supporting this exercise of U.S. jurisdiction are the links between the U.S. swap dealers and MSPs and their swap activities to U.S. commerce, and the generally accepted importance of regulating the activities of these entities both to the United States and the international financial system.
With regard to non-U.S. swap dealers or MSPs (including those that are affiliates of a U.S. person), the Commission's policy is that these firms should be subject to all of the Entity-Level Requirements, but under certain circumstances substituted compliance should be available (except with regard to Large Trader Reporting). The Commission's policy with regard to the application of Transaction-Level Requirements to non-U.S. swap dealers or MSPs, and the availability of substituted compliance, depends in part on the type of counterparty to the swap transaction.
The foreign branch of a U.S. bank that is a swap dealer or MSP is expected to
Below, the Commission describes its policies regarding how Entity-Level and Transaction-Level Requirements should apply to both U.S. and non-U.S. swap dealers and MSPs, and to foreign branches of a U.S. banks that are swap dealers and MSPs, as well as the circumstances under which substituted compliance would be available.
In this section, the Commission discusses its policy regarding the application of the Entity-Level Requirements to swap dealers and MSPs in cross-border transactions under its interpretation of 2(i), as well as the circumstances under which such swaps would be eligible for substituted compliance.
Section a discusses the Commission's view on the application of Entity-Level Requirements to swaps with U.S. swap dealers and U.S. MSPs, including subsidiaries and affiliates of non-U.S. persons, and foreign branches of U.S. swap dealers or U.S. MSPs, under CEA section 2(i).
Section b discusses the Commission's view on the application of Entity-Level Requirements to swaps with non-U.S. swaps dealers and MSPs, including subsidiaries and affiliates of U.S. persons.
The Commission's policy on application of the Entity-Level Requirements to swap dealers and MSPs, as well as substituted compliance, is discussed below and summarized in Appendix C to this Guidance, which should be read in conjunction with the rest of the Guidance.
As explained above, U.S. swap dealers and U.S. MSPs generally would be expected to comply in full with all of the Entity-Level Requirements, without substituted compliance available. The Commission's policy generally would apply regardless of whether the counterparty to the swap is a U.S. person or non-U.S. person.
Because under this Guidance the term “U.S. person” includes corporations, partnerships, limited liability companies, and other legal entities (as discussed above), the foregoing interpretation also applies to affiliates of non-U.S. persons that are U.S. swap dealers or U.S. MSPs. It also applies to U.S. banks that are swap dealers or MSPs when the swap is with their foreign branch. In this case, because a foreign branch of a U.S. bank is an integral part of the U.S. principal entity and has no separate legal existence, and the U.S. principal bank is the entity that registers as a swap dealer or MSP, under the Commission's interpretation of CEA section 2(i), the U.S. bank (principal entity) would be the party ultimately responsible for compliance with the Entity-Level Requirements for the entire legal entity.
Consistent with CEA section 2(i), the Commission would expect non-U.S. swap dealers and non-U.S. MSPs to comply with all of the Entity-Level Requirements. This policy also applies to foreign affiliates of a U.S. person that are independently required to register as swap dealers or MSPs and to comply with applicable Dodd-Frank Act requirements.
However, in considering whether substituted compliance is available to a non-U.S. swap dealer or MSP with respect to particular Entity-Level Requirements, the Commission would consider it relevant whether the Entity-Level Requirement is classified in the First Category or Second Category (and with respect to the Second Category, whether the counterparty is a U.S. person).
The Commission recognizes that non-U.S swap dealers or MSPs are likely to have their principal swap business in their home jurisdiction, and in consideration of international comity principles, is interpreting CEA section 2(i) such that such non-U.S swap dealers or MSPs generally would be eligible for substituted compliance with regard to Entity-Level Requirements in the First Category (
With respect to Entity-Level Requirements in the First Category, as noted by commenters on the Proposed Guidance, an affiliate of a U.S. swap dealer that is guaranteed by such U.S. swap dealer (or guaranteed by a U.S.-based parent or other affiliate of such swap dealer) may under certain circumstances be required to register as a swap dealer based on its swap dealing activity solely with non-U.S. persons, including those non-U.S. persons that are neither guaranteed affiliates or affiliate conduits of U.S. persons. Commenters have represented that some corporate groups may be required to register many of these guaranteed affiliates as swap dealers, even though such affiliates provide swap dealing services only to non-U.S. markets, and that many of such guaranteed affiliates exist only because the law of the local jurisdiction requires that a subsidiary be incorporated in the jurisdiction in order to enter into swaps with counterparties located in such jurisdiction. The Commission recognizes that certain structural conditions required to comply with the regulatory obligations of swap dealers may be burdensome for a corporate group with many of these guaranteed affiliates due to the requirement that such obligations be complied with at the individual entity level (e.g., Commission regulations §§ 3.3 (Chief compliance officer), 23.600 (Risk Management Program for swap dealers and major swap participants), 23.601 (Monitoring of position limits), 23.602 (Diligent supervision), 23.603 (Business continuity and disaster recovery), and 23.606 (General information: Availability for disclosure and inspection)).
Specifically, the Commission notes that Commission regulations §§ 3.3 (Chief compliance officer), 23.600 (Risk Management Program for swap dealers and major swap participants), 23.601 (Monitoring of position limits), 23.602 (Diligent supervision), 23.603 (Business continuity and disaster recovery), and 23.606 (General information: Availability for disclosure and inspection) mandate that each swap dealer in a corporate group under common control individually establish policies, procedures, governance structures, reporting lines, operational units, and systems specified in the rules. Thus, the Commission would consider relief, subject to appropriate conditions and restrictions to be determined, that would permit guaranteed affiliates in a corporate group under common control that do not enter into swaps with U.S. persons to comply with such regulations by establishing consolidated policies, procedures, governance structures, reporting lines, operational units, and systems, thereby increasing operational efficiencies and lessening the economic burden on these groups with respect to their guaranteed affiliates that do not directly face U.S. persons when engaging in swaps activities.
The Commission encourages interested parties to contact the Director of the Division of Swap Dealer and Intermediary Oversight to discuss the necessary conditions and restrictions of appropriate relief.
The Commission clarifies that, in the interest of international comity and for the purpose of permitting efficiencies in compliance programs, it would remain open to considering (or directing its staff to consider) relief, subject to appropriate conditions and restrictions to be determined, that would permit guaranteed affiliates in a corporate group under common control (that do not enter into swaps with U.S. persons or U.S. guaranteed affiliates or affiliate conduits of U.S. persons) to comply with certain of such regulations on a consolidated or group basis. The Commission notes, however, that any such relief would require a consolidated program to manage the risks of the included guaranteed affiliates on an individual, rather than a net, basis.
With respect to one of the Entity-Level Requirements in the Second Category, SDR Reporting (
With respect to the other Entity-Level Requirement in the Second Category (
Specifically, with respect to SDR Reporting, the Commission interprets CEA section 2(i) such that substituted compliance may be available to non-U.S. swap dealers and non-U.S. MSPs (whether or not such swap dealers or MSPs are affiliates of or are guaranteed by U.S. persons) for swaps with non-U.S. counterparties, provided that the Commission has direct access (including electronic access) to the relevant swap data that is stored at the foreign trade repository. The Commission believes that this ensures that the Commission will have access to information that is critical to its oversight of these entities even where substituted compliance with regard to SDR Reporting would be applicable under this Guidance.
However, with regard to the SDR reporting requirements, for the future, the Commission has agreed to continue to work collaboratively and to consider any unforeseen implementation effects that might arise in the application of our respective rules. The Commission will continue discussions with other international partners with a view to establishing a more generalized system that would allow, on the basis of these countries' implementation of the G–20 commitments, an extension of the treatment the EU and the CFTC will grant to each other.
With regard to certain aspects of swap data recordkeeping that relate to complaints and marketing and sales materials, the Commission interprets CEA section 2(i) such that non-U.S. swap dealers or non-U.S. MSPs generally would be eligible for substituted compliance with respect to swaps with non-U.S. counterparties.
To the extent that swap data reported to a foreign trade repository would include data regarding the physical commodity swaps covered by Large Trader Reporting, the Commission—even if provided with direct access to such data—would still likely be required to convert it to “futures equivalent” positional data in order to render it comparable to the data obtained through Large Trader Reporting, which contemplates conversion by the entity required to
The Commission notes further that its interpretation of CEA section 2(i) to permit substituted compliance with comparable and comprehensive regimes in certain circumstances recognizes the interests of foreign jurisdictions with respect to swaps between non-U.S. persons. Large Trader Reporting, however, reflects a very specific interest of the Commission in conducting effective surveillance of markets in swaps that have been determined to be economically equivalent to certain U.S.-listed physical commodity futures contracts. In light of this specific Commission interest—which is reflected in the particularized scope and methodology of Large Trader Reporting—and in light of the anticipated impediments to obtaining directly comparable positional data through any foreign swap data reporting regime, the Commission's policy would not recognize substituted compliance in place of compliance with Large Trader Reporting.
This section discusses the Commission's guidance on the application of the Category A Transaction Level Requirements to the parties to a swap where one of the parties is a registered swap dealer or MSP,
As noted above, the Category A Transaction Level Requirements include: (1) Required clearing and swap processing; (2) margining and segregation requirements for uncleared swaps; (3) trade execution; (4); swap trading relationship documentation; (5) portfolio reconciliation and compression; (6) real-time public reporting; (7) trade confirmation; and (8) daily trading records.
The Commission's policy on application of the Category A Transaction-Level Requirements is summarized in Appendix D to this Guidance, which should be read in conjunction with the rest of the Guidance.
As explained above, where one of the counterparties to a swap is a U.S. swap dealer or U.S. MSP, under the Commission's interpretation of CEA section 2(i), the Commission would generally expect the parties to the swap to comply with Category A Transaction-Level Requirements with respect to the transaction, without regard to whether the other counterparty to the swap is a U.S. person or a non-U.S. person.
Because the Commission interprets section 2(i) so that the term “U.S. person” would include any legal entity organized or incorporated under the laws of the United States or having its principal place of business in the United States, this interpretation also would apply where one of the parties to the swap is a U.S. swap dealer or U.S. MSP that is an affiliate of a non-U.S. person.
Further, as explained above, with regard to substituted compliance, where one of the counterparties to a swap is a U.S. swap dealer or U.S. MSP (including those that are affiliates of a non-U.S. person), other than a foreign branch of a U.S. bank that is a swap dealer or MSP, the Commission's policy is that substituted compliance generally would not be available for the Category A Transaction-Level Requirements, without regard to whether the other counterparty is a U.S. person or a non-U.S. person. The Commission has a strong supervisory interest in ensuring that the Category A Transaction-Level Requirements apply to swaps with a U.S. swap dealer or MSP.
Similarly, under the Commission's interpretation of 2(i), where a swap is between a foreign branch of a U.S. bank that is a swap dealer or MSP, on the one hand, and a U.S. person on the other, the Commission's policy is that substituted compliance generally would not be available with respect to the Category A Transaction-Level Requirements. In this case, the Commission also has a strong supervisory interest in ensuring that the Category A Transaction-Level Requirements fully apply to the transaction because it views the swap transaction as being between two U.S. persons. The Commission believes that this approach is appropriate in light of the Commission's strong supervisory interests in entities that are part or an extension of a U.S. swap dealer or U.S. MSP.
However, where a swap is between two foreign branches of U.S. banks that are both swap dealers or MSPs, the Commission believes that the interests of foreign regulators in applying their transaction-level requirements to a swap taking place in their jurisdiction, together with the fact that foreign branches of U.S. swap dealers or U.S. MSPs are subject generally to direct or indirect oversight by U.S. regulators, weigh in favor of allowing substituted compliance with comparable and comprehensive foreign regulatory requirements (to the extent applicable).
In addition, where a swap is between the foreign branch of a U.S. bank that is a swap dealer or MSP, on the one hand, and a non-U.S. person on the other
In a modification to the Proposed Guidance, where a swap between the foreign branch of a U.S. swap dealer or U.S. MSP and a non-U.S. person (that is not a guaranteed or conduit affiliate) takes place in a foreign jurisdiction other than Australia, Canada, the European Union, Hong Kong, Japan, or Switzerland,
Although the foreign branch of a U.S. registrant would not register separately as a swap dealer or MSP, the Commission interprets 2(i) in a manner that would permit the U.S. registrant to task its foreign branch to fulfill its regulatory obligations with respect to the Category A Transaction-Level Requirements. The Commission would generally consider compliance by the foreign branch to constitute compliance with these Transaction-Level Requirements. However, under the Commission's interpretation of 2(i), the U.S. person (principal entity) would remain responsible for compliance with the Category A Transaction-Level Requirements.
Under the Commission's interpretation of CEA section 2(i), where a swap is between a non-U.S. swap dealer or non-U.S. MSP (including an affiliate of a U.S. person), on the one hand, and a U.S. person (other than a foreign branch of a U.S. swap dealer or MSP), on the other, the Commission would generally expect the parties to comply with Category A Transaction-Level Requirements with respect to the transaction.
The Commission notes, however, that where a swap is executed anonymously between any non-U.S. person, whether a swap dealer or an MSP, and a U.S. person (other than a foreign branch of a U.S. swap dealer or MSP) on a registered DCM or SEF and cleared, the non-U.S. person will generally be considered to have satisfied each of the eight Category A Transaction-Level Requirements that apply to such a swap transaction as a consequence of being so executed on a DCM or SEF. Thus, neither the non-U.S. person (nor its U.S. person counterparty) will need to take any further steps to comply with the Category A Transaction-Level Requirements in connection with such a transaction.
In making this determination, the Commission observes that where a cleared swap transaction is executed anonymously on a registered DCM or SEF, certain independent requirements that apply to DCM and SEF transactions generally, pursuant to the CEA or the Commission's regulations, will ensure that four of the eight Category A Transaction-Level Requirements will be met for such transactions—required clearing and swap processing,
For a combination of reasons, the Commission also believes that the four remaining Transaction-Level Requirements do not, or should not, apply to cleared, anonymous DCM or SEF transactions. So, for instance, the fact that the DCM or SEF swap transaction will be cleared, obviates the need for margining or segregation requirements applicable to uncleared swaps. Two other Category A Transaction-Level Requirements—swap trading relationship documentation and portfolio reconciliation and compression—would not apply because the Commission regulations that establish those requirements make clear that they do not apply to cleared DCM or SEF transaction.
In addition, the Commission is interpreting CEA section 2(i) such that, where a swap between a non-U.S. person, regardless of its swap dealer or MSP status, and a U.S. person is executed anonymously on an FBOT registered with the Commission pursuant to part 48 and cleared the non-U.S. person will generally be considered to have satisfied the Category A Transaction-Level Requirements that pertain to such a swap transaction. Some of the requirements will be satisfied by requirements levied by regulation on the FBOT and some will be satisfied because a registered FBOT is analogous to a DCM and is subject to comprehensive supervision and regulation in its home country that is comparable to that exercised over a DCM by the Commission. Thus, neither the non-U.S. person (nor its U.S. person counterparty) will need to take any further steps to satisfy the applicable Category A Transaction-Level Requirements in connection with such a transaction.
In making this determination, the Commission observes that where a cleared swap transaction is executed anonymously on a registered FBOT, the FBOT, similar to a DCM, based on certain independent requirements that apply to DCM transactions generally pursuant to the CEA or the Commission's regulations, will ensure that two of the eight Category A Transaction-Level Requirements will be satisfied for such transactions: Required clearing and swap processing
For a combination of reasons, including the fact that the swap will be cleared, the Commission also is of the view that the remaining Transaction-Level Requirements do not apply to such transactions executed on a registered FBOT. For instance, the fact that the swap will be cleared, as required by regulation 48.7(c)(1)(ii), renders inapplicable the margining or segregation requirements for uncleared swaps. As the Commission observed above with respect to swaps executed anonymously on DCMs, certain of the other Category A Transaction-Level Requirements would not apply to the swap. Consistent with this determination, three of the other Category A Transaction-Level Requirements—swap trading relationship documentation, portfolio reconciliation and compression and trade confirmation—would not apply to the swap executed on a registered FBOT because the underlying Commission regulations themselves do not apply those requirements to cleared DCM or SEF transactions. The last requirement—the daily trading records requirement—would only be applicable to the non-U.S. swap dealer and only with regard to pre-trade execution swaps. However, because the non-U.S. swap dealer will have no information about its counterparty where the swap is executed anonymously on a registered FBOT, the Commission is of the view that, as a matter of international comity, CEA section 2(i) should be interpreted such that certain of the daily trading records requirements also would not apply to the swap.
In addition, for the reasons discussed in the next two sections, where a swap is between a non-U.S. swap dealer or non-U.S. MSP, on the one hand, and a non-U.S. person that is a guaranteed or conduit affiliate, on the other, under the Commission's interpretation of 2(i), the Commission would generally expect the parties to comply with the Category A Transaction-Level Requirements.
However, where a swap is between a non-U.S. swap dealer or non-U.S. MSP (including an affiliate of a U.S. person), on the one hand, and a non-U.S. person
For this purpose, the Commission would consider the international financial institutions to be the institutions listed as such in the Final Entities Rules, 77 FR at 30692 n. 1180, which include the International Monetary Fund, International Bank for Reconstruction and Development, International Development Association, International Finance Corporation, Multilateral Investment Guarantee Agency, the Inter-American Development Bank, and the Inter-American Investment Corporation. Even though some or all of these international financial institutions may have their principal place of business in the United States, the Commission would generally not consider the application of the Category A Transaction-Level Requirements to be warranted, for the reasons of the traditions of the international system discussed in the Final Entities Rules.
With regard to substituted compliance, where a swap is between a non-U.S. swap dealer or non-U.S. MSP (including an affiliate of a U.S. person), on the one hand, and a U.S. person (other than a foreign branch of a U.S. bank swap dealer or U.S. MSP), on the other, the Commission's policy is that substituted compliance would generally not be available for the Category A Transaction-Level Requirements. The Commission believes that this approach is appropriate in this case because the Commission has a strong interest in ensuring that the swap fully complies with the Category A Transaction Level Requirements, without substituted compliance. A number of related reasons support this conclusion. As discussed above, a major purpose of Title VII is to control the potential harm to U.S. markets that can arise from risks that are magnified or transferred between parties via swaps. As also discussed above, swaps between U.S. persons and non-U.S. persons inherently raise the possibility of such risk magnification and transfer. The Category A Transaction Level Requirements are designed to constrain such risk magnification and transfer. The United States thus has a strong interest in applying the Dodd-Frank Act requirements, rather than substitute requirements adopted by non-U.S. authorities, to swaps with U.S. persons. Exercise of U.S. jurisdiction with respect to the Category A Transaction Level Requirements over swaps between U.S. persons and non-U.S. persons is a reasonable exercise of jurisdiction because of the strong U.S. interest in minimizing the potential risks that may flow to the U.S. economy as a result of such swaps.
Even though substituted compliance is not available with respect to swaps between a non-U.S. swap dealer or non-U.S. MSP, on the one hand, and a U.S. person (other than a foreign branch of a U.S. bank swap dealer or U.S. MSP), on the other, a market participant would be deemed in compliance with the relevant Dodd-Frank requirements where it complies with requirements in its home jurisdiction that are essentially identical to the Dodd-Frank requirements. Whether the home jurisdiction's requirements are essentially identical to the corollary Dodd-Frank requirements would be evaluated on a provision-by-provision basis. The Commission intends that a finding of essentially identical generally would be made through Commission action but in appropriate cases could be made through staff no-action.
Based on the foregoing principles, the Commission staff issued a no-action letter related to risk mitigation.
However, where the swap is between a non-U.S. swap dealer or non-U.S. MSP (including an affiliate of a U.S. person) and a foreign branch of a U.S. bank that is a swap dealer or MSP, as a policy matter, the Commission believes that substituted compliance should be available for the Category A Transaction-Level Requirements, to the extent applicable. Under substituted compliance, a counterparty can choose to follow a foreign jurisdiction's rules even though those rules are not essentially identical, provided that the regime is comparable and comprehensive. The Commission believes that international comity principles support taking this more flexible approach where the transaction, although it involves a U.S. person, takes place in a foreign jurisdiction.
In addition, where a swap is between a non-U.S. swap dealer or non-U.S. MSP (including an affiliate of a U.S. person), on the one hand, and a non-U.S. person that is a guaranteed or conduit affiliate, on the other, substituted compliance may be available to satisfy the Category A Transaction Level Requirements, to the extent applicable, as discussed in the next two sections.
In the Proposed Guidance, with respect to swaps between a non-U.S. swap dealer or non-U.S. MSP, on the one hand, and a non-U.S. counterparty on the other hand, the Commission proposed to interpret CEA section 2(i) such that a non-U.S. swap dealer or non-U.S. MSP would be expected to comply with the Category A Transaction-Level Requirements for swaps where the non-U.S. counterparty's performance is guaranteed, or otherwise supported by, a U.S. person.
The Commission explained that it proposed to interpret section 2(i) in this manner because, where a non-U.S. counterparty's swaps obligations are guaranteed by a U.S. person, the risk of non-performance by the counterparty rests with the U.S. person that is the guarantor of performance or payment. If the non-U.S. person defaults on its obligations under the swaps, then the U.S. person guarantor will be held responsible (or would bear the cost) to settle those obligations. In circumstances in which a U.S. person ultimately bears the risk of non-performance of a counterparty to a swap with a non-U.S. swap dealer or non-U.S. MSP, the Commission noted its strong regulatory interest in performance by both parties to the swap, and hence proposed to apply these Transaction-Level Requirements.
Some commenters concurred in the Commission's emphasis on a guarantee by a U.S. person as an interpretive guidepost. IATP, for example, stated that “the U.S. person's guarantee is a crucial criterion for the Commission's determination of whether a non-U.S. person would be subject to compliance with Dodd-Frank or whether substituted compliance would be appropriate.”
Other commenters, by contrast, stated that: (1) The Transaction-Level Requirements should never apply to swaps between counterparties that are both non-U.S. persons;
IIB explained that guarantees are a very common way for U.S. multinational corporations (both financial and non-financial) to provide credit support for their non-U.S. subsidiaries. According to IIB, parent credit support enables these subsidiaries to hedge their risks cost-effectively in the markets in which they operate, thereby reducing the cost of risk management and therefore the costs of operations.
IIB argued that these arrangements “are in stark contrast to circumstances where an unregulated foreign `shell' affiliate is used for purposes of entering into significant swap dealing activity outside the scope of Dodd-Frank and systematically transferring the market and credit risks arising from the activity to a U.S. affiliate.”
Commenters stated that in many instances, the Commission's concerns about a guarantee by a U.S. person can be addressed as a safety and soundness matter by the Federal Reserve Board when it supervises both the guarantor and its subsidiaries; further, where the U.S. providing a guarantee is itself a swap dealer or MSP, it also will be subject to Title VII requirements.
IIB also stated that the Commission should tie the application of Title VII requirements to the cross-border activities of U.S.-guaranteed foreign subsidiaries to the significance of the risk to the United States arising from the underlying guaranteed activity—that is, where the existence of a guarantee gives rise to direct and significant risks to the United States.
Many of the comments on this topic stated that the Commission's proposal in this regard would result in adverse competitive consequences.
Citi commented that if Transaction-Level Requirements were to be applied to swaps of non-U.S. persons whose obligations were guaranteed by a U.S. person, then U.S.-based firms may be forced to remove parent support from their overseas subsidiaries in order to remain competitive. It argued that this would cause significant additional capital, resources, and personnel to be moved abroad so that these non-U.S. subsidiaries could manage swap risk on a stand-alone basis which, it averred, would fragment and harm the safety and soundness of U.S.-based firms, U.S. swaps markets, and the U.S. economy.
One commenter requested that the Commission clarify the scope of a “guarantee” that can trigger application of Transaction-Level Requirements in these circumstances.
Under this Guidance, with respect to swaps between a non-U.S. swap dealer or non-U.S. MSP (including an affiliate of a U.S. person) on the one hand, and a non-U.S. counterparty on the other hand where the non-U.S. counterparty's performance is guaranteed (or otherwise supported by) a U.S. person, the Commission would generally expect the parties to the swap to comply with all of the Category A Transaction-Level Requirements. The Commission believes that this policy is warranted in light of the significant regulatory interest in managing and reducing the risks to U.S. firms, markets and commerce from such transactions. Further, this policy is based on the Commission's view that the failure to apply Category A Transaction-Level Requirements to such swaps could leave a significant gap in the regulation of risks presented by swap activities undertaken by U.S. firms. However, as proposed, the Commission's policy contemplates that substituted compliance (to the extent applicable) could satisfy the Category A Transaction-Level Requirements that otherwise might apply to such swaps, as further discussed below.
In response to commenters that requested clarification of the nature of the guarantee of a non-U.S. counterparty by a U.S. person that will trigger the application of Transaction-Level Requirements to swaps with non-U.S. swap dealers or non-U.S. MSPs, the Commission references the approach set forth in the final rule further defining the term “swap,” among others.
Conversely, where a non-U.S. swap dealer or non-U.S. MSP enters into a swap with a non-U.S. counterparty that does not have a guarantee as so described from a U.S. person and is not an affiliate conduit, the Commission's view is that the Transaction-Level Requirements should not apply.
In the Commission's view, because Congress directed that the trade execution requirement apply to swaps that are subject to the clearing requirement and made available to trade, it is appropriate for the trade execution requirement to apply to those cross-border swaps that are subject to the clearing mandate and are made available to trade. The Commission believes that both requirements—the clearing mandate and trade execution requirement—are of fundamental importance to the management and reduction of risks posed by swap activities of market participants. Requiring swaps to be traded on a regulated exchange or execution facility provides market participants with
Further, in the Final Swap Definition, the Commission found that a guarantee of a swap is a term of that swap that affects the price or pricing attributes of that swap. The Commission therefore concluded that when a swap has the benefit of a guarantee, the guarantee is an integral part of that swap. The Commission explained that typically when a swap counterparty uses a guarantee as credit support for its swaps obligations, the guarantor's resources are added to the analysis of the swap because “the market will not trade with that counterparty at the same price, on the same terms, or at all without the guarantee.”
For all the foregoing reasons, the Commission disagrees with commenters that asserted that it should not, or lacks the legal authority to, interpret CEA section 2(i) as to apply to swaps where one counterparty is a non-U.S. swap dealer or a non-U.S. MSP and the other counterparty is a non-U.S. person whose obligations under the swap are guaranteed by a U.S. person. Where a U.S. person provides a guarantee of a non-U.S. counterparty's swaps obligations for which there is recourse to the U.S. person, where that guarantee is a term of the swap and affects the price or pricing attributes of that swap, and where the Transaction-Level Requirements serve to protect and mitigate risk to that U.S. person guarantor, the Commission believes that such swaps, either individually or in the aggregate, have a direct and significant connection with activities in, or effect on, U.S. commerce.
The application of Dodd-Frank Act requirements to swaps of non-U.S. persons whose swaps obligations are guaranteed by U.S. persons is also consistent with foreign relations law. As noted in the discussion above regarding the application of these requirements to swaps of U.S. persons with non-U.S. persons, a major purpose of Title VII is to control the potential harm to U.S. markets that can arise from risks that are magnified or transferred between parties via swaps. Similarly, a guarantee—which is an integral part of a swap—can lead to the transfer of risk from the guaranteed non-U.S. person to the U.S. guarantor. Because Category A Transaction Level Requirements are designed to mitigate such risk transfer, the Commission believes there is a strong interest in applying the Dodd-Frank Act requirements to swaps of non-U.S. persons that are guaranteed by U.S. persons.
The Commission also disagrees with commenters that suggested that its interpretation on this score should apply only to certain guaranteed swaps (
The Commission similarly believes that the presence of any guarantee with recourse by a U.S. person of the swaps obligations of a non-U.S. counterparty to a swap with a non-U.S. swap dealer or non-U.S. MSP suffices to justify the application of Transaction-Level Requirements that swap. Therefore, as noted above, to the extent that a non-U.S. swap dealer or non-U.S. MSP would have recourse to the U.S. guarantor in connection with its swaps position, the Commission would generally expect such non-U.S. swap dealer or MSP to comply with the Category A Transaction-Level Requirements for such a guaranteed swap (although substituted compliance may satisfy compliance with such requirements to the extent it is applicable). Although the Commission believes all relevant facts and circumstances should be analyzed, as a general matter the Commission is of the view that the purpose for which the non-U.S. counterparty is entering into the swap, or the net equity of the non-U.S. counterparty or the guarantor, or the extent of the guarantee, would generally not warrant a different conclusion.
Finally, the Commission disagrees with commenters that urged it to limit its interpretation in this regard to cases of evasion, or to exclude from the scope of its interpretation those swaps in which the non-U.S. counterparty is subject to appropriate capital requirements or the guarantor is a U.S. bank holding company. The events surrounding the collapse of AIGFP highlight how guarantees can cause major risks to flow to the guarantor. “AIGFP's obligations were guaranteed by its highly rated parent company . . . an arrangement that facilitated easy money via much lower interest rates from the public markets, but ultimately made it difficult to isolate AIGFP from its parent, with disastrous consequences.”
The Commission's view is that the protections and mitigation of risk exposures afforded by the Category A Transaction-Level Requirements would be rendered far less effective if in the case of swaps where one counterparty is a non-U.S. swap dealer or a non-U.S. MSP and the other counterparty is a non-U.S. person guaranteed by a U.S. person such requirements only apply when such swaps are part of a scheme to evade the Dodd-Frank Act. Further, while capital requirements are an important element of the Title VII regime to reduce systemic risk,
In addition, the Commission believes that this Guidance, which contemplates a system of substituted compliance in accordance with principles of international harmonization, may allow non-U.S. swap dealers and non-U.S. MSPs to comply, in appropriate circumstances, with their home-country requirements when transacting with non-U.S. counterparties whose swaps obligations are guaranteed with recourse by U.S. persons. The Commission believes that the substituted compliance regime contemplated by the Guidance will facilitate equivalent regulatory treatment of equivalent swaps without undermining the swaps reforms enacted by Congress in Title VII.
The Commission proposed to interpret CEA section 2(i) such that the Category A Transaction-Level Requirements would apply to a swap if at least one of the parties to the swap is an “affiliate conduit.” Under the Proposed Guidance, an affiliate conduit exists when: (1) A non-U.S. person that is majority-owned, directly or indirectly, by a U.S. person; (2) the non-U.S. person regularly enters into swaps with one or more of its U.S. affiliates of its U.S. person owner; and (3) the financial results of such non-U.S. person are included in the consolidated financial statements of its U.S. person owner.
The commenters who addressed the Commission's proposed approach to affiliate conduits expressed concerns about what they felt was an overly broad scope of the term “affiliate conduit.” Several of these commenters stated that the non-U.S. affiliate conduit concept should be omitted from the Guidance.
Other commenters raised similar objections concerning the scope of the affiliate conduit provision. Goldman stated that the proposed description of an affiliate conduit was so broad that “an entity could be rendered a conduit by executing even a single trade despite the fact that the entity otherwise would be eligible for substituted compliance, or would not fall within Title VII's jurisdiction at all.”
IIB stated that the Commission should withdraw its proposal on affiliate conduits and instead, where there is clear circumvention, rely on its existing anti-evasion authority.
In the Proposed Guidance, the Commission explained that it believed the proposed application of Transaction-Level Requirements was necessary because, “given the nature of the relationship between the conduit and the U.S. person, the U.S. person is directly exposed to risks from and incurred by” the affiliate conduit.
For purposes of this policy statement, the Commission is clarifying that an affiliate conduit encompasses those entities that function as a conduit or vehicle for U.S. persons conducting swaps transactions with third-party counterparties. In response to comments received, the Commission is identifying some of the factors that the Commission believes are relevant to determining whether a non-U.S. person is an “affiliate conduit” of a U.S. person. As explained in greater detail below, modifications to the Proposed Guidance with regard to the term “affiliate conduit” are intended to respond to commenters' concerns about a lack of clarity on the scope of the term affiliate conduit and to better identify those non-U.S. affiliates whose swap activities, either individually or in the aggregate, have a direct and significant connection with activities in, or effect on, U.S. commerce as a result of their relationship with their U.S. affiliates. Specifically, the Commission is modifying the factors that might be relevant to the consideration of whether a non-U.S. affiliate of a U.S. person is an affiliate conduit by: (1) clarifying the meaning of “regularly enters into swaps,” and in particular, the activities of a non-U.S. counterparty that renders it an affiliate conduit; and (2) adding the concept of “control.”
As the Commission understands, it is common for large global companies to centralize their hedging or risk-management activities in one or more affiliates (informally referred to as a “treasury conduit” or “conduit”). Under this structure, the conduit may enter into swaps with its affiliates and then enter into offsetting swaps with third-parties. In other cases, the conduit may enter into swaps with third-parties as agent for its affiliates. In either case, the conduit functions as a vehicle by which various affiliates engage in swaps with third-parties (
Many business enterprises, including [Prudential Financial Inc., or “PFI”], elect to operate in a manner that assigns specific functions to related and commonly-controlled affiliates. With regard to swap transactions, it has long been our practice, as an enterprise-type company with separate legal entities that are commonly owned by PFI to use one affiliate, Prudential Global Funding LLC (“PGF”), to directly face the market as a “conduit” to hedge the net commercial and financial risk of the various operating affiliates within PFI. Under this practice, only PGF (
The Prudential Insurance Company of America (Feb. 17, 2011) at 2.
The Commission recognizes the significant benefits associated with a corporate group's use of a single entity to conduct the group's market-facing swap business. The Commission also believes, though, that in this situation the risks resulting from swaps of the entity that faces the market as a conduit on behalf of its affiliates in fact reside with those affiliates; that is, while the swaps are entered into by the conduit, through back-to-back swaps or other arrangements the conduit passes the risks and benefits of those swaps to its affiliates.
Further, in order to facilitate a consistent application of the term affiliate conduit and to mitigate any undue burden or complexity for market participants in assessing affiliate conduit status, the Commission clarifies that its policy contemplates that a market participant may reasonably rely on counterparty representations as to its non-U.S. affiliate conduit status.
Finally, the Commission notes in response to commenters that an affiliate conduit would not necessarily be guaranteed by its parent. As one market participant explained, “centralized hedging centers are generally evaluated as wholly-owned subsidiaries of the corporate group that do not require additional credit support, such as a parent guaranty or collateral.”
In summary, for the purposes of the Commission's interpretation of CEA section 2(i), the Commission believes that certain factors are relevant to considering whether a non-U.S. person is an “affiliate conduit.” Such factors include whether:
(i) the non-U.S. person is a majority-owned affiliate
[C]ounterparties to a swap are majority-owned affiliates if one counterparty directly or indirectly owns a majority interest in the other, or if a third party directly or indirectly owns a majority interest in both counterparties to the swap, where `majority interest' is the right to vote or direct the vote of a majority of a class of voting securities of an entity, the power to sell or direct the sale of a majority of a class of voting securities of an entity, or the right to receive upon dissolution or the contribution of a majority of the capital of a partnership.
(ii) the non-U.S. person is controlling, controlled by or under common control
For these purposes, we interpret control to mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise. This is consistent with the definition of “control” and “affiliate” in connection with Exchange Act rules regarding registration statements.
77 FR 30631 n. 437, and
[I]f a parent entity controls two subsidiaries which both engage in activities that would cause the subsidiaries to be covered by the dealer definitions, then each subsidiary must aggregate the swaps or security-based swaps that result from both subsidiaries' dealing activities in determining if either subsidiary qualifies for the
(iii) the financial results of the non-U.S. person are included in the consolidated financial statements of the U.S. person; and
(iv) the non-U.S. person, in the regular course of business, engages in swaps with non-U.S. third-party(ies) for the purpose of hedging or mitigating risks faced by, or to take positions on behalf of, its U.S. affiliate(s), and enters into offsetting swaps or other arrangements with its U.S. affiliate(s) in order to transfer the risks and benefits of such swaps with third-party(ies) to its U.S. affiliates.
This section discusses the Commission's policy on the application of the Category B Transaction-Level Requirements to swaps in which at least one of the parties to the swap is a registered swap dealer or MSP. As noted earlier, the Category B Transaction Level Requirements pertain to external business conduct standards which the Commission adopted pursuant to CEA section 4s(b) as a Category B Transaction-Level Requirement.
Consistent with the Proposed Guidance, the Commission will generally interpret CEA section 2(i) so that the Category B Transaction-Level Requirements (
In considering whether Category B Transaction-Level Requirements are applicable, the Commission would generally consider whether the swap is with a:
(i) U.S. swap dealer or U.S. MSP (including affiliates of non-U.S. persons);
(ii) foreign branch of a U.S. bank that is a swap dealer or MSP; or
(iii) non-U.S. swap dealer or non-U.S. MSP (including an affiliate of a U.S. person).
Specifically, as explained more below, where a swap is with a U.S. swap dealer or U.S. MSP, the parties to the swap generally should be subject to the Category B Transaction-Level Requirements in full, regardless of whether the other counterparty to the swap is a U.S. person or a non-U.S. person. However, in the case of a foreign branch of a U.S. bank that is a swap dealer or MSP, or a non-U.S. swap dealer or non-U.S. MSP, the parties to the swap should generally only be subject to the Category B Transaction-Level Requirements when the counterparty to the swap is a U.S. person (other than a foreign branch of a U.S. bank that is a swap dealer or MSP). Conversely, under the Commission's interpretation of 2(i), where a swap is between a non-U.S. swap dealer or non-U.S. MSP (including an affiliate of a U.S. person) and a non-U.S. counterparty (regardless of whether the non-U.S. counterparty is a guaranteed or conduit affiliate), the parties to the swap would not be expected to comply with the Category B Transaction-Level Requirements. The reasons for the Commission's policies are discussed below.
The application of the Category B Transaction-Level Requirements is summarized in Appendix E to this Guidance, which should be read in conjunction with the rest of this Guidance.
As explained above, where a swap is with a U.S. swap dealer or U.S. MSP (including an affiliate of a non-U.S. person), the Commission's policy is that the parties to the swap should be subject
In the case of a swap with a foreign branch of a U.S. bank that is a swap dealer or MSP, the Commission's policy is that the Category B Transaction-Level Requirements should apply only if the counterparty to the swap is a U.S. person (other than a foreign branch of a U.S. bank that is a swap dealer or MSP).
The Commission believes that where a swap is between a foreign branch of a U.S. bank that is a swap dealer or MSP
However, where the swap is between a foreign branch of a U.S. bank that is a swap dealer or MSP, on the one hand, and a non-U.S. person on the other (whether or not such non-U.S. person is a guaranteed or conduit affiliate), the Commission believes that the interests of the foreign jurisdiction in applying its own transaction-level requirements to the swap are sufficiently strong that the Category B Transaction-Level Requirements generally should not apply under section 2(i). In this case, even though the Commission considers a foreign branch of a U.S. bank that is a swap dealer or MSP to be a U.S. person, the Commission believes that because the counterparty is a non-U.S. person and the swap takes place outside the United States, foreign regulators may have a relatively stronger supervisory interest in regulating and enforcing sales practices related to the swap. Therefore, in light of international comity principles, the Commission believes that application of the Category B Transaction-Level Requirements may not be warranted in this case. Therefore, under the Commission's interpretation of section 2(i), the parties to the swap generally would not be expected to comply with the Category B Transaction-Level Requirements.
The Commission believes that, in the context of the Category B Transaction-Level Requirements, the same reasoning also should apply to a swap between two foreign branches of U.S. banks that are each swap dealers or MSPs. Just as the Commission would have a strong supervisory interest in regulating and enforcing sales practices associated with activities taking place within the United States, the foreign regulators would have a similar claim to overseeing sales practices occurring within their jurisdiction.
Accordingly, the Commission interprets CEA section 2(i) so that where a swap is between the foreign branch of a U.S. bank that is a swap dealer or MSP, on the one hand, and either a non-U.S. person or a foreign branch of a U.S. bank that is a swap dealer or MSP, on the other, the parties to the swap generally would not be expected to comply with the Category B Transaction-Level Requirements.
Under the Commission's interpretation of 2(i), where a swap is between a non-U.S. swap dealer or non-U.S. MSP (including an affiliate of a U.S. person), on the one hand, and a U.S. person, on the other, the parties to the swap generally would be expected to comply with the Category B Transaction-Level Requirements.
The Commission observes that, where a swap between a non-U.S. swap dealer and a U.S. person is executed anonymously on a registered DCM or SEF and cleared by a registered DCO,
Because a registered FBOT is analogous to a DCM, the Commission is of the view that the requirements
Conversely, under the Commission's interpretation of 2(i), where a swap is between a non-U.S. swap dealer or non-U.S. MSP (including an affiliate of a U.S. person) and a non-U.S. counterparty (regardless of whether the non-U.S. counterparty is a guaranteed or conduit affiliate), the parties to the swap would not be expected to comply with the Category B Transaction-Level Requirements. The Commission believes that regulators may have a relatively stronger supervisory interest in regulating the Category B Transaction-Level Requirements related to swaps between non-U.S. persons taking place outside the United States than the Commission, and that therefore applying the Category B Transaction-Level Requirements to these transactions may not be warranted. The Commission notes that just as the Commission would have a strong supervisory interest in regulating and enforcing the Category B Transaction-Level Requirements associated with activities taking place in the United States, foreign regulators would have a similar claim to overseeing sales practices for swaps occurring within their jurisdiction.
For the reasons stated in section b above, under the Commission's interpretation of section 2(i), where a swap is between a non-U.S. swap dealer or non-U.S. MSP (including an affiliate of a U.S. person), on the one hand, and the foreign branch of a U.S. bank that is a swap dealer or MSP, on the other, the parties to the swap generally would not be expected to comply with the Category B Transaction-Level Requirements.
As noted previously, under the 2(i) interpretations, substituted compliance is generally not expected to be applicable to the Category B Transaction-Level Requirements under this Guidance.
This section sets forth the Commission's general policy on application of the CEA's swaps provisions and Commission regulations to swap counterparties that are not registered as swap dealers or MSPs (“non-registrants”), including the circumstances under which the counterparties would be eligible for substituted compliance.
Several of the CEA's swaps provisions and Commission regulations—namely, those relating to required clearing, trade execution, real-time public reporting, Large Trader Reporting, SDR Reporting, and swap data recordkeeping (collectively, the “Non-Registrant Requirements”)
Section 1 discusses the Commission's policy under CEA section 2(i) with regard to the application of the Non-Registrant Requirements to cross-border swaps between two non-registrants where one (or both) of the counterparties to the swap is a U.S. person. Substituted compliance is not applicable where one (or both) swap counterparties is a U.S. person.
Section 2 discusses the Commission's policy under CEA section 2(i) with regard to the application of the Non-Registrant Requirements to cross-border swaps between two non-registrants where both counterparties to the swap are non-U.S. persons. The eligibility of various counterparties to such swaps for substituted compliance is also addressed in section 2.
The application of the specified Dodd-Frank provisions and Commission regulations specified below to swaps between counterparties that are neither swap dealers nor MSPs is summarized in Appendix F to this Guidance, which should be read in conjunction with the rest of this Guidance.
As noted in the Proposed Guidance, to manage risks in a global economy, U.S. persons may need to, and frequently do, transact swaps with both U.S. and non-U.S. counterparties. The swap activities of U.S. persons, particularly those with global operations, frequently occur outside of U.S. borders.
With regard to cross-border swaps between two non-registrants where one (or both) of the counterparties to the swap is a U.S. person (including an affiliate of a non-U.S. person), the Commission's interprets CEA 2(i) such that the parties to the swap generally would be expected to comply with the Non-Registrant Requirements. As the Commission noted in the Proposed Guidance, the risks to U.S. persons and the U.S. financial system do not depend on the location of the swap activities of U.S. persons.
As noted in section D above, the Dodd-Frank Act's required clearing and swap processing requirements protect counterparties from the counterparty credit risk of their original counterparties, which in turn, protects against the accumulation of systemic risk because of the risk mitigation benefits offered by central clearing. Similarly, the trade execution and real-time public reporting requirements serve to promote both pre- and post-trade transparency which, in turn, enhance price discovery and decrease risk. Together, these requirements serve an essential role in protecting U.S. market participants and the general market against financial losses. The Commission cannot fully and responsibly fulfill its charge to protect the U.S. markets and market participants through a substituted compliance regime where one counterparty is a U.S. person. Accordingly, the Commission's policy is to expect full compliance with the Non-Registrant Requirements relating to required clearing, trade execution, and real-time public reporting with regard to any swaps between non-registrants where one or both of the counterparties is a U.S. person. For substantially the same reasons, application of U.S. requirements in these transactions is a reasonable exercise of U.S. jurisdiction under principles of foreign relations law.
Large Trader Reporting provides the Commission with data regarding large positions in swaps with a direct or indirect linkage to specified U.S.-listed physical commodity futures contracts, in order to enable the Commission to implement and conduct effective surveillance of these economically equivalent swaps and futures. To facilitate the monitoring of trading across the swaps and futures markets, swaps positions must be converted to futures equivalents for reporting purposes; reportable thresholds are also defined in terms of futures equivalents. As discussed in further detail in section G above, in light of the very specific interest of the Commission in conducting effective surveillance of markets in swaps that have been determined to be economically equivalent to U.S. listed physical commodity futures contracts, and given the anticipated impediments to obtaining directly comparable positional data through any foreign swap data reporting regime, the Commission's policy is to construe CEA section 2(i) in a manner that would not recognize substituted compliance in lieu of compliance with Large Trader Reporting.
As noted in section E, data reported under the SDR Reporting rules provide the Commission with information necessary to better understand and monitor concentrations of risk, as well as risk profiles of individual market participants. Swap data recordkeeping is an important component of an effective internal risk management process. Therefore, the Commission's policy is that generally both SDR Reporting and swap data recordkeeping should apply in full where one of the counterparties to a swap between two non-registrants (non-swap dealers or non-MSPs) is a U.S. person.
As noted above, the clearing of swaps through a DCO mitigates counterparty credit risk and collateralizes the credit exposures posed by swaps. Section 2(h)(1) of the CEA requires a swap to be submitted for clearing to a registered DCO or a DCO that is exempt from registration under the CEA, if the Commission has determined that the swap is required to be cleared.
With respect to the clearing requirement, the Commission has previously addressed both the scope and process of a comparability determination, which also would apply to the extent that substituted compliance is applicable under this Guidance.
As for the process for determining comparability of a foreign jurisdiction's clearing mandate, the Commission has also previously stated that it will review the comparability and comprehensiveness of a foreign jurisdiction's clearing mandate by reviewing: (i) The foreign jurisdiction's laws and regulations with respect to its mandatory clearing regime (
The Commission is also of the view that where a swap is executed anonymously on a registered DCM or SEF between two non-registrants and cleared by a registered DCO, and one (or both) of the counterparties to the swap is a U.S. person, neither party to the swap should be required to comply with the Non-Registrant Requirements that otherwise apply to the swap, with the exception of Large Trader Reporting,
Further, the Commission is of the view that where a swap is executed anonymously between two non-registrants on a registered FBOT and cleared and one (or both) of the counterparties to the swap is a U.S. person, neither party to the swap (as is the case when the swap is executed anonymously on a DCM) should be required to comply with the Non-Registrant Requirements that otherwise apply to the swap, with the exception of Large Trader Reporting, SDR Reporting and swap data recordkeeping. The Commission notes that in this case, the registered FBOT, as would the DCM, will fulfill the required clearing and trade execution requirements
The Commission expects that derivatives markets and regulatory regimes will continue to evolve in the future. In order to ensure a level playing field, promote participation in transparent markets, and promote market efficiency, the Commission will, through staff no action letters, extend appropriate time-limited transitional relief to certain European Union-regulated multilateral trading facilities (MTFs), in the event that the Commission's trade execution requirement is triggered before March 15, 2014. Such relief would be available through March 15th for MTFs that have multilateral trading schemes, a sufficient level of pre- and post-trade price transparency, non-discriminatory access by market participants, and an appropriate level of oversight. In addition, the Commission will consult with the European Commission in giving consideration to extending regulatory relief to European Union-regulated trading platforms that are subject to requirements that achieve regulatory outcomes that are comparable to those achieved by the requirements for SEFs. Both parties will assess progress in January 2014.
As noted above, where a swap is between two non-U.S. persons and neither counterparty is required to register as a swap dealer or MSP, the Commission proposed interpreting CEA section 2(i) so as not to apply the Non-Registrant Requirements,
Section a discusses the Commission's policy on application of Large Trader Reporting to swaps between two non-registrants that are not U.S. persons. Section b discusses the application of the other Non-Registrant Requirements to swaps between two non-registrants that are not U.S. persons, where each of the counterparties to the swap is a guaranteed or conduit affiliate, and the availability of substituted compliance for the parties to such swaps. Section c discusses the Commission's policy on application of the Non-Registrant Requirements other than Large Trader Reporting to swaps between non-registrants that are not U.S. persons where neither or only one of the counterparties is a guaranteed or conduit affiliate.
Large Trader Reporting requires routine positional reports from clearing members in addition to clearing organizations and swap dealers. As is the case with swap dealers, routine reports are required from clearing members to the extent that they hold significant positions in the swaps subject to Large Trader Reporting—swaps that are directly or indirectly linked to specified U.S.-listed physical commodity futures contracts. Routine reporting provides essential visibility into the trading activity of large market participants, which enables the Commission to conduct effective surveillance of markets in swaps and futures that have been determined to be economically equivalent. Given the
Large Trader Reporting also establishes recordkeeping requirements for traders with significant positions in the covered physical commodity swaps. Given the vital role that Large Trader Reporting plays in ensuring that the Commission has access to comprehensive data regarding trading activity in swaps linked to U.S. futures, the Commission's policy, in light of its interpretation of CEA section 2(i), is that non-U.S. persons with positions that meet the prescribed recordkeeping thresholds should comply with the prescribed recordkeeping requirements. The Commission notes that traders, which are not swap dealers or clearing members with routine Large Trader Reporting obligations, may generally keep books and records regarding their transactions in the covered physical commodity swaps and produce them for inspection by the Commission in the record retention format that such traders have developed in the normal course of their business operations.
In contrast to the Proposed Guidance, where a swap is between two non-registrants that are not U.S. persons, and each of the counterparties to the swap is a guaranteed or conduit affiliate,
The Commission has not interpreted CEA section 2(i) so as to include a guaranteed or conduit affiliate in the interpretation of the term “U.S. person” solely because of the guarantee or affiliation. Where each of the counterparties to the swap are non-registrants that are guaranteed or conduit affiliates, the Commission believes that the risks to U.S. persons and to the U.S. financial system sufficiently increase so that the additional measure of applying the Non-Registrant Requirements to the swap is warranted (but with substituted compliance available, to the extent applicable).
Therefore, where a swap is between two non-registrants that are guaranteed or conduit affiliates, the Commission believes that the swap has a “direct and significant connection with activities in, or effect on, commerce of the United States” within the meaning of CEA section 2(i) so that certain Entity-Level and Transaction-Level Requirements would apply to the swap counterparties. Consistent with section 2(i), however, the Commission's policy generally is to make the parties to the swap eligible for substituted compliance (except with regard to Large Trader Reporting, and provided that SDR Reporting would be eligible for substituted compliance only if the Commission has direct access to all of the reported swap data elements that are stored at a foreign trade repository).
With respect to swaps between two non-registrants where neither or only one party is a guaranteed or conduit affiliate, the Commission's policy is that the parties to the swap generally should not be expected to comply with the Non-Registrant Requirements, except as described below.
As discussed above, where a counterparty to a swap is a guaranteed or conduit affiliate, the risks to U.S. persons and to the U.S. financial system increase. In the case of guarantees by U.S. persons, if there is a default by the non-U.S. person, the U.S. guarantor would be held responsible to settle the obligations. In the case of affiliate conduits, a non-U.S. affiliate could effectively operate as a “conduit” for the U.S. person, and could be used to execute swaps with counterparties in foreign jurisdictions, outside the Dodd-Frank Act regulatory regime. Nevertheless, the Commission also recognizes that foreign jurisdictions may have an interest in regulating swaps between two non-registrants where both counterparties to the swap are non-U.S. persons. Therefore, consistent with international comity principles, the Commission would generally expect the parties to the swap only to comply with (to the extent that the Inter-Affiliate Exemption is elected), the conditions of the Inter-Affiliate Exemption, including the treatment of outward-facing swaps condition in Commission regulation 50.52(b)(4)(i), and Large Trader Reporting. The Commission believes that this policy strikes the right balance between U.S. interests in regulating such a swap and the interest of foreign regulators.
The First Category of Entity-Level Requirements includes capital adequacy, chief compliance officer, risk management, and swap data recordkeeping (except certain aspects of swap data recordkeeping relating to complaints and sales materials).
Section 4s(e)(2)(B) of the CEA specifically directs the Commission to set capital requirements for swap dealers and MSPs that are not subject to the capital requirements of U.S. prudential regulators (hereinafter referred to as “non-bank swap dealers or
Section 4s(k) requires that each swap dealer and MSP designate an individual to serve as its chief compliance officer (“CCO”) and specifies certain duties of the CCO.
Section 4s(j) of the CEA requires each swap dealer and MSP to establish internal policies and procedures designed to, among other things, address risk management, monitor compliance with position limits, prevent conflicts of interest, and promote diligent supervision, as well as maintain business continuity and disaster recovery programs.
CEA section 4s(f)(1)(B) requires swap dealers and MSPs to keep books and records for all activities related to their business.
The Second Category of Entity-Level Requirements includes SDR Reporting, certain aspects of swap data recordkeeping relating to complaints and marketing and sales materials under Commission regulations 23.201(b)(3) and 23.201(b)(4) and Large Trader Reporting.
CEA section 2(a)(13)(G) requires all swaps, whether cleared or uncleared, to be reported to a registered SDR.
CEA section 4s(f)(1) requires swap dealers and MSPs to “make such reports as are required by the Commission by rule or regulation regarding the transactions and positions and financial condition of the registered swap dealer or major swap participant.”
CEA section 4t
The Transaction-Level Requirements cover a range of Dodd-Frank requirements: some of the requirements more directly address financial protection of swap dealers (or MSPs) and their counterparties; others address more directly market efficiency and/or price discovery. Further, some of the Transaction-Level Requirements can be classified as Entity-Level Requirements and applied on a firm-wide basis across all swaps or activities. Nevertheless, in the interest of comity principles, the Commission believes that the Transaction-Level Requirements may be applied on a transaction-by-transaction basis.
Section 2(h)(1) of the CEA requires a swap to be submitted for clearing to a DCO if the Commission has determined that the swap is required to be cleared, unless one of the parties to the swap is eligible for an exception from the clearing requirement and elects not to clear the swap.
Commission regulations implementing the first designations of swaps for required clearing were published in the
Regulation 50.4 establishes required clearing for certain classes of swaps. Currently, those classes include, for credit default swaps: Specified series of untranched North American CDX indices and European iTraxx indices; and for interest rate swaps: Fixed-to-floating swaps, basis swaps, forward rate agreements referencing U.S. Dollar, Euro, Sterling, and Yen, and overnight index swaps referencing U.S. Dollar, Euro, and Sterling. Each of the six classes is further defined in Commission regulation 50.4. Swaps that have the specifications identified in the regulation are required to be cleared and must be cleared pursuant to the rules of any eligible DCO unless an exception or exemption specified in the CEA or the Commission's regulations applies.
Generally, if a swap is subject to Section 2(h)(1)(A) of the CEA and part 50 of the Commission's regulations, it must be cleared through an eligible DCO, unless: (i) One of the counterparties is eligible for and elects
Closely connected with the clearing requirement are the following swap processing requirements: (i) Commission regulation 23.506, which requires swap dealers and MSPs to submit swaps promptly for clearing; and (ii) Commission regulations 23.610 and 39.12, which establish certain standards for swap processing by DCOs and/or swap dealers and MSPs that are clearing members of a DCO.
Section 4s(e) of the CEA requires the Commission to set margin requirements for swap dealers and MSPs that trade in swaps that are not cleared.
Integrally linked to the clearing requirement is the trade execution requirement, which is intended to bring the trading of mandatorily cleared swaps that are made available to trade onto regulated exchanges or execution facilities. Specifically, section 2(h)(8) of the CEA provides that unless a clearing exception applies and is elected, a swap that is subject to a clearing requirement must be executed on a DCM or SEF, unless no such DCM or SEF makes the swap available to trade.
CEA section 4s(i) requires each swap dealer and MSP to conform to Commission standards for the timely and accurate confirmation, processing, netting, documentation and valuation of swaps.
CEA section 4s(i) directs the Commission to prescribe regulations for the timely and accurate processing and netting of all swaps entered into by swap dealers and MSPs. Pursuant to CEA section 4s(i), the Commission adopted regulations (23.502 and 23.503), which require swap dealers and MSPs to perform portfolio reconciliation and compression, respectively, for all swaps.
Section 2(a)(13) of the CEA also directs the Commission to promulgate rules providing for the public availability of swap transaction and pricing data on a real-time basis.
Section 4s(i) of the CEA
Pursuant to section CEA 4s(g), the Commission adopted regulation 23.202, which requires swap dealers and MSPs to maintain daily trading records, including records of trade information related to pre-execution, execution, and post-execution data that is needed to conduct a comprehensive and accurate trade reconstruction for each swap. The final rule also requires that records be kept of cash or forward transactions used to hedge, mitigate the risk of, or offset any swap held by the swap dealer or MSP.
Pursuant to CEA section 4s(h), the Commission has adopted external business conduct rules, which establish business conduct standards governing the conduct of swap dealers and MSPs in dealing with their counterparties in entering into swaps.
The following appendices do not constitute a part of the Interpretive Guidance and Policy Statement itself.
On this matter, Chairman Gensler and Commissioners Chilton and Wetjen voted in the affirmative; Commissioner O'Malia voted in the negative.
I support the Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations (Guidance) and the related phase-in exemptive order also being adopted today. With this Commission action another important step has been taken to make swaps market reform a reality.
This Guidance is being adopted just shy of the third anniversary of President Obama signing the Dodd-Frank Act, and that law was historic. It was an historic answer to an historic problem: the near collapse of the American economy driven, in part, by the unregulated derivatives marketplace. Congress and the President were clear in their intention to bring transparency to this marketplace, to lower risk to the public, and to ensure the regulation of swap dealers and major swap participants.
In 2008, when both the financial system and the financial regulatory system failed the public, Americans paid the price through the crisis with their jobs, their pensions, and their homes. We lost 8 million jobs in that crisis and thousands of businesses shuttered. The swaps market was central to the crisis and financial institutions operating complicated swaps businesses and offshore entities nearly toppled the economy. Congress responded. Americans are remarkably resilient—but the public really does expect us to learn from the lessons of the crisis, and to do everything possible to prevent this from happening to any of us again.
It's pretty straightforward, I think. Even though we oversee, here at the CFTC, a complex and sometimes difficult to understand market (my mom consistently asks me, “Gary, what are swaps?”), the questions the American people are looking for us to answer are simple: Have we lowered risk? Have we brought transparency to these markets? Have we promoted competition and openness in these markets so that end users can get the greatest benefit when they seek to lower their risk and focus on what they do well—which is employing people, innovating and moving our economy forward? That is why reform matters.
Five years after the crisis and three years after Dodd-Frank passed, market participants are coming into compliance with the common sense reforms that Congress and the President laid out. Through Dodd-Frank and the rules that this agency has put in place, no longer will the markets be opaque and dark, and we will have transparency in the markets. In fact, throughout this year, for the first time, the public and regulators have benefitted from reporting to swap data repositories and reporting to the public. And later this year, starting actually in August, facilities called swap execution facilities will start so that the public can benefit from greater openness and competition before the transaction occurs. And by the end of this year, there are likely to be trade execution mandates for interest rate and credit derivative index products, as well.
Central clearing became required for the broader market earlier this year, with key phase in dates to come this Fall and Winter, as well. We have 80 swap dealers, and, yes, two major swap participants, now provisionally registered. As part of the responsibilities accompanying registration, they're responsible for sales practice, record keeping and other business conduct requirements that help lower the risk to the public.
Yesterday, we took another significant step when we and the European Commission announced a path forward regarding joint understandings regarding the regulation of cross border derivatives. I want to publicly thank Commissioner Michel Barnier, his Director General Jonathan Faull, and their staffs, the staffs at the European Securities Market Authority, and Steven Maijoor's leadership, for collaborating throughout the reform process. This was a significant step forward in harmonizing and giving clarity to the markets as to when there might be jurisdictional overlaps with regard to this reform.
Today, we are considering two important actions, the Guidance, as well as a related
Similarly, if it's an EU financial institution and it has some guaranteed affiliate in the U.S. or overseas that gets into trouble, that risk can flow back to their shores. That's why, together both we and Europe recognize the importance of covering guaranteed affiliates, whether they're guaranteed affiliates of a U.S. person or of an EU person.
There's no question to me, at least, that the words of Dodd-Frank addressed this (i.e., risk importation) when they said that a direct and significant connection with activities and/or effect on commerce in the United States covers these risks that may come back to us.
I want to publicly thank Chairman Barney Frank along with Spencer Bachus, Frank Lucas, and Collin Peterson, and their staffs for reaching out to the CFTC and the public to ask how to best address offshore risks that could wash back to our economy in Dodd-Frank.
In addition, we should not forget the actual events over the past several years that remind us of the risks to the U.S. that can be posed by offshore entities:
AIG nearly brought down the U.S. economy. Lehman Brothers had 3,300 legal entities, including a London affiliate that was guaranteed here in the U.S., and it had 130,000 outstanding swap transactions. Citigroup had structured investment vehicles that were set up in the Cayman Islands, run out of London, and yet were central to not one, but two bailouts of that institution. Bear Stearns, in 2007 had two sinking hedge funds that had to be bailed out by Bear Stearns—and, yes, those hedge funds were organized in the jurisdiction of the Cayman Islands.
More than a decade earlier, I was working in my position as Assistant Secretary of the United States Department of the Treasury. I found myself making a call from Connecticut to then Treasury Secretary Robert Rubin to report that Long Term Capital Management's $1.2 trillion swaps book was not only going to go down within a day or two, but that the business—that we thought was in Connecticut—was actually incorporated in the Cayman Islands as a PO Box facility.
Even last year, we had yet another reminder that branches of big U.S. banks can bring risk back to the US. Even though they were not the risks as large as I've just related, JPMorgan Chase's Chief Investment Office's credit default swaps were executed primarily in the U.K. branch.
Each of these examples demonstrated a direct and significant connection with activities and/or an effect on commerce in the United States. Congress knew this painful history when it provided the cross border provisions of swaps market reform. And as market participants asked the CFTC to provide interpretive guidance on Congress's word, I believe that we have had to keep this painful history in mind. Two and a half years ago, the CFTC started working on guidance, which was published for notice and comment in June 2012, and for which we sought further input on in December 2012. We have greatly benefitted from this public input. The Guidance the Commission will adopt today incorporates the public's input and, I think, appropriately interprets the cross border provisions of Dodd-Frank.
There are four areas that I think really are important:
First, the CFTC interprets the cross-border provisions to cover swaps between non U.S. swap dealers and guaranteed affiliates of U.S. Persons, as well as swaps between two guaranteed affiliates that are not swap dealers. The guidance does, as was proposed, recognize and embrace the concept of substituted compliance where there are comparable and comprehensive rules abroad. But the history of AIG, Lehman Brothers, Citigroup and the others, and of guaranteed affiliates, is a strong lesson that Congress knew when we were approaching these issues.
Second, the definition of U.S. person in this guidance captures offshore hedge funds and collective investment vehicles that have their principal place of business here in the U.S., or that are majority owned by U.S. persons. Addressing ourselves to guidance, and yet forgetting the lessons of Long Term Capital Management or Bear Stearns, is not in my opinion what Congress wanted.
Third, under the guidance, foreign branches, like the JPMorgan's U.K. branch, of U.S. swap dealers may also comply with Dodd-Frank through substituted compliance if they are appropriately ring-fenced—that is, they are truly branches where employees and the booking and the taxes are actually offshore in the foreign branch. The Guidance allows, if there are comparable and comprehensive regimes overseas and supervisory authorities overseas looking at those branches, that those branches can avail themselves to substituted compliance in the manner offshore guaranteed affiliates would.
Lastly, the guidance provides that swap dealers, foreign or U.S., transacting with U.S. persons (whether they be in New Jersey, Maryland, Michigan, Arkansas, Iowa—I have to get all the right states, recognizing where my fellow Commissioners come from) anywhere in the United States, must comply with Dodd-Frank's swap market reform. The guidance does provide, though, that U.S. Persons can meet international people anonymously, and not only on our exchanges called designated contract markets, but also on the new swap execution facilities, as well as foreign boards of trade. International parties trading on those platforms do not have to worry about whether those swaps might make them a swap dealer, or whether they need to worry about certain transaction level requirements. And I think that was important to maintain and promote the liquidity of these three very important types of platforms—foreign boards of trade, swap execution facilities, and designated contract markets.
In conclusion, I will be voting in support of the Guidance and the related phase-in exemptive order also being adopted today. I'll say more about the exemptive order in my statement of support for that document, but I think these are both critical steps for the Commission and swaps reform. They add to the approximately 56 final guidance and rules that this Commission has adopted. We're well over 90 percent through the various rule and guidance writing. And the markets are probably well towards half way implementing these reforms. I have a deep respect for how much work market participants are doing to come into compliance.
So now, 3 years after the passage of financial reform, and a full year after the Commission proposed guidance with regard to the cross border application of reform, it is time for reforms to properly apply to and cover those activities that, as identified by Congress in section 722(d) of the Dodd-Frank Act, have “a direct and significant connection with activities in, or effect on, commerce of the United States.” With the additional transitional phase-in period provided by this Order, it is now time for the public to get the full benefit of the transparency and the measures to reduce risk included in Dodd Frank reforms.
I respectfully dissent from the Commodity Futures Trading Commission's (the “Commission” or “CFTC”) approval of its interpretive guidance and policy statement (“Guidance”) regarding the cross-border application of the swaps provisions of the Commodity Exchange Act (“CEA”), as well as from the Commission's approval of a related exemptive order (“Exemptive Order”).
When I voted in July 2012 to issue for public comment the proposed interpretive guidance and policy statement (“Proposed Guidance”),
Like the Proposed Guidance, the Guidance: (1) Fails to articulate a valid statutory foundation for its overbroad scope and inconsistently applies the statute to different activities; (2) crosses the line between interpretive guidance and rulemaking; and (3) gives insufficient consideration to international law and comity. These shortcomings are compounded by serious procedural flaws in the Commission's treatment of international harmonization and substituted compliance, as well as in its issuance of the Exemptive Order.
Section 2(i) of the CEA
The Guidance, however, fails to do so. Instead, it treats section 2(i) as a ready tool to expand authority rather than as a limitation. The statutory analysis section of the Guidance is insufficient to support the broad sweep of extraterritorial activities that the Guidance contemplates would fall under the Commission's jurisdiction, relying heavily on a comparison to somewhat similar statutory language whose wholly different context renders the comparison unpersuasive. The Guidance makes no mention of statutes that may be more analogous to the CEA, such as the securities or banking laws.
I would also like to point out that CEA section 2(i) contains a second clause, which allows for the limited application of the Commission's swap rules to activities outside the United States when they violate the Commission's anti-evasion rules.
With such an unsound foundation for the Commission's extraterritorial authority under the “direct and significant” standard, I am not surprised that the Guidance often applies section 2(i) of the CEA inconsistently and arbitrarily. Examples of inconsistency abound.
For instance, just as with the Proposed Guidance, the Guidance does not provide a basis for its reasoning that all Transaction-Level Requirements described in the Guidance satisfy the “direct and significant” standard under section 2(i). As I stated in my concurrence to the Proposed Guidance, trade execution and real-time public reporting requirements, although important for transparency purposes, do not raise the same systemic risk concerns that clearing and margining for uncleared swaps do. The Guidance acknowledges this point, but does not go on to sufficiently explain why they should be, and are, treated equally. The Guidance also acknowledges that clearing and margining, because of their implications for systemic risk, could be classified as Entity-Level Requirements, but it does not explain why are they are not. The Guidance's failure to give meaning to the “direct and significant” standard in its discussion of these requirements is glaring.
Inconsistent application can also be seen within a specific Transaction-Level Requirement, for example reporting to swap data repositories (“SDRs”). The Guidance allows non-U.S. swap dealers (“SDs”) and major swap participants (“MSPs”) to utilize substituted compliance for SDR reporting of their swaps with non-U.S. counterparties, but it does not allow for substituted compliance for non-U.S. SD and MSPs' trades with U.S. counterparties. Again, the Commission fails here to give real meaning to “direct and significant” in order to adequately explain its reasoning for this distinction. The rationale is even weaker given the fact that substituted compliance is available for swaps with non-U.S. counterparties only under the condition that the Commission has direct access to the relevant data at the foreign trade repository. In either case, the Commission will have direct access to the relevant data, whether substituted compliance is available or not. This raises the question: if the outcome is the same, why is the distinction made? If it is different, the Guidance does not explain how or why—despite requiring data at foreign trade repositories to be essentially the same as data at domestic SDRs, before the Commission even contemplates substituted compliance for SDR reporting.
Yet another example of inconsistent application of section 2(i) involves the requirement of physical commodity large swaps trader reporting (“Large Trader Reporting”). In contrast to SDR reporting, the Guidance does not allow substituted compliance for Large Trader Reporting, even for swaps between a non-U.S. registrant and a non-U.S. counterparty. The Commission's flimsy rationale is that Large Trader Reporting involves data conversion to “futures equivalent” units, and that it would cost too much time and resources for the Commission to conduct this conversion on data that it could access in a foreign trade repository. Here again, the “direct and significant” standard is nowhere to be found. Moreover, the Commission overstates the burden of the “futures equivalent” conversion and, more generally, the significance of Large Trader Reporting in its oversight duties, while understating the availability of data collected through SDR reporting, with its eligibility for substituted compliance, to achieve the same regulatory objectives.
The imposition of requirements on market participants raises another of my major concerns with the Guidance. I strongly disagree with the Commission's decision to issue its position on the cross-border application of its swaps regulations in the form of “interpretive guidance” instead of promulgating a legislative rule under the Administrative Procedure Act (“APA”).
Simply putting the guise of “guidance” on this document does not change its content or consequences. Where agency action has the practical effect of binding parties within its scope, it has the force and effect of law, regardless of the name it is given.
There are important policy and legal considerations that weigh strongly in support of rulemaking in accordance with the APA. Not only do the safeguards enacted by Congress in the APA ensure fair notice and public participation, they help to ensure reasoned decision-making and accountability. In addition, the APA requires that courts take a “hard look” at agency action.
Under the leading formulation of this doctrine, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choices made.' ” The court “consider[s] whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” In addition, the agency may not “entirely fail[ ] to consider an important aspect of the problem,” may not “offer[ ] an explanation for its decision that runs counter to the evidence before the agency,” nor offer an explanation that is “so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” The agency must also relate the factual findings and expected effects of the regulation to the purposes or goals the agency must consider under the statute as well as respond to salient criticisms of the agency's reasoning.
Stack, Kevin M.,
By issuing “interpretive guidance” instead of rulemaking, the Commission has also avoided analyzing the costs and benefits of its actions pursuant to section 15(a) of the CEA,
In my concurrence to the Proposed Guidance, I suggested that the Commission should at least prepare a report analyzing the costs attributable to the breadth of the Commission's new authority under CEA section 2(i). I am disappointed, but not surprised, that the Commission has not taken up my suggestion.
Also in my concurrence to the Proposed Guidance, I pointed out that the Commission's approach gave insufficient consideration to principles of international comity. The Guidance suffers from the same shortcoming.
The Commission does describe principles of international comity in the Guidance, as it did in the Proposed Guidance. However, mere citation is meaningless if unaccompanied by adherence. With an interpretation of section 2(i) that essentially views the Commission's jurisdiction as boundless, roping in all transactions with U.S. persons regardless of the location or the regulations that foreign regulators may have in place, the reality is that the Commission's approach is unilateral and does not give adequate consideration to comity principles.
These principles are crucial given the global, interconnected nature of today's swaps markets. Properly considering these principles—in addition to indicating respect for the international system and the legitimate interests of other jurisdictions—strengthens, not weakens, the Commission's ability to effectively regulate swaps markets.
In order to implement principles of international comity and develop a harmonized global regulatory system that is both effective and efficient, I have consistently called for meaningful cooperation with foreign regulators. I initially did so in my concurrence to the Proposed Guidance, and the necessity of greater collaboration was subsequently driven home by the number and tone of comment letters on the Proposed Guidance submitted by foreign regulators.
I am pleased that over the past several months, this engagement has taken place and progress has been made toward harmonization. However, we are not where we need to be: many outstanding issues and questions remain, from data privacy concerns, to the implications of other jurisdictions still finalizing their regulations, to a lack of a clear, consistent and transparent framework for substituted compliance. It would have made sense for these issues to be addressed in the Guidance—but they are not. The looming July 12 expiration of the December exemptive order and the resulting time crunch cannot reasonably be cited as the reason for this failure, because July 12 is an artificial date; it could have been pushed back in order to reach the right outcome with the right process.
Instead, while we are moving toward a workable outcome on harmonization, the process by which we are getting there is patently unacceptable. The most glaring example of this flawed process is this week's publication of a Commission staff no-action letter allowing substituted compliance for certain of the Transaction-Level Requirements.
Unfortunately, this is not the first instance in recent times of staff no-action letters being used to issue Commission policy. Not only are they an improper tool to get around formal Commission action, their prolific use is a reflection of the ad-hoc, last-minute approach that has been far too prevalent lately at the Commission. I cannot emphasize this enough: the Commission must stop this approach and get back to issuing policy in a more formal, open and transparent manner.
In my discussions with fellow regulators abroad and international regulatory bodies, it is clear that there are varying degrees of reforms being developed and implemented in respective jurisdictions: some are comparable to U.S. regulations and some are less stringent, but there are some that exceed the Commission's own requirements. I would have preferred the Commission to take the past year following the release of the Proposed Guidance to engage our international colleagues and to involve the International Organization of Securities Commissions (“IOSCO”) in order to resolve the issue of harmonizing our rules. Under this approach, we could finalize our guidance upon completion of the international harmonization process, allowing us to take into account any shortcomings in that process. Instead, we
Given the way the Commission has proceeded up to this point, it is my hope that the harmonization work lying ahead will be undertaken in a more transparent manner and not done through the abused no-action process that lacks any formal Commission process or oversight. Further, I hope that the process of substituted compliance will offer the opportunity for other regulatory bodies to engage directly with the full Commission, so that we can better understand how our rules and theirs will work and can minimize the likelihood of regulatory retaliation and inconsistent, duplicative, or conflicting rules. I believe the Commission has worked too hard to develop principles and standards that will encourage greater transparency, open access to clearing and trading and improved market data to let them go to waste due to a lack of global regulatory harmonization.
I want to work with other home country regulators to ensure there is not an opportunity for entities to exploit regulatory loopholes. The stark reality is that this Commission is not the global regulatory authority and does not have the resources to support such a mission. Therefore, our best and most effective solution is to engage in a fully transparent discussion on substituted compliance and to do so immediately.
In an effort to mitigate the broad reach of the Guidance and accommodate its last-minute finalization, and in a moment of humility, the Commission has agreed to delay the application of certain elements of the Commission's swaps regulations with its approval of the Exemptive Order. The Exemptive Order provides relief ranging from 75 days (for application of the expanded U.S. person definition, for example) to December 21, 2013 (for Entity-Level and Transaction-Level Requirements for non-U.S. SDs and MSPs in certain jurisdictions). The Commission is issuing the Exemptive Order pursuant to section 4(c) of the CEA.
Even though the Exemptive Order goes into effect immediately, the Commission has included a post hoc 30-day comment period. I support the additional time that the Exemptive Order provides for market participants to comply with the Commission's last-minute Guidance, but I cannot support a final order that blatantly ignores the APA-mandated comment periods for Commission action, especially when I advocated for a relief package that would have provided for public comment over a month ago.
In addition to the above, the Guidance leaves me concerned in a number of other areas. I am concerned about whether the definition of U.S. person contained herein provides the necessary clarity for market participants, particularly as its enumerated prongs are explicitly deemed to form a non-exhaustive list. I question whether the Commission has done enough to harmonize its cross-border approach with that of the Securities and Exchange Commission (which is being issued through notice-and-comment rulemaking instead of interpretive guidance, I should note), in particular with regard to the definitions of U.S. person and foreign branches. I also am concerned about whether the Guidance creates an uneven playing field for U.S. firms, which would be a plainly unacceptable outcome to me. I am concerned that the Guidance is overlapping, duplicative, and perhaps even contradictory with other provisions in the Dodd-Frank Act that mitigate systemic risk and allocate responsibility for administering its complex and comprehensive regulatory regime to multiple agencies under Title I, Title II, and even within Title VII.
For an administrative agency, good government combines good substance—based on a faithful, appropriate reading of the guiding statute—and good process. The Guidance falls woefully short on both counts. Therefore, I respectfully dissent from the decision of the Commission to approve the Guidance and Exemptive Order for publication in the
Fish and Wildlife Service, Interior.
Proposed rule; supplemental.
The U.S. Fish and Wildlife Service (hereinafter Service or we) is proposing to establish the 2013–14 early-season hunting regulations for certain migratory game birds. We annually prescribe frameworks, or outer limits, for dates and times when hunting may occur and the maximum number of birds that may be taken and possessed in early seasons. Early seasons may open as early as September 1, and include seasons in Alaska, Hawaii, Puerto Rico, and the U.S. Virgin Islands. These frameworks are necessary to allow State selections of specific final seasons and limits and to allow recreational harvest at levels compatible with population status and habitat conditions. This proposed rule also provides the final regulatory alternatives for the 2013–14 duck hunting seasons.
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Ron W. Kokel, U.S. Fish and Wildlife Service, Department of the Interior, MS MBSP–4107–ARLSQ, 1849 C Street NW., Washington, DC 20240; (703) 358–1714.
On April 9, 2013, we published in the
Further, we explained that all sections of subsequent documents outlining hunting frameworks and guidelines were organized under numbered headings. Those headings are:
Subsequent documents will refer only to numbered items requiring attention. Therefore, it is important to note that we will omit those items requiring no attention, and remaining numbered items will be discontinuous and appear incomplete.
On June 14, 2013, we published in the
This document, the third in a series of proposed, supplemental, and final rulemaking documents for migratory bird hunting regulations, deals specifically with proposed frameworks for early-season regulations and the regulatory alternatives for the 2013–14 duck hunting seasons. It will lead to final frameworks from which States may select season dates, shooting hours, and daily bag and possession limits for the 2013–14 season.
We have considered all pertinent comments received through June 22, 2013, on the April 9 and June 14, 2013, rulemaking documents in developing this document. In addition, new proposals for certain early-season regulations are provided for public comment. Comment periods are specified above under
Participants at the June 19–20, 2013, meetings reviewed information on the current status of migratory shore and upland game birds and developed 2013–14 migratory game bird regulations recommendations for these species plus regulations for migratory game birds in Alaska, Puerto Rico, and the U.S. Virgin Islands; special September waterfowl seasons in designated States; special sea duck seasons in the Atlantic Flyway; and extended falconry seasons. In addition, we reviewed and discussed preliminary information on the status of waterfowl.
Participants at the previously announced July 31–August 1, 2013, meetings will review information on the current status of waterfowl and develop
The following paragraphs provide preliminary information on the status of waterfowl and information on the status and harvest of migratory shore and upland game birds excerpted from various reports. For more detailed information on methodologies and results, you may obtain complete copies of the various reports at the address indicated under
Federal, provincial, and State agencies conduct surveys each spring to estimate the size of waterfowl breeding populations and to evaluate the conditions of the habitats. These surveys are conducted using fixed-wing aircraft, helicopters, and ground crews and encompass principal breeding areas of North America, covering an area over 2.0 million square miles. The traditional survey area comprises Alaska, Canada, and the northcentral United States, and includes approximately 1.3 million square miles. The eastern survey area includes parts of Ontario, Quebec, Labrador, Newfoundland, Nova Scotia, Prince Edward Island, New Brunswick, New York, and Maine, an area of approximately 0.7 million square miles.
Overall, despite a delayed spring, habitat conditions during the 2013 Waterfowl Breeding Population and Habitat Survey were improved or similar to last year in many areas due to abundant winter or spring precipitation, with the exception of eastern Canada, the northeast United States, and portions of Montana and the Dakotas. The total pond estimate (Prairie Canada and United States combined) was 6.9±0.2 million. This was 24 percent higher than the 2012 estimate of 5.5±0.2 million ponds, and 35 percent higher than the long-term average (1974–2012) of 5.1±0.03 million ponds.
Spring was much delayed across the traditional survey area. Extreme southern Saskatchewan, southern Manitoba, and North Dakota received abundant spring rainfall; most of this moisture came too late for the majority of waterfowl breeding this year, but could benefit habitats into 2014. The majority of the Canadian prairies had above-average winter precipitation; however, a poor frost seal was produced and little runoff was observed. The Parklands have improved from 2012, and the boreal region has benefitted from average annual precipitation. Most of the Canadian portion of the traditional survey area was rated as good or excellent this year, in contrast to the dry conditions last year across northern Saskatchewan and Alberta. The 2013 estimate of ponds in Prairie Canada was 4.6±0.2 million. This was 17 percent higher than last year's estimate (3.9±0.1 million) and 32 percent higher than the 1961–2012 average (3.5±0.03 million).
The U.S. prairies received record-breaking snowfall in April; however, below-average early spring precipitation in parts of Montana and the eastern Dakotas resulted in fair to poor habitat conditions. The 2013 estimate of ponds in the north-central United States was 2.3±0.1 million, which was 41 percent higher than last year's estimate (1.7±0.1 million) and 42 percent higher than the 1974–2012 average (1.7±0.02 million).
Spring temperatures in the eastern survey area were closer to normal than in the traditional survey area. Winter precipitation in southwestern Ontario, southern Quebec, and most of the Maritimes was below average. Eastern Canada experienced near record low winter precipitation but improved to the north and east into the Maritimes. Much of eastern Canada experienced excessive late-spring rains, which may have inhibited waterfowl production. Habitat conditions ranged from fair, in Maine and the southern Maritimes, to good in Newfoundland and Labrador.
The estimate of blue-winged teal from the traditional survey area is 7.7 million. This count represents a 16 percent decrease from 2012, and is 60 percent above the 1955–2012 average.
Compared to increases recorded in the 1970s, annual indices to abundance of the Mid-Continent Population (MCP) of sandhill cranes have been relatively stable since the early 1980s. The preliminary spring 2013 index for sandhill cranes in the Central Platte River Valley (CPRV), Nebraska, uncorrected for visibility bias, was 756,217 birds. This estimate is significantly higher than the previous 5 years, which is likely due to late winter weather in North and South Dakota delaying any migration from the CPRV. The photo-corrected, 3-year average for 2010–12 was 504,658, which is above the established population-objective range of 349,000–472,000 cranes. All Central Flyway States, except Nebraska, allowed crane hunting in portions of their States during 2012–13. An estimated 7,239 hunters participated in these seasons, which was 7 percent lower than the number that participated in the previous season. Hunters harvested 14,887 MCP cranes in the U.S. portion of the Central Flyway during the 2012–13 seasons, which was 3 percent lower than the harvest for the previous year and 2 percent higher than the long-term average. The retrieved harvest of MCP cranes in hunt areas outside of the Central Flyway (Arizona, Pacific Flyway portion of New Mexico, Minnesota, Alaska, Canada, and Mexico combined) was 9,683 during 2012–13. The preliminary estimate for the North American MCP sport harvest, including crippling losses, was 27,966 birds, which was a 16 percent decrease from the previous year's estimate. The long-term (1982–2012) trends for the MCP indicate that harvest has been increasing at a higher rate than population growth.
The fall 2012 pre-migration survey for the Rocky Mountain Population (RMP) resulted in a count of 15,417 cranes. The 3-year average was 17,992 sandhill cranes, which is within the established population objective of 17,000–21,000 for the RMP. Hunting seasons during 2012–13 in portions of Arizona, Idaho, Montana, New Mexico, Utah, and Wyoming resulted in a harvest of 1,080 RMP cranes, an 11 percent decrease from the previous year's harvest.
The Lower Colorado River Valley Population (LCRVP) survey results indicate a 16 percent increase from 2,646 birds in 2012, to 3,078 birds in 2013. The 3-year average is 2,713 LCRVP cranes, which is above the population objective of 2,500.
The Eastern Population (EP) sandhill crane fall survey index (87,796) increased by 21 percent in 2012, and in Kentucky's second hunting season 92 cranes were harvested, up from 50 cranes in the inaugural season.
Singing-ground and Wing-collection Surveys were conducted to assess the population status of the American woodcock (
The Wing-collection Survey provides an index to recruitment. Wing-collection Survey data indicate that the 2012 recruitment index for the U.S. portion of the Eastern Region (1.65 immatures per adult female) was 1.9 percent less than the 2011 index, and 0.8 percent greater than the long-term (1963–2011) average. The recruitment index for the U.S. portion of the Central Region (1.66 immatures per adult female) was 8.0 percent greater than the 2011 index and 5.7 percent greater than the long-term (1963–2011) average.
Two subspecies of band-tailed pigeon occur north of Mexico, and are managed as two separate populations: Interior and Pacific Coast. Information on the abundance and harvest of band-tailed pigeons is collected annually in the United States and British Columbia. Abundance information comes from the Breeding Bird Survey (BBS) and the Mineral Site Survey (MSS, specific to the Pacific Coast Population). Harvest and hunter participation are estimated from the Migratory Bird Harvest Information Program (HIP). The BBS provided evidence that the abundance of Pacific Coast band-tailed pigeons decreased (−2.0 percent per year) over the long term (1968–2012). Trends in abundance during the recent 10- and 5-year periods were inconclusive. The MSS, however, provided some evidence that abundance decreased during the recent 9-year (−4.7 percent per year) and 5-year (−4.0 percent per year) periods, but results were inconclusive. An estimated 3,900 hunters harvested 10,900 birds in 2012.
For Interior band-tailed pigeons, the BBS provided evidence that abundance decreased (−5.1 percent per year) over the long term (1968–2012). Trends in abundance during the recent 10- and 5-year periods were inconclusive. An estimated 1,400 hunters harvested 2,900 birds in 2012.
We annually summarize information collected in the United States on survival, recruitment, abundance and harvest of mourning doves. We report on trends in the number of doves heard per route from the Mourning Dove Call-count Survey (CCS), doves seen per route from the CCS, birds heard and seen per route from the all-bird BBS, and provide absolute abundance estimates based on band recovery and harvest data. Harvest and hunter participation are estimated from the HIP.
The CCS-heard data suggested that abundance of doves decreased in all three dove management units (Eastern [EMU], Central [CMU], and Western [WMU]) over the long term (1966–2013); within the EMU, however, there is evidence that abundance decreased in hunt States but increased in non-hunt States. In the recent 10 years, there was no evidence for a change in mourning dove abundance in the EMU, but there was evidence of a decline in the CMU and WMU. Over the most recent two years, there was no evidence for a change in abundance in any of the management units. Over the long term, trends based on CCS-heard and CCS-seen data were consistent in the CMU and WMU, but inconsistent in the EMU; CCS-seen data indicated that abundance increased in the EMU. BBS data suggested that the abundance of mourning doves over the long-term increased in the EMU and decreased in the CMU and WMU. Thus, over the long term, the three data sets provided consistent results for the CMU and WMU but not the EMU.
Estimates of absolute abundance are available only since 2003, and indicate that there are about 349 million doves in the United States, and annual abundance during the recent 5 years appears stationary in the EMU and WMU, but may be declining in the CMU. However, abundance appeared to increase between 2011 and 2012 in the CMU and WMU. Based on a composite trend (weighted trend estimate using information from the CCS, BBS, and absolute abundance), the EMU and WMU populations were stationary over the previous 5 and 10 years, whereas the population in the CMU declined.
Current (2012) HIP estimates for mourning dove total harvest, active hunters, and total days afield in the U.S. were 14,490,800 birds, 828,900 hunters, and 2,538,000 days afield. Harvest and hunter participation at the unit level were: EMU, 6,279,900 birds, 349,600 hunters, and 1,015,600 days afield; CMU, 6,361,600 birds, 338,700 hunters, and 1,108,700 days afield; and WMU, 1,849,400 birds, 140,700 hunters, and 413,700 days afield.
Two states harbor substantial populations of white-winged dove: Arizona and Texas. California and New Mexico also have substantial but smaller populations. Based on the preliminary HIP report for 2012, white-winged doves were harvested in 22 additional states. The Arizona Game and Fish Department monitors white-winged dove populations by means of a CCS to provide an annual index to population size. It runs concurrently with the Service's Mourning Dove CCS. The index of mean number of white-winged doves heard per route from this survey peaked at 52.3 in 1968, but then declined until about 2000. The index had stabilized at around 25 doves per route in the last few years; however, for 2013, the mean number of doves heard per route was 16.8. Harvest of white-winged doves in Arizona peaked in the late 1960s at approximately 740,000 birds, and has since declined and stabilized at around 100,000 birds; the preliminary 2012 HIP estimate of harvest was 86,000 birds.
In Texas, white-winged doves continue to expand their breeding range. Nesting by white-winged doves has been recorded in most counties, with new colonies recently found in east Texas. Nesting is essentially confined to urban areas, but appears to be expanding to exurban areas. Concomitant with this range expansion has been a continuing increase in white-winged dove abundance. A new distance-based sampling protocol was implemented for Central and South Texas in 2007, and has been expanded each year. In 2010, 4,650 points were surveyed statewide and the urban population of breeding white-winged doves was estimated at 4.6 million. Additionally, the Texas Parks and Wildlife Department has an operational white-winged dove banding program and has banded 52,001 white-winged doves from 2006 to 2010. The estimated harvest of white-wings in Texas in the 2012 season was 1,414,800 birds. The Texas Parks and Wildlife Department continues to work to improve the scientific basis for management of white-winged doves.
In California, Florida, Louisiana, New Mexico and Texas BBS data indicate an increasing trend in the population indices between 1966 and 2011. In Arizona BBS data indicate population indices were stationary between 1966 and 2011. According to HIP surveys, the preliminary harvest estimates for the
White-tipped doves occur primarily south of the United States-Mexico border; however, the species does occur in Texas. Monitoring information is presently limited. White-tipped doves are believed to be maintaining a relatively stable population in the Lower Rio Grande Valley of Texas. Distance-based sampling procedures implemented in Texas are also providing limited information on white-tipped dove abundance. Texas is working to improve the sampling frame to include the rural Rio Grande corridor in order to improve the utility of population indices. Annual estimates for white-tipped dove harvest in Texas average between 3,000 and 4,000 birds.
The preliminary proposed rulemaking (April 9
We received recommendations from all four Flyway Councils. Some recommendations supported continuation of last year's frameworks. Due to the comprehensive nature of the annual review of the frameworks performed by the Councils, support for continuation of last year's frameworks is assumed for items for which no recommendations were received. Council recommendations for changes in the frameworks are summarized below.
We seek additional information and comments on the recommendations in this supplemental proposed rule. New proposals and modifications to previously described proposals are discussed below. Wherever possible, they are discussed under headings corresponding to the numbered items in the April 9
Categories used to discuss issues related to duck harvest management are: (A) General Harvest Strategy; (B) Regulatory Alternatives, including specification of framework dates, season lengths, and bag limits; (C) Zones and Split Seasons; and (D) Special Seasons/Species Management. The categories correspond to previously published issues/discussions, and only those containing substantial recommendations are discussed below.
Unfortunately, this year a mechanical issue with the Service aircraft normally used in the Eastern Survey Area of the May Breeding Population and Habitat Survey prohibited the use of those aircraft to conduct this year's survey. Lack of reliable data from Canadian survey strata (51–54, 56) precludes a reliable estimate of the Eastern mallard breeding population for 2013. As a result, an observed 2013 breeding population (BPOP) estimate will not be available for updating model weights and deriving the 2013 harvest policy. Therefore, we propose to predict the 2013 BPOP size based on the 2012 BPOP estimate and 2012 model weights, the 2012–13 harvest rate, and the current model set. That predicted value will be used in place of the observed value for this year, and that value will be compared with last year's (2012) AHM harvest policy matrix to determine the optimal regulatory alternative for the 2013–14 regular duck seasons in the Atlantic Flyway. Further details on these proposed technical changes will be detailed in the forthcoming AHM report for the 2013 season.
Regarding the Mississippi Flyway Council's recommendation for a one-step constraint, we have repeatedly stated over the past several years that we believe that the new Supplemental Environmental Impact Statement (SEIS) for the migratory bird hunting program (see National Environmental Policy Act (NEPA) section) is the appropriate venue for considering such changes in a more comprehensive manner that involves input from all Flyways. With the May 24, 2013, release of the new SEIS and the associated Record of Decision (RoD) contained in this rule, we believe that any recommendations for changes such as the inclusion of a one-step constraint should be considered within the context of the process that is being used to revise current AHM protocols. As AHM decision-making frameworks are modified, regulatory alternatives should be crafted by the Flyways in the context of those changes, including revised harvest management objectives and the demographic models that predict changes in waterfowl status due to those regulations.
We will propose a specific regulatory alternative for each of the Flyways during the 2013–14 season after survey information becomes available later this summer. More information on AHM is located at
In the April 9, 2013,
In the interest of guiding State and Federal workloads and facilitating a timely process for providing additional teal harvest opportunity, we provide the following initial considerations. First, we have stated that the primary focus of special season regulations is underutilized species and/or stocks whose migration and distribution provide opportunities outside the time period in which regular seasons are held, and where such harvest can occur without appreciable impacts to non-target species (SEIS 2013). Although the Teal Harvest Potential Working Group's report documented the existence of additional blue-winged and green-winged teal harvest opportunity, we believe the unique migration behavior of blue-winged teal presents the opportunity to isolate only that species both temporally and geographically, consistent with the intent of special regulations. Consequently, regulatory proposals to increase teal harvest should direct harvest primarily at blue-winged teal.
Second, previous alternatives to provide additional teal harvest opportunities have included bonus teal, Special September duck seasons in Iowa, and Special September teal/wood duck seasons. Following implementation of the SEIS 88 regarding the sport hunting of migratory birds, all of these efforts were reviewed. Assessments of special hunting opportunities, including September teal seasons and bonus teal bags, were conducted. The results of these reviews indicated that the September teal seasons could adequately be assessed regarding their effects on migratory birds, but that bonus teal regulations could not. Thus, in the early 1990s, bonus teal bags were no longer offered in the annual duck regulations frameworks. With regard to Special September duck seasons, we have previously stated that mixed-species special seasons (as defined in the context of SEIS 88) are not a preferred management approach, and that we do not wish to entertain refinements to this season or foster expansions of this type of season into other States (August 29, 1996, 61 FR 45838). Special September teal/wood duck seasons in Florida, Tennessee and Kentucky have been provided in lieu of Special September teal seasons and our preference at this time is to maintain that policy. If Flyway Councils wish to pursue these regulatory approaches to providing additional teal harvest opportunity, we request that they provide compelling information as to why such policies and approaches should be reinstated (i.e., bonus teal) or expanded/modified (i.e., September duck seasons or September teal/wood duck seasons).
A copy of the teal working group's final report is available on our Web site at either
Regarding the regulations for this year, utilizing the criteria developed for the teal season harvest strategy, this year's estimate of 7.7 million blue-winged teal from the traditional survey area indicates that a 16-day September teal season in the Atlantic, Central, and Mississippi Flyways is appropriate for 2013.
Regarding the Atlantic Flyway Council's request to allow Maryland to adjust existing shooting hours during the Special September teal season from sunrise to sunset to one-half hour before sunrise to sunset on an experimental basis, we agree. Since the inception of Maryland's September teal season in 1998, Maryland has utilized shooting hours of sunrise to sunset. Maryland has agreed to conduct hunter performance surveys to assess the impacts of the expanded shooting hours on non-target waterfowl species. The hunter performance survey and assessment criteria will be specified in an agreement between Maryland and the Service.
The breeding population of resident Canada geese in Minnesota has averaged 332,000 Canada geese, since 2001, which is 33 percent higher than the goal of 250,000 Canada geese. In 2012, the breeding population estimate was 434,000 Canada geese, which was the highest estimate on record and 74 percent above the population goal. Annual harvest of Canada geese in Minnesota has averaged 220,000 since 2001, with harvest during the September season averaging 98,000 Canada geese. Further, Minnesota has used a variety of methods to increase the harvest of resident Canada geese, including an expanded September season (Sept. 1 through 22) and expanded opportunity during the regular season.
Bag limits for Canada geese above 5 per day during the September season have not yet been used in the Mississippi Flyway during September seasons. Based on bag frequency data from Atlantic Flyway States that have utilized Canada goose daily bag limits of 15 during September seasons, increasing the daily bag limit from 5 to 10 is expected to increase Canada goose harvest approximately 16 percent during the September season. Thus, a daily bag limit of 10 geese implemented Statewide in Minnesota during the September season would be expected to increase the annual harvest from 98,000 to 114,000 during the September season.
The Central Flyway Council recommended increasing the season length in North Dakota's eastern sandhill crane hunting zone (Area 2) from 37 to 58 days in length.
The Central and Pacific Flyway Councils recommend using the 2013 Rocky Mountain Population (RMP) sandhill crane harvest allocation of 771 birds as proposed in the allocation formula using the 3-year running average of fall population estimates for 2010–12.
Additionally, we prepared a draft environmental assessment (EA) on the hunting of EP sandhill cranes in Tennessee as allowed under the management plan. A copy of the draft EA and specifics of the two alternatives we analyzed can be found on our Web site at
The proposed crane hunt in Tennessee would begin in early December and continue until late January. These proposed season dates would begin approximately 2 to 3 weeks after whooping cranes are normally migrating through Tennessee and would reduce the likelihood that sandhill crane hunters would encounter whooping cranes. We further note that whooping cranes that migrate through Tennessee are part of the experimental nonessential population of whooping cranes (NEP). In 2001, the Service announced its intent to reintroduce whooping cranes (
We also support the Central Flyway Council's recommendation to increase the season length for midcontinent sandhill cranes in the eastern zone of North Dakota (Area 2). However, we believe additional information recently published on the demographics of this population should be incorporated into a revised management plan, and that the revised plan should include more specificity regarding how harvest opportunities should be expanded and restricted based on population status and harvest. Such a process is essential to successful, collaborative management of shared populations by the Service and the Flyways. We do not want to address regulatory changes in an incremental manner and believe codifying specifically in a management plan how such changes in harvest opportunities will occur would achieve that end.
We also agree with the Central and Pacific Flyway Councils' recommendations on the RMP sandhill crane harvest allocation of 771 birds for the 2013–14 season, as outlined in the RMP sandhill crane management plan's harvest allocation formula. The objective for RMP sandhill cranes is to manage for a stable population index of 17,000–21,000 cranes determined by an average of the three most recent, reliable September (fall pre-migration) surveys. Additionally, the RMP management plan allows for the regulated harvest of cranes when the 3-year average of the population indices exceeds 15,000 cranes. In 2012, 15,417 cranes were counted in the September survey, a decrease from the previous year's count of 17,494 birds. The most recent 3-year average for the RMP sandhill crane fall index is 17,992, a decrease from the previous 3-year average of 19,626.
In 2011, we implemented an interim harvest strategy for woodcock for a period of 5 years (2011–15) (76 FR 19876, April 8, 2011). The interim harvest strategy provides a transparent framework for making regulatory decisions for woodcock season length and bag limit while we work to improve monitoring and assessment protocols for this species. Utilizing the criteria developed for the interim strategy, the 3-year average for the Singing Ground Survey indices and associated confidence intervals fall within the “moderate package” for both the Eastern and Central Management Regions. As such, a “moderate season” for both management regions for the 2013–14 woodcock hunting season is appropriate for 2013. Specifics of the interim harvest strategy can be found at
The Mississippi and Central Flyway Councils recommend the use of the standard (or “moderate”) season package of a 15-bird daily bag limit and a 70-day season for the 2013–14 mourning dove season in the States within the Central Management Unit. The Central Flyway Council previously recommended that the Special White-winged Dove Area be expanded to Interstate Highway 37 in the 2013–14 season.
The Pacific Flyway Council recommended use of the “moderate” season framework for States in the Western Management Unit (WMU) population of doves, which represents no change from last year's frameworks.
The Atlantic, Mississippi, Central, and Pacific Flyway Councils also recommended that the present interim mourning dove harvest strategy be replaced by a new national mourning dove harvest strategy for implementation beginning with the 2014–15 season. The new strategy uses a discrete logistic growth model based on information derived from the banding program, the Harvest Information Program, and the mourning dove parts collection survey to predict mourning dove population size in a Bayesian statistical framework. The method is similar to other migratory bird strategies already in place and
We concur with the Atlantic and Pacific Flyway Councils' recommendations that the National mourning dove harvest strategy, as developed by the Mourning Dove Task Force, be adopted this year for implementation in 2014–15 hunting season. This strategy would replace the Interim Harvest Strategies that have been in place since 2009. While we appreciate the Central and Mississippi Flyway Councils' recommendations supporting implementation of the National mourning dove harvest, we do not support the changes proposed by the Central and Mississippi Flyway Councils specific to the Central Management Unit. More specifically, we do not support the reduced closure threshold, using a running 3-year average of abundance in assessing regulatory change, and holding regulations constant for at least 3 years. We support continued development and further evaluation of the modifications proposed by the Mississippi and Central Flyways, including appropriate closure levels for each management unit based on objective biological criteria. The Mourning Dove Task Force is a useful venue for developing these issues for future consideration and potential modification to the National Strategy.
This year, based on the interim harvest strategies and current population status, we agree with the recommended selection of the “moderate” season frameworks for doves in the Eastern, Central, and Western Management Units.
Regarding the Central Flyway Council's recommendation to expand the Special White-winged Dove Area in Texas, we expressed our support for this recommendation last year and addressed it in the August 30, 2012,
The Atlantic, Mississippi, Central, and Pacific Flyway Councils recommended increasing the possession limit from 2 to 3 times the daily bag limit for doves.
The Pacific Flyway Council recommended increasing the possession limit from 2 to 3 times the daily bag limit for band-tailed pigeons; special September Canada goose seasons; snipe; falconry; and Alaska seasons for brant, sandhill cranes, and geese (except dusky Canada geese).
The Mississippi Flyway Council recommended that the Service increase the possession limit from 2 times to 3 times the daily bag limit for all migratory game bird species and seasons except for Canada geese, where they recommended that there be no possession limit, or other overabundant species for which no current possession limits are currently assigned (e.g., light geese), where there would continue to be no possession limits. The Council also recommended increasing the possession limits for sora and Virginia rails from 1 to 3 times the aggregate daily bag limit, consistent with other possession limit recommendations, and no change for those species that currently have permit hunts (e.g., cranes and swans). The Council recommends these changes be implemented beginning in the 2013–14 season. New and/or experimental seasons could have different possession limits if justified. The Council further recommended that possession limits not apply at one's personal permanent residence and specifically recommended language to modify 50 CFR 20.39 to do so.
Lastly, the Central Flyway Council recommended that the Service develop a mechanism that allows not for profit community food distribution centers to exceed possession limits for Canada geese during the regular hunting season.
After discussions last year at the January SRC meeting, and March and July Flyway Council meetings, the Atlantic, Central, and Pacific Flyway Councils recommended that the Service increase the possession limit from 2 times to 3 times the daily bag limit for all migratory game bird species and seasons except for those species that currently have possession limits of less than 2 times the daily bag limit (e.g., some rail species), for permit hunts (e.g., cranes and swans), and for overabundant species for which no current possession limits are assigned (e.g., light geese), beginning in the 2013–14 season (77 FR 58444; September 20, 2012). These recommendations from the Councils were one such outgrowth of the efforts started in 2010. With the Mississippi Flyway Council's recommendation and
Additionally, as we discussed in the April 9 and June 14 proposed rules, when our initial review of possession limits was instituted in 2010, we also realized that a review of possession limits could not be adequately conducted without expanding the initial review to include other possession-related regulations. In particular, it was our belief that any potential increase in the possession limits should be done in concert with a review and update of the wanton waste regulations in 50 CFR 20.25. We believed it prudent to review some of the long-standing sources of confusion (for both hunters and law enforcement) regarding wanton waste. A review of the current Federal wanton waste regulations, along with various State wanton waste regulations, has been recently completed, and we anticipate publishing a proposed rule this summer to revise 50 CFR 20.25.
Lastly, we recognize that there are other important issues surrounding possession that need to be reviewed, such as termination of possession (as recommended by the Mississippi Flyway Council). However, that issue is a much larger and more complex review than the wanton waste regulations and the possession limit regulations. We anticipate starting a review of termination of possession regulations upon completion of changes to the wanton waste regulations.
Regarding the Central Flyway Council's recommendation to allow food banks to exceed possession limits for Canada geese, we note that this issue is outside the scope of this proposed rule. Such a proposal would require a change to 50 CFR 20.33 and would require a separate rulemaking process.
The Department of the Interior's policy is, whenever possible, to afford the public an opportunity to participate in the rulemaking process. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations. Before promulgating final migratory game bird hunting regulations, we will consider all comments we receive. These comments, and any additional information we receive, may lead to final regulations that differ from these proposals.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in the
We will post all comments in their entirety—including your personal identifying information—on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
For each series of proposed rulemakings, we will establish specific comment periods. We will consider, but possibly may not respond in detail to, each comment. As in the past, we will summarize all comments we receive during the comment period and respond to them after the closing date in the preambles of any final rules.
The programmatic document, “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88–14),” filed with the Environmental Protection Agency (EPA) on June 9, 1988, addresses NEPA compliance by the Service for issuance of the annual framework regulations for hunting of migratory game bird species. We published a notice of availability in the
In a notice published in the September 8, 2005,
Below is the Service's Record of Decision (RoD) for the migratory bird hunting program, prepared pursuant to National Environmental Policy Act (NEPA) regulations at 40 CFR 1505.2. We have provided it here in its entirety. This RoD was developed by the Service in compliance with the agency decision-making requirements of NEPA. The purpose of this RoD is to document the Service's decision for the selection of an alternative for the issuance of annual regulations permitting the hunting of migratory birds. Alternatives have been fully described and evaluated in the May 2013 Second Final Supplemental Environmental Impact Statement for the Issuance of Annual Regulations Permitting the Hunting of Migratory Birds.
This RoD is intended to: (a) State the Service's decision, present the rationale for its selection, and describe its implementation; (b) identify the alternatives considered in reaching the decision; and (c) state whether all means to avoid or minimize environmental harm from implementation of the selected alternative have been adopted (40 CFR 1505.2).
Through this Record of Decision (RoD), the U.S. Fish and Wildlife Service (Service) selects alternatives for the seven regulatory components considered for establishing annual regulations for the hunting of migratory birds in the United States. This RoD includes brief summaries of the alternatives considered, the public involvement process, and the rationale for selecting an alternative for each of the seven regulatory components considered, as described in the Final Supplemental Environmental Impact Statement (FSEIS), for issuance of annual migratory bird hunting regulations. In all cases, the “preferred” alternative is also the environmentally preferred one.
Promulgation of annual hunting regulations relies on a well-defined process of monitoring, data collection, and scientific assessment. At key points during that process, Flyway Technical Committees, Flyway Councils, and the public review and provide valuable input on technical assessments or other documents related to proposed regulatory frameworks. The Service then finalizes the frameworks and forwards them to the Assistant Secretary of the Interior for Fish and Wildlife and Parks for final approval. After approval, each State selects its seasons, usually following its own schedule of public hearings and other deliberations. After State selections are completed, the Service adopts them as Federal regulations by publication in the
Alternative 1: (
Alternative 2: (
Alternative 3: Promulgate biennial (or longer) regulations using separate early and late season processes.
Alternative 4: Promulgate biennial (or longer) regulations using a single process for early and late seasons.
Decision: The Service has selected Alternative 2 as described in the FSEIS for implementation. Alternative 2 is the most effective alternative for addressing key issues identified during the planning process and will best achieve the purposes and goals of the Service and States. Implementation of the preferred alternative is targeted for the 2015–16 regulations cycle.
Factors Considered in Making the Decision: In reaching this decision, the Service reviewed and considered the following: Impacts identified in Chapter 6 of the draft and FSEIS; relevant issues, concerns, and opportunities presented by agencies, organizations, and individuals throughout the planning process, including comments on the draft and FSEIS; and other relevant factors, including statutory and regulatory guidance.
The Service concludes that the impact of Alternative 2 on hunted populations of migratory birds compared to the no change alternative is likely to be minimal. Alternative 2 combines the current early and late season regulatory actions into a single process. Regulatory proposals will be developed using biological data from the preceding year(s), model predictions, or most recently accumulated data that are available at the time the proposals are being formulated. Individual harvest strategies will be modified using either data from the previous year(s) or model predictions because the current year's data would not be available for many of the strategies. Considerable technical work will be necessary over a period of years to adjust the underlying biological models to the new regulatory time scale. During this transition period, harvest strategies and prescriptions will be modified to fit into the new regulatory schedule. These adjustments could be accomplished immediately upon adoption of the new process. Many existing regulatory prescriptions used for Canada geese and sandhill cranes currently work on this basis. The process will be somewhat less precise in some instances because population projections would be used instead of current-year status information. The use of population projections rather than current-year population estimates would add variability to the population estimate from which the regulations are based. However, the uncertainty associated with these status predictions will be accounted for and incorporated into the process. This uncertainty will not result in a disproportionately higher harvest rate for any stock, either annually or on a cumulative basis, because these regulations likely would become slightly more conservative due to the increased uncertainty of the population status. Additionally, under this alternative, the SRC will meet in March or April (exact dates would be determined in consultation with the four Flyway Councils). Proposed frameworks will be available for public review by early June. Final frameworks will be published by mid-August. The schedule proposed under Alternative 2 will allow 30–60 days for public input and comments (currently the comment period is as short as 10 days). The four Flyway Councils could meet only once instead of twice, and the SRC will meet twice a year, once in January and once in March-April, instead of the three times they currently convene. The reduced number of meetings could lower administrative costs by 40 percent per year and substantially lower the Service's carbon footprint due to a decrease in travel and a reduction in the costs associated with the additional meetings.
Duck regulatory packages are the set of framework regulations that apply to the general duck hunting seasons. Packages include opening and closing dates, season lengths, daily bag limits, and shooting hours. Current regulatory packages contain a set of frameworks for each of the four flyways and a set of four regulatory alternatives: restrictive (relatively short seasons and low daily bag limits), moderate (intermediate season lengths and daily bag limits), liberal (longer seasons and higher daily bag limits), and closed. The differences in season lengths and daily bag limits among flyways reflect the historic differences in waterfowl abundance and hunter numbers in these regions. Each regulatory package has an associated target harvest rate, which is based on mallards since mallards are the most well-studied and most heavily harvested (nationally) of all duck species. Each year the adaptive harvest management (AHM) models are run, with the most up-to-date harvest survey data included, and one of the regulatory alternatives
Importantly, when employing the AHM approach, the regulatory packages should remain relatively constant over time, because the optimization process assumes that the expected harvest rates resulting from the various packages remains constant. However, the uncertainty in harvest rates from what is projected and what is realized in any given year is a component that is accounted for in the process; thus, there is room for modification. Recognizing the desire of many constituents to make adjustments to the basic packages, a regular process to review and incorporate possible modifications is necessary and appropriate. The intent, regardless of the alternative selected below, is to have the first open review and possible modification of these packages begin in the year following the finalization of the FSEIS.
Alternative 1: (
Duck regulatory packages are currently reviewed and adopted on an annual basis (see above). This would continue under this alternative.
Alternative 2: (
A description of duck regulatory packages is provided above. Under this alternative, the set of regulatory packages would be adopted for a 5-year period instead of annually, and changes would be considered at the time of renewal. The first review period would coincide with the initial implementation of the proposed action.
Decision: The Service has selected Alternative 2 as described in the FSEIS for implementation. Alternative 2 is the most effective alternative for addressing key issues identified during the planning process and will best achieve the purposes and goals of the Service and States. Implementation of the preferred alternative is targeted for the 2015–16 regulations cycle or as soon as is technically feasible.
Factors Considered in Making the Decision: In reaching this decision, the Service reviewed and considered the following: Impacts identified in Chapter 6 of the draft and FSEIS; relevant issues, concerns, and opportunities presented by agencies, organizations, and individuals throughout the planning process, including comments on the draft and FSEIS; and other relevant factors, including statutory and regulatory guidance.
The Service concludes that Alternative 2 allowing review and adoption of regulatory packages every 5 years instead of annually is the best course of action balancing the need for consistent regulatory actions with the need for occasional adjustments. Adopting such a process will result in limited impacts on population status. Limiting changes to a 5-year interval is expected to result in an improvement over the current situation. The improvement should result because of the reduced variability in harvest rates that are expected when compared to allowing annual changes in the basic duck regulatory packages. Adopting packages annually as is presently done could increase variability, if the packages are actually changed annually. In fact, and in recognition of this problem, the Service has kept packages stable, although it reviews and adopts them each year. Alternative 2 will minimize the frequency of changes, thereby improving the learning potential under the AHM process, while still affording the option to adjust packages at regular intervals in recognition of changing bird status, environmental conditions, and socioeconomic changes.
Harvest strategies have been developed for stocks deemed not biologically capable of sustaining the same harvest levels that jointly managed stocks are capable of sustaining, or whose migration and distribution do not conform to patterns followed by the most commonly harvested species. There also is a desire to have a known set of conditions under which regulations would be changed for species covered by these strategies. The formal strategies provide this information by describing abundance levels and other demographic factors that would result in changes in harvest opportunity. Stock-specific harvest strategies formally adopted by the Service include those for American black ducks, canvasbacks, northern pintails, and scaup. In addition, an interim harvest strategy was recently developed and proposed for approval for mourning doves starting with the 2014–15 hunting season. A draft harvest strategy for wood ducks may be developed and considered for adoption in the future. The Service has adopted stock-specific strategies for ducks and mourning doves through the
Alternative 1: (
Alternative 2: Significantly reduce the use of stock-specific harvest strategies.
This action would be accomplished by reducing general seasons to a structure that can be sustained by more stocks than the existing aggregate structures are able to sustain. For example, a simplified set of regulations for general duck seasons would result in a reduction in the number of separate harvest strategies that would be needed for ducks (e.g., duck limits overall would be reduced to those appropriate for scaup or northern pintails, whichever of these required the most conservative regulations).
Alternative 3: Expand the use of stock-specific harvest strategies to include most individual stocks.
This alternative would lead to additional stock-specific regulations that would eventually result in separate hunting seasons for most, if not all, recognized stocks for which harvest is allowed.
Decision: The Service has selected Alternative 1 as described in the FSEIS for implementation. Alternative 1 is the most effective alternative for addressing key issues identified during the planning process and will best achieve the purposes and goals of the Service and States. Implementation of the preferred alternative is targeted for the 2015–16 regulations cycle or as soon as is technically feasible.
Factors Considered in Making the Decision: In reaching this decision, the Service reviewed and considered the following: Impacts identified in Chapter 6 of the draft and FSEIS; relevant issues, concerns, and opportunities presented by agencies, organizations, and individuals throughout the planning process, including comments on the draft and FSEIS; and other relevant factors, including statutory and regulatory guidance.
The Service concludes that the use of stock-specific harvest strategies protects individual species deemed biologically incapable of sustaining the harvest levels imposed by the current AHM process based on mallard status.
Special regulations differ from stock-specific harvest strategies because they entail additional days of harvest opportunity outside the established frameworks for general seasons, but within the 107-day limit mandated by the Migratory Bird Treaty Act (16 U.S.C. 703–712). Special regulations are employed to provide additional harvest opportunity on overabundant stocks, stocks that are lightly harvested and can sustain greater harvest pressure when harvest can be achieved without appreciable impacts to nontarget species, and/or stocks whose migration and distribution provide opportunities outside the time period in which regular seasons are held. An important tenet of special regulations is that harvest pressure can be effectively directed primarily at target stocks that can be temporally and geographically isolated so as to avoid nontarget take. Currently, special regulations include: (1) September teal seasons in the Atlantic, Mississippi, and Central Flyways; (2) September teal and wood duck seasons in Florida, Kentucky, and Tennessee; (3) the special sea duck season along the Atlantic Coast; and (4) special regulations on overabundant resident Canada geese. The Service has required that States implementing special regulations conduct experiments that assess the biological impacts of those seasons on both target and non-target stocks.
Alternative 1: (
Maintain requirement for experimental evaluation of any proposed new special regulations and periodic assessments of the effects of special regulations to determine whether they are still justified.
Alternative 2: (
Decision: The Service has selected Alternative 2 as described in the FSEIS for implementation. Alternative 2 is the most effective alternative for addressing key issues identified during the planning process and will best achieve the purposes and goals of the Service and States. Implementation of the preferred alternative is targeted for the 2015–16 regulations cycle or as soon following as is technically feasible.
Factors Considered in Making the Decision: In reaching this decision, the Service reviewed and considered the following: Impacts identified in Chapter 6 of the draft and FSEIS; relevant issues, concerns, and opportunities presented by agencies, organizations, and individuals throughout the planning process, including comments on the draft and FSEIS; and other relevant factors, including statutory and regulatory guidance.
The Service concludes that several target populations will benefit from the biological review that would determine if special harvest opportunities were still warranted. In particular, special seasons for sea ducks and teal will be considered. Elimination of experimental season evaluations for overabundant resident Canada geese is not expected to alter their population status, but is expected to expedite actions designed to increase harvest of these birds. Sufficient experimentation already has been conducted, and the results indicate that these seasons will not endanger the resident geese. There are some risks to non-target migrant Canada goose populations; however, recent studies provide sufficient data regarding select areas where such seasons could pose a problem for non-target goose populations and those areas will be addressed on a case-by-case basis to ensure non-resident stocks are not negatively impacted.
Alternative 2 could lead to increased administrative costs associated with the re-evaluation of the existing special regulations. The Service has historically reviewed special regulations when changes in status or environmental conditions suggest there is a reason to do so. This alternative continues that practice. Although there could be an initial increase in cost associated with such re-evaluations, there could also be financial savings associated with elimination of the experimental evaluation requirement for most resident Canada goose special regulations. Depending on findings, the results of those evaluations could lead to expansion of one or more of the current special duck seasons or establishment of additional special seasons, either of which would result in more hunting opportunity and the associated economic benefits. On the other hand, evaluations could lead to reduction or elimination of one or more current special seasons, resulting in reduced hunting opportunity and some negative impacts on local economies. Expediting the approval of additional special regulations for resident Canada geese would increase harvest and result in fewer of those birds, which in turn would reduce crop depredation and other conflicts caused by their overabundance.
Management scale is defined as the geographic area in which stocks are monitored and harvest is managed. Determining the appropriate scale of harvest management is important for two primary reasons: (1) Scale determines the degree to which harvest regulations can differ geographically, and (2) management at smaller geographic scales commits management agencies to increased monitoring efforts
Alternative 1: (
Under this alternative, ducks would be managed by flyway on the basis of three mallard stocks: Eastern, western, and mid-continent. For duck species that are covered by harvest strategies (e.g., pintails, scaup, and canvasbacks), the management scale would continue to be continental. New strategies would include geographic definitions of the applicable scale as part of their descriptions. American woodcock would continue to be managed as two units and mourning doves as three. Sandhill cranes, geese, tundra swans, and band-tailed pigeons would be managed as the currently defined individual populations. American black duck and wood duck seasons would remain as currently implemented. All geographic scales would be subject to periodic review and revision when new information becomes available, or if population distributions shift markedly in the future. This approach provides considerable allowances for differences in hunting opportunity based on geographic differences in population status and distribution, yet limits the number of different stocks that require individual monitoring to a manageable level.
Alternative 2: Expand the existing management scale by reverting to a single continental management scale for population monitoring of ducks, mourning doves, and American woodcock. The existing harvest-management units (e.g., flyways, management units) would be maintained to account for regional differences in hunter numbers and harvest pressure.
This alternative would establish a continental scale for the monitoring of migratory game birds and harvest management decisions. Regional differences in population status and trends would not be taken into account when making regulatory decisions. The only geographic differences in harvest opportunity would be based on the traditional differences that have been established among flyways and among/between ducks, mourning dove, tundra swan, and American woodcock management units.
Alternative 3: Work to further geographically refine the scale of duck harvest management, and maintain existing management scales for other stocks.
Monitoring programs would be established wherever sufficient biological evidence suggests further geographic refinement is possible for any stocks. The monitoring programs would allow for differential harvest regulations within the defined range of each stock. Conceptually, this would greatly increase the number of stocks for which separate regulations would be established independently. This could include subdividing the traditional management units of flyways (in the case of ducks), or the management units, in the case of mourning doves or American woodcock.
Decision: The Service has selected Alternative 1 as described in the FSEIS for implementation. Alternative 1 is the most effective alternative for addressing key issues identified during the planning process and will best achieve the purposes and goals of the Service and States. Implementation of the preferred alternative is targeted for the 2015–16 regulations cycle or as soon following as is technically feasible.
Factors Considered in Making the Decision: In reaching this decision, the Service reviewed and considered the following: Impacts identified in Chapter 6 of the draft and FSEIS; relevant issues, concerns, and opportunities presented by agencies, organizations, and individuals throughout the planning process, including comments on the draft and FSEIS; and other relevant factors, including statutory and regulatory guidance.
The Service concludes that Alternative 1 ensures sustainable continental populations of mallards and other duck species that are the subjects of species-specific harvest strategies, because those harvest strategies are supported by adequate population size, harvest monitoring programs, and other relevant population statistics. Likewise, geese, mourning doves, woodcock, sandhill cranes, tundra swans, and band-tailed pigeons are monitored at their current management scales to ensure sustainability. However, if distinct subpopulations exist within any of the currently defined populations/species, and have demographics that differ greatly from the management-scale-wide average, those subpopulations could undergo undetected growth or decline under Alternative 1. Coots, gallinules, moorhens, snipe, and rails will be managed at the continental scale under this alternative. Alternative 1 maintains the traditional approach of allowing for recognition of geographic variation in harvest opportunity while maintaining a relatively limited number of geographic units that must be monitored and managed separately. Costs of monitoring and managing at the current scale have been considered acceptable to the public and the cooperating management agencies. To date, the level of hunting opportunity that this alternative affords has been adequate to satisfy migratory bird hunters in most years. This approach represents a compromise between recognition of existing natural variation in abundance and distribution with the costs associated with managing at more refined geographic scales, such as is considered in Alternative 3 for this component.
A zone is a geographic area or portion of a State, with a contiguous boundary, for which an independent season may be selected. A split is a situation where a season is broken into two or more segments with a closed period between segments. The combination of zones and split seasons allows a State to maximize harvest opportunity within the Federal frameworks without exceeding the number of days allowed for a given season. Guidelines for the use of zones and splits have been formalized for ducks and doves. For these species, States select zone/split configurations for 5-year periods. After each 5 year period, States have the opportunity to change their configurations within the provisions of the guidelines. The use of zones and split seasons for other migratory game birds is handled on a case-by-case basis. Refer to Chapter 2 of the FSEIS for a more in-depth description of zones and splits.
Alternative 1: (
Alternative 2: Allow annual adjustments to zone/split-season configurations for all migratory game birds.
Decision: The Service has selected Alternative 1 as described in the FSEIS for implementation. Alternative 1 is the most effective alternative for addressing key issues identified during the planning process and will best achieve the purposes and goals of the Service and States. Implementation of the preferred alternative is targeted for the
Factors Considered in Making the Decision: In reaching this decision, the Service reviewed and considered the following: Impacts identified in Chapter 6 of the draft and FSEIS; relevant issues, concerns, and opportunities presented by agencies, organizations, and individuals throughout the planning process, including comments on the draft and FSEIS; and other relevant factors, including statutory and regulatory guidance.
The Service recognizes that the use of zones and split seasons results in some additional harvest, but the incremental impacts of each State's existing zone and split season configuration on the overall harvest of ducks and doves are not anticipated to be significant at the population level. However, most duck and dove populations are stable or increasing, indicating that within the context of other framework regulations, current zone and split season configurations are not adversely impacting those populations. When reductions in harvest are necessary, they are accomplished through framework regulations, taking into account the effects of existing zone and split season configurations. Thus, Alternative 1 is not expected to have any measurable impacts on target duck and dove populations compared to current practice. The use of zones and split seasons enables States to better maximize hunting opportunity, thereby encouraging participation in migratory bird hunting and resulting in increased benefits to local economies. Alternative 1 would maintain those benefits at current levels. Limiting the frequency of potential changes to the proposed 5-year interval for zone/split-season configurations continues to be somewhat less responsive to public desires for adjustments, but there is no evidence that this has impacted hunter participation negatively. States incur some costs associated with contacting their hunting publics to assess their desires with regard to zone locations and dates for split seasons, primarily through public meetings and surveys.
Regulations governing the subsistence harvest of migratory birds provide a framework that enables the continuation of customary and traditional subsistence uses of migratory birds in Alaska. These regulations are subject to annual review and are developed under a co-management process involving the Service, the Alaska Department of Fish and Game, and Alaska Native representatives. This annual review process establishes regulations that prescribe frameworks for dates when harvesting of birds may occur, species that can be taken, and methods and means that are excluded from use.
Alternative 1: (
Under this alternative, the Service would allow a spring-summer harvest of migratory birds. The harvest would, to the extent possible, be consistent with the customary and traditional subsistence harvest of migratory birds by Alaskan indigenous inhabitants, while providing for the long-term sustained use of the migratory bird resource. Egg gathering would be consistent with the customary and traditional subsistence harvest of eggs by Alaskan indigenous inhabitants. Only bird populations that are determined to be capable of supporting this sustained use would be open to harvest.
In general, the Service will consider the following actions when establishing subsistence hunting regulations consistent with the long-term conservation of species open to subsistence harvest. The species open to harvest will be determined annually based on conservation status and a determination that harvest is consistent with long-term conservation. The secondary consideration of the Service in establishing subsistence harvest regulations will be to preserve the customary and traditional practices of the rural residents of Alaska to the maximum extent possible after ensuring the long-term conservation of species harvested. The third consideration of the Service in establishing subsistence harvest regulations will be to determine that the proposed harvest is consistent with the Migratory Bird Treaty Act (MBTA), as modified by amendments to the Protocols of Migratory Bird Treaties with Canada and Mexico. A summary of the potential management tools that could be employed to regulate subsistence harvest under these actions is as follows:
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
Alternative 2: Open a spring-summer subsistence hunting season that incorporates fall-winter hunting season regulations (e.g., bag limits, shooting hours).
Under this alternative, the Service would replace the current spring-summer subsistence hunting season regulations with regulations consistent with the fall harvest. Methods and means required for fall-winter hunting would be adopted, daily bag limits for individual hunters would be imposed, and fall regulations concerning exchange and transport of birds and bird parts would apply. Egg gathering would, to the extent possible, be consistent with the customary and traditional subsistence harvest of eggs by Alaskan indigenous inhabitants.
The regulations at title 50 of the Code of Federal Regulations (CFR), part 20, subpart C (Taking), apply in this alternative with the exception of closed seasons (§ 20.22). 50 CFR 20, subpart D (Possession), also applies with the exception of § 20.32. The final frameworks approved by the Secretary of the Interior for the Pacific Flyway season would apply with the following exceptions: (1) Shooting hours would not be specified; (2) the season would be from April 2 through August 31; and (3) the closed periods to protect nesting birds described in Alternative 1 would apply.
Decision: The Service has selected Alternative 1 as described in the FSEIS for implementation. Alternative 1 is the most effective alternative for addressing key issues identified during the planning process and will best achieve the purposes and goals of the Service and States. Implementation of the preferred alternative is targeted for the 2015–16 regulations cycle or as soon following as is technically feasible.
Factors Considered in Making the Decision: In reaching this decision, the Service reviewed and considered the following: Impacts identified in Chapter 6 of the draft and FSEIS; relevant issues, concerns, and opportunities presented by agencies, organizations, and individuals throughout the planning process, including comments on the draft and FSEIS; and other relevant factors, including statutory and regulatory guidance.
The preamble of the 1995 Protocol to the Migratory Bird Treaty Amendment states, “. . . it is not the intent of this Protocol to cause significant increases in the take of species of migratory birds relative to their continental population sizes.” The use of household surveys of subsistence harvest areas will enable tracking of participation in subsistence harvest activities and the extent of the take. Should the harvest significantly increase relative to continental populations, then regulatory actions would be taken to keep harvest in compliance with the 1995 Protocol.
Under Alternative 1, law enforcement efforts will be carried out commensurate with threats to migratory bird populations to ensure that compliance is achieved to maintain harvest at prescribed levels. The subsistence economies of rural areas will continue to benefit from an important food resource which is traditionally shared among members of a community. In addition, this alternative promotes the establishment of regulations recommended by the AMBCC which, along with the regional management bodies, is the embodiment of the co-management process. Greater compliance with regulations developed through the co-management process is more likely than with Alternative 2. By being part of the regulatory process, subsistence hunters, and those who share in the harvest, will have a sense of ownership, leading to greater compliance. An example of how this has worked in the past is the population recovery of cackling Canada geese that nest on the Yukon-Kuskokwim Delta, in Alaska. The institution of the Hooper Bay agreement in advance of the Migratory Bird Treaty Amendment led to reduced subsistence and reduced fall-winter harvests of cackling Canada geese and helped the population recover from a low of about 25,000 birds to the current population size of approximately 200,000. Participation in the regulatory process also is anticipated to result in greater participation in the harvest survey. Broader coverage of the survey would lead to more accurate harvest data because it would include the harvest of more of the subsistence hunter population.
The above seven components of the annual regulatory process are designed to continue and improve the long-standing Federal process for establishing regulations for hunting migratory birds. These components continue the process that has maintained this harvest consistent with the long-term conservation of the species and populations that are harvested. The preferred alternatives selected for these components will reduce the administrative burden and thus reduce the carbon footprint by both Federal and State government agencies by reducing the number of meetings conducted annually to establish these regulations. In addition, changing the timing of the meetings will now allow for a greater opportunity for public input and consideration of the proposed annual regulations. The changed process will also allow for periodic modifications of the underlying regulatory packages at 5-year intervals to better address potential changes in environmental conditions caused by factors other than hunting (i.e., climate change). These changes are possible due to improved technical understanding gained through decades of monitoring and assessment of these biological systems. This process will not alter the continued development and improvement of such understanding of the biological systems, as monitoring and assessment will continue on an annual basis.
Scoping is the initial stage of the EIS process used to design the extent and influence of an action. On September 8, 2005, the Service published a notice of intent to prepare a SEIS on the hunting of migratory birds under the authority of the MBTA (70 FR 53376). On March 9, 2006, the Service subsequently announced a total of 12 public meetings to be held across the United States to accept public and agency comment on the scope and relevant issues that should be addressed in the SEIS (71 FR 12216). In addition to these public meetings, the Service established a Web site to receive electronic comments and solicited written comments. The Service also announced that all comments received from the initiation of this process on September 8, 2005 until May 30, 2006 would be considered in the development of the SEIS. Subsequent to the conclusion of the scoping process a draft FSEIS was developed based on the input received. The draft FSEIS was released for public comment on June 7, 2010 and comments were accepted until March 31, 2011. All comments on the draft FSEIS were carefully considered in the preparation of the FSEIS and the selection of the preferred alternatives for the seven regulatory components considered.
Please see the Other Required Determinations section of this document.
Questions about the FSEIS may be directed to Robert Trost, Pacific Flyway Representative, Division of Migratory Bird Management, Portland, OR 97232; phone number (503) 231–6162, fax
This RoD and supporting references are available for public review from the Pacific Flyway Representative, Division of Migratory Bird Management at (503) 231–6162, or the Chief, Division of Migratory Bird Management, at (703) 358–1714. Alternately, you may write to: Pacific Flyway Representative, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 911 NE 11th Avenue, Portland, OR 97232.
This proposed rule does not contain any new information collection requirement that require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. OMB has reviewed and approved the information collection requirements associated with migratory bird surveys and assigned the following OMB control numbers:
• 1018–0010—Mourning Dove Call Count Survey (expires 4/30/2015).
• 1018–001—North American Woodcock Singing Ground Survey (expires 4/30/2015).
• 1018–0023—Migratory Bird Surveys (expires 4/30/2015). Includes Migratory Bird Harvest Information Program, Migratory Bird Hunter Surveys, Sandhill Crane Survey, and Parts Collection Survey.
Based on our most current data, we are affirming our required determinations made in earlier proposed rules; for descriptions of our actions to ensure compliance with the following statutes and Executive Orders, see our April 9, and June 14, 2013, proposed rules (78 FR 21200 and 78 FR 35844):
• Regulatory Planning and Review (Executive Orders 12866 and 13563);
• Endangered Species Act;
• Regulatory Flexibility Act;
• Small Business Regulatory Enforcement Fairness Act;
• Unfunded Mandates Reform Act;
• Executive Orders 12630, 12988, 13175, 13132, and 13211.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
The rules that eventually will be promulgated for the 2013–14 hunting season are authorized under 16 U.S.C. 703–712 and 16 U.S.C. 742 a–j.
Pursuant to the Migratory Bird Treaty Act and delegated authorities, the Department of the Interior approved the following proposed frameworks, which prescribe season lengths, bag limits, shooting hours, and outside dates within which States may select hunting seasons for certain migratory game birds between September 1, 2013, and March 10, 2014. These frameworks are summarized below.
Dates: All outside dates noted below are inclusive.
Shooting and Hawking (taking by falconry) Hours: Unless otherwise specified, from one-half hour before sunrise to sunset daily.
Possession Limits: Unless otherwise specified, possession limits are three times the daily bag limit.
Permits: For some species of migratory birds, the Service authorizes the use of permits to regulate harvest or monitor their take by sport hunters, or both. In many cases (e.g., tundra swans, some sandhill crane populations), the Service determines the amount of harvest that may be taken during hunting seasons during its formal regulations-setting process, and the States then issue permits to hunters at levels predicted to result in the amount of take authorized by the Service. Thus, although issued by States, the permits would not be valid unless the Service approved such take in its regulations.
These Federally authorized, State-issued permits are issued to individuals, and only the individual whose name and address appears on the permit at the time of issuance is authorized to take migratory birds at levels specified in the permit, in accordance with provisions of both Federal and State regulations governing the hunting season. The permit must be carried by the permittee when exercising its provisions and must be presented to any law enforcement officer upon request. The permit is not transferrable or assignable to another individual, and may not be sold, bartered, traded, or otherwise provided to another person. If the permit is altered or defaced in any way, the permit becomes invalid.
Other geographic descriptions are contained in a later portion of this document.
In the Atlantic Flyway States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, North Carolina, Pennsylvania, and Virginia, where Sunday hunting is prohibited Statewide by State law, all Sundays are closed to all take of migratory waterfowl (including mergansers and coots).
Outside Dates: Between September 1 and September 30, an open season on all species of teal may be selected by the following States in areas delineated by State regulations:
Outside Dates: States may select 2 days per duck-hunting zone, designated as “Youth Waterfowl Hunting Days,” in addition to their regular duck seasons. The days must be held outside any regular duck season on a weekend, holidays, or other non-school days when youth hunters would have the maximum opportunity to participate. The days may be held up to 14 days before or after any regular duck-season frameworks or within any split of a regular duck season, or within any other open season on migratory birds.
Daily Bag Limits: The daily bag limits may include ducks, geese, mergansers, coots, and gallinules and will be the same as those allowed in the regular season. Flyway species and area restrictions will remain in effect.
Shooting Hours: One-half hour before sunrise to sunset.
Participation Restrictions: Youth hunters must be 15 years of age or younger. In addition, an adult at least 18 years of age must accompany the youth hunter into the field. This adult may not duck hunt but may participate in other seasons that are open on the special youth day.
Outside Dates: Between September 15 and January 31.
Hunting Seasons and Daily Bag Limits: Not to exceed 107 days, with a daily bag limit of 7, singly or in the aggregate, of the listed sea duck species, of which no more than 4 may be scoters.
Daily Bag Limits During the Regular Duck Season: Within the special sea duck areas, during the regular duck season in the Atlantic Flyway, States may choose to allow the above sea duck limits in addition to the limits applying to other ducks during the regular duck season. In all other areas, sea ducks may be taken only during the regular open season for ducks and are part of the regular duck season daily bag (not to exceed 4 scoters) and possession limits.
Areas: In all coastal waters and all waters of rivers and streams seaward from the first upstream bridge in Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, and New York; in any waters of the Atlantic Ocean and in any tidal waters of any bay which are separated by at least 1 mile of open water from any shore, island, and emergent vegetation in New Jersey, South Carolina, and Georgia; and in any waters of the Atlantic Ocean and in any tidal waters of any bay which are separated by at least 800 yards of open water from any shore, island, and emergent vegetation in Delaware, Maryland, North Carolina, and Virginia; and provided that any such areas have been described, delineated, and designated as special sea duck hunting areas under the hunting regulations adopted by the respective States.
A Canada goose season of up to 15 days during September 1–15 may be selected for the Eastern Unit of Maryland. Seasons not to exceed 30 days during September 1–30 may be selected for Connecticut, Florida, Georgia, New Jersey, New York (Long Island Zone only), North Carolina, Rhode Island, and South Carolina. Seasons may not exceed 25 days during September 1–25 in the remainder of the Flyway. Areas open to the hunting of Canada geese must be described, delineated, and designated as such in each State's hunting regulations.
Daily Bag Limits: Not to exceed 15 Canada geese.
Shooting Hours: One-half hour before sunrise to sunset, except that during any general season, shooting hours may extend to one-half hour after sunset if all other waterfowl seasons are closed in the specific applicable area.
Canada goose seasons of up to 15 days during September 1–15 may be selected, except in the Upper Peninsula in Michigan, where the season may not extend beyond September 10, and in Minnesota, where a season of up to 22 days during September 1–22 may be selected. The daily bag limit may not exceed 5 Canada geese, except in designated areas of Minnesota where the daily bag limit may not exceed 10 Canada geese. Areas open to the hunting of Canada geese must be described, delineated, and designated as such in each State's hunting regulations.
A Canada goose season of up to 10 consecutive days during September 1–
Shooting Hours: One-half hour before sunrise to sunset, except that during September 1–15 shooting hours may extend to one-half hour after sunset if all other waterfowl seasons are closed in the specific applicable area.
In Kansas, Nebraska, Oklahoma, South Dakota, and Texas, Canada goose seasons of up to 30 days during September 1–30 may be selected. In Colorado, New Mexico, North Dakota, Montana, and Wyoming, Canada goose seasons of up to 15 days during September 1–15 may be selected. The daily bag limit may not exceed 5 Canada geese, except in Kansas, Nebraska, and Oklahoma, where the daily bag limit may not exceed 8 Canada geese and in North Dakota and South Dakota, where the daily bag limit may not exceed 15 Canada geese. Areas open to the hunting of Canada geese must be described, delineated, and designated as such in each State's hunting regulations.
Shooting Hours: One-half hour before sunrise to sunset, except that during September 1–15 shooting hours may extend to one-half hour after sunset if all other waterfowl seasons are closed in the specific applicable area.
California may select a 9-day season in Humboldt County during the period September 1–15. The daily bag limit is 2.
Colorado may select a 9-day season during the period of September 1–15. The daily bag limit is 4.
Oregon may select a special Canada goose season of up to 15 days during the period September 1–15. In addition, in the NW Goose Management Zone in Oregon, a 15-day season may be selected during the period September 1–20. Daily bag limits may not exceed 5 Canada geese.
Idaho may select a 7-day season during the period September 1–15. The daily bag limit is 2.
Washington may select a special Canada goose season of up to 15 days during the period September 1–15. Daily bag limits may not exceed 5 Canada geese.
Wyoming may select an 8-day season on Canada geese during the period September 1–15. This season is subject to the following conditions:
A. Where applicable, the season must be concurrent with the September portion of the sandhill crane season.
B. A daily bag limit of 3, with season and possession limits of 9, will apply to the special season.
Areas open to hunting of Canada geese in each State must be described, delineated, and designated as such in each State's hunting regulations.
Regular goose seasons may open as early as September 11 in the Upper Peninsula of Michigan and September 16 in Wisconsin and the Lower Peninsula of Michigan. Season lengths, bag and possession limits, and other provisions will be established during the late-season regulations process.
Outside Dates: Between September 1 and February 28.
Hunting Seasons: A season not to exceed 37 consecutive days may be selected in the designated portion of northwestern Minnesota (Northwest Goose Zone).
Daily Bag Limit: 2 sandhill cranes.
Permits: Each person participating in the regular sandhill crane season must have a valid Federal or State sandhill crane hunting permit.
Outside Dates: Between September 1 and January 31.
Hunting Seasons: A season not to exceed 30 consecutive days may be selected in Kentucky and a season not to exceed 60 consecutive days may be selected in Tennessee.
Daily Bag Limit: Not to exceed 2 daily and 2 per season in Kentucky. Not to exceed 3 daily and 3 per season in Tennessee.
Permits: Each person participating in the regular sandhill crane season must have a valid Federal or State sandhill crane hunting permit.
Other Provisions: Numbers of permits, open areas, season dates, protection plans for other species, and other provisions of seasons must be consistent with the management plan and approved by the Mississippi Flyway Council.
Outside Dates: Between September 1 and February 28.
Hunting Seasons: Seasons not to exceed 37 consecutive days may be selected in designated portions of Texas (Area 2). Seasons not to exceed 58 consecutive days may be selected in designated portions of the following States: Colorado, Kansas, Montana, North Dakota, South Dakota, and Wyoming. Seasons not to exceed 93 consecutive days may be selected in designated portions of the following States: New Mexico, Oklahoma, and Texas.
Daily Bag Limits: 3 sandhill cranes, except 2 sandhill cranes in designated portions of North Dakota (Area 2) and Texas (Area 2).
Permits: Each person participating in the regular sandhill crane season must have a valid Federal or State sandhill crane hunting permit.
Arizona, Colorado, Idaho, Montana, New Mexico, Utah, and Wyoming may select seasons for hunting sandhill cranes within the range of the Rocky Mountain Population (RMP) subject to the following conditions:
Outside Dates: Between September 1 and January 31.
Hunting Seasons: The season in any State or zone may not exceed 30 consecutive days.
Bag limits: Not to exceed 3 daily and 9 per season.
Permits: Participants must have a valid permit, issued by the appropriate State, in their possession while hunting.
Other Provisions: Numbers of permits, open areas, season dates, protection plans for other species, and other provisions of seasons must be consistent with the management plan and approved by the Central and Pacific Flyway Councils, with the following exceptions:
A. In Utah, 100 percent of the harvest will be assigned to the RMP quota;
B. In Arizona, monitoring the racial composition of the harvest must be conducted at 3-year intervals;
C. In Idaho, 100 percent of the harvest will be assigned to the RMP quota; and
D. In New Mexico, the season in the Estancia Valley is experimental, with a requirement to monitor the level and racial composition of the harvest; greater sandhill cranes in the harvest will be assigned to the RMP quota.
Arizona may select a season for hunting sandhill cranes within the range of the Lower Colorado River Population (LCR) of sandhill cranes, subject to the following conditions:
Outside Dates: Between January 1 and January 31.
Hunting Seasons: The season may not exceed 3 days.
Bag limits: Not to exceed 1 daily and 1 per season.
Permits: Participants must have a valid permit, issued by the appropriate State, in their possession while hunting.
Other provisions: The season is experimental. Numbers of permits, open areas, season dates, protection plans for other species, and other provisions of seasons must be consistent with the management plan and approved by the Pacific Flyway Council.
Outside Dates: Between September 1 and the last Sunday in January (January 26) in the Atlantic, Mississippi, and Central Flyways. States in the Pacific Flyway have been allowed to select their hunting seasons between the outside dates for the season on ducks; therefore, they are late-season frameworks, and no frameworks are provided in this document.
Hunting Seasons and Daily Bag Limits: Seasons may not exceed 70 days in the Atlantic, Mississippi, and Central Flyways. Seasons may be split into 2 segments. The daily bag limit is 15 common moorhens and purple gallinules, singly or in the aggregate of the two species.
Zoning: Seasons may be selected by zones established for duck hunting.
Outside Dates: States included herein may select seasons between September 1 and the last Sunday in January (January 26) on clapper, king, sora, and Virginia rails.
Hunting Seasons: Seasons may not exceed 70 days, and may be split into 2 segments.
Daily Bag Limits:
Clapper and King Rails—In Rhode Island, Connecticut, New Jersey, Delaware, and Maryland, 10, singly or in the aggregate of the two species. In Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, South Carolina, North Carolina, and Virginia, 15, singly or in the aggregate of the two species.
Sora and Virginia Rails—In the Atlantic, Mississippi, and Central Flyways and the Pacific Flyway portions of Colorado, Montana, New Mexico, and Wyoming, 25 rails, singly or in the aggregate of the two species. The season is closed in the remainder of the Pacific Flyway.
Outside Dates: Between September 1 and February 28, except in Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, and Virginia, where the season must end no later than January 31.
Hunting Seasons and Daily Bag Limits: Seasons may not exceed 107 days and may be split into two segments. The daily bag limit is 8 snipe.
Zoning: Seasons may be selected by zones established for duck hunting.
Outside Dates: States in the Eastern Management Region may select hunting seasons between October 1 and January 31. States in the Central Management Region may select hunting seasons between the Saturday nearest September 22 (September 21) and January 31.
Hunting Seasons and Daily Bag Limits: Seasons may not exceed 45 days in the Eastern Region and 45 days in the Central Region. The daily bag limit is 3. Seasons may be split into two segments.
Zoning: New Jersey may select seasons in each of two zones. The season in each zone may not exceed 36 days.
Outside Dates: Between September 15 and January 1.
Hunting Seasons and Daily Bag Limits: Not more than 9 consecutive days, with a daily bag limit of 2 band-tailed pigeons.
Zoning: California may select hunting seasons not to exceed 9 consecutive days in each of two zones. The season in the North Zone must close by October 3.
Outside Dates: Between September 1 and November 30.
Hunting Seasons and Daily Bag Limits: Not more than 30 consecutive days, with a daily bag limit of 5 band-tailed pigeons.
Zoning: New Mexico may select hunting seasons not to exceed 20 consecutive days in each of two zones. The season in the South Zone may not open until October 1.
Outside Dates: Between September 1 and January 15, except as otherwise provided, States may select hunting seasons and daily bag limits as follows:
Hunting Seasons and Daily Bag Limits: Not more than 70 days, with a daily bag limit of 15 mourning and white-winged doves in the aggregate.
Zoning and Split Seasons: States may select hunting seasons in each of two zones. The season within each zone may be split into not more than three periods. Regulations for bag and possession limits, season length, and shooting hours must be uniform within specific hunting zones.
For all States except Texas:
Hunting Seasons and Daily Bag Limits: Not more than 70 days, with a daily bag limit of 15 mourning and white-winged doves in the aggregate.
Zoning and Split Seasons: States may select hunting seasons in each of two zones. The season within each zone may be split into not more than three periods.
Texas:
Hunting Seasons and Daily Bag Limits: Not more than 70 days, with a daily bag limit of 15 mourning, white-winged, and white-tipped doves in the aggregate, of which no more than 2 may be white-tipped doves.
Zoning and Split Seasons: Texas may select hunting seasons for each of three zones subject to the following conditions:
A. The hunting season may be split into not more than two periods, except in that portion of Texas in which the special white-winged dove season is allowed, where a limited take of mourning and white-tipped doves may also occur during that special season (see Special White-winged Dove Area).
B. A season may be selected for the North and Central Zones between September 1 and January 25; and for the South Zone between the Friday nearest September 20 (September 20), but not earlier than September 17, and January 25.
C. Except as noted above, regulations for bag and possession limits, season length, and shooting hours must be uniform within each hunting zone.
Special White-winged Dove Area in Texas:
In addition, Texas may select a hunting season of not more than 4 days for the Special White-winged Dove Area of the South Zone between September 1 and September 19. The daily bag limit may not exceed 15 white-winged, mourning, and white-tipped doves in the aggregate, of which no more than 2 may be mourning doves and no more than 2 may be white-tipped doves.
Idaho, Nevada, Oregon, Utah, and Washington—Not more than 30
Arizona and California—Not more than 60 days, which may be split between two periods, September 1–15 and November 1–January 15. In Arizona, during the first segment of the season, the daily bag limit is 10 mourning and white-winged doves in the aggregate. During the remainder of the season, the daily bag limit is 10 mourning doves. In California, the daily bag limit is 10 mourning and white-winged doves in the aggregate.
Outside Dates: Between September 1 and January 26.
Hunting Seasons: Alaska may select 107 consecutive days for waterfowl, sandhill cranes, and common snipe in each of 5 zones. The season may be split without penalty in the Kodiak Zone. The seasons in each zone must be concurrent.
Closures: The hunting season is closed on emperor geese, spectacled eiders, and Steller's eiders.
Daily Bag and Possession Limits:
Ducks—Except as noted, a basic daily bag limit of 7 ducks. Daily bag limits in the North Zone are 10, and in the Gulf Coast Zone, they are 8. The basic limits may include no more than 1 canvasback daily and may not include sea ducks.
In addition to the basic duck limits, Alaska may select sea duck limits of 10 daily, singly or in the aggregate, including no more than 6 each of either harlequin or long-tailed ducks. Sea ducks include scoters, common and king eiders, harlequin ducks, long-tailed ducks, and common and red-breasted mergansers.
Light Geese—A basic daily bag limit of 4.
Dark Geese—A basic daily bag limit of 4.
Dark-goose seasons are subject to the following exceptions:
A. In Units 5 and 6, the taking of Canada geese is permitted from September 28 through December 16.
B. On Middleton Island in Unit 6, a special, permit-only Canada goose season may be offered. A mandatory goose identification class is required. Hunters must check in and check out. The bag limit is 1 daily and 1 in possession. The season will close if incidental harvest includes 5 dusky Canada geese. A dusky Canada goose is any dark-breasted Canada goose (Munsell 10 YR color value five or less) with a bill length between 40 and 50 millimeters.
C. In Units 6–B, 6–C, and on Hinchinbrook and Hawkins Islands in Unit 6–D, a special, permit-only Canada goose season may be offered. Hunters must have all harvested geese checked and classified to subspecies. The daily bag limit is 4 daily. The Canada goose season will close in all of the permit areas if the total dusky goose (as defined above) harvest reaches 40.
D. In Units 9, 10, 17, and 18, dark goose limits are 6 per day.
Brant—A daily bag limit of 2.
Common snipe—A daily bag limit of 8.
Sandhill cranes—Bag limit of 2 in the Southeast, Gulf Coast, Kodiak, and Aleutian Zones, and Unit 17 in the Northern Zone. In the remainder of the Northern Zone (outside Unit 17), bag limit of 3.
Tundra Swans—Open seasons for tundra swans may be selected subject to the following conditions:
A. All seasons are by registration permit only.
B. All season framework dates are September 1–October 31.
C. In Game Management Unit (GMU) 17, no more than 200 permits may be issued during this operational season. No more than 3 tundra swans may be authorized per permit, with no more than 1 permit issued per hunter per season.
D. In Game Management Unit (GMU) 18, no more than 500 permits may be issued during the operational season. Up to 3 tundra swans may be authorized per permit. No more than 1 permit may be issued per hunter per season.
E. In GMU 22, no more than 300 permits may be issued during the operational season. Each permittee may be authorized to take up to 3 tundra swans per permit. No more than 1 permit may be issued per hunter per season.
F. In GMU 23, no more than 300 permits may be issued during the operational season. No more than 3 tundra swans may be authorized per permit, with no more than 1 permit issued per hunter per season.
Outside Dates: Between October 1 and January 31.
Hunting Seasons: Not more than 65 days (75 under the alternative) for mourning doves.
Bag Limits: Not to exceed 15 (12 under the alternative) mourning doves.
Mourning doves may be taken in Hawaii in accordance with shooting hours and other regulations set by the State of Hawaii, and subject to the applicable provisions of 50 CFR part 20.
Outside Dates: Between September 1 and January 15.
Hunting Seasons: Not more than 60 days.
Daily Bag and Possession Limits: Not to exceed 20 Zenaida, mourning, and white-winged doves in the aggregate, of which not more than 10 may be Zenaida doves and 3 may be mourning doves. Not to exceed 5 scaly-naped pigeons.
Closed Seasons: The season is closed on the white-crowned pigeon and the plain pigeon, which are protected by the Commonwealth of Puerto Rico.
Closed Areas: There is no open season on doves or pigeons in the following areas: Municipality of Culebra, Desecheo Island, Mona Island, El Verde Closure Area, and Cidra Municipality and adjacent areas.
Outside Dates: Between October 1 and January 31.
Hunting Seasons: Not more than 55 days may be selected for hunting ducks, common moorhens, and common snipe. The season may be split into two segments.
Daily Bag Limits:
Ducks—Not to exceed 6.
Common moorhens—Not to exceed 6.
Common snipe—Not to exceed 8.
Closed Seasons: The season is closed on the ruddy duck, white-cheeked pintail, West Indian whistling duck, fulvous whistling duck, and masked duck, which are protected by the Commonwealth of Puerto Rico. The season also is closed on the purple gallinule, American coot, and Caribbean coot.
Closed Areas: There is no open season on ducks, common moorhens, and common snipe in the Municipality of Culebra and on Desecheo Island.
Outside Dates: Between September 1 and January 15.
Hunting Seasons: Not more than 60 days for Zenaida doves.
Daily Bag and Possession Limits: Not to exceed 10 Zenaida doves.
Closed Seasons: No open season is prescribed for ground or quail doves or pigeons.
Closed Areas: There is no open season for migratory game birds on Ruth Cay (just south of St. Croix).
Local Names for Certain Birds: Zenaida dove, also known as mountain dove; bridled quail-dove, also known as
Outside Dates: Between December 1 and January 31.
Hunting Seasons: Not more than 55 consecutive days.
Daily Bag Limits: Not to exceed 6.
Closed Seasons: The season is closed on the ruddy duck, white-cheeked pintail, West Indian whistling duck, fulvous whistling duck, and masked duck.
Falconry is a permitted means of taking migratory game birds in any State meeting Federal falconry standards in 50 CFR 21.29. These States may select an extended season for taking migratory game birds in accordance with the following:
Extended Seasons: For all hunting methods combined, the combined length of the extended season, regular season, and any special or experimental seasons must not exceed 107 days for any species or group of species in a geographical area. Each extended season may be divided into a maximum of 3 segments.
Framework Dates: Seasons must fall between September 1 and March 10.
Daily Bag Limits: Falconry daily bag limits for all permitted migratory game birds must not exceed 3 birds, singly or in the aggregate, during extended falconry seasons, any special or experimental seasons, and regular hunting seasons in all States, including those that do not select an extended falconry season.
Regular Seasons: General hunting regulations, including seasons and hunting hours, apply to falconry in each State listed in 50 CFR 21.29. Regular season bag limits do not apply to falconry. The falconry bag limit is not in addition to gun limits.
South Zone—Baldwin, Barbour, Coffee, Covington, Dale, Escambia, Geneva, Henry, Houston, and Mobile Counties.
North Zone—Remainder of the State.
White-winged Dove Open Areas—Imperial, Riverside, and San Bernardino Counties.
Northwest Zone—The Counties of Bay, Calhoun, Escambia, Franklin, Gadsden, Gulf, Holmes, Jackson, Liberty, Okaloosa, Santa Rosa, Walton, Washington, Leon (except that portion north of U.S. 27 and east of State Road 155), Jefferson (south of U.S. 27, west of State Road 59 and north of U.S. 98), and Wakulla (except that portion south of U.S. 98 and east of the St. Marks River).
South Zone—Remainder of State.
North Zone—That portion of the State north of a line extending east from the Texas border along State Highway 12 to U.S. Highway 190, east along U.S. 190 to Interstate Highway 12, east along Interstate 12 to Interstate Highway 10, then east along Interstate Highway 10 to the Mississippi border.
South Zone—The remainder of the State.
North Zone—That portion of the State north and west of a line extending west from the Alabama State line along U.S. Highway 84 to its junction with State Highway 35, then south along State Highway 35 to the Louisiana State line.
South Zone—The remainder of Mississippi.
North Zone—That portion of the State north of a line beginning at the International Bridge south of Fort Hancock; north along FM 1088 to TX 20; west along TX 20 to TX 148; north along TX 148 to I–10 at Fort Hancock; east along I–10 to I–20; northeast along I–20 to I–30 at Fort Worth; northeast along I–30 to the Texas–Arkansas State line.
South Zone—That portion of the State south and west of a line beginning at the International Bridge south of Del Rio, proceeding east on U.S. 90 to State Loop 1604 west of San Antonio; then south, east, and north along Loop 1604 to Interstate Highway 10 east of San Antonio; then east on I–10 to Orange, Texas.
Special White-winged Dove Area in the South Zone—That portion of the state south and west of a line beginning at the International Toll Bridge in Del Rio; then northeast along U.S. Highway 277 Spur to Highway 90 in Del Rio; thence east along U.S. Highway 90 to State Loop 1604; thence along Loop 1604 south and east to Interstate Highway 37; thence south along Interstate Highway 37 to U.S. Highway 181 in Corpus Christi; thence north and east along U.S. 181 to the Corpus Christi Ship Channel, thence eastwards along the south shore of the Corpus Christi Ship Channel to the Gulf of Mexico.
Central Zone—That portion of the State lying between the North and South Zones.
North Zone—Alpine, Butte, Del Norte, Glenn, Humboldt, Lassen, Mendocino, Modoc, Plumas, Shasta, Sierra, Siskiyou, Tehama, and Trinity Counties.
South Zone—The remainder of the State.
North Zone—North of a line following U.S. 60 from the Arizona State line east to I–25 at Socorro and then south along I–25 from Socorro to the Texas State line.
South Zone—The remainder of the State.
Western Washington—The State of Washington excluding those portions lying east of the Pacific Crest Trail and east of the Big White Salmon River in Klickitat County.
North Zone—That portion of the State north of NJ 70.
South Zone—The remainder of the State.
North Zone—That portion of the State north of I–95.
South Zone—The remainder of the State.
Eastern Unit—Calvert, Caroline, Cecil, Dorchester, Harford, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Wicomico, and Worcester Counties; and that part of Anne Arundel County east of Interstate 895, Interstate 97 and Route 3; that part of Prince George's County east of Route 3 and Route 301; and that part of Charles County east of Route 301 to the Virginia State line.
Western Unit—Allegany, Baltimore, Carroll, Frederick, Garrett, Howard, Montgomery, and Washington Counties and that part of Anne Arundel County west of Interstate 895, Interstate 97 and Route 3; that part of Prince George's County west of Route 3 and Route 301; and that part of Charles County west of Route 301 to the Virginia State line.
Western Zone—That portion of the State west of a line extending south from the Vermont border on I–91 to MA 9, west on MA 9 to MA 10, south on MA 10 to U.S. 202, south on U.S. 202 to the Connecticut border.
Central Zone—That portion of the State east of the Berkshire Zone and west of a line extending south from the New Hampshire border on I–95 to U.S. 1, south on U.S. 1 to I–93, south on I–93 to MA 3, south on MA 3 to U.S. 6, west on U.S. 6 to MA 28, west on MA 28 to I–195, west to the Rhode Island border; except the waters, and the lands 150 yards inland from the high-water mark, of the Assonet River upstream to the MA 24 bridge, and the Taunton River upstream to the Center St.–Elm St. bridge will be in the Coastal Zone.
Coastal Zone—That portion of Massachusetts east and south of the Central Zone.
Lake Champlain Zone—The U.S. portion of Lake Champlain and that area east and north of a line extending along NY 9B from the Canadian border to U.S. 9, south along U.S. 9 to NY 22 south of Keesville; south along NY 22 to the west shore of South Bay, along and around the shoreline of South Bay to NY 22 on the east shore of South Bay; southeast along NY 22 to U.S. 4, northeast along U.S. 4 to the Vermont border.
Eastern Long Island Goose Area (North Atlantic Population (NAP) High Harvest Area)—That area of Suffolk County lying east of a continuous line extending due south from the New York-Connecticut boundary to the northernmost end of Roanoke Avenue in the Town of Riverhead; then south on Roanoke Avenue (which becomes County Route 73) to State Route 25; then west on Route 25 to Peconic Avenue; then south on Peconic Avenue to County Route (CR) 104 (Riverleigh Avenue); then south on CR 104 to CR 31 (Old Riverhead Road); then south on CR 31 to Oak Street; then south on Oak Street to Potunk Lane; then west on Stevens Lane; then south on Jessup Avenue (in Westhampton Beach) to Dune Road (CR 89); then due south to international waters.
Western Long Island Goose Area (Resident Population (RP) Area)—That area of Westchester County and its tidal waters southeast of Interstate Route 95 and that area of Nassau and Suffolk Counties lying west of a continuous line extending due south from the New York-Connecticut boundary to the northernmost end of the Sunken Meadow State Parkway; then south on the Sunken Meadow Parkway to the Sagtikos State Parkway; then south on the Sagtikos Parkway to the Robert Moses State Parkway; then south on the Robert Moses Parkway to its southernmost end; then due south to international waters.
Central Long Island Goose Area (NAP Low Harvest Area)—That area of Suffolk County lying between the Western and Eastern Long Island Goose Areas, as defined above.
Western Zone—That area west of a line extending from Lake Ontario east along the north shore of the Salmon River to I–81, and south along I–81 to the Pennsylvania border.
Northeastern Zone—That area north of a line extending from Lake Ontario east along the north shore of the Salmon River to I–81, south along I–81 to NY 49, east along NY 49 to NY 365, east along NY 365 to NY 28, east along NY 28 to NY 29, east along NY 29 to I–87, north along I–87 to U.S. 9 (at Exit 20), north along U.S. 9 to NY 149, east along NY 149 to U.S. 4, north along U.S. 4 to the Vermont border, exclusive of the Lake Champlain Zone.
Southeastern Zone—The remaining portion of New York.
Southern James Bay Population (SJBP) Zone—The area north of I–80 and west of I–79, including in the city of Erie west of Bay Front Parkway to and including the Lake Erie Duck Zone (Lake Erie, Presque Isle, and the area within 150 yards of the Lake Erie Shoreline).
Lake Champlain Zone—The U.S. portion of Lake Champlain and that area north and west of the line extending from the New York border along U.S. 4 to VT 22A at Fair Haven; VT 22A to U.S. 7 at Vergennes; U.S. 7 to VT 78 at Swanton; VT 78 to VT 36; VT 36 to Maquam Bay on Lake Champlain; along and around the shoreline of Maquam Bay and Hog Island to VT 78 at the West Swanton Bridge; VT 78 to VT 2 in Alburg; VT 2 to the Richelieu River in Alburg; along the east shore of the Richelieu River to the Canadian border.
Interior Zone—That portion of Vermont east of the Lake Champlain Zone and west of a line extending from the Massachusetts border at Interstate 91; north along Interstate 91 to US 2; east along US 2 to VT 102; north along VT 102 to VT 253; north along VT 253 to the Canadian border.
Connecticut River Zone—The remaining portion of Vermont east of the Interior Zone.
Early Canada Goose Area—Baxter, Benton, Boone, Carroll, Clark, Conway, Crawford, Faulkner, Franklin, Garland, Hempstead, Hot Springs, Howard, Johnson, Lafayette, Little River, Logan, Madison, Marion, Miller, Montgomery, Newton, Perry, Pike, Polk, Pope, Pulaski, Saline, Searcy, Sebastian, Sevier, Scott, Van Buren, Washington, and Yell Counties.
North September Canada Goose Zone—That portion of the State north of a line extending west from the Indiana border along Interstate 80 to I–39, south along I–39 to Illinois Route 18, west along Illinois Route 18 to Illinois Route 29, south along Illinois Route 29 to Illinois Route 17, west along Illinois Route 17 to the Mississippi River, and due south across the Mississippi River to the Iowa border.
Central September Canada Goose Zone—That portion of the State south of the North September Canada Goose Zone line to a line extending west from the Indiana border along I–70 to Illinois Route 4, south along Illinois Route 4 to Illinois Route 161, west along Illinois Route 161 to Illinois Route 158, south and west along Illinois Route 158 to Illinois Route 159, south along Illinois Route 159 to Illinois Route 3, south along Illinois Route 3 to St. Leo's Road, south along St. Leo's road to Modoc Road, west along Modoc Road to Modoc Ferry Road, southwest along Modoc Ferry Road to Levee Road, southeast along Levee Road to County Route 12 (Modoc Ferry entrance Road), south along County Route 12 to the Modoc Ferry route and southwest on the Modoc Ferry route across the Mississippi River to the Missouri border.
South September Canada Goose Zone—That portion of the State south and east of a line extending west from the Indiana border along Interstate 70, south along U.S. Highway 45, to Illinois Route 13, west along Illinois Route 13 to Greenbriar Road, north on Greenbriar Road to Sycamore Road, west on Sycamore Road to N. Reed Station Road, south on N. Reed Station Road to Illinois Route 13, west along Illinois Route 13 to Illinois Route 127, south along Illinois Route 127 to State Forest Road (1025 N), west along State Forest Road to Illinois Route 3, north along Illinois Route 3 to the south bank of the Big Muddy River, west along the south bank of the Big Muddy River to the Mississippi River, west across the Mississippi River to the Missouri border.
South Central September Canada Goose Zone—The remainder of the State between the south border of the Central Zone and the North border of the South Zone
North Zone—That portion of the State north of U.S. Highway 20.
South Zone—The remainder of Iowa.
Cedar Rapids/Iowa City Goose Zone—Includes portions of Linn and Johnson Counties bounded as follows: Beginning at the intersection of the west border of Linn County and Linn County Road E2W; then south and east along County Road E2W to Highway 920; then north along Highway 920 to County Road E16; then east along County Road E16 to County Road W58; then south along County Road W58 to County Road E34; then east along County Road E34 to Highway 13; then south along Highway 13 to Highway 30; then east along Highway 30 to Highway 1; then south along Highway 1 to Morse Road in Johnson County; then east along Morse Road to Wapsi Avenue; then south along Wapsi Avenue to Lower West Branch Road; then west along Lower West Branch Road to Taft Avenue; then south along Taft Avenue to County Road F62; then west along County Road F62 to Kansas Avenue; then north along Kansas Avenue to Black Diamond Road; then west on Black Diamond Road to Jasper Avenue; then north along Jasper Avenue to Rohert Road; then west along Rohert Road to Ivy Avenue; then north along Ivy Avenue to 340th Street; then west along 340th Street to Half Moon Avenue; then north along Half Moon Avenue to Highway 6; then west along Highway 6 to Echo Avenue; then north along Echo Avenue to 250th Street; then east on 250th Street to Green Castle Avenue; then north along Green Castle Avenue to County Road F12; then west along County Road F12 to County Road W30; then north along County Road W30 to Highway 151; then north along the Linn–Benton County line to the point of beginning.
Des Moines Goose Zone—Includes those portions of Polk, Warren, Madison and Dallas Counties bounded as follows: Beginning at the intersection of Northwest 158th Avenue and County Road R38 in Polk County; then south along R38 to Northwest 142nd Avenue; then east along Northwest 142nd Avenue to Northeast 126th Avenue; then east along Northeast 126th Avenue to Northeast 46th Street; then south along Northeast 46th Street to Highway 931; then east along Highway 931 to Northeast 80th Street; then south along Northeast 80th Street to Southeast 6th Avenue; then west along Southeast 6th Avenue to Highway 65; then south and west along Highway 65 to Highway 69 in Warren County; then south along Highway 69 to County Road G24; then west along County Road G24 to Highway 28; then southwest along Highway 28 to 43rd Avenue; then north along 43rd Avenue to Ford Street; then west along Ford Street to Filmore Street; then west along Filmore Street to 10th Avenue; then south along 10th Avenue to 155th Street in Madison County; then west along 155th Street to Cumming Road; then north along Cumming Road to Badger Creek Avenue; then north along Badger Creek Avenue to County Road F90 in Dallas County; then east along County Road F90 to County Road R22; then north along County Road R22 to Highway 44; then east along Highway 44 to County Road R30; then north along County Road R30 to County Road F31; then east along County Road F31 to Highway 17; then north along Highway 17 to Highway 415 in Polk County; then east along Highway 415 to Northwest 158th Avenue; then east along Northwest 158th Avenue to the point of beginning.
Cedar Falls/Waterloo Goose Zone—Includes those portions of Black Hawk County bounded as follows: Beginning at the intersection of County Roads C66 and V49 in Black Hawk County, then south along County Road V49 to County Road D38, then west along County Road D38 to State Highway 21, then south along State Highway 21 to County Road D35, then west along County Road D35 to Grundy Road, then north along Grundy Road to County Road D19, then west along County Road D19 to Butler Road, then north along Butler Road to County Road C57, then north and east along County Road C57 to U.S. Highway 63, then south along U.S. Highway 63 to County Road C66, then east along County Road C66 to the point of beginning.
North Zone—Same as North duck zone.
Middle Zone—Same as Middle duck zone.
South Zone—Same as South duck zone.
Northwest Goose Zone—That portion of the State encompassed by a line extending east from the North Dakota border along U.S. Highway 2 to State Trunk Highway (STH) 32, north along STH 32 to STH 92, east along STH 92 to County State Aid Highway (CSAH) 2 in Polk County, north along CSAH 2 to CSAH 27 in Pennington County, north along CSAH 27 to STH 1, east along STH 1 to CSAH 28 in Pennington County, north along CSAH 28 to CSAH 54 in Marshall County, north along CSAH 54 to CSAH 9 in Roseau County, north along CSAH 9 to STH 11, west along STH 11 to STH 310, and north along STH 310 to the Manitoba border.
Intensive Harvest Zone—That portion of the State encompassed by a line extending east from the junction of US 2 and the North Dakota border, US 2 east to MN 32 N, MN 32 N to MN 92 S, MN 92 S to MN 200 E, MN 200 E to US 71 S, US 71 S to US 10 E, US 10 E to MN 101 S, MN 101 S to Interstate 94 E, Interstate 94 East to US 494 S, US 494 S to US 212 W, US 212 W to MN 23 S, MN 23 S to US 14 W, US 14 W to the South Dakota border, South Dakota Border north to the North Dakota border, North Dakota border north to US 2 E.
Rest of State: Remainder of Minnesota.
Early-Season Subzone A—That portion of the State encompassed by a line beginning at the intersection of U.S. Highway 141 and the Michigan border near Niagara, then south along U.S. 141 to State Highway 22, west and southwest along State 22 to U.S. 45, south along U.S. 45 to State 22, west and south along State 22 to State 110, south along State 110 to U.S. 10, south along U.S. 10 to State 49, south along State 49 to State 23, west along State 23 to State 73, south along State 73 to State 60, west along State 60 to State 23, south along State 23 to State 11, east along State 11 to State 78, then south along State 78 to the Illinois border.
Early-Season Subzone B—The remainder of the State.
Missouri River Canada Goose Zone—The area within and bounded by a line starting where ND Hwy 6 crosses the South Dakota border; then north on ND Hwy 6 to I–94; then west on I–94 to ND Hwy 49; then north on ND Hwy 49 to ND Hwy 200; then north on Mercer County Rd. 21 to the section line between sections 8 and 9 (T146N–R87W); then north on that section line to the southern shoreline to Lake Sakakawea; then east along the southern shoreline (including Mallard Island) of Lake Sakakawea to US Hwy 83; then south on US Hwy 83 to ND Hwy 200; then east on ND Hwy 200 to ND Hwy 41; then south on ND Hwy 41 to US Hwy 83; then south on US Hwy 83 to I–94; then east on I–94 to US Hwy 83; then south on US Hwy 83 to the South
Rest of State—Remainder of North Dakota.
Special Early Canada Goose Unit—The Counties of Campbell, Marshall, Roberts, Day, Clark, Codington, Grant, Hamlin, Deuel, Walworth; that portion of Dewey County north of Bureau of Indian Affairs Road 8, Bureau of Indian Affairs Road 9, and the section of U.S. Highway 212 east of the Bureau of Indian Affairs Road 8 junction; that portion of Potter County east of U.S. Highway 83; that portion of Sully County east of U.S. Highway 83; portions of Hyde, Buffalo, Brule, and Charles Mix counties north and east of a line beginning at the Hughes-Hyde County line on State Highway 34, east to Lees Boulevard, southeast to the State Highway 34, east 7 miles to 350th Avenue, south to Interstate 90 on 350th Avenue, south and east on State Highway 50 to Geddes, east on 285th Street to U.S. Highway 281, and north on U.S. Highway 281 to the Charles Mix-Douglas County boundary; that portion of Bon Homme County north of State Highway 50; that portion of Fall River County west of State Highway 71 and U.S. Highway 385; that portion of Custer County west of State Highway 79 and north of French Creek; McPherson, Edmunds, Kingsbury, Brookings, Lake, Moody, Miner, Faulk, Hand, Jerauld, Douglas, Hutchinson, Turner, Lincoln, Union, Clay, Yankton, Aurora, Beadle, Davison, Hanson, Sanborn, Spink, Brown, Harding, Butte, Lawrence, Meade, Pennington, Shannon, Jackson, Mellette, Todd, Jones, Haakon, Corson, Ziebach, McCook, and Minnehaha Counties.
Eastern Goose Zone—East of a line from the International Toll Bridge at Laredo, north following IH–35 and 35W to Fort Worth, northwest along U.S. Hwy. 81 and 287 to Bowie, north along U.S. Hwy. 81 to the Texas-Oklahoma State line.
East Zone—Bonneville, Caribou, Fremont, and Teton Counties.
Northwest Zone—Benton, Clackamas, Clatsop, Columbia, Lane, Lincoln, Linn, Marion, Polk, Multnomah, Tillamook, Washington, and Yamhill Counties.
Southwest Zone—Coos, Curry, Douglas, Jackson, Josephine, and Klamath Counties.
East Zone—Baker, Gilliam, Malheur, Morrow, Sherman, Umatilla, Union, and Wasco Counties.
Area 1—Skagit, Island, and Snohomish Counties.
Area 2A (SW Quota Zone)—Clark County, except portions south of the Washougal River; Cowlitz County; and Wahkiakum County.
Area 2B (SW Quota Zone)—Pacific County.
Area 3—All areas west of the Pacific Crest Trail and west of the Big White Salmon River that are not included in Areas 1, 2A, and 2B.
Area 4—Adams, Benton, Chelan, Douglas, Franklin, Grant, Kittitas, Lincoln, Okanogan, Spokane, and Walla Walla Counties.
Area 5—All areas east of the Pacific Crest Trail and east of the Big White Salmon River that are not included in Area 4.
Lake Champlain Zone—The U.S. portion of Lake Champlain and that area east and north of a line extending along NY 9B from the Canadian border to U.S. 9, south along U.S. 9 to NY 22 south of Keesville; south along NY 22 to the west shore of South Bay, along and around the shoreline of South Bay to NY 22 on the east shore of South Bay; southeast along NY 22 to U.S. 4, northeast along U.S. 4 to the Vermont border.
Long Island Zone—That area consisting of Nassau County, Suffolk County, that area of Westchester County southeast of I–95, and their tidal waters.
Western Zone—That area west of a line extending from Lake Ontario east along the north shore of the Salmon River to I–81, and south along I–81 to the Pennsylvania border.
Northeastern Zone—That area north of a line extending from Lake Ontario east along the north shore of the Salmon River to I–81, south along I–81 to NY 49, east along NY 49 to NY 365, east along NY 365 to NY 28, east along NY 28 to NY 29, east along NY 29 to I–87, north along I–87 to U.S. 9 (at Exit 20), north along U.S. 9 to NY 149, east along NY 149 to U.S. 4, north along U.S. 4 to the Vermont border, exclusive of the Lake Champlain Zone.
Southeastern Zone—The remaining portion of New York.
Special Teal Season Area— Calvert, Caroline, Cecil, Dorchester, Harford, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Wicomico, and Worcester Counties; that part of Anne Arundel County east of Interstate 895, Interstate 97, and Route 3; that part of Prince Georges County east of Route 3 and Route 301; and that part of Charles County east of Route 301 to the Virginia State Line.
North Zone—That part of Indiana north of a line extending east from the Illinois border along State Road 18 to U.S. 31; north along U.S. 31 to U.S. 24; east along U.S. 24 to Huntington; southeast along U.S. 224; south along State Road 5; and east along State Road 124 to the Ohio border.
Central Zone—That part of Indiana south of the North Zone boundary and north of the South Zone boundary.
South Zone—That part of Indiana south of a line extending east from the Illinois border along U.S. 40; south along U.S. 41; east along State Road 58; south along State Road 37 to Bedford; and east along U.S. 50 to the Ohio border.
North Zone—That portion of Iowa north of a line beginning on the South Dakota-Iowa border at Interstate 29, southeast along Interstate 29 to State Highway 175, east along State Highway 175 to State Highway 37, southeast along State Highway 37 to State Highway 183, northeast along State Highway 183 to State Highway 141, east along State Highway 141 to U.S. Highway 30, and along U.S. Highway 30 to the Illinois border.
Missouri River Zone—That portion of Iowa west of a line beginning on the South Dakota-Iowa border at Interstate 29, southeast along Interstate 29 to State Highway 175, and west along State Highway 175 to the Iowa-Nebraska border.
South Zone—The remainder of Iowa.
North Zone: The Upper Peninsula.
Middle Zone: That portion of the Lower Peninsula north of a line beginning at the Wisconsin State line in Lake Michigan due west of the mouth of Stony Creek in Oceana County; then due east to, and easterly and southerly along the south shore of Stony Creek to Scenic Drive, easterly and southerly along Scenic Drive to Stony Lake Road, easterly along Stony Lake and Garfield Roads to Michigan Highway 20, east along Michigan 20 to U.S. Highway 10 Business Route (BR) in the city of Midland, easterly along U.S. 10 BR to
South Zone: The remainder of Michigan.
North Zone: That portion of the State north of a line extending east from the Minnesota State line along U.S. Highway 10 into Portage County to County Highway HH, east on County Highway HH to State Highway 66 and then east on State Highway 66 to U.S. Highway 10, continuing east on U.S. Highway 10 to U.S. Highway 41, then north on U.S. Highway 41 to the Michigan State line.
Mississippi River Zone: That area encompassed by a line beginning at the intersection of the Burlington Northern & Santa Fe Railway and the Illinois State line in Grant County and extending northerly along the Burlington Northern & Santa Fe Railway to the city limit of Prescott in Pierce County, then west along the Prescott city limit to the Minnesota State line.
South Zone: The remainder of Wisconsin.
Special Teal Season Area—Lake and Chaffee Counties and that portion of the State east of Interstate Highway 25.
High Plains Zone—That portion of the State west of U.S. 283.
Early Zone—That part of Kansas bounded by a line from the Nebraska-Kansas State line south on K–128 to its junction with U.S.–36, then east on U.S.–36 to its junction with K–199, then south on K–199 to its junction with Republic County 30 Rd, then south on Republic County 30 Rd to its junction with K–148, then east on K–148 to its junction with Republic County 50 Rd, then south on Republic County 50 Rd to its junction with Cloud County 40th Rd, then south on Cloud County 40th Rd to its junction with K–9, then west on K–9 to its junction with U.S.–24, then west on U.S.–24 to its junction with U.S.–281, then north on U.S.–281 to its junction with U.S.–36, then west on U.S.–36 to its junction with U.S.–183, then south on U.S.–183 to its junction with U.S.–24, then west on U.S.–24 to its junction with K–18, then southeast on K–18 to its junction with U.S.–183, then south on U.S.–183 to its junction with K–4, then east on K–4 to its junction with I–135, then south on I–135 to its junction with K–61, then southwest on K–61 to McPherson County.
14th Avenue, then south on McPherson County 14th Avenue to its junction with Arapaho Rd, then west on Arapaho Rd to its junction with K–61, then southwest on K–61 to its junction with K–96, then northwest on K–96 to its junction with U.S.–56, then southwest on U.S.–56 to its junction with K–19, then east on K–19 to its junction with U.S.–281, then south on U.S.–281 to its junction with U.S.–54, then west on U.S.–54 to its junction with U.S.–183, then north on U.S.–183 to its junction with U.S.–56, then southwest on U.S.–56 to its junction with Ford County Rd 126, then south on Ford County Rd 126 to its junction with U.S.–400, then northwest on U.S.–400 to its junction with U.S.–283, then north on U.S.–283 to its junction with the Nebraska-Kansas State line, then east along the Nebraska-Kansas State line to its junction with K–128.
Late Zone—That part of Kansas bounded by a line from the Nebraska-Kansas State line south on K–128 to its junction with U.S.–36, then east on U.S.–36 to its junction with K–199, then south on K–199 to its junction with Republic County 30 Rd, then south on Republic County 30 Rd to its junction with K–148, then east on K–148 to its junction with Republic County 50 Rd, then south on Republic County 50 Rd to its junction with Cloud County 40th Rd, then south on Cloud County 40th Rd to its junction with K–9, then west on K–9 to its junction with U.S.–24, then west on U.S.–24 to its junction with U.S.–281, then north on U.S.–281 to its junction with U.S.–36, then west on U.S.–36 to its junction with U.S.–183, then south on U.S.–183 to its junction with U.S.–24, then west on U.S.–24 to its junction with K–18, then southeast on K–18 to its junction with U.S.–183, then south on U.S.–183 to its junction with K–4, then east on K–4 to its junction with I–135, then south on I–135 to its junction with K–61, then southwest on K–61 to 14th Avenue, then south on 14th Avenue to its junction with Arapaho Rd, then west on Arapaho Rd to its junction with K–61, then southwest on K–61 to its junction with K–96, then northwest on K–96 to its junction with U.S.–56, then southwest on U.S.–56 to its junction with K–19, then east on K–19 to its junction with U.S.–281, then south on U.S.–281 to its junction with U.S.–54, then west on U.S.–54 to its junction with U.S.–183, then north on U.S.–183 to its junction with U.S.–56, then southwest on U.S.–56 to its junction with Ford County Rd 126, then south on Ford County Rd 126 to its junction with U.S.–400, then northwest on U.S.–400 to its junction with U.S.–283, then south on U.S.–283 to its junction with the Oklahoma-Kansas State line, then east along the Oklahoma-Kansas State line to its junction with U.S.–77, then north on U.S.–77 to its junction with Butler County, NE 150th Street, then east on Butler County, NE 150th Street to its junction with U.S.–35, then northeast on U.S.–35 to its junction with K–68, then east on K–68 to the Kansas-Missouri State line, then north along the Kansas-Missouri State line to its junction with the Nebraska State line, then west along the Kansas-Nebraska State line to its junction with K–128.
Southeast Zone—That part of Kansas bounded by a line from the Missouri-Kansas State line west on K–68 to its junction with U.S.–35, then southwest on U.S.–35 to its junction with Butler County, NE 150th Street, then west on NE 150th Street until its junction with K–77, then south on K–77 to the Oklahoma-Kansas State line, then east along the Kansas-Oklahoma State line to its junction with the Missouri State line, then north along the Kansas-Missouri State line to its junction with K–68.
Special Teal Season Area—That portion of the State south of a line beginning at the Wyoming State line; east along U.S. 26 to Nebraska Highway L62A east to U.S. 385; south to U.S. 26; east to NE 92; east along NE 92 to NE 61; south along NE 61 to U.S. 30; east along U.S. 30 to the Iowa border.
High Plains—That portion of Nebraska lying west of a line beginning at the South Dakota-Nebraska border on U.S. Hwy. 183; south on U.S. Hwy. 183 to U.S. Hwy. 20; west on U.S. Hwy. 20 to NE Hwy. 7; south on NE Hwy. 7 to NE Hwy. 91; southwest on NE Hwy. 91 to NE Hwy. 2; southeast on NE Hwy. 2 to NE Hwy. 92; west on NE Hwy. 92 to NE Hwy. 40; south on NE Hwy. 40 to NE Hwy. 47; south on NE Hwy. 47 to NE Hwy. 23; east on NE Hwy. 23 to U.S. Hwy. 283; and south on U.S. Hwy. 283 to the Kansas-Nebraska border.
Zone 1—Area bounded by designated Federal and State highways and political boundaries beginning at the South Dakota-Nebraska border west of NE Hwy. 26E Spur and north of NE Hwy. 12; those portions of Dixon, Cedar and Knox Counties north of NE Hwy. 12; that portion of Keya Paha County
Zone 2—The area south of Zone 1 and north of Zone 3.
Zone 3—Area bounded by designated Federal and State highways, County Roads, and political boundaries beginning at the Wyoming-Nebraska border at the intersection of the Interstate Canal; east along northern borders of Scotts Bluff and Morrill Counties to Broadwater Road; south to Morrill County Rd 94; east to County Rd 135; south to County Rd 88; southeast to County Rd 151; south to County Rd 80; east to County Rd 161; south to County Rd 76; east to County Rd 165; south to Country Rd 167; south to U.S. Hwy. 26; east to County Rd 171; north to County Rd 68; east to County Rd 183; south to County Rd 64; east to County Rd 189; north to County Rd 70; east to County Rd 201; south to County Rd 60A; east to County Rd 203; south to County Rd 52; east to Keith County Line; east along the northern boundaries of Keith and Lincoln Counties to NE Hwy. 97; south to U.S. Hwy 83; south to E Hall School Rd; east to N Airport Road; south to U.S. Hwy. 30; east to Merrick County Rd 13; north to County Rd O; east to NE Hwy. 14; north to NE Hwy. 52; west and north to NE Hwy. 91; west to U.S. Hwy. 281; south to NE Hwy. 22; west to NE Hwy. 11; northwest to NE Hwy. 91; west to U.S. Hwy. 183; south to Round Valley Rd; west to Sargent River Rd; west to Sargent Rd; west to Milburn Rd; north to Blaine County Line; east to Loup County Line; north to NE Hwy. 91; west to North Loup Spur Rd; north to North Loup River Rd; east to Pleasant Valley/Worth Rd; east to Loup County Line; north to Loup-Brown county line; east along northern boundaries of Loup and Garfield Counties to Cedar River Rd; south to NE Hwy. 70; east to U.S. Hwy. 281; north to NE Hwy. 70; east to NE Hwy. 14; south to NE Hwy. 39; southeast to NE Hwy. 22; east to U.S. Hwy. 81; southeast to U.S. Hwy. 30; east to U.S. Hwy. 75; north to the Washington County line; east to the Iowa-Nebraska border; south to the Missouri-Nebraska border; south to Kansas-Nebraska border; west along Kansas-Nebraska border to Colorado-Nebraska border; north and west to Wyoming-Nebraska border; north to intersection of Interstate Canal; and excluding that area in Zone 4.
Zone 4—Area encompassed by designated Federal and State highways and County Roads beginning at the intersection of NE Hwy. 8 and U.S. Hwy. 75; north to U.S. Hwy. 136; east to the intersection of U.S. Hwy. 136 and the Steamboat Trace (Trace); north along the Trace to the intersection with Federal Levee R–562; north along Federal Levee R–562 to the intersection with the Trace; north along the Trace/Burlington Northern Railroad right-of-way to NE Hwy. 2; west to U.S. Hwy. 75; north to NE Hwy. 2; west to NE Hwy. 43; north to U.S. Hwy. 34; east to NE Hwy. 63; north to NE Hwy. 66; north and west to U.S. Hwy. 77; north to NE Hwy. 92; west to NE Hwy. Spur 12F; south to Butler County Rd 30; east to County Rd X; south to County Rd 27; west to County Rd W; south to County Rd 26; east to County Rd X; south to County Rd 21 (Seward County Line); west to NE Hwy. 15; north to County Rd 34; west to County Rd J; south to NE Hwy. 92; west to U.S. Hwy. 81; south to NE Hwy. 66; west to Polk County Rd C; north to NE Hwy. 92; west to U.S. Hwy. 30; west to Merrick County Rd 17; south to Hordlake Road; southeast to Prairie Island Road; southeast to Hamilton County Rd T; south to NE Hwy. 66; west to NE Hwy. 14; south to County Rd 22; west to County Rd M; south to County Rd 21; west to County Rd K; south to U.S. Hwy. 34; west to NE Hwy. 2; south to U.S. Hwy. I–80; west to Gunbarrel Rd (Hall/Hamilton county line); south to Giltner Rd; west to U.S. Hwy. 281; south to U.S. Hwy. 34; west to NE Hwy. 10; north to Kearney County Rd R and Phelps County Rd 742; west to U.S. Hwy. 283; south to U.S. Hwy 34; east to U.S. Hwy. 136; east to U.S. Hwy. 183; north to NE Hwy. 4; east to NE Hwy. 10; south to U.S. Hwy. 136; east to NE Hwy. 14; south to NE Hwy. 8; east to U.S. Hwy. 81; north to NE Hwy. 4; east to NE Hwy. 15; south to U.S. Hwy. 136; east to NE Hwy. 103; south to NE Hwy. 8; east to U.S. Hwy. 75.
North Zone—That portion of the State north of I–40 and U.S. 54.
South Zone—The remainder of New Mexico.
Northeastern Zone—In that portion of California lying east and north of a line beginning at the intersection of Interstate 5 with the California-Oregon line; south along Interstate 5 to its junction with Walters Lane south of the town of Yreka; west along Walters Lane to its junction with Easy Street; south along Easy Street to the junction with Old Highway 99; south along Old Highway 99 to the point of intersection with Interstate 5 north of the town of Weed; south along Interstate 5 to its junction with Highway 89; east and south along Highway 89 to Main Street Greenville; north and east to its junction with North Valley Road; south to its junction of Diamond Mountain Road; north and east to its junction with North Arm Road; south and west to the junction of North Valley Road; south to the junction with Arlington Road (A22); west to the junction of Highway 89; south and west to the junction of Highway 70; east on Highway 70 to Highway 395; south and east on Highway 395 to the point of intersection with the California-Nevada State line; north along the California-Nevada State line to the junction of the California-Nevada-Oregon State lines west along the California-Oregon State line to the point of origin.
Colorado River Zone—Those portions of San Bernardino, Riverside, and Imperial Counties east of a line extending from the Nevada border south along U.S. 95 to Vidal Junction; south on a road known as “Aqueduct Road” in San Bernardino County through the town of Rice to the San Bernardino-Riverside County line; south on a road known in Riverside County as the “Desert Center to Rice Road” to the town of Desert Center; east 31 miles on I–10 to the Wiley Well Road; south on this road to Wiley Well; southeast along the Army-Milpitas Road to the Blythe, Brawley, Davis Lake intersections; south on the Blythe-Brawley paved road to the Ogilby and Tumco Mine Road; south on this road to U.S. 80; east 7 miles on U.S. 80 to the Andrade-Algodones Road; south on this paved road to the Mexican border at Algodones, Mexico.
Southern Zone—That portion of southern California (but excluding the Colorado River Zone) south and east of a line extending from the Pacific Ocean east along the Santa Maria River to CA 166 near the City of Santa Maria; east on CA 166 to CA 99; south on CA 99 to the crest of the Tehachapi Mountains at Tejon Pass; east and north along the crest of the Tehachapi Mountains to CA 178 at Walker Pass; east on CA 178 to U.S. 395 at the town of Inyokern; south on U.S. 395 to CA 58; east on CA 58 to I–15; east on I–15 to CA 127; north on CA 127 to the Nevada border.
Southern San Joaquin Valley Temporary Zone—All of Kings and Tulare Counties and that portion of Kern County north of the Southern Zone.
Balance-of-the-State Zone—The remainder of California not included in the Northeastern, Southern, and Colorado River Zones, and the Southern San Joaquin Valley Temporary Zone.
North Zone—Same as North duck zone.
Middle Zone—Same as Middle duck zone.
South Zone—Same as South duck zone.
Tuscola/Huron Goose Management Unit (GMU): Those portions of Tuscola and Huron Counties bounded on the south by Michigan Highway 138 and Bay City Road, on the east by Colwood and Bay Port Roads, on the north by Kilmanagh Road and a line extending directly west off the end of Kilmanagh Road into Saginaw Bay to the west boundary, and on the west by the Tuscola-Bay County line and a line extending directly north off the end of the Tuscola-Bay County line into Saginaw Bay to the north boundary.
Allegan County GMU: That area encompassed by a line beginning at the junction of 136th Avenue and Interstate Highway 196 in Lake Town Township and extending easterly along 136th Avenue to Michigan Highway 40, southerly along Michigan 40 through the city of Allegan to 108th Avenue in Trowbridge Township, westerly along 108th Avenue to 46th Street, northerly along 46th Street to 109th Avenue, westerly along 109th Avenue to I–196 in Casco Township, then northerly along I–196 to the point of beginning.
Saginaw County GMU: That portion of Saginaw County bounded by Michigan Highway 46 on the north; Michigan 52 on the west; Michigan 57 on the south; and Michigan 13 on the east.
Muskegon Wastewater GMU: That portion of Muskegon County within the boundaries of the Muskegon County wastewater system, east of the Muskegon State Game Area, in sections 5, 6, 7, 8, 17, 18, 19, 20, 29, 30, and 32, T10N R14W, and sections 1, 2, 10, 11, 12, 13, 14, 24, and 25, T10N R15W, as posted.
Same zones as for ducks but in addition:
Horicon Zone: That area encompassed by a line beginning at the intersection of State Highway 21 and the Fox River in Winnebago County and extending westerly along State 21 to the west boundary of Winnebago County, southerly along the west boundary of Winnebago County to the north boundary of Green Lake County, westerly along the north boundaries of Green Lake and Marquette Counties to State 22, southerly along State 22 to State 33, westerly along State 33 to Interstate Highway 39, southerly along Interstate Highway 39 to Interstate Highway 90/94, southerly along I–90/94 to State 60, easterly along State 60 to State 83, northerly along State 83 to State 175, northerly along State 175 to State 33, easterly along State 33 to U.S. Highway 45, northerly along U.S. 45 to the east shore of the Fond Du Lac River, northerly along the east shore of the Fond Du Lac River to Lake Winnebago, northerly along the western shoreline of Lake Winnebago to the Fox River, then westerly along the Fox River to State 21.
Exterior Zone: That portion of the State not included in the Horicon Zone.
Mississippi River Subzone: That area encompassed by a line beginning at the intersection of the Burlington Northern & Santa Fe Railway and the Illinois State line in Grant County and extending northerly along the Burlington Northern & Santa Fe Railway to the city limit of Prescott in Pierce County, then west along the Prescott city limit to the Minnesota State line.
Brown County Subzone: That area encompassed by a line beginning at the intersection of the Fox River with Green Bay in Brown County and extending southerly along the Fox River to State Highway 29, northwesterly along State 29 to the Brown County line, south, east, and north along the Brown County line to Green Bay, due west to the midpoint of the Green Bay Ship Channel, then southwesterly along the Green Bay Ship Channel to the Fox River.
Northwest Goose Zone—That portion of the State encompassed by a line extending east from the North Dakota border along U.S. Highway 2 to State Trunk Highway (STH) 32, north along STH 32 to STH 92, east along STH 92 to County State Aid Highway (CSAH) 2 in Polk County, north along CSAH 2 to CSAH 27 in Pennington County, north along CSAH 27 to STH 1, east along STH 1 to CSAH 28 in Pennington County, north along CSAH 28 to CSAH 54 in Marshall County, north along CSAH 54 to CSAH 9 in Roseau County, north along CSAH 9 to STH 11, west along STH 11 to STH 310, and north along STH 310 to the Manitoba border.
Hunt Zone—That portion of the State south of Interstate 40 and east of State Highway 56.
Closed Zone—Remainder of the State.
Colorado—The Central Flyway portion of the State except the San Luis Valley (Alamosa, Conejos, Costilla, Hinsdale, Mineral, Rio Grande, and Saguache Counties east of the Continental Divide) and North Park (Jackson County).
Kansas—That portion of the State west of a line beginning at the Oklahoma border, north on I–35 to Wichita, north on I–135 to Salina, and north on U.S. 81 to the Nebraska border.
Montana—The Central Flyway portion of the State except for that area south and west of Interstate 90, which is closed to sandhill crane hunting.
Regular-Season Open Area—Chaves, Curry, De Baca, Eddy, Lea, Quay, and Roosevelt Counties.
Middle Rio Grande Valley Area—The Central Flyway portion of New Mexico in Socorro and Valencia Counties.
Estancia Valley Area—Those portions of Santa Fe, Torrance and Bernallilo Counties within an area bounded on the west by New Mexico Highway 55 beginning at Mountainair north to NM 337, north to NM 14, north to I–25; on the north by I–25 east to U.S. 285; on the east by U.S. 285 south to U.S. 60; and on the south by U.S. 60 from U.S. 285 west to NM 55 in Mountainair.
Southwest Zone—Area bounded on the south by the New Mexico/Mexico border; on the west by the New Mexico/Arizona border north to Interstate 10; on the north by Interstate 10 east to U.S. 180, north to N.M. 26, east to N.M. 27, north to N.M. 152, and east to Interstate 25; on the east by Interstate 25 south to Interstate 10, west to the Luna county line, and south to the New Mexico/Mexico border.
Area 1—That portion of the State west of U.S. 281.
Area 2—That portion of the State east of U.S. 281.
Oklahoma—That portion of the State west of I–35.
South Dakota—That portion of the State west of U.S. 281.
Zone A—That portion of Texas lying west of a line beginning at the international toll bridge at Laredo, then northeast along U.S. Highway 81 to its junction with Interstate Highway 35 in Laredo, then north along Interstate Highway 35 to its junction with Interstate Highway 10 in San Antonio, then northwest along Interstate Highway 10 to its junction with U.S. Highway 83 at Junction, then north along U.S.
Zone B—That portion of Texas lying within boundaries beginning at the junction of U.S. Highway 81 and the Texas-Oklahoma State line, then southeast along U.S. Highway 81 to its junction with U.S. Highway 287 in Montague County, then southeast along U.S. Highway 287 to its junction with Interstate Highway 35W in Fort Worth, then southwest along Interstate Highway 35 to its junction with Interstate Highway 10 in San Antonio, then northwest along Interstate Highway 10 to its junction with U.S. Highway 83 in the town of Junction, then north along U.S. Highway 83 to its junction with U.S. Highway 62, 16 miles north of Childress, then east along U.S. Highway 62 to the Texas-Oklahoma State line, then south along the Texas-Oklahoma State line to the south bank of the Red River, then eastward along the vegetation line on the south bank of the Red River to U.S. Highway 81.
Zone C—The remainder of the State, except for the closed areas.
Closed areas—(A) That portion of the State lying east and north of a line beginning at the junction of U.S. Highway 81 and the Texas-Oklahoma State line, then southeast along U.S. Highway 81 to its junction with U.S. Highway 287 in Montague County, then southeast along U.S. Highway 287 to its junction with Interstate Highway 35W in Fort Worth, then southwest along Interstate Highway 35 to its junction with U.S. Highway 290 East in Austin, then east along U.S. Highway 290 to its junction with Interstate Loop 610 in Harris County, then south and east along Interstate Loop 610 to its junction with Interstate Highway 45 in Houston, then south on Interstate Highway 45 to State Highway 342, then to the shore of the Gulf of Mexico, and then north and east along the shore of the Gulf of Mexico to the Texas-Louisiana State line.
(B) That portion of the State lying within the boundaries of a line beginning at the Kleberg-Nueces County line and the shore of the Gulf of Mexico, then west along the County line to Park Road 22 in Nueces County, then north and west along Park Road 22 to its junction with State Highway 358 in Corpus Christi, then west and north along State Highway 358 to its junction with State Highway 286, then north along State Highway 286 to its junction with Interstate Highway 37, then east along Interstate Highway 37 to its junction with U.S. Highway 181, then north and west along U.S. Highway 181 to its junction with U.S. Highway 77 in Sinton, then north and east along U.S. Highway 77 to its junction with U.S. Highway 87 in Victoria, then south and east along U.S. Highway 87 to its junction with State Highway 35 at Port Lavaca, then north and east along State Highway 35 to the south end of the Lavaca Bay Causeway, then south and east along the shore of Lavaca Bay to its junction with the Port Lavaca Ship Channel, then south and east along the Lavaca Bay Ship Channel to the Gulf of Mexico, and then south and west along the shore of the Gulf of Mexico to the Kleberg-Nueces County line.
Regular Season Open Area—Campbell, Converse, Crook, Goshen, Laramie, Niobrara, Platte, and Weston Counties, and portions of Johnson and Sheridan Counties.
Riverton-Boysen Unit—Portions of Fremont County.
Park and Big Horn County Unit—All of Big Horn, Hot Springs, Park and Washakie Counties.
Special Season Area—Game Management Units 28, 30A, 30B, 31, and 32.
Special Season Area—See State regulations.
Special Season Area—See State regulations.
Special Season Area—Rich, Cache, and Unitah Counties and that portion of Box Elder County beginning on the Utah-Idaho State line at the Box Elder-Cache County line; west on the State line to the Pocatello Valley County Road; south on the Pocatello Valley County Road to I–15; southeast on I–15 to SR–83; south on SR–83 to Lamp Junction; west and south on the Promontory Point County Road to the tip of Promontory Point; south from Promontory Point to the Box Elder-Weber County line; east on the Box Elder-Weber County line to the Box Elder-Cache County line; north on the Box Elder-Cache County line to the Utah-Idaho State line.
Bear River Area—That portion of Lincoln County described in State regulations.
Salt River Area—That portion of Lincoln County described in State regulations.
Farson-Eden Area—Those portions of Sweetwater and Sublette Counties described in State regulations.
Uinta County Area—That portion of Uinta County described in State regulations.
North Zone—State Game Management Units 11–13 and 17–26.
Gulf Coast Zone—State Game Management Units 5–7, 9, 14–16, and 10 (Unimak Island only).
Southeast Zone—State Game Management Units 1–4.
Pribilof and Aleutian Islands Zone—State Game Management Unit 10 (except Unimak Island).
Kodiak Zone—State Game Management Unit 8.
Ruth Cay Closure Area—The island of Ruth Cay, just south of St. Croix.
Municipality of Culebra Closure Area—All of the municipality of Culebra.
Desecheo Island Closure Area—All of Desecheo Island.
Mona Island Closure Area—All of Mona Island.
Verde Closure Area—Those areas of the municipalities of Rio Grande and Loiza delineated as follows: (1) All lands between Routes 956 on the west and 186 on the east, from Route 3 on the north to the juncture of Routes 956 and 186 (Km 13.2) in the south; (2) all lands between Routes 186 and 966 from the juncture of 186 and 966 on the north, to the Caribbean National Forest Boundary on the south; (3) all lands lying west of Route 186 for 1 kilometer from the juncture of Routes 186 and 956 south to Km 6 on Route 186; (4) all lands within Km 14 and Km 6 on the west and the Caribbean National Forest Boundary on the east; and (5) all lands within the Caribbean National Forest Boundary whether private or public.
Cidra Municipality and adjacent areas—All of Cidra Municipality and portions of Aguas Buenas, Caguas, Cayey, and Comerio Municipalities as encompassed within the following boundary: Beginning on Highway 172 as it leaves the municipality of Cidra on the west edge, north to Highway 156, east on Highway 156 to Highway 1, south on Highway 1 to Highway 765, south on Highway 765 to Highway 763, south on Highway 763 to the Rio
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), are reclassifying
This rule becomes effective on August 26, 2013.
This final rule is available on the Internet at
Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office (see
This is a final rule to reclassify
This rule changes the listing of
We use several acronyms throughout the preamble to this proposed rule. To assist the reader, we set them forth here:
This is a final rule to reclassify
On May 18, 2010, we received a petition dated May 13, 2010, from the Pacific Legal Foundation requesting that the Service delist
On January 19, 2011, we published a 90-day finding (76 FR 3069). In the 90-day finding, we concluded that the petition and information in our files provided substantial information that indicated the delisting of
(1) In the proposed rule to reclassify
(2) The Navy informed us that the West Cove occurrence of
Current information for each occurrence of
(3) In the proposed rule, we discussed a study by Liston
Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. The Act directs that, to the maximum extent practicable, we incorporate into each plan:
(1) Site-specific management actions that may be necessary to achieve the plan's goals for conservation and survival of the species;
(2) Objective, measurable criteria, which when met would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the list; and
(3) Estimates of the time required and cost to carry out the plan.
Revisions to the list (adding, removing, or reclassifying a species) must reflect determinations made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the Secretary determine whether a species is endangered or threatened (or not) because of one or more of five threat factors. Objective, measurable criteria, or recovery criteria contained in recovery plans, help indicate when we would anticipate an analysis of the five threat factors under section 4(a)(1) would result in a determination that a species is no longer endangered or threatened. Section 4(b) of the Act requires that the determination be made “solely on the basis of the best scientific and commercial data available.”
While recovery plans are intended to provide guidance to the Service, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved, they are not regulatory documents and cannot substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. Determinations to remove a species from the list made under section 4(a)(1) of the Act must be based on the best scientific and commercial data available at the time of the determination, regardless of whether that information differs from the recovery plan.
In the course of implementing conservation actions for a species, new information is often gained that requires recovery efforts to be modified accordingly. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more recovery criteria may have been exceeded while other criteria may not have been accomplished, yet the Service may judge that, overall, the threats have been minimized sufficiently, and the species is robust enough, that the Service may reclassify the species from endangered to threatened or perhaps delist the species. In other cases, recovery opportunities may have been recognized that were not known at the time the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan.
Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Overall, recovery of species is a dynamic process requiring adaptive management, planning, implementing, and evaluating the degree of recovery of a species that may, or may not, fully follow the guidance provided in a recovery plan.
Thus, while the recovery plan provides important guidance on the direction and strategy for recovery, and indicates when a rulemaking process may be initiated, the determination to remove a species from the Federal List of Endangered and Threatened Plants (50 CFR 17.12) is ultimately based on an analysis of whether a species is no longer endangered or threatened. The following discussion provides a brief review of recovery planning for
In 1984, we published the California Channel Islands Species Recovery Plan (Recovery Plan) that addresses seven listed taxa (including
Objective 1: Identify present adverse impacts to biological resources and strive to eliminate them.
Objective 2: Protect known resources from further degradation by: (a) Removal of feral herbivores, carnivores, and selected exotic plant species; (b) control of erosion in sensitive locations; and (c) direct military operations and adverse recreational uses away from biologically sensitive areas.
Objective 3: Restore habitats by revegetation of disturbed areas using native species.
Objective 4: Identify areas of San Clemente Island where habitat restoration and population increase of certain addressed taxa may be achieved through a careful survey of the island and research on habitat requirements of each taxon.
Objective 5: Delist or upgrade the listing status of those taxa that achieve vigorous, self-sustaining population levels as the result of habitat stabilization, restoration, and preventing or minimizing adverse human-related impacts.
Objective 6: Monitor effectiveness of recovery effort by undertaking baseline quantitative studies and subsequent followup work (USFWS 1984, pp. 106–107).
Progress has been made toward achieving these objectives. Our review of the Recovery Plan focuses on the actions identified that promote the recovery of
(1) Removing feral animals;
(2) Removing or controlling selected nonnative plants;
(3) Controlling erosion;
(4) Revegetating eroded and disturbed areas;
(5) Reintroducing and reestablishing listed plant species populations;
(6) Modifying existing management plans to minimize habitat disturbance and incorporate recovery actions into natural resource management plans;
(7) Protecting habitat by minimizing habitat loss and disturbance and by preventing the introduction of additional nonnative organisms;
(8) Determining the habitat and other ecological requirements of the listed plant taxa (such as reproductive biology and fire tolerance);
(9) Evaluating the success of management actions;
(10) Increasing public support for recovery efforts; and
(11) Using existing laws and regulations to protect each taxon.
The primary objective of the Recovery Plan is to restore endangered and threatened species to nonlisted status. Though the specific sizes and numbers of occurrences needed for self-sustaining populations for each species were not identified, habitat restoration and protection that would result in achieving self-sustaining populations were discussed (see Objective 5). The Recovery Plan stated that reclassification of these taxa may be considered after threats have been removed or sufficiently minimized and the habitat is restored. Specific criteria for determining when threats have been removed or sufficiently minimized were not identified in the Recovery Plan, but six objectives were described in general to achieve recovery of the Channel Island species. This section provides a summary of actions and activities that have been implemented according to the 1984 Recovery Plan (USFWS 1984, pp. 106–107) and contribute to achievement of these objectives.
The Navy has taken significant steps to eliminate incidental impacts to
The Recovery Plan recommends that existing laws and regulations be used to protect
The Sikes Act (16 U.S.C. 670) authorizes the Secretary of Defense to develop cooperative plans with the Secretaries of Agriculture and the Interior for natural resources on public lands (see
(1) Protect, monitor, and restore plants and cryptograms (soil crusts composed of living cyanobacteria, algae, fungi, or moss) in order to manage for their long-term sustainability on the island;
(2) Conduct status surveys for listed plants;
(3) Ensure that Management Focus Plants have a network of suitable sites;
(4) Perform studies to determine the pollinators of
(5) Continue to apply genetic research and management approaches to rare plant management.
Through these mechanisms, the Navy is required to identify and address all threats to these species during the INRMP planning process. If possible, threats are ameliorated, eliminated, or mitigated through this procedure. The Navy has strived to fulfill this objective through both internal planning (INRMP) and through compliance with Federal law (consultations with us under the Act and preparing environmental review documents under NEPA). As discussed below under the five factors, the actions taken by the Navy under the INRMP have not completely eliminated all adverse impacts, but their efforts have greatly reduced many of the current threats impacting these taxa. These contributions to the elimination of adverse impacts partially fulfill, but do not fully achieve, the objective for the two species.
In 1992, the Navy fulfilled a major part of this objective by removing the last of the feral goats and pigs from San Clemente Island. Nonnative plants have also been targeted for removal from San Clemente Island, and efforts to control nonnatives have been implemented on an annual basis since approximately 1993 (O'Connor 2009a, pers. comm.; Munson 2013, pers. comm.). The specific nonnative plants targeted and amount of money allocated to this program are adjusted on an annual basis (O'Connor 2009b, pers. comm.; Munson 2013, pers. comm.). The effectiveness of this program was improved by providing authorization to apply herbicides (O'Connor 2009b, pers.
The Navy is also taking steps to minimize the effects of erosion on the island. Erosion control measures are being incorporated into project designs to minimize the potential to exacerbate existing erosion (O'Connor 2009c, pers. comm.; Munson 2013, pers. comm.). With the expansion of military operational areas, the Navy committed to prepare and implement an erosion control plan that will minimize soil erosion within and adjoining the operational areas (Navy 2008b, pp. 5–30; USFWS 2008 p. 62). The Navy is nearing finalization of the erosion control plan, and has agreed not to conduct training activities that may lead to impacts from erosion until the plan is successfully implemented (Munson 2013, pers. comm.). The Navy is using best management practices (BMPs) when creating and approving projects that might contribute to erosion on the island (Munson 2013, pers. comm.). It is, however, unclear whether erosion control measures will be implemented consistently in areas that are closed to monitoring and access due to unexploded ordnance. The proposed erosion control plan includes development and application of BMPs such as: establishing setbacks and buffers from steep slopes, drainages, and sensitive resources; constructing site-specific erosion control structures; conducting revegetation and routine maintenance; and monitoring and adjusting the BMPs as appropriate. The Navy has taken steps to reduce the threat of erosion on the island and contribute to the achievement of this objective.
The Navy is taking precautions to avoid plants when possible to minimize direct impacts to
This objective has been largely met for
Since 2001, the Navy has contracted with the San Diego State University Soil Ecology and Restoration Group (SERG) to propagate and outplant (transplant individuals from the greenhouse to vegetative communities) native species on the island (Howe 2009, pers. comm.; Munson 2013, pers. comm.). The SERG has outplanted about 4,000 native plants in the past 5 years, and thousands of native plants were outplanted by SERG before that time (Munson 2013, pers. comm.). There have been about 4,000 recruits documented at outplanting sites (Munson 2013, pers. comm.). This program has not included propagation and outplanting of listed plant taxa, except in one instance to replace
A number of studies have addressed the ecology, taxonomy, and genetics of
The distributions of
To evaluate the success of management actions undertaken to benefit listed plant taxa, the Navy implemented a long-term vegetation monitoring study (Tierra Data Inc. 2005, pp. i–96 and Appendices) and commissioned sensitive plant surveys (Junak and Wilken 1998, pp. 1–416; Junak 2006, pp. 1–176). Overall, vegetation trend monitoring reveals that the cover of both native and nonnative plant species has changed since the removal of feral goats and pigs, but the response of individual species and vegetative communities has varied, with some species and communities exhibiting greater changes than others. Discerning long-term vegetative community trends is difficult because the vegetative community study was preceded by a wet year that likely had a strong influence on the data collected (Tierra Data Inc. 2005, p. 29). Within the few monitoring plots that included
Rare plant surveys and island flora studies have documented many more locations occupied by
In summary, while the Recovery Plan does not include taxon-specific downlisting or delisting criteria for measuring the recovery of
Threats are reduced in areas occupied by
In the proposed rule published on May 16, 2012 (77 FR 29078), we requested that all interested parties submit written comments on the proposal by July 16, 2012. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the San Diego Union-Tribune. We did not receive any requests for a public hearing.
During the comment period for the proposed rule, we received two comment letters (one from a peer reviewer and one from the Navy) directly addressing the proposed reclassification of
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from four knowledgeable individuals with scientific expertise that included familiarity with the two plant taxa and their habitat, biological needs, recovery efforts, and threats. We received a response from one of the peer reviewers.
We reviewed all comments received from the peer reviewer for substantive issues and new information regarding the listing of
(1)
Because we found downlisting of
(2)
(3)
(4)
(5)
On May 16, 2012, in response to a petition seeking its downlisting, the Service made a finding that downlisting was not warranted for
We have not made any substantive changes in this final rule, based on the comments that were received during the comment period. The two commenters were in favor of downlisting
Section 4 of the Act and its implementing regulations (50 CFR 424) set forth procedures for listing species, reclassifying species, or removing species from the Federal Lists of Endangered and Threatened Wildlife and Plants. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the “species” is determined, we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in section 4(a)(1) of the Act. Those factors are:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
We must consider these same five factors in reclassifying or delisting a species. Listing, reclassifying, or delisting may be warranted based on any of the above threat factors, either singly or in combination. For species that are already listed as threatened or endangered, an analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting.
Under section 3 of the Act, a species is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and is “threatened” if it is likely to become endangered in the foreseeable future throughout all or a significant portion of its range. The word “range” refers to the range in which the species currently exists, and the word “significant” refers to the value of that portion of the range being considered to the conservation of the species. The “foreseeable future” is the period of time over which events or effects reasonably can or should be anticipated, or trends extrapolated. Based on currently available data and this analysis, the period over which we can anticipate or extrapolate trends is approximately 40 years. This determination is based on the following: We listed
We considered and evaluated the best available scientific and commercial information for this analysis. Information pertaining to
In the 2007 status review, we acknowledged that the predominant threat at listing (grazing and rooting from feral herbivores) was ameliorated with the removal of goats and pigs from the island in 1992 (USFWS 2007a, pp. 1–22). Threats to
The final listing rule (42 FR 40682; August 11, 1977) identified the following threats to
In this section we describe threats considered likely based on land use designations. At the time of listing, the Navy had acquired the island, although military operations were not intense and feral grazers were still on the island. Since listing, training activities and land use by the Navy have increased significantly. Since it was first listed in 1977, the Navy has consulted and coordinated with us regarding the effects of various activities on
Most recently, training activities approved in the Military Operations and Fire Management Plan (MOFMP) include substantial increases in vehicle and foot traffic in the Infantry Operations Areas (IOA) (Navy 2008b, pp. 2–1 to 2–52). Examples of projected increases in training levels relative to a representative year of training prior to 2008 include: 11 percent increase in naval fire support exercises, 23 percent increase in land bombing exercises, 150 percent increase in explosive ordnance disposal, 60 percent increase in artillery operations, 90 percent increase in land demolitions, 19 percent increase in land navigation exercises, and 96 percent increase in SEAL platoon operations (USFWS 2008, p. 11).
We considered the status and distribution of
Eight of 29
Four of 29
Because of the taxon's close proximity to Navy facilities, military activities have the potential to impact habitat at one of the largest known occurrences of
The majority of
Erosion and associated soil loss caused by browsing of feral goats and rooting of feral pigs likely modified the island's habitat (Navy 2002, p. 1–14). Defoliation from overgrazing on San Clemente Island increased erosion over much of the island, especially on steep slopes where denuded soils can quickly wash away during storm events (Johnson 1980, p. 107; Navy 2002, pp. 1–14, 3–9; Tierra Data Inc. 2007, pp. 6–7). Erosion was identified in the INRMP as a threat to the canyon woodland habitat and maritime desert scrub where
Although more vegetative cover is now present than at the time of listing, erosion is still a threat to the recovery of
Roads can concentrate water flow causing incised channels and erosion of slopes (Forman and Alexander 1998, pp. 216–217). This increased erosion around roads can degrade habitat, especially along the steep canyons associated with the eastern escarpment of the island. Nine of 29
The Navy incorporates erosion control measures into all site-feasibility studies and project planning, design, and construction to minimize the potential to exacerbate existing erosion and avoid impacts to listed species (Munson 2013, pers. comm.). The INRMP requires that all projects include erosion conservation work and associated funding (Navy 2002, p. 4–89). These conservation actions include best management practices for construction and engineering, choosing sites that are capable of sustaining disturbance with minimum soil erosion, and stabilizing disturbed sites with native plants (Navy 2002, pp. 4–89—4–91). Additionally, the Navy has agreed not to conduct training activities that may lead to impacts from erosion until an erosion control plan is successfully implemented. They are developing the erosion control plan for San Clemente Island to reduce the impacts of erosion to
The processes and results of erosion are threats to the habitat of
Spread of nonnative plants into
Nonnative species of particular concern include
Although previous invasions of nonnatives probably occurred through introductions in grazing fodder, current nonnative species invasions are typically introduced by military activities and training on the island. Nonnative plants constitute a rangewide threat to the habitat of all native plants on San Clemente Island, including all occurrences of
Potential impacts from nonnative plants to habitats on San Clemente Island are minimized through annual implementation of the Navy's island-wide nonnative plant control program (O'Connor 2009b, pers. comm.; Munson 2013, pers. comm.). The focus of the nonnative plant species program is to control plants on the island with the potential to adversely impact habitat of federally listed species, which includes eradication of isolated occurrences of nonnatives, and early detection and eradication of new nonnative species (Navy 2008b, p. 5–28). This program targets nonnative species for elimination using herbicide and mechanical removal, with priorities currently focused on new invasions and particularly destructive nonnative species. Nonnative species management targets are identified and prioritized annually by Navy natural resource managers (Munson 2013, pers. comm.). These tactics are successful in isolating and limiting some species, such as
Fire was not considered a threat to habitat occupied by
Increased fire frequency resulting from intensified military uses could lead to localized changes in vegetation on San Clemente Island, which could be detrimental to
At the time of listing, fire was not identified as a habitat threat because of lack of fire history and the low intensity of military training on the island. Since that time, military training has significantly increased, and we have better records of the fire frequency on the island. Approximately 14 of the 29 occurrences of
San Clemente Island was used for sheep ranching, cattle ranching, goat grazing, and pig farming from 1850 until 1934 (Navy 2002, pp. 3–4). These grazers were not completely removed from the island until 1992, and their effects on the taxon and its habitat as well as other threats led us to classify
In the listing rule (42 FR 40682; August 11, 1977), we did not identify any threats from overutilization, and no new information indicates that overutilization is a threat to
Grazing of feral goats and rooting of feral pigs were considered a direct threat to
The Act requires us to examine the adequacy of existing regulatory mechanisms with respect to those existing and foreseeable threats that may affect
Section 7(a)(1) of the Act requires all Federal agencies, including the Navy, to utilize their authorities in furtherance of the purposes of the Act by carrying out programs for the conservation of endangered and threatened species. Section 7(a)(2) of the Act requires Federal agencies, including the Navy and us, to ensure that actions funded, authorized, or carried out do not “jeopardize” the continued existence of a listed species. Section 7(a)(2) of the Act also requires Federal agencies to ensure that such actions do not result in the destruction or adverse modification of habitat in areas designated as critical habitat; however, we have not designated or proposed critical habitat for this taxon.
The section 7(a)(2) prohibition against jeopardy applies to plants as well as animals, but other protections of the Act are more limited for plant species. Section 9(a)(2) does not prohibit the taking of a protected plant, thus no incidental take statement is prepared in the analysis of effects associated with a project. A non-jeopardy opinion for plants, therefore, would not include reasonable and prudent measures to minimize the impact of incidental take. However, voluntary conservation recommendations may be included, which are discretionary actions the action agency can implement relevant to the proposed action.
Under section 9(a)(2) of the Act, with respect to endangered plant taxa, it is unlawful to remove and reduce to possession (collect) any endangered plants from areas under Federal jurisdiction, or to maliciously damage or destroy endangered plants in any such area. Protections provided plants listed as threatened are the same, except that the Code of Federal Regulations stipulates protections are not extended to seeds of cultivated specimens of threatened plants (50 CFR 17.71). This change in protections would not have an effect on the conservation of
The Navy has consulted and coordinated with us regarding the effects of various activities on
Listing
All Federal agencies are required to adhere to the National Environmental Policy Act (NEPA) of 1970 (42 U.S.C. 4321
The Sikes Act (16 U.S.C. 670) authorizes the Secretary of Defense to develop cooperative plans with the Secretaries of Agriculture and the Interior for natural resources on public lands. The Sikes Act Improvement Act of 1997 requires Department of Defense installations to prepare INRMPs that provide for the conservation and rehabilitation of natural resources on military lands consistent with the use of military installations to ensure the readiness of the Armed Forces. An INRMP is a plan intended “. . . to guide installation commanders in managing their natural resources in a manner that is consistent with the sustainability of those resources while ensuring continued support of the military mission” (Navy 2002, p. 1–1). INRMPs are developed in coordination with the State and the Service, and are generally updated every 5 years. Although an INRMP is technically not a regulatory mechanism because its implementation is subject to funding availability, it is an important guiding document that helps to integrate natural resource protection with military readiness and training.
Pursuant to the Sikes Act, the Navy adopted an INRMP for San Clemente Island that identifies multiple objectives for protecting
Goals and objectives in the INRMP for specified management units on the island are identified based on each unit's ranking for both military and natural resource value. Natural resource management objectives for the management units are stepped down from broader natural resource objectives identified for species and habitats. Natural resource objectives of relevance to the protection of
The INRMP specifically includes the following objectives for
To date, the Navy has implemented multiple INRMP management strategies, or aspects of them that benefit both taxa. They have implemented rare plant surveys and documented new occurrences of
The INRMP is an important guiding document that helps to integrate the military's mission with natural resource protection on San Clemente Island. Although the INRMP includes objectives targeted toward habitat protection of optimal
The Navy is currently revising the 2002 INRMP, and future iterations of this plan may differ from the existing INRMP. Pending completion of the new INRMP, the Navy continues to implement the 2002 INRMP. We expect that the revised INRMP will continue to manage for natural resource conservation to the maximum extent practicable based on the Navy's historical commitment to implement beneficial management actions for native flora and fauna, and their continued cooperation with the Service to provide conservation actions that benefit taxa such as
The Federal Noxious Weed Act of 1975 (88 Stat. 2148, 7 U.S.C. 2801) established a Federal program that has subsequently been largely superseded by other statutes, including the Plant Protection Act (7 U.S.C. 7701, et seq.), to control the spread of noxious weeds. The 1990 amendment to the Federal Noxious Weed Act (7 U.S.C. 2814), has been retained, and requires each Federal land-managing agency to: designate an office or person adequately trained in managing undesirable plant species to develop and coordinate a program to control such plants on the agency's land; establish and adequately fund this plant management program through the agency's budget process; complete and implement cooperative agreements with the States regarding undesirable plants on agency land; and establish integrated management systems (as defined in the section) to control or contain undesirable plants targeted under the cooperative agreements. In accordance with this direction, the Navy (through implementation of their INRMP) works to control the introduction of nonnative plant species to the island and to control or remove those currently present, which are actions that assist in protecting
The Soil Conservation and Domestic Allotment Act of 1935 (16 U.S.C. 590(a, b), 49 Stat. 163) recognized that the wastage of soil and moisture resources on farm, grazing, and forest lands of the Nation, resulting from soil erosion, is a menace to the national welfare. The Act further provided for the control and prevention of soil erosion to preserve natural resources, control floods, prevent impairment of reservoirs, and maintain the navigability of rivers and harbors, protect public health and public lands, and relieve unemployment, and authorized the Secretary of Agriculture to coordinate and direct all activities with relation to soil erosion. In order to effectuate this policy, the Secretary of Agriculture authorizes, from time to time, that the following actions may be performed on lands owned or controlled by the United States or any of its agencies, with the cooperation of the agency having jurisdiction: Conduct surveys, investigations, and research relating to the character of soil erosion and the preventive measures needed; publish the results of any such surveys, investigations, or research; disseminate information concerning such methods; conduct demonstrational projects in areas subject to erosion by wind or water; and carry out preventative measures, including, but not limited to, engineering operations, methods of cultivation, the growing of vegetation, and changes in use of land. These measures are addressed through various objectives outlined in the Navy's INRMP, and implementation of these measures assist
Since the time of listing,
(1) The authorized take is incidental to an otherwise lawful activity;
(2) The impacts of the authorized take are minimized and fully mitigated;
(3) The measures required to minimize and fully mitigate the impacts of the authorized take are roughly proportional in extent to the impact of the taking on the species, maintain the applicant's objectives to the greatest extent possible, and are capable of successful implementation;
(4) Adequate funding is provided to implement the required minimization and mitigation measures and to monitor compliance with and the effectiveness of the measures; and
(5) Issuance of the permit will not jeopardize the continued existence of a State-listed species.
However, the range of
The inadequacy of existing regulatory mechanisms was not indicated as a threat to
The regulatory mechanisms outlined above help to reduce threats for the conservation of
The 1977 listing rule identified nonnatives as a threat to
Military training activities within SWAT, TAR, and the IOA often entail the movement of vehicles and troops over the landscape, which has the potential of trampling or crushing individual plants. SWATs are large areas that typically support the movement of small groups to reach an objective or destination. The dispersed movement of troops through these areas is likely to result in occasional trampling of plants, with minor or temporary impacts at the occurrence level. TARs are generally smaller areas designated to accommodate intensive use and bombardment. Plants located within TARs are, therefore, more vulnerable to being trampled by vehicle and troop movements, particularly as the level of military training increases in these areas.
Use of the IOA, at its highest intensity, involves the movement of battalion-sized landings of troops (1,500 individuals) from the northern to southern end of the island several times a year (Navy 2008b, pp. 2–1 to 2–52). During such operations, the Navy anticipates that about half of the troops will travel on roads in vehicles, while the other half will proceed on foot (Navy 2008b, pp. 2–1 to 2–52). Thirteen occurrences of
Although not specifically mentioned in the listing rule, intense or frequent fires threaten individuals at 14 of 29 (48 percent) of
The Navy conducts annual reviews of fire management and fire occurrence that allow for adaptive management. While the threat of fire remains, these measures should minimize loss of individuals or occurrences of
Consideration of climate change is a component of our analyses under the Endangered Species Act, and applies to our analysis of both taxa. In general terms, “climate change” refers to a change in the state of the climate (whether due to natural variability, human activity, or both) that can be identified by changes in the mean or variability of its properties, and that persists for an extended period—typically decades or longer (Intergovernmental Panel on Climate Change (IPCC) 2007a, p. 78).
Changes in climate are occurring. Examples include warming of the global climate system over recent decades, and substantial increases in precipitation in some regions of the world and decreases in other regions (for these and other examples see IPCC 2007a, p. 30; Solomon
Most of the observed increase in global average temperature since the mid-20th century cannot be explained by natural variability in climate, and is very likely due to the observed increase in greenhouse gas concentrations in the atmosphere as a result of human activities, particularly emissions of carbon dioxide from fossil fuel use (IPCC 2007a, p. 5 and Figure SPM.3; Solomon
The projected magnitude of average global warming for this century is very similar under all combinations of models and emissions scenarios until about 2030. Thereafter, the projections show greater divergence across scenarios. Despite these differences in projected magnitude, however, the overall trajectory is one of increased warming throughout this century under all scenarios, including those which assume a reduction of greenhouse gas emissions (Meehl
Various types of changes in climate can have direct or indirect effects on species and these may be positive or negative depending on the species and other relevant considerations, including interacting effects with existing habitat fragmentation or other nonclimatic variables. Vulnerability to climate change has three main components: Exposure to changes in climate, sensitivity to such changes, and adaptive capacity (IPCC 2007a, p. 89; Glick
As is the case with all potential threats, if a species is currently affected or is expected to be affected in a negative way by one or more climate-related impacts, this does not necessarily mean the species meets the definition of a threatened or endangered species as defined under the Act. The impacts of climate change and other conditions would need to be to the level that the species is in danger of extinction, or likely to become so, throughout all or a significant portion of its range. If a species is listed as threatened or endangered, knowledge regarding the species' vulnerability to, and impacts from, climate-associated changes in environmental conditions can be used to help devise appropriate strategies for its recovery.
While projections from global climate model simulations are informative and in some cases are the only or the best scientific information available, various downscaling methods are being used to provide higher-resolution projections that are more relevant to the spatial scales used to assess impacts to a given species (see Glick
San Clemente Island is located within a Mediterranean climatic regime, but with a significant maritime influence. Climate change models indicate a 1.8 to 5.4 degrees Fahrenheit (1 to 3 degrees Celsius) increase in average temperature for southern California by the year 2070 (Field
Since listing of
Liston
Liston
Threats associated with military activities and fire continue to impact
Climate change may also likely impact
Overall, the threats described under Factor E are either of unknown magnitude (climate change), of low likelihood (hybridization), or have been reduced through conservation measures implemented by the Navy (fire and military activities). Although impacts to
A species may be affected by more than one threat in combination. Within the preceding review of the five listing factors, we have identified multiple threats that may have interrelated impacts on
In the 2007 status review, we stated that the predominant threat at listing (nonnative herbivores) was removed from San Clemente Island in 1992 (USFWS 2007b, pp. 1–19). Additional threats to
Under this listing factor in the final listing rule, we identified habitat modification by browsing feral goats and rooting feral pigs as threats to
The distribution of
The southern portion of
Also within SHOBA, an occurrence of
Erosion and associated soil loss caused by browsing of feral goats and rooting of feral pigs likely modified the island's habitat (Navy 2002, p. 1–14). Overgrazing on San Clemente Island resulted in defoliation, which led to increased erosion over much of the island, especially on steep slopes where denuded soils can be quickly washed away during storm events (Johnson 1980, p. 107; Navy 2002, pp. 1–14, 3–9; Tierra Data Inc. 2007, pp. 6–7). There may be residual impacts from historical grazing, and vegetation may be slow to recover and hold soil. In the INRMP, erosion was identified as a threat to the canyon woodland habitat and maritime desert scrub, which is habitat for
Increased military activities where
The Navy studied the potential for erosion from several proposed military activities (Tierra Data Inc. 2007, pp. 1–45, Appendices). Approximately 12
Along the eastern escarpment,
The Navy incorporates erosion control measures into all site feasibility studies and project design to minimize the potential to exacerbate existing erosion and avoid impacts to listed species (Munson 2013, pers. comm.). The INRMP requires that all projects include erosion conservation work (Navy 2002, p. 4–89). These conservation actions include best management practices, choosing sites that are capable of sustaining disturbance with minimum soil erosion, and stabilizing disturbed sites (Navy 2002, pp. 4–89–4–91). An erosion control plan for San Clemente Island is in the development stage, with expectations to reduce impacts of erosion where
In areas that will not be covered under the erosion control plan, erosion control measures are already being incorporated into project designs to minimize the potential to exacerbate existing erosion and avoid impacts to listed species (Munson 2013, pers. comm.). Additionally, the Navy has agreed not to conduct training activities that may lead to impacts from erosion until the plan is successfully implemented. The processes and results of erosion cause island-wide impacts to
Despite existing levels of erosion on the island, the distribution of
One of the threats to
Although previous invasions of nonnative species were probably introduced in grazing fodder, current invasions are typically introduced and spread around the island by military activities and training (see above discussion on Nonnative Species under
Potential impacts from nonnative plants are expected to be minimized by annual implementation of the Navy's island-wide nonnative plant control program (O'Connor 2009b, pers. comm.; Munson 2013, pers. comm.; see above discussion on Nonnative Species under
Nonnative plant species are an island-wide threat to the native vegetative community. The Navy has taken preventative and conservation measures through funding and implementing nonnative plant species control on the island. Management and control of nonnative plants, however, is not in place at the four occurrences that are closed to natural resource managers. However, outside of these areas,
Fire was not considered a threat to
Because of the elevated risk of fire associated with training activities, the Navy targets live and inert munitions fire towards two delineated Impact Areas. The risk of frequent fire is higher in Impact Areas I and II, potentially affecting the habitat of four occurrences. The effects of fire, and the state of plants within the Impact Areas, are currently unknown due to closure of the area (USFWS 2008, p. 50). Fires are occasionally ignited by activities north of SHOBA, posing a low-magnitude threat to the habitat at 13 occurrences (46 percent; SHOBA Boundary, Horton Canyon, Lemon Tank Canyon, Nanny Canyon, Larkspur Canyon, Box Canyon, Upper Norton Canyon, Middle Ranch Canyon, Waymuck Canyon, Plain northeast of Warren Canyon, Seal Cove Terraces, Eel Cove Canyon, and Terrace Canyon) (Navy 2002, Map 3–4, p. 3–33).
Increased fire frequency from intensified military use could lead to localized changes in vegetation (see above discussion on fire frequency under
At the time of listing, we did not identify fire as a threat because of lack of fire history and the low intensity of military training on the island. Since that time, military training has significantly increased, and we have better records of the fire frequency on the island. Approximately 18 occurrences (64 percent) of
Within the Impact Areas or operationally closed zones, the Navy is not implementing fire suppression and firefighting because of safety hazards from the presence of unexploded ordnance. Fires that escape designated training areas threaten other parts of the island, though it is unlikely that one fire is capable of spreading throughout the entire range of the species due to its broad distribution across the island. The Navy's implementation of the MOFMP will limit the frequency with which fires escape Impact Areas and TAR. Through the annual review process, the Navy will identify mechanisms to reduce fire return intervals within areas and habitats where this taxon is concentrated (USFWS 2008, pp. 91–122). Although the threat is ameliorated through the MOFMP, fire remains an island-wide threat to
Fire suppression techniques are used by the Navy on San Clemente Island as described in the MOFMP, including creation of firebreaks (bare soil created through manual or herbicide removal of vegetation), use of fire retardants (spraying of fire retardants along fire breaks), and aerial drops of saltwater from aircraft. All of these activities have the potential to impact
The Navy maintains fuelbreaks within SHOBA along the boundaries of Impact Areas I and II to prevent the spread of fire outside of the areas (USFWS 2008, p. 57). Four documented occurrences of
The Navy uses herbicides and strip burning to create fuelbreaks on the island, and maintains these fuelbreaks with continued use of herbicides and fire retardant (Phos-Chek D75F) (USFWS 2008, pp. 97–98). The use of fire retardant or herbicide, as proposed in the MOFMP, results in the loss of
We anticipate the Navy will construct additional fuelbreaks to minimize the risk of fire spreading from areas of live fire and demolition training north of SHOBA (USFWS 2008, p. 98). In the MOFMP, the Navy agreed to conduct preseason briefings for firefighting personnel on the guidelines for fire suppression, and the limitations associated with the use of Phos-Chek and saltwater drops (USFWS 2008, pp. 97–98). The impact of saltwater on the habitat of
To minimize the potential for effects to listed species, the Navy considers the documented locations of listed species on the island as fuelbreak lines are developed (Navy 2009, p. 4–32). The majority of
The habitat of
In the listing rule (42 FR 40682; August 11, 1977), we did not identify any threats from overutilization, and there is no new information to indicate that overutilization is a threat to
Grazing of feral goats and rooting of feral pigs were considered a direct threat to
The Act requires us to examine the adequacy of existing regulatory mechanisms with respect to those existing and foreseeable threats that may affect
Listing
All Federal agencies are required to adhere to the National Environmental Policy Act (NEPA) of 1970 (42 U.S.C. 4321
On San Clemente Island, the Navy must meet the NEPA requirements for actions significantly affecting the quality of the human environment. Typically, the Navy prepares Environmental Assessments and Environmental Impact Statements on operational plans and new or expanding training actions. Absent the listing of
The Sikes Act (16 U.S.C. 670) authorizes the Secretary of Defense to develop cooperative plans with the Secretaries of Agriculture and the Interior for natural resources on public lands. The Sikes Act Improvement Act of 1997 requires Department of Defense installations to prepare INRMPs that provide for the conservation and rehabilitation of natural resources on military lands consistent with the use of military installations to ensure the readiness of the Armed Forces. An INRMP is a plan intended “ . . . to guide installation commanders in managing their natural resources in a manner that is consistent with the sustainability of those resources while ensuring continued support of the military mission” (Navy 2002, p. 1–1). INRMPs are developed in coordination with the State and the Service, and are generally updated every 5 years. Although an INRMP is technically not a regulatory mechanism because its implementation is subject to funding availability, it is an important guiding document that helps to integrate the military's mission with natural resource protection.
Pursuant to the Sikes Act, the Navy adopted an INRMP for San Clemente Island that identifies multiple objectives for protecting
Natural resource objectives of relevance to the protection of
The MOFMP, Erosion Control Plan, and nonnative plant species control conducted on the island are discussed above under
See also the section above for
Since the time of listing,
The regulatory mechanisms above help to reduce threats for the conservation of
The 1977 listing rule identified competition from nonnative plants as a threat to
Military training activities within training areas often entail the movement of vehicles and troops over the landscape with the potential of trampling or crushing individual plants (for discussion of SWAT, TAR, and IOA, see above discussion for
Fifteen of the 28 documented occurrences of
Although not specifically mentioned in the listing rule, intense or frequent fires could threaten
The Navy's fire management practices minimize ignitions as well as the spread of fires (as described above in Factor A). The Navy is conducting annual reviews of fire management and fire occurrences that will allow for adaptive management. These measures should minimize the frequency and spread of fires that could result in loss of individuals of
For general information regarding climate change impacts, see above discussion on climate change under
A species may be affected by more than one threat in combination. Within the preceding review of the five listing factors, we have identified multiple threats that may have interrelated impacts on the species (see above discussion on Combination of Factors under
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to
A direct threat identified in the listing rule (42 FR 40682), grazing from feral herbivores, was eliminated by 1992 through the complete removal of goats and pigs from the island (Factors A and C). This action also fulfilled one of the primary goals of the Recovery Plan under Objective 2 (USFWS 1984, p. 107). However, as a result of years of grazing, impacts from nonnative plants and erosion have continued to increase on the island. Our review of the status of
The surveys and discoveries of new occurrences also contribute to the achievement of objectives in the Recovery Plan (Objective 6; USFWS 1984, p. 107). The Navy has taken measures to locate the heaviest impacts of military operations away from the species to the extent feasible while meeting operational needs, which will minimize, but not fully eliminate, the damage or destruction of individuals or occurrences of
Since listing and the removal of feral goats and pigs on San Clemente Island, the distribution of
The Navy implemented a nonnative plant management plan and an MOFMP to ameliorate habitat threats to the species. Erosion control measures are incorporated into all project designs to minimize the potential to exacerbate existing erosion and avoid impacts to listed species (Munson 2013, pers. comm.). Additionally, the Navy has agreed not to conduct training activities that may lead to impacts from erosion until an erosion control plan is successfully implemented. It is anticipated that military training activities, erosion, nonnatives, and fire will have ongoing impacts to the taxon's habitat, although impacts from these threats are reduced due to the current distribution of this taxon and existing conservation efforts. As a result, the best available information indicates that the taxon is no longer in danger of extinction. However, ongoing impacts are likely to continue such that the taxon is still likely to become endangered within the foreseeable future throughout all or a significant portion of its range.
Under the Sikes Act, the Navy implemented an INRMP to coordinate the management of natural resources on the island. Providing a framework for military operations, this plan helps to ameliorate threats to the federally listed species on the island, and provides for long-term conservation planning within the scope of military readiness. Provisions included in the INRMP provide some protection for
As discussed above in relation to Factor D, there are existing regulatory mechanisms that provide protections to
Individual
As discussed above in the Factor Analysis, a species may be affected by more than one threat in combination. For example, fires (Factors A and E) may be more intense or frequent in the habitat if there are greater amounts of nonnative grasses (Factor A) present in the vegetative community. Thus, the species' viability may be reduced because of threats in combination, but we are unable to determine the magnitude or extent of any synergistic effects of the various factors and their impact on
In conclusion, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by
The known distribution of
Threats impacting individual plants of
Under the Sikes Act, the Navy has implemented an INRMP to organize the management of natural resources on the island. Under the INRMP, occurrences of
As discussed in our analysis of Factor D, above, there are existing regulatory mechanisms that provide some level of protection to
As discussed above in the Factor Analysis, a species may be affected by more than one threat in combination. For example, fires (Factors A and E) may be more intense or frequent in the habitat if there are greater amounts of nonnative grasses (Factor A) present in the vegetative community. Thus, the species' viability may be reduced because of threats in combination. Therefore, the combination of factors is a threat to the existence of
In conclusion, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by
Having determined that
Two recent district court decisions have addressed whether the SPR language allows the Service to list or protect less than all members of a defined “species”:
Consistent with that interpretation, and for the purposes of this finding, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing; thus there are two situations (or factual bases) under which a species would qualify for listing: A species may be endangered or threatened throughout all of its range; or a species may be endangered or threatened in only a significant portion of its range. If a species is in danger of extinction throughout an SPR, it, the species, is an “endangered species.” The same analysis applies to “threatened species.” Therefore, the consequence of finding that a species is endangered or threatened in only a significant portion of its range is that the entire species shall be listed as endangered or threatened, respectively, and the Act's protections shall be applied across the species' entire range.
We conclude, for the purposes of this finding, that interpreting the SPR phrase as providing an independent basis for listing is the best interpretation of the Act because it is consistent with the purposes and the plain meaning of the key definitions of the Act; it does not conflict with established past agency practice (i.e., prior to the 2007 Solicitor's Opinion), as no consistent, long-term agency practice has been established; and it is consistent with the judicial opinions that have most closely examined this issue. Having concluded that the phrase “significant portion of its range” provides an independent basis for listing and protecting the entire species, we next turn to the meaning of “significant” to determine the threshold for when such an independent basis for listing exists.
Although there are potentially many ways to determine whether a portion of a species' range is “significant,” we conclude, for the purposes of this finding, that the significance of the portion of the range should be determined based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude that a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation. Thus, for the purposes of this finding, a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction.
We evaluate biological significance based on the principles of conservation biology using the concepts of redundancy, resiliency, and representation.
For the purposes of this finding, we determine if a portion's biological contribution is so important that the portion qualifies as “significant” by asking whether,
We recognize that this definition of “significant” establishes a threshold that is relatively high. On the one hand, given that the consequences of finding a species to be endangered or threatened in an SPR would be listing the species throughout its entire range, it is important to use a threshold for “significant” that is robust. It would not be meaningful or appropriate to establish a very low threshold whereby a portion of the range can be considered “significant” even if only a negligible increase in extinction risk would result from its loss. Because nearly any portion of a species' range can be said to contribute some increment to a species' viability, use of such a low threshold would require us to impose restrictions and expend conservation resources disproportionately to conservation benefit: listing would be rangewide, even if only a portion of the range of minor conservation importance to the species is imperiled. On the other hand, it would be inappropriate to establish a threshold for “significant” that is too high. This would be the case if the standard were, for example, that a portion of the range can be considered “significant” only if threats in that portion result in the entire species' being currently endangered or threatened. Such a high bar would not give the SPR phrase independent meaning, as the Ninth Circuit held in
The definition of “significant” used in this finding carefully balances these concerns. By setting a relatively high threshold, we minimize the degree to which restrictions will be imposed or resources expended that do not contribute substantially to species conservation. But we have not set the threshold so high that the phrase “in a significant portion of its range” loses independent meaning. Specifically, we have not set the threshold as high as it was under the interpretation presented by the Service in the
The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that have no reasonable potential to be significant
Having determined that
Applying the process described above, we evaluated the range of
In summary, the primary threats to
Applying the process described above, we evaluated the range of
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. The final recovery plan for endangered and threatened species of the California Channel Islands, including
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribal, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.
Funding for recovery actions is available from a variety of sources including Federal budgets, State programs, the academic community, and nongovernmental organizations. Information on our grant programs that are available to aid species recovery can be found at:
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with the Service.
Federal agency actions within the taxon's habitat that may require consultation as described in the preceding paragraph include management and other landscape-altering activities on Federal lands administered by the Department of Defense.
Under section 9(a)(2) of the Act, with respect to endangered plant taxa, it is unlawful to remove and reduce to possession (i.e., collect) any such taxon from areas under Federal jurisdiction. Regulations adopted for threatened plants (50 CFR 17.71) refer to the regulations adopted for endangered plant species (50 CFR 17.61) and prohibit any act to remove and reduce to possession any threatened plant from an area under Federal jurisdiction; one exception to the prohibitions for endangered plants that applies to threatened plants is that seeds of cultivated specimens of species treated as threatened are exempt from all the provisions of 50 CFR 17.61.
This final rule revises 50 CFR 17.12(h) to reclassify
The Recovery Plan for the Endangered and Threatened Species of the California Channel Islands addresses 10 plants (including
(1) Removing feral animals;
(2) Removing or controlling selected nonnative plants;
(3) Controlling erosion;
(4) Revegetating eroded and disturbed areas;
(5) Reintroducing and reestablishing listed plant species populations;
(6) Modifying existing management plans to minimize habitat disturbance and incorporate recovery actions into natural resource management plans;
(7) Protecting habitat by minimizing habitat loss and disturbance and by preventing the introduction of additional nonnative organisms;
(8) Determining the habitat and other ecological requirements of the listed plant taxa (such as reproductive biology and fire tolerance);
(9) Evaluating the success of management actions;
(10) Increasing public support for recovery efforts; and
(11) Using existing laws and regulations to protect each taxon.
The removal of feral animals has been completed. Reintroduction and reestablishment of listed plant populations are not part of the Navy's conservation strategy for listed plants at this time. However, the Navy will coordinate with us to continue implementing the remainder of the recovery actions as outlined in the Recovery Plan to the extent each action does not interfere with military operations.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501
We determined we do not need to prepare an Environmental Assessment or an Environmental Impact Statement, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this package are the staff members of the Carlsbad Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we hereby amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361–1407; 1531–1544; 4201–4245; unless otherwise noted.
(h) * * *