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Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Embraer S.A. Model EMB–550 airplane. This airplane will have a novel or unusual design feature associated with multiple-place and single-place side-facing seats and the installation of airbag systems in the shoulder belts. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Jayson Claar, FAA, Airframe and Cabin Safety Branch, ANM–115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone 425–227–2194; facsimile 425–227–1232.
On May 14, 2009, Embraer S.A. applied for a type certificate for its new Model EMB–550 airplane. The Model EMB–550 airplane is the first of a new family of jet airplanes designed for corporate flight, fractional, charter, and private owner operations. The airplane has a conventional configuration with low wing and T-tail empennage. The primary structure is metal with composite empennage and control surfaces. The Model EMB–550 airplane is designed for 8 passengers, with a maximum of 12 passengers. It is equipped with two Honeywell HTF7500–E medium bypass ratio turbofan engines mounted on aft fuselage pylons. Each engine produces approximately 6,540 pounds (lbs) of thrust for normal takeoff. The primary flight controls consist of hydraulically powered fly-by-wire elevators, aileron and rudder, controlled by the pilot or copilot sidestick.
The Model EMB–550 airplane has interior configurations that include multiple-place side-facing seats and single-place side-facing seats (both referred to as side-facing seats) that include airbag systems in the shoulder belts for these seats. Existing regulations do not provide adequate or appropriate safety standards for occupants of side-facing seats. Also, existing regulations do not provide adequate or appropriate safety standards for the addition of airbag systems in the shoulder belt of side-facing seats. These special conditions address both issues.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Embraer S.A. must show that the Model EMB–550 airplane meets the applicable provisions of part 25, as amended by Amendments 25–1 through 25–127 thereto.
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Embraer S.A. Model EMB–550 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Embraer S.A. Model EMB–550 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36 and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92–574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).
The Embraer S.A. Model EMB–550 airplane will incorporate the following novel or unusual design features: side-facing seats with airbag systems in the shoulder belts.
The Model EMB–550 airplane will have interior configurations with multiple-place side-facing seats and single-place side-facing seats that include airbag systems in the shoulder belts. Side-facing seats are considered a novel design for transport category airplanes that include Amendment 25–64 in their certification basis and were not anticipated when those airworthiness standards were issued. Therefore, the existing regulations do not provide adequate or appropriate safety standards for occupants of side-facing seats. The airbag systems in the shoulder belts are designed to limit occupant forward excursion in the event of an accident. Using airbag systems in the shoulder belts is novel for commercial aviation.
The FAA has been conducting research to develop an acceptable method of compliance with Title 14, Code of Federal Regulations (14 CFR) 25.785(b) for side-facing seat installations. That research has identified additional injury considerations and evaluation criteria. See published report DOT/FAA/AR–09/41, July 2011.
Before this research, the FAA had been granting exemptions for the multiple-place side-facing seat installations since an adequate method of compliance was not available to produce an equivalent level of safety to that level of safety provided for the forward- and aft-facing seats. These
The FAA had been issuing special conditions to address single-place side-facing seats; however, application of the current research findings has allowed issuing special conditions that are applicable to all fully side-facing seats, both multiple-place and single-place.
Neck-injury evaluation methods applicable to the most common side-facing seat configurations were identified during recent FAA research. The scope of that research, however, did not include deriving specific injury criteria for all possible loading scenarios that could occur to occupants of fully side-facing seats. To limit the injury risk in those cases, these special conditions provide conservative injury evaluation means that are derived from past practice and applicable scientific literature.
Serious leg injuries, such as femur fractures, can occur in aviation side-facing seats that could threaten the occupants' lives directly or reduce their ability to evacuate. Limiting upper-leg axial rotation to a conservative limit of 35 degrees (approximately the 50 percentile range of motion) should also limit the risk of serious leg injuries. It is believed that the angle of rotation can be determined by observing lower-leg flailing in typical high-speed video of the dynamic tests. This requirement complies with the intent of the § 25.562 (b)(6) injury criteria in preventing serious leg injury.
The requirement to provide support for the pelvis, upper arm, chest, and head contained in the previous special conditions for single-place side-facing seats, has been replaced in the new special conditions applicable to all fully side-facing seats with requirements for neck-injury evaluation, leg-flailing limits, pelvis-excursion limits, head-excursion limits, and torso lateral-bending limits that directly assess the effectiveness of the support provided by the seat and restraint system.
To protect occupants in aft-facing seats, those seats must have sufficient height and stiffness to support their heads and spines. Providing this support is intended to reduce spinal injuries when occupant inertial forces cause their heads and spines to load against the seat backs. If, during a side-facing-seat dynamic test, the flailing of the occupants causes their heads to translate beyond the planes of the seat backs, then this lack of support would not comply with the intent of the requirement to prevent spine injuries and would not provide the same level of safety afforded occupants of forward- and aft-facing seats.
Results from tests that produced lateral flailing over an armrest indicate that serious injuries, including spinal fractures, would likely occur. While no criteria currently relates the amount of lateral flail to a specific risk of injury, if lateral flexion is limited to the normal static range of motion, then the risk of injury should be low. This range of motion is approximately 40 degrees from the upright position. Ensuring that lateral flexion does not create a significant injury risk is consistent with the goal of providing an equivalent level of safety to that provided by forward- or aft-facing seats, because that type of articulation of those seats does not occur during forward impacts.
Section 25.562 requires that the restraints remain on the shoulders and pelvises of the occupants during impact. Advisory Circular (AC) 25.562–1B,
During side-facing-seat dynamic tests, the risk for head injury is assessed with only one occupant size (the 50th percentile male as represented by the ES–2re as defined in 49 CFR part 572 supbart U). However, protection for a range of occupant statures can be provided if the impacted surface is homogenous in the area contactable by that range of occupants.
The FAA has issued special conditions in the past for airbag systems on lap belts for some forward-facing seats. These special conditions for the airbag systems in the shoulder belts are based on the previous special conditions for airbag systems on lap belts with some changes to address the specific issues of side-facing seats. The special conditions are not an installation approval. Therefore, while the special conditions relate to each such system installed, the overall installation approval is a separate finding and must consider the combined effects of all such systems installed.
The FAA has considered the installation of airbag systems in the shoulder belts to have two primary safety concerns: first, that the systems perform properly under foreseeable operating conditions, and second, that the systems do not perform in a manner or at such times as would constitute a hazard to the occupants. This latter point has the potential to be the more rigorous of the requirements, owing to the active nature of the system.
For the reasons discussed above, these special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Notice of proposed special conditions No. 25–13–02–SC for the Embraer Model EMB–550 airplanes was published in the
As discussed above, these special conditions are applicable to the Embraer Model EMB–550 airplane. Should Embraer S.A. the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Embraer Model EMB–550 airplanes.
In addition to the requirements of §§ 25.562 and 25.785, the following special condition numbers 1 and 2 are part of the type certification basis of the Model EMB–550 airplane with side-facing-seat installations. For seat places equipped with airbag systems in the shoulder belts, additional special condition numbers 3 through 16 are part of the type certification basis.
1. Additional requirements applicable to tests or rational analysis conducted to show compliance with §§ 25.562 and 25.785 for side-facing seats:
(a) The longitudinal test(s) conducted in accordance with § 25.562(b)(2) to show compliance with the seat-strength requirements of § 25.562(c)(7) and (8) and these special conditions must have an ES–2re anthropomorphic test dummy (ATD) (49 CFR part 572 subpart U) or equivalent, or a Hybrid-II ATD (49 CFR part 572, subpart B as specified in § 25.562) or equivalent occupying each seat position and including all items contactable by the occupant (e.g., armrest, interior wall, or furnishing) if those items are necessary to restrain the occupant. If included, the floor representation and contactable items must be located such that their relative position, with respect to the center of the nearest seat place, is the same at the start of the test as before floor misalignment is applied. For example, if floor misalignment rotates the centerline of the seat place nearest the contactable item 8 degrees clockwise about the aircraft
(b) The longitudinal test(s) conducted in accordance with § 25.562(b)(2) to show compliance with the injury assessments required by § 25.562(c) and these special conditions may be conducted separately from the test(s) to show structural integrity. In this case, structural-assessment tests must be conducted as specified in paragraph 1(a)
(c) If a seat is installed aft of a structure (e.g., an interior wall or furnishing) that does not have a homogeneous surface contactable by the occupant, additional analysis and/or test(s) may be required to demonstrate that the injury criteria are met for the area which an occupant could contact. For example, different yaw angles could result in different injury considerations and may require additional analysis or separate test(s) to evaluate.
(d) To accommodate a range of occupant heights (5th percentile female to 95th percentile male), the surface of items contactable by the occupant must be homogenous 7.3 inches (185 mm) above and 7.9 inches (200 mm) below the point (center of area) that is contacted by the 50th percentile male size ATD's head during the longitudinal test(s) conducted in accordance with paragraphs 1(a), 1(b), and 1(c) of these special conditions. Otherwise, additional head-injury criteria (HIC) assessment tests may be necessary. Any surface (inflatable or otherwise) that provides support for the occupant of any seat place must provide that support in a consistent manner regardless of occupant stature. For example, if an inflatable shoulder belt is used to mitigate injury risk, then it must be demonstrated by inspection to bear against the range of occupants in a similar manner before and after inflation. Likewise, the means of limiting lower-leg flail must be demonstrated by inspection to provide protection for the range of occupants in a similar manner.
(e) For longitudinal test(s) conducted in accordance with § 25.562(b)(2) and these special conditions, the ATDs must be positioned, clothed, and have lateral instrumentation configured as follows:
(1) ATD positioning:
(i) Lower the ATD vertically into the seat while simultaneously (see Figure 2 for illustration):
(A) Aligning the midsagittal plane (a vertical plane through the midline of the body; dividing the body into right and left halves) with approximately the middle of the seat place.
(B) Applying a horizontal
(C) Keeping the upper legs nearly horizontal by supporting them just behind the knees.
(ii) Once all lifting devices have been removed from the ATD:
(A) Rock it slightly to settle it in the seat.
(B) Separate the knees by about 4 inches (100 mm).
(C) Set the ES–2re's head at approximately the midpoint of the available range of
(D) Position the ES–2re's arms at the joint's mechanical detent that puts them at approximately a 40-degree angle with respect to the torso. Position the Hybrid-II ATD hands on top of its upper legs.
(E) Position the feet such that the centerlines of the lower legs are approximately parallel to a lateral vertical plane (in the aircraft coordinate system).
(2) ATD clothing: Clothe each ATD in form-fitting, mid-calf-length (minimum) pants and shoes (size 11E) weighing about 2.5 lb (1.1 kg) total. The color of the clothing should be in contrast to the color of the restraint system. The ES–2re jacket is sufficient for torso clothing, although a form-fitting shirt may be used in addition if desired.
(3) ES–2re ATD lateral instrumentation: The rib-module linear slides are directional, i.e., deflection occurs in either a positive or negative ATD
(f) The combined horizontal/vertical test, required by § 25.562(b)(1) and these special conditions, must be conducted with a Hybrid II ATD (49 CFR part 572, subpart B, as specified in § 25.562), or equivalent, occupying each seat position.
(g) Restraint systems:
(1) If inflatable restraint systems are used, they must be active during all dynamic tests conducted to show compliance with § 25.562.
(2) The design and installation of seat-belt buckles must prevent unbuckling due to applied inertial forces or impact of the hands/arms of the occupant during an emergency landing.
2. Additional performance measures applicable to tests and rational analysis conducted to show compliance with §§ 25.562 and 25.785 for side-facing seats:
(a) Body-to-body contact: Contact between the head, pelvis, torso, or shoulder area of one ATD with the adjacent-seated ATD's head, pelvis, torso, or shoulder area is not allowed. Contact during rebound is allowed.
(b) Thoracic: The deflection of any of the ES–2re ATD upper, middle, and lower ribs must not exceed 1.73 inches (44 mm). Data must be processed as defined in Federal Motor Vehicle Safety Standards (FMVSS) 571.214.
(c) Abdominal: The sum of the measured ES–2re ATD front, middle, and rear abdominal forces must not exceed 562 lb (2,500 N). Data must be processed as defined in FMVSS 571.214.
(d) Pelvic: The pubic symphysis force measured by the ES–2re ATD must not exceed 1,350 lb (6,000 N). Data must be processed as defined in FMVSS 571.214.
(e) Leg: Axial rotation of the upper-leg (femur) must be limited to 35 degrees in either direction from the nominal seated position.
(f) Neck: As measured by the ES–2re ATD and filtered at channel frequency class (CFC) 600 as defined in SAE J211:
(1) The upper-neck tension force at the occipital condyle location must be less than 405 lb (1,800 N).
(2) The upper-neck compression force at the occipital condyle location must be less than 405 lb (1,800 N).
(3) The upper-neck bending torque about the ATD
(4) The upper-neck resultant shear force at the occipital condyle location must be less than 186 lb (825 N).
(g) Occupant (ES–2re ATD) retention: The pelvic restraint must remain on the ES–2re ATD's pelvis during the impact and rebound phases of the test. The upper-torso restraint straps (if present) must remain on the ATD's shoulder during the impact.
(h) Occupant (ES–2re ATD) support:
(1) Pelvis excursion: The load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of its seat's bottom seat-cushion supporting structure.
(2) Upper-torso support: The lateral flexion of the ATD torso must not exceed 40 degrees from the normal upright position during the impact.
3. For seats with airbag systems in the shoulder belts, show that the airbag systems in the shoulder belts will deploy and provide protection under crash conditions where it is necessary to prevent serious injury. The means of protection must take into consideration a range of stature from a 2-year-old child to a 95th percentile male. The airbag systems in the shoulder belts must provide a consistent approach to energy absorption throughout that range of occupants. When the seat systems include airbag systems, the systems must be included in each of the certification tests as they would be installed in the airplane. In addition, the following situations must be considered:
(a) The seat occupant is holding an infant.
(b) The seat occupant is a pregnant woman.
4. The airbag systems in the shoulder belts must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have active airbag systems in the shoulder belts.
5. The design must prevent the airbag systems in the shoulder belts from being either incorrectly buckled or incorrectly installed, such that the airbag systems in the shoulder belts would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant and will provide the required injury protection.
6. It must be shown that the airbag systems in the shoulder belts are not susceptible to inadvertent deployment as a result of wear and tear, inertial loads resulting from in-flight or ground maneuvers (e.g., including gusts and hard landings), and other operating and environmental conditions (e.g., vibrations and moisture) likely to occur in service.
7. Deployment of the airbag systems in the shoulder belts must not introduce injury mechanisms to the seated occupants or result in injuries that could impede rapid egress. This assessment should include an occupant whose belt is loosely fastened.
8. It must be shown that inadvertent deployment of the airbag systems in the shoulder belts, during the most critical part of the flight, will either meet the requirement of § 25.1309(b) or not cause a hazard to the airplane or its occupants.
9. It must be shown that the airbag systems in the shoulder belts will not impede rapid egress of occupants 10 seconds after airbag deployment.
10. The airbag systems must be protected from lightning and high-intensity radiated fields (HIRF). The threats to the airplane specified in existing regulations regarding lighting, § 25.1316, and HIRF, § 25.1317, are incorporated by reference for the purpose of measuring lightning and HIRF protection.
11. The airbag systems in the shoulder belts must function properly after loss of normal aircraft electrical power and after a transverse separation of the fuselage at the most critical location. A separation at the location of the airbag systems in the shoulder belts does not have to be considered.
12. It must be shown that the airbag systems in the shoulder belts will not release hazardous quantities of gas or particulate matter into the cabin.
13. The airbag systems in the shoulder-belt installations must be protected from the effects of fire such that no hazard to occupants will result.
14. A means must be available for a crew member to verify the integrity of the airbag systems in the shoulder-belts activation system prior to each flight or it must be demonstrated to reliably operate between inspection intervals. The FAA considers that the loss of the airbag-system deployment function alone (i.e., independent of the conditional event that requires the airbag-system deployment) is a major-failure condition.
15. The inflatable material may not have an average burn rate of greater than 2.5 inches/minute when tested using the horizontal flammability test defined in part 25, appendix F, part I, paragraph (b)(5).
16. Once deployed, the airbag systems in the shoulder belts must not adversely affect the emergency-lighting system (e.g., block floor proximity lights to the extent that the lights no longer meet their intended function).
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for Hamilton Standard Division model 6/5500/F and 24PF and Hamilton Sundstrand Corporation model 14RF, 14SF, 247F, and 568F series propellers. This AD was prompted by the amount of corrosion detected during major inspections (MI). This AD requires incorporating inspections, based on a calendar time, into the propeller maintenance schedule. We are issuing this AD to prevent corrosion that could result in propeller failure and loss of airplane control.
This AD is effective September 19, 2013.
The Docket Operations office is located at Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001.
For service information identified in this AD, contact Hamilton Sundstrand Corporation, One Hamilton Road, Mail Stop 1A–3–C63, Windsor Locks, CT 06096–1010; or Hamilton Standard Division, One Hamilton Road, United Technologies Corporation, Mail Stop 1A–3–C63, Windsor Locks, CT 06096–1010; phone: 877–808–7575; fax: 860–660–0372; email:
You may examine the AD docket on the Internet at
Michael Schwetz, Aerospace Engineer, Boston Aircraft Certification Office, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7761; fax: 781–238–7170; email:
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 received no comments on the NPRM (78 FR 30795, May 23, 2013) or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (78 FR 30795, May 23, 2013) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (78 FR 30795, May 23, 2013).
We estimate that this AD affects about 1,044 propeller/hub combinations installed on airplanes of U.S. registry. We also estimate that it will take about 160 hours per propeller to perform one MI. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $14,198,400.
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 September 19, 2013.
None.
This AD applies to Hamilton Standard Division 6/5500/F and 24PF and Hamilton Sundstrand Corporation 14RF, 14SF, 247F, and 568F series propellers.
This AD was prompted by the amount of corrosion detected during major inspections
Comply with this AD within the compliance times specified, unless already done.
For Hamilton Sundstrand Corporation propeller models 14RF–9, 14RF–21, 14SF–5, 14SF–7, 14SF–11E, and 568F–1, that have an approved update to the ALS, within 45 days after the effective date of this AD, perform an MI on the blades and hubs no later than seven years after the date since installation (DSI). The DSI will begin at initial installation after the most recent MI or initial installation after production. Guidance on the inspections can be found in the applicable Hamilton Sundstrand Corporation models/manuals 14RF–9/P5186, revision 12, January 20, 2012; 14RF–21/P5189, revision 8, February 20, 2013; 14SF–5/P5188, revision 10, dated January 14, 2013; 14SF–7/P5185, revision 13, dated December 13, 2011; 14SF–11E/P5207, revision 2, dated June 28, 2012; and 568F–1/P5206, revision 9, dated February 22, 2013.
For Hamilton Standard Division propeller models 6/5500/F and 24PF and Hamilton Sundstrand Corporation propeller models 14RF–19, 14RF–37, 14SF–11, 14SF–15, 14SF–23, 14SF–17, 14SF–19, 247F–1, 247F–1E, 247F–3, 568F–1, 568F–5, and 568F–7, that do not have an approved update to the ALS, within one year after the effective date of this AD, perform an MI on the blades and hubs no later than seven years after the DSI. The DSI will begin at initial installation after the most recent MI or initial installation after production. Guidance on the inspections can be found in the applicable Hamilton Standard Division models/manuals 6/5500/F/P5190 and 24PF/61–12–01, and Hamilton Sundstrand Corporation models/manuals 14RF–19/P5199, 14RF–37/P5209, 14SF–11/P5196, 14SF–15/P5197, 14SF–23/P5197, 14SF–17/P5198, 14SF–19/P5198, 247F–1/P4202, 247F–1E/P5204, 247F–3/P5205, 568F–1/P5214, 568F–5/P5203, and 568F–7/P5211.
The Manager, Boston 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 Michael Schwetz, Aerospace Engineer, Boston Aircraft Certification Office, FAA, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7761; fax: 781–238–7170; email:
(2) Hamilton Sundstrand Corporation models/manuals 14RF–9/P5186, revision 12, January 20, 2012; 14RF–21/P5189, revision 8, February 20, 2013; 14SF–5/P5188, revision 10, dated January 14, 2013; 14SF–7/P5185, revision 13, dated December 13, 2011; 14SF–11E/P5207, revision 2, dated June 28, 2012; and 568F–1/P5206, revision 9, dated February 22, 2013, which are not incorporated by reference in this AD, can be obtained from Hamilton Sundstrand Corporation, using the contact information in paragraph (i)(3) of this AD.
(3) For service information identified in the AD, contact Hamilton Sundstrand Corporation, One Hamilton Road, Mail Stop 1A–3–C63, Windsor Locks, CT 06096–1010; or Hamilton Standard Division, United Technologies Corporation, One Hamilton Road, Mail Stop 1A–3–C63, Windsor Locks, CT 06096–1010; phone: 877–808–7575; fax: 860–660–0372; email:
None.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; rescission.
We are rescinding an airworthiness directive (AD) for PIAGGIO AERO INDUSTRIES S.p.A. Model P–180 airplanes. The rescinded AD resulted from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as partial detachment of the inner protective film of the composite nacelles. Since issuance of the rescinded AD, we have determined that the unsafe condition does not exist or is not likely to develop on affected type design airplanes.
This AD is effective September 19, 2013.
You may examine the AD docket on the Internet at
Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329–4144; fax: (816) 329–4090; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by rescinding AD 99–07–10 (64 FR 14824, March 29, 1999) that applied to the specified products. The NPRM was published in the
On March 18, 1999, we issued AD 99–07–10, Amendment 39–11095 (64 FR 14824, March 29, 1999), with an effective date of May 10, 1999. The AD required actions intended to address an unsafe condition on the products listed above.
Since we issued AD 99–07–10, Amendment 39–11095 (64 FR 14824, March 29, 1999), the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD Cancellation Notice No.: 2013–0085–CN, dated April 8, 2013, which cancelled Ente Nazionale per l'Aviazione Civile (ENAC) (the airworthiness authority for Italy) AD No. 98–208, dated June 9, 1998. Italian AD No. 98–208 required the inspections and corrective actions of Piaggio Service Bulletin (Mandatory) No.: SB–80–0101, Original Issue: May 6, 1998. AD 99–07–10, Amendment 39–11095 (64 FR 14824, March 29, 1999), is the result of mandatory continuing airworthiness information (MCAI) issued by ENAC.
We have been notified that since 2000, all nacelles for PIAGGIO AERO INDUSTRIES S.p.A Model P–180 airplanes have been manufactured by a different supplier, and no new occurrences of film detachment have been reported on earlier manufactured airplanes. Therefore, nacelle inner panel
Refer to MCAI European Aviation Safety Agency (EASA) AD No.: AD Cancellation Notice No.: 2013–0085–CN, dated April 8, 2013, and Ente Nazionale per l'Aviazione Civile (ENAC) AD No. 98–208, dated June 9, 1998, for related information; both may be found in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (78 FR 32363, May 30, 2013).
We reviewed the relevant data and determined that rescinding the AD will not affect air safety and will reduce the burden on the public. We will rescind the AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (78 FR 32363, May 30, 2013) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (78 FR 32363, May 30, 2013).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this 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 this regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective September 19, 2013.
This AD rescinds AD 99–07–10, Amendment 39–11095 (64 FR 14824, March 29, 1999).
This AD applies to PIAGGIO AERO INDUSTRIES S.p.A Model P–180 airplanes, all serial numbers, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 54; Nacelles/Pylons.
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is adopting final regulations to implement enhanced risk management standards for systemically important derivatives clearing organizations that include increased financial resources requirements for systemically important derivatives clearing organizations that are involved in activities with a more complex risk profile or that are systemically important in multiple jurisdictions, the prohibited use of assessments by systemically important derivatives clearing organizations in calculating their available default resources, and enhanced system safeguards for systemically important derivatives clearing organizations for business continuity and disaster recovery (“BC–DR”). This final rule also implements special enforcement authority over systemically important derivatives clearing organizations granted to the Commission under section 807(c) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).
The rules will become effective October 15, 2013. Systemically important derivatives clearing organizations must comply with § 39.29 and § 39.30 no later than December 31, 2013.
Ananda Radhakrishnan, Director, 202–418–5188,
On July 21, 2010, President Obama signed the Dodd-Frank Act.
Section 725(c) of the Dodd-Frank Act amended section 5b(c)(2) of the CEA, which sets forth core principles that a derivatives clearing organization (“DCO”) must comply with to register and maintain registration with the Commission. The core principles were originally added to the CEA by the Commodity Futures Modernization Act of 2000 (“CFMA”),
As noted in the preamble to the adopting release for subparts A and B of part 39 of the Commission's regulations, the regulations that implement the DCO core principles, the Commission sought to provide legal certainty for market participants, strengthen the risk management practices of DCOs, and increase overall confidence in the financial system by assuring the public that DCOs are meeting minimum risk management standards.
(1) With respect to financial resources, (a) Core Principle B, which requires DCOs to have “adequate financial, operational, and managerial resources, as determined by the Commission, to discharge each responsibility of the [DCO],”
(2) with respect to business continuity, (a) Core Principle I, which requires DCOs to “establish and maintain emergency procedures, backup facilities, and a plan for disaster recovery that allows for (I) the timely recovery and resumption of operations of the [DCO], and (II) the fulfillment of each obligation and responsibility of the [DCO],”
Title VIII of the Dodd-Frank Act, entitled “Payment, Clearing, and Settlement Supervision Act of 2010,”
FMUs form a critical part of the nation's financial infrastructure. They exist in many markets to support and facilitate the transfer, clearing or settlement of financial transactions, and their smooth operation is integral to the soundness of the financial system and the overall economy. However, their function and interconnectedness also concentrate a considerable amount of risk in the financial system due, in large part, to the interdependencies, either directly through operational, contractual or affiliation linkages, or indirectly through payment, clearing, and settlement processes. In other words, problems at one FMU could trigger significant liquidity and credit disruptions at other FMUs or financial institutions.
In determining whether an FMU is systemically important, the Council uses a two-stage designation process, applying certain statutory considerations
Section 805 of the Dodd-Frank Act directs the Commission to consider relevant international standards and existing prudential requirements when prescribing risk management standards governing the operations related to payment, clearing, and settlement activities for FMUs that are (1) designated as systemically important by the Council, and (2) engaged in activities for which the Commission is the Supervisory Agency.
The Commission has reviewed the risk management standards set forth in part 39 of the Commission's regulations in light of recently promulgated relevant international standards and existing prudential requirements to identify
The Commission has determined that the international standards most relevant to the risk management of SIDCOs, for purposes of meeting the Commission's obligation pursuant to section 805(a)(2)(A) of the Dodd-Frank Act, are the Principles for Financial Market Infrastructures (“PFMIs”), which were developed by the Bank for International Settlements' Committee on Payment and Settlement Systems (“CPSS”) and the Technical Committee of the International Organization of Securities Commissions (“IOSCO”) (collectively, “CPSS–IOSCO”).
In the United States, the SEC adopted a final rule that incorporates heightened risk management standards for CCPs that clear security-based swaps, based on, in part, the PFMIs' “cover two” standard for CCPs engaged in a more complex risk profile or that are systemically important in multiple jurisdictions.
The PFMIs establish international risk management standards for financial market infrastructures (“FMIs”), including CCPs, that facilitate clearing and settlement.
The PFMIs set out 24 principles addressing various risk components of an FMI's operations, including, as most relevant to this final rule, credit and operational risk.
Principle 4 addresses the risk that a counterparty to the CCP will be unable to fully meet its financial obligations when due.
More generally, Principle 4 states that all FMIs should establish explicit rules and procedures to address any credit losses they may face as a result of an individual or combined default among its participants with respect to any of their obligations to the FMI.
Principle 17 addresses the risk of deficiencies in information systems or internal processes, human errors, management failures, or disruptions from external events that will result in the reduction or deterioration of services provided by the FMI.
Where a CCP is prudentially supervised in a jurisdiction that does not have domestic rules and regulations that are consistent with the PFMIs, the implementation of certain international banking regulations will have significant cost implications for that CCP and its market participants.
In July 2012, the BCBS,
The capital charges for trade exposure are based upon a function that multiplies exposure by risk weight. Risk weight is a measure that represents the likelihood that the loss to which the bank is exposed will be incurred, and the extent of that loss. The risk weight assigned under the BCBS standards varies significantly depending on whether or not the counterparty is a “qualified” CCP (“QCCP”).
With respect to default fund exposure, whenever a clearing member bank is required to capitalize for exposures arising from default fund contributions to a QCCP, the clearing member bank may apply one of two methodologies for determining the capital requirement: The risk-sensitive approach, or the 1250 percent risk-weight approach.
Thus, the Basel CCP Capital Requirements provide incentives for banks to clear derivatives through CCPs that are QCCPs by setting lower capital charges for exposures arising from derivatives cleared through a QCCP and setting significantly higher capital charges for exposures arising from derivatives cleared through non-qualifying CCPs. The increased capital charges for transactions through non-qualifying CCPs may have significant business and operational implications for U.S. DCOs, particularly SIDCOs that operate internationally and are not QCCPs.
As discussed further below in Section VI, the incentives noted in the foregoing paragraph have important implications for the cost and benefit considerations required by section 15(a) of the CEA.
In April 2011, a year before the PFMIs were published, the Board proposed regulation HH, which sets forth, in part, risk management standards for those FMUs, for which the Board is the Supervisory Agency, that have been designated systemically important by the Council under Title VIII.
As noted above, the CEA specifies certain core principles that all DCOs must comply with in order to register and maintain registration with the Commission. Core Principle B sets out minimum financial resources requirements for all DCOs and expressly states that a DCO must have “adequate financial, operational, and managerial resources,
First, the Commission proposed to increase the amount of financial resources a SIDCO must maintain in order to comply with Core Principle B and Commission regulation 39.11.
In addition to financial resources requirements, the Commission also proposed to improve system safeguards for SIDCOs by enhancing certain BC–DR procedures.
As part of the Commission's proposed regulations for SIDCOs, the Commission also included special enforcement authority over SIDCOs
The Commission requested comments on the proposed regulations,
Because efforts to finalize the PFMIs were ongoing, new rules could have put SIDCOs at a competitive disadvantage vis-à-vis foreign CCPs not yet subject to comparable rules, and, at the time, no DCO had been designated as systemically important by the Council, the Commission concluded it would be premature to finalize the SIDCO regulations in the Derivatives Clearing Organization Core Principles adopting release.
As discussed above, since the final adoption of subparts A and B of part 39 of the Commission's regulations implementing the DCO core principles, there have been significant domestic and international developments, including (1) the publication of the final PFMIs in April 2012,
Regulation 39.29(a), as proposed, would have required SIDCOs to maintain sufficient financial resources to meet financial obligations to its clearing members notwithstanding a default by the two clearing members creating the largest combined financial exposure for the SIDCO in extreme but plausible market conditions.
The Commission received nine comment letters from market participants regarding the specific requirements set forth in proposed regulation 39.29(a).
Two commenters, Mr. Michael Greenberger and LCH. Clearnet Group Limited (“LCH”), generally supported the proposed financial resources requirements for SIDCOs.
OCC, however, disagreed with the necessity to impose a cover two requirement on all SIDCOs.
The Futures Industry Association (“FIA”) and, in its initial comment letter, CME commented that the proposed cover two requirement for SIDCOs could competitively disadvantage SIDCOs in both domestic and international markets.
CME's initial comment letter echoed FIA's approach, arguing that having lower financial resources requirements for DCOs that are not SIDCOs would allow those DCOs to offer lower guaranty fund and margin requirements.
Additionally, LCH, which was supportive of the proposal, urged the Commission “to minimize the divergence” between U.S.-regulated CCPs and other CCPs and ensure a level playing field between SIDCOs and other large CCPs around the world by conforming as much as possible the Commission's final rules on SIDCOs to the global standards set forth by the PFMIs.
The Commission notes that Core Principle B requires DCOs to have “adequate financial, operational, and managerial resources, as determined by the Commission, to discharge each responsibility of the DCO.”
Specifically, rather than apply the cover two requirement to all SIDCOs, the revised regulation 39.29(a) would parallel the financial resources standard in Principle 4 of the PFMIs and only require a SIDCO that is systemically important in multiple jurisdictions or that is involved in activities with a more complex risk profile to maintain financial resources sufficient to enable it to meet its financial obligations to its clearing members notwithstanding a default by the two clearing members creating the largest combined financial exposure for the SIDCO in extreme but plausible market conditions, provided that if a clearing member controls another clearing member or is under common control with another clearing member, affiliated clearing members shall be deemed to be a single clearing member for the purposes of this provision.
Thus, regulation 39.29(a) will promote consistency and efficiency in the financial markets by holding SIDCOs to the same cover two standard as similarly situated foreign CCPs. Additionally, because the PFMIs set forth international risk management standards for CCPs, this international harmonization should mitigate some of the competition concerns raised by the commenters. Moreover, adoption of this revised regulation is part of the Commission's broader efforts to adopt and implement regulations that are consistent with the PFMIs so that SIDCOs operating internationally can be considered QCCPs. Such QCCP status should help a SIDCO avoid competitive harm internationally by providing bank clearing members and clients with the opportunity to obtain the more favorable capital charges set forth by the Basel CCP Capital Requirements.
After careful review and consideration of the comments, and in light of international standards and prudential regulations, the Commission is adopting a regulation 39.29(a), as revised, to require the cover two standard for those SIDCOs that are systemically important in multiple jurisdictions or that are involved in activities with a more complex risk profile.
Regulation 39.29(b), as proposed, would have precluded SIDCOs from counting the value of assessments in calculating the resources available to meet the obligations arising from a default by the clearing member creating the single largest financial exposure,
The Commission received five comment letters from market participants regarding the specific requirements set forth in proposed regulation 39.29(b).
The Commission recognizes the potential pro-cyclical effects of assessments and agrees that a SIDCO should not be permitted to use the value of assessments in calculating the resources available to meet its obligations under regulation 39.29(a). “Pro-cyclicality,” as defined in the PFMIs, refers to “changes in risk-management practices that are positively correlated with market, business, or credit cycle fluctuations and that may cause or exacerbate financial instability.”
As discussed above, Core Principle B requires DCOs to have “adequate financial, operational, and managerial resources, as determined by the Commission, to discharge each responsibility of the DCO.”
The Commission believes the role of a SIDCO, in part, is to add stability and confidence in the financial markets, and to the extent that the prohibition of the inclusion of the value of assessments by SIDCOs in meeting their default resource requirements helps to stem pro-cyclicality and the potential weakening of financial markets, the Commission is in favor of this approach. Moreover, prohibition of the inclusion of the value of assessments will help ensure that a SIDCO has, when needed, adequate resources to discharge each of its responsibilities.
Accordingly, after consideration of the comments, relevant international standards, and existing prudential requirements, the Commission is adopting regulation 39.29(b) with a revision to prohibit the use of assessments by SIDCOs in calculating financial resources available to meet the SIDCO's obligations under regulation 39.29(a).
Regulation 39.30(a), as proposed, would have required a SIDCO to have a BC–DR plan, that has the objective of, and the physical, technological, and personnel resources sufficient to, enable the SIDCO to recover operations and resume daily processing, clearing, and settlement no later than two hours following a disruption,
A “recovery time objective” is defined as “the time period within which an entity should be able to achieve recovery and resumption of clearing and settlement of existing and new products, after those capabilities become temporarily inoperable for any reason up to or including a wide-scale disruption.” A “wide-scale disruption” is defined as “an event that causes a severe disruption or destruction of transportation, telecommunications, power, water, or other critical infrastructure components in a relevant area, or an event that results in an evacuation or unavailability of the population in a relevant area.” “Relevant area” is defined as “the metropolitan or other geographic area within which a derivatives clearing organization has physical infrastructure or personnel necessary for it to conduct activities necessary to the clearing and settlement of existing and new products. The term `relevant area' also includes communities economically integrated with, adjacent to, or within normal commuting distance of that metropolitan or other geographic area.”
In order to achieve the specified recovery time objective (“RTO”) in proposed regulation 39.30(a), proposed regulation 39.30(b) would have required SIDCOs to maintain a geographic dispersal of physical, technological, and personnel resources.
Regulation 39.30(c), as proposed, would have required that each SIDCO conduct regular, periodic tests of its BC–DR plans and resources, and of its capacity to achieve the required RTO in the event of a wide-scale disruption.
The Commission received five comment letters regarding the specific requirements set forth in proposed regulation 39.30(a).
Both Intercontinental Exchange, Inc. (“ICE”) and CME, on the other hand, expressed concern that requiring a more stringent RTO for SIDCOs would impose significant costs.
OCC commented that, though a laudable goal, a two-hour RTO was not consistently achievable without sacrificing core DCO functions and increasing the risks of error and backlogs.
With respect to commenters' concerns that the proposed regulation will significantly increase costs on SIDCOs, the Commission recognizes these concerns but notes that a systemic importance designation under Title VIII means that the failure of a SIDCO to meet its obligations will have a greater impact on the U.S. financial system than the failure of a DCO not so designated. Thus, the Commission believes the financial system has a vested interest in enhancing risk management requirements for SIDCOs to increase a SIDCO's financial resiliency and to
Additionally, the Commission notes that while it may be true that a two-hour RTO was an aspirational goal in 2003, standards and technology have advanced in the last ten years. As discussed above, the current international standard for CCPs, as set forth by the PFMIs, is to have a BC–DR plan that incorporates a two-hour RTO.
The Commission believes that enhancing the system safeguard requirements a SIDCO must maintain under Core Principle I will increase stability in the financial markets and is therefore consistent with Title VIII's objectives. Moreover, regulation 39.30(a) will promote regulatory consistency for SIDCOs and similarly situated CCPs because the two-hour RTO is the international standard, under the PFMIs, for CCPs operating in other jurisdictions. As discussed above, the Commission is fully committed to adopting and implementing regulations that are consistent with the PFMIs to ensure that SIDCOs are QCCPs under the Basel CCP Capital Requirements so that banks transacting through SIDCOs can receive preferential capital treatment.
The Commission did not receive any comments regarding proposed regulations 39.30(b) or 39.30(c). Therefore, for reasons stated in the proposal, the Commission is adopting regulations 39.30(b) and 39.30(c) as proposed.
Regulation 39.31 proposed to codify the special enforcement authority granted to the Commission over SIDCOs pursuant to section 807(c) of the Dodd-Frank Act, which states that for purposes of enforcing the provisions of Title VIII of the Dodd-Frank Act, a SIDCO is subject to, and the Commission has authority under, provisions (b) through (n) of section 8 of the FDIA
For purposes of publication in the Code of Federal Regulations, all of the rules adopted herein will have an effective date of 60 days after publication in the
Given the mandate to implement these standards, and the necessity of SIDCOs to fulfill their obligations on a near continuous basis, after careful consideration of the comments received, the Commission is extending the compliance date for regulations 39.29 and 39.30 to December 31, 2013.
Section 15(a) requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.
In this final rulemaking, the Commission is adopting regulations to implement enhanced risk management standards for SIDCOs.
As noted above, consistent with the DCO core principles and section 805 of the Dodd-Frank Act, which requires the Commission to consider relevant international and existing prudential requirements when prescribing risk management standards for SIDCOs, the Commission proposed the following enhanced requirements for SIDCOs:
(1) Regulation 39.29(a) which would require a SIDCO to maintain sufficient resources to meet a “cover two” standard in order to comply with Core Principle B;
As also discussed above, after the Commission proposed the SIDCO risk management standards and received comments, the PFMIs were published.
In light of the directive of section 805 of the Dodd-Frank Act to consider relevant international standards and existing prudential requirements when prescribing risk management standards for designated systemically important FMUs, as well as the recent publication of the PFMIs, and public comments on the proposed SIDCO regulations, the Commission has determined it is necessary and appropriate to finalize the proposed enhanced risk management standards for SIDCOs. However, in order to harmonize the proposed regulations with the existing international standards set forth by the PFMIs, as requested by some commenters,
The Commission considered the following alternatives: (1) Not to adopt any of the proposed SIDCO risk management regulations, (2) to adopt the SIDCO risk management regulations only as proposed, or (3) to adopt the proposed SIDCO risk management regulations with revisions consistent with relevant international standards and existing prudential requirements. As detailed above, the Commission has concluded it is necessary and appropriate in this final rulemaking to adopt regulation 39.29, as revised, regulation 39.30, as proposed, and regulation 39.31, as proposed.
In the discussion that follows, the Commission considers the costs and benefits of the final rulemaking in light of the comments it received and section 15(a) of the CEA. As the requirement in regulation 39.31 is imposed by the Dodd-Frank Act, any associated costs and benefits are the result of statutory directives as determined by Congress, not an act of Commission discretion.
For the remaining regulations in this rulemaking, 39.29(a) (cover two), 39.29(b) (prohibition of assessments) and 39.30 (two-hour RTO), the Commission considers the costs and benefits attributable to these enhanced requirements against the DCO regulatory framework established in part 39, which provides minimum risk standards for DCOs and sets the baseline for cost and benefit considerations. Specifically, regulation 39.11 (implementing DCO Core Principle B) sets a cover one standard as the minimum financial resources requirement for all DCOs whereas regulation 39.29(a) sets a cover two financial resources requirement for all SIDCOs engaged activities with a more complex risk profile or that are systemically important in multiple jurisdictions. Regulation 39.11 permits the inclusion of assessment powers, to a limited extent, in calculating whether a DCO meets its default resources requirement, whereas regulation 39.29(b) prohibits the use of assessments by SIDCOs in meeting those obligations. Regulation 39.18 requires a DCO to have an RTO of no later than the next business day following the disruption of its operations whereas regulation 39.30 (implementing DCO Core Principle I) requires SIDCOs to have a BC–DR plan with a two-hour
The Commission invited public comment on all aspects of the proposed SIDCO rulemaking but did not receive any comments with quantitative data from which the Commission could calculate the costs and benefits of the proposed enhanced requirements. The Commission did receive qualitative comments on the Commission's proposed consideration of costs and benefits generally, as well as specifically to the requirements central to this final rule: Cover two, use of assessments and two-hour RTO. These comments are summarized below in connection with the Commission's consideration of the costs and benefits of the final rules being promulgated herein.
As explained in the subsections that follow, this final rule promotes the financial strength, operational security and reliability of SIDCOs, reduces systemic risk, and increases the stability of the broader U.S. financial system. In addition, the regulations harmonize U.S regulations with international standards which will, in important ways, place SIDCOs on a level playing field with their competitors in the global financial markets:
The cover two requirement increases the financial stability of certain SIDCOs which, in turn, increases the overall stability of the US financial markets. This is so because enhancing a SIDCO's financial resources requirements from the minimum of cover one to a more stringent cover two standard helps to ensure the affected SIDCO will have greater financial resources to meet its obligations to market participants, including in the case of defaults by multiple clearing members. These added financial resources lessen the likelihood of the SIDCO's failure which, given the designation of systemically important, could threaten the stability of the US financial system.
According to commenters, existing SIDCOs already fund their default resources using a cover two standard for products with a more complex risk profile.
As discussed below and throughout this release, the Commission believes that prohibiting the use of assessments by a SIDCO in meeting its default resource obligations (
Assessment powers are more likely to be exercised during periods of financial market stress. If during such a period, a clearing member defaults and the loss to the SIDCO is sufficiently large to deplete (1) the collateral posted by the defaulting entity, (2) the defaulting entity's default fund contribution, and (3) the remaining pre-funded default fund contributions, a SIDCO's exercise of assessment powers over the non-defaulting clearing members may exacerbate a presumably already weakened financial market. The demand by a SIDCO for more capital from its clearing members could force one or more additional clearing members into default because they cannot meet the assessment. The inability to meet the assessment could lead clearing members and/or their customers to de-leverage (
The increase in prefunding of financial resources by a SIDCO may increase costs to clearing members of that SIDCO (
A two-hour RTO in a SIDCO's BC–DR plan increases the soundness and operating resiliency of the SIDCO, which in turn, increases the overall stability of the U.S. financial markets.
Given the significant role SIDCOs play within the financial market infrastructure and the need to preserve, to the greatest extent practicable, their near-continuous operation, regulation 39.30 prescribes an enhanced RTO of two hours. The two-hour RTO ensures that even in the event of a wide-scale disruption, the potential negative effects upon U.S. financial markets be minimized because the affected SIDCO will recover rapidly and resume its critical market functions, thereby allowing other market participants to process their transactions, even those participants in locations not directly affected by the disruption. The two-hour RTO increases a SIDCO's operational resiliency by requiring the SIDCO to have the resources and technology necessary to resume operations promptly. This resiliency, in turn, increases the overall stability of the U.S. financial markets.
As discussed above,
The Commission requested but did not receive any quantitative data or specific cost estimates associated with the proposed regulations. However, in qualitative terms, the Commission recognizes that this final rule may impose important costs on SIDCOs depending on the financial resources requirements and system safeguards procedures the SIDCOs currently implement. In other words, the costs range from minimal (to the extent SIDCOs are already operating, or planning to operate, consistent with the final rules) to significant (for those who are not).
To the extent costs increase, the Commission has considered that higher trading costs for market participants (
The cost of the cover two requirement for certain SIDCOs includes the opportunity cost of the additional financial resources needed to satisfy the guaranty fund requirements for the risk of loss resulting from the default of the second largest clearing member.
As discussed above in more detail, the Commission received comments from market participants addressing the costs associated with a cover two standard.
As noted above, and in comment letters from CME and ICC,
However, there are likely to be costs associated with the uncertainty as to whether a SIDCO is deemed systemically important in multiple jurisdictions and what constitutes a product with a more complex risk profile. These costs are associated with business planning,
The costs associated with the prohibited use of assessments by SIDCOs in calculating the SIDCO's obligations under regulation 39.29(a) include the opportunity cost of the additional financial resources needed to replace the value of such assessments. This may require an infusion of additional capital. The cost of this regulation should be mitigated for SIDCOs because neither CME Clearing nor ICC, the two existing SIDCOs, rely on assessments to meet their default fund obligations for products with a more complex risk profile.
The Commission recognizes that a two-hour RTO may increase operational costs for SIDCOs by requiring additional resources, including personnel, technological and geographically dispersed resources, in order to comply with the final rule. Moreover, the implementation of a two-hour RTO is expected to impose one-time costs to set up the enhanced resources as well as recurring costs to operate the additional resources. However, as noted above, the Commission requested but did not receive quantitative data from which to estimate the dollar costs associated with implementing a two-hour RTO, and in particular the costs of moving from a next day RTO, the minimum standard established by the DCO core principles and regulation 39.18, to a two-hour RTO as required by regulation 39.30. The Commission did, however, receive qualitative comments regarding the costs associated with the two-hour RTO, which are discussed in more detail above. For example, CME, ICE and OCC all initially opposed the enhanced RTO, citing to the increase of costs associated with the proposed regulation 39.30. However, more recently, the Commission received comments from CME and ICC acknowledging the importance of the two-hour RTO and their intent to implement a two-hour RTO.
The enhanced financial resources requirements and system safeguard requirements for SIDCOs, as set forth in this final rulemaking, will further the protection of market participants and the public by increasing the financial stability and operational security of SIDCOs, and more broadly, increase the stability of the U.S. financial markets. A designation of systemic importance under Title VIII means the failure of a SIDCO or the disruption of its clearing and settlement activities could create or increase the risk of significant liquidity or credit problems spreading among financial institutions or markets, thereby threatening the stability of the U.S. financial markets. The regulations contained in this final rule are designed to help ensure that SIDCOs continue to function even in extreme circumstances, including multiple defaults by clearing members and wide-scale disruptions. While there may be increased costs associated with the implementation of the final rules, these costs are mitigated by the countervailing benefits of the increased safety and soundness of the SIDCOs and the reduction of systemic risk, which protect market participants and the public form the adverse consequences that would result from a SIDCO failure or a disruption in its functioning.
The regulations set forth in this final rulemaking will promote financial strength and stability of SIDCOs, as well as, more broadly, efficiency and greater competition in the global markets. The regulations promote efficiency insofar as SIDCOs that operate with enhanced financial resources as well as increased system safeguards are more secure and are less likely to fail. The regulations promote competition because they are consistent with the international standards set forth in the PFMIs and will help to ensure that SIDCOs are afforded the opportunity to gain QCCP status and thus avoid an important competitive disadvantage relative to similarly situated foreign CCPs that are QCCPs. Additionally, by increasing the stability and strength of the SIDCOs, the regulations in the final rule help to ensure that SIDCOs can meet their obligations in the most extreme circumstances and can resume operations even in the face of wide-scale disruption, which contributes to the financial integrity of the financial markets. In requiring more SIDCO financial resources to be pre-funded by (1) expanding the potential losses those resources are intended to cover and (2) restricting the means for satisfying those resource requirements,
The regulations in the final rulemaking enhance risk management standards for SIDCOs which may result in increased public confidence, which, in turn, might lead to expanded participation in the affected markets,
The regulations in the final rulemaking contribute to the sound risk management practices of SIDCOs because the requirements promote the safety and soundness of the SIDCOs by (1) enhancing the financial resources requirements, which provide greater certainty for market participants that all obligations will be honored by the SIDCOs and (2) enhancing system safeguards to facilitate the continuous operation and rapid recovery of activities, which provide certainty and security to market participants that potential disruptions will be reduced and, by extension, the risk of loss of capital and liquidity will be reduced.
The Commission notes the strong public interest for jurisdictions to either adopt the PFMIs or establish standards consistent with the PFMIs in order to allow CCPs licensed in the relevant jurisdiction to gain QCCP status. As emphasized throughout this rulemaking, SIDCOs that gain QCCP status will avoid a competitive disadvantage in the financial markets by avoiding the much higher capital charges imposed by the Basel CCP Capital Requirements. Moreover, because “enhancements to the regulation and supervision of systemically important financial market utilities . . . are necessary . . . to support the stability of the broader financial system,”
The Commission may not conduct or sponsor, and a registered entity is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The Commission's adoption of §§ 39.28, 39.29, 39.30, and 39.31 (DCO) imposes no new information collection requirements on registered entities within the meaning of the Paperwork Reduction Act.
The Regulatory Flexibility Act (RFA) requires that agencies consider whether the rules they propose will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact. The rules proposed by the Commission will affect only DCOs designated as SIDCOs. The Commission has previously established certain definitions of “small entities” to be used by the Commission in evaluating the impact of its regulations on small entities in accordance with the RFA. The Commission has previously determined that DCOs are not small entities for the purpose of the RFA.
Commodity futures, Consumer protection, Enforcement authority, Financial resources, Reporting and recordkeeping requirements, Risk management.
For the reasons stated in the preamble, amend 17 CFR part 39 as follows:
7 U.S.C. 2 and 7a–1 as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111–203, 124 Stat. 1376; Subpart C also issued under 12 U.S.C. 5464.
(a) The provisions of this subpart C apply to any derivatives clearing organization, as defined in section 1a(15) of the Act and § 1.3(d) of this chapter,
(1) Which is registered or deemed to be registered with the Commission as a derivatives clearing organization, is required to register as such with the Commission pursuant to section 5b(a) of the Act, or which voluntarily registers as such with the Commission pursuant to section 5b(b) or otherwise; and
(2) Which is a systemically important derivatives clearing organization as defined in § 39.2.
(b) A systemically important derivatives clearing organization is subject to the provisions of subparts A and B of this part 39 except to the extent different requirements are imposed by provisions of this subpart C.
(c) A systemically important derivatives clearing organization shall provide notice to the Commission in advance of any proposed change to its rules, procedures, or operations that could materially affect the nature or level of risks presented by the systemically important derivatives clearing organization, in accordance with the requirements of § 40.10 of this chapter.
(a)
(b)
(a) Notwithstanding § 39.18(e)(3), the business continuity and disaster recovery plan described in § 39.18(e)(1) for each systemically important derivatives clearing organization shall have the objective of enabling, and the physical, technological, and personnel resources described in § 39.18(e)(1) shall be sufficient to enable, the derivatives clearing organization to recover its operations and resume daily processing, clearing, and settlement no later than two hours following the disruption, for any disruption including a wide-scale disruption.
(b) To ensure its ability to achieve the recovery time objective specified in paragraph (a) of this section in the event of a wide-scale disruption, each systemically important derivatives clearing organization must maintain a degree of geographic dispersal of physical, technological and personnel resources consistent with the following:
(1) For each activity necessary to the clearance and settlement of existing and new contracts, physical and technological resources, sufficient to enable the entity to meet the recovery time objective after interruption of normal clearing by a wide-scale disruption, must be located outside the relevant area of the infrastructure the entity normally relies upon to conduct that activity, and must not rely on the same critical transportation, telecommunications, power, water, or other critical infrastructure components the entity normally relies upon for such activities;
(2) Personnel, sufficient to enable the entity to meet the recovery time objective after interruption of normal clearing by a wide-scale disruption affecting the relevant area in which the personnel the entity normally relies upon to engage in such activities are located, must live and work outside that relevant area;
(3) The provisions of § 39.18(f) shall apply to these resource requirements.
(c) Each systemically important derivatives clearing organization must conduct regular, periodic tests of its business continuity and disaster recovery plans and resources and its capacity to achieve the required recovery time objective in the event of a wide-scale disruption. The provisions of § 39.18(j) apply to such testing.
(d) The requirements of this section shall apply to a derivatives clearing organization not earlier than one year after such derivatives clearing organization is designated as systemically important.
For purposes of enforcing the provisions of Title VIII of the Dodd-Frank Act, a systemically important derivatives clearing organization shall be subject to, and the Commission has authority under the provisions of subsections (b) through (n) of section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818) in the same manner and to the same extent as if the systemically important derivatives clearing organization were an insured depository institution and the Commission were the appropriate Federal banking agency for such insured depository institution.
The following appendix will not appear in the Code of Federal Regulations
On this matter, Chairman Gensler and Commissioners Chilton, O'Malia, and Wetjen voted in the affirmative.
Office of the Assistant Secretary of Housing—Federal Housing Commissioner, HUD.
Correcting amendment.
On June 20, 2013, HUD published a final rule that amended regulations for the purpose of streamlining the requirements applicable to mixed finance developments in the Section 202 Supportive Housing for the Elderly (Section 202) and the Section 811 Supportive Housing for Persons with Disabilities (Section 811) programs and amending certain regulations governing all Section 202 and Section 811 developments. This publication corrects an error in the final rule regarding the duration of the fund reservations for capital advances.
Aretha Williams, Office of Housing Assistance and Grant Administration, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 6136, Washington, DC 20410–8000; telephone number 202– 708–3000 (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the toll-free Federal Relay Service at 1–800–877–8339.
On June 20, 2013 (78 FR 37106), HUD published a final rule amending regulations governing the Section 202 and Section 811 programs to streamline requirements for mixed finance developments and to amend other regulations for these programs. One amendment the rule made was to extend
After publication of the final rule, it came to HUD's attention that there was an error in the regulatory text. The final rule amended 24 CFR 891.165(a) so that “the duration of the fund reservation for a capital advance with construction advances is 24 months
The preamble to the proposed rule (77 FR 18723) noted that the regulations then governing the duration of the availability of capital advance funds limited the duration of the fund reservations for the capital advances to 18 months from the date of issuance of the fund reservation award (77 FR at 18726). The preamble went on to note that the purpose of extending this duration was to enable owners to focus on projects to ensure that they reach initial closing and start construction within 24 months (77 FR at 18726). This makes it clear that the intent of the rule is to extend the duration of the fund reservation for a capital advance from the date of issuance of the award letter so that owners could reach initial closing, and not to extend the time after the date of initial closing. This rule makes a technical correction to the final rule to fulfill that intent.
Aged, Grant programs—housing and community development, Individuals with disabilities, Loan programs—housing and community development, Rent subsidies, Reporting and recordkeeping requirements.
Accordingly, HUD amends 24 CFR part 891 as follows:
12 U.S.C. 1701q; 42 U.S.C. 1437f, 3535(d), and 8013.
In paragraph (a), revise the phrase “24 months from the date of initial closing” to read “24 months from the date of issuance of the award letter to the date of initial closing”.
Internal Revenue Service (IRS), Treasury.
Final and temporary regulations.
This document contains final and temporary regulations that provide guidance to charitable hospital organizations regarding the requirement of a return to accompany payment of the excise tax, enacted as part of the Patient Protection and Affordable Care Act of 2010, for failure to meet the community health needs assessment (CHNA) requirements for any taxable year. The regulations affect charitable hospital organizations. This action is necessary to implement section 9007(b) of the Patient Protection and Affordable Care Act of 2010. The text of the temporary regulations also serves as the text of the proposed regulations set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section in this issue of the
Amy F. Giuliano at (202) 622–6070 (not a toll-free number).
The Patient Protection and Affordable Care Act, Public Law 111–148 (124 Stat. 119 (2010)), added sections 501(r) and 4959 to the Internal Revenue Code (Code). A hospital organization seeking to obtain or maintain tax-exempt status as a charitable organization described in section 501(c)(3) must comply with the requirements of section 501(r), including the requirement to conduct a CHNA under section 501(r)(3).
Section 501(r)(2)(A)(i) defines a hospital organization to which section 501(r) applies as including any organization that operates a facility that is required by a state to be licensed, registered, or similarly recognized as a hospital. Section 501(r)(2)(B)(i) requires a hospital organization that operates more than one hospital facility to meet the requirements of section 501(r) separately with respect to each hospital facility.
Section 501(r)(3) requires hospital organizations to conduct a CHNA at least once every three years and adopt an implementation strategy to meet the community health needs identified through the CHNA. The requirements of section 501(r)(3) are effective for taxable years beginning after March 23, 2012.
Section 4959 imposes a tax equal to $50,000 if a hospital organization to which section 501(r) applies fails to meet the requirements of section 501(r)(3) for any taxable year. A hospital organization fails to meet the requirements of section 501(r)(3) for any taxable year if the hospital organization fails to conduct a CHNA and adopt an implementation strategy during the three-year period ending on the last day of any taxable year of the hospital organization. For example, a hospital organization reporting on a calendar year basis that operates only one hospital facility and that fails to conduct a CHNA by the last day of 2013, and that also did not conduct a CHNA in 2011 or 2012, will be subject to the tax under section 4959 with respect to that facility for its 2013 taxable year. The same hospital organization that fails to conduct a CHNA in 2014 also will be subject to a tax under section 4959 with respect to that facility for its 2014 taxable year (for failure to meet the CHNA requirements during the three-year period ending on the last day of 2014).
Section 6011 generally requires any person liable for tax imposed by the Code to make a return or statement according to the forms and regulations prescribed by the Secretary of the Treasury. Section 6071 generally provides that return filing dates are prescribed by regulation. Section 6151 generally provides that a tax must be paid when the return reporting the tax
On April 5, 2013, the Treasury Department and the IRS published a notice of proposed rulemaking in the
Under § 53.6011–1(c) of these temporary regulations, a charitable hospital organization that is liable for the section 4959 excise tax must file a return on Form 4720. Under § 53.6071–1(h) of these temporary regulations, a hospital organization liable for the section 4959 excise tax must file a Form 4720 by the 15th day of the fifth month after the end of the organization's taxable year during which the liability under section 4959 was incurred. Thus, for example, a hospital organization reporting on a calendar year basis that failed to meet the requirements of section 501(r)(3) by December 31, 2013, would have to file a Form 4720 and pay the section 4959 tax due by May 15, 2014.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For the applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the Special Analyses section of the preamble to the cross-reference notice of proposed rulemaking published in the Proposed Rules section in this issue of the
The principal author of these regulations is Amy F. Giuliano, Office of Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and Treasury Department participated in their development.
Excise taxes, Foundations, Investments, Lobbying, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 53 is amended as follows:
26 U.S.C. 7805 * * *
The addition reads as follows:
(c) [Reserved]. For further guidance, see § 53.6011–1T(c).
(g) [Reserved]. For further guidance, see § 53.6011–1T(g).
(a) and (b) [Reserved]. For further guidance, see § 53.6011–1(a) and (b).
(c) A hospital organization described in section 501(r)(2)(A) that is liable for tax imposed by section 4959 must file an annual return on Form 4720 and include the information required by the form and instructions. The annual return filed by a hospital organization must include the required information for each of the organization's hospital facilities that failed to meet the requirements of section 501(r)(3) for the taxable year.
(d) through (f) [Reserved]. For further guidance, see § 53.6011–1(d) through (f).
(g) Paragraph (c) of this section applies on and after August 15, 2013. The applicability of paragraph (c) of this section expires on or before August 12, 2016.
The revision and addition read as follows:
(h) [Reserved]. For further guidance, see § 53.6071–1T(h).
(i)
(2) [Reserved]. For further guidance, see § 53.6071–1T(i)(2).
(a) through (g) [Reserved]. For further guidance, see § 53.6071–1(a) through (g).
(h)
(i)
(2) Paragraph (h) of this section applies on and after August 15, 2013.
(3) The applicability of paragraph (h) of this section expires on or before August 12, 2016.
Pension Benefit Guaranty Corporation.
Final rule.
This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans to prescribe interest assumptions under the regulation for valuation dates in September 2013. The interest assumptions are used for paying benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.
Effective September 1, 2013.
Catherine B. Klion (
PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR Part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site (
PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.
The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for September 2013.
The September 2013 interest assumptions under the benefit payments regulation will be 1.50 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for August 2013, these interest assumptions represent a decrease of 0.25 percent in the immediate annuity rate and are otherwise unchanged.
PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during September 2013, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
In consideration of the foregoing, 29 CFR part 4022 is amended as follows:
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel on all waters of the Chicago Sanitary and Ship Canal from Mile Marker 296.1 to Mile Marker 296.7 at specified times on each day from August 12 through August 16, 2013. This action is necessary to protect the waterways, waterway users, and vessels from the hazards associated with the U.S. Army Corps of Engineers dispersal barriers performance testing.
During any of the enforcement periods listed below, entry into, transiting, mooring, laying-up or anchoring within the enforced area of this safety zone by any person or vessel is prohibited unless authorized by the Captain of the Port, Lake Michigan, or his designated representative.
The regulations in 33 CFR 165.930 will be enforced from 8 a.m. to 1 p.m. on each day from August 12 through August 16, 2013.
If you have questions on this notice, call or email MST1 Joseph McCollum, Prevention Department, Coast Guard Sector Lake Michigan, telephone 414–747–7148, email address
The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930. Specifically, the Coast Guard will enforce this safety zone between Mile Marker 296.1 to Mile Marker 296.7 on all waters of the Chicago Sanitary and Ship Canal. Enforcement will occur from 8 a.m. until 1 p.m. on each day of August 12 through August 16, 2013.
This enforcement action is necessary because the Captain of the Port, Lake Michigan has determined that the U.S. Army Corps of Engineers dispersal barriers performance testing poses risks to life and property. Because of these risks, it is necessary to control vessel movement during the operation to prevent injury and property loss.
In accordance with the general regulations in § 165.23 of this part, entry into, transiting, mooring, laying up or anchoring within the enforced area of this safety zone by any person or vessel is prohibited unless authorized by the Captain of the Port, Lake Michigan, or his or her designated representative.
Vessels that wish to transit through the safety zone may request permission from the Captain of the Port, Lake Michigan. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. The Captain of the Port may be contacted via U.S. Coast Guard Sector Lake Michigan on VHF channel 16.
This notice is issued under authority of 33 CFR 165.930 and 5 U.S.C. 552(a). In addition to this notice in the
Environmental Protection Agency (EPA).
Final rule; correction.
EPA is correcting the preamble to the final rule that appeared in the
This rule is effective on August 29, 2013.
Gregory Nudd, U.S. EPA, Region 9, Planning Office, Air Division, Air-2, 75 Hawthorne Street, San Francisco, CA 94105. Gregory Nudd can be reached at telephone number (415) 947–4107 and via electronic mail at
In
1. On page 46174, in the third column, in section VI. Statutory and Executive Order Reviews, paragraph K. Congressional Review Act, the last sentence is corrected to read as follows: “This rule will be effective on August 29, 2013.”
2. On page 46174, in the third column, in section VI. Statutory and Executive Order Reviews, paragraph L. Petitions for Judicial Review, the first sentence is corrected to read as follows: “Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 28, 2013.”
3. On page 46174, in the third column, the title of Jane Diamond is
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Sulfur dioxide, Particulate matter, Reporting and recordkeeping requirements, Visibility, Volatile organic compounds.
42 U.S.C. 7401 et seq.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan revision submitted by the State of Wyoming. On December 21, 2012, the Governor of Wyoming's designee submitted to EPA revisions to Wyoming's Air Quality Standards and Regulations Chapter 8, Nonattainment Area Regulations, involving Section 3 of Chapter 8 that addresses general conformity requirements and a new Section 5 to Chapter 8 that involves incorporation by reference. The SIP submission addresses revisions and additions to Wyoming's general conformity requirements in order to align them with the current federal general conformity regulation requirements and incorporates by reference those sections of the Code of Federal Regulations that are referred to in the State's general conformity requirements. EPA is approving the submission in accordance with the requirements of section 110 of the Clean Air Act.
EPA has established a docket for this action under Docket ID No. EPA–R08–OAR–2013–0059. All documents in the docket are listed on the
Tim Russ, Air Program, EPA, Region 8, Mailcode 8P–AR, 1595 Wynkoop, Denver, Colorado 80202–1129, (303) 312–6479,
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials
(ii) The words
(iii) The initials
(iv) The initials
(v) The words
On May 7, 2013, EPA published a proposed rule in the
As background, we note the intent of the general conformity requirement is to prevent the air quality impacts of federal actions from causing or contributing to a violation of a National Ambient Air Quality Standard (NAAQS) or interfering with the purpose of a SIP. Under the Clean Air Act (CAA) as amended in 1990, Congress recognized that actions taken by federal agencies could affect state and local agencies' abilities to attain and maintain the NAAQS. Section 176(c) of the CAA, as codified in Title 42 of the United States Code (42 U.S.C. 7506), requires federal agencies to assure that their actions conform to the applicable SIP for attaining and maintaining compliance with the NAAQS. General conformity is defined to apply to NAAQS established pursuant to section 109 of the CAA, including the NAAQS for carbon monoxide (CO), nitrogen dioxide (NO
On July 17, 2006, EPA revised the federal general conformity regulations via a final rule (71 FR 40420). EPA had promulgated a new NAAQS on July 18, 1997 (62 FR 38652) that established a separate NAAQS for fine particulate matter smaller than 2.5 micrometers in diameter (PM
On April 5, 2010, EPA revised the federal general conformity regulations to clarify the conformity process, authorize innovative and flexible compliance approaches, remove outdated or unnecessary requirements, reduce the paperwork burden, provide transition tools for implementing new standards, address issues raised by federal agencies affected by the rules, and provide a better explanation of conformity regulations and policies (75 FR 17254, April 5, 2010). EPA's April 2010 revisions simplified state SIP requirements for general conformity, eliminating duplicative general conformity provisions codified at 40 CFR Part 93 Subpart B and 40 CFR Part 51 Subpart W. Finally, the April 2010 revision updated federal general conformity regulations to reflect changes to governing laws passed by Congress since EPA's 1993 rule. The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) passed by Congress in 1995 contains a provision eliminating the CAA requirement for states to adopt general conformity SIPs. As a result of SAFETEA–LU, EPA's April 2010 rule eliminated the federal regulatory requirement for states to adopt and submit general conformity SIPs, instead making submission of a general conformity SIP a state option.
With respect to a chronology of Wyoming's general conformity requirements, EPA originally approved Wyoming's “Conformity of general federal actions to state implementation plans” into Section 32 of Wyoming's Air Quality Standards Regulations (WAQSR) with our direct final rule of November 19, 1999 (64 FR 63206). That version of Wyoming's “Conformity of general federal actions to state implementation plans” requirements was developed by the State to address the federal general conformity requirements that were promulgated on November 30, 1993 (58 FR 63214). On July 28, 2004, we approved Wyoming's restructuring and renumbering SIP submittal which then located Wyoming's “Conformity of General Federal Actions to State Implementation Plans” into WAQSR Chapter 8, Section 3 (69 FR 44965).
Section 110(a)(2) of the CAA requires that a state provide reasonable notice and public hearing before adopting a SIP revision and submitting it to us.
On October 5, 2012, the Environmental Quality Council of the Wyoming Department of Environmental Quality conducted a public hearing to consider the adoption of revisions and additions to the WAQSR. The revisions affecting the SIP involved Chapter 8, “Nonattainment Area Regulations”, Section 3, “Conformity of general federal actions to state implementation plans”, and Section 5, “Incorporation by reference”. After reviewing and responding to comments received before and during the public hearing, the Wyoming Environmental Quality Council approved the proposed revisions on October 5, 2012. The SIP revisions became State effective on December 19, 2012 and the Governor's designee submitted the SIP revisions to EPA on December 21, 2012.
We have evaluated Wyoming's SIP revision submittal and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. By a letter dated March 20, 2013, we advised the Governor's designee that the SIP revision submittal was deemed to have met the minimum “completeness” criteria found in 40 CFR part 51, Appendix V.
On December 21, 2012, the State of Wyoming submitted revisions to its SIP. The SIP revision consisted of changes and additions to Wyoming's WAQSR Chapter 8, Section 3, “Conformity of general Federal actions to state implementation plans”, and a new Section 5, “Incorporation by reference”. The purpose of Wyoming's SIP revision was to update its general conformity requirements to address and align the State's requirements with the federal general conformity requirements promulgated on July 17, 2006 (71 FR 40420) and on April 5, 2010 (75 FR 17254), as described above. The revisions to Wyoming's general conformity regulation, adopted on October 5, 2012 and State effective on December 19, 2012, were described in our May 7, 2013, proposed rule and for the reader's convenience, are again provided below. The State's revisions make numerous changes to the prior, EPA-approved version of Wyoming's general conformity requirements (State effective October 29, 1999 and EPA effective on January 18, 2000). In addition, Wyoming added a new section 5 which incorporates by reference certain provisions of the federal regulations.
1. Section 3(a), “Prohibition”, was modified to remove obsolete provisions in (a)(iii) and now makes this section reserved.
2. Section 3(a), “Prohibition”, was modified to define NEPA in (a)(iv) and to add a new section (v) that indicates if an action in one nonattainment or maintenance area would affect another nonattainment or maintenance area, both areas must be evaluated.
3. Section 3(b), “Definitions”, was modified to revise, add or delete the definitions for: “Applicability analysis”, “Applicable implementation plan or applicable SIP”, “Areawide air quality modeling analysis”, “Cause or contribute to a new violation”, “Confidential business information (CBI)”, “Conformity determination”, “Conformity evaluation”, “Continuing program responsibility”, “Continuous program to implement”, “Direct emissions”, “Emission inventory”, “Emissions offsets”, “Emissions that a Federal agency has a continuing program responsibility for”, “EPA”, “Federal agency”, “Indirect emissions”, “Local air quality modeling analysis”, “Maintenance area”, “Maintenance plan”, “Metropolitan Planning Organization (MPO)”, “Milestone”, “Mitigation measure”, “National ambient air quality standards (NAAQS)”, Nonattainment area (NAA)”, “Precursors of a criteria pollutant”, “Reasonably foreseeable emissions”, “Regionally significant action”, “Restricted information”, and “Take or start the Federal action”.
4. Section 3(c), “Applicability”, was revised as follows:
a. Section 3(c)(ii) was modified to provide clarification of emissions to include “criteria” and “precursors”.
b. Section 3(c)(ii)(A) was modified to update the language to state “Other ozone NAAs inside an ozone transport region” and emissions thresholds were added for PM
c. Section 3(c)(ii)(B) was modified to add emissions thresholds for PM
d. Section 3(c)(iii) was modified by adding language to indicate the requirements of this section do not apply to certain federal actions.
e. Section 3(c)(iii)(B)(XXII) was added to address air traffic control activities.
f. Section 3(c)(iv)(A) was modified to include the portion of an action that includes, in addition to major, minor new or modified stationary sources that require a permit under the New Source Review (NSR) program (Section 110(a)(2)(C) and section 173 of the CAA)), and therefore, a conformity determination is not required for sources so permitted.
g. Section 3(c)(iv)(B) was modified to remove specific examples of natural
h. Section 3(c)(v)(B)(I) adds language that a federal agency must provide a draft copy of the written determinations required to affected EPA Regional Office(s), the affected state(s) and/or air pollution control agencies, and any federally recognized Indian tribal government in the nonattainment or maintenance area. Those organizations must be allowed 15 days from the beginning of the extension period to comment on the draft determination.
i. Section 3(c)(v)(B)(II) adds language that within 30 days after making the determination, federal agencies must publish a notice of the determination by placing a prominent advertisement in a daily newspaper of general circulation in the area affected by the action.
j. Section 3(c)(v)(C) adds language that if additional actions are necessary in response to an emergency or disaster under this subsection beyond the specified time period in paragraph (v)(B) of this subsection, a federal agency can make a new written determination for as many 6-month periods as needed, but in no case does this exemption extend beyond three 6-month periods. An exception is where an agency provides information to EPA and the state stating that the conditions that gave rise to the emergency exemption continue to exist and how such conditions effectively prevent the agency from conducting a conformity evaluation.
k. Section 3(c)(vi) adds language which states that actions specified by individual federal agencies as “presumed to conform” may not be used in combination with one another when the total direct and indirect emissions from the combination of actions would equal or exceed any of the rates specified in Section 3 paragraphs (c)(ii)(A) or (c)(ii)(B).
l. Section 3(c)(vii) adds language that the federal agency must meet the criteria for establishing activities that are presumed to conform by fulfilling the requirements set forth in Section 3 paragraphs (c)(vii)(A), or (c)(vii)(B), or (c)(vii)(C).
m. Section 3(c)(vii)(C) adds language that the federal agency must clearly demonstrate that the emissions from the type or category of actions and the amount of emissions from the action are included in the applicable SIP and the state, local, or tribal air quality agencies responsible for the SIP(s) provide written concurrence that the emissions from the actions along with all other expected emissions in the area will not exceed the emission budget in the SIP.
n. Section 3(c)(viii) states that in addition to meeting the criteria for establishing exemptions as set forth in paragraphs (vii)(A) or (vii)(B) of the subsection, the new paragraph (vii)(C) is also included.
o. Section 3(c)(viii)(A) adds language that the referenced
p. Section 3(c)(viii)(B) adds language that if the “presumed to conform” action has regional or national application (e.g., the action will cause emission increases in excess of the
q. Section 3(c)(ix) removed previous language and added language that emissions from actions are “presumed to conform” from: (1) Installations with facility-wide emission budgets meeting the necessary requirements and that the State has included the emission budget in the EPA-approved SIP and the emissions from the action along with all other emissions from the installation will not exceed the facility-wide emission budget; (2) prescribed fires conducted in accordance with a smoke management program which meets the requirements of EPA's Interim Air Quality Policy on Wildland and Prescribed Fires or an equivalent replacement EPA policy; or (3) emissions for actions that the State identifies in the EPA-approved SIP as “presumed to conform”.
r. Section 3(c)(x) removed previous language and added language which states that even though an action would otherwise be “presumed to conform” under Section 3 paragraphs (vi) or (ix) of this subsection, an action shall not be “presumed to conform” and the requirements of 40 CFR 93.151, subsection (a), subsections (d) through (j) and subsections (l) through (n) shall apply to the action if EPA or a third party shows that the action would: (1) Cause or contribute to any new violation of any standard in any area; (2) interfere with provisions in the applicable SIP for maintenance of any standard; (3) increase the frequency or severity of any existing violation of any standard in any area; or (4) delay timely attainment of any standard or any required interim emissions reductions or other milestones in any area including, where applicable, emission levels specified in the applicable SIP for purposes of a demonstration of reasonable further progress, a demonstration of attainment, or a maintenance plan.
s. Section 3(c)(xi)(d) was modified to add language that the provisions of Section 3 shall apply except in the case of newly designated nonattainment areas where the requirements are not applicable until 1 year after the effective date of the final nonattainment designation for each NAAQS pollutant in accordance with section 176(c)(6) of the CAA.
t. Section 3(c)(xi)(e), “Reporting requirements”, was modified to add language that any federal agency must notify the appropriate EPA Regional Office(s), state and local air quality agencies, any federally-recognized Indian tribal government in the nonattainment or maintenance area. In addition, the added language stated that the draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure of restricted information and confidential business information shall be controlled by the applicable laws, regulations, security manuals, or executive orders concerning the use, access, and release of such materials. Subject to applicable procedures to protect restricted information from public disclosure, any information or materials excluded from the draft or final conformity determination or supporting materials may be made available in a restricted information annex to the determination for review by federal and state representatives who have received appropriate clearances to review the information.
u. Section 3(c)(xi)(f)(ii), (iii), and (iv) under “public participation” was modified to add language that if the action has multi-regional or national impacts (e.g., the action will cause emission increases in excess of the
v. Section 3(c)(xi)(f)(v) under “public participation” was modified to add language that the draft and final conformity determination shall exclude any restricted information or confidential business information. This section also notes that the disclosure of restricted information and confidential business information shall be controlled by the applicable laws, regulations, or executive orders concerning the release of such materials.
w. Section 3(c)(xi)(g) was renamed “Reevaluation of conformity” and included new language in sections (c)(xi)(g)(i) and (iv) addressing when a federal action has commenced and that once a conformity determination is completed by a federal agency, that determination is not required to be reevaluated if the agency has maintained a continuous program to implement the action; the determination has not lapsed; or any modification to the action does not result in an increase in emissions above the levels specified in Section 3. The additional language continues that if a conformity determination is not required for the action at the time the NEPA analysis is completed, the date of the finding of no significant impact (FONSI) for an Environmental Assessment, a record of decision (ROD) for an Environmental Impact Statement, or a categorical exclusion determination can be used as a substitute date for the conformity determination date.
x. Section 3(c)(xi)(g)(iv) also notes that if the federal agency originally determined through the applicability analysis that a conformity determination was not necessary because the emissions for the action were below the limits in subsection (c)(ii) of this section and changes to the action would result in the total emissions from the action being above the limits in subsection (c)(ii) of this section, then the federal agency must make a conformity determination.
y. Section 3(c)(xi)(h), “Criteria Determining Conformity of General Federal Actions”, had several revisions addressing: (1) Addition of “precursor” for emissions; (2) offsets coming from a nearby area of equal or higher classification provided the emissions from that area contribute to the violations, or have contributed to violations in the past, in the area with the federal action; (3) where a federal agency made a conformity determination based on a state's commitment and the state has submitted a SIP to EPA covering the time period during which the emissions will occur or is scheduled to submit such a SIP within 18 months of the conformity determination; (4) where a federal agency made a conformity determination based on a state commitment and the state has not submitted a SIP covering the time period when the emissions will occur or is not scheduled to submit such a SIP within 18 months of the conformity determination, the state must, within 18 months, submit to EPA a revision to the existing SIP committing to include the emissions in the future SIP revision; (5) offset emissions may come from within the same nonattainment or maintenance area or from a nearby area of equal or higher classification provided the emissions from that area contribute to the violations, or have contributed to violations in the past, in the area with the federal action; (6) baseline emissions from the most current calendar year with a complete emission inventory available before an area is designated unless EPA sets another year or the emission budget in the applicable SIP; (7) the motor vehicle emissions model previously specified by EPA as the most current version may be used unless EPA announces a longer grace period in the
z. Section 3(c)(xi)(h)(i)(D), “For CO or directly emitted PM
aa. Section 3(c)(xi)(k), “Conformity Evaluation for Federal Installations With Facility-Wide Emission Budgets”, revised and added new language that included requirements and provisions addressing: (1) Time periods; (2) the pollutants or precursors of the pollutants for which the area is designated nonattainment or maintenance; (3) specific quantities allowed to be emitted on an annual or seasonal basis; (4) that the emissions from the facility along with all other emissions in the area will not exceed the emission budget for the area; (5) specific measures to ensure compliance with the budget; (6) the submittal to EPA as a SIP revision and the SIP revision must be approved by EPA; (7) that the facility-wide budget developed and adopted in accordance with paragraph (i) of this subsection; (8) that total direct and indirect emissions from federal actions in conjunction with all other emissions subject to general conformity from the facility that do not exceed the facility budget are “presumed to conform” to the SIP and do not require a conformity analysis; (9) that if the total direct and indirect emissions from the federal actions in conjunction with the other emissions subject to general conformity from the facility exceed the budget adopted the action must be evaluated for conformity; (10) that if the SIP for the area includes a category for construction emissions, the negotiated budget can exempt construction emissions from further conformity analysis; and (11) that for emissions beyond the time period covered by the SIP the federal agency can demonstrate conformity with the last emission budget in the SIP, or request the state to adopt an emissions budget for the action for inclusion in the SIP.
bb. In addition to those items noted in section III(A)(4)(aa) of this action, Section 3(c)(xi)(k), “Conformity Evaluation for Federal Installations With Facility-Wide Emission Budgets”, also revised and added new language that included requirements and provisions addressing: (1) Timing of offsets and mitigation measures; (2) inter-precursor mitigation measures and offsets; and (3) early emission reduction credit programs at federal facilities and installations subject to federal oversight.
Wyoming added a new Section 5 to WAQSR Chapter 8 entitled “Incorporation by reference”. This new section states that all CFR citations in Chapter 8, including their Appendices, revised and published as of July 1, 2011, not including any later amendments, are incorporated by reference. The section continues with noting where copies of the applicable CFRs are available for
EPA has reviewed Wyoming's revisions to WAQSR Chapter 8, Section 3, “Conformity of general federal actions to state implementation plans”, and the new Section 5, “Incorporation by reference”, and has concluded that our approval is warranted. Based on our review, we determined that the revisions to Section 3 incorporate and address the additional federal general conformity requirements that we promulgated in July 2006 and April 2010. In addition, the new Section 5 that incorporates relevant sections of the CFR is also acceptable. EPA is approving Wyoming's December 21, 2012 SIP revision submittal in order to update the State's general conformity requirements for federal agencies, with applicable federal actions, and to align the State's general conformity requirements with the federal general conformity rule's requirements.
On May 7, 2013, EPA published a proposed rule in the
Section 110(1) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of a NAAQS or any other applicable requirement of the CAA. As described in section III.A.4.f. of this action, the changes to the Wyoming SIP would not require a conformity determination for minor new or modified stationary sources that require a permit under the NSR permitting program (section 110(a)(2)(C) and section 173 of the CAA)). The State of Wyoming indicates that SIP permitting regulations prevent the State from issuing a permit if the facility would prevent the attainment or maintenance of any ambient air quality standard (“the proposed facility will not prevent the attainment or maintenance of any ambient air quality standard”, WAQSR Chapter 6, Section 2(c)(ii)). With this final rule, EPA is finding that these Wyoming SIP general conformity minor stationary source permit provisions are adequate to ensure that this SIP revision will not interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of a NAAQS or any other applicable requirement of the CAA.
EPA is approving the December 21, 2012 submitted SIP revisions to Wyoming's WAQSR Chapter 8, Section 3, “Conformity of general federal actions to state implementation plans”, and Section 5, “Incorporation by reference”. These revisions incorporate and address the federal general conformity rule requirements that were promulgated on July 17, 2006 and April 5, 2010. EPA is approving this Wyoming SIP revision submittal in order to update the State's general conformity requirements for federal agencies, with applicable federal actions, and to align the State's general conformity requirements with the federal general conformity rule's requirements.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 15, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, and Volatile organic compounds.
40 CFR part 52 is amended to read as follows:
42 U.S.C. 7401
(c) * * *
(1) * * *
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to amend the Standards and Practices for All Appropriate Inquiries to reference a standard practice recently made available by ASTM International, a widely recognized standards development organization. Specifically, this direct final rule amends the All Appropriate Inquiries Rule to reference ASTM International's E1527–13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” and allow for its use to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act.
This rule is effective on November 13, 2013, without further notice, unless EPA receives adverse comment by September 16, 2013. If EPA receives such comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA–HQ–SFUND–2013–0513 by one of the following methods:
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For general information, contact the CERCLA Call Center at 800–424–9346 or TDD 800–553–7672 (hearing impaired). In the Washington, DC metropolitan area, call 703–412–9810 or TDD 703–412–3323. For more detailed information on specific aspects of this rule, contact Rachel Lentz, Office of Brownfields and Land Revitalization (5105T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460–0002, 202–566–2745, or
Today's action offers certain parties the option of using an available industry standard to conduct all appropriate inquiries. Parties purchasing potentially contaminated properties may use the ASTM E1527–13 standard practice to comply with the all appropriate inquiries requirements of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Today's rule does not require any entity to use this standard. Any party who wants to claim protection from liability under one of CERCLA's landowner liability protections may follow the regulatory requirements of the All Appropriate Inquiries Final Rule at 40 CFR part 312, use the ASTM E1527–05 Standard Practice for Phase I Environmental Site Assessments to comply with the all appropriate inquiries provision of CERCLA, use the ASTM E2247–08 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property,” or use the recognized in today's direct final rule, the ASTM E1527–13 standard.
Entities potentially affected by this action, or who may choose to use the newly referenced ASTM standard to perform all appropriate inquiries, include public and private parties who, as bona fide prospective purchasers, contiguous property owners, or innocent landowners, are purchasing potentially contaminated properties and wish to establish a limitation on CERCLA liability in conjunction with the property purchase. In addition, any entity conducting a site characterization or assessment on a property with a brownfields grant awarded under CERCLA Section104(k)(2)(B)(ii) may be affected by today's action. This includes state, local and Tribal governments that receive brownfields site assessment grants. A summary of the potentially affected industry sectors (by North American Industry Classification System (NAICS) codes) is displayed in the table below.
The list of potentially affected entities in the above table may not be exhaustive. Our aim is to provide a guide for readers regarding those entities that EPA is aware potentially could be affected by this action. However, this action may affect other entities not listed in the table. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section entitled
This direct final rule amends the All Appropriate Inquiries Final Rule setting federal standards for the conduct of “all appropriate inquiries” at 40 CFR part 312. The All Appropriate Inquiries Final Rule sets forth standards and practices necessary for fulfilling the requirements of CERCLA section 101(35)(B) as required to obtain CERCLA liability protection and for conducting site characterizations and assessments with the use of brownfields grants per CERCLA section 104(k)(2)(B)(ii).
On January 11, 2002, President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act (“the Brownfields Amendments”). In general, the Brownfields Amendments to CERCLA provide funds to assess and clean up brownfields sites; clarifies existing and establishes new CERCLA liability provisions related to certain types of owners contaminated properties; and provides funding to establish or enhance State and Tribal cleanup programs. The Brownfields Amendments revised some of the provisions of CERCLA Section 101(35) and limit liability under Section 107 for bona fide prospective purchasers and contiguous property owners, in addition to clarifying the requirements necessary to establish the innocent landowner liability protection under CERCLA. The Brownfields Amendments clarified the requirement that parties purchasing potentially contaminated property undertake “all appropriate inquiry” into prior ownership and use of property prior to purchasing the property in order to qualify for protection from CERCLA liability.
The Brownfields Amendments required EPA to develop regulations establishing standards and practices for how to conduct all appropriate inquiries. EPA promulgated regulations that set standards and practices for all appropriate inquiries on November 1, 2005 (70 FR 66070). In the final regulation, EPA referenced, and recognized as compliant with the final rule, the ASTM E1527–05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” In December 2008, EPA amended the final rule to recognize another ASTM standard as compliant with the final rule, ASTM E2247–08 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural
Since EPA promulgated the All Appropriate Inquiries Final Rule setting standards and practices for the conduct of all appropriate inquiries, ASTM International published a revised standard for conducting Phase I environmental site assessments. This standard, ASTM E1527–13, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” was reviewed by EPA, in response to a request for its review by ASTM International, and determined by EPA to be compliant with the requirements of the All Appropriate Inquiries Final Rule.
Today's direct final rule amends the All Appropriate Inquiries Final Rule to allow the use of the recently revised ASTM standard, E1527–13, for conducting all appropriate inquiries, as required under CERCLA for establishing the bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections.
With today's action, parties seeking liability relief under CERCLA's landowner liability protections, as well as recipients of brownfields grants for conducting site assessments, will be considered to be in compliance with the requirements for all appropriate inquiries, if such parties comply with the procedures provided in the ASTM E1527–13, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” EPA determined that it is reasonable to promulgate this clarification as a direct final rule that is effective immediately, rather than delay promulgation of the clarification until after receipt and consideration of public comments. EPA made this determination based upon the Agency's finding that the ASTM E1527–13 standard is compliant with the All Appropriate Inquiries Final Rule and the Agency sees no reason to delay allowing for its use in conducting all appropriate inquiries.
The Agency notes that today's action does not require any party to use the ASTM E1527–13 standard. Any party conducting all appropriate inquiries to comply with the CERCLA's bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections may continue to follow the provisions of the All Appropriate Inquiries Final Rule at 40 CFR part 312, use the ASTM E1527–05 Standard or use the ASTM E2247–08 standard.
In taking today's action, the Agency is allowing for the use of an additional recognized standard or customary business practice, in complying with a federal regulation. Today's action does not require any person to use the newly revised standard. Today's action merely allows for the use of ASTM International's E1527–13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” for those parties purchasing potentially contaminated properties who want to use the ASTM E1527–13 standard in lieu of the following specific requirements of the all appropriate inquiries final rule.
The Agency notes that there are no legally significant differences between the regulatory requirements and the two ASTM E1527 standards. To facilitate an understanding of the slight differences between the All Appropriate Inquiries Final Rule, the ASTM E1527–05 Phase I Environmental Site Assessment Standard and the revised ASTM E1527–13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” as well as the applicability of the E1527–13 standard to certain types of properties, EPA developed, and placed in the docket for today's action, the document “Summary of Updates and Revisions to ASTM E1527 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process: How E1527–13 Differs from E1527–05.” The document provides a comparison of the two ASTM E1527 standards.
By taking today's action, EPA is fulfilling the intent and requirements of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113.
Today's action includes no changes to the All Appropriate Inquiries Rule other than to add an additional reference to the new ASTM E1527–13 standard. EPA is not seeking comments on the standards and practices included in the final rule published at 40 CFR part 312. Also, EPA is not seeking comments on the ASTM E1527–13 standard. EPA's only action with today's direct final rule is recognition of the ASTM E1527–13 standard as compliant with the final rule and, therefore it is only this action on which the Agency is seeking comment.
EPA is publishing this direct final rule without prior proposal because the Agency wants to provide additional flexibility for grant recipients or other entities that may benefit from the use of the ASTM E1527–13 standard. In addition, the Agency views this as a noncontroversial action and anticipates no adverse comment. We believe that today's action is reasonable and can be promulgated without consideration of public comment because it allows for the use of a tailored standard developed by a recognized standards developing organization and that was reviewed by EPA and determined to be equivalent to the Agency's final rule. Today's action does not disallow the use of the previously recognized standards (ASTM E1527–05 or ASTM E2247–08) and it does not alter the requirements of the previously promulgated final rule. In addition, today's action will potentially increase flexibility for some parties who may make use of the new standard, without placing any additional burden on those parties who prefer to use either the ASTM E1527–05 standard, the ASTM E2247–08 standard, or follow the requirements of the All Appropriate Inquiries Final Rule when conducting all appropriate inquiries.
Although we view today's action as noncontroversial, in the “Proposed Rules” section of today's
Under Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 21, 2011), this action is not a “significant regulatory action” and is therefore not subject to OMB review. This action merely amends the All Appropriate Inquiries Rule to reference ASTM International's E1527–13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” and allow for
This action does involve technical standards; thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) does apply. The NTTAA was signed into law on March 7, 1996 and, among other things, directs the National Institute of Standards and Technology (NIST) to bring together federal agencies as well as state and local governments to achieve greater reliance on voluntary standards and decreased dependence on in-house standards. It states that use of such standards, whenever practicable and appropriate, is intended to achieve the following goals: (a) Eliminate the cost to the government of developing its own standards and decrease the cost of goods procured and the burden of complying with agency regulation; (b) provide incentives and opportunities to establish standards that serve national needs; (c) encourage long-term growth for U.S. enterprises and promote efficiency and economic competition through harmonization of standards; and (d) further the policy of reliance upon the private sector to supply Government needs for goods and services. The Act requires that federal agencies adopt private sector standards, particularly those developed by standards developing organizations (SDOs), whenever possible in lieu of creating proprietary, non-consensus standards.
Today's action is compliant with the spirit and requirements of the NTTAA. Today's action allows for the use of the ASTM International standard known as Standard E1527–13 and entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.”
The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before certain actions may take effect, the agency promulgating the action must submit a report, which includes a copy of the action, to each House of the Congress and to the Comptroller General of the United States. EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Administrative practice and procedure, Hazardous substances.
For the reasons set out in the preamble, title 40 CFR chapter I is amended as follows:
Section 101(35)(B) of CERCLA, as amended, 42 U.S.C. 9601(3)(B).
(c) The procedures of ASTM International Standard E1527–13 entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” This standard is available from ASTM International at
Federal Communications Commission.
Final rule.
In this document, the Commission amends telecommunications relay services (TRS) mandatory minimum standards applicable to Speech-to-Speech (STS) relay service. This action is necessary to ensure that persons with speech disabilities have access to relay services that address their unique needs, in furtherance of the objectives of section 225 of the Communications Act of 1934, as amended (the Act), to provide relay services in a manner that is functionally equivalent to conventional telephone voice services.
Effective October 15, 2013.
Gregory Hlibok, Consumer and Governmental Affairs Bureau, Disability Rights Office, at (202) 559–5158 or email
This is a summary of the Commission's
1. Title IV of the Americans with Disabilities Act (ADA) requires the Commission to ensure that TRS is available to all individuals with hearing and speech disabilities in the United States and to increase the utility of the telephone system by enabling these persons to access the telephone system to make calls to, and receive calls from, other individuals. Under Title IV, the Commission must ensure that, “to the extent possible and in the most efficient manner,” relay services are made available that provide access to the telephone system that is “functionally equivalent” to voice telephone services.
2. When Congress first enacted section 225 of the Act, relay calls were placed using a text telephone device (TTY) connected to the public switched telephone network (PSTN). Since then, the Commission has determined that several new forms of relay fall within the definition of TRS and decided to include PSTN-based STS, captioned telephone service (CTS), video relay service (VRS), Internet Protocol Relay (IP Relay), and IP captioned telephone service (IP CTS) as compensable forms of TRS.
3. In March 2000, the Commission mandated that carriers obligated to provide TRS also provide STS so that persons with speech disabilities can access the telephone system. STS utilizes specially trained communications assistants (CAs) who understand the speech patterns of persons with speech disabilities and can repeat the words spoken by such individuals to the other parties to a relayed call. A person with a speech disability can initiate an STS call by dialing 711 (the nationwide access code for state relay providers) and giving the CA the number of the person he or she wishes to call. The CA then makes the outbound call, and re-voices what the STS user says to the called party. Persons desiring to call a person with a speech disability via STS can also dial 711 to reach a CA who can handle the call. At present, states are responsible for compensating providers for the costs of providing intrastate STS, while the Interstate Telecommunications Relay Services Fund (Fund) compensates providers for the costs of providing interstate STS.
4. On June 26, 2006, Bob Segalman and Rebecca Ladew filed a petition requesting that the Commission amend its rules to require an STS CA to stay with the call for a minimum of 20 minutes, rather than 15 minutes because “STS calls often last much longer than text-to-voice calls[,] changing CAs on these calls prior to 20 minutes can seriously disrupt their flow and impair functionally equivalent telephone service.” Bob Segalman and Rebecca Ladew,
5. On December 21, 2007, Hawk Relay filed a Request for Clarification that IP STS is a form of TRS eligible for compensation from the Fund. Hawk Relay,
6. On June 24, 2008, the Commission released the
7. On October 20, 2011, Speech Communications Assistance by Telephone, together with eight other national disability organizations, filed a petition requesting the Commission to open a proceeding on modernizing STS to allow people with speech disabilities to benefit from modern IP technologies through the use of video-assisted STS, or VA–STS. Speech Communications Assistance by Telephone (SCT),
8. As the Commission has recognized in the past, given the nature of the interaction between an STS user and an STS CA, requiring a longer minimum
9. The Commission concludes that the 20 minute time period should begin when the CA reaches the called party, and amends its rules accordingly. The Commission emphasizes that, for calls initiated by persons with speech disabilities, the CA should initiate an outbound call to the voice telephone user only when he or she is effectively communicating with the STS user. Moreover, especially for STS calls initiated by persons without a speech disability, the Commission concludes that if, once the called party has been reached, the STS user and the CA are at any point unable to communicate effectively, the STS provider may switch the call to a different CA before the 20 minute period has expired without violating the 20 minute in-call replacement rule.
10. The Commission concludes that STS providers must offer STS users the option to have their voices muted so that the other party to the call will hear only the CA, not the user's voice, and it amends its rules accordingly. This option will likely give more persons with speech disabilities the confidence to use STS because many such individuals are hesitant to allow the called party to hear their speech.
11. In 2000, the Commission adopted nationwide 711 dialing access to allow both persons with disabilities and voice telephone users to initiate a TRS call from any telephone, anywhere in the United States, and be connected to the TRS facility serving that calling area. In 2008, the Commission sought comment on a number of 711 issues specific to STS users and noted that the Commission was in receipt of complaints from STS users who reported being disconnected upon dialing 711 during the transfer to an STS CA, indicating perhaps a lack of proper training on the part of some CAs, or the lack of proper equipment to receive and transfer STS calls to an STS CA. The Commission asked whether there are means by which it could ensure that STS users can reach an STS CA promptly and without disconnection after dialing 711, for example through the use of a prompt or menu.
12. Rather than mandating any particular technical solution, the Commission concludes that STS providers must, at a minimum, employ the same means of enabling their STS users to connect to a CA when dialing 711 that they use for all other forms of TRS. For example, where a provider requires its CAs to directly answer incoming 711 calls (
13. To the extent that a provider uses an IVR menu system that allows a direct connection to a CA for TTY-based and other forms of TRS on the first level of menu prompts, it must allow STS users to connect directly to an STS CA from that first level of prompts. Ensuring that STS users are not required to navigate through extra dialing menus will enable such users to communicate by telephone in a manner that is functionally equivalent to the ability of an individual who does not have a speech disability. The Commission notes, however, that the mandate for 711 dialing does not preclude STS providers from offering a single nationwide toll free number as a supplement to 711 dialing access. However, a dedicated toll-free number for STS calls cannot take the place of 711 STS dialing access, as this would be inconsistent with the intent of the
14. In the
15. Consumer groups propose other initiatives to further enhance the use and quality of STS. A consumer group asserts that STS providers should be required to inform STS users of the TRS confidentiality rules so that prospective STS users would be reassured that their privacy is being preserved. The Commission declines to adopt this proposal because it is concerned that adding this requirement to the start of every STS call may be unduly burdensome for both the CA and other users, many of whom may already be familiar with this mandatory minimum standard. Instead, the Commission believes that informing potential users of their right to TRS confidentiality is
Document FCC 13–101 does not contain any new or revised information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104–13. In addition, therefore, it does not contain any new or revised information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198,
1. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” The RFA generally defines “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).
2. STS relay service is a form of TRS that utilizes specially trained CAs who understand the speech patterns of persons with speech disabilities and can repeat the words spoken by such individuals to the other parties to a relayed call. In the
3. The Commission concludes that these new requirements are necessary to improve the effectiveness and quality of STS so that individuals with speech disabilities may receive functionally equivalent telephone service, as mandated by Title IV of the Americans with Disabilities Act. The Commission believes that none of these requirements would impose a significant burden on providers, including small businesses. Specifically, each of the three new requirements entail only minor operational changes that can be accomplished at minimal cost to each provider of STS, including small businesses.
4. In analyzing whether a substantial number of small entities will be affected by the requirements adopted in document FCC 13–101, the Commission notes that the SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such firms having 1,500 or fewer employees. Five providers currently receive compensation from the Interstate TRS Fund for providing STS: AT&T Corporation; Hamilton Relay, Inc.; Kansas Relay Service, Inc.; Purple Communications, Inc. and Sprint Nextel Corporation. The Commission notes that only one of these five providers is a small entity under the SBA's small business size standard. Because each of the three new requirements adopted in the
5. Therefore, for all of the reasons stated above, the Commission certifies that the requirements of document FCC 13–101 will not have a significant economic impact on a substantial number of small entities.
1. The Commission will send a copy of document FCC 13–101 in a report to be sent to Congress and the Governmental Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
Pursuant to sections 1, 4(i), (j), and (o), 225, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), (j), and (o), 225, and 403, document FCC 13–101 is adopted.
The
The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 13–101, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.
Individuals with disabilities, Telecommunications.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 part 64 as follows:
47 U.S.C. 154, 254(k); 403 (b)(2)(B), (c), Pub. L. 104–104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112–96, unless otherwise noted.
(a) * * *
(1) * * *
(v) CAs answering and placing a TTY-based TRS or VRS call shall stay with the call for a minimum of ten minutes. CAs answering and placing an STS call shall stay with the call for a minimum of twenty minutes. The minimum time period shall begin to run when the CA reaches the called party. The obligation of the CA to stay with the call shall terminate upon the earlier of:
(A) The termination of the call by one of the parties to the call; or
(B) The completion of the minimum time period.
(viii) STS providers shall offer STS users the option to have their voices muted so that the other party to the call will hear only the CA and will not hear the STS user's voice.
(b) * * *
(7)
Office of the Chief Procurement Officer, HUD.
Final rule; Correcting amendment.
On December 10, 2012, HUD published a final rule that amended the HUDAR to implement miscellaneous changes, which included, for example, removing obsolete and redundant provisions, updating provisions that address the organizational structure of HUD, and adding provisions on contractor record retention. In making the organizational changes specified in the preamble of the December 10, 2012, final rule and the March 16, 2012, proposed rule, HUD inadvertently omitted moving to the new regulatory structure the clause that clarifies that policies and procedures concerning debarment and suspension for nonprocurement contracts also apply to procurement contracts. This final rule corrects that amendment.
For information about this technical correction, please contact Camille E. Acevedo, Associate General Counsel for Legislation and Regulations, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; telephone number 202–708–1793 (this is not a toll-free number). Persons with hearing or speech impairments may access Mr. Blocker's telephone number via TTY by calling the toll-free Federal Relay Service at 800–877–8339.
The uniform regulation for the procurement of supplies and services by federal departments and agencies, the Federal Acquisition Regulation (FAR), was promulgated on September 19, 1983 (48 FR 42102). The FAR is codified in title 48, chapter 1, of the Code of Federal Regulations. HUD promulgated its regulation to implement the FAR on March 1, 1984 (49 FR 7696). The HUDAR (title 48, chapter 24 of the Code of Federal Regulations) is prescribed under section 7(d) of the Department of HUD Act (42 U.S.C. 3535(d)); section 205(c) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 121(c)); and the general authorization in FAR 1.301.
HUDAR was last revised by final rule published on December 10, 2012 (77 FR 73524). The December 10, 2012, final rule was preceded by a March 16, 2012 (77 FR 15681), proposed rule that announced that the purpose of the 2012 rulemaking was to implement various miscellaneous and nonsubstantive amendments to the HUDAR. The preamble to the March 16, 2012, proposed rule described amendments that would correct the location of various HUDAR provisions through redesignation and corrected citations.
One of the amendments described in the March 16, 2012, proposed rule was to move 48 CFR 2409.7001 to its new location, 48 CFR 2409.470. Section 2409.7001, entitled “HUD's Regulations on Debarment and Suspension, and Ineligibility”, read as follows: “HUD's policies and procedures concerning debarment and suspension are contained in 2 CFR parts 180 and 2424 and, notwithstanding 2 CFR 180.220(a)(1), apply to procurement contracts.” The preamble to the March 16, 2012, proposed rule stated that: “The content of current 2409.7001 is proposed to be moved to the new 2409.470 with the same title, to more accurately correspond to the FAR and would be revised to correct the Code of Federal Regulations citation. Current subpart 2409.70 would be accordingly removed, as 2409.7001 was the only section in that subpart.” (See 77 FR 15683.) The correction of the citation was to remove the references to 2 CFR part 180, which is now unnecessary as it is included by cross-reference in 2 CFR 2424.10 and elsewhere. Other than relocation and correction of the citation, no substantive change was proposed to section 2409.7001. However, in the published rule text, the portion after the legal citation to 2 CFR part 2424 was inadvertently dropped.
The preamble to the December 10, 2012, final rule advised that it was implementing without change the amendments proposed by the March 16, 2012, rule, and described a few nonsubstantive amendments made that were inadvertently omitted in the March 16, 2012, proposed rule. Unfortunately, the March 16, 2012 proposed rule also inadvertently omitted the full content of prior regulatory section 2409.7001 that was supposed to be moved, without substantive change, to 2409.470, and the December 10, 2012 final rule repeated that error.
This final rule corrects this error and restores the full content of § 2409.7001 to new § 2409.470 with a corrected legal citation. The 2012 rulemaking makes clear that no significant substantive changes were being made to the HUDAR. The error did not change the applicability of debarment and suspension rules to procurements. To remove the applicability of HUD's debarment and suspension policies and procedures to procurement contracts, which policies and procedures have been applied to procurement contracts to date and for many years previously, would have made the 2012 rulemaking a highly significant rule, and HUD would have been required to provide advance notice and solicit comment on this change. Additionally, however, and of equal or more importance is that HUD has no authority to exempt procurement contracts from debarment and suspension policies and procedures. The Federal Acquisition Regulation (FAR) requires debarment and suspension policies and procedures to be applied to procurement contracts. In the absence of an agency specifying its own debarment and suspension policies
Government procurement.
Accordingly, for the reasons described in the preamble, 48 CFR part 2409 is amended as follows:
40 U.S.C. 121(c); 42 U.S.C. 3535(d).
HUD's policies and procedures concerning debarment and suspension are contained in 2 CFR part 2424, and, notwithstanding any language to the contrary, apply to procurement contracts.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open meetings.
This notice announces the open meetings of the Commercial Heating, Ventilation, and Air-conditioning (HVAC), Water Heating (WH), and Refrigeration Certification Working Group (Commercial Certification Group). The purpose of the Commercial Certification Group is to undertake a negotiated rulemaking to discuss and, if possible, reach consensus on proposed certification requirements for commercial HVAC, WH, and refrigeration equipment, as authorized by the Energy Policy and Conservation Act of 1975, as amended.
For dates of meetings, see Public Participation in the
The location for the Wednesday, August 28, meeting is the Building Technologies Office at 950 L'Enfant Plaza, 6th floor, rooms 6099–6097, SW. Washington, DC 20024. The Wednesday, September 11, and Thursday September 12 meetings will be held at the Department of Energy's main building, 1000 Independence Avenue, room GH–019, SW. Washington, DC 20585. Individuals will also have the opportunity to participate by webinar. To register for the webinar and receive call-in information, please register at
John Cymbalsky, ASRAC Designated Federal Officer, Supervisory Operations Research Analyst, U.S. Department of Energy (DOE), Office of Energy Efficiency and Renewable Energy, 950 L'Enfant Plaza, SW., Washington, DC 20024. Email:
Members of the public are welcome to observe the business of the meetings and, if time allows, may make oral statements during the specified period for public comment. To attend the meetings and/or to make oral statements regarding any of the items on the agenda, email
Members of the public will be heard in the order in which they sign up for the Public Comment Period. Time allotted per speaker will depend on the number of individuals who wish to speak but will not exceed five minutes. Reasonable provision will be made to include the scheduled oral statements
Participation in the meetings is not a prerequisite for submission of written comments. Written comments are welcome from all interested parties. Any comments submitted must identify the Commercial HVAC, WH, and Refrigeration Certification Working Group, and provide docket number EERE–2013–BT–NOC–0023. Comments may be submitted using any of the following methods:
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No telefacsimilies (faxes) will be accepted.
The Secretary of Energy has approved publication of today's notice of proposed rulemaking.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Reopening of public comment period.
On June 14, 2013, NOAA published a proposed rule in the
NOAA will accept public comments on the proposed rule published at 78 FR 35776 (June 14, 2013) through October 18, 2013.
You may submit comments on this document, identified by NOAA–NOS–2012–0077, by any of the following methods:
•
•
Jeff Gray, Superintendent, Thunder Bay National Marine Sanctuary at 989–356–8805 ext. 12 or
On June 14, 2013, NOAA published a proposed rule in the
While the public is free to comment on any issue related to the proposed action, NOAA is particularly interested in receiving input on the following topics:
1. Please explain current ballast management practices. Identify, with specificity, all areas where ballast management occurs and under what circumstances.
2. Please explain how the proposed boundary expansion is expected to impact existing ballast management practices.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations.
In the Rules and Regulations section of this issue of the
Written or electronic comments and requests for a public hearing must be received by November 13, 2013.
Send submissions to: CC:PA:LPD:PR (REG–115300–13), Room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG–115300–13), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Amy F. Giuliano at (202) 622–6070; concerning submission of comments and request for hearing, Oluwafunmilayo Taylor at (202) 622–7180 (not toll-free numbers).
Temporary regulations in the Rules and Regulations section of this issue of the
The text of those temporary regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the amendments.
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that this rule merely provides guidance as to the timing and filing of Form 4720 for charitable hospital organizations liable for the section 4959 excise tax, and completing the applicable portion (Schedule M) of the Form 4720 for this purpose imposes little incremental burden in time or expense. The liability for the section 4959 excise tax is imposed by statute, and not these regulations. In addition, a charitable hospital organization may already be required to file the Form 4720 under the existing final regulations in sections 53.6011–1 and 53.6071–1 if it is liable for another Chapter 41 or 42 excise tax. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. Chapter 6) is not required. Pursuant to section 7805(f) of the Code, these proposed regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business, and no comments were received.
Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the
A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the
The principal author of these regulations is Amy F. Giuliano, Office of Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and Treasury Department participated in their development.
Excise taxes, Foundations, Investments, Lobbying, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 53 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
The addition reads as follows:
(c) [The text of paragraph (c) of this section is the same as the text of § 53.6011–1T(c) published elsewhere in this issue of the
(g) [The text of paragraph (g) of this section is the same as the text of § 53.6011–1T(g) published elsewhere in this issue of the
The revision and addition read as follows:
[The text of paragraphs (h) and (i) of this section is the same as the text of §§ 53.6071–1T(h) and (i)(1) and (2) published elsewhere in this issue of the
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of Connecticut on December 1, 2004. Specifically, EPA is proposing to approve revisions to Connecticut's visible and particulate-matter (PM) emissions, record keeping and monitoring regulations. These revised rules establish and require limitations on visible and PM emissions for stationary sources, and clarify reporting requirements for operation of air-pollution-control and monitoring equipment. EPA is proposing approval of this SIP revision because the state has adequately demonstrated that it will not interfere with attainment or maintenance of the national ambient air quality standards (NAAQS) in Connecticut or any other applicable requirements of the Clean Air Act.
This action is being taken in accordance with the Clean Air Act (CAA).
Written comments must be received on or before September 16, 2013.
Submit your comments, identified by Docket ID Number EPA–R01–OAR–2009–0469 by one of the following methods:
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4.
5.
Alison C. Simcox, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post Office Square—Suite 100, (Mail Code OEP05–2), Boston, MA 02109—3912, telephone number (617) 918–1684, fax number (617) 918–0684, email
In addition to the publicly available docket materials available for inspection electronically in the Federal Docket Management System at
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
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.
Visible emissions, also known as “opacity,” provide a measure of the degree to which stack emissions from a stationary source (such as a power plant) reduce the transmission of light and obscure the view of an object in the background. See 40 CFR 60.2. In general, the more opaque the particles that pass through an emissions point, the more light that will be blocked, thus increasing the opacity percentage. Although opacity is not a criteria pollutant and there can be uncertainty in the relationship between opacity and the mass of particulate matter from a stack emission at any given source, opacity standards continue to be used as an indicator of the effectiveness of emission controls for PM emissions and to help implement and enforce emission standards for purposes of attaining the PM NAAQS. Connecticut, like many other states, has rules that limit opacity levels of emissions from certain sources to reduce pollutant releases.
Connecticut first adopted regulations to limit visible and PM emissions from stationary sources, including electric generating units (EGUs) and boilers, in the early 1980s. In 1981, EPA approved Regulations of Connecticut State Agencies (RCSA) Section 19–508–18, “Control of particulate emissions,” into the Connecticut SIP (47 FR 41958). Section 19–508–18 has since been recodified as RCSA Section 22a–174–18.
In 2003, the Connecticut Department of Environmental Protection (now the Connecticut Department of Energy and Environmental Protection or CT DEEP) proposed revisions to Section 22a–174–18 “Control of particulate matter and visible emissions” (herein called the “visible emissions regulation”) to address short-term excursions from maximum allowed opacity levels that may occur and be measured at some stationary sources with continuous opacity monitoring systems (COMS)
In 2003, CT DEEP also proposed revisions to several other RCSA Sections, including 22a–174–4, “Source Monitoring, record keeping, reporting and authorization of inspection of air pollution sources” (codified as RCSA Section 19–508–4 in the Connecticut SIP, and herein called the “record keeping regulation”), and 22a–174–7, “Air pollution control equipment and monitoring equipment operation” (codified as RCSA Section 19–508–7 in the Connecticut SIP, and herein called the “monitoring regulation”). CT DEEP held a public hearing on revisions to these three (as well as several other) regulations, on April 29, 2003. Subsequently, CT DEEP amended its visible emissions, record keeping, and monitoring regulations based on comments received from EPA and others, with an effective date of April 1, 2004.
On December 1, 2004, CT DEEP submitted the revised regulations to EPA for inclusion in the Connecticut SIP. This submittal included a provision providing exceptions from maximum opacity levels for startup, shutdown, stack testing, soot-blowing, fuel switching or sudden load changes, and malfunctions of stationary sources with COMs (Section 22a–174–18(j)(1)). However, on July 8, 2013, CT DEEP sent a letter to EPA withdrawing Section 22a–174–18(j)(1) to the extent that it applies to malfunctions.
Today's action addresses RCSA Sections 22a–174–4, 22a–174–7, and 22a–174–18. CT DEEP's December 1, 2004 SIP submittal also included three additional regulations. EPA has already taken action on these rules. Specifically, Section 22a–174–3b “Exemptions from permitting for construction and operation of external combustion units, automotive refinishing operations, emergency engines, nonmetallic mineral processing equipment and surface coating operations,” Section 22a–174–30 “Dispensing of gasoline/Stage I and Stage II vapor recovery,” and Section 22a–174–43 “Portable fuel container spillage control” were approved into the Connecticut SIP on August 31, 2006 (71 FR 51761).
After reviewing CT DEEP's December 1, 2004 SIP submittal for Sections 22a–174–4, 22a–174–7, and 22a–174–18 (including clarifying letters demonstrating consistency with 110(l) of the CAA and withdrawal of an exception provision for malfunctions), EPA is proposing to approve the Connecticut SIP revision for RCSA Sections 22a–174–4, 22a–174–7, and 22a–174–18 without the withdrawn portion, and is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the
On December 1, 2004, CT DEEP submitted to EPA amendments to 22a–174–4 (record keeping), 22a–174–7 (monitoring) and 22a–174–18 (visible and PM emissions). Revisions to the record keeping and monitoring regulations clarify and improve enforceability of requirements currently in the Connecticut SIP. For example, revised 22a–174–4 includes specific data availability requirements and revised 22a–174–7 includes explicit, specific time frames for various notifications (such as “no later than two business days”), as compared to prior requirements to notify the state “promptly.”
Connecticut's revised visible and PM emissions regulation also contains new provisions concerning the emission limits applicable to sources, including alternative emission limits applicable to some sources during certain modes of source operation.
The state's pre-2004 regulation, which is currently in the Connecticut SIP (Section 19–508–18), prohibits stationary sources from emitting pollutants with more than 20 percent opacity at all times, except for up to five (5) aggregate minutes in a 60-minute period, during which emissions can have up to 40 percent opacity. The current regulation contains no impermissible exemptions for excess emissions during startup, shutdown, malfunction or other periods. The state's revised rule (Section 22a–174–18) includes new time-averaged opacity standards with specified compliance determination methods for sources both with and without COMs, and an alternative compliance option for sources that use COMs. The alternative compliance option provides an alternative emission limit applicable during certain modes of source operation.
For sources both with and without COMs, the revised regulation limits opacity to 20 percent during any 6-minute block average or to 40 percent during any one-minute block average (Section 22a–174–18(b)(1) and (2)). For sources without COMs, compliance
For sources with COMs, the revised regulation includes an alternative emission limit during periods of startup, shutdown, stack testing, soot-blowing, fuel switching or sudden load change (Section 22a–174–18(j)(1)). During these periods, emissions can have up to 60 percent opacity during any 6-minute block average. However, the period of time that the alternative emission limit can be used by the source cannot exceed one-half of one percent (0.5 percent) of a facility's total operating hours during any calendar quarter. In other words, the maximum time that the alternative emission limit can be used is slightly less than 11 hours under the scenario of a facility operating continuously for a three-month period. RCSA Section 22a–174–4, which is also proposed for approval herein, contains recordkeeping and reporting requirements that serve to ensure that records are available to provide evidence that elevated opacity occurs during specified modes of source operation, and that elevated opacity is restricted on a calendar quarter basis.
Connecticut's revised regulation also includes a new provision (Section 22a–174–18(j)(2)) that excludes emission sources that are separately subject to additional visible emissions standards under existing federal New Source Performance Standards (NSPS) set forth in 40 CFR part 60 from the Section 22a–174–18 visible emissions standards. We considered the various NSPS applicable to these types of sources. The most relevant for today's discussion are the NSPS for boilers. In Connecticut, boilers subject to NSPS are mainly boilers subject to Subparts Db and Dc.
PM emission standards currently in the Connecticut SIP (Section 19–508–18(d)) include limits of 0.10 pounds per million British thermal unit (lb/MMBtu) of heat input for stationary sources requiring a permit. Sources requiring permits are those with potential emissions of 15 tons per year (tpy) or more of any individual air pollutant. For smaller boilers that are required to register under Connecticut General Statute Chapter 540 Sec. 29–241 (“registration sources”), PM emission standards were 0.14 lb/MMBtu for sources burning residual oil and 0.20 lb/MMBtu for all other registration sources. The state's revised rule (Section 22a–174–18) retains the PM standard of 0.10 lb/MMBtu for sources requiring a permit, but tightens the PM standards from 0.20 to 0.12 lb/MMBtu for registration sources that burn distillate oil (no. 2 oil), and from 0.20 to 0.10 lb/MMBtu for registration sources that burn natural gas.
EPA's review of the SIP submittal indicates that all concerns that EPA has thus far expressed to CT DEEP about revisions to the state's visible and PM emissions, record keeping, and monitoring regulations have been adequately addressed. Most of the concerns that EPA expressed were in regard to the visible emissions regulation, especially Section 22a–174–18(j), which provides exceptions from maximum opacity levels for stationary sources with COMS. To address these concerns, CT DEEP submitted a clarifying letter to its SIP submittal, which is discussed below, demonstrating that revisions to its visible emissions regulation are consistent with section 110(l) of the CAA, and withdrew Section 22a–174–18(j)(1) to the extent that it applies to malfunctions. See letter to EPA dated July 8, 2013, available in the docket for today's action.
In the process of reviewing Connecticut's SIP revision and the addenda, EPA also considered other issues pertaining to the visible emissions regulation, including its relationship to EPA's recently proposed revisions to its policy regarding limits applicable during startup, shutdown, and malfunction.
On December 1, 2004, CT DEEP submitted revisions to its visible and PM emissions (Section 22a–174–18), record keeping (22a–174–4), and monitoring (22a–174–7) regulations. As previously noted, the record keeping and monitoring revisions clarify and improve enforceability of requirements currently in the Connecticut SIP. However, revisions to the visible and PM emissions regulation include new provisions that provide an alternative emission limit for maximum opacity levels for stationary sources with COMs during certain modes of source operation, and also excludes certain existing sources that are subject to NSPS visible-emissions standards from the SIP's visible-emissions standards. CT DEEP submitted a clarifying letter to its SIP submittal to demonstrate that these provisions are consistent with section 110(l) of the CAA. As described below, EPA reviewed the SIP submittal, which includes the letter, and is proposing to find that it is consistent with section 110(l) of the CAA.
The analysis below discusses the anti-backsliding provisions of CAA Section 110(l), since, as mentioned above, a previous version of the visible and PM emissions rule has already been approved into the Connecticut SIP. Section 193 of the CAA is not discussed because the entire State of Connecticut is attaining the 1997 and 2006 NAAQS for particulate matter.
Section 110(l) of the CAA states: “The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this Act.” EPA interprets section 110(l) to apply to all requirements of the CAA and to all areas of the country, whether attainment, nonattainment, unclassifiable, or maintenance for one or more of the six criteria pollutants. EPA interprets section 110(l) to require a basis for concluding that the SIP revision will not interfere with attainment or maintenance of the NAAQS for all criteria pollutants whose emissions and/or ambient concentrations may change as a result of the SIP revision. For areas designated as attainment for the relevant
Alternatively, a state can show that a SIP revision will not interfere with attainment or maintenance of the NAAQS by demonstrating that the revision will not allow for an increase in emissions into the air over what is allowed under the existing EPA-approved SIP, taking into consideration SIP-approved measures that represent new emissions reductions achieved in a contemporaneous time frame to the change represented by the SIP revision. In addition to being contemporaneous, the emissions reductions must also be permanent and enforceable. States may also be able to demonstrate noninterference through alternative approaches, such as air quality analyses. For example, a maintenance plan may demonstrate that a control measure is no longer needed to maintain compliance with the NAAQS.
We evaluated CT DEEP's Section 110(l) demonstration to ensure that revisions to the state's visible and PM emissions regulation (Section 22a–174–18) will not interfere with attainment or maintenance of PM air quality standards, or any other applicable requirements of the CAA, as required by section 110(l) of the CAA. Our analysis, as set forth below, consists of several parts.
First, we consider (although we do not quantify precisely) potential emissions increases that could result from CT DEEP's revised regulation. These increases represent, very roughly, potential increases attributable to the relaxed alternative opacity limit, plus potential increases attributable to removing NSPS-subject sources from SIP opacity standards, minus other reductions within the rule itself (e.g., the tighter PM standards in some circumstances).
Second, we discuss recent data regarding emissions inventories and ambient air quality to demonstrate that Connecticut's emissions have declined substantially in recent years, and that its present air quality is well below the federal primary and secondary PM NAAQS. As part of this discussion, we describe certain regulations that EPA has approved into the Connecticut SIP and, therefore, result in permanent, federally enforceable emissions reductions. Our purpose in discussing these regulations is to support our analysis regarding current statewide inventories and air quality.
Our analysis demonstrates that the current, relatively low emissions inventories are not solely attributable to non-regulatory factors (e.g., economic changes), but rather are, in significant part, attributable to the permanent, enforceable reductions achieved by Connecticut's SIP and other federal CAA programs. The combination of these three facts—that Connecticut's direct and precursor PM
Third, we discuss CAA Section 110(a)(2)(A)'s requirement for “enforceable emission limitations” in SIP provisions, which Section 302(k) defines as limiting emissions “on a continuous basis.” EPA has longstanding guidance for SIP provisions that pertain generally to emissions during startup, shutdown, and malfunction. CT DEEP's revision raises three subcategories of issues potentially relevant here. First, we discuss each of the seven criteria EPA recommends for the SIP provision that provides for an alternative emission limit during specific modes of source operation, such as startup and shutdown, to meet CAA SIP requirements, and why we believe that CT DEEP's revision is consistent with these criteria. Second, we very briefly discuss an alternate limit for malfunction that was contained in CT DEEP's original submission, that has since been withdrawn from consideration. Third, we discuss some unique issues regarding Section 22a–174–18(j)(2), and why our approval of this provision—which exempts sources subject to NSPS opacity standards from the current EPA-approved SIP-based opacity standard—is not inconsistent with CAA requirements applicable to SIP provisions.
Fourth, we discuss why CT DEEP's revision will not interfere with Regional Haze requirements. Our analysis here is very similar to that in the first and second sections. We discuss Connecticut's Regional Haze plan and its modeled reductions and the “compliance cushion” available, and explain why, overall, potential increases from the alternative emission limit and the exclusion of certain sources from the current SIP opacity standards in CT DEEP's revised regulation will not interfere with Regional Haze requirements.
In this section, we discuss (although we do not quantify precisely) potential emissions increases that could result from CT DEEP's revised regulation. These increases represent potential increases attributable to the relaxed alternative emission limit, plus potential increases attributable to removing NSPS-subject sources from SIP opacity standards, minus other reductions within the rule itself (e.g., the tighter PM standards in some circumstances).
CT DEEP looked at the current operating status of 20 units for which the alternative emission limit during certain modes of source operation (Section 22a–174–18(j)(1)) was developed.
Moreover, three of the units (Middletown Station no. 2 and 3 and Pfizer no. 5) have changed their primary fuel from residual oil to natural gas, resulting in a reduction in emissions of PM
On May 4, 2012, CT DEEP issued a consent order to Pfizer Inc. (No. 8314; included in docket for today's action), which contains an enforceable provision (paragraph B.1.) requiring Pfizer to combust only natural gas in boiler 5.
For purposes of examining potential emissions increases from Section 22a–174–18(j)(1), we focus on the remaining nine facilities. Emissions at these sources during startup and shutdown can only be roughly characterized because the time it takes to “warm up” a given unit depends on whether it is a single-cycle or combined-cycle unit, and on the make and model of the unit. Emissions also depend on whether the startup is a cold, warm, or hot startup, with higher emissions levels and longer startup times generally associated with cold startups. In addition, because emissions during startup periods are not steady-state emissions, they tend to be more variable than under steady-state operation. Although Section 22a–174–18(j)(1) authorizes emissions levels to be higher during startup, shutdown, stack
Additionally, Section 22a–174–18(j)(2) exempts facilities that are subject to an NSPS visible emissions standard from the Connecticut SIP's visible emissions standards. Like the non-NSPS facilities in Table 1, NSPS facilities are expected to have higher emissions during startup, shutdown, and malfunctions.
Neither the state nor EPA has attempted to quantify the exact increase in PM emissions that could be allowed under this SIP revision. However, taking into consideration the universe of sources subject to the revised opacity standard, the fuels and emissions limits applicable to those sources (including those that are more stringent under the revision), and nature of the alternative emission limit (which only allows an increase from 40% to 60% opacity during certain modes of source operation with a limit of just under 11 hours per quarter), EPA believes that while there may be an increase in PM emissions associated with this SIP revision, any such increase would be small.
Connecticut's statewide emissions inventories have declined substantially in recent years. These reductions are in large part attributable to federally enforceable CAA measures, some of which we summarize. These measures have resulted in decreases in ambient pollutant concentrations that, as we explain below, provides an adequate “compliance cushion” below the NAAQS.
For example, Table 2 shows the decline in emissions of SO
Significantly, monitored levels of PM
Regarding PM
In addition, emission projections from the maintenance plan for CT's redesignation request indicate that there is a substantial margin of safety that ensures maintenance of the NAAQS even if small increases in emissions were to occur (see Table 5).
Furthermore, modeling analysis conducted for the Regulatory Impact Analysis (RIA) for the 2012 PM
These reductions are in large part attributable to permanent, federally enforceable requirements under the Clean Air Act. These permanent and enforceable measures, which are discussed below, include RCSA Sections 22a–174–19a (“Control of sulfur dioxide emissions from power plants and other large stationary sources of air pollution”), 22a–174–22 (“Control of Nitrogen Oxide Emissions”), and 22a–174–22c (“The Clean Air Interstate Rule (CAIR) Nitrogen Oxides (NO
In 2000, CT DEEP adopted RCSA section 22a–174–19a and revised RCSA section 22a–174–22. These regulations now require large EGUs and industrial boilers to reduce SO
Section 22a–174–19a, which became effective December 28, 2000 and has been approved into the Connecticut SIP,
• Combust liquid fuel, gaseous fuel or a combination of each, provided that each fuel possesses a fuel sulfur limit of equal to or less than 0.5 percent sulfur, by weight;
• Meet an average SO
• Meet an average SO
Starting on January 1, 2003, all sources in Connecticut that are Acid Rain Sources under Title IV of the Clean Air Act and that are subject to Connecticut's Post-2002 NO
• Combust liquid fuel, gaseous fuel or a combination of each, provided that each fuel possesses a fuel sulfur limit of equal to or less than 0.3 percent sulfur, by weight;
• Meet an average SO
• Meet an average SO
Before January 1, 2005, Connecticut allowed sources subject to the January 1, 2003 emission rates to meet such emission rates by using SO
The effectiveness of Section 22a–174–19a is detailed in Attachment X of CT DEEP's November 2009 Regional Haze SIP submittal (see docket EPA–R01–OAR–2009–0919). In that submittal, CT DEEP estimates that potential emissions from all sources statewide subject to RCSA 22a–174–19a were reduced from 89,537 tons in 2002 to 60,304 tons in 2006, a reduction of 29,233 tons.
Pursuant to the ozone reasonably available control technology (RACT) provisions of the 1990 Clean Air Act Amendments, CT DEEP adopted RCSA Section 22a–174–22 in 1995, achieving substantial reductions in NO
CT DEEP also made revisions to Section 22a–174–22 that had a compliance date of October 1, 2003. New Section 22a–174–22(e)(3) required NO
Since 1999, CT DEEP has adopted several NO
The effectiveness of the state's NO
In addition to CT DEEP's demonstration that the revision of Section 22a–174–18, along with other regulations addressing SO
In addition, the SIP revision requires more stringent PM emission limits for registered (i.e., non-permitted) boilers that burn distillate oil and natural gas than are required by the previously EPA-approved rule. Although NSPS boilers are specifically excluded from the opacity standards of Section 22a–174–18, they remain subject to the PM emission standards in the state's rule that apply at all times, even during periods of startup, shutdown, and malfunction.
In sum, Connecticut's monitored ambient PM concentrations are well below the NAAQS. This is attributable in large part to permanent, federally enforceable reductions of direct and precursor particulate emissions. Thus, Connecticut has a substantial “margin of safety” or “compliance cushion” such that small emissions increases would not interfere with attainment or maintenance of the NAAQS. EPA concludes that these factors, taken together, ensure that potential PM emissions increases that could result from revisions to Section 22a–174–18 will not interfere with attainment or maintenance of the PM
Section 110(a)(2)(A) requires that SIPs contain “enforceable emission limitations and other control measures, means, or techniques . . . as may be necessary or appropriate to meet the applicable requirements of [the CAA].” Section 302(k) defines the term “emission limitation” as “a requirement that limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” For this reason, EPA interprets the CAA to preclude SIP provisions that include exemptions for emissions that occur during periods such as startup, shutdown, or malfunction. While emission limitations in SIPs must be continuous to meet CAA requirements, they do not necessarily have to be continuous at the same level during all modes of source operation. Thus, for example, it may be appropriate to establish an emission limit that allows one level of emissions during ordinary day to day source operation and a different, higher level of emissions during other specific modes of source operation, such as during startup or shutdown. All such limits, however, must meet basic CAA requirements for SIP provisions.
EPA has longstanding SIP guidance that recommends criteria relevant to development of alternative emission limits or other control measures that apply during specific modes of source operation such as startup and shutdown.
Therefore, EPA will analyze the alternative emission limit established by CT DEEP in Section 22a–174–18(j)(1) for facilities with COMS according to the specific criteria enumerated in EPA's guidance for such SIP provisions. Because the alternative emission limitation applies during startup, shutdown, stack testing, soot-blowing, fuel switching or sudden load changes, EPA will evaluate the revision with respect to these modes of source operation. Each of the seven (7) criteria is discussed below.
As described in IV.1 and as listed in Table 1 above, the specific source categories eligible to use the alternate emission limits under Section 22a–174–18(j)(1) include sources (mostly EGUs) with a capacity greater than 250 MMBtu/hr that are not subject to the federal NSPS set forth in 40 CFR part 60. The universe of existing sources affected by this revision is listed in Table 1. Most of the units in Table 1 use some combination of electrostatic precipitators, selective non-catalytic reduction, and/or low NO
CT DEEP established a workgroup in 1997 to recommend visible-emissions limits for a small number of sources (see Table 1). See letter to EPA dated January 14, 2013, in the docket for today's action summarizing workgroup effort. The workgroup considered technical issues that make it difficult for some facilities to consistently meet opacity limits that apply during normal steady-state operating conditions (i.e., 20 percent during any 6-minute block average or 40 percent during any one-minute block average) during periods such as startup and shutdown. For example, combustion turbines may have higher emissions during startup than during steady-state operation, and post-combustion control systems, such as Selective Catalytic Reduction (SCR) systems for reducing NO
In addition to startup and shutdown operations, Section 22a–174–18(j)(1) allows for an alternative emission limit during these other types of operations: Stack testing, soot-blowing, fuel switching or sudden load changes. Sudden load changes are similar to startup and shutdown operations in that the emission unit is subject to large load swings during a short time period, which makes it difficult to optimize unit operation, and can lead to short-term higher emission rates.
Fuel switching can also result in short-term emission increases. For example, fuel switching in a combustion unit makes it difficult to optimize the oxygen/fuel ratio for efficiency as well as for minimizing emissions. The sources currently subject to 22a–174–18(j)(1) are combustion units that produce steam. These types of units operate by injecting more air than is required for stoichiometric purposes for complete combustion. However, there is a balance regarding how much excess air can be added without adversely impacting emissions and efficiency. Too much excess air generally results in increases in NO
The frequency and duration of periods of startup, shutdown, stack testing, soot-blowing, fuel switching or sudden load changes depend on the type, age, and operational characteristics of a given combustion unit. For example, modern combined-cycle units generally have shorter startup times than older units and can respond more quickly to load changes than older units. As noted above, the duration of operation in startup or shutdown mode depends on whether a unit is single-cycle or combined-cycle, and whether the startup is a cold, warm, or hot startup, with higher emissions levels and longer startup times generally associated with cold startups.
As discussed under criterion (2) above, other modes of operation, including stack testing, soot-blowing, fuel switching or sudden load changes can also result in short-term higher emission levels and operational difficulties. Operators of the units listed in Table 1 use best engineering practices to optimize the fuel-to-air ratio in a manner that minimizes emissions.
Based on COMS data (1-minute and 6-minute averages) for the combustion units listed in Table 1, as well as on information about the make, model, age, and operation of the units, the aforementioned workgroup recommended a 60 percent opacity limit (during any 6-minute block average) for periods of startup, shutdown, stack testing, soot-blowing, fuel switching or sudden load change.
In its revised regulation, to minimize the frequency and duration of operation in a startup, shutdown, stack testing, soot-blowing, fuel switching or sudden load change mode, CT DEEP set a strict limit on the cumulative amount of time per calendar quarter (less than 11 hours) that a facility can be subject to the alternative emission limit under Section 22a–174–18(j)(1). The recordkeeping and reporting requirements in sections 22a–174–4 and 22a–174–7, which are proposed for approval herein, will serve to assure that these sources will be subject to the alternative emission limit only during the relevant periods and within the applicable time.
CT DEEP's workgroup (described above) determined the periods of highest opacity, which represent worst-case conditions, based on submitted COMS data from 20 combustion units in various state locations. These periods tend to occur during periods of startup, shutdown, and other specific modes of operation described in Section 22a–174–18(j)(1).
The worst-case emissions scenario that could occur during startup and shutdown would be if all twelve of the subject units (see Table 1) simultaneously emitted at the maximum allowed under Section 22a–174–18(j)(1)'s alternative emission limit by all (1) Engaging in startup, shutdown, or other listed modes of operation, (2) for the same full nearly-11-hour period, and (3) at the uppermost allowed 60% opacity. Even under this worst-case emissions scenario, however, emissions would continue to be limited by the federally applicable PM emissions standards in Section 22a–174–18(e), which apply at all modes of operation, including startup and shutdown.
In such a worst-case scenario, the applicable PM emissions standards would be 0.20 pounds of particulate matter per million BTU of heat input for the one subject unit (Bridgeport Harbor #3) authorized to burn coal, 0.14 pounds of particulate matter per million BTU for the ten subject units authorized to burn residual oil, and 0.10 pounds of particulate matter per million BTU for the subject unit (Pfizer #5) that by order can only combust natural gas. These PM emissions limits are federally enforceable under the CAA, and apply during startup, shutdown, or other modes of source operation. Thus, they represent the worst-case emissions scenario under Section 22a–174–18(j)(1)'s alternative emissions limit. In sum, the likely worst-case emissions scenario would be that, for a simultaneous period of almost 11 hours in a given calendar quarter, all twelve subject sources emit at 60% opacity, with ten units emitting 0.14 pounds of particulate matter per million BTU, one unit emitting 0.20 pounds of particulate matter per million BTU, and one unit emitting 0.10 pounds of particulate matter per million BTU.
Even under this worst-case scenario, various other federally enforceable restrictions ensure that overall PM emissions in Connecticut keep ambient PM levels well below all federal PM NAAQS. These other restrictions, the state emissions inventories, and an analysis of ambient concentration trends are explained in detail in Section IV.A of this document. In the event that these elevated emissions were to cause future violations of the PM NAAQS, EPA has additional authorities under the CAA to address any such potential problems.
RCSA Section 22a–174–4, which is proposed for approval herein, requires submission of all COMS data quarterly, along with a quarterly quality-assurance audit, which can occur at any time, including startup, shutdown, stack testing, soot-blowing, fuel switching or sudden load periods. This regulation also requires submission of corrective actions for a failed audit.
In addition, the exception in Section 22a–174–18(j)(1) is designed to minimize emissions during startup, shutdown, stack testing, soot-blowing, fuel switching or sudden load change. The operator must limit the time period during which the alternative emission limit applies to less than 11 hours per calendar quarter, and must limit opacity levels during such periods to no more than 60% opacity during any 6-minute block average. Furthermore, the PM emissions standards in Section 22a–174–18(e) continue to apply during startup, shutdown, stack testing, soot-blowing, fuel switching or sudden load change.
The alternative emission limit in Section 22a–174–18(j)(1) is designed to minimize emissions at all times by limiting the time period during which the higher opacity limits are used on a calendar quarter basis, and by limiting opacity emissions during periods when the alternative emission limit applies to 60% opacity during any 6-minute block average. As discussed under criterion (2) above, during startup, shutdown and other modes of operation, including stack testing, soot-blowing, fuel switching or sudden load changes, operators of all the units listed in Table 1 use best engineering practices to optimize the fuel-to-air ratio in a manner that minimizes emissions.
RCSA section 22a–174–4 requires all sources with COMS to submit quarterly reports to CT DEEP. These reports must contain all relevant information for determining compliance with emissions limits, including information for periods when a source claims to have been operating in one of the modes stated in 22a–174–18(j)(1) (i.e., startup, shutdown, stack testing, soot-blowing, fuel switching or sudden load change). During these periods, opacity readings may be above 40% but, for compliance, must be less than 60% (for 6-minute block averages). The COMS data from the affected sources is available to verify the opacity during the different modes of source operation during the relevant periods and, thus, provide a mechanism for compliance assurance. In addition, all of the sources that are regulated by 22a–174–18(j)(1) are also regulated by 22a–174–33 for Connecticut's title V program. This means that all of the quarterly reports must be signed by a responsible official and are subject to the due diligence clause of title V of the CAA.
CT DEEP's December 1, 2004 SIP submittal included a provision that provides an alternative emission limit for sources during malfunctions. (Section 22a–174–18(j)(1)). However, on July 8, 2013, CT DEEP sent a letter to EPA withdrawing Section 22a–174–18(j)(1) to the extent that it applies to malfunction.
In addition to revising applicable emission limits, Connecticut's SIP revision also removes certain sources from coverage under existing SIP opacity standards if those sources are also separately regulated under existing EPA NSPS regulations. EPA notes that one practical effect of this revision is that these sources will now only be subject to the existing opacity limits of NSPS regulations and that within these regulations there may be exemptions from emission limits for excess emissions during certain startup, shutdown, or malfunction events. The decision of the U.S. Court of Appeals for the District of Columbia has indicated that exemptions from emission limitations during such periods are not consistent with the requirements of the CAA, in particular with the requirements of section 112 and section 302.
EPA has long interpreted the CAA to prohibit exemptions for excess emissions during startup, shutdown, and malfunction in SIP provisions. Since 1982, EPA guidance has stated that such exemptions are inconsistent with CAA requirements for SIPs.
As noted above, NSPS subparts Db and Dc apply to the sources that the state is removing from coverage under the SIP for purposes of opacity standards. These NSPS currently contain exemptions for excess emissions during startup, shutdown, and
In this context, we have determined that Section 22a–174–18(j)(2) is best analyzed not as an exemption for emission from sources during startup, shutdown, and malfunction for Subpart Db and Dc boilers in a SIP provision, but rather as an exclusion for a category of sources (i.e., sources subject to NSPS visibility standards) from SIP visibility standards.
EPA emphasizes that approval of the revision to Connecticut's SIP to exclude certain sources from coverage under a SIP emission limit when such sources are separately covered by an NSPS does not constitute approval of the NSPS, and any exemptions they may contain, into the state's SIP. Approval of new SIP provisions with such exemptions into the SIP would be inconsistent with CAA requirements for SIP. Instead, EPA believes that Connecticut has adequately addressed the requirements of section 110(l) to justify exclusion of these sources from coverage under the SIP opacity standards.
Connecticut's Regional Haze program is based on reasonable progress goals (RPGs) for Class I areas for each (approximately) 10-year planning period, and an alternative to BART demonstration that relies on SO
As set forth in more detail at 77 FR 17367, actual emissions of SO
Potential emissions of NO
Today's proposed approval does not modify any of the measures relied upon in Connecticut's Regional Haze program. Furthermore, the alternative emission limit (Section 22a–174–18 (j)(1)) has a sufficient margin of safety, as discussed in IV.2 above, that the potential increases attributable to CT DEEP's revised regulation would not imperil Connecticut's trend towards meeting its RPGs.
For the reasons discussed above, EPA concludes that revisions to Section 22a–174–18 “Control of Particulate Matter and Visible Emissions,” are approvable under section 110(l) of the CAA.
EPA is proposing to approve and incorporate into the Connecticut SIP three regulations submitted by the State of Connecticut on December 1, 2004. Specifically, EPA is proposing to approve CT DEEP's revised RCSA Section 22a–174–18 “Control of particulate matter and visible emissions,” except for the phrase “or malfunction” in Section 22a–174–18(j)(1) which CT DEEP has withdrawn. EPA is also proposing to approve CT DEEP's revised RCSA Section 22a–174–4 “Source monitoring, record keeping and reporting,” and Section 22a–174–7 “Air pollution control equipment and monitoring equipment operation.” These latter two regulations strengthen monitoring, record keeping, and reporting requirements, which improve the state's ability to detect violations of emissions limits.
Revised Section 22a–174–18 establishes and requires limitations on visible and PM emissions from certain stationary sources, identifies a standardized method for determining compliance for sources without COMS, and establishes an alternative emission limit of up to 60 percent opacity (during any 6-minute block average) during certain modes of operation for sources with COMS. In addition, the revised regulation sets a strict limit on the amount of time (0.5 percent of a facility's total operating hours during any calendar quarter) that sources with COMS can operate under the alternative emission limit. As described above, the state has adequately demonstrated that the revision of Section 22a–174–18 will not interfere with attainment or maintenance of air quality standards or other applicable CAA requirements as required by section 110(l) of the CAA.
EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting
• 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 proposed 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, Particulate matter.
42 U.S.C. 7401 et seq.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to amend the Standards and Practices for All Appropriate Inquiries to reference a standard practice recently made available by ASTM International, a widely recognized standards development organization. Specifically, EPA is proposing to amend the All Appropriate Inquiries Final Rule to reference ASTM International's E1527–13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” and allow for its use to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation, and Liability Act.
Written comments must be received by September 16, 2013.
Submit your comments, identified by Docket ID No. EPA–HQ–SFUND–2013–0513 by one of the following methods:
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•
•
•
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For general information, contact the CERCLA Call Center at 800–424–9346 or
Today's action offers certain parties the option of using an available industry standard to conduct all appropriate inquiries. Parties purchasing potentially contaminated properties may use the ASTM E1527–13 standard practice to comply with the all appropriate inquiries requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Today's proposed rule will not require any entity to use this standard. Any party who wants to claim protection from liability under one of CERCLA's landowner liability protections may follow the regulatory requirements of the All Appropriate Inquiries Final Rule at 40 CFR part 312, use the ASTM E1527–05, use the ASTM E2247–08 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property,” or use the standard recognized in today's proposed rule, the ASTM E1527–13 standard.
Entities potentially affected by this action, or who may choose to use the newly referenced ASTM standard to perform all appropriate inquiries, include public and private parties who, as bona fide prospective purchasers, contiguous property owners, or innocent landowners, are purchasing potentially contaminated properties and wish to establish a limitation on CERCLA liability in conjunction with the property purchase. In addition, any entity conducting a site characterization or assessment on a property with a brownfields grant awarded under CERCLA Section 104(k)(2)(B)(ii) may be affected by today's action. This includes state, local and Tribal governments that receive brownfields site assessment grants. A summary of the potentially affected industry sectors (by NAICS codes) is displayed in the table below.
The list of potentially affected entities in the above table may not be exhaustive. Our aim is to provide a guide for readers regarding those entities that EPA is aware potentially could be affected by this action. However, this action may affect other entities not listed in the table. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section entitled “
This document proposes to amend the All Appropriate Inquiries Final Rule at 40 CFR part 312 to reference ASTM International's E1527–13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” and allow for its use to satisfy the requirements for conducting all appropriate inquiries under CERCLA. We have published a direct final rule amending the All Appropriate Inquiries Final Rule to reference the ASTM E1527–13 standard and allow for its use to comply with the final rule in the “Rules and Regulations” section of this
If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We will address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the
EPA is proposing to amend the All Appropriate Inquiries Final Rule that sets federal standards for the conduct of “all appropriate inquiries” at 40 CFR part 312. The All Appropriate Inquiries Final Rule sets forth standards and practices necessary for fulfilling the requirements of CERCLA section 101(35)(B) as required to obtain CERCLA liability protection and for conducting site characterizations and assessments with the use of brownfields grants per CERCLA section 104(k)(2)(B)(ii).
On January 11, 2002, President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act (“the Brownfields Amendments”). In general, the Brownfields Amendments to CERCLA provide funds to assess and cleanup brownfields sites; clarifies existing and establishes new CERCLA liability provisions related to certain types of owners of contaminated properties; and provides funding to establish or enhance State and Tribal cleanup programs. The Brownfields Amendments revised some of the provisions of CERCLA Section 101(35) and limit liability under Section 107 for bona fide prospective purchasers and contiguous property owners, in addition to clarifying the requirements necessary to establish the innocent landowner liability protection under CERCLA. The Brownfields Amendments clarified the requirement that parties purchasing potentially contaminated property undertake “all appropriate inquiries” into prior ownership and use of property prior to purchasing the property to qualify for protection from CERCLA liability.
The Brownfields Amendments required EPA to develop regulations establishing standards and practices for how to conduct all appropriate inquiries. EPA promulgated regulations that set standards and practices for all appropriate inquiries on November 1, 2005 (70 FR 66070). In the final regulation, EPA referenced, and recognized as compliant with the final rule, the ASTM E1527–05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Standard Process.” In December 2008, EPA amended the final rule to recognize another ASTM standard as compliant with the direct final rule, ASTM E2247–08 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property.” Therefore, the final rule (40 CFR part 312) allows for the use of the ASTM E1527–05 standard or the ASTM E2247–08 standard to conduct all appropriate inquiries, in lieu of following requirements included in the final rule.
Since EPA promulgated the All Appropriate Inquiries Final Rule setting standards and practices for the conduct
With today's action, EPA is proposing to amend the all appropriate inquiries final rule to allow for the use of the recently revised ASTM standard, E1527–13, for conducting all appropriate inquiries, as required under CERCLA for establishing the bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections.
With today's action, parties seeking liability relief under CERCLA's landowner liability protections, as well as recipients of brownfields grants for conducting site assessments, will be considered to be in compliance with the requirements for all appropriate inquiries, if such parties comply with the procedures provided in the ASTM E1527–13, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” EPA determined that it is reasonable to make this determination based upon the Agency's finding that the ASTM E1527–13 standard is compliant with the All Appropriate Inquiries Final Rule.
The Agency notes that today's action will not require any party to use the ASTM E1527–13 standard. Any party conducting all appropriate inquiries to comply with CERCLA's bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections may continue to follow the provisions of the All Appropriate Inquiries Final Rule at 40 CFR part 312 or continue to use either the ASTM E1527–05 standard or use the ASTM E2247–08 standard.
In proposing today's action, the Agency is allowing for the use of an additional recognized standard or customary business practice, to comply with a federal regulation. Today's proposed action does not require any person to use the newly revised standard. Today's proposed action merely will allow for the use of the ASTM E1527–13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” for those parties purchasing potentially contaminated properties who want to use the ASTM E1527–13 standard in lieu of the following specific requirements of the all appropriate inquiries final rule.
The Agency notes that there are no legally significant differences between the regulatory requirements and the two ASTM E1527 standards. To facilitate an understanding of the slight differences between the All Appropriate Inquiries Final Rule, the ASTM E1527–05 Phase I Environmental Site Assessment Standard and the revised ASTM E1527–13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” as well as the applicability of the E1527–13 standard for certain types of properties, EPA developed, and placed in the docket for today's proposed action, the document “Summary of Updates and Revisions to ASTM E1527 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process: How E1527–13 Differs from E1527–05.” The document provides a cross walk between the two ASTM E1527 standards.
By proposing today's action, EPA is fulfilling the intent and requirements of the National Technology Transfer and Advancement Act (NTTAA).
EPA's proposed action includes no changes to the All Appropriate Inquiries Rule other than to add an additional reference to the new ASTM E1527–13 standard. EPA is not seeking comments on the standards and practices included in the final rule published at 40 CFR part 312. Also, EPA is not seeking comments on the ASTM E1527–13 standard. EPA's only action with today's proposed rule is recognition of the ASTM E1527–13 standard as compliant with the final rule and, therefore, it is only this action on which the Agency is seeking comment.
EPA is proposing this action because the Agency wants to provide additional flexibility for brownfields grant recipients or other entities that may benefit from the use of the ASTM E1527–13 standard. We believe that today's proposed action will allow for the use of a tailored standard developed by a recognized standards developing organization and that was reviewed by EPA and determined to be equivalent to the Agency's final rule. Today's action does not disallow the use of the previously recognized standards (ASTM E1527–05 or ASTM E2247–08) and it will not alter the requirements of the previously promulgated final rule. In addition, today's proposal potentially will increase flexibility for some parties who may make use of the new standard, without placing any additional burden on those parties who prefer to use either the ASTM E1527–05 standard, the ASTM E2247–08 or follow the requirements of the All Appropriate Inquiries Final Rule when conducting all appropriate inquiries.
For a complete discussion of all of the administrative requirements applicable to this action, see the discussion in the “Statutory and Executive Order Reviews” section to the preamble for the direct final rule that is published in the Rules and Regulations section of this
Under Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 21, 2011), this proposed action is not a “significant regulatory action” and is therefore not subject to OMB review. This action merely amends the All Appropriate Inquiries Final Rule to reference ASTM International's E1527–13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” and allow for its use to satisfy the requirements for conducting all appropriate inquiries under CERCLA. This action does not impose any requirements on any entity, including small entities. Therefore, pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), after considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Administrative practice and procedure, Hazardous substances.
Federal Communications Commission.
Proposed rule.
In this document, the Commission seeks comment on possible actions to enhance the knowledge and use of Speech-to-Speech (STS) relay service by persons with speech disabilities. It has been estimated by consumer advocates that only one percent of prospective users are currently using the service. Thus, amendments to the Commission's rules may be necessary to ensure that persons with speech disabilities have access to relay services that address their unique needs, in furtherance of the objectives of section 225 of the Communications Act of 1934, as amended (the Act) to provide relay services in a manner that is functionally equivalent to conventional telephone voice services.
Comments are due September 16, 2013 and reply comments are due September 30, 2013.
You may submit comments, identified by CG Docket Nos. 08–15 and 03–123, by any of the following methods:
Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission's Electronic Comment Filing System (ECFS), through the Commission's Web site
• Paper filers: Parties who choose to file by paper must file an original and one copy of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW–A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
• Commercial Mail sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street SW., Washington, DC 20554.
In addition, parties must serve one copy of each pleading with the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY–B402, Washington, DC 20554, or via email to
Gregory Hlibok, Consumer and Governmental Affairs Bureau, Disability Rights Office, at (202) 559–5158, or email
This is a summary of the Commission's
Document FCC 13–101 does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104–13. In addition, therefore, it does not contain any proposed information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198,
1. Although the Commission approved STS as a compensable relay service in 2000, demand for this service has remained relatively modest, and its growth has been slow compared with other forms of telecommunications relay services (TRS) notwithstanding the sizeable population of people in the United States who have speech disabilities. The
2. To ensure that individuals with speech disabilities who need STS become aware of its availability and how to access these services, the Commission has been supplementing the STS interstate per minute rate to include additional funds for STS outreach activities for the past six years. However, this supplemental funding has not increased the number of interstate STS minutes of use by any significant amount over the past several years and, since 2009, the TRS Fund administrator has suggested in each of its annual rate filings that the Commission may wish to revisit this additional funding to determine whether there is a more effective way to inform consumers with speech disabilities about the availability of this service.
3. The Commission would like to learn more about the reasons that STS
4. The Commission tentatively concludes that centralizing STS outreach efforts supported by the Fund in a single, coordinated entity can result in more effectively reaching and educating a greater portion of the population of Americans who could benefit from this service, and seeks comment on this tentative conclusion. The Commission believes that the section 225 of the Act directive for the Commission to prescribe regulations that ensure relay services are “available . . . in the most efficient manner” makes it appropriate to take new steps to better educate the public about the purpose and functions of STS and provides the Commission with sufficient authority to direct that a national STS outreach effort be funded for this purpose from TRS contributions as a necessary cost caused by TRS. The Commission asks commenters whether they agree with this assessment. The Commission further asks commenters whether, given that the Commission has resolved to establish the Internet-based TRS National Outreach Program (iTRS–NOP) for Internet protocol relay service (IP Relay) and video relay service (VRS), the Commission should bundle national STS outreach efforts into this national outreach program. What are the costs and benefits of combining these efforts? Are there efficiencies to be gained in contracting with a single entity or a group of single entities for all types of TRS outreach? Or are there characteristics of STS or the population served by this service that necessitate a separate outreach effort? If the latter, the Commission asks commenters to describe these characteristics, as well as any criteria needed for the selection of a national STS outreach coordinator that should be different from the criteria used to select a national coordinator of VRS and IP Relay outreach. Additionally, if the Commission or the Interstate TRS Fund administrator contracts with a single entity for the handling of STS calls, and it decides on a national outreach effort that is separate from the iTRS–NOP, the Commission seek comments on whether the entity selected to provide STS also should be eligible to become the national STS outreach coordinator, or whether the outreach coordinator should be independent of any provider of STS.
5. The Commission also seeks comment on the criteria that should be used to select a nationwide outreach program coordinator, as well as the outreach activities for which such coordinator should be responsible. With respect to the latter, the Commission seeks feedback on whether the coordinator should be required to engage in the following activities, as well as any other activities not identified below:
• Consulting with consumer groups, STS providers, the TRS Fund administrator, and other STS stakeholders;
• Establishing clear and concise messaging about the purposes, functions, and benefits of STS;
• Contacting and providing direct outreach and education to relevant medical, disability and senior citizen organizations, associations and medical professionals whose constituencies, members, and patients are likely to benefit from STS;
• Determining media outlets and other appropriate avenues for providing information about STS to identified medical, disability, and senior citizen organizations, associations, and professionals, the general public and potential new-to-category subscribers;
• Preparing for and arranging for publication, press releases, announcements, digital postcards, newsletters, and media spots about STS that are directed to identified medical, disability, and senior citizen organizations, associations, and professionals, as well as retailers and other businesses, including trade associations;
• Creating electronic and media tool kits that include samples of the materials listed in the previous bullet, and which may also include templates, all of which will be for the purpose of facilitating the preparation and distribution of such materials by consumer and industry associations, governmental entities, and other STS stakeholders;
• Providing materials to local, state, and national governmental agencies on the purposes, functions, and benefits of STS; and
• Exploring opportunities to partner and collaborate with other entities to disseminate information about STS.
1. The Commission proposes that an entity selected by the Commission or the Interstate TRS Fund administrator to coordinate such outreach be required to work with and submit periodic reports to the Chief of the Consumer and Governmental Affairs Bureau and to the Managing Director, which reports measure and describe the effectiveness of the entity's outreach efforts. The Commission seeks comment on these proposals. The Commission also seeks comment on whether there should be specified levels of outreach activities that the STS national outreach coordinator should be required to meet, and how and by whom these levels should be set and evaluated. If a national outreach program is established, the Commission proposes that the additional amount currently added to the STS per minute rate for outreach is discontinued from future rates, and seeks comment on this proposal. If the Commission chooses not to continue reimbursing the cost of outreach activities on a per minute basis to providers, it seeks feedback on whether a specified amount should be set aside from the Fund on an annual basis for nationwide outreach activities, what this amount should be, and how it should be determined. Finally, should the cost of providing STS as well as STS outreach be allocated between the Interstate TRS Fund and the state program funds, and, if so, how?
2. In recent years, the Commission has undertaken significant efforts to ensure that its Internet-based TRS programs are structurally sound and are free from waste, fraud and abuse. Of particular concern to the Commission is making sure that only those individuals who are truly eligible for different forms of TRS are allowed to use these services. Accordingly, the Commission seeks comment on how to establish rules to clearly define and oversee the eligibility, registration, and verification of STS users. As an initial matter, the Commission notes that in the
3. The Commission further asks whether it should adopt a centralized process by which the identities of STS users are verified, as the Commission has done in the
4. In the
5. The Commission also seeks comment on whether STS user profiles should be immediately available to an STS CA each time an STS user places a call, to allow the provider to provide a better and more “consistent STS relay experience” for users. Additionally, when an STS user is silent and does not say “good-bye,” should the CA not terminate the call until at least 60 seconds has passed so that the call will not be disconnected prematurely? Should the FCC establish an STS Advisory Council for the purpose of formulating an STS outreach plan? Should the Commission establish a mandatory minimum standard for training of CAs who handle STS calls or any other mandatory minimum standards that are specific to STS? Finally, the Commission seeks information about any technological advances in end user equipment since the submissions of the petitions in this proceeding that may bear on the provision of this service.
6. To what extent should providers be required to allow STS users to create caller profiles? Such profiles generally allow users to pre-submit their preferences for call handling, including their contact information (for emergencies), language preferences, and speed dial numbers, which may speed up the time needed for STS call set-up. If providers should be required to offer caller profiles, what should users be allowed to include in these profiles? What are the costs and benefits of mandating the availability of profiles?
7. Finally, are there other enhancements to STS that the Commission should know about? For example, one provider recently implemented a national wireless short code to make it easier to place or receive STS calls. The Commission seeks comment on the benefits of using such a code nationwide.
1. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 601
1. Speech-to-speech (STS) relay service is a form of telecommunications relay service (TRS) that utilizes specially trained communications assistants (CAs) who understand the speech patterns of persons with speech disabilities and can repeat the words spoken by such individuals to the other parties to a relayed call. In the
1. The legal basis for any action that may be taken pursuant to the
1. 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. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
2. The Commission believes that the entities that may be affected by the proposed rules are STS providers. Neither the Commission nor the SBA has developed a definition of “small entity” specifically directed toward STS providers. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers, which consists of all such firms having 1,500 or fewer employees. According to Census Bureau data for 2007, there were 31,996 firms in the Wired Telecommunications Carrier category which operated for the entire year. Of this total, 30,178 firms had employment of 99 or fewer employees, and an additional 1,818 firms had employment of 100 employees or more. Thus, under this size standard, the vast majority of firms can be considered small. (The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is “Firms with 100 employees or more.”) Five providers currently receive compensation from the Interstate TRS Fund for providing STS: AT&T Corporation; Hamilton Relay, Inc.; Kansas Relay Service, Inc.; Purple Communications, Inc.; and Sprint Nextel Corporation. The Commission notes that only one of the STS providers that would be affected by the proposed rules is deemed to be a small entity under the SBA's small business size standard.
1. Certain rule changes, if adopted by the Commission, would modify rules or add requirements governing reporting, recordkeeping, and other compliance obligations. If the Commission were to adopt consumer eligibility, registration, and verification requirements to ensure that only individuals with speech disabilities who need the service can use it, STS providers, including small entities, would be required to collect certain information from consumers and to maintain such information.
1. The RFA requires an agency to describe any significant alternatives, specific to small entities, that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
2. In general, alternatives to proposed rules are discussed only when those rules pose a significant adverse economic impact on small entities. In this context, however, two of the proposed rules would confer benefits as explained below.
3. If the Commission were to contract with a single outreach coordinator to educate potential users about the availability of STS, STS providers, including small entities, would benefit, because they would be relieved of the obligation to conduct outreach.
4. If the Commission were to adopt consumer eligibility, registration and verification requirements to ensure that only individuals with speech disabilities who need the service can use it, STS providers, including small entities, would be required to collect certain information from consumers and to maintain such information. The Commission is not proposing alternatives for small entities because these requirements may be needed to limit waste, fraud and abuse, and an ineligible user can potentially defraud the TRS Fund by obtaining service from large and small entities alike. Therefore, if the Commission were to adopt registration, certification and verification procedures, the same requirements would need to apply to users of small entities as well as large entities.
5. If the Commission were to find certain mandatory minimum TRS standards to be inapplicable to STS, all STS providers, including small entities, would benefit because they would not need to comply with those mandatory minimum standards.
1. None.
2. Pursuant to sections 1, 4(i), (j), and (o), 225, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), (j), and (o), 225, and 403, the Further Notice of Proposed Rulemaking is hereby adopted.
3. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.
Surface Transportation Board, DOT.
Notice of public hearing.
The Surface Transportation Board (the Board) will hold a public hearing to explore further the issues surrounding the petition by The National Industrial Transportation League (NITL) and the related comments filed in this proceeding.
The hearing will be held on October 22, 2013, beginning at 9:30 a.m., in the Hearing Room at the Board's headquarters located at 395 E Street SW., Washington, DC. The hearing will be open for public observation. Any person wishing to speak at the hearing shall file with the Board a notice of intent to participate (identifying the party, the proposed speaker, and the time requested), and a summary of the intended testimony (not to exceed three pages), no later than September 23, 2013. The notices of intent to participate and the summaries of testimony are not required to be served on the parties of record in this proceeding; they will be posted to the Board's Web site when they are filed.
All filings may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the “E–FILING” link on the Board's Web site at
Copies of written submissions will be posted to the Board's Web site and will be available for viewing and self-copying in the Board's Public Docket Room, Suite 131. Copies of the submissions will also be available (for a fee) by contacting the Board's Chief Records Officer at (202) 245–0238 or 395 E Street SW., Washington, DC 20423–0001.
Valerie Quinn at (202) 245–0382. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877–8339.
By decision served on July 25, 2012, the Board began a proceeding to consider a proposal submitted by NITL to modify the Board's standards for mandatory competitive switching. Under its proposal, certain captive shippers located in terminal areas would be granted access to a competing railroad if there is a working interchange within a reasonable distance (30 miles under NITL's proposal). In its decision, the Board sought empirical information about the impact of the proposal if it were to be adopted. The Board received numerous comments in response to its decision. In order to explore further NITL's proposal and the issues raised in the submitted comments, the Board will hold a public hearing.
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
1. A public hearing in this proceeding will be held on October 22, 2013, at 9:30 a.m., in the Board's Hearing Room, at 395 E Street SW., Washington, DC, as described above.
2. By September 23, 2013, any person wishing to speak at the hearing shall file with the Board a notice of intent to participate (identifying the party, the proposed speaker, and the time requested), and a summary of the intended testimony (not to exceed three pages). The notices of intent to participate and the summaries of testimony are not required to be served on the parties of record in this proceeding; they will be posted to the Board's Web site when they are filed.
3. This decision is effective on its service date.
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement; Correction.
A Notice of Intent (NOI) was first published for this proposal in the
All comments received during the previous scoping periods in 2010–2011 will be considered in the preparation of this EIS. The draft environmental impact statement is expected to be published in December 2013 and the final environmental impact statement is expected to be published July 2014.
Send written comments to: Tongass National Forest, c/o Tim Piazza, 648 Mission Street, Ketchikan, AK 99901, Attn: Wrangell Island Project EIS. Comments may be hand-delivered to: Wrangell Ranger District, 525 Bennett Drive, Wrangell, AK 99929, Attn: Wrangell Island Project EIS. Comments may be submitted via facsimile to: 907–228–6215, Attn: Wrangell Island Project EIS. Comments may also be sent electronically to: `Comment on Project' link under `Get Connected' via the Wrangell Island Project EIS Web page at
Tim Piazza, Team Leader, Federal Building, Ketchikan, AK, 907–228–6318 or Austin O'Brien, Wrangell Ranger District, Wrangell, AK, 907–874–7575. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The United States Department of Agriculture published a final rule in the
The purpose and need for the Wrangell Island Project has been modified. The purpose for proposing this project is to contribute to a long-term supply of timber for the timber industry on Wrangell Island and on the Tongass National Forest in general, in a manner that is consistent with the multiple-use goals and objectives of the Tongass Land and Resource Management Plan (Forest Plan). This would contribute to the timber supply that would help sustain the current timber industry while transitioning to a sustainable forest industry based on young-growth management.
The need is to provide an economic timber supply that meets market demand annually and for the planning cycle. An additional need identified by this NOI is to develop and manage roads in the project area to support resource management activities.
The Proposed Action for the Wrangell Island Project has been modified from proposing timber harvest on approximately 6,500 acres, or 80 MMBF of volume, to approximately 4,500 acres, or 60 MMBF of volume, to reflect better timber volume information gathered from additional field work. The proposed action for the Wrangell Island Project is to harvest timber using a variety of silvicultural treatments on approximately 4,500 acres of suitable and available forested lands using various sizes of timber sales offered over multiple years. Stewardship contracts may be used. An estimated 60 million board feet of sawtimber and utility wood would be made available to industry for harvest. Approximately 35 miles of National Forest System (NFS) and temporary roads would be constructed and about 7 miles of existing NFS roads would be reconstructed. Existing log transfer facilities would be used as needed. Harvest would include helicopter, ground-based, and cable yarding systems using even-aged and uneven-aged harvest treatments to achieve stand objectives. All proposed activities would meet the standards and guidelines of the Forest Plan.
A range of reasonable alternatives, from no action to maximizing harvest will be considered. Alternatives may include Forest Plan amendments to increase the size and connectivity of medium old-growth habitat reserves (OGRs), adjust the boundaries of small and medium OGRs, change land-use designations (LUDs), and modify Visual Priority Travel Routes (VPRs) and Use Areas.
The Forest Service is the lead agency. The U.S. Fish and Wildlife Service, the Alaska Department of Natural Resources, and the City and Borough of Wrangell have agreed to participate as cooperating agencies.
The responsible official for the decision on this project is the Forest Supervisor of the Tongass National Forest.
The responsible official will decide whether to authorize timber harvest, associated road construction, and road management on Wrangell Island.
Preliminary significant issues identified for this project include 1) timber supply and timber sale economics, 2) old-growth reserve designs, and 3) road access and managment.
U.S. Environmental Protection Agency: Spill Prevention Control and Countermeasure Plan (SPCC); Facility Response Plan (FRP) required under the Clean Water Act (CWA), as revised by the Oil Pollution Act, or as required under 40 CFR part 112.
State of Alaska, Department of Environmental Conservation: Alaska Pollutant Discharge Elimination System (APDES) for point source and stormwater discharges; Certification of Compliance with Alaska Water Quality Standards (401 Certification); Storm water discharge permit/National Pollutant Discharge Elimination System review under Section 402 of the Clean Water Act (402); Solid Waste Disposal Permit.
State of Alaska, Department of Natural Resources (DNR): Authorization for occupancy and use of tidelands and submerged lands.
This notice of intent reinitiates the scoping process, which guides the development of the environmental impact statement. It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions. Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. However, comments submitted anonymously will be accepted and considered.
Individuals and entities as defined in 36 CFR 218.2 who have submitted timely, specific written comments regarding this proposed action during this scoping period or any designated opportunity for written public comment may file an objection. Objections will only be accepted from those who have previously submitted timely, specific written comments regarding the proposed project during scoping or other designated opportunity for public comment in accordance with 36 CFR 218.5(a).
Maps and detailed information on the project are available on the Wrangell Island Project EIS Web page located at: (
Forest Service, USDA.
Notice of Intent to Prepare a Supplemental Environmental Impact Statement.
The Ely Ranger District of the Humboldt-Toiyabe National Forest will prepare a Supplemental Environmental Impact Statement (SETS) on a proposal to authorize continued livestock grazing on National Forest System (NFS) lands within the boundaries administered by the Ely Ranger District. The Project Area is located in White Pine, Lincoln, and Nye counties, Nevada.
A Final Environmental Impact Statement and Record of Decision were distributed in September 2011. While considering an appeal on the Record of Decision, it became apparent that clarification of some elements in the selected alternative, Alternative 1 (Proposed Action), was warranted. On January 6, 2012, the Record of Decision was withdrawn. This SETS is being prepared to clarify several elements of Alternative 1 (Proposed Action) and to provide additional information on the development of stocking rates on the allotments in the project area.
The Draft SEIS is expected to be released for public review and comment in August of 2013 and the Final SEIS is expected to be released in November of 2013.
Send written comments to: Vernon Keller, Environmental Coordinator, Humboldt-Toiyabe National Forest, 1200 Franklin Way, Sparks, NV 89431.
For further information, mail correspondence to or contact Vernon Keller, NEPA Coordinator, Humboldt-Toiyabe National Forest, 1200 Franklin Way, Sparks, NV 89431. The telephone number is: 775–355–5356. Email address is:
Initiation of the Ely Westside Rangeland Project began in 2006 with the original Notice of Intent published in the
One appeal was filed against the 2011 Record of Decision. On January 6, 2012, the Forest Supervisor withdrew the Record of Decision, finding that additional clarification in the Final Environmental Impact Statement was desirable.
As stated in Final EIS released in 2011, this action is being considered at this time because current and prospective permittees have expressed a desire to graze or continue grazing on allotments in the project area and the Rescissions Act of 1995 directs the Forest Service to establish and adhere to a schedule to complete environmental analyses and decisions on all allotments. The purpose of the proposed federal action is to authorize livestock grazing under terms and conditions designed to sustain and improve the health of the land and protect essential ecosystem functions and values. The need for the proposed federal action is to allow these allotments to continue to contribute to the overall desired Animal Use Month (AUM) production for the Humboldt National Forest while improving the gap between existing and desired rangeland conditions.
As outlined in the Final EIS released in 2011, the Proposed Action would authorize domestic livestock grazing on the nine of the twelve allotments in the Project Area. Under this alternative, proper use criteria (forage utilization and streambank alteration) would be based on the current ecological conditions (functioning, functioning-at-risk, or non-functioning) within each allotment.
The ecological condition of the allotments would continue to be evaluated through a long-term monitoring process. If long-term monitoring indicates the ecological condition of the allotment has changed, then the set of proper use criteria associated with that ecological condition would be applied to the allotment. The Proposed Action includes a non-significant Forest Plan amendment to open the Troy Mountain Allotment to livestock grazing.
In addition to the Proposed Action, two additional alternatives have been identified for analysis in the SETS:
1. Current Management Alternative: Continue current grazing management.
2. No Grazing Alternative: Eliminate grazing on all the allotments in the project area immediately.
The responsible official is: William Dunkelberger, Forest Supervisor, Humboldt-Toiyabe National Forest, 1200 Franklin Way, Sparks, NV 89431.
The Responsible Official will decide whether or not to incorporate the supplemental information and analysis into the FEIS. The Responsible Official will also decide whether to authorize grazing (and if so, under what terms and conditions) on the allotments in the Ely Westside Rangeland Project area.
The objection process described in 36 CFR part 218, subparts A and B will be used as this project goes forward, instead of the appeal process described in 36 CFR part 215. After the comments on the Draft Supplement are considered, a Final Supplemental EIS and a Draft Record of Decision will be prepared and circulated. Those who commented during any designated opportunity for public comment on this project will have eligibility to file an objection on the draft Record of Decision.
Scoping was conducted for the original EIS. The scoping period for this EIS was formally initiated on November 27, 2006 when the original notice of intent for this project was published in the
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered; however, anonymous comments will not provide the Agency with the ability to provide the respondent with subsequent environmental documents.
Notice to reopen comment period to request comments on the script for interviews of Approved Insurance Providers, and on the survey instruments for insurance agents and insured producers.
The Risk Management Agency (RMA) is issuing this notice to advise the public that we are reopening the comment period to request comments on the script for interviews of Approved Insurance Providers (AIPs), and on the survey instruments for insurance agents and insured producers, for a new information collection “Federal Crop Insurance Program Delivery Cost Survey and Interviews” that is currently under review by the Office of Management and Budget (OMB). The survey instruments will also serve as the scripts for the interviews of insurance agents and insured producers, respectively.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), RMA has previously sought public comment on an information collection request related to a study of Federal crop insurance program delivery costs. As part of the study RMA plans to conduct interviews with AIPs, insurance agents, and insured producers, and conduct surveys of insurance agents and insured producers. RMA will use the information collected from the interviews, surveys, and other information to construct estimates of the reasonable cost of delivery for the Federal crop insurance program.
Copies of the AIP interview scripts and survey questions may be obtained by contacting Kent Lanclos by phone at (202) 205–3933, or by email
Comments on this notice must be received by September 16, 2013 to be assured of consideration.
FCIC prefers that comments be submitted electronically through the Federal eRulemaking Portal. You may submit comments, identified by Docket ID No. RMA–2013–0001, by any of the following methods:
•
•
All comments received, including those received by mail, will be posted without change to
Kent Lanclos, Office of Compliance, U.S. Department of Agriculture Risk Management Agency, 1400 Independence Ave. SW., Mail Stop 0801, Washington, DC 20250–0801, (202) 205–3933.
The purpose of the AIP interviews is to better understand the activities performed and types of costs incurred by the AIPs to deliver Federal crop insurance to producers, particularly those activities and costs that are distinct from those of insurance agents. Information collected from the interviews with AIPs include general companies' background, competitive strategies, and business operations model in selling and servicing the Federal crop insurance, agent compensation, expense structure, and financial reporting to RMA. Information obtained from the interviews with AIPs will help RMA understand the expenses AIPs incur in delivering the Federal crop insurance, their general practices in determining agent compensation, and compiling financials reported to RMA.
The purpose of the survey of the insurance agents is to collect relevant cost data incurred by the insurance agents in selling and servicing the Federal crop insurance policies. General background information on the surveyed insurance agents, e.g. geographical region, types of crop insurance sold, and number of crop insurance policies sold, will also be collected. The survey will serve as an instrument collecting information on the levels of effort required to sell and service crop insurance policies as well as levels of effort necessary to sell and service other lines. Specifically, the survey will collect data on agency geographical area (location of policy holders), insurance plan type (initial application vs. renewal policy), policy size, policy management and support related activities, nature of interaction with a policy holder, types of crops covered by Federal crop insurance, and other factors. In addition, the survey will obtain information on the time agents spend on the tasks related to selling and servicing a policy and agents' essential out of pocket costs for support staff, travel, overhead, and other out-of-pocket expenses. This information will be used to evaluate the factors measurably contributing to the costs of Federal crop insurance delivery.
A parallel survey of the insured farmers to whom the sampled insurance agents sell crop insurance will be conducted to determine the level of service (e.g. number of insurance agent visits, educational services, and other services) that is necessary for the farmers to make an informed decision. Several types of data will be collected. These will include general background of the producers and of their insurance agents. It will also include information about the interaction between producers and insurance agents. Data gathered from the survey of insured producers will serve as a consistency check to information gathered from the survey of insurance agents and will not be directly used to estimate the cost of delivery incurred by the insurance agents but will provide valuable information on the levels of services producers expect from agents.
As noted previously, the survey instruments will also serve as the scripts for the interviews of insurance agents and insured producers, respectively. The purpose of the interviews with insurance agents and insured producers is to obtain additional context and understanding for the responses provided to the surveys by agents and producers, respectively. This will assist RMA with interpreting the survey responses and results.
RMA will use the information collected from the interviews and surveys in conjunction with the financials reported by AIPs to construct estimates of the cost of delivery for the Federal crop insurance program. This information could also be used in RMA's program planning process before implementing any regulatory and programmatic changes in the future. Data collected from the interviews and surveys can also provide RMA some useful information on the Federal crop insurance program from the perspectives of different stakeholders (AIPs, insurance agents, and insured producers) and aid RMA in its program management and program planning.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Bureau of the Census, Department of Commerce.
Notice of public meeting.
The Bureau of the Census (U.S. Census Bureau) is giving notice of a meeting of the Census Scientific Advisory Committee (C–SAC). The C–SAC will meet in a plenary session from September 19–20, 2013. The Committee will address policy, research, and technical issues relating to a full range of Census Bureau programs and activities, including communications, decennial, demographic, economic, field operations, geographic, information technology, and statistics. Last minute changes to the agenda are possible, which could prevent giving advance public notice of schedule adjustments.
September 19 and 20, 2013. On September 19, the Census Scientific Advisory Committee meeting will begin at approximately 8:45 a.m. and adjourn at approximately 4:35 p.m. On September 20, the meeting will begin at approximately 8:45 a.m. and adjourn at approximately 12:45 p.m.
The meeting will be held at the U.S. Census Bureau Conference Center, 4600 Silver Hill Road, Suitland, Maryland 20746.
Jeri Green, Committee Liaison Officer, Department of Commerce, U.S. Census Bureau, Room 8H182, 4600 Silver Hill Road, Washington, DC 20233, telephone 301–763–6590. For TTY callers, please use the Federal Relay Service 1–800–877–8339.
Members of the C–SAC are appointed by the Director, U.S. Census Bureau. The Committee provides scientific and technical expertise, as appropriate, to address Census Bureau program needs and objectives. The Committee has been established in accordance with the Federal Advisory Committee Act (Title 5, United States Code, Appendix 2, Section 10).
The meeting is open to the public, and a brief period is set aside for public comments and questions on September 20, 2013. Persons with extensive questions or statements must submit them in writing at least three days before the meeting to the Committee Liaison Officer named above. If you plan to attend the meeting, please register by Thursday, September 5,
This meeting is physically accessible to people with disabilities. Requests for sign-language interpretation or other auxiliary aids should also be directed to the Committee Liaison Officer as soon as known, and preferably two weeks prior to the meeting.
Due to increased security and for access to the meeting, please call 301–763–9906 upon arrival at the Census Bureau on the day of the meeting. A photo ID must be presented in order to receive your visitor's badge. Visitors are not allowed beyond the first floor.
Topics to be discussed include the following items:
• Reassessment of the 2020 Census.
• American Community Survey Questionnaire Review.
• Cyberinfrastructure and Adaptive Design Working Groups.
• Data Dissemination Transformation.
• National Address Database.
• Administrative Records.
• Impact of DOMA Ruling on Census Data Collection.
• 2013 Census Test.
International Trade Administration, Department of Commerce.
Notice.
The United States Department of Commerce, International Trade Administration.
The U.S. Department of Commerce's International Trade Administration (ITA) is coordinating with the U.S. Department of Energy—the lead U.S. agency for the International Framework for Nuclear Energy Cooperation (IFNEC)—to organize participation by representatives of U.S. industry in the IFNEC Finance, Regulatory, and Energy Planning Authority Workshop, to be held on October 22, 2013 in Abu Dhabi, United Arab Emirates (UAE), prior to the IFNEC Steering Group and Executive Committee meetings. IFNEC is an international forum consisting of 63 countries ranging from those with emerging and existing nuclear power programs to those in the process of phasing out nuclear power programs. This workshop is designed to facilitate a more focused dialogue directed at understanding the challenges that financing presents for countries that are beginning to develop nuclear power projects, while maintaining respect for independence in sovereign decision-making. ITA is seeking the participation of a minimum of 15 U.S. companies or trade associations in the civil nuclear sector in the IFNEC Workshop. The IFNEC Workshop's scenario-based interactive dialogue will provide an opportunity for member country policymakers and other participants to benefit from the viewpoints of the U.S. civil nuclear industry and for U.S. industry to be able to learn more about the policies, regulatory landscape, and energy planning of the participating countries of IFNEC.
The IFNEC Workshop is an event to bring together IFNEC member country representatives and key stakeholders involved in the financing of nuclear power projects, including national energy planning authorities, nuclear regulatory institutions, energy market regulators, financial institutions, utilities and others, as well as U.S. nuclear industry representatives. The workshop will focus on enhancing IFNEC's understanding of the role and interests of, and interactions between, these key stakeholders in the financing of nuclear power projects in emerging market countries.
IFNEC is led by an Executive Committee, which is made up of ministerial-level officials or their designees from Participant Countries and Organizations that meet annually to set the agenda for the Forum for the coming year. Observer Countries and Organizations are welcome and encouraged to attend. The IFNEC Executive Committee accepted the Final Summary Report of the 2012 London IFNEC Finance Workshop at its October 2012 meeting in Morocco, and proposed that IFNEC organize a follow-on workshop in 2013. The IFNEC Finance Workshop Summary Report is available at
Participants in this IFNEC Workshop will hear the unique perspectives of the financing community, project proponents, regulatory bodies, national energy planning authorities and other stakeholders regarding the challenges and opportunities related to nuclear power project financing in an emerging market country. In particular, this IFNEC Workshop will follow-up on the key findings from the London IFNEC Finance Workshop. The IFNEC Workshop will focus on the critical, but not well understood, relationships between financing and the independence and experience base of the nuclear regulatory authorities, with responsibilities in not only nuclear safety, but security and safeguards as well. Another focal point will be the important roles that electric market regulators, and power purchase agreements, are playing today in the financing of nuclear power projects in emerging market countries. Although taking place over only one day, the workshop will cover as many of these central topics as possible, while still recognizing certain elements may emerge that require further investigation.
The IFNEC Workshop will provide a dynamic forum in which experts representing a broad spectrum of key stakeholders will engage in a moderated exercise to address a hypothetical scenario related to the financing of a nuclear power project in a country with an emerging nuclear power program. Following the scenario exercise, key experts will lead focused, participatory dialogues among groups of IFNEC Workshop attendees to further address specific issues and responses to the scenario-based exercise. The interactions in the breakout groups will help IFNEC Workshop attendees gain a better understanding of how the financing community, project proponents, regulatory bodies, national
• Explore the importance of an effective, independent regulator for securing nuclear power plant financing. The expert panelists will address the question of: “How can the financial community evaluate, as part of its due diligence, the independence and effectiveness of a safety regulator?”
The Characteristics to be explored include:
• Explore the role that electricity market regulation, including sales/rate commitments, plays in the financing of a nuclear project. The expert panelists will address the question of: “How can electric market regulation support the financing of a nuclear power project?”
IFNEC Workshop participants will explore:
* During the IFNEC Workshop the lunch, reception and dinner will be provided by the host country.
In organizing U.S. civil nuclear industry participation in the upcoming IFNEC Workshop, the ITA intends to give IFNEC Participant Countries the opportunity to hear the views and perspectives of the U.S. industry in this sector and for industry representatives to have the opportunity to showcase their knowledge and experience with nuclear project financing to the IFNEC Participant Countries. Participants in this workshop will benefit from the expertise that the U.S. industry has amassed in this sector and may potentially learn how to better partner with U.S. industry on nuclear power projects in the future, thus leading to greater U.S. exports. U.S. participants will also have the opportunity to network, build relationships in the global civil nuclear sector and learn more about current and future project opportunities.
All parties interested in participating in the IFNEC Workshop must complete and submit an application package for consideration by the ITA. All applicants will be evaluated based on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. A minimum of 15 applicants will be selected to participate in the IFNEC Workshop from the applicant pool of U.S. companies and trade associations. Only companies or trade associations representing companies that are already doing business internationally may apply. Applications will be reviewed on a rolling basis in the order that they are received.
After a company or trade association has been selected to participate in the IFNEC Workshop, the IFNEC Steering Group Chair will send out a formal invitation. There is NO participation fee associated with attending the IFNEC Workshop. However, participants will be responsible for personal costs associated with lodging, most meals, incidentals, local ground transportation, air transportation from the United States to the event location, and return to the United States. The Abu Dhabi's Regulation and Supervision Bureau host will provide for the lunch, reception and dinner.
Applicants must submit to ITA's staff (see Contact) a completed mission application signed by a company official, together with supplemental application materials addressing how he/she satisfies the selection criteria listed below by August 23, 2013. If the ITA receives an incomplete application, then it may be rejected or ITA may request additional information.
In question 11 of the trade event application, each applicant is asked to certify that the products and services it intends to export through the trade event are either manufactured or produced in the United States, or, if not, are marketed under the name of a U.S. firm and have U.S. content representing at least fifty-one percent of the value of the finished good or service. If applicants find this certification difficult to make in the context of this event, or are unsure of whether they can certify to this, we encourage them to indicate on the application form why the applicant's company should be considered for participation in the event, what experience or expertise the company can contribute to the event discussions, and how the company's goals and objectives are consistent with the purpose of the event.
In the case of a trade association, the applicant must certify that as part of its activities in this event, it will represent the interests of members meeting the criteria discussed in the previous paragraph or provide an explanation of the type described in the previous paragraph.
Selection will be based on the following criteria:
• The applicant's experience producing technology or providing services to civil nuclear energy projects or, in the case of a trade association, the experience of its members;
• The extent and depth of the applicant's activities in the global civil nuclear energy industry;
• The applicant's company or, in the case of a trade association, the association's members' potential for, or interest in, doing business with IFNEC member countries;
• The applicant's ability to identify and discuss policy issues relevant to U.S. competitiveness in the nuclear energy sector, with special emphasis on financing; and
• Consistency of the applicant's company or trade association's goals and objectives with the stated scope of the IFNEC Workshop.
Referrals from political organizations and any documents containing references to partisan political activities (including political contributions) will be removed from an applicant's submission and not considered during the selection process.
Selected applicants will be asked to sign a Participation Agreement with the Department of Commerce which includes the following mandatory certifications (applicants that cannot attest to these certifications cannot participate):
Certify that the products and services that it intends to highlight as examples at the workshop would be in compliance with U.S. export controls and regulations;
• Certify that it has identified to the Department of Commerce for its evaluation any business pending before the Department that may present the appearance of a conflict of interest;
• Certify that it has identified any pending litigation (including any administrative proceedings) to which it is a party that involves the Department of Commerce; and
• Certify that it and its affiliates (1) have not and will not engage in the bribery of foreign officials in connection with a company's/participant's involvement in this mission, and (2) maintain and enforce a policy that prohibits the bribery of foreign officials.
Recruitment for participation in the IFNEC Workshop as a representative of the U.S. nuclear industry will be conducted in an open and public manner, including publication in the
Michelle Scott, Senior Policy Advisor, MAS-Office of Energy and Environmental Industries, International Trade Administration, Department of Commerce, Phone: (202)–482–3851, Email:
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice and request for applications.
ONMS is seeking applications for vacant seats for 8 of its 13 national marine sanctuary advisory councils and for the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council (advisory councils). Vacant seats, including positions (i.e., primary member and alternate), for each of the advisory councils are listed in this notice under Supplementary Information. Applicants are chosen based upon their particular expertise and experience in relation to the seat for which they are applying; community and professional affiliations; philosophy regarding the protection and management of marine resources; and possibly the length of residence in the area affected by the sanctuary. Applicants who are chosen as primary members or alternates should expect to serve two- or three year terms, pursuant to the charter of the specific national marine sanctuary advisory council or the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council.
Applications are due by September 30, 2013.
Application kits are specific to each advisory council. As such, application kits must be obtained from and returned to the council-specific addresses noted below.
• Cordell Bank National Marine Sanctuary Advisory Council: Kaitlin Graiff, Cordell Bank National Marine Sanctuary, P.O. Box 159, Olema, CA 94950; (415) 663–0314 extension 105; email
• Florida Keys National Marine Sanctuary Advisory Council: Hannah Weddington, Florida Keys National Marine Sanctuary, 33 East Quay Rd., Key West, FL 33040; (305) 809–4700 extension 241; email
• Gulf of the Farallones National Marine Sanctuary Advisory Council: Leslie Abramson, Gulf of the Farallones National Marine Sanctuary, 991 Marine Drive, The Presidio, San Francisco, CA 94129; 415–561–6622 extension 306; email
• Hawaiian Islands Humpback Whale National Marine Sanctuary Advisory Council: Malia Chow, 6600 Kalaniana'ole Hwy, Suite 301, Honolulu, HI 96825; (808) 397–2651 extension 251; email
• Monitor National Marine Sanctuary Advisory Council: Shannon Ricles, Monitor National Marine Sanctuary, 100 Museum Drive, Newport News, VA 23606; (757) 591–7328; email S
• National Marine Sanctuary of American Samoa Advisory Council: Joseph Paulin, National Marine Sanctuary of American Samoa, Tauese P.F. Sunia Ocean Center, Utulei, American Samoa; (684) 633–6500 extension 226; email
• Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council: Katie Gentry, Office of National Marine Sanctuaries, Pacific Island Region, 6600 Kalaniana'ole Hwy, #300, Honolulu, HI 96825; (808) 694–3936; email
• Olympic Coast National Marine Sanctuary Advisory Council: Karlyn Langjahr, Olympic Coast National Marine Sanctuary, 115 East Railroad Ave., Suite 101, Port Angeles, WA 98362; (360) 457–6622 extension 31; email
• Stellwagen Bank National Marine Sanctuary Advisory Council: Elizabeth Stokes, Stellwagen Bank National Marine Sanctuary, 175 Edward Foster Road, Scituate, MA 02066; (781) 545–
For further information on a particular national marine sanctuary advisory council, please contact the individual identified in the Addresses section of this notice.
The following is a list of the vacant seats, including positions (i.e., primary member or alternate), for each of the national marine sanctuary advisory councils currently seeking applications for primary members and alternates:
Cordell Bank National Marine Sanctuary Advisory Council: Fishing (primary member); Fishing (alternate); and Education (alternate).
Florida Keys National Marine Sanctuary Advisory Council: Boating Industry (primary member); Citizen at Large—Upper Keys (primary member); Citizen at Large—Upper Keys (alternate); Diving—Upper Keys (primary member); Diving—Upper Keys (alternate); Fishing—Charter Sports Fishing (primary member); Fishing—Charter Sports Fishing (alternate); Fishing—Recreational (primary member); Fishing—Recreational (alternate); Research and Monitoring (primary member); Research and Monitoring (alternate); Tourism—Lower Keys (primary member); and Tourism—Lower Keys (alternate).
Gulf of the Farallones National Marine Sanctuary Advisory Council: Education (primary member); and Education (alternate).
Hawaiian Islands Humpback Whale National Marine Sanctuary Advisory Council: Commercial Shipping (primary member); Commercial Shipping (alternate); Whale Watching (primary member); Whale Watching (alternate); Ocean Recreation (primary member); Ocean Recreation (alternate); Business/Commerce (primary member); Business/Commerce (alternate); Citizen-at-Large (primary member); Citizen-at-Large (alternate); Conservation (primary member); Conservation (alternate); Tourism (primary member); Tourism (alternate); Lāna`i Island (primary member); Lāna`i Island (alternate); Moloka`i Island (primary member); Moloka`i Island (alternate); Youth (primary member); Youth (alternate); Native Hawaiian (alternate); Research (alternate); Honolulu County (alternate); and Hawai'i County (alternate).
Monitor National Marine Sanctuary Advisory Council: Recreational Diving (primary member); Heritage Tourism (primary member); and Citizen-At-Large (primary member).
National Marine Sanctuary of American Samoa Advisory Council: Community-At-Large: Tutuila East Area (primary member); Community-At-Large: Manu'a Area (primary member); Education (primary member); Commercial Fishing (primary member); and Ocean Recreation/Ocean-Centered Eco-Tourim (primary member).
Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council: Native Hawaiian, Elder (alternate); and Native Hawaiian (alternate).
Olympic Coast National Marine Sanctuary Advisory Council: Conservation (primary member); and Tourism/Economic Development (primary member).
Stellwagen Bank National Marine Sanctuary Advisory Council: Research (2 primary members); Conservation (primary member); Education (alternate); Marine Transportation (primary member); Marine Transportation (alternate); Recreational Fishing (primary member); Recreational Fishing (alternate); Mobile Gear Commercial Fishing (primary member); Business Industry (alternate); At Large (primary member); At Large (alternate); Youth (primary member); and Youth (alternate).
16 U.S.C. 1431,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for letter of authorization; request for comments and information.
NMFS has received a request from the U.S. Air Force (USAF) for authorization to take marine mammals incidental to launching space launch vehicles, intercontinental ballistic and small missiles, aircraft and helicopter operations, and harbor activities related to the Delta IV/Evolved Expendable Launch Vehicle (EELV) at VAFB, CA, from February 2014 through February 2019. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is announcing our receipt of the USAF's request for the development and implementation of regulations governing the incidental taking of marine mammals and inviting information, suggestions, and comments on the USAF's application and request.
Comments and information must be received no later than September 16, 2013.
Comments on the application should be addressed to Michael Payne, Chief, Permits and
A copy of the USAF's application may be obtained by visiting the internet at:
Candace Nachman, Office of Protected Resources, NMFS, (301) 427–8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
With respect to military readiness activities, the MMPA defines “harassment” as: “(i) any act that injures or has the significant potential to injure a marine mammal stock in the wild [Level A Harassment]; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].”
On June 24, 2013, NMFS received an application from the USAF requesting a letter of authorization (LOA) for the take of five species of pinnipeds incidental to USAF launch, aircraft, and helicopter operations from VAFB launch complexes and
There are currently six active space launch vehicle facilities at VAFB used to launch satellites into polar orbit. These facilities support launch programs for the Atlas V, Delta II, Delta IV, Falcon 9, Minotaur, and Taurus. There are also a variety of small missiles launched from various facilities on North VAFB, including the Minuteman III and several types of interceptor and target vehicles for the Missile Defense Agency. The VAFB airfield, located on north VAFB, supports various aircraft operations. A full description of the activities to be conducted by the USAF at VAFB, including descriptions of the different space vehicles and missiles, are described in the USAF's application. Additionally, United Launch Alliance, on behalf of the USAF, proposes to conduct Delta IV/EELV activities (transport vessel operations, harbor maintenance dredging, and cargo movement activities). These activities are described in Appendix A of the USAF's application.
Interested persons may submit information, suggestions, and comments concerning the USAF's request (see
Consumer Product Safety Commission.
Notice.
As required by the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. Chapter 35), the Consumer Product Safety Commission (CPSC or Commission) requests comments on a proposed extension of approval of a collection of information for the Publicly Available Consumer Product Safety Information Database. The Commission will consider all comments received in response to this notice before requesting an extension of approval of this collection of information from the Office of Management and Budget (OMB).
The Office of the Secretary must receive comments not later than October 15, 2013.
You may submit comments, identified by Docket No. CPSC–2010–0041, by any of the following methods:
For further information contact: Robert H. Squibb, Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814; (301) 504–7815, or by email to:
Section 212 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) added section 6A to the Consumer Product Safety Act (CPSA), which requires the Consumer Product Safety Commission (CPSC or Commission) to establish and maintain a publicly available, searchable database on the safety of consumer products and other products or substances regulated by the Commission (Database). Among other things, section 6A of the CPSA requires the Commission to collect reports of harm from the public for potential publication in the publicly available Database and to collect and publish comments about reports of harm from manufacturers.
On May 24, 2010, the Commission published a proposed rule on the Database and announced that a proposed collection of information in conjunction with the Database had been submitted to OMB for review and clearance under 44 U.S.C. 3501–3520.75 FR 29156. The Commission issued a final rule on the Database on December 9, 2010 (75 FR 76832). The final rule interprets various statutory requirements in section 6A of the CPSA pertaining to the information to be included in the Database and also establishes provisions regarding submitting reports of harm; providing notice of reports of harm to manufacturers; publishing reports of harm and manufacturer comments in the Database; and dealing with confidential and materially inaccurate information.
OMB approved the collection of information for the Database under control number 3041–0146. OMB's approval will expire on January 31, 2014. The Commission now proposes to request an extension of approval of this collection of information.
The primary purpose of this information collection is to populate the publicly searchable Database of consumer product safety information mandated by section 6A of the CPSA. There are four components to the information collection: Reports of harm, manufacturer comments, branding information, and the Small Batch Manufacturer Registry (SBMR).
A manufacturer may request that the Commission designate information in a report of harm as confidential. Such a request may be made using the business portal, email, mail, or fax. Additionally, any person or entity reviewing a report of harm or a manufacturer's comment (either before or after publication in the Database) and who believes that the report contains materially inaccurate information, may request that the report or comment, or portions of the report or comment, be excluded from the Database. Such a request may be submitted by email, mail, or fax, and registered businesses also may utilize the business portal for such requests.
We estimate the burden of this collection of information as follows:
Using the data in Tables 1 and 2 above, we estimate the annual reporting cost to be $1,086,332. This estimate is based on the sum of two estimated total figures for reports of harm and manufacturer submissions. The estimated number of respondents and responses are based on the actual responses received in FY 2012. We assume that the number of responses and respondents will be similar in future years.
To estimate the costs for submitting reports of harm, we multiplied the estimated total burden hours associated with reports of harm (1,641 hours + 625 hours + 2,022 hours = 4,288 hours) by an estimated total compensation for all workers in private industry of $29.13 per hour,
To estimate the burden associated with submitting a general comment regarding a report of harm through the business portal, we averaged the burden provided by each company within each group and then calculated a weighted average from the three groups, weighting each group by the proportion of comments received from that group. We found that the average time to submit a general comment regarding a report of harm is 116 minutes based on the data in Table 3 (((10 minutes + 180 minutes)/2 companies)*.46 + ((10 minutes + 30 minutes)/2 companies)*.36 + ((240 minutes + 480 minutes)/2 companies)*.18 = 116 minutes).
Registered businesses generally submit comments through our Web site. Unregistered businesses submit comments by mail, email, or fax. We estimate that submitting comments in this way takes a little longer because we often must ask the businesses to amend their submissions to include the required certifications. Thus, we estimated that, on average, comments submitted by mail, email, or fax take 30 minutes longer than those submitted through our Web site (116 minutes + 30 minutes = 146 minutes).
The submission of a claim of materially inaccurate information is a relatively rare event for all respondents, so we averaged all responses together. Four of the businesses contacted had submitted claims of materially inaccurate information during FY 2012. We found that the average time to submit a claim that a report of harm contains a material inaccuracy is 438 minutes ((10 minutes + 120 minutes + 180 minutes + 1440 minutes)/4 companies = 438 minutes).
Registered businesses generally submit claims through the business portal. Unregistered businesses submit claims by mail, email, or fax. We estimate that submitting claims in this way takes a little longer because we often must ask the businesses to amend their submissions to include the required certifications. Thus, we estimated that on average, claims submitted by mail, email, or fax take 30 minutes longer than those submitted through our Web site (438 minutes + 30 minutes = 468 minutes).
We previously had estimated that confidential information claims submitted through our Web site would take 15 minutes because the information to be entered would be readily accessible by the respondent. We have found that confidential information claims are very rare, and the few such claims that we have received have been submitted through our Web site. That limited experience did not suggest the need for any update of the estimate for Web site submission of confidential information claims. Although we have not received any confidential information claims by mail, email, or fax, based on our experience with comments and claims of materially inaccurate information, we estimate that a confidential information claim submitted by mail, email, or fax would take 30 minutes longer than those submitted through our Web site (15 minutes + 30 minutes = 45 minutes).
For voluntary brand identification, we estimate that a response would take 10 minutes, on average. Most responses consist only of the brand name and a product description. In many cases a business will submit multiple entries in a brief period of time, and we can see from the date and time stamps on these records that an entry often takes less than two minutes. CPSC staff enters the same data in a similar form based on our own research, and that experience was also factored into our estimate.
For small batch manufacturer identification, we estimate that a response would take 10 minutes, on average. The form consists of three check boxes, and the information should be readily accessible to the respondent.
The responses summarized in Table 2 are generally submitted by manufacturers. To avoid underestimating the cost associated with the collection of this data, we assigned the higher hourly wage associated with a manager or professional in goods-producing industries to these tasks. To estimate the cost of manufacturer submissions, we multiplied the estimated total burden hours in Table 2 (15,557 hours) by an estimated total compensation for a manager or professional in goods-producing industries of $61.80 per hour,
Therefore, the total estimated annual cost to respondents is $1,086,332 ($124,909 burden for reports of harm + $961,423 burden for manufacturer submissions = $1,086,332).
We estimate the annualized cost to the CPSC to be $1,028,794. This figure is based on the costs for four categories of work for the Database: Reports of Harm, Materially Inaccurate Information Claims, Manufacturer Comments, and Small Batch Identification. Each category is described below. No government cost is associated with Voluntary Brand Identification because this information is entered directly into the Database by the manufacturer with no processing required by the government. The information assists the government in directing reports of harm to the correct manufacturer. We did not attempt to calculate separately the government cost for claims of confidential information because the number of claims is so small. The time to process these claims is included with claims of materially inaccurate information.
The Reports of Harm category also includes sending consent for reports when necessary, processing that consent when CPSC receives it, determining whether a product is out of CPSC's jurisdiction, and checking that pictures and attachments do not have any personally identifiable information. The Reports category also entails notifying manufacturers when one of their products is reported, completing a risk of harm determination form for every report eligible for publication, referring some reports to a Subject Matter Expert (SME) within the CPSC for a determination on whether the reports meet the requirement of having a risk of harm, and determining whether a report meets all the statutory and regulatory requirements for publication. Detailed costs are described in Table 4.
This information collection renewal request based on an estimated 19,845 burden hours per year for the Database is a decrease of 17,284 hours since this collection of information was last approved by OMB in 2011. The decrease in burden is due primarily to the fact that the number of responses estimated in our original request overstated the number of actual responses submitted; we thus lowered the estimated number of responses based on actual experience since the original request.
The Commission solicits written comments from all interested persons about the proposed collection of information. The Commission specifically solicits information relevant to the following topics:
• Whether the collection of information described above is necessary for the proper performance of the Commission's functions, particularly with respect to the Database, including whether the information would have practical utility;
• Whether the estimated burden of the proposed collection of information is accurate;
• Whether the quality, utility, and clarity of the information to be collected could be enhanced; and
• Whether the burden imposed by the collection of information could be minimized by use of automated, electronic, or other technological collection techniques, or other forms of information technology.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS) has submitted a public information collection request (ICR) entitled Peer Reviewer Application Instructions for review and approval in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Vielka Garibaldi, at (202) 606–6886 or email to
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the
(1)
(2)
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• 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;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose 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.
A 60-day notice requesting public comment was published in the
Department of the Army, U. S. Army Corps of Engineers, DoD.
Notice of intent.
Authorized by the River and Harbor Act of March 2, 1945, Lake Lewisville embankment construction began in December 1948 with completion in August 1955. The project includes an earthen embankment that is approximately 32,000 feet in length and has a maximum height of 125 feet at elevation 560 feet (all elevations are NGVD) with gated outlet works and an uncontrolled concrete ogee weir spillway. The primary purposes of the project are flood risk management,
Following construction of Ray Roberts Dam upstream, the conservation pool of Lewisville was raised from elevation 515 to 522 on November 30, 1988. At elevation 522, the lake inundates approximately 29,600 surface acres. Top of flood pool is elevation 532 which inundates approximately 39,200 surface acres. Downstream of the dam, approximately 2,000 acres of Corps of Engineers (Corps) owned lands are currently leased by the Lewisville Lake Environmental Learning Area. A former fish hatchery is also operated by the government for national research on controlling nuisance aquatic plants.
The risk associated with the Lake Lewisville project was first evaluated in 2005 after the Corps instituted a Screening Portfolio Risk Assessment (SPRA) program to assess the risk of all 694 dams in the Corps' portfolio. The SPRA report completed in July 2005, was reviewed by Corps senior dam safety officials who concluded that the risks associated with the possible poor performance of the dam were above the Corps' tolerable risk guidelines. As a result, additional studies of the project were initiated. These studies are currently ongoing, and will evaluate appropriate ways to minimize risk associated with the project. While the Corps completes in-depth studies of the project to determine appropriate permanent methods for correcting potential problems, interim risk reduction measures have been implemented. In anticipation of possible permanent corrective actions at the project, and in order to fully comply with National Environmental Policy Act (NEPA) requirements, the Corps is preparing a project report and a Draft Environmental Impact Statement (DEIS) to identify the environmental impacts associated with any alternatives to repair and reduce risks at the Lake Lewisville Dam. The general study area will be the Lake Lewisville proper and floodplain from Ray Roberts Dam downstream to Interstate Highway 20 in Dallas County.
A public scoping meeting will be held on August 20, 2013 beginning at 7:00 p.m.
The meeting will be held at the Medical Center of Lewisville—Grand Theater Black Box Theater Room, 100 North Charles Street, Lewisville, TX 75057.
Questions pertaining to the proposed action and DEIS can be addressed to: Ms. Hollie Hunter, Environmental Project Manager, CESWF–PER–EE, U.S. Army Corps of Engineers, Fort Worth District, P.O. Box 17300, Fort Worth, TX 76102–0300, (817) 886–1849.
The study area lies within an area of rapid growth in the Lewisville, Grapevine, Dallas, Texas corridor along the Elm Fork and Mainstem floodways of the Trinity River.
Alternatives will be developed and evaluated based on ongoing research and data collection and past studies conducted by the Corps. Preliminary alternatives considered will include dam modifications necessary to reduce risk to acceptable levels, and will include consideration of any required hydraulic, environmental or recreational mitigation.
The public will be invited to participate in the scoping process, invited to attend public meetings, and given the opportunity to review the DEIS. The first public scoping meeting will be on (see
Future coordination with other agencies and public scoping will be conducted to ensure full and open participation and aid in the development of the DEIS. All affected Federal, state, and local agencies, affected Indian tribes, and other interested private organizations and parties are hereby invited to participate. Continued coordination will also be conducted with the U. S. Fish and Wildlife Service (USFWS). The USFWS will furnish information on threatened and endangered species in accordance with the Endangered Species Act. In addition, the USFWS will also be requested to provide support with planning aid and to provide a Fish and Wildlife Coordination Act Report. The State Historic Preservation Office will be consulted as required by Section 106 of the National Historic Preservation Act.
Department of the Navy, DoD.
Notice.
The Department of the Navy hereby gives notice of its intent to grant to Ridgetop Group, Inc. located at 3580 West Ina Road, Tucson, AZ 85741, a revocable, nonassignable, partially exclusive license in the United States to practice for all fields of use the Government-Owned invention described in U.S. Patent No. 7,626,398: System for Isolating Faults Between Electrical Equipment, Navy Case Number 97027, inventors Quiter et al., issued December 01, 2009.
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, not later than August 30, 2013.
Written objections are to be filed with the Naval Air Warfare Center Aircraft Division, Technology Transfer Office, Attention Gaetan Mangano, Code 4.0, Highway 547, Building 150–3, Lakehurst, NJ 08733.
Dan Swanson, 406–994–7736,
35 U.S.C. 207, 37 CFR Part 404.
U.S. Department of Energy.
Notice and request for comments.
A 60-day notice and request for comments was published in the
This subsequent 30-day notice allows public comment on the final version of the information collection request.
The Department of Energy (DOE) invites public comment on a revision of a currently approved collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. Comments are invited on: (a) Whether the revision of the currently approved 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 reduced burden pertaining to the approved collection of information, including the validity of the methodology and assumptions used; (c) ways to further enhance the quality, utility, and clarity of the information being collected; and (d) ways to further minimize the burden regarding the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments regarding this revision to an approved information collection must be received on or before September 16, 2013. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be sent to: Christine Platt Patrick, EE–2K, U.S. Department of Energy, 1000 Independence Ave. SW., Washington, DC 20585, Email:
Requests for additional information or copies of the information collection instrument and instructions should be directed to: Pam Bloch Mendelson, EE–2K, U.S. Department of Energy, 1000 Independence Ave. SW., Washington, DC 20585–1290, Phone: (202) 287–1857, Fax: (202) 287–1745, Email:
Additional information and reporting guidance concerning the Energy Efficiency and Conservation Block Grant (EECBG) Program is available for review at the following Web sites:
This information collection request contains: (1) 1910–5150; (2) “Energy Efficiency and Conservation Block Grant (EECBG) Program Status Report”; (3) Revision of currently approved collection; (4) To collect information on:
Department of Energy.
Notice of open meeting.
This notice announces a combined meeting of the Environmental Monitoring and Remediation Committee, Waste Management Committee, and Waste Isolation Pilot Plant Ad Hoc Committee of the Environmental Management Site-Specific Advisory Board (EM SSAB), Northern New Mexico (known locally as the Northern New Mexico Citizens' Advisory Board [NNMCAB]). The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Tuesday, September 10, 2013, 2:00 p.m.–4:00 p.m.
Cities of Gold Conference Center, 10–A Cities of Gold Road, Pojoaque, NM 87506.
Menice Santistevan, Northern New Mexico Citizens' Advisory Board, 94 Cities of Gold Road, Santa Fe, NM 87506. Phone (505) 995–0393; Fax (505) 989–1752 or Email:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Hanford. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Red Lion Hanford House, 802 George Washington Way, Richland, WA 99352.
Kimberly Ballinger, Federal Coordinator, Department of Energy Richland Operations Office, 825 Jadwin Avenue, P.O. Box 550, A7–75, Richland, WA 99352; Phone: (509) 376–6332; or Email:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge Reservation. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, September 11, 2013, 6:00 p.m.
Department of Energy Information Center, Office of Science and Technical Information, 1 Science.gov Way, Oak Ridge, Tennessee 37830.
Melyssa P. Noe, Federal Coordinator, Department of Energy Oak Ridge Operations Office, P.O. Box 2001, EM–90, Oak Ridge, TN 37831. Phone (865) 241–3315; Fax (865) 576–0956 or email:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Northern New Mexico. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, September 25, 2013 1:00 p.m.–7:00 p.m.
Sagebrush Inn Conference Center, 1508 Paseo del Pueblo Sur, Taos, New Mexico 87571.
Menice Santistevan, Northern New Mexico Citizens' Advisory Board (NNMCAB), 94 Cities of Gold Road, Santa Fe, NM 87506. Phone (505) 995–0393; Fax (505) 989–1752 or Email:
Take notice that on August 8, 2013, ProLiance Energy, LLC filed with the Federal Energy Regulatory Commission a petition to amend temporary waivers of the Commission's capacity release regulations and policies granted by order of the Commission issued on July 18, 2013, in the above captioned proceeding.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on August 9, 2013, ProLiance Energy, LLC filed with the Federal Energy Regulatory Commission a petition to amend temporary waivers of the Commission's capacity release regulations and policies granted by order of the Commission issued on July 30, 2013, in the above captioned proceeding.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before 5:00 p.m. Eastern time on the specified comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioners. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Petitioners.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the White Oak Lateral Project involving construction and operation of facilities by Eastern Shore Natural Gas Company (Eastern Shore) in Kent County, Delaware. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help the Commission staff determine what issues they need to evaluate in the EA. Please note that the scoping period will close on September 9, 2013.
You may submit comments in written form or verbally. Further details on how to submit written comments are in the Public Participation section of this notice
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
Eastern Shore provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?”. This fact sheet addresses a number of typically-asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
Eastern Shore proposes to construct, own, operate, new natural gas facilities in the Dover area of Kent County, Delaware. The White Oak Lateral Project would provide about 55,200 dekatherms of natural gas per day to Calpine Energy Services, L.P. to fuel the Garrison Energy Center, a proposed 309-megawatt combined cycle natural gas fueled power plant under development in Kent County, Delaware.
The White Oak Lateral Project would consist of the following facilities:
• Approximately 5.5 miles of 16-inch-diameter natural gas pipeline;
• one mainline valves assembly; and
• metering and regulating facility.
The general location of the project facilities is shown in appendix 1.
Construction of the proposed facilities would disturb approximately 118 acres of land for the aboveground facilities and the pipeline. Following construction, Eastern Shore would maintain about 10 acres for permanent operation of the project's facilities; the remaining acreage would be restored and revert to former uses. Approximately 63 percent of the proposed pipeline route parallels existing pipeline, utility, or road rights-of-way.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• vegetation and wildlife;
• air quality and noise;
• endangered and threatened species; and
• public safety.
We will also evaluate reasonable alternatives to the proposed project or
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section beginning on page 4.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before September 9, 2013.
For your convenience, there are three methods you can use to submit your comments to the Commission. In all instances please reference the project docket number (CP13–498–000) with your submission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502–8258 or
(1) You can file your comments electronically using the eComment feature on the Commission's Web site (
(2) You can file your comments electronically using the eFiling feature on the Commission's Web site (
(3) You can file a paper copy of your comments by mailing them to the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the User's Guide under the “e-filing” link on the Commission's Web site.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208–FERC, or on the FERC Web site at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission or FERC's) regulations, 18 CFR Part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects reviewed the Public Utility District No. 1 of Snohomish County, Washington's (Snohomish PUD) application for a 10-year license for the proposed Admiralty Inlet Pilot Tidal Project No. 12690, which would be located in Admiralty Inlet in Puget Sound, near the City of Port Townsend, in Island County, Washington, and has prepared a final environmental assessment (FEA) in cooperation with the U.S. Department of Energy (DOE/EA–1949). In the FEA, Commission staff analyzed the potential environmental effects of constructing and operating the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the FEA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
Stephen Bowler by telephone at 202–502–6861 or by email at
Take notice that on July 12, 2013, Hudson Transmission Partners, LLC filed a request for exemption from, or waiver of, the standards of conduct set forth in Part 358 of the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 358.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on July 22, 2013, Ameren Corporation (Ameren) submitted a refund report and request for Commission guidance in compliance with the Commission's Order Rejecting Refund Report and Providing Guidance, issued on June 13, 2013.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 or 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on August 6, 2013, pursuant to Rule 207(a)(2) of the Commission's Rules of Practices and Procedure, 18 CFR 385.207(a)(2)(2012), Williams Olefins Feedstock Pipelines, L.L.C., filed a petition requesting a declaratory order finding that a proposed Bayou Ethane Pipeline project is not subject to Commission's jurisdiction because the transported ethane will only be used as feedstock to produce ethylene, and not burned as fuel, as more fully described in their petition.
Any person desiring to intervene or to protest in this proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
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e. A summary of the meeting will be prepared for the projects' record.
f. All local, state, and federal agencies, Indian tribes, and other interested parties are invited to participate either in person or by phone. Please call Rebecca Martin (202) 502–6012 by September 3, 2013, to RSVP and for the teleconference call-in number if you wish to participate by teleconference.
g. FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to
Take notice that a technical conference will be held on Tuesday, September 10, 2013, at 10:00 a.m., in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The Commission's July 31, 2013 Order in the above-captioned proceeding
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to
All interested persons are permitted to attend. For further information please contact Andrew Knudsen at (202) 502–6527 or email
Environmental Protection Agency (EPA).
Notice.
There will be a 1-day meeting of the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel (FIFRA SAP) to consider and review RNAi Technology as a Pesticide: Problem Formulation for Human Health and Ecological Risk Assessment.
The meeting will be held on October 29, 2013, from 9 a.m. to approximately 6 p.m.
The meeting will be held at the Environmental Protection Agency, Conference Center, Lobby Level, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA 22202.
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
If your comments contain any information that you consider to be CBI or otherwise protected, please contact the DFO listed under
Sharlene Matten, DFO, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (202) 564–0130; fax number: (202) 564–8382; email address:
This action is directed to the public in general. This action may, however, be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) and FIFRA. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
When submitting comments, remember to:
1. Identify the document by docket ID number and other identifying information (subject heading,
2. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
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.
You may participate in this meeting by following the instructions in this unit. To ensure proper receipt by EPA, it is imperative that you identify docket ID number EPA–HQ–OPP–2013–0485 in the subject line on the first page of your request.
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• Ecological risk assessment
• Human health risk assessment
• Bioinformatics
• RNAi technology
• Biotechnology
• Plant breeding and genomics
Nominees should be scientists who have sufficient professional qualifications, including training and experience, to be capable of providing expert comments on the scientific issues for this meeting. Nominees should be identified by name, occupation, position, address, and telephone number. Nominations should be provided to the DFO listed under
The selection of scientists to serve on FIFRA SAP is based on the function of the panel and the expertise needed to address the Agency's charge to the panel. No interested scientists shall be ineligible to serve by reason of their membership on any other advisory committee to a Federal department or agency or their employment by a Federal department or agency except the EPA. Other factors considered during the selection process include availability of the potential panel member to fully participate in the panel's reviews, absence of any conflicts of interest or appearance of lack of impartiality, independence with respect to the matters under review, and lack of bias. Although financial conflicts of interest, the appearance of lack of impartiality, lack of independence, and bias may result in disqualification, the absence of such concerns does not assure that a candidate will be selected to serve on FIFRA SAP. Numerous qualified candidates are identified for each panel. Therefore, selection decisions involve carefully weighing a number of factors including the candidates' areas of expertise and professional qualifications and achieving an overall balance of different scientific perspectives on the panel. In order to have the collective breadth of experience needed to address the Agency's charge for this meeting, the Agency anticipates selecting approximately 8–10
FIFRA SAP members are subject to the provisions of 5 CFR part 2634, Executive Branch Financial Disclosure, as supplemented by the EPA in 5 CFR part 6401. In anticipation of this requirement, prospective candidates for service on the FIFRA SAP will be asked to submit confidential financial information which shall fully disclose, among other financial interests, the candidate's employment, stocks and bonds, and where applicable, sources of research support. The EPA will evaluate the candidates financial disclosure form to assess whether there are financial conflicts of interest, appearance of a lack of impartiality or any prior involvement with the development of the documents under consideration (including previous scientific peer review) before the candidate is considered further for service on FIFRA SAP. Those who are selected from the pool of prospective candidates will be asked to attend the public meetings and to participate in the discussion of key issues and assumptions at these meetings. In addition, they will be asked to review and to help finalize the meeting minutes. The list of FIFRA SAP members participating at this meeting will be posted on the FIFRA SAP Web site at
FIFRA SAP serves as the primary scientific peer review mechanism of EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) and is structured to provide scientific advice, information and recommendations to the EPA Administrator on pesticides and pesticide-related issues as to the impact of regulatory actions on health and the environment. FIFRA SAP is a Federal Advisory Committee established in 1975 under FIFRA that operates in accordance with requirements of the Federal Advisory Committee Act. FIFRA SAP is composed of a permanent panel consisting of seven members who are appointed by the EPA Administrator from nominees provided by the National Institutes of Health and the National Science Foundation. FIFRA established a Science Review Board consisting of at least 60 scientists who are available to the SAP on an
The use of RNA Interference (RNAi) gene silencing technology, particularly RNAi gene silencing for pesticidal purposes, is a relatively recent innovation. Post-transcriptional silencing of gene function is a very rapid process where double-stranded RNA (dsRNA) directs sequence-specific degradation of an RNA. The EPA is beginning to receive applications for regulatory actions on pesticides based on RNAi gene silencing technologies. The EPA recognizes the need to better understand the scientific issues concerning the assessment of the risks to human health and the environment that RNAi technologies may pose before any regulatory decisions concerning these products can be made. In 1998, the U.S. Environmental Protection Agency developed a formalized process for risk assessment. Problem formulation is the first step in this process. In problem formulation, available information is used to define assessment endpoints and to develop a preliminary understanding of potential risks (i.e., develop a risk hypothesis and conceptual model) associated with the use of a pesticide. Problem formulation also serves as an opportunity to identify missing information/uncertainties that may limit the assessment and any assumptions that may be made in the absence of such data. The EPA is
EPA's background paper, related supporting materials, charge/questions to FIFRA SAP, FIFRA SAP composition (i.e., members and
FIFRA SAP will prepare meeting minutes summarizing its recommendations to the Agency approximately 90 days after the meeting. The meeting minutes will be posted on the FIFRA SAP Web site or may be obtained from the OPP Docket or at
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice of meeting(s).
Under the Federal Advisory Committee Act, EPA gives notice of a series of teleconference meetings of the National Environmental Education Advisory Council (NEEAC). The NEEAC was created by Congress to advise, consult with, and make recommendations to the Administrator of the Environmental Protection Agency (EPA) on matters related to activities, functions and policies of EPA under the National Environmental Education Act (the Act).
The purpose of these teleconference(s) is to discuss specific topics of relevance for consideration by the council in order to provide advice and insights to the Agency on environmental education.
The National Environmental Education Advisory Council will hold public teleconferences on Wednesday, August 28, 2013, Monday, September 23, 2013, Monday, October 23, 2013 and Monday, November 25, 2013, from 12:00 pm until 1:00 pm Eastern Daylight Time.
Javier Araujo, Designated Federal Officer,
Members of the public wishing to gain access to the teleconference, make brief oral comments, or provide a written statement to the NEEAC must contact Javier Araujo, Designated Federal Officer, at
The Commission gives notice that the following Ocean Transportation Intermediary licenses have been revoked or terminated for the reason shown pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. 40101) effective on the date shown.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than September 3, 2013.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690–1414:
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B. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198–0001:
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Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
By Direction of the Commission.
Office of HIV/AIDS and Infectious Disease Policy, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
The Department of Health and Human Services is hereby giving notice that the charter for the Presidential Advisory Council on HIV/AIDS (PACHA; the Council) has been renewed.
Ms. Caroline Talev, Public Health Assistant, Presidential Advisory Council on HIV/AID, Department of Health and Human Services, 200 Independence Avenue SW., Room 443H, Washington, DC 20201; (202) 205–1178; email:
PACHA is a non-discretionary Federal advisory committee. The Council was established
To carry out its mission, PACHA provides advice, information, and recommendations to the Secretary regarding programs and policies to (a) Reduce HIV incidence; (b) advance research on HIV/AIDS; (c) improve health outcomes and ensure people living with HIV have access to quality health care; (d) address HIV-related health disparities; and (e) provide global leadership in responding to the HIV pandemic and expand access to treatment, care, and prevention for people infected with and affected by HIV/AIDS around the world.
On July 26, 2013, the Secretary of Health and Human Services approved for the PACHA charter to be renewed. One amendment was approved for the charter. It was approved for the subcommittee structure of the Council to be amended to authorize utilization of non-member special consultants. The use of non-member special consultants will allow for more input and involvement from stakeholders in the HIV/AIDS community in the PACHA deliberative process. The new charter was effected and filed with the appropriate Congressional offices and Library of Congress on July 27, 2013. Renewal of the PACHA charter gives authorization for the Council to continue to operate until July 27, 2015.
A copy of the PACHA charter is available on the Council Web site at
National Vaccine Program Office, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
The Department of Health and Human Services is hereby giving notice that the National Vaccine Advisory Committee (NVAC) has been rechartered.
LCDR Guillermo Aviles-Mendoza, Public Health Advisor, National Vaccine Program Office, Department of Health and Human Services, Room 739G.4, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201. Phone: (202) 205–2982; fax: (202) 690–4631; email:
NVAC is a non-discretionary Federal advisory committee. The establishment of NVAC was mandated under Section 2105 (42 U.S.C. Section 300aa–5) of the Public Health Service (PHS) Act, as amended. The Committee is governed by provisions of the Federal Advisory Committee Act (FACA), Public Law 92–463, as amended (5 U.S.C. App.). NVAC advises and makes recommendations to the Director, National Vaccine Program (NVP), on matters related to the Program's responsibilities. The Assistant Secretary for Health is appointed to serve as the Director, NVP.
To carry out its mission, NVAC (1) Studies and recommends ways to encourage the availability of an adequate supply of safe and effective vaccination products in the United States; (2) recommends research priorities and other measures the Director of the NVP should take to enhance the safety and efficacy of vaccines; (3) advises the Director of the NVP in the implementation of Sections 2102 and 2103 of the PHS Act; and (4) identifies annually for the Director of the NVP the most important areas of governmental and non-governmental cooperation that should be considered in implementing Sections 2101 and 2103 of the PHS Act.
On July 23, 2013, the Assistant Secretary for Health approved for the NVAC charter to be renewed. There was one amendment recommended and approved for the charter. The Committee structure has been modified to increase the number of non-voting liaison representatives. An invitation has been extended to the Pan American Health Organization (PAHO) to serve as a non-voting liaison representative member of the Committee. PAHO is an international public health agency with over 110 years of experience working to improve health and living standards of people of the Americas. The organization is part of the United Nations system; it serves as the Regional Office for the Americas of the World Health Organization and as the health organization of the Inter-American System. PAHO works to strengthen national and local health systems and to improve the health of peoples of the Americas. It promotes primary health care strategies, including coordination of immunization campaigns through the Americas. Expanding the NVAC structure to include PAHO will assist the Committee to accomplish its mission of identifying the most important areas of governmental and non-governmental cooperation that should be considered to achieve optimal prevention of human infectious diseases through immunization and to achieve optimal prevention against adverse reactions to vaccine. The new charter was effected and filed with the appropriate Congressional committees and Library of Congress on July 30, 2013. Renewal of the NVAC charter gives authorization for the Committee to continue to operate until July 30, 2015.
A copy of the NVAC charter is available on the Web site for the National Vaccine Program Office at
Department of Health and Human Services (HHS), Assistant Secretary for Preparedness and
Notification of a sole source Cooperative Agreement Award to the World Health Organization for a grant titled: “Smallpox Research Oversight Activities: WHO Advisory Committee on Variola Virus Research.”
A natural re-emergence of smallpox is not deemed possible, but if it were to occur as a result of a terrorist or deliberate event, it would be a potentially devastating threat to public health worldwide and would constitute a public health emergency of international concern (PHEIC) under the International Health Regulations (IHR) (2005). A case of smallpox detected by a member state requires notification to World Health Organization (WHO) as soon as possible, and any confirmed smallpox case would generate an immediate global public health response.
WHO must rely on fast and reliable laboratory diagnostic capacity worldwide to be able to identify a re-emergence of smallpox, particularly in countries where systemic orthopoxvirus infections, such as monkeypox, vaccinia virus infection or cowpox, and other non-pox viral rash illnesses, such as chicken pox, may cause clinical diagnostic confusion.
Over the past 10 years, clinical virology laboratory diagnostics has been evolving and increasingly relies on molecular techniques. This is also true with laboratory diagnoses of poxvirus infections. Precise and consistent identification of orthopoxviruses, in particular variola viruses, is now achievable using such molecular techniques as real-time Polymerase Chain Reaction (PCR), unlike earlier techniques that may have relied on direct virus isolation and identification.
WHO must be alerted when there is a potential or actual smallpox infection. Early detection and confirmation of smallpox cannot rely solely on the two WHO Collaborating Centres for smallpox and other poxvirus infections. In order to facilitate and support a prompt and effective response to mitigate the spread of the disease, these two Centres should be supported by a worldwide network of reliable laboratories able to perform PCR and real-time PCR diagnostics enabling initial detection and identification of smallpox events.
Additionally, the U.S. Government supports the development of other medical products, including vaccines and drugs, for use within the U.S. upon verification of a smallpox case. The U.S. Government, through the Office of the Assistant Secretary for Preparedness and Response (ASPR), has successfully developed vaccine products, and is actively engaged in the development of several drug candidates for smallpox therapies, which require access to the Variola virus to satisfy regulatory requirements for product approvals.
Since May 1999, when the 52nd World Health Assembly (WHA) resolved to postpone the destruction of the Variola virus to allow for essential research (WHA 52.10), WHO has been charged with convening a group of experts to advise on the need for continuing such research, to review proposals for research involving viable Variola virus, to review the progress of such research, and to report to the WHA each year. The need to support the activities described in this project has not changed. In fact, WHO Member States continue to exert pressure for the WHO Secretariat to carry out this work.
The WHO Advisory Committee on Variola Virus Research (ACVVR) was established in 1999 to determine what essential research, if any, must be carried out with live Variola virus. The ACVVR monitored the research progress in order to reach global consensus on the timing for the destruction of existing Variola virus stocks. In 2007, the WHA requested the ACVVR undertake a thorough review of the approved research program with a report presented in 2010. The results were presented at the 64th WHA meeting in May of 2011. The ACVVR continues to serve a critically important function for global public health, and to oversee research requested specifically by the U.S. to complete its national strategic goals. This includes convening a group of experts, the ACVVR, to advise on the need for continuing such research, to review proposals for research involving viable Variola virus, and to review the progress of such research.
Biomedical Advanced Research and Development Authority (BARDA), Assistant Secretary for Preparedness and Response (ASPR), Department of Health and Human Services (HHS).
Notification of an expansion to the Cooperative Agreement Award to the World Health Organization for a grant titled: “Smallpox Research Oversight Activities: WHO Advisory Committee on Variola Virus Research”
Sections 301 and 319L of the Public Health Service Act, (42 U.S.C. 241 and 247d–7e)
A natural re-emergence of smallpox is not deemed possible, but if it were to occur as a result of a terrorist or deliberate event, it would be a potentially devastating threat to public health worldwide and would constitute a public health emergency of international concern (PHEIC) under the International Health Regulations (IHR) (2005). A case of smallpox detected by a member state requires notification to World Health Organization (WHO) as soon as possible, and any confirmed smallpox case would generate an
WHO must rely on fast and reliable laboratory diagnostic capacity worldwide to be able to identify a re-emergence of smallpox, particularly in countries where systemic orthopoxvirus infections such as monkeypox, vaccinia virus infection or cowpox, and other non-pox viral rash illnesses, such as chicken pox, may cause clinical diagnostic confusion.
Over the past 10 years, clinical virology laboratory diagnostics has been evolving and increasingly relies on molecular techniques. This is also true with laboratory diagnoses of poxvirus infections. Precise and consistent identification of orthopoxviruses, in particular variola viruses, is now achievable using such molecular techniques as real-time Polymerase Chain Reaction (PCR), unlike earlier techniques that may have relied on direct virus isolation and identification.
WHO must be alerted when there is a potential or actual smallpox infection. Early detection and confirmation of smallpox cannot rely solely on the two WHO Collaborating Centres for smallpox and other poxvirus infections. In order to facilitate and support a prompt and effective response to mitigate the spread of the disease, these two Centres should be supported by a worldwide network of reliable laboratories able to perform PCR and real-time PCR diagnostics enabling initial detection and identification of smallpox events.
Additionally, the U.S. Government supports the development of other medical products, including vaccines and drugs, for use within the U.S. upon verification of a smallpox case. The U.S. Government, through the Office of the Assistant Secretary for Preparedness and Response (ASPR), has successfully developed vaccine products, and is actively engaged in the development of several drug candidates for smallpox therapies, which require access to the Variola virus to satisfy regulatory requirements for product approvals.
Since May 1999, when the 52nd World Health Assembly (WHA) resolved to postpone the destruction of the Variola virus to allow for essential research (WHA 52.10), WHO has been charged with convening a group of experts to advise on the need for continuing such research, to review proposals for research involving viable Variola virus, to review the progress of such research, and to report to the WHA each year. The need to support the activities described in this project has not changed. In fact, WHO Member States continue to exert pressure for the WHO Secretariat to carry out this work.
The WHO Advisory Committee on Variola Virus Research (ACVVR) was established in 1999 to determine what essential research, if any, must be carried out with live Variola virus. The ACVVR monitored the research progress in order to reach global consensus on the timing for the destruction of existing Variola virus stocks. In 2007, the WHA requested the ACVVR undertake a thorough review of the approved research program with a report presented in 2010. The results were presented at the 64th WHA meeting in May of 2011. The ACVVR continues to serve a critically important function for global public health, and to oversee research requested specifically by the U.S. to complete its national strategic goals. This includes convening a group of experts, the Advisory Committee on Variola Virus Research (ACVVR), to advise on the need for continuing such research, to review proposals for research involving viable Variola virus, and to review the progress of such research.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404–639–7570 or send comments to Leroy Richardson, at 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Birth Defects Study To Evaluate Pregnancy exposureS (BD–STEPS) (formerly titled The National Birth Defects Prevention Study (NBDPS)), (OMB 0920–0010, Expiration 04/30/2015)—Revision—National Center on Birth Defects and Developmental Disabilities (NCBDDD), Centers for Disease Control and Prevention (CDC).
CDC has been monitoring the occurrence of serious birth defects and genetic diseases in Atlanta since 1967 through the Metropolitan Atlanta Congenital Defects Program (MACDP). The MACDP is a population-based surveillance system for birth defects currently covering three counties in Metropolitan Atlanta.
Since 1997, CDC has funded case-control studies of major birth defects that utilize existing birth defect
BD–STEPS is a case-control study that is similar to the previous CDC-funded birth defects case-control study, NBDPS, which stopped interviewing participants in 2013. As with NBDPS, control infants will be randomly selected from birth certificates or birth hospital records; mothers of case and control infants will be interviewed using a computer-assisted telephone interview.
The BD–STEPS interview takes approximately forty-five minutes to complete. A maximum of 275 interviews are planned per year per center, 200 cases and 75 controls. With seven centers planned, the maximum interview burden for all centers combined would be approximately 1,444 hours. As with NBDPS, parents in BD–STEPS will be asked to collect deoxyribonucleic acid (DNA) samples from themselves and their infants. The collection of saliva cells by the mother, father and infant takes about 15 minutes per person. For the infant sample, the parent will rub long-handled sponges between the infant's cheek and gum; parents will be asked to swab a total of 5 sponges per infant. The infant's mother and father will be asked to provide their own saliva samples by spitting into a funnel connected to small collection tubes. Collection of the saliva samples takes approximately 2–5 minutes per person, but the estimate of burden is 15 minutes per person to account for reading and understanding the consent form and specimen collection instructions and mailing back the completed kits. The anticipated maximum burden for collection of the saliva samples for all centers combined would be approximately 1,444 hours.
Information gathered from both the interviews and the DNA specimens has been and will continue to be used to study independent genetic and environmental factors as well as gene-environment interactions for a broad range of carefully classified birth defects.
This request is submitted to obtain OMB clearance for three additional years.
There are no costs to the respondents other than their time.
The Centers for Disease Control and Prevention (CDC) is soliciting nominations for membership on the BSC, NCEH/ATSDR. The BSC, NCEH/ATSDR consists of 16 experts knowledgeable in the field of environmental public health or in related disciplines, who are selected by the Secretary of the U.S. Department of Health and Human Services (HHS). The BSC, NCEH/ATSDR provides advice and guidance to the Secretary, HHS; the Director, CDC; and the Director, NCEH/ATSDR, regarding program goals, objectives, strategies, and priorities in fulfillment of the agencies' mission to protect and promote people's health. The Board provides advice and guidance to help NCEH/ATSDR work more efficiently and effectively with its various constituents and to fulfill its mission in protecting America's health.
Nominations are being sought for individuals who have expertise and qualifications necessary to contribute to the accomplishments of the Board's objectives. Nominees will be selected from experts having experience in preventing human diseases and disabilities caused by environmental conditions. Experts in the disciplines of toxicology, epidemiology, environmental or occupational medicine, behavioral science, risk assessment, exposure assessment, and experts in public health and other related disciplines will be considered. Members may be invited to serve up to four-year terms.
The HHS policy stipulates that committee membership be balanced in terms of points of view represented and the board's function. Consideration is given to a broad representation of geographic areas within the U.S., as well as gender, race, ethnicity, persons with disabilities, and several factors including: (1) The committee's mission; (2) the geographic, ethnic, social, economic, or scientific impact of the advisory committee's recommendations; (3) the types of specific perspectives required, for example, those of consumers, technical experts, the public at-large, academia, business, or other sectors; (4) the need to obtain divergent points of view on the issues before the advisory committee; and (5) the relevance of State, local, or tribal governments to the development of the advisory committee's recommendations. Nominees must be U.S. citizens.
The following information must be submitted for each candidate: Name, affiliation, address, telephone number, and current curriculum vitae. Email addresses are requested if available. Nominations should be sent, in writing, and postmarked by September 30, 2013, to: Sandra Malcom, Committee Management Specialist, NCEH/ATSDR, CDC, 4770 Buford Highway, NE., Mailstop F61, Atlanta, Georgia 30341, Email address:
Candidates invited to serve will be asked to submit the “Confidential Financial Disclosure Form (OGE Form 450) for Special Government Employees
This form should not be submitted as part of a nomination.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The ACF is proposing to conduct an evaluation of the DRS. The purpose of the evaluation is to understand if the DRS is working as intended, as a valid, reliable, and transparent method for identifying high-quality programs that can receive continuing five-year grants without competition and as a system that encourages overall program quality improvement. It also seeks to understand how the system is working, the circumstances in which it works more or less well, and the contextual, demographic, and program factors and program actions associated with how well the system is working. The study will employ a mixed-methods design that integrates and layers administrative and secondary data sources, observational measures, and interviews to develop a rich knowledge base about what the DRS accomplishes and how it does so.
Estimated Total Annual Burden Hours: 670.
U.S. Customs and Border Protection, Department of Homeland Security.
60-Day Notice and request for comments; Extension of an existing collection of information.
As part of its continuing effort to reduce paperwork and respondent burden, Customs and Border Protection (CBP) invites the general public and other Federal agencies to comment on an information collection requirement concerning the Application for Exportation of Articles under Special Bond (CBP Form 3495). This request for comment is being made pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Written comments should be received on or before October 15, 2013, to be assured of consideration.
Direct all written comments to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229–1177, at 202–325–0265.
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229–1177, at 202–325–0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Public Law 104–13). The comments should address: (a) Whether the 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 estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual cost burden to respondents or record keepers from the collection of information (total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this document CBP is soliciting comments concerning the following information collection:
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following application for a recovery permit to conduct activities with the purpose of enhancing the survival of an endangered species. The Endangered Species Act of 1973, as amended (Act), prohibits certain activities with endangered species unless a Federal permit allows such activity. The Act also requires that we invite public comment before issuing such permits.
To ensure consideration, please send your written comments by September 16, 2013.
Endangered Species Program Manager, Ecological Services, U.S. Fish and Wildlife Service, Pacific Regional Office, 911 NE. 11th Avenue, Portland, OR 97232–4181. Please refer to the permit number for the application when submitting comments.
Colleen Henson, Fish and Wildlife Biologist, at the above address or by telephone (503–231–6131) or fax (503–231–6243).
The Act (16 U.S.C. 1531
A permit granted by us under section 10(a)(1)(A) of the Act authorizes the permittee to conduct activities (including take or interstate commerce) with respect to U.S. endangered or threatened species for scientific purposes or enhancement of propagation or survival. Our regulations implementing section 10(a)(1)(A) of the Act for these permits are found at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
We invite local, State, and Federal agencies, and the public to comment on the following application. Please refer to the appropriate permit number for the application when submitting comments.
Documents and other information submitted with this application are available for review by request from the Endangered Species Program Manager at the address listed in the
The applicant requests a permit to take (harass by survey; locate and monitor nests; capture, band, weigh, and measure; and collect feathers, dead birds, and inviable eggs) the Hawaiian petrel (
All comments and materials we receive in response to this request will be available for public inspection, by appointment, during normal business hours at the address listed 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.
We provide this notice under section 10 of the Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of availability.
We, the Fish and Wildlife Service (Service), announce the availability of the final comprehensive conservation plan and finding of no significant impact for the environmental assessment (Final CCP/FONSI) for Desecheo National Wildlife Refuge (NWR) in the municipality of Mayagüez, Puerto Rico. In the Final CCP/EA, we describe how we will manage this refuge for the next 15 years.
You may obtain a copy of the Final CCP/FONSI by writing to: Ms. Susan Silander, via U.S. mail at P.O. Box 510, Boquerón, PR 00622. Alternatively, you may download the document from our Internet Site at
Ms. Susan Silander at 787/851–7258 (telephone).
With this notice, we finalize the CCP process for Desecheo NWR. We started the process through a notice in the
Desecheo NWR is a 360-acre island located in the Mona Passage, approximately 12 miles west of Rincón, Puerto Rico.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Administration Act.
We made copies of the Draft Comprehensive Conservation Plan and Environmental Assessment (Draft CCP/EA) available for a 30-day public review and comment period via a
We developed three alternatives for managing the refuge (Alternatives A, B, and C), with Alternative C selected for implementation.
Over the 15-year life of the CCP, we will provide the conditions for reestablishment of nesting seabird colonies. Routine monitoring and life-history studies of terrestrial reptiles will be conducted and habitat improvements will be made. We will continue periodic surveys of turtles and implement seasonal surveys of migratory landbirds. We will pursue opportunities for propagation, reintroduction, and removal of threats to the Higo Chumbo cactus.
We will increase monitoring and, if necessary, efforts to remove invasive species. The number of vegetation plots and frequency of monitoring will be increased to improve restoration efforts. Over the 15-year life of the CCP, we will complete the removal of all invasive animal species. We will also develop and implement a plan for monitoring and mitigating the effects of climate change on the refuge.
Under our preferred action, the levels of surveillance and enforcement with partners will be increased, and we will also provide additional equipment to improve enforcement capabilities on the refuge.
We will increase off-site environmental education and outreach to mainland communities and schools, and we will increase the availability of interpretive materials, such as brochures and fact sheets. Subject to safety concerns being met, we will increase on-site interpretation through signage and brochures and provide limited opportunities for refuge-guided wildlife observation and photography. We will continue to respond to special requests for non-wildlife-dependent uses that are appropriate and compatible.
We will continue to work with cooperating agencies and partners to increase safety on the refuge through the
This alternative will add a half-time public use or park ranger position and a half-time manager position to be shared with the Caribbean Islands National Wildlife Refuge Complex.
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd et seq.).
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that the Bureau of Land Management (BLM) will issue an appealable decision to convey certain lands to Oceanside Corporation. The decision approves the surface estate in the lands described below for conveyance pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601,
Containing 640 acres.
Notice of the decision will also be published once a week for four consecutive weeks in the
Any party claiming a property interest in the lands affected by the decision may appeal the decision in accordance with the requirements of 43 CFR part 4 within the following time limits:
1. Unknown parties, parties unable to be located after reasonable efforts have been expended to locate, parties who fail or refuse to sign their return receipt, and parties who receive a copy of the decision by regular mail which is not certified, return receipt requested, shall have until September 16, 2013 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4 shall be deemed to have waived their rights. Notices of appeal transmitted by electronic means, such as facsimile or email, will not be accepted as timely filed.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, Alaska 99513–7504.
The BLM by phone at 907–271–5960 or by email at
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 11) of the presiding administrative law judge granting an amended motion to terminate the remaining respondents based on a consent order. The Commission has issued the subject consent order; the investigation is hereby terminated.
James A. Worth, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–3065. Copies of non-confidential documents filed in connection with this investigation are or will be 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., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on May 1, 2013, based on a complaint filed on March 28, 2013, and supplemented on April 19, 2013, on behalf of ResMed Corporation of San Diego, California; ResMed Incorporated of San Diego, California; and ResMed Limited of Australia. 78 FR 25475 (May 1, 2013). The complaint alleged violations of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the sale for importation, importation, or sale within the United States after importation of certain sleep-disordered breathing treatment systems and components thereof by reason of infringement of one or more of claims 1, 2, 4, 5, 17 and 28 of U.S. Patent No. 6,216,691; claims 1 and 20 of U.S. Patent No. 6,935,337; claim 15 of U.S. Patent No. 7,159,587; claims 1, 5, 6, 11, 12, 18–20, 35 and 36 of U.S. Patent No. 7,487,772; claims 1–7 of U.S. Patent No. 7,614,398; claims 59, 60, 63, 72–75 of U.S. Patent No. 7,743,767; and claims 17, 21–24, 29, 32–37 of U.S. Patent No. 7,997,267. The Commission's notice of investigation named as respondents Apex Medical Corporation of New Taipei City, Taiwan and Apex Medical USA Corporation of Brea, California (collectively, “Apex”) and Medical Depot Inc., d/b/a Drive Medical Design & Manufacturing of Port Washington,
On July 2, 2013, Apex filed a motion to terminate the investigation based on a consent order, and on July 5, 2013, filed an amended motion based on a consent order stipulation and proposed consent order. On July 16, 2013, Complainants filed a response in opposition, and the the Commission investigative attorney filed a response in support of the motion. On July 17, 2013, the administrative law judge issued Order No. 11, granting the motion to terminate the investigation and staying the procedural schedule. The administrative law judge found termination to be in the public interest. That part of Order No. 11 which terminates the investigation constitutes an initial determination.
There were no petitions for review. Having considered the ID and proposed consent order and the relevant portions of the record, the Commission has determined not to review the subject ID. The Commission has issued the consent order, and the investigation is terminated.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of Part 210 of the Commission's Rules of Practice and Procedure (19 CFR Part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 5) of the presiding administrative law judge (“ALJ”) granting Google, Inc.'s unopposed motion to intervene.
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–3115. Copies of non-confidential documents filed in connection with this investigation are or will be 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., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation under section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, on June 26, 2013, based on a complaint filed by Nokia Corporation of Espoo, Finland and Nokia Inc., of Sunnyvale, California (collectively, “Nokia”). The complaint, as supplemented, alleges a violation of section 337 by reason of infringement of certain claims of U.S. Patent Nos. 6,035,189 (“the `189 patent”); 6,373,345; 6,711,211 (“the `211 patent”); 7,187,945; 8,140,650 (“the `650 patent”); and 8,363,824. 78 FR 38362 (Jun. 26, 2013). The respondents are HTC Corporation of Taoyuan City, Taiwan, and HTC America, Inc. of Bellevue, Washington (collectively, “HTC”).
On July 11, 2013, third party Google Inc. (“Google”) filed a motion to intervene as a party in this investigation with respect to three of the six patents, namely the `189, `211 and `650 patents. The motion states that neither complainants Nokia nor respondents HTC oppose the motion.
On July 16, 2013, the ALJ issued an ID (Order No. 5) granting Google's motion. The ALJ found,
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42–.46 of the Commission's Rules of Practice and Procedure (19 CFR 210.42–.46).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 in this investigation and has issued a limited exclusion order prohibiting respondents Samsung Electronics Co, Ltd. of the Republic of Korea (“SEC”); Samsung Electronics America, Inc. of Ridgefield Park, New Jersey (“SEA”); and Samsung Telecommunications America, LLC of Richardson, Texas (“STA”) (collectively, “Samsung”), from importing certain electronic digital media devices that infringe one or more of claims 1, 4–6, 10, and 17–20 of U.S. Patent No. 7,479,949 (“the '949 patent”) and claims 1–4 and 8 of U.S. Patent No. 7,912,501 (“the '501 patent”). The Commission has also issued cease and desist orders prohibiting SEA and STA from further importing, selling, and distributing articles that infringe one or more of claims 1, 4–6, 10, and 17–20 of the '949 patent and claims 1–4 and 8 of the '501 patent in the United States. The Commission has found no violation based on U.S. Patent Nos. D618,678 (“the D'678 patent”); D558,757 (“the D'757 patent”); RE 41,922 (“the '922 patent”); and 7,789,697 (“the '697 patent”). The Commission's determination is final, and the investigation is terminated.
Cathy Chen, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2392. Copies of non-confidential documents filed in connection with this investigation are or will be available for
The Commission instituted this investigation on August 5, 2011, based on a complaint filed by Apple Inc. (“Apple”) of Cupertino, California. 76 FR 47610 (Aug. 5, 2011). The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain electronic digital media devices and components thereof by reason of infringement of certain claims of the '949, the '922, the '697, the '501, the D'757, and the D'678 patents, and U.S. Patent No. 7,863,533 (“the '533 patent”). Samsung was named as a respondent in the Commission's notice of investigation. A Commission investigative attorney (“IA”) participated in the investigation.
On May 3, 2012, the presiding administrative law judge (“ALJ”) issued an initial determination (“ID”) partially terminating the investigation with respect to all claims of the '533 patent; claims 1–3, 11, 12, 15, 16 and 21–27 of the '697 patent; and claim 3 of the '949 patent (Order No. 17) (not reviewed by the Commission, May 3, 2012).
On October 24, 2012, the ALJ issued his final ID in this investigation finding a violation of section 337 in connection with the claim of the D'678 patent; claims 1, 4–6 and 10–20 of the '949 patent; claims 29, 30 and 33–35 of the '922 patent; and claims 1–4 and 8 of the '501 patent. The ALJ found no violation of section 337 in connection with the claim of the D'757 patent; claims 31 and 32 of the '922 patent; and claims 13 and 14 of the '697 patent. The ALJ also found that the asserted claims were not shown to be invalid. The ALJ further found that a domestic industry in the United States exists that practices the '949, the '922, the '501, the D'757, and the D'678 patents, but not the '697 patent. On November 7, 2012, the ALJ issued his recommended determination on remedy and bonding.
Apple and Samsung filed timely petitions for review of various portions of the final ID, as well as timely responses to the petitions. The IA filed only a response to the petitions for review. On December 3, 2012, Apple and Samsung filed public interest comments pursuant to Commission rule 210.50(a)(4). That same day, non-party Google filed a submission in response to the Notice of Request for Statements on the Public Interest.
On January 23, 2013, the Commission determined to review the final ID in its entirety, and remand the investigation to the ALJ with respect to certain issues related to the '922 patent and the '501 patent, as set forth in the Remand Order. 78 FR 6130 (Jan. 29, 2013).
On March 26, 2013, the ALJ issued his remand initial determination (“RID”). The RID found that claims 34 and 35 of the '922 patent are infringed by the text-selection feature of the accused products and that claim 3 of the '501 patent is not infringed by the accused products represented by the Transform SPH–M920. On April 9, 2013, Apple and Samsung petitioned for review of the RID. The IA did not petition for review of the RID. On April 17, 2013, Apple, Samsung and the IA filed their respective responses to the petitions for review.
On May 28, 2013, the Commission determined to review the RID in its entirety. In connection with the Commission's review of the final ID and the RID, the parties were invited to brief certain issues, including issues related to remedy and the public interest. The Commission received responses from Apple, Samsung, and the IA addressing all of the Commission's questions. In response to the remedy and public interest questions posed to the public, the Commission received responses from the following: Americans for Job Security; Associated Carrier Group; Capital Policy Analytics; Congresswoman Eva M. Clayton; Congressmen Hakeem S. Jeffries and Henry C. Johnson, Jr.; Congressmen Bill Pascrell, Jr., Hank Johnson, Albio Sires, Dan Maffei, Terri Sewell, and Steve Israel; Congressman Pete Sessions; CTIA—The Wireless Association; Mr. Dennis C. Vacco, Esq.; Digital Liberty and Property Rights Alliance; Google, Inc.; Health IT Now.org; Hispanic Leadership Fund; Homecare Homebase, LLC; Institute for Policy Innovation; James Valley Telecommunications; Texas State Senator Ken Paxton; Texas State Senator Kirk Watson; The LIBRE Initiative; National Black Chamber of Commerce; National Grange of the Order of Patrons of Husbandry (“National Grange”); The Newborn Coalition; Revol Wireless; Senator Robert Menendez; Sprint Spectrum, L.P.; Taxpayers Protection Alliance; Ting Wireless; Congressman Trent Franks; American Agri-Women
Having examined the record of this investigation, including the ALJ's final ID, RID and submissions from the parties, the Commission has determined that Apple has proven a violation of section 337 based on articles that infringe claims 1, 4–6, 10, and 17–20 of the '949 patent and claims 1–4 and 8 of the '501 patent. Specifically, with respect to the '949 patent, the Commission has determined to affirm the ALJ's constructions of disputed claim terms and his conclusion that Apple has proven a violation of section 337 based on articles that infringe claims 1, 4–6, 10, and 17–20 of the '949 patent. The Commission affirms, with modified reasoning, the ALJ's conclusion that Apple failed to prove that Samsung contributorily infringes claims 11–16 of the '949 patent. The Commission, however, has determined to reverse the ALJ's conclusion that Apple has proven that Samsung induced infringement of claims 11–16 of the '949 patent. With some modifications to the ALJ's analysis, the Commission has also determined that the record supports the ALJ's conclusions that the Continuum SCH–1400 infringes all of the asserted claims of the '501 patent; that the accused Samsung devices represented by Transform SPH–M920 infringe claims 1–2 and 8, but not claims 3 and 4 of the '501 patent; and that the accused Samsung devices represented by Galaxy Tab 7.0 and Galaxy S II do not infringe any of the asserted claims of the '501 patent. The Commission has further determined that the asserted claims of the '949 and the '501 patents have not been proven by Samsung to be invalid and that Apple has proven that a domestic industry exists in the United States relating to articles protected by the '949 and the '501 patents.
In addition, the Commission has determined that Apple has not proven a violation based on alleged infringement of the D'678, the D'757, the '922, and the '697 patents. Specifically, the Commission has determined that the asserted claim of the D'678 patent is valid but not infringed, and that Apple's iPhone, iPhone 4 and iPhone 4S practice the D'678 patent, but not the iPhone 3G and iPhone 3GS. The Commission has also determined that the asserted claim of the D'757 patent is
The Commission has determined that the appropriate remedy is a limited exclusion order prohibiting Samsung from importing certain electronic digital media devices that infringe one or more of claims 1, 4–6, 10, and 17–20 of the '949 patent and claims 1–4 and 8 of the '501 patent. The Commission has also determined to issue cease and desist orders prohibiting SEA and STA from further importing, selling, and distributing articles that infringe one or more of claims 1, 4–6, 10, and 17–20 of the '949 patent and claims 1–4 and 8 of the '501 patent in the United States. The orders do not apply to the adjudicated design around products found not to infringe the asserted claims of the '949 and the '501 patents as identified in the final ID. The Commission has carefully considered the submissions of the parties and the public and has determined that the public interest factors enumerated in section 337(d)(1) and (f)(1) do not preclude issuance of the limited exclusion order and cease and desist orders.
Finally, the Commission has determined that excluded mobile phones, media players, and tablet computers may be imported and sold in the United States during the period of Presidential review (19 U.S.C. 1337(j)) with the posting of a bond in the amount of 1.25 percent of the entered value. The Commission's order and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR Part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in its entirety a final initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”), finding no violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in this investigation.
Robert Needham, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708–5468. Copies of non-confidential documents filed in connection with this investigation are or will be 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., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission instituted this investigation on June 6, 2012, based on a complaint filed by Rovi Corporation; Rovi Guides, Inc.; Rovi Technologies Corporation; Starsight Telecast, Inc.; United Video Properties, Inc.; and Index Systems, Inc. (collectively, “Complainants”). 77 FR 33487–88. The respondents are LG Electronics, Inc.; LG Electronics U.S.A., Inc. (collectively, “LGE”); Mitsubishi Electric Corp.; Mitsubishi Electric US Holdings, Inc.; Mitsubishi Electric and Electronics USA, Inc.; Mitsubishi Electric Visual Solutions America, Inc.; Mitsubishi Digital Electronics America, Inc. (collectively, “Mitsubishi”); Netflix Inc. (“Netflix”); Roku, Inc. (“Roku”); and Vizio, Inc (“Vizio”). The Office of Unfair Import Investigations is not participating in this investigation.
Originally, Complainants asserted numerous claims from seven patents against various respondents. Complainants later moved to terminate the investigation as to three of the seven patents, as to certain claims of one of the remaining four patents, and as to respondents LGE, Mitsubishi, and Vizio. Order No. 9 (Sept. 4, 2012),
On June 7, 2013, the presiding ALJ issued his final ID, finding no violation of section 337. Specifically, the ALJ found that none of the accused products met the importation requirement of section 337. While the ALJ found that his importation finding was dispositive, the ALJ made additional findings in the event that the Commission determined that the importation requirement was met. The ALJ found that no party infringed any of the four asserted
On June 24, 2013, Complainants filed a petition for review challenging the ALJ's findings that the importation requirement is not met, that Netflix does not induce infringement, and that the economic prong of the domestic industry is not met by Complainants' licensing activity. That same day, the respondents Netflix and Roku filed a joint contingent petition for review arguing additional bases for finding no violation. On July 2, 2013, the parties filed oppositions to each other's petitions.
Having examined the record of this investigation, including the ALJ's final ID, the petitions for review, and the responses thereto, the Commission has determined to review the final ID in its entirety.
The parties are requested to brief their positions on the issues under review with reference to the applicable law and the evidentiary record. In connection with its review, the Commission is particularly interested in briefing on the following issues:
1. Whether direct infringement being carried out by non-imported Netflix servers and Netflix user interfaces affects whether the Netflix SDK induces infringement at the time of importation. Additionally, explain how the Commission Opinion in
2. Whether Complainants' licensing of the Netflix Ready Devices pursuant to the LGE and Vizio licenses affects whether the accused Netflix software infringes.
3. Whether Netflix's provision of its SDK pursuant to its agreements with LGE and Vizio constitutes a “sale” within the meaning of section 337(a)(1)(B).
4. Identify the specific software that allegedly induces infringement of each of the asserted patents, and explain where such software is present in both the Netflix software allegedly “sold for importation” and in the Netflix Ready Devices imported into the United States. Or explain why no such software exists.
5. Explain specifically how the Netflix SDK itself induces infringement of each of the asserted patents. Or explain why the Netflix SDK itself does not induce infringement of each of the asserted patents.
6. Whether Netflix may induce infringement where the direct infringement is carried out by Netflix servers and Netflix user interfaces.
7. For each claim that Netflix is accused of inducing infringement, explain who or what carries out the direct infringement for each claim limitation.
The parties have been invited to brief only the discrete issues described above, with reference to the applicable law and evidentiary record. The parties are not to brief other issues on review, which are adequately presented in the parties' existing filings.
In connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue a cease and desist order that could result in the respondent being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background,
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or a cease and desist order would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the investigation number (“Inv. No. 337–TA–845”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42–46 of the Commission's Rules of Practice and Procedure (19 CFR 210.42–46).
By order of the Commission.
Advisory Committees on Rules of Bankruptcy and Civil Procedure, Judicial Conference of the United States.
Notice of proposed amendments and open hearings.
The Advisory Committees on Rules of Bankruptcy and Civil Procedure have proposed amendments to the following rules and forms:
Public hearings are scheduled to be held on the amendments to:
• Bankruptcy Rules in Chicago, Illinois, on January 17, 2014, and in Washington, DC, on January 31, 2014;
• Civil Rules in Washington, DC, on November 7, 2013, in Phoenix, Arizona, on January 9, 2014, and in Dallas, Texas, on February 7, 2014.
Those wishing to testify should contact the Secretary at the address below in writing at least 30 days before the hearing. All written comments and suggestions with respect to the proposed amendments may be submitted on or after the opening of the period for public comment on August 15, 2013, but no later than February 15, 2014. Written comments can be submitted electronically, following the instructions provided at:
The text of the proposed rules amendments and the accompanying Committee Notes can be found at the United States Federal Courts' Web site at
Jonathan C. Rose, Secretary, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Thurgood Marshall Federal Judiciary Building, Washington, DC 20544, Telephone (202) 502–1820.
Notice is hereby given that, on July 10, 2013, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(b) of the Act, the identities of the parties to the venture are: ABC American Broadcasting Corporation, New York, NY; Advanced Advertising Forum, Watauga, TX; ALC NetworX, Munich, GERMANY; Altera Corp., San Jose, CA; Arista Networks, Santa Clara, CA; AT&T, Dallas, TX; Athlone Institute of Technology, Westmeath, IRELAND; Audinate, Inc., Portland, OR; AVA Networks, Boulder, CO; Avid Technology, Londonderry, NH; Ray Baldock (Individual), Nevada City, CA; David Bancroft (Individual), Reading, UNITED KINGDOM; Barco, Duluth, GA; Bosch Communications, Burnsville, MN; British Broadcast Corporation, London, Surrey, UNITED KINGDOM; BskyB Ltd, Isleworth, UNITED KINGDOM; CBC Radio Canada, Montreal, Quebec, CANADA; CBS, New York, NY; CDG—CineDesignGroup, Rome, ITALY; Ciena, Kanata, Ontario, CANADA; Cinegy, Munich, GERMANY; Cisco, San Jose, CA; Cobalt Digital Inc., Urbana, IL; Coral Sea Studios P/L, Clifton Beach, Queensland, AUSTRALIA; Crystal Solutions, Buford, GA; Peter Dare (Individual), Queensland, AUSTRALIA; CS Meyer, Inc., Grass Valley, CA; Devoncroft Partners, Coronado, CA; Dimension Data, Oberursel, GERMANY; Dimetis GmbH, Dietzenbach, GERMANY; DIRECTV, El Segundo, CA; Discovery Communications, LLC, Oak Hill, VA; Distrito Telefonica, Madrid, SPAIN; Diversified Systems Inc., Kenilworth, NJ; Dolby, Porter Ranch, CA; James Donahue (Individual), Plainville, MA; DVBLink, Inc., Mount Vernon, IA; Bob Edge TV Consulting, Tualatin, OR; Elemental Technologies, Portland, OR; Encompass Digital Media, Los Angeles, CA; Ericsson Television Ltd, Southampton, UNITED KINGDOM; ESPN, Bristol, CT; Evertz, Burlington, Ontario, CANADA; European Broadcasting Union, Le Grand-Saconnex, Geneva, SWITZERLAND; EVS Broadcast Equipment SA, Seraing, BELGIUM; FOX, Los Angeles, CA; Fraunhofer IDMT, Ilmaneu, GERMANY; Fraunhofer FOKUS Research Institute, Berlin, GERMANY; Front Porch Digital, Mt Laurel, NJ; Fujitsu Frontech North America, Toms River, NJ; GIC, Calabasas, CA; GigaContent A/S, Skanderborg, DENMARK; GoPro, San Mateo, CA; Grass Valley, San Francisco, CA; Harmonic Inc., Portland, OR; Harris Broadcast Corporation, Toronto, Quebec, CANADA; HD Consulting, Sewickley, PA; Home Box Office, Norwalk, CT; HRT, Zagreb, CROATIA; IABM, Gloucestershire, UNITED KINGDOM; IneoQuest Technologies, Inc., Mansfield, MA; Internet2, Ann Arbor, MI; intoPIX, Louvain-La-Neuve, BELGIUM; Iowa Public Television, Johnston, IA; IRIB, Tehran, IRAN; IRT GmbH, Munich, GERMANY; ISAN IA, Geneva, SWITZERLAND; Johnson
The general area of JT–NM's planned activity is to ensure interoperability in packet-based systems (networking, equipment and software) for professional media. This includes defining specifications for an agile, on-demand, packet-based network infrastructure designed to support a variety of distributed, automated, professional media (file-and stream-based) workflows for local, regional and global production supporting any standards-based format for interoperability that will facilitate new workflows and reduce total cost of ownership and to speed-up content time-to-market.
Notice is hereby given that, on July 22, 2013, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and PXI Systems Alliance, Inc. intends to file additional written notifications disclosing all changes in membership.
On November 22, 2000, PXI Systems Alliance, Inc. filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on May 8, 2013. A notice was published in the
Notice is hereby given that, on July 16, 2013, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
The following members have changed their names: France Telecom to France Telecom Orange, Paris, FRANCE; Infosys Technologies Ltd. to Infosys Ltd., Bangalore, INDIA; MDS to Martin Dawes Systems Ltd. (MDS), Warrington, UNITED KINGDOM; INTRACOM S.A. TELECOM SOLUTIONS to Intracom Telecom, PEANIA, GREECE; SPATIALinfo to Synchronoss, Bridgewater, NJ; Net Servicos—Membership to Net Servicos, Chacara Santo Antonio, BRAZIL; Sooth Inc. to Sooth Technology, Pepper Pike, OH; EnStratus Networks (UK) Limted to Enstratius, Edinburgh, UNITED KINGDOM; OSX Telecomunicacoes S.A. (Visent) to Vísent, Brasilia, BRAZIL; and VTH Solutions LLC d/b/a Cignium Technologies to Cignium Technologies, Fort Lee, NJ.
The following members have withdrawn as parties to this venture: 7P Solutions & Consulting AG, Koeln, GERMANY; Belgacom, S.A., Brussels, BELGIUM; Calltrix Ltd., London, UNITED KINGDOM; Cassidian Systems (formerly Cogent Defence and Security Systems), Newport, UNITED KINGDOM; Digicel Fiji, Suva, FIJI; Digicel Group, Kingston, JAMAICA; Digicel Haiti, Port-au-Prince, HAITI; Digicel Jamaica Ltd., Kingston, JAMAICA; Digicel Panama S.A., Panama, PANAMA; Digicel PNG, Brisbane, AUSTRALIA; Digicel Trinidad, Port of Spain, TRINIDAD AND TOBAGO; ECI Telecom Ltd., Petach Tikva, ISRAEL; Equant, Valbonne, FRANCE; EXIS I.T., Athens, GREECE; France Telecom-Orange, Almondsbury, UNITED KINGDOM; HIKESIYA Co., Ltd., Yokohama-City, JAPAN; Innovise ESM Ltd., Slough, UNITED KINGDOM; Layer 7 Technologies, Vancouver, CANADA; Logica, Green Park, UNITED KINGDOM; Momac, Boca Raton, FL; Neuralitic, Montreal, CANADA; Nexio, Warsaw, POLAND; Nextgen Networks Pty Ltd., Melbourne, AUSTRALIA; NextGenTel AS, Bergen, NORWAY; Progress Software, Waltham, MA; QualiSystems, Ganey-Tikva, ISRAEL; Square Hoop Ltd., Stanmore, UNITED KINGDOM; Sykora Data Center, Ostrava, CZECH REPUBLIC; Synaptitude, Vienna, VA; T-Mobile (UK), Hatfield, UNITED KINGDOM; T-Mobile Hungary Communications Company Ltd. by Shares, Budapest, HUNGARY; Tree Technologies Pvt. Ltd., Bangalore, INDIA; and VMware, Inc., Palo Alto, CA.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and the Forum intends to file additional written notifications disclosing all changes in membership.
On October 21, 1988, The Forum filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on April 2, 2013. A notice was published in the
Notice is hereby given that, on July 9, 2013, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and CableLabs intends to file additional written notifications disclosing all changes in membership.
On August 8, 1988, CableLabs filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on November 13, 2012. A notice was published in the
Bureau of Prisons, Justice.
Notice.
The fee to cover the average cost of incarceration for Federal inmates in Fiscal Year 2012 was $29,027.46 ($79.31 per day). (Please note: There were 366 days in FY 2012.) The average annual cost to confine an inmate in a Community Corrections Center for Fiscal Year 2012 was $27,003 ($73.78 per day).
Office of General Counsel, Federal Bureau of Prisons, 320 First St. NW., Washington, DC 20534.
Sarah Qureshi, (202) 307–2105.
28 CFR part 505 allows for assessment and collection of a fee to cover the average cost of incarceration for Federal inmates. We calculate this fee by
Under § 505.2, the Director of the Bureau of Prisons determined that, based upon fiscal year 2012 data, the fee to cover the average cost of incarceration for Federal inmates in Fiscal Year 2012 was $29,027.46 ($79.31 per day). (Please note: There were 366 days in FY 2012.) The average annual cost to confine an inmate in a Community Corrections Center for Fiscal Year 2012 was $27,003 ($73.78 per day).
Employee Benefits Security Administration, Department of Labor.
Notice.
The Department of Labor (the Department), in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the information collection requirements and provide the requested data in the desired format. Currently, the Department is soliciting comments on the information collection requests (ICRs) described in this notice.
Written comments must be submitted to the office shown in the Addresses section on or before October 15, 2013.
Direct all written comments regarding the information collection request and burden estimates to G. Christopher Cosby, Office of Policy and Research, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N–5647, Washington, DC 20210. Telephone: (202) 693–8410; Fax: (202) 219–4745. These are not toll-free numbers. Comments may also be submitted electronically to the following Internet email address:
This notice seeks public comment on the requests for extension of the Office of Management and Budget (OMB) approval of ICRs described in this notice. The Department is not proposing any changes to the existing ICRs at this time. An agency may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a valid OMB control number. A summary of the ICRs and their current burden estimates follows:
Beginning January 1, 2014, individuals and employees of small businesses will have access to affordable coverage through a new competitive private health insurance market—the Health Insurance Marketplace. The Marketplace offers one-stop shopping to find and compare private health insurance options. Open enrollment for health insurance coverage through the Marketplace begins October 1, 2013.
Section 1512 of the Affordable Care Act creates a new Fair Labor Standards Act (FLSA) section 18B requiring a notice to employees of coverage options available through the Marketplace. On May 8, 2013, the Department issued Technical Release 2013–2, which provides temporary guidance regarding the notice requirement under FLSA section 18B and announces the availability of the Model Notice to Employees of Coverage Options.
On May 10, 2013, the Office of Management and Budget (OMB) approved the model notice under OMB Control Number 1210–0149 pursuant to the emergency procedures for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. Chapter 35) and 5 CFR 1320.13. OMB approval of the revision currently is scheduled to expire on November 30, 2013.
Employee Retirement Income Security Act of 1974 (ERISA) section 101(f) sets forth the requirements for plan administrators of most single-employer DB plans to furnish annual funding notices to the PBGC, plan participants and beneficiaries, and each labor organization representing such participants or beneficiaries. MAP–21 section 40211(b)(2)(A) has amended ERISA section 101(f)(2), by adding a new subparagraph (D), to require single-employer DB plan administrators to disclose additional information in the annual funding notice for a plan year beginning after December 31, 2011, and before January 1, 2015, regarding the effect of the MAP–21 segment rate stabilization rules on plan liabilities and the plan sponsor's minimum required contributions to the plan. MAP–21 section 40211(b)(2)(B) requires the Department to modify the model annual funding notice required under Pension Protection Act of 2006 (PPA) section 501(c) to include, prominently, the supplemental information required under new ERISA section 101(f)(2)(D).
On March 8, 2013, the Department released EBSA Field Assistance Bulletin (FAB) 2013–01 concerning the new disclosure requirements mandated the MAP–21. The FAB addresses a need for interim guidance pending the adoption of regulations or other guidance under ERISA section 101(f), as amended by the MAP–21. The FAB sets forth technical questions and answers and provides a model supplement that plan administrators may use to discharge their MAP–21 disclosure obligations and provides that, pending further guidance and as a matter of enforcement policy, the Department will treat a single employer DB plan administrator as satisfying MAP–21 requirements if the plan administrator complies with the guidance in the memorandum and otherwise acts in accordance with a good faith and reasonable interpretation of those requirements.
On April 19, 2013, the Office of Management and Budget (OMB) approved the model supplement as a revision to OMB Control Number 1210–0126 under the emergency procedures for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. Chapter 35) and 5 CFR 1320.13. OMB approval of the revision currently is scheduled to expire on December 31, 2013.
The Department is particularly interested in comments that:
• 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;
• 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;
• Enhance the quality, utility, and clarity of the information to be collected; and
• 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 submissions of responses.
Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the extension of the information collection; they will also become a matter of public record.
Employment and Training Administration (ETA), Labor.
Notice of a public meeting.
Pursuant to Section 10 of the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2 § 10), notice is hereby given to announce a public meeting of the Advisory Committee on Apprenticeship (ACA) on Tuesday, September 17, 2013 and Thursday, September 19, 2013. The ACA is a discretionary committee established by the Secretary of Labor, in accordance with FACA, as amended in 5 U.S.C. App. 2, and its implementing regulations (41 CFR parts 101–6 and 102–3). All meetings of the ACA are open to the public.
The meeting will begin at approximately 1:30 p.m. Eastern Standard Time on Tuesday, September 17, 2013, via webinar, and will continue until approximately 4:00 p.m. The meeting will reconvene on Thursday, September 19, 2013, at the U.S. Department of Labor, at approximately 8:30 a.m. Eastern Standard Time and adjourn at approximately 4:00 p.m.
The Designated Federal Official, Mr. John V. Ladd, Administrator, Office of Apprenticeship, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N–5311, Washington, DC 20210, Telephone: (202) 693–2796 (this is not a toll-free number).
In order to promote cost savings, the ACA will convene virtually on Tuesday, September 17, 2013, and face-to-face at the U.S. Department of Labor on September 19, 2013. The first day of the meeting will take place via webinar and audio-video conference technology. Web and audio instructions to participate in this meeting will be prominently posted on the OA homepage:
1. Present a valid photo ID to receive a visitor badge.
2. Know the name of the event you are attending: the meeting event is the Advisory Committee on Apprenticeship.
3. Visitor badges are issued by the security officer at the Visitor Entrance located at 3rd and C Streets NW. When you receive your visitor badge, the
4. Laptops and other electronic devices may be inspected and logged for identification purposes.
5. Due to limited parking options, Metro rail is the easiest way to access the Frances Perkins Building.
The agenda may be updated should priority items come before the ACA between the time of this publication and the scheduled date of the ACA meeting. All meeting updates will be posted to the Office of Apprenticeship's homepage:
Mine Safety and Health Administration (MSHA), Labor.
Notice.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and 30 CFR part 44 govern the application, processing, and disposition of petitions for modification. This
Copies of the final decisions are posted on MSHA's Web site at
Roslyn B. Fontaine, Office of Standards, Regulations and Variances at 202–693–9475 (Voice),
Under section 101 of the Federal Mine Safety and Health Act of 1977, a mine operator may petition and the Secretary of Labor (Secretary) may modify the application of a mandatory safety standard to that mine if the Secretary determines that: (1) an alternative method exists that will guarantee no less protection for the miners affected than that provided by the standard; or (2) that the application of the standard will result in a diminution of safety to the affected miners.
MSHA bases the final decision on the petitioner's statements, any comments and information submitted by interested persons, and a field investigation of the conditions at the mine. In some instances, MSHA may approve a petition for modification on the condition that the mine operator complies with other requirements noted in the decision.
On the basis of the findings of MSHA's investigation, and as designee of the Secretary, MSHA has granted or partially granted the following petitions for modification:
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Mine Safety and Health Administration, Labor.
Notice.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and 30 CFR part 44 govern the application, processing, and disposition of petitions for modification. This notice is a summary of petitions for modification submitted to the Mine Safety and Health Administration (MSHA) by the parties listed below to modify the application of existing mandatory safety standards codified in Title 30 of the Code of Federal Regulations.
All comments on the petitions must be received by the Office of Standards, Regulations and Variances on or before September 16, 2013.
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
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3.
MSHA will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments.
Barbara Barron, Office of Standards, Regulations and Variances at 202–693–9447 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor determines that:
(1) An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
(2) That the application of such standard to such mine will result in a diminution of safety to the miners in such mine.
In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modification.
(1) This petition will apply only to trailing cables supplying three-phase, 575-volt power for permissible pumps.
(2) The maximum length of the 575-volt trailing cables supplying power for permissible pumps will be 4,000 feet.
(3) All circuit breakers used to protect trailing cables exceeding the trailing cables approval length or Table 9 in Appendix I to Subpart D (specifications for portable cables longer than 500 feet) of 30 CFR part 18 will have an instantaneous trip unit calibrated to trip at 70 percent of phase-to-phase short-circuit current. The trip setting of these circuit breakers will be sealed or locked, and the circuit breakers will have permanent, legible labels. Each label will identify the circuit breaker as being suitable for protecting the trailing cables. This label will be maintained to remain legible.
(4) In instances where a 70 percent instantaneous set point will not allow a pump to start due to motor inrush, a thermal magnetic breaker will be no greater than 70 percent of the available short-circuit current and the instantaneous setting will be adjusted one setting above the motor inrush trip point. This setting will also be sealed or locked.
(5) Replacement instantaneous trip units used to protect pump trailing cables exceeding required lengths of cables will be calibrated to trip at 70 percent of the available phase-to-phase short-circuit current. This setting will be sealed or locked.
(6) Permanent warning labels will be installed and maintained on the covers of the power center to identify the location of each sealed or locked short-circuit protection device. These labels are intended to warn miners not to change or alter these short-circuit settings.
(7) All pump installations with cable lengths that are specified in Table 9 in Appendix I to 30 CFR part 18 subpart D will have short-circuit surveys conducted and paragraphs (1)–(5) will be implemented. A copy of each pump short-circuit survey will be available at the mine site for inspection.
(8) The alternative method will not be implemented until miners who have been designated to examine the integrity of seals or locks, verify the short-circuit setting, and follow proper procedures for examining trailing cables for defects and damage have received the elements of training in paragraph (9).
(9) Within 60 days after this petition is granted, proposed revisions for approved 30 CFR part 48 training plans will be submitted to the District. The proposed training will include the following elements:
(a) Training in mining methods and operating procedures that will protect the trailing cables against damage.
(b) Training in the proper procedures for examining the trailing cables to ensure the cables are in a safe operating condition.
(c) Training in hazards of setting the instantaneous circuit breakers too high to adequately protect the trailing cables.
(d) Training in how to verify the circuit interrupting device(s) protecting the trailing cable(s) are properly set and maintained.
The petitioner further states that the procedures of 30 CFR 48.3 for approval of proposed revisions to already approved training cables will apply.
The petitioner asserts that the proposed alternative method will guarantee no less than the same measure of protection to the miners as would be provided by the existing standard.
1. The petitioner proposes, prior to mining through any oil or gas well at its Peerless Rachel Mine, to provide the District Manager (DM) a declaration stating that all mandatory procedures for cleaning out, preparing, and plugging each gas or oil well have been completed. The declaration will be accompanied by down-hole logs.
2. The techniques and procedures in this petition are limited to oil and gas wells that have a maximum depth of 5,000 feet or less.
a. The petitioner proposes to use the following procedures when cleaning out and preparing oil and gas wells prior to plugging or replugging:
(1) Clean out the well from the surface to at least 200 feet below the base of the
(2) Remove all of the casing in the well or, if it is not possible to remove all of the casing, fill the annulus between the casings and between the casings and the well walls with expanding cement (minimum 0.5 percent expansion on setting) and ensure that these areas contain no voids. If the casing cannot be removed, cut or mill it at all mineable coal seam levels and perforate or rip it at least every 50 feet from at least 200 feet below the base of the lowest mineable coal seam up to 100 feet above the uppermost mineable coal seam. When multiple casing and tubing strings are present in the coal horizon(s), perforate or rip any casing that remains and fill with expanding cement. Keep an acceptable casing bond log for each casing and tubing string used in lieu of ripping or perforating multiple strings.
(3) Place a mechanical bridge plug in the well, if a cleaned-out well emits excessive amounts of gas. Place the mechanical bridge plug in a competent stratum at least 200 feet below the base of the lowest mineable coal seam, but above the top of the uppermost hydrocarbon-producing stratum.
(4) Prepare down-hole logs for each well. The logs will consist of a caliper survey and be suitable for determining the top, bottom, and thickness of all coal seams and potential hydrocarbon-producing strata and the location for a bridge plug. In addition, maintain a journal describing the length and type of each material used to plug the well; the length of casings removed, perforated or ripped, or left in place; any sections where casing was cut or milled; and other pertinent information concerning cleaning and sealing the well.
(5) Properly place mechanical bridge plugs to isolate the hydrocarbon-producing stratum from the expanding cement plug, if the upper-most hydrocarbon-producing stratum is within 300 feet of the base of the lowest mineable coal seam. Nevertheless, place a minimum of 200 feet of expanding cement below the lowest mineable coal seam.
b. The petitioner proposes to use the following procedures for plugging or replugging oil or gas wells to the surface:
(1) Pump expanding cement slurry down the well to form a plug that runs from at least 200 feet below the base of the lowest mineable coal seam to the surface. Place the expanding cement in the well under a pressure of at least 200 pounds per square inch. Portland cement or a lightweight cement mixture may be used to fill the area from 100 feet above the top of the uppermost mineable coal seam. A gel that supports the wall of the borehole and increases the density of the expanding cement may be used to provide the placement pressure.
(2) Embed steel turnings or other small magnetic particles in the top of the cement near the surface to serve as a permanent magnetic monument of the well. In the alternative, extend a 4
c. The petitioner proposes to use the following procedures for plugging or replugging oil and gas wells for subsequent use as degasification boreholes:
(1) Set a cement plug in the well by pumping expanding cement slurry down the tubing to provide at least 200 feet of expanding cement below the lowest mineable coal seam. Place the expanding cement in the well under a pressure of at least 200 pounds per square inch. Extend the top of the expanding cement at least 30 feet above the top of the coal seam being mined.
(2) Securely grout a suitable casing into the bedrock of the upper portion of the degasification well to protect it. The remainder of this well may be cased or uncased.
(3) Cement the annulus between the degasification casing and the borehole wall from a point immediately above the slots or perforations in the pipe to the surface.
(4) Clean out the degasification casing to its total length.
(5) Fit the top of the degasification casing with a wellhead, equipped as required by the DM in the approved ventilation plan. Such equipment may include check valves, shut-in valves, sampling ports, flame arrestor equipment, and security fencing.
(6) After the area of the coal mine that is degassed by a well is sealed or the coal mine is abandoned, seal the degas holes using the following procedures:
(i) Insert a tube to the bottom of the drill hole or, if not possible, to at least 100 feet above the coal seam. Remove any blockage to ensure that the tube is inserted to this depth.
(ii) Set a cement plug in the well by pumping Portland cement or a lightweight cement mixture down the tubing until the well is filled to the surface.
(iii) Embed steel turnings or other small magnetic particles in the top of the cement near the surface to serve as a permanent magnetic monument of the well. In the alternative, extend a 4
d. The petitioner proposes to use the following procedures for preparing and plugging or replugging oil or gas wells that cannot be completely cleaned out:
(1) Drill a hole adjacent and parallel to the well to a depth of at least 200 feet below the lowest mineable coal seam.
(2) Locate any casing that may remain in the well using a geophysical sensing device.
(3) If the well contains casings, drill into the well from the parallel hole and perforate or rip all casings at intervals of at least 5 feet from 10 feet below the coal seam to 10 feet above the coal seam. Beyond that distance, perforate or rip all casings at least every 50 feet from at least 200 feet below the base of the lowest mineable coal seam up to 100 feet above the seam being mined. Fill the annulus between the casings and between the casings and the well wall with expanding cement (minimum of 0.5% expansion on setting), and ensure that these areas contain no voids. When multiple casing and tubing strings are present in the coal horizons, rip or perforate any casing that remains and fill with expanding cement. Provide an acceptable casing bond log for each casing and tubing used in lieu of ripping or perforating multiple strings.
(4) Use a horizontal hydraulic fracturing technique to intercept the original well where there is sufficient casing in the well to allow use of the method outlined in subparagraph (3) above. Fracture the original well in at least six places from at least 200 feet below the base of the lowest mineable coal seam to a point at least 50 feet above the seam being mined at intervals to be agreed on by the petitioner and the DM after considering the geological strata and the pressure within the well. Pump expanding cement into the fractured well in sufficient quantities and in a manner that fills all intercepted voids.
(5) Prepare down-hole logs for each well. The logs will consist of a caliper survey and be suitable for determining the top, bottom, and thickness of all coal seams and potential hydrocarbon-producing strata and the location for the bridge plug. Maintain a journal describing the length and type of each material used to plug the well; length of
(6) After plugging the well, plug the open portions of both holes from the bottom to the surface with Portland cement or a lightweight cement mixture.
(7) Embed steel turnings or other small magnetic particles in the top of the cement near the surface to serve as a permanent magnetic monument of the well. In the alternative, extend a 4
e. The petitioner proposes to use the following procedures after approval has been granted by the DM to mine through a plugged or replugged well:
(1) Prior to cutting-through a plugged well, notify the DM or designee, representative of the miners, and the appropriate State agency in sufficient time for them to have a representative present.
(2) Install drivage spads at the last open crosscut near the place to be mined to ensure intersection of the well when mining through wells using continuous mining equipment. The drivage spads will not be more than 50 feet from the well. Install distance markers along the headgate on 5-feet centers for 20 feet in advance of the well when using longwall-mining methods.
(3) Firefighting equipment, including fire extinguishers, rock dust, and sufficient fire hose to reach the working face area of the mine-through (when either the conventional or continuous mining method is used), will be available and operable during each well mine-through. Locate the fire hose in the last open crosscut of the entry or room. Maintain the water line to the belt conveyor tailpiece along with a sufficient amount of fire hose to reach the farthest point of penetration on the section.
(4) Keep available at the last open crosscut, a supply of roof support and ventilation materials sufficient to ventilate and support around the well on cut-through. In addition, keep emergency plugs available in the immediate area of the cut-through.
(5) Maintain the quantity of air required by the approved mine ventilation plan for both continuous and longwall mining.
(6) Check equipment for permissibility if it will be in by the last open crosscut during mine-through and service it on the shift prior to mining through the well.
(7) Calibrate the methane monitors on the longwall, continuous mining machine, or cutting machine and loading machine on the shift prior to mining through the well.
(8) When mining is in progress, test methane levels with a hand-held methane detector at least every 10 minutes from the time that mining with the continuous mining machine is within 20 feet of the well until the well is intersected and immediately prior to mining through it or from the time that mining with longwall mining equipment is within 10 feet of the well. No individual is allowed on the return side during the actual cutting process until the mine-through has been completed and the area examined and declared safe.
(9) Keep the working place free from accumulations of coal dust and coal spillages, and place rock dust on the roof, rib, and floor to within 20 feet of the face when mining through the well when using continuous or conventional mining methods. Conduct rock dusting on longwall sections on the roof, rib, and floor up to both the headgate and tailgate gob.
(10) Deenergize all equipment when the wellbore is intersected and thoroughly examine the place and determined it safe before resuming mining. No open flame is permitted in the area until adequate ventilation has been established around the wellbore.
(11) In rare instances, torches may be used for inadequately or inaccurately cut or milled casings at the coal seam level. No open flame is permitted in the area until adequate ventilation has been established around the wellbore and methane levels are less than 1.0 percent in all areas that will be exposed to flames and sparks from the torch. Apply a thick layer of rock dust to the roof, face, floor, ribs, and any exposed coal within 20 feet of the casing prior to any use of torches.
(12) After a well has been intersected and the working place determined safe, continue mining inby the well at a distance sufficient to permit adequate ventilation around the area of the wellbore.
(13) No person will be permitted in the area of the cut-through operation except those actually engaged in the mining operation, mine management, representative of the miners, personnel from MSHA, and personnel from the appropriate State agency.
(14) A certified official will directly supervise the cut-through operation and only the certified official in charge will issue instructions concerning the cut-through operation.
(15) Locate non-sparking (brass) tools on the working section in the event they are needed to expose and examine cased wells.
(16) Alert all personnel in the mine to the planned intersection of the well prior to their going underground if the planned intersection is to occur during their shift. Repeat this warning for all shifts until the well has been mined through. Mining may be conducted in other working sections during the intersection of the well.
(17) The responsible person required in 30 CFR 75.1501 will be responsible for well intersection emergencies. The responsible person will review the well intersection procedures prior to any planned intersection.
Within 60 days after this petition becomes final, the petitioner will submit proposed revisions for its approved part 48 training plan to the DM.
Within 30 days after this petition becomes final, the petitioner will submit proposed revisions for its approved mine emergency evacuation and firefighting plan required in 30 CFR 75.1501. The petitioner will revise the plans to include the hazards and evacuation procedures to be used for well intersections. All underground miners will be trained in this revised plan within 30 days of the DM's approval of the revised evacuation plan. Such training may be done in a weekly safety meeting or other type of appropriate setting.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure or protection afforded by the existing standard.
(1) Nonpermissible pumps will be located within the boreholes and the electrical components of the pump will always be separated from the mine atmosphere. The pump electric motors will be under water continuously.
(2) The three-phase 480, 2,400, or 4,160 voltage alternating-current electric power circuits for the pump(s) will be designed and installed to:
(a) Contain either a direct or a derived neutral that will be grounded through a suitable resistor at the source transformer or power center. A grounding circuit originating at the grounded side of the grounding resistor
(b) Contain a grounding resistor that limits the ground-fault current to not more than 6.5 amperes. The grounding resistor must be rated for the maximum fault current available and must be insulated from ground for a voltage equal to the phase-to-phase voltage of the system.
(3) The following protections for the pump power circuits will be provided by a suitable circuit interrupting device of adequate interrupting capacity with devices to provide protection against undervoltage, grounded phase, short circuit, and overload.
(a) The undervoltage protection device will operate on a loss of voltage to prevent automatic restarting of the equipment.
(b) The grounded phase protection device will be set not to exceed 50 percent of the current rating of the neutral grounding resistor.
(c) The short circuit protection device will not be set to exceed the required short circuit protection for the power cable or 75 percent of the minimum available phase-to-phase short circuit current, whichever is less.
(d) Each power circuit will contain a disconnecting device located on the surface and installed in conjunction with the circuit breakers to provide visual evidence that the power is disconnected.
(e) The disconnecting device(s) will include a means to visually determine if the pump power circuit(s) are disconnected and will be provided with a means to lock, tag-out, and ground the system(s).
(f) The disconnecting device(s) will be designed to prevent entry unless the disconnect handle is in the “off” position and the circuit is grounded.
(g) The disconnecting device(s) will be clearly identified and provided with warning signs stating, “Danger. Do not enter unless the circuit is opened, locked, tagged-out, and grounded.”
(4) The three-phase alternating current system will be provided with a low resistance grounding medium for the grounding of the lightning/surge arrestors for the high-voltage pump power circuit(s) that is separated from the neutral grounding medium by a distance of not less than 25 feet.
(5) The electric control circuit(s) for the pumps will meet the following requirements:
(a) The control circuit will be equipped with a probe circuit that determines a high and low water level.
(b) The low water probe will be located not less than 30 feet above the pump inlet and motor and electrical connections of the pump(s). When the water level reaches the low water probe, the pump(s) will cease operation and the pump(s) will not start in either the manual or the automatic mode.
(c) When the water level reaches the high water probe, the pump will start operation.
(d) The high and low water probes must consist of redundant electronic pressure transducers that are suitable for submersible pump control applications.
(e) All probe circuits will be protected by MSHA-approved intrinsically safe barriers.
(f) The grounded-phase protective circuit for pump(s) will be able to be tested by injecting a test current through the grounded phase current transformer.
(g) A remote control and monitoring system can be used with the pump system for condition monitoring and for remote startup and shutdown control of the pumps. The remote control and monitoring system will not allow reset of the pump power system when fault conditions (e.g., grounded phase, short circuit, or overload) exist on the system.
(h) Splices and connections made in submersible pump cables will be made in a workmanlike manner and will meet the requirements of 30 CFR 75.604.
(6) The surface pump control and power circuit(s) will be examined as required by 30 CFR 77.502.
(7) The power cable to the submersible pump motor(s) will be suitable for this application, have a current carrying capacity not less than 125 percent of the full load motor current of the submersible pump motor, and have an outer jacket suitable for a wet location. The power cable must be supported at the entrance to the borehole and throughout its length. The power pump cable will be secured, and with clamps, spaced approximately 25 feet apart, affixed to the discharge pipe casing.
(8) The pump installations will comply with all applicable 30 CFR requirements.
Within 60 days after this petition is granted, the petitioner will submit to the DM proposed revisions for their proposed part 48 training plan. These revisions will specify task training for all qualified mine electricians who perform electric work, monthly electrical examinations as required by 30 CFR 77.502, refresher training regarding the alternative method outlined in this petition, and the terms and conditions stated in the Proposed Decision and Order. The procedures of 30 CFR 48.3 for approval of proposed revisions to already approved training plans will apply.
The petitioner asserts that use of the proposed system described in this petition would prevent exposure of miners to unnecessary hazards, thereby increasing the measure of protection to the miners. Such submersible pumps have performed readily and are superior to the underground pumping systems that they replaced.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection to all miners as would be provided by the existing standard.
(1) To comply with requirements for mine ventilation maps and mine maps in 30 CFR 75.372 and 75.1200, use of the most practical and accurate surveying equipment is necessary.
(2) Application of the existing standard would result in a diminution of safety to the miners. Underground mining by its nature and size, and the complexity of mine plans, requires that accurate and precise measurements be completed in a prompt and efficient manner. The petitioner proposes the following as an alternative to the existing standard:
(a) Nonpermissible electronic surveying equipment will be used. Such nonpermissible surveying equipment includes portable battery-operated total station surveying equipment, mine transit distance meters, and data loggers.
(b) All nonpermissible electronic surveying equipment to be used in or inby the last open crosscut will be examined prior to use to ensure the equipment is being maintained in a safe operating condition. These examinations will include the following:
(i) Checking the instrument for any physical damage and the integrity of the case;
(ii) Removing the battery and inspecting for corrosion;
(iii) Inspecting the contact points to ensure a secure connection to the battery;
(iv) Reinserting the battery and powering up and shutting down to ensure proper connections; and
(v) Checking the battery compartment cover to ensure that it is securely fastened.
(c) The results of such examinations will be recorded and retained for one year and made available to MSHA on request.
(d) A qualified person as defined in 30 CFR 75.151 will continuously monitor for methane immediately before and during the use of nonpermissible surveying equipment in or inby the last open crosscut.
(e) Nonpermissible surveying equipment will not be used if methane is detected in concentrations at or above one percent for the area being surveyed. When methane is detected while the nonpermissible surveying equipment is being used, the equipment will be deenergized immediately and the nonpermissible electronic equipment withdrawn outby the last open crosscut.
(f) All hand-held methane detectors will be MSHA-approved and maintained in permissible and proper operating condition as defined in 30 CFR 75.320.
(g) Batteries in the surveying equipment must be changed out or charged in fresh air outby the last open crosscut.
(h) Qualified personnel who use surveying equipment will be properly trained to recognize the hazards associated with the use of nonpermissible surveying equipment in areas where methane could be present.
(i) The nonpermissible surveying equipment will not be put into service until MSHA has initially inspected the equipment and determined that it is in compliance with all the terms and conditions in this petition.
Within 60 days after the Proposed Decision and Order becomes final, the petitioner will submit proposed revisions for its approved 30 CFR part 48 training plan to the District Manager. The revisions will specify initial and refresher training regarding the terms and conditions in the Proposed Decision and Order.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection as that afforded by the existing standard.
(1) To comply with requirements for mine ventilation maps and mine maps in 30 CFR 75.372 and 75.1200, use of the most practical and accurate surveying equipment is necessary.
(2) Application of the existing standard would result in a diminution of safety to the miners. Underground mining by its nature and size, and the complexity of mine plans, requires that accurate and precise measurements be completed in a prompt and efficient manner. The petitioner proposes the following as an alternative to the existing standard:
(a) Nonpermissible electronic surveying equipment will be used in return airways. Such nonpermissible surveying equipment includes, but is not limited to, portable battery-operated total station surveying equipment, mine transit distance meters, and data loggers.
(b) All nonpermissible electronic surveying equipment to be used in return airways will be examined prior to use to ensure the equipment is being maintained in a safe operating condition. These examinations will include the following steps:
(i) Checking the instrument for any physical damage and the integrity of the case;
(ii) Removing the battery and inspecting for corrosion;
(iii) Inspecting the contact points to ensure a secure connection to the battery;
(iv) Reinserting the battery and powering up and shutting down to ensure proper connections; and
(v) Checking the battery compartment cover to ensure that it is securely fastened.
(c) The results of such examinations will be recorded and retained for one year and made available to MSHA on request.
(d) A qualified person as defined in 30 CFR 75.151 will continuously monitor for methane immediately before and during the use of nonpermissible surveying equipment in return airways.
(e) Nonpermissible surveying equipment will not be used if methane is detected in concentrations at or above one percent for the area being surveyed. When methane is detected at such levels while the nonpermissible surveying equipment is being used, the equipment will be deenergized immediately and the nonpermissible electronic equipment withdrawn out of the return airways.
(f) All hand-held methane detectors will be MSHA-approved and maintained in permissible and proper operating condition as required in 30 CFR 75.320.
(g) Batteries in the surveying equipment will be changed out or charged in fresh air out of the return.
(h) Qualified personnel who use surveying equipment will be properly trained to recognize the hazards associated with the use of nonpermissible surveying equipment in areas where methane could be present.
(i) The nonpermissible surveying equipment will not be put into service until MSHA has initially inspected the equipment and determined that it is in compliance with all the terms and conditions in this petition.
Within 60 days after the Proposed Decision and Order becomes final, the petitioner will submit proposed revisions for its approved 30 CFR part 48 training plan to the DM. The revisions will specify initial and refresher training regarding the terms and conditions in the Proposed Decision and Order.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection as that afforded by the existing standard.
(1) To comply with requirements for mine ventilation maps and mine maps in 30 CFR 75.372, 75.1002(a), and 75.1200, use of the most practical and accurate surveying equipment is necessary. To ensure the safety of the miners in active mines and to protect miners in future mines that may mine in close proximity to these same active mines, it is necessary to determine the exact location and extent of the mine workings.
(2) Underground mining by its nature and size, and the complexity of mine plans, requires that accurate and precise measurements be completed in a prompt and efficient manner. The petitioner proposes the following as an alternative to the existing standard:
(a) Nonpermissible electronic surveying equipment will be used within 150 feet of pillar workings. Such nonpermissible surveying equipment includes, but is not limited to, portable battery-operated total station surveying equipment, mine transit distance meters, and data loggers.
(b) All nonpermissible electronic surveying equipment to be used within 150 feet of pillar workings will be examined prior to use to ensure the equipment is being maintained in a safe operating condition. These examinations will include the following steps:
(i) Checking the instrument for any physical damage and the integrity of the case;
(ii) Removing the battery and inspecting for corrosion;
(iii) Inspecting the contact points to ensure a secure connection to the battery;
(iv) Reinserting the battery and powering up and shutting down to ensure proper connections; and
(v) Checking the battery compartment cover to ensure that it is securely fastened.
(c) The results of such examinations will be recorded and retained for one year and made available to MSHA on request.
(d) A qualified person as defined in 30 CFR 75.151 will continuously monitor for methane immediately before and during the use of nonpermissible surveying equipment within 150 feet of pillar workings.
(e) Nonpermissible surveying equipment will not be used if methane is detected in concentrations at or above one percent for the area being surveyed. When methane is detected at such levels while the nonpermissible surveying equipment is being used, the equipment will be deenergized immediately and the nonpermissible electronic equipment withdrawn further than 150 feet from pillar workings.
(f) All hand-held methane detectors will be MSHA-approved and maintained in permissible and proper operating condition as required in 30 CFR 75.320.
(g) Batteries in the surveying equipment will be changed out or charged in fresh air more than 150 feet from pillar workings.
(h) Qualified personnel who use surveying equipment will be properly trained to recognize the hazards and limitations associated with the use of nonpermissible surveying equipment in areas where methane could be present.
(i) The nonpermissible surveying equipment will not be put into service until MSHA has initially inspected the equipment and determined that it is in compliance with all the terms and conditions in this petition.
Within 60 days after the Proposed Decision and Order becomes final, the petitioner will submit proposed revisions for its approved 30 CFR part 48 training plan to the DM. The revisions will specify initial and refresher training regarding the terms and conditions in the Proposed Decision and Order.
The petitioner asserts that application of the existing standard would result in a diminution of safety to the miners and that the proposed alternative method will at all times guarantee no less than the same measure of protection as that afforded by the existing standard.
Electronic meeting to be held via email exchanges Tuesday, August 27, 2013, 8:00 a.m. (PDT), through Friday, August 30, 2013.
Executive Session held via email.
This special meeting of the Board of Trustees, to be held Electronically (in accordance with Foundation Operating Procedures), is closed to the public since it is necessary for the Board to consider items in Executive Session.
Discuss and vote on the candidate for Executive Director of the Morris K. Udall and Stewart L. Udall Foundation, Philip J. Lemanski, as proposed by the Executive Committee as appointed and acting as the required Selection Committee.
Stephanie Zimmt-Mack, General Counsel, 130 South Scott Avenue, Tucson, AZ 85701, (520) 901–8500.
National Aeronautics and Space Administration.
Notice of Intent to Grant Exclusive License.
This notice is issued in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant an exclusive license in the United States to practice the inventions described and claimed in U.S. Patent No. 7,790,787; NASA Case No. KSC–12890 entitled “Aerogel/Polymer Composite Materials;” U.S. Patent No. 7,309,738; NASA Case No. KSC–12697 entitled “Approach for Achieving Flame Retardancy While Retaining Physical Properties in a Compatible Polymer Matrix;” and U.S. Patent No. 7,968,648; KSC–12697–3 entitled “Approach for Achieving Flame Retardancy While Retaining Physical Properties in a Compatible Polymer Matrix;” to AeroPlastic LP, having its principal place of business at 1325 White Drive, Titusville, FL 32780. The patent rights in these inventions have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective exclusive license will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7.
The prospective exclusive license may be granted unless, within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Objections relating to the prospective license may be submitted to Patent Counsel, Office of the Chief Counsel, Mail Code CC–A, NASA John F. Kennedy Space Center, Kennedy Space Center, FL 32899. Telephone: 321–867–2076; Facsimile: 321–867–1817.
Shelley Ford, Patent Counsel, Office of the Chief Counsel, Mail Code CC–A, NASA John F. Kennedy Space Center, Kennedy Space Center, FL 32899. Telephone: 321–867–2076; Facsimile: 321–867–1817. Information about other NASA inventions available for licensing can be found online at
National Science Foundation.
Notice and request for comments.
Under the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3501 et seq.), and as part of its continuing effort to reduce paperwork and respondent burden, the National Science Foundation (NSF) is inviting the general public or other Federal agencies to comment on this proposed information collection.
Written comments on this notice must be received by October 15, 2013, to be assured consideration. Comments received after that date will be considered to the extent practicable. Send comments to address below.
Ms. Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Boulevard, Suite 1265, Arlington, Virginia 22230; telephone (703) 292–7556; or send email to
The National Science Foundation's Directorate for Computer and Information Science and Engineering (CISE), through its Expeditions in Computing (EIC), Secure and Trustworthy Cyberspace (SaTC) Frontier, Cyber-Physical Systems (CPS) Frontier, and Future Internet Architecture (FIA) programs, supports an integrated, interdisciplinary research environment to advance fundamental computing, communications, and information science and engineering; educate a globally competitive and diverse workforce from K–12 on; and join academe and industry in partnership to achieve these goals. Projects funded through these four programs represent some of the largest single investments made by CISE and form the centerpiece of the directorate's award portfolio. Through these awards, the recipients conduct world-class research, creating new knowledge that is meaningfully linked to society.
Specifically, EIC, SaTC and CPS Frontier, and FIA projects constitute near center-scale activities that catalyze far-reaching research explorations motivated by deep scientific questions or hard problems in the computing and information fields, and/or by compelling applications that promise significant societal benefits. They stimulate significant research and education outcomes that, through effective knowledge transfer mechanisms, promise significant scientific, economic, and/or other societal benefits.
These projects foster research climates that nurture creativity and informed risk-taking, and value complementary research and education contributions such that each whole project is greater than the sum of its parts; draw upon well-integrated, diverse teams of investigators from one or more disciplines within computer and information science and engineering, as well as investigators from other fields where necessary; stimulate effective knowledge transfer; and demonstrate experimental systems or support shared experimental facilities (including instruments, platforms and/or testbeds), where necessary, to enable discovery and learning.
The EIC, SaTC and CPS Frontier, and FIA projects enable and foster excellent education, integrate research and education, speed knowledge/technology transfer through partnerships between academe and industry, and prepare a more competitive future workforce. They capitalize on diversity through participation in project activities and demonstrate leadership in the involvement of groups underrepresented in computer and information science and engineering.
Awardees will be required to submit annual project reports on progress and plans, which will be used as a basis for performance review and determining the level of continued funding. Such reporting requirements will be included as terms and conditions in the award letter.
Each project's annual report will address the reporting components specified in the Research Performance Progress Report (RPPR;
Use of the Information: The data collected will be used for NSF internal reports, historical data, performance
Nuclear Regulatory Commission.
Draft interim staff guidance; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is issuing this notice for use of, and to solicit public comment on the draft Interim Staff Guidance (ISG) COL–ISG–025 “Interim Staff Guidance on Changes During Construction.” This ISG provides guidance to the NRC staff on the Preliminary Amendment Request (PAR) review process available to the initial combined license (COL) licensees through a license condition for use as an elective precursor to the license amendment process.
Submit comments by October 29, 2013. Comments received after this date will be considered, if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comment by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
•
•
For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Earl Libby, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–0522, email:
Please refer to Docket ID NRC–2011–0288 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this action by the following methods:
•
•
•
Please include Docket ID NRC–2011–0288 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC staff is issuing this second notice for use of, and to solicit public comments on, draft COL–ISG–025 (ADAMS Accession No. ML13045A125). Previously, on January 11, 2012, the NRC staff issued notice for the use of, and to solicit public comments on, the prior draft COL–ISG–025 (ADAMS Accession No. ML111530026) (Docket ID: NRC–2011–0288). The NRC staff is revising COL–ISG–025 to update the PAR review process, clarify the information that should be included with a PAR submittal, and include the staff consideration of comments received on the prior version of the ISG.
This ISG provides guidance to the staff on the PAR review process available to the initial Part 52 of Title 10 of the
Licensees may voluntarily follow the PAR process described in this draft ISG. Because the PAR process in this ISG is internal guidance to the NRC staff, it is not a matter for which either nuclear power plant applicants or licensees are
The NRC issued the prior draft COL–ISG–025,
The Commission received one comment submission containing seven comments on the Draft ISG from the Nuclear Energy Institute (NEI) (ADAMS Accession No. ML12089A019).
The comment summaries and the NRC's response for this submission are addressed below:
All comments are identified uniquely by using the format [X]–[Y], where:
[X] Represents the comment submission identification number; and,
[Y] Represents the comment number, which the NRC assigned to the comment.
NEI Comment 1–1: Editorial and Clarification. Insert on page 1, para. 2, second sentence, an apostrophe in “licensee's.” Additionally, to be clear about how the process works, revise the end of the same sentence as follows, “. . . including ((strikeout) an applicability determination evaluation), the safety-security interface evaluation, the construction impacts evaluation and the 10 CFR 50.59-like
NEI Comment 1–2: When not referring to a specific element of the 10 CFR 50.59-like process (such as applicability determination, screening or evaluation), the ISG should refer to the 10 CFR 50.59-like process “review” process. Revise on page 2, para. 1, the first sentence as follows: “When the licensee's ((strikeout) screening evaluation)
NEI Comment 1–3: This paragraph discusses the use of the PAR and LAR processes to describe proposed plant changes or modifications that are solely due to a change in Tier 1 or Tier 2* information and are not because the change represents a potential safety issue. Like 10 CFR 50.59, the 10 CFR 50.59-like process is not a “safety” evaluation, but rather a review to determine if prior NRC approval is required. Re-word on page 2, para. 3, the last part of the first sentence of paragraph three as follows: “. . . and not because the change ((strikeout) represents a potential safety issue)
NEI Comment 1–4: Clarification. Insert on page 3, para. 2, “Appendix C,” after “NEI 96–07.”
NEI Comment 1–5: Given the similar preliminary nature of the “no significant hazards consideration” determination and the preliminary determination of categorical exclusion from environmental review, we recommend the focus of the staff's PAR review be on the reasonableness of the preliminary determinations, not their adequacy. Adequacy of these licensee (final) determinations is determined as part of the [license amendment request] LAR review. Modify ISG–025 page 4, para. 4 and page 5, para. 1 & 2, to reflect that the PM [Project Manager] shall review the reasonableness of the PAR's preliminary “no significant hazards consideration” determination.
NEI Comment 1–6: It may be determined later that it might be best to endorse NEI 96–07, Appendix C via a separate regulatory guide for new plants, so that RG 1.187 remains focused on 10 CFR Part 50 licensees. We expect that the best approach will be determined based on further discussions of Appendix C. Modify page 6, para. 3, ISG–25 under Final Resolution Method to allow the option for a separate regulatory guide to be used to endorse NEI 96–07, Appendix C.
NEI Comment 1–7: In various NRC-industry meetings on ISG–025, the NRC staff has said that licensees should use the PAR process when approval of the LAR is needed within one year of
In addition to the changes made in response to public comments, as discussed above, this draft ISG–025 contains one substantial change which was derived from the lessons learned from the NRC staff's administrative practices during the past year of processing PARs and LARs for the new nuclear power plants under construction.
The criteria for issuing a PAR notification are dependent upon the staff's acceptance of the related LAR for detailed technical review. The staff will not issue the determination on the PAR until after the staff has accepted the related LAR for detailed technical review. This repositioning of the staff's determination reduces the regulatory burden on licensees by recognizing that the licensee's proposed basis for the no—significant hazards determination and the categorical exclusion from the National Environmental Policy Act evaluation is contained in the related LAR.
Because these two aspects are evaluated by the staff during the acceptance review of the related LAR, the provision for the licensee to submit this information in the PAR, and the staff's examination of this information during its consideration of the PAR were removed from COL–ISG–025.
This draft COL–ISG–025 clarifies that the staff will not issue a determination on the PAR until two conditions are satisfied; (1) The licensee submits the related LAR and, (2) the staff has accepted the related LAR for detailed technical review.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Application for license amendment; public meeting; correction.
The U.S. Nuclear Regulatory Commission (NRC) is correcting a notice that was published in the
Cindy Bladey, Chief, Rules, Announcements, and Directives Branch, Office of Administration, Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–287–0949; email:
In the
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the modification of Global Plus 1C negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, at 202–789–6820.
On August 8, 2013, the Postal Service filed notice, pursuant to 39 CFR 3015.5, that it has entered into a modification of the Global Plus 1C agreement approved in Docket No. CP2013–43 (Modification One).
In addition to the Notice, the Postal Service filed three attachments in support of Modification One:
• Attachment 1—a redacted copy of Modification One;
• Attachment 2—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment 3—a redacted copy of Governors' Decision No. 11–6, authorizing the new product.
The Postal Service also filed unredacted copies of the attachments
The Commission reopens Docket No. CP2013–43 to consider issues raised by the Notice. The Commission invites comments from interested persons on whether Modification One is consistent with 39 U.S.C. 3632, 3633, 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than August 16, 2013. The public portions of the Postal Service's filing can be accessed via the Commission's Web site (
Allison J. Levy, previously designated to serve as Public Representative in this proceeding, will continue in that capacity.
1. The Commission reopens Docket No. CP2013–43 for consideration of matters raised by the Postal Service's Notice.
2. Allison J. Levy, previously designated to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding, will continue in that capacity.
3. Comments from interested persons are due no later than August 16, 2013.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Section 902.03 of the Listed Company Manual (the “Manual”) to specify how the Initial Application Fee is treated for certain issuers that do not immediately list a security for which they already paid an Initial Application Fee. In addition to the substantive changes proposed herein, the Exchange also proposes to make certain non-substantive changes to Section 902.03. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Section 902.03 of the Manual to specify how the Initial Application Fee is treated for certain issuers that do not immediately list a security for which they already paid an Initial Application Fee. In addition to the substantive changes proposed herein, the Exchange also proposes to make certain non-substantive changes to Section 902.03.
Section 902.03 of the Manual provides for an Initial Application Fee of $25,000 that is charged to an issuer that applies to list certain securities on the Exchange.
An issuer applying to list a security on the Exchange is subject to a preliminary free confidential review by NYSE Regulation, Inc. (“NYSER”), in which NYSER determines the issuer's qualification for listing. As set forth in Section 702.02 of the Manual, if NYSER determines in connection with this preliminary confidential review that the issuer is qualified for listing, the issuer is informed that it has been cleared as eligible to list and that the Exchange will accept a formal Original Listing Application from the issuer. It is the Exchange's practice to notify the issuer of its eligibility clearance and the conditions to its listing by means of a letter (the “pre-clearance” letter).
For an issuer subject to the Initial Application Fee, payment of the Initial Application Fee is a prior condition to eligibility clearance being granted. As a practical matter, the Exchange anticipates that an issuer would pay the Initial Application Fee after NYSER has completed its preliminary confidential review and has determined that the issuer is eligible to submit a formal Original Listing Application, but before
The Initial Application Fee is applied toward the applicable Listing Fees for an issuer that lists on the Exchange. If an issuer pays an Initial Application Fee in connection with the application to list a security but does not immediately list such security, the issuer is not required to pay an additional Initial Application Fee if it subsequently lists such security, so long as (i) the issuer has a registration statement regarding such security on file with the Commission, or, (ii) if the issuer has withdrawn its registration statement, the issuer refiles a registration statement regarding such security within 12 months of the date of such withdrawal.
The Initial Application Fee is non-refundable. It is designed to allow the Exchange to recover, in part, the costs associated with processing and evaluating an issuer's application, irrespective of whether the relevant issuance qualifies for listing or whether such issuer decides to list on the Exchange, and to provide a disincentive for impractical applications by issuers.
As noted above, if an issuer pays an Initial Application Fee in connection with the application to list a security but does not immediately list such security, the issuer is not required to pay an additional Initial Application Fee if it subsequently lists such security, so long as:
(i) The issuer has a registration statement regarding such security on file with the Commission, or,
(ii) if the issuer withdrew its registration statement, the issuer refiled a registration statement regarding such security within 12 months of the date of such withdrawal.
The Exchange proposes to amend Section 902.03 of the Manual to add two additional circumstances in which an issuer will not be required to pay a subsequent Initial Application Fee, in order to address issuers that do not file a publicly-available registration statement with the Commission. Specifically, pursuant to Section 6(e) of the Securities Act of 1933 (the “Securities Act”),
The Exchange proposes to add two additional provisions that specify that, if an issuer pays an Initial Application Fee in connection with the application to list a security but does not immediately list such security, and the issuer is an emerging growth company and/or foreign private issuer and has submitted a draft registration statement to the Commission for confidential, nonpublic review pursuant to Section 6(e) of the Securities Act or the foreign issuer nonpublic submission policy of the Commission's Division of Corporation Finance (a “Confidential Submission”), the issuer will not be required to pay an additional Initial Application Fee if it subsequently lists a security, so long as:
(a) the issuer has submitted to the Commission through the Commission's electronic submission system a Confidential Submission within the previous 120 days (for purposes of this rule, a “Current Confidential Submission”) and the issuer provides evidence of such Current Confidential Submission to the Exchange; or
(b) if the Confidential Submission has ceased to be a Current Confidential Submission, then, within 12 months of the date such Confidential Submission ceased to be a Current Confidential Submission the issuer resubmits a Confidential Submission regarding such security and the issuer provides evidence of such Confidential Submission to the Exchange, or publicly files a registration statement regarding such security.
In addition to the substantive changes proposed herein, the Exchange also proposes non-substantive changes to remove obsolete text from Section 902.03 of the Manual (i) stating that the Initial Application Fee became effective January 1, 2013, and (ii) referring to payment of Listing Fees for a security that transfers from another market.
The Exchange notes that the proposed change is not otherwise intended to address any other issues surrounding Initial Application Fees and that the Exchange is not aware of any problems that issuers would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
Generally, the Exchange believes that the proposed change is reasonable because it will ensure that a company that submits a confidential, nonpublic, draft registration statement to the Commission for review but does not immediately list the security, for which it has paid an Initial Application Fee will be treated the same as an issuer that has filed a public registration statement. The proposed rule change is reasonable because it protects issuers entitled to avail themselves of the ability to make a Confidential Submission by ensuring that they are not required to pay the Initial Application Fee twice.
The Exchange also believes that the proposed change is equitable and not unfairly discriminatory because it will maintain the effectiveness of an already-paid Initial Application Fee for an issuer that submits a confidential, nonpublic draft registration statement to the Commission for review, but does not
The Exchange believes that the proposed non-substantive changes are reasonable because they will ensure that the description of the Initial Application Fee is clear and accurate. These changes are also equitable and not unfairly discriminatory because they will benefit all issuers and all other readers of the Manual.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed change is designed to specify how the Initial Application Fee is treated for an issuer that submits a confidential, nonpublic draft registration statement to the Commission for review, but does not immediately list the security. Additionally, the proposed rule change does not impose a burden on competition because it ensures that companies that avail themselves of the ability to make a Confidential Submission are treated the same as issuers that file a public registration statement for purposes of the Initial Application Fee. Therefore, there is no disincentive to make a Confidential Submission as opposed to publicly filing a registration statement.
No written comments were solicited or received with respect to the proposed rule change.
Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. Doing so will allow the Exchange to immediately specify in its rules how the Initial Application Fee is treated for an issuer that makes a Confidential Submission with respect to a security but does not immediately list the security, which is similar to the current treatment for public filers for purposes of paying the Initial Application Fee. Therefore, the Commission hereby waives the 30-day operative delay and designates the proposal operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B) 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.
Office of the United States Trade Representative.
Request for comments and notice of public hearing concerning
The interagency Trade Policy Staff Committee (TPSC) will convene a public hearing and seek public comment to assist the Office of the United States Trade Representative (USTR) in the preparation of its annual report to the Congress on China's compliance with the commitments made in connection with its accession to the World Trade Organization (WTO).
Persons wishing to testify at the hearing must provide written notification of their intention, as well as a summary of their testimony, by Friday, September 20, 2013. Written comments are also due by Friday, September 20, 2013. A hearing will be held in Washington, DC, on Friday, October 4, 2013.
Notifications of intent to testify and written comments should be submitted electronically via the Internet at
For procedural questions concerning written comments or participation in the public hearing, contact Yvonne Jamison at (202) 395–3475. All other questions should be directed to Terrence J. McCartin, Deputy Assistant United States Trade Representative for China Enforcement, at (202) 395–3900, or Katherine C. Tai, Chief Counsel for China Enforcement, at (202) 395–3150.
China became a Member of the WTO on December 11, 2001. In accordance with section 421 of the U.S.-China Relations Act of 2000 (Pub. L. 106–286), USTR is required to submit, by December 11 of each year, a report to Congress on China's compliance with commitments made in connection with its accession to the WTO, including both multilateral commitments and any bilateral commitments made to the United States. In accordance with section 421, and to assist it in preparing this year's report, the TPSC is hereby soliciting public comment. Last year's report is available on USTR's Internet Web site (
The terms of China's accession to the WTO are contained in the Protocol on the Accession of the People's Republic of China (including its annexes) (Protocol), the Report of the Working Party on the Accession of China (Working Party Report), and the WTO agreements. The Protocol and Working Party Report can be found on the Department of Commerce Web page,
USTR invites written comments and/or oral testimony of interested persons on China's compliance with commitments made in connection with its accession to the WTO, including, but not limited to, commitments in the following areas: (a) Trading rights; (b) import regulation (e.g., tariffs, tariff-rate quotas, quotas, import licenses); (c) export regulation; (d) internal policies affecting trade (e.g., subsidies, standards and technical regulations, sanitary and phytosanitary measures, government procurement, trade-related investment measures, taxes and charges levied on imports and exports); (e) intellectual property rights (including intellectual property rights enforcement); (f) services; (g) rule of law issues (e.g., transparency, judicial review, uniform administration of laws and regulations) and status of legal reform; and (h) other WTO commitments. In addition, given the United States' view that China should be held accountable as a full participant in, and beneficiary of, the international trading system, USTR requests that interested persons specifically identify unresolved compliance issues that warrant review and evaluation by USTR's China Enforcement Task Force.
Written comments must be received no later than Friday, September 20, 2013.
A hearing will be held on Friday, October 4, 2013, in Room 1, 1724 F Street NW., Washington, DC 20508. If necessary, the hearing will continue on the next business day. Persons wishing to testify orally at the hearing must provide written notification of their intention by Friday, September 20, 2013. The intent to testify notification must be made in the “Type Comment” field under docket number USTR–2013–0026 on the regulations.gov Web site and should include the name, address and telephone number of the person presenting the testimony. A summary of the testimony should be attached by using the “Upload File” field. The name of the file should also include who will be presenting the testimony. Remarks at the hearing should be limited to no more than five minutes to allow for possible questions from the TPSC.
All documents should be submitted in accordance with the instructions in section 3 below.
Persons submitting a notification of intent to testify and/or written comments must do so in English and must identify (on the first page of the submission) “China's WTO Compliance.”
In order to ensure the timely receipt and consideration of comments, USTR strongly encourages commenters to make on-line submissions, using the
The
For any comments submitted electronically containing business confidential information, the file name of the business confidential version should begin with the characters “BC.” Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top of that page. Filers of submissions containing business confidential information must also submit a public version of their comments. The file name of the public version should begin with the character “P.” The “BC” and “P” should be followed by the name of the person or entity submitting the comments. Filers submitting comments containing no business confidential information should name their file using the name of the person or entity submitting the comments.
Please do not attach separate cover letters to electronic submissions; rather, include any information that might appear in a cover letter in the comments themselves. Similarly, to the extent possible, please include any exhibits, annexes, or other attachments in the same file as the submission itself, not as separate files.
As noted above, USTR strongly urges submitters to file comments through
Comments will be placed in the docket and open to public inspection, except business confidential information. Comments may be viewed on the
Office of the United States Trade Representative.
Request for comments and notice of public hearing concerning Russia's implementation of its obligations as a Member of the World Trade Organization (WTO).
The interagency Trade Policy Staff Committee (TPSC) will convene a public hearing and seek public comment to assist the Office of the United States Trade Representative (USTR) in the preparation of its annual report to Congress on Russia's implementation of its obligations as a Member of the WTO.
Written comments are due by 11:59 p.m., Thursday, September 12, 2013. Persons wishing to testify orally at the hearing must provide written notification of their intention, as well as a summary of their testimony, by 11:59 p.m., Thursday, September 12, 2013. The hearing will be held on Friday, September 27, 2013, beginning at 9:30 a.m. in Rooms 1 & 2, 1724 F Street NW., Washington, DC 20508.
Written comments and notifications of intent to testify should be submitted electronically via the Internet at
For procedural questions concerning written comments, please contact Yvonne Jamison at (202) 395–3475. All other questions regarding this notice should be directed to Betsy Hafner, Deputy Assistant United States Trade Representative for Russia and Eurasia, at (202) 395–9124.
Russia became a Member of the WTO on August 22, 2012, and on December 21, 2012, following the termination of the application of the Jackson-Vanik amendment to Russia and the extension of permanent normal trade relations to the products of Russia, the United States and Russia both filed letters with the WTO withdrawing their notices of non-application and consenting to have the WTO Agreement apply between them. In accordance with section 201(a) of the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitskiy Rule of Law Accountability Act of 2012 (Pub. L. 112–208), USTR is required to submit, by December 21 of each year, a report to Congress on the extent to which Russia is implementing the WTO Agreement, including the Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Trade Related Aspects of Intellectual Property Rights. The Report must also assess Russia's progress on acceding to the Information Technology Agreement (ITA) and the Government Procurement Agreement (GPA). In addition, to the extent that USTR finds that Russia is not implementing fully the WTO Agreement or is not making adequate progress in acceding to the ITA or the GPA, USTR must describe in the report the actions it plans to take to encourage Russia to improve its implementation and/or increase its accession efforts. In accordance with section 201(a), and to assist it in preparing this year's report, the TPSC is hereby soliciting public comment.
The terms of Russia's accession to the WTO are contained in the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) and the Protocol on the Accession of the Russian Federation to the WTO (including its annexes) (Protocol). The Report of the Working Party on the Accession of the Russian Federation (Working Party Report) provides detail and context to the commitments listed in the Protocol. The Protocol and Working Party Report can be found on USTR's Web page,
USTR invites written comments and/or oral testimony of interested persons on Russia's implementation of the commitments made in connection with its accession to the WTO, including, but not limited to, commitments in the following areas: (a) Import regulation (e.g., tariffs, tariff-rate quotas, quotas, import licenses); (b) export regulation; (c) subsidies; (d) standards and technical regulations; (e) sanitary and phytosanitary measures; (f) trade-related investment measures; (g) taxes and charges levied on imports and exports; (h) other internal policies affecting trade; (i) intellectual property rights (including intellectual property rights enforcement); (j) services; (k) rule of law issues (e.g., transparency, judicial review, uniform administration of laws and regulations); and (l) other WTO commitments.
Written comments must be received no later than 11:59 p.m., Thursday, September 12, 2013.
A hearing will be held on Friday, September 27, 2013, in Rooms 1 & 2, 1724 F Street NW., Washington, DC 20508. If necessary, the hearing will continue on the next business day. Persons wishing to testify at the hearing must provide written notification of their intention by 11:59 p.m., September 12, 2013. The intent to testify notification must be made in the “Type Comment” field under docket number USTR–2013–0025 on the
Persons submitting a notification of intent to testify and/or written comments must do so in English and must identify (on the first page of the submission) “Russia's WTO Implementation.” In order to be assured
In order to ensure the timely receipt and consideration of comments, USTR strongly encourages commenters to make on-line submissions, using the
The
For any comments submitted electronically containing business confidential information, the file name of the business confidential version should begin with the characters “BC”. Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top of that page. Filers of submissions containing business confidential information must also submit a public version of their comments. The file name of the public version should begin with the character “P”. The “BC” and “P” should be followed by the name of the person or entity submitting the comments or reply comments. Filers submitting comments containing no business confidential information should name their file using the name of the person or entity submitting the comments.
Please do not attach separate cover letters to electronic submissions; rather, include any information that might appear in a cover letter in the comments themselves. Similarly, to the extent possible, please include any exhibits, annexes, or other attachments in the same file as the submission itself, not as separate files.
As noted, USTR strongly urges submitters to file comments through
Federal Aviation Administration (FAA), DOT.
Notice of intent to rule on request to release airport property at the Ottumwa Regional Airport (OTM), Ottumwa, Iowa.
The FAA proposes to rule and invites public comment on the release of land, Lot #2, at the Ottumwa Regional Airport, Ottumwa, Iowa, under the provisions of 49 U.S.C. 47107(h)(2).
Comments must be received on or before September 16, 2013.
Comments on this application may be mailed or delivered to the FAA at the following address: Lynn D. Martin, Airports Compliance Specialist, Federal Aviation Administration, Airports Division, ACE–610C, 901 Locust Room 364, Kansas City, MO 64106.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to: Tom Francis, Airport Manager, C/O Ottumwa Regional Airport 14802 Terminal St. Ottumwa, IA 50501, 641–683–0619.
Lynn D. Martin, Airports Compliance Specialist, Federal Aviation Administration, Airports Division, ACE–610C, 901 Locust Room 364, Kansas City, MO 64106, (816) 329–2644,
The request to release property may be reviewed, by appointment, in person at this same location.
The FAA invites public comment on the request to release approximately 2.39 acres of airport property, Lot #2, at the Ottumwa Regional Airport (OTM) under the provisions of 49 U.S.C. 47107(h)(2). On January 2, 2013, the Airport Manager at the Ottumwa Regional Airport requested from the FAA that approximately 2.39 acres of property, Lot #2, be released for sale to Bridge City Truck Repair for use as a truck repair and maintenance operation. On July 16, 2013, the FAA determined that the request to release property at the Ottumwa Regional Airport (OTM) submitted by the Sponsor meets the procedural requirements of the Federal Aviation Administration and the release of the property does not and will not impact future aviation needs at the airport. The FAA may approve the request, in whole or in part, no sooner than thirty days after the publication of this Notice.
The following is a brief overview of the request:
Ottumwa Regional Airport (OTM) is proposing the release of one parcel, Lot #2, containing 2.39 acres, more or less. The release of land is necessary to comply with Federal Aviation Administration Grant Assurances that do not allow federally acquired airport property to be used for non-aviation purposes. The sale of the subject property will result in the land at the Ottumwa Regional Airport (OTM) being changed from aeronautical to non-aeronautical use and release the lands from the conditions of the Airport Improvement Program Grant Agreement Grant Assurances. In accordance with 49 U.S.C. 47107(c)(2)(B)(i) and (iii), the airport will receive fair market value for the property, which will be subsequently reinvested in another eligible airport improvement project for general aviation facilities at the Ottumwa Regional Airport.
Any person may inspect, by appointment, the request in person at the FAA office listed above under
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before September 16, 2013 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestion for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by calling (202) 927–5331, email at
Environmental Protection Agency (EPA).
Final rule.
Under section 211(o) of the Clean Air Act, the Environmental Protection Agency is required to set the renewable fuel percentage standards each November for the following year. Today's action sets the annual percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and renewable fuels that apply to all motor vehicle gasoline and diesel produced or imported in the year 2013. In general the standards are designed to ensure that the applicable national volumes of renewable fuel specified in the statute are used. For cellulosic biofuel, the statute specifies that EPA is to project the volume of production and must base the cellulosic biofuel standard on that projected volume if it is less than the applicable volume set forth in the Act. Today EPA is finalizing a cellulosic biofuel volume for 2013 that is below the applicable volume specified in the Act. EPA is also leaving the applicable volumes of advanced biofuel and total renewable fuel at the statutory levels for 2013 based on its assessment of the availability of renewable fuel for compliance purposes.
This final rule is effective on August 15, 2013.
EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2012–0546. All documents in the docket are listed in the
Julia MacAllister, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; Telephone number: 734–214–4131; Fax number: 734–214–4816; Email address:
Entities potentially affected by this final rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such as ethanol and biodiesel. Potentially regulated categories include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this final action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your activities will be regulated by this action, you should carefully examine the applicability criteria in 40 CFR part 80. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section.
The Renewable Fuel Standard (RFS) program began in 2006 pursuant to the requirements in Clean Air Act (CAA) section 211(o) which were added through the Energy Policy Act of 2005 (EPAct). The statutory requirements for the RFS program were subsequently modified through the Energy Independence and Security Act of 2007 (EISA), resulting in the publication of major revisions to the regulatory requirements on March 26, 2010.
The national volumes of renewable fuel to be used under the RFS program each year (absent an adjustment or waiver by EPA) are specified in CAA section 211(o)(2). The volumes for 2013 are shown in Table I–1.
Under the RFS program, EPA is required to determine and publish annual percentage standards for each compliance year by November 30 of the previous year.
The cellulosic biofuel industry is transitioning from research and development (R&D) and pilot scale to commercial scale facilities, leading to increases in production capacity. Construction has begun on several facilities with multiple facilities having progressed to the start-up phase. Based on information from the Energy Information Administration (EIA), detailed information from biofuel production companies and a consideration of various potential uncertainties, as well as the comments we received on the Notice of Proposed Rulemaking (NPRM),
We have evaluated the types of advanced biofuels that can be produced or imported in 2013, including biodiesel, renewable diesel, biogas, heating oil, sugarcane ethanol, and others. While there is some uncertainty in the projected availability of advanced biofuel in 2013, we have determined that volumes to meet the statutory applicable volume of 2.75 bill gal should be sufficiently available. In addition, the combination of available volumes of advanced and non-advanced biofuel
EPA is today setting annual percentage requirements for obligated parties for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel for 2013. Table I.A–1 lists the statutory provisions and associated criteria relevant to determining the national applicable volumes used to set the annual percentage standards in today's final rule.
EPA must annually determine the projected volume of cellulosic biofuel production for the following year. If the projected volume of cellulosic biofuel production is less than the applicable volume specified in section 211(o)(2)(B)(i)(III) of the statute, EPA must lower the applicable volume used to set the annual cellulosic biofuel percentage standard to the projected volume of production available during the year. In today's final rule, we present our analysis of cellulosic biofuel production and final projected volume for 2013. The analyses that led to the 2013 applicable volume requirement were based on our evaluation of EIA's projection for 2013, individual producers' production plans and progress to date, and comments received in response to the NPRM.
When we lower the applicable volume of cellulosic biofuel below the volume specified in CAA 211(o)(2)(B)(i)(III), we also have the authority to reduce the applicable volumes of advanced biofuel and total renewable fuel by the same or a lesser amount. Today's action includes our consideration of the 2013 volume requirements for these biofuels.
In today's final rule we have also set the annual percentage standards (shown in Section I.B.3 below) that will apply to all producers and importers of gasoline and diesel in 2013. The percentage standards are based on the 2013 applicable volumes for the four types of renewable fuel and a projection of volumes of gasoline and diesel consumption in 2013 from the Energy Information Administration (EIA).
The cellulosic biofuel industry in the United States continues to make advances in its progress towards large scale commercial production. Ongoing research and development work has resulted in increasing product yields, while at the same time lowering enzyme and catalyst costs. New supply chains have been developed, and several companies have reached contract agreements to provide the necessary feedstock for large scale cellulosic biofuel production facilities. Companies are continuing to invest significant sums of money to further refine cellulosic biofuel production technology and to construct the first commercial scale facilities. From 2007 through the second quarter of 2012 over $3.4 billion was invested in advanced biofuel production companies by venture capitalists alone.
2013 is also expected to be a year of transition for the cellulosic biofuel industry, as several companies are shifting their focus from technology development to commercialization. This transition began in 2012 with the production of the first cellulosic RINs under the current regulations and the completion of construction at commercial scale production facilities from INEOS Bio and KiOR. KiOR announced the shipment of the first renewable transportation fuel produced from their Columbus, MS facility on March 18, 2013. INEOS Bio is expected to begin producing fuel from their Vero Beach, FL facility in the summer of 2013. Abengoa, one of the largest producers of ethanol in the United States, is planning to begin producing cellulosic ethanol at commercial scale later in 2013 or early 2014. Several others companies, including DuPont and Poet, expect to be constructing their first commercial scale facilities in 2013, with the intention of beginning production in 2014. If these facilities are able to operate as anticipated, it would represent significant further progress in the commercial viability of cellulosic biofuel production.
As part of estimating the volume of cellulosic biofuel that would be made available in the U.S. in 2013, we researched all potential production sources by company and facility. This included sources that were still in the planning stages, those that were under construction, and those that are already producing some volume of cellulosic ethanol, cellulosic diesel, or some other type of cellulosic biofuel. Facilities primarily focused on research and development were not the focus of our assessment as production from these facilities represents very small volumes of cellulosic biofuel, and these facilities typically have not generated RINs for the fuel they have already produced. From this universe of potential cellulosic biofuel sources we identified the subset that could be producing commercial volumes of qualifying cellulosic biofuel for use in 2013. To arrive at a projected volume for each facility, we took into consideration EIA's projections and factors such as the current and expected state of funding, the status of the technology utilized, progress towards construction and production goals, and other significant factors that could potentially impact fuel production or the ability of the produced fuel to qualify for cellulosic biofuel Renewable Identification Numbers (RINs) in 2013. Further discussion of these factors can be found in Section II.B.
In our assessment we focused on domestic sources of cellulosic biofuel. At the time of this final rule no internationally-based cellulosic biofuel production facilities have registered under the RFS program and therefore no volume from international producers has been included in our projections for 2013. Of the domestic sources, we estimated that up to four facilities may produce commercial scale volumes of cellulosic biofuel available for use as renewable fuel in the U.S. in 2013. Two of these four facilities have made sufficient progress to project that commercial scale production from these two facilities will occur in 2013, and we have therefore included production from them in our projected available volume for 2013. All four facilities are listed in Table I.B.1–1 along with our estimate of the projected 2013 volume for each.
The EIA projections,
The statute authorizes EPA to reduce the applicable volume of advanced biofuel and total renewable fuel specified in the statute if we reduce the applicable volume of cellulosic biofuel for a given year below the statutory applicable volume specified in Section 211(o)(2)(B)(i)(III). As shown in Table I.B.1–1, for 2013 we have projected cellulosic biofuel production at 6 million ethanol-equivalent gallons, significantly less than the applicable volume of 1.0 bill gal set forth in the statute. Therefore, we have also evaluated whether to lower the applicable volumes for advanced biofuel and total renewable fuel. The statute provides no explicit criteria or direction for making this determination. As in the proposed rule, we have focused our evaluation for this final rule on the availability of renewable fuels that would qualify as advanced biofuel and renewable fuel, the ability of those fuels to be consumed, and carryover RINs from 2012. We also considered the many comments received on our proposed approach, including suggested alternative approaches. Comments related to the advanced biofuel standard and our responses to those comments are discussed in Section III of this preamble.
The CAA specifies an applicable volume of 2.75 bill gal of advanced biofuel for 2013. To determine whether to lower this volume, we considered the sources that are expected to satisfy any advanced biofuel mandate including: cellulosic biofuel, biomass-based diesel, other domestically-produced advanced biofuels, and imported sugarcane ethanol.
As described in Section II, we project that 6 mill gallons of cellulosic biofuel will be available in 2013. This volume will fulfill 0.006 bill gal of the 2.75 bill gal advanced biofuel requirement.
We established an applicable volume of 1.28 bill gal for 2013 biomass-based diesel in a separate action,
As described in more detail in Section III, we have projected that domestic advanced biofuels are expected to grow steadily through 2013, and would include renewable diesel that does not qualify to be biomass-based diesel,
After taking into account cellulosic biofuel, biomass-based diesel, and domestic advanced biofuel described above, the volume of imported sugarcane ethanol that will be needed to meet the statutory advanced biofuel volume of 2.75 bill gal could be significantly below the 670 mill gal that we projected would be needed in the NPRM. The U.S. imported a total of 575 mill gal of ethanol in 2012, and most projections indicate that Brazilian sugarcane crop yields will be significantly better in the coming harvest (2013/2014, which began in April 2013) in comparison to the previous harvest. Since there is a high likelihood that the total volume of all advanced biofuels that can be produced or imported in 2013 is above the 2.75 bill gal statutory volume, we do not believe that the advanced biofuel requirement should be reduced.
We believe there will be sufficient volumes of conventional renewable fuel including corn ethanol, combined with advanced biofuel, to satisfy the 16.55 bill gallon applicable volume of total renewable fuel specified in the Act. For instance, current corn ethanol production capacity is 14.5 bill gal, compared to the 13.8 bill gal needed to meet the RFS requirements in 2013.
However, we believe that delaying the compliance demonstration for the 2013 compliance period would alleviate some of the concerns that obligated parties have regarding the tardiness of the final rule and its effect on their decisions regarding RIN acquisition. Therefore, we are extending the RFS compliance deadline for the 2013 RFS standards from February 28, 2014 to June 30, 2014.
As described in the NPRM, we recognize that ethanol will likely continue to predominate in the renewable fuel pool in the near future, and that for 2014 the ability of the market to consume ethanol as E15–E85 is constrained in a number of ways. We believe that it will be challenging for the market to consume sufficient quantities of ethanol sold in blends greater than E10 and to produce sufficient volumes of non-ethanol biofuels (biodiesel, renewable diesel, biogas, etc.) to reach the mandated 18.15 bill gal for 2014. Given these challenges, EPA anticipates that adjustments to the 2014 volume requirements are likely to be necessary based on the projected circumstances for 2014, taking into account the available supply of cellulosic biofuel, the availability of advanced biofuel, the E10 blendwall, and current infrastructure and market-based limitations to the consumption of ethanol in gasoline-ethanol blends above E10. As discussed in Section III.E below, EPA will discuss options and approaches for addressing these issues, consistent with our statutory authorities, in the forthcoming NPRM for the 2014 standards.
The renewable fuel standards are expressed as a volume percentage and are used by each refiner, blender or importer to determine its renewable fuel volume obligations. The applicable percentages are set so that if each regulated party meets the percentages, and if EIA projections of gasoline and diesel use for the coming year are accurate, then the amount of renewable fuel, cellulosic biofuel, biomass-based diesel, and advanced biofuel actually used will meet the volumes required on a nationwide basis.
To calculate the percentage standards for 2013, we have used the projected volume of 6 million ethanol-equivalent gallons of cellulosic biofuel and the volume of biomass-based diesel of 1.28 bill gal that we established in a separate action. The applicable volumes used in this final rule for advanced biofuel and total renewable fuel for 2013 are those specified in the statute. These volumes are shown in Table I.B.3–1.
Four separate standards are required under the RFS program, corresponding to the four separate volume requirements shown in Table I.B.3–1. The specific formulas we use in calculating the renewable fuel percentage standards are contained in the regulations at 40 CFR § 80.1405 and repeated in Section IV.B.1. The percentage standards represent the ratio of renewable fuel volume to projected non-renewable gasoline and diesel volume. The projected volume of transportation gasoline and diesel used to calculate the standards in today's rule was derived from EIA projections.
On January 25, 2013, the United States Court of Appeals for the District of Columbia Circuit responded to a challenge to the 2012 cellulosic biofuel standard. The Court found that in establishing the applicable volume of cellulosic biofuel for 2012, EPA had used a methodology in which “the risk of overestimation [was] set deliberately to outweigh the risk of underestimation.” The Court held EPA's action to be inconsistent with the statute because EPA had failed to apply a “neutral methodology” aimed at providing a prediction of “what will actually happen,” as required by the statute. As a result of this ruling, the court vacated the 2012 cellulosic biofuel standard. In today's final rule we have revised the regulations to eliminate the applicable standard for cellulosic biofuel for 2012 in light of the court's decision and the very small number or cellulosic biofuel RINs produced in 2012. All of the money paid by obligated parties to purchase cellulosic waiver credits to comply with the cellulosic biofuel standard in 2012 has been refunded. This change does not impact any other applicable 2012 standard.
By November 30 of each year we are required to make several administrative announcements which facilitate program implementation in the following calendar year. These announcements include the cellulosic biofuel waiver credit price and the status of the aggregate compliance approach to land-use restrictions under the definition of renewable biomass for both the U.S. and Canada. Since we did not make these announcements for 2013 by November 30 of 2012, we presented our proposed assessments of these administrative actions in the February 7, 2013 NPRM. In today's action we are providing the final announcements for these administrative actions.
When EPA reduces the applicable volume of cellulosic biofuel for 2013 below the volume specified in the statute, EPA is required to offer biofuel waiver credits to obligated parties that can be purchased in lieu of acquiring cellulosic biofuel RINs. These waiver credits are not allowed to be traded or banked for future use, are only allowed to be used to meet the 2013 cellulosic biofuel standard, and cannot be applied to deficits carried over from 2012. Moreover, unlike cellulosic biofuel RINs, waiver credits may not be used to meet either the advanced biofuel standard or the total renewable fuel standard. For the 2013 compliance period, we have determined that cellulosic biofuel waiver credits can be made available to obligated parties for end-of-year compliance should they need them at a price of $0.42 per credit.
As part of the RFS regulations, EPA established an aggregate compliance approach for renewable fuel producers who use planted crops and crop residue from U.S. agricultural land. This compliance approach relieved such producers (and importers of such fuel) of the individual recordkeeping and reporting requirements otherwise required of producers and importers to verify that such feedstocks used in the
On September 29, 2011, EPA approved the use of a similar aggregate compliance approach for planted crops and crop residue grown in Canada. The Government of Canada utilized several types of land use data to demonstrate that the land included in their 124 million acre baseline is cropland, pastureland or land equivalent to U.S. Conservation Reserve Program land that was cleared or cultivated prior to December 19, 2007, and was actively managed or fallow and nonforested on that date (and is therefore RFS2 qualifying land). The total agricultural land in Canada in 2012 is estimated at 120.9 million acres. The total acreage estimate of 120.9 million acres does not exceed the trigger point for further investigation.
Under CAA 211(o)(3)(B)(i), EPA must determine and publish the applicable percentage standards for the following year by November 30. EPA did not meet this statutory deadline for the 2013 standards. The NPRM was published on February 7, 2013 and the comment period closed on April 7, 2013. Nevertheless, we believe that the applicable percentage standards we are finalizing in today's rulemaking should apply, as proposed, to all gasoline and diesel produced in 2013, including that produced prior to the effective date of this final rule.
Some commenters asserted that this approach would provide insufficient notice and lead time to obligated parties, and result in prohibited retroactive rulemaking. However, as discussed below, application of the standards to the entire year's production is reasonable given the structure of the statute, advance notice to obligated parties, compliance mechanisms under the program, and sufficiency of lead time for obligated parties to achieve compliance. Moreover, we have considered the alternative approaches suggested by commenters, and have determined that they are inappropriate as they would not satisfy the statutory requirements.
In response to the NPRM, several obligated parties commented that the rulemaking process to establish the applicable 2013 standards should be abandoned due to its tardiness, and instead EPA should focus only on promulgating the applicable standards for 2014. Other commenters requested that we make the applicable 2013 standards apply only to gasoline and diesel produced or imported after the publication of the final rule, thereby effectively reducing the volume of renewable fuel to be used in 2013 by an amount proportional to the months in 2013 prior to the publication date. Alternatively, some commenters suggested that we apply the 2012 standards to 2013. All of these suggested approaches would result in 2013 standards requiring substantially less renewable fuel use than specified in the statute.
Under the statute, the renewable fuel obligations apply on a calendar year basis. The national volumes are established for each calendar year, and EPA's regulations must ensure these national volumes are met on an annual average basis. The renewable volume obligation is based on a projection of gasoline and diesel production for the calendar year, and the renewable fuel obligation for that calendar year is to be expressed as a percentage of the transportation fuel a refiner or importer sells or introduces into commerce for that calendar year.
EPA acknowledges that today's rule is being finalized later than the statutory deadline of November 30, 2012. However, this delay does not deprive EPA of authority to issue standards for calendar year 2013. As the United States Court of Appeals for the District of Columbia Circuit noted in its review of EPA's delayed 2010 RFS standards, the statute does not specify a consequence for a situation where EPA misses the deadline,
EPA is mindful that the precise contours of obligated parties' responsibilities for gasoline and diesel fuel produced in 2013 could not be known before issuance of this final rule. However, EPA believes that imposition in the final rule of an obligation related to production of gasoline or diesel that occurred prior to the effective date of this rule is reasonable. First, as noted above, EPA is required under the statute to ensure that applicable volumes specified in the statute for 2013 are satisfied, so it must take action notwithstanding the late date. The statute also provides that the national volumes are to be achieved on “an annual average basis.” The standards for obligated parties are based on a projection from the Energy Information Administration of gasoline and diesel use for each calendar year, and the obligation for refiners and importers is to be expressed as an applicable percentage obligation for a calendar year. Thus, applying the standards to production in calendar year 2013 is most consistent with the statute.
Second, obligated parties have been provided reasonable notice that EPA would act in approximately the manner specified in the final rule. EPA established the required volume of biomass-based diesel in a separate rulemaking and, as proposed, has not lowered the applicable volumes of total renewable fuel and advanced biofuel below the applicable volumes specified in the statute. EPA has, as proposed, substantially lowered the required volume of cellulosic fuel below the level specified in the statute. Indeed, EPA's final rule requires use of less cellulosic biofuel than it proposed, so any change between the proposed and final rules in this regard operates to relieve burden on obligated parties. Regulated parties also had the benefit of knowing how EPA
Third, the parties have adequate lead time to comply with the 2013 RFS standards notwithstanding EPA's delay in issuing the rule. Because compliance is achieved by obligated parties purchasing an appropriate number of RINs from producers or blenders of the renewable fuel, obligated parties do not need lead time for construction or investment purposes. They are not changing the way they produce gasoline or diesel, do not need to design or install new equipment, or take other actions that require longer lead time. Obtaining the appropriate amount of RINs involves contractual or other arrangements with renewable fuel producers or other holders of RINs. Indeed renewable fuel producers have been generating 2013 RINs since the beginning of the calendar year. Obligated parties have been acquiring RINs since the beginning of 2013 in anticipation of the publication of the final applicable standards in today's rule. There is also a significant quantity of 2012 RINs that can be used for compliance with the 2013 standards. To facilitate compliance, and provide additional lead time, EPA is extending the date by which compliance with the 2013 standards must be demonstrated to June 30, 2014. EPA chose this date both to provide additional time for a compliance demonstration, and because we anticipate issuing a final rule establishing the 2014 RFS standards as soon as possible before that date. Establishing a 2013 compliance deadline on a date that occurs after promulgation of the final rule setting the 2014 standards should allow obligated parties to take their 2014 obligations into consideration as they determine how to utilize RINs for 2013 compliance.
In response to stakeholder concerns about the lateness of this final rule, EPA considered, but rejected, the option of issuing numerically higher percentage standards based on just the 2013 production of gasoline and diesel fuel that took place after issuance of the final rule. Such an approach would not provide for standards allowing compliance on an “annual average basis,” based on “an applicable percentage for a calendar year,” as envisioned by the statute. Also, EPA believes application of the standards in this manner would be unfair because it could result in some producers or importers having substantially greater or lesser obligations, based on variable production or import volumes over the year, than would be the case if the standards were based on a full year's production. In essence, such an approach would provide a temporal window with no RFS obligation, and some parties might receive either a windfall or a substantially greater burden than they would have if EPA had issued its standards on time. This would be exacerbated by the fact that EPA did not take comment on this alternative, so obligated parties would not have been on notice of this potential approach. EPA rejected this approach for these reasons.
Analyses for the March 26, 2010 RFS final rule indicated the GHG benefits from cellulosic biofuels compared to the petroleum-based fuels they displace are well above the 60 percent reduction threshold. Therefore, EPA expects that the increase in cellulosic biofuel use that EPA has projected for 2013 over prior year production levels will have directionally beneficial GHG emissions impacts.
For advanced biofuel and total renewable fuel, we are not reducing the applicable volumes below the applicable volumes set forth in the statute. All of the impacts of the biofuel volumes specified in the statute were addressed in the RFS final rule published on March 26, 2010.
In order to project the national production volume of cellulosic biofuel in 2013, we considered the EIA projections and collected information on individual facilities that have the potential to produce qualifying volumes for use as transportation fuel, heating oil, or jet fuel in the U.S. in 2013. In light of the delay in issuing the standards for 2013 we also sought and received an updated estimate of cellulosic biofuel production from EIA to inform our final standards. We also considered the comments we received in response to the NPRM. This section describes the volumes that we project will be produced or imported in 2013 as well as some of the uncertainties associated with those volumes.
Despite significant advances in cellulosic biofuel production technology in recent years, RIN-generating production of biofuel from cellulosic feedstocks in 2010 and 2011 was zero despite our projections that the industry was positioned to produce about 6 mill gal in each of those years.
In 2012 the first cellulosic RINs were generated under the current RFS regulations at two small pilot facilities. However, cellulosic biofuel production once again fell short of our projections in 2012. The 2012 cellulosic standard was challenged in court and based on the decision in that case the 2012 cellulosic biofuel standard was vacated.
The national volumes of cellulosic biofuel to be used under the RFS program each year through 2022 are specified in CAA 211(o)(2). For 2013, the statute specifies a cellulosic biofuel applicable volume of 1.0 bill gal. The statute requires that if EPA determines, based on EIA's estimate, that the projected volume of cellulosic biofuel production for the following year is less
In addition, if EPA reduces the required volume of cellulosic biofuel below the level specified in the statute, the Act also indicates that we may reduce the applicable volumes of advanced biofuels and total renewable fuel by the same or a lesser volume. Our consideration of the 2013 volume requirements for advanced biofuels and total renewable fuel is presented in Section III.
The United States Court of Appeals for the District of Columbia Circuit recently interpreted the statutory requirements for EPA's cellulosic biofuel projections, in the context of considering a challenge to the 2012 cellulosic biofuel standard. The Court found that in establishing the applicable volume of cellulosic biofuel for 2012, that EPA had used a methodology in which “the risk of overestimation [was] set deliberately to outweigh the risk of underestimation.” The Court held EPA's action to be inconsistent with the statute because this provision required EPA to apply a “neutral methodology” aimed at providing a prediction of “what will actually happen”. In all other respects the Court upheld EPA's methodology for making cellulosic biofuel projections. For example, the Court agreed with EPA that the statute requires that EPA treat the EIA estimate with “great respect,” but “allowing deviation consistent with that respect”. The Court also upheld EPA's reasoned reliance on information provided by prospective cellulosic biofuel producers in formulating its projections. For a further discussion of the changes we have made to our approach in evaluating the information that forms the basis for our projection of cellulosic biofuel see Section C below.
As in previous years, cellulosic biofuel production in the United States in 2012 was limited to small-scale research and development, pilot, and demonstration-scale facilities. Companies such as Abengoa, Blue Sugars, DuPont, KiOR, Poet, and others successfully operated small-scale facilities in 2012. Two of these companies, Blue Sugars and KiOR, generated a small number of RINs for the fuel they produced. Several of these facilities, including all that were part of our 2012 volume projections, are discussed in more detail in Section II.C below. While there were numerous small-scale facilities producing cellulosic biofuel in 2012, the total volume of fuel produced was very small. Two commercial scale facilities that were expected to begin fuel production in 2012 experienced unexpected delays in commissioning, while a third was delayed due to difficulties raising required funds.
While cellulosic biofuel production in the United States remains limited, the industry continues to make significant progress towards producing cellulosic biofuel at prices competitive with petroleum fuels. From 2007 through the second quarter of 2012 venture capitalists invested over $3.4 billion in advanced biofuel companies in North America.
Another area where significant progress has been made is feedstock supply for commercial scale cellulosic biofuel production facilities. This issue has often been raised as a factor that could hinder the development of the cellulosic biofuel industry as many of the proposed facilities rely on feedstocks, such as agricultural residues or energy crops, for which supply chains have not previously existed. Over the past several years both Abengoa and Poet have been working with farmers in the regions surrounding their first commercial scale facilities to ensure the availability of the necessary feedstock. Because corn cobs and stover are only seasonally available, using them as a feedstock for a cellulosic biofuel production facility would require significant feedstock storage facilities. In the last two years Abengoa and Poet completed construction of large scale feedstock storage facilities to ensure adequate supply to their cellulosic biofuel production facilities throughout the year. Both companies successfully completed fall biomass harvests in 2011 and have contracted with local farmers to provide feedstock for their cellulosic ethanol facilities. This supply chain will not only provide feedstock for their first commercial scale facilities, but also a model that can be re-created at future production facilities.
Several cellulosic biofuel producers are planning to use pre-commercial thinnings, tree residue from tree plantations or the cellulosic portions of yard waste as feedstock.
Another feedstock for cellulosic biofuel production is separated municipal solid waste (MSW). MSW is already being collected and transported to a centralized facility, is consistently available throughout the year, and can be obtained for a very low, or even negative, cost. MSW often contains contaminants, however, that may make it challenging to process for some cellulosic biofuel technologies. EPA also requires that waste separation plans be submitted and approved prior to any company generating RINs using separated MSW as a feedstock. In June 2012 EPA approved the first waste separation plan under the RFS program for Fiberight's facility in Blairstown, Iowa.
In the early years of the cellulosic biofuel industry several small start-up companies announced plans to build large commercial scale facilities that were scheduled to begin production in the past few years. The construction of many of these facilities was dependent on the companies raising additional funding, either from venture capitalists, government grants, or loans backed by government guarantees. So far, few of the companies that made these early announcements have been able to successfully raise the necessary funds and begin construction. Securing this funding proved difficult, and when it did not materialize the projects were delayed or cancelled. However, recently significant progress has also been made by some companies towards funding the construction of their first commercial scale facilities.
The funding profiles of the companies included in our projected volume for 2013, as well as for many of the companies targeting production in 2014, are markedly different than those of the companies that were expected to produce the majority of cellulosic biofuel in 2010 and 2011. Many of these projects have already received, and in several cases have closed on loan guarantees and grants offered by DOE or USDA. Other companies have filed for and successfully executed IPOs. Several cellulosic ethanol projects are being self-financed by large companies such as Abengoa and Poet with significant experience in the biofuel, petrochemical, and specialty chemical markets. This solid financial backing has allowed these companies to proceed with construction. Both of the facilities included in our final volume for 2013 have already completed the construction of their first commercial production facilities. KiOR's facility has begun producing RINs and INEOS Bio announced that it started commercial production on July 31, 2013. There is therefore far less uncertainty as to likely production from these two facilities than has been present for EPA's earlier projections. The next section provides additional details on the funding and construction status of the projects included in our projected cellulosic biofuel production volumes for 2013.
If these first commercial scale cellulosic biofuel production facilities are successful, the potential exists for a rapid expansion of the industry in subsequent years. Having successful commercial scale facilities would not only provide useful information to help maximize the efficiency of future facilities, but would also significantly decrease the technology and scale-up risks associated with cellulosic biofuel production facilities and could lead to increased access to project funding. Fiberight and ZeaChem both plan to build larger-scale facilities (~25 mill gal per year) as soon as they are able to raise the necessary funds. INEOS Bio plans to expand production by building additional units near sources of inexpensive feedstock ranging in size from 8 to 50 mill gal of ethanol per year. They are currently exploring expansion possibilities in the United States and internationally. KiOR has plans for a second commercial scale facility to be built in Natchez, MS, that will be approximately three times larger (~30 mill gal per year) than their Columbus, MS, plant and plans to break ground at their second facility after their first is fully operational. Abengoa currently anticipates construction of additional cellulosic ethanol facilities at multiple locations, likely including co-locating with some of their existing starch facilities in the US. Poet has a similar expansion strategy to build cellulosic ethanol plants at their grain ethanol facilities, license their technology for use at other grain ethanol facilities, and build cellulosic ethanol facilities that use feedstocks such as agricultural residue or energy crops. Poet's goal is to be involved in the production of 3.5 bill gal of cellulosic ethanol per year by 2022. Several other companies are also targeting 2014 for the start-up of cellulosic biofuel production facilities and would likely look to build additional facilities relatively quickly if their first facilities operate successfully. While many of these expansion plans are still in the early stages and are subject to change, they do point to the potential for cellulosic biofuel production to increase very significantly in future years once the initial plants become operational.
In 2012 the first cellulosic biofuel RINs under the current regulations were generated. Small quantities of RINs, a total of approximately 22,000, were generated by Blue Sugars and KiOR from their respective demonstration facilities. The small volumes of fuel produced from these two facilities are typical for R&D and pilot facilities whose primarily purpose is to prove the technology is viable, provide information for scale-up design, and provide fuel for testing purposes rather than to generate income from commercial volumes of fuel. However, national cellulosic biofuel production once again fell far short of the cellulosic biofuel standards. Two of the companies expected to begin producing fuel in 2012 experienced unexpected difficulties in commissioning their commercial scale production facilities following successful demonstration and pilot scale work, resulting in biofuel production being delayed until 2013. A third commercial facility was unable to secure the funds needed to convert an existing corn ethanol production facility to a cellulosic biofuel production facility, despite having secured a conditional loan guarantee from the United States Department of Agriculture (USDA). The remaining facilities that were included in our projected production volume for 2012 were small demonstration facilities that similarly experienced delays or significantly reduced production volumes for a variety of reasons.
There are several factors indicating that larger volumes of cellulosic biofuel will be produced in 2013. Commercial scale cellulosic biofuel projects from INEOS Bio and KiOR are structurally complete, KiOR's facility began producing cellulosic biofuel in the Spring of 2013, and INEOS Bio announced it began production at the end of July. Both facilities plan to achieve steady state production and achieve production rates at or near their nameplate capacities by the end of 2013. Another commercial scale facility backed by Abengoa, a large company with significant experience in biofuel production, is also scheduled to begin producing cellulosic biofuel in late 2013 or early 2014. These facilities are
In order to project cellulosic biofuel production for 2013, we tracked the progress of more than 100 biofuel production facilities. From this list of facilities we used publicly available information, as well as information provided by DOE, EIA, and USDA, to make a preliminary determination of which facilities are the most likely candidates to produce cellulosic biofuel and generate cellulosic biofuel RINs in 2013. Each of these companies was investigated further in order to determine the current status of their facilities and their likely cellulosic biofuel production and RIN generation volumes for the coming years. Information such as the funding status of these facilities, current status of the production technologies, announced construction and production ramp-up periods, and annual fuel production targets were all considered when we met with senior level representatives of each company to discuss cellulosic biofuel target production levels for 2013. Throughout this process EPA is in regular contact with EIA to discuss relevant information and assessment of potential cellulosic biofuel producers. Our projection of the cellulosic biofuel production in 2013 is based on the estimate we received from EIA, information we received from EIA, DOE, and USDA, the individual production projections that emerged from these discussions, and comments we received on the NPRM. A brief description can be found below for each of the companies we believe will produce cellulosic biofuel and make it commercially available in 2013.
To project the available volume of cellulosic biofuel, we have continued to obtain information from the potential producers of cellulosic biofuels to help inform our annual projection. We have, however, made several changes to the way that we used the information we gather in projecting cellulosic biofuel production to ensure consistency with the ruling of the DC Circuit Court and help ensure a neutral projection that aims at accuracy. Several of the more significant changes are:
• Volumes from pilot and demonstration scale facilities are not included in our projections. Very few of these facilities are registered to generate RINs, and production volumes at those that are historically have been so small that they have no significant impact on our total volume projection for 2013.
• Facilities with start-up dates near the end of the year are not included in our projections. There is a realistic possibility that minor delays could result in no production of cellulosic biofuel from such facilities in 2013, and even if these facilities start up as expected production volumes from the first month of production are expected to be very small.
• Benchmarks for how quickly new facilities ramp up to full production, and for production volumes during this ramp-up period in a best case scenario have been established and used to assess the reasonableness of the production estimates received from producers. Production projections from companies that exceed the volumes calculated using this benchmark are not considered credible, even as the high end of a possible range of production. While we have considered ramp-up rates for cellulosic biofuel production facilities in the past we have added best case scenario benchmarks to assess the reasonableness of the ramp-up schedules we received from potential biofuel producers.
• In considering all factual information and projections we have weighted uncertainty neutrally, with the aim of providing an accurate projection rather than one intended to provide an incentive for growth in the cellulosic biofuel industry.
In our proposed rule we projected 14 million ethanol-equivalent gallons of cellulosic biofuel production in 2013. Since this time we have considered comments received on the proposed rule, updated information from EIA including a new projection of cellulosic biofuel production for 2013,
EPA received many comments on the projected available cellulosic biofuel volumes in our proposed rule. Several commenters, including biofuel trade organizations and cellulosic biofuel production companies supported EPA's methodology for projecting available cellulosic biofuel volumes. Some of these commenters further stated that EPA had appropriately assessed the status of the cellulosic biofuel industry and that the projected volume (14 million ethanol-equivalent gallons) was likely to be achieved. Others, while affirming EPA's methodology encouraged EPA to consider new information available since the publication of our proposed rule, particularly delays in the start-up of INEOS Bio and new production guidance from KiOR, and to adjust our projected volume accordingly. EPA has considered this information and believes the volume projected in today's final rule (6 million ethanol-equivalent gallons) accurately represents the volume of cellulosic biofuel likely to be produced in 2013 based on the best available information.
Conversely, EPA also received several comments stating that the projected available volume of cellulosic biofuel should be based on historical production rather that projections of future production. Using this methodology would result in a cellulosic biofuel standard for 2013 near zero. In effect the commenters argued that past production is the best and most sure indicator for future production. Adopting this methodology would be inconsistent with EPA's charge to set the applicable volume for cellulosic biofuel through a neutral projection of the volume projected to be produced that aims at accuracy. Basing this projection solely on past production would not neutrally aim at accuracy, as it would require EPA to ignore significant real world information that is relevant to project production for 2013. It would also require EPA to ignore the production estimates we receive from EIA, which we are required to consider with great respect. Additionally, it would be unusual to base a future projection solely on past performance, effectively assuming no growth in the cellulosic biofuel industry.
Several commenters also stated that the methodology used by EPA in setting the applicable volume for cellulosic biofuel is the same as that used in
EPA believes the information and methods used to project the production of cellulosic biofuel for 2013 described in the preceding sections appropriately takes neutral aim at accuracy. EPA has established a benchmark for the expected production ramp-up timeframe that has been used to assess the reasonableness of production estimates received from companies. We did not receive any comments suggesting that this benchmark was inappropriate. We have appropriately considered the history of delays for the cellulosic industry as a whole and the companies included in our projection in particular in projecting these volumes. We have not included any volumes from pilot or demonstration scale facilities, nor have we included any volume from companies currently lacking a valid pathway to produce cellulosic biofuel—despite their claims that they can and intend to generate cellulosic biofuel RINs in 2013—due to the highly uncertain nature of this production. Given the timing of this final rule this seems particularly appropriate for 2013. Finally, we have not used best case scenarios for the companies considered in determining our volume projection for 2013, and have not attempted to use this process to either promote or impede growth within the cellulosic biofuel industry. Of the seven companies and potential fuel producing pathways listed in Table II.C.6–1 that have the potential to produce cellulosic RINs in 2013 we have only included two in our volume projection. For the two facilities considered we have reduced their projected volume from the maximum possible production calculated from the start-up date and nameplate capacity taking into account expected ramp-up schedules and delays experienced at the two facilities. After using this information to establish projected ranges of production we selected a combined volume that represents production at the mid-point of our established ranges, as a shortfall in expected production from either company can be made up for by the other companies in Table II.C.6–1 exceeding their projected production. We believe our volume projection of 6 million ethanol-equivalent gallons of cellulosic biofuel in 2013 and the methodology utilized to arrive at this projection are our best assessment of production that will actually happen in 2013.
Section 211(o)(3)(A) of the Clean Air Act requires EIA to “. . . provide to the Administrator of the Environmental Protection Agency an estimate, with respect to the following calendar year, of the volumes of transportation fuel, biomass-based diesel, and cellulosic biofuel projected to be sold or introduced into commerce in the United States.” EIA provided these estimates to us on October 18, 2012.
Several commenters noted a Today in Energy article that appeared on EIA's Web site on February 26, 2013 that stated that cellulosic biofuel production “could grow to more than 5 mill gal in 2013, as operations ramp up at several plants.”
EIA's projection of cellulosic biofuel production in 2013 is very similar to EPA's projection discussed above and summarized in Section II.C.6 below. The lists of companies (KiOR and INEOS Bio) that EIA and EPA expect to generate cellulosic biofuel RINs in 2013 are the same. EIA's estimate also no longer includes volumes from pilot facilities due to their highly uncertain production and the fact that these facilities are unlikely to generate RINs in 2013 for any fuel they do produce. While the total volume of cellulosic biofuel that EIA expects will be produced in 2013 is identical to the volume projected by EPA (4 million actual gallons), EIA does not specify how much of this production will be ethanol and how much will be renewable hydrocarbons. Because of this EPA is unable to calculate the ethanol-equivalent volume represented by EIA's projection. Since this volume includes renewable gasoline and diesel produced by KiOR, however, EIA's projection represents an implied ethanol-equivalent volume greater than 4 mill gal and is consistent with EPA's 6 million ethanol-equivalent gallon projection.
The approach we have taken in setting the applicable volume for cellulosic biofuel for 2013 is appropriate. Section CAA 211(o)(7)(D) vests the authority for making the projection with EPA. As described in past rulemakings, the statute provides that the projection is “determined by the Administrator based on the estimate provided [by EIA].” Congress did not intend that EPA simply adopt EIA's projection without an independent evaluation. EPA's consideration of EIA's estimate in developing this final rule is consistent with EPA's consideration of EIA's estimate in the past rulemakings involving a reduction of the volume standard for cellulosic biofuel. EPA's interpretation and implementation of the obligation to base its projection on the EIA estimate recently was upheld in
In the January 9, 2012, final rule that established the applicable volume of cellulosic biofuel for 2012, we identified six production facilities that we projected would produce cellulosic biofuel and make that fuel commercially available in 2012. Five of these production facilities are currently structurally complete and one is planning to retrofit an existing corn ethanol plant with construction beginning in the summer of 2013. The current status of each of these facilities, including target production levels for each facility in 2013, is discussed below. Two additional facilities that are expected to begin producing cellulosic biofuel near the end of 2013 or in early 2014 are also discussed.
American Process Inc. (API) is developing a project in Alpena, Michigan capable of producing up to 900,000 gallons of cellulosic ethanol per year from pre-commercial thinnings and tree residue from tree plantations. This facility will use a technology developed by API called GreenPower+
In January 2010 API received a grant from DOE for up to $18 million for the construction of their demonstration facility. Construction of the Alpena, Michigan facility began in March 2011 and API began commissioning operations at their facility in the summer of 2012. API encountered several unexpected difficulties in commissioning their facility resulting in production delays; however they anticipate production of cellulosic biofuel from this facility in 2013. EPA has not included production from API in our projections due to the facility's history of delays, uncertain start-up date, and small potential production volume.
Fiberight uses an enzymatic hydrolysis process to convert the biogenic portion of separated MSW and other waste feedstocks into ethanol. They have successfully completed five years of development work on their technology at their small pilot plant in Lawrenceville, Virginia. In 2009 Fiberight purchased an idled corn ethanol plant in Blairstown, Iowa with the intention of making modifications to this facility to allow for the production of 6 mill gal of cellulosic ethanol per year from separated MSW and industrial waste streams. These modifications were scheduled to be completed in 2011, but difficulties in securing funding have resulted in construction at this facility being delayed. In January 2012 Fiberight was offered a $25 million loan guarantee from USDA. Closing on this loan would provide substantially all of the remaining funds required for Fiberight to complete the required modifications at their Blairstown facility. Fiberight plans to begin construction in the second quarter 2013. Fiberight expects that it will take approximately 6 months to complete construction and that fuel production will begin in early 2014. Additionally, Fiberight's waste separation plan for this facility was approved in June 2012 allowing Fiberight to generate RINs for the cellulosic ethanol they produce using separated MSW as a feedstock. Fiberight is also currently developing a second commercial scale project based on their MSW “hub and spoke” concept. They anticipate that this facility will produce approximately 25 mill gal of cellulosic ethanol per year when fully built out. Since Fiberight currently does not expect cellulosic biofuel production to begin until 2014 no volume from their facility has been included in EPA's projections.
INEOS Bio has developed a process for producing cellulosic ethanol by first gasifying cellulosic feedstocks into a syngas and then using naturally occurring bacteria to ferment the syngas into ethanol. In January 2011 USDA announced a $75 million loan guarantee for the construction of INEOS Bio's first commercial facility to be built in Vero Beach, Florida. This loan was closed in August 2011. This was in addition to the grant of up to $50 million INEOS Bio received from DOE in December 2009. At full capacity, this facility will be capable of producing 8 mill gal of cellulosic biofuel as well as 6 megawatts (gross) of renewable electricity from a variety of feedstocks including yard, agricultural, and wood waste. The facility also plans to use a limited quantity of separated MSW as a feedstock after initial start-up.
On February 9, 2011, INEOS Bio broke ground on this facility. INEOS Bio completed construction on this facility in June 2012 and began full commissioning of the facility. In August 2012 INEOS Bio received approval from EPA for their yard waste separation plan
KiOR is using a technology that converts biomass to a biocrude using a process they call Biomass Fluid Catalytic Cracking (BFCC). BFCC uses a catalyst developed by KiOR in a process similar to Fluid Catalytic Cracking currently used in the petroleum industry. The first stage of this process produces a renewable crude oil which is then upgraded to produce primarily gasoline, diesel, and jet fuel as well as a small quantity of fuel oil, all of which are nearly identical to those produced from petroleum.
KiOR's first commercial scale facility is located in Columbus, Mississippi and is capable of producing approximately 11 mill gal of gasoline, diesel, and jet fuel per year. Construction on this facility began in May 2011 and was completed in September 2012. This facility is funded, in large part, with funds acquired through private equity and supplemented by KiOR's $150 million IPO in June 2011. KiOR announced that the first renewable transportation fuel produced at this facility was shipped to customers on March 18, 2013. KiOR had intended to begin producing fuel at their Columbus facility in 2012. Unexpected difficulties during the commissioning of this facility, due in large part to an interruption in electricity supply to the facility during commissioning resulted in delays in fuel production. KiOR's current expectations at their Columbus facility are for a start-up period lasting 9–12 months. During this period they estimate fuel production will average 30%–50% of the facility capacity after which they plan to approach full production rates at the facility. KiOR's expected production from their Columbus facility in 2013, recently confirmed in their quarterly update on May 9th, 2013, is between 3 and 5 million actual gallons of cellulosic gasoline and diesel. KiOR has feedstock supply agreements in place to supply all of the required feedstock for their Columbus facility with slash and pre-commercial thinning. They also have off-take agreements with several companies for all of the fuel that will be produced. KiOR has also announced plans to begin work on their second commercial scale biofuel production facility in Natchez, Mississippi upon the successful start-up of their first facility. It is unlikely this second facility will begin production of biofuel in 2013. For 2013 our production projection is for 3–4 million actual gallons (5–6 million ethanol-equivalent gallons) of cellulosic biofuel from KiOR's Columbus facility. This volume is significantly lower than the volume of fuel that would be produced assuming our best case scenario benchmark of a 6 month straight-line ramp-up period starting in mid March (~9 million ethanol-equivalent gallons). However, EPA believes this lower projection is appropriate based on the guidance received from KiOR and the progress achieved at their facility to date.
Blue Sugars, formerly KL Energy, has developed a process to convert cellulose and hemicellulose into sugars and ethanol using a combined chemical/thermal-mechanical pretreatment process followed by enzymatic hydrolysis, co-fermentation of C5 and C6 sugars, and distillation to fuel-grade ethanol. This production process is versatile enough to allow for a wide variety of cellulosic feedstocks to be used, including woody biomass and herbaceous biomass such as sugarcane bagasse. In August 2010 Blue Sugars announced a joint development agreement with Petrobras America Inc. As part of the agreement Petrobras has invested $11 million to modify Blue Sugars' 1.5 mill gal per year demonstration facility in Upton, Wyoming to allow it to process bagasse and other biomass feedstocks. The modifications to Blue Sugars' facility were completed in the spring of 2011. In April 2012 Blue Sugars generated approximately 20,000 cellulosic biofuel RINs, the first RINs generated under the RFS program for fuel made from cellulosic feedstock. Blue Sugars has indicated, however, that the cellulosic ethanol they produced was exported to Brazil for promotional efforts at the Rio +20 conference in Brazil. These RINs therefore had to be retired and were not be available to obligated parties to meet their cellulosic biofuel requirements in 2012. In October 2012 Western Biomass Energy LLC, a subsidiary of Blue Sugars that owned the Upton, Wyoming demonstration facility, filed for Chapter 11 bankruptcy. This was changed to Chapter 7 bankruptcy on May 2, 2013 and was followed by a Chapter 7 bankruptcy filing for Blue Sugars on May 10th.
ZeaChem successfully completed construction of their demonstration-scale facility in Boardman, Oregon, in October 2012, allowing for the production of ethanol from sugars derived from cellulose and hemi-cellulose. On March 12, 2013 they announced that they had successfully produced ethanol from cellulosic feedstocks at their biorefinery, which has a nameplate capacity of 250,000 gallons of cellulosic ethanol per year. ZeaChem's production process uses a combination of biochemical and thermochemical technologies to produce ethanol and other renewable chemicals from cellulosic materials. The feedstock is first fractionated into two separate streams, one containing sugars derived from cellulose and hemicellulose and the other containing lignin. The sugars are fermented into an intermediate chemical, acetic acid, using a naturally occurring acetogen.
ZeaChem's process is flexible and is capable of producing a wide range of renewable chemicals and fuels from many different feedstocks. They plan to use both agricultural residues and pre-commercial thinnings and tree residue from tree plantations at their demonstration facility and have contracts in place for these feedstocks, as well as planted trees from tree plantations, at their first commercial scale facility.
Abengoa has developed an enzymatic hydrolysis technology to convert corn stover and other agricultural waste feedstocks into ethanol. After successfully testing and refining their technology at a pilot scale facility in York, Nebraska as well as in a demonstration-scale facility in Salamanca, Spain, Abengoa is now working towards the completion of their first commercial scale cellulosic ethanol facility in Hugoton, Kansas. Abengoa has contracts in place to provide the majority of feedstocks necessary for this facility for the next 10 years and successfully completed their first biomass harvest in the fall of 2011. Construction at this facility, which began in September 2011, is expected to take approximately 24 months and be completed in the fourth quarter of 2013. All of the major process equipment for this project has been purchased and all of the required permits for construction have been approved. Abengoa's Hugoton facility is being partially funded by a $132 million Department of Energy (DOE) loan guarantee.
When completed, the Hugoton plant will be capable of processing 700 dry tons of corn stover per day, with an expected annual ethanol production capacity of approximately 24 mill gal. Abengoa plans to begin ramping up production at the facility shortly after completing construction in late 2013 and to be producing fuel at rates near the nameplate capacity in the summer of 2014. After successfully proving their technology at commercial scale in Hugoton, Abengoa currently plans to construct additional similar cellulosic ethanol production facilities, either on greenfield sites or co-locating these new facilities with their currently existing starch ethanol facilities around the United States. While this facility could produce a small volume of cellulosic ethanol in 2013, commissioning of the facility is expected to last through the first quarter of 2014, during which only small volumes of ethanol will be produced. Given the small volume potential and high degree of uncertainty of production from this facility in 2013, we have not included any of this volume in our projected available volume for 2013.
Poet has also developed an enzymatic hydrolysis process to convert cellulosic biomass into ethanol. Poet has been investing in the development of cellulosic ethanol technology for more than a decade and began producing small volumes of cellulosic ethanol at pilot scale at their plant in Scotland, SD in late 2008. In January 2012, Poet formed a joint venture with Royal DSM of the Netherlands called Poet-DSM Advanced Biofuels to commercialize and license their cellulosic ethanol technology.
The joint venture's first commercial scale facility, called Project LIBERTY, will be located in Emmetsburg, Iowa. This facility is designed to process 770 dry tons of corn cobs, leaves, husks, and some stalk per day into cellulosic ethanol. The facility is projected to have an annual production capacity beginning at approximately 20 mill gal per year, increasing over time to 25 mill gal per year. In anticipation of the start-up of this facility, Poet constructed a 22-acre biomass storage facility and had its first commercial harvest in 2010, collecting 56,000 tons of biomass.
Site prep work for Project LIBERTY began in the summer of 2011, and vertical construction of the facility began in the spring of 2012. Poet was awarded a $105 million loan guarantee offer for this project from DOE in July 2011, but with the joint venture decided to proceed without the loan guarantee. This project is expected to be completed in the first half of 2014. After the completion of Project LIBERTY, Poet plans to build additional cellulosic ethanol facilities at many of their existing corn ethanol plants. They are also planning to license their technology for use at other grain ethanol plants, as well as build additional plants that will process wheat straw, rice hulls, woody biomass or herbaceous energy crops. By 2022 Poet has a goal of producing 3.5 bill gal of cellulosic ethanol per year. Given the projected completion date of 2014 for the Emmetsburg, Iowa facility, we have not included any of this volume ion our projected available volume for 2013.
There are several more companies planning to begin producing cellulosic biofuel from commercial scale facilities in 2014 including Cool Planet Biofuels, DuPont, and Ensyn. Along with the companies discussed above, these facilities represent approximately 100 mill gal of additional cellulosic biofuel production capacity. Most of these companies have already begun to develop plans for their successive facilities to follow after the successful completion of their initial projects.
Each of the companies listed in the previous two sections is planning to generate cellulosic biofuel RINs using one of the valid RIN-generating pathways listed in Table 1 to 40 CFR § 80.1426. To generate RINs, each company must comply with all applicable registration, recordkeeping, and reporting requirements in the RFS regulations, including requirements to verify that the feedstocks used are renewable biomass and are sourced from approved land. EPA is not approving any additional feedstocks or processes in today's rule. We are also aware of several companies that may be in a position to produce cellulosic biofuel in 2013 but intend to use a production pathway that is not currently approved for RIN generation. Pathways that are currently under evaluation by EPA include transportation fuels derived from landfill biogas such as CNG, cellulosic ethanol produced from corn kernel fiber and cellulosic heating oil. If these or other cellulosic biofuel pathways are approved by EPA, they may be used to generate on the order of 3 million cellulosic biofuel RINs in 2013. Because EPA has not yet made a final determination on these pathways no volume of cellulosic fuel from these
While domestically produced cellulosic biofuels are the most likely source of cellulosic biofuel available in the United States in 2013, imports of cellulosic biofuel produced in other countries may also generate RINs and participate in the RFS program. While the demand provided by the RFS program provides a financial incentive for companies to import cellulosic biofuels into the United States, the combination of local demand, financial incentives from other governments, and transportation costs for the cellulosic biofuel has resulted in no cellulosic biofuel being imported to the United States thus far. We believe this situation is likely to continue in the near future and have not included any cellulosic biofuel imports in our projections of available volume in 2013.
As in the United States, the production of cellulosic biofuels internationally is mostly limited to small-scale research and development, pilot, and demonstration facilities at this time. This is likely to continue to be the case throughout 2013. Two notable exceptions are facilities built and operated by Beta Renewables and Enerkem. Beta Renewables completed construction of their first commercial scale facility located in Crescentino, Italy in the summer of 2012. This facility is currently in a commissioning phase and is designed to produce approximately 20 mill gal of cellulosic ethanol per year. Beta Renewables uses an enzymatic hydrolysis process to produce ethanol from local agricultural residues and herbaceous energy crops.
Enerkem is also in the process of building their first commercial scale facility in Edmonton, Alberta and plans to begin operations in 2013. Enerkem's facility will use a thermochemical process to produce syngas from MSW and then catalytically convert the syngas to methanol. The methanol can then be sold directly or upgraded to ethanol or other chemical products. At full capacity this facility will be capable of producing 10 mill gal of cellulosic ethanol per year. At this point, neither Beta Renewables nor Enerkem have registered their facilities under the RFS program, a necessary step that must be completed before these companies can generate RINs for any fuel they import into the United States. Both are planning to locate additional plants in the United States in the future and are likely to generate RINs for production from domestic facilities in future years.
The information we have gathered on cellulosic biofuel producers, described above, allows us to project production volumes for each facility in 2013. For the purposes of this final rulemaking we have focused on commercial scale cellulosic biofuel production facilities. We believe our focus on commercial scale facilities is appropriate as the industry transitions from small-scale R&D and pilot facilities to large scale commercial production. It is likely that several small-scale facilities such as API, DuPont, ZeaChem, and others will also produce some cellulosic biofuel in 2013. While RINs may be generated for any cellulosic biofuel produced from these small R&D and pilot facilities, historically many have chosen not to do so for a variety of reasons. We are therefore not including a volume projection from these facilities.
In 2013 as many as seven cellulosic biofuel companies have the potential to produce fuel at commercial scale. Each of these facilities is discussed above, and the facility production targets for each are summarized in Table II.C.6–1 below. Of the two companies from which we are basing our 2013 cellulosic biofuel projection one has already begun producing cellulosic biofuel at their commercial scale facility and the other is expected to begin production soon. This gives us increased confidence in their production capabilities as they have already achieved significant milestones. The other companies that have the potential to produce cellulosic biofuel in 2013, Abengoa, EdeniQ, Ensyn, Fiberight, and companies producing biogas from landfills for transportation use, either do not yet have a valid RIN generating pathway or are not planning on beginning fuel production until late 2013 or early 2014. Even a small delay in their expected production timeline could result in their failure to produce any cellulosic biofuel in 2013 and any volumes of fuel produced are likely to be very small. For this final rule, therefore, we are not projecting production from these facilities in 2013 consistent with EIA's projection. The fact that our projection only includes volumes from facilities that have already completed construction of commercial scale facilities is in large part due to the delay in finalizing the RFS standards for 2013 and is not intended to set a precedent for future rulemakings. Volumes from facilities that have not yet completed construction may be considered in EPA's volume projections in future rulemakings if appropriate under the circumstances, recognizing that EPA's goal is a projection of what will actually happen in the year at issue, taking a neutral aim at accuracy.
When considering together all the potential sources of cellulosic biofuel, the total projected production volume from commercial scale production facilities in the United States in 2013 is 4 million actual gallons (6 million ethanol-equivalent gallons). This is the mid-point of the range of values projected for the two facilities. This number represents EPA's projection of expected cellulosic RIN production in 2013, taking into account the EIA estimates and the many factors described in detail above.
In today's final rule we are setting the applicable volume for cellulosic biofuel for 2013 that is based on EIA's estimate, projected production volumes developed in consultation with the companies expected to produce cellulosic biofuel from commercial scale facilities in 2013, comments we received in response to the NPRM, and EPA's judgment. Many factors have been taken into consideration in developing these projections, such as the EIA estimate, the current status of project funding, the status of the production facility, anticipated construction timelines, the anticipated start-up date and ramp-up schedule, feedstock supply, intent to generate RINs, and many others. Moreover, all of the companies included in our 2013 volume projections have invested a significant amount of time and resources developing their technologies at R&D and demonstration-scale facilities prior to the design and construction of their first commercial scale facilities. The projects have solid financial backing. We believe the sum of these individual projected available volumes (6 million ethanol-equivalent gallons) is a reasonable projection of expected actual production. This projection reflects EPA's best estimate of what will actually happen in 2013.
As described in Section I, the volumes of renewable fuel required for use under the RFS program each year (absent an adjustment or waiver by EPA) are generally specified in CAA 211(o)(2) through 2022. For 2013, the applicable volume of advanced biofuel is 2.75 bill gal, and the applicable volume of total renewable fuel is 16.55 bill gal.
In the NPRM, we proposed a reduction in the applicable volume of cellulosic biofuel. Under section 211(o)(7)(D)(i), when EPA reduces the volume of cellulosic biofuel EPA may reduce the applicable volume of total and advanced biofuel by an amount up to the reduction in cellulosic biofuel. We proposed no reduction in the volumes of advanced biofuel and total renewable fuel for 2013. However, we requested comment on whether the advanced biofuel and total renewable fuel requirements should be reduced under section 211(o)(7)(D)(i) to account for uncertainty in availability of advanced biofuel, specifically asking whether a reduction of 200 mill gal would be appropriate. We also requested comment on whether the blendwall
No stakeholders supported the specific reduction of 200 mill gal in the advanced biofuel and total renewable fuel volume requirements on which we sought comment in our proposal. Instead, stakeholders were generally in favor of either much larger reductions or no reduction at all. Those requesting much larger reductions most commonly pointed to the authority under the cellulosic waiver authority to reduce advanced biofuel and total renewable fuel by up to the same amount as the reduction in cellulosic biofuel, which was 986 mill gal in the NPRM. Depending on the stakeholder, justifications for such large reductions included cost, availability, and the E10 blendwall. Some went further, suggesting that the required volume of total renewable fuel should be reduced more than 986 mill gal since reductions in advanced biofuel would likely be insufficient to address the E10 blendwall. Of those that cited the E10 blendwall as a reason to reduce the required volumes, most requested that the total volume of ethanol demand created by the standards be no more than 10% of all gasoline, though some conceded that accounting for reasonably achievable volumes of E15–E85 would be appropriate.
Those stakeholders requesting that the applicable standards be based on the statutory volumes without any reductions typically cited sufficiency of available biofuels and opportunities for growth in consumption of E15–E85. Some also pointed to the need to promote growth in the advanced biofuel and non-ethanol markets and expressed concern that any reductions in the standards would jeopardize investments.
Under CAA section 211(o)(7)(D)(i), if EPA determines that the projected volume of cellulosic biofuel production for the following year is less than the applicable volume provided in the statute, then EPA must reduce the applicable volume of cellulosic biofuel to the projected volume available during that calendar year. Under such circumstances, EPA also has the discretion to reduce the applicable volumes of advanced biofuel and total renewable fuel by an amount not to exceed the reduction in cellulosic biofuel.
Section 211(o)(7)(D)(i) provides that “For any calendar year in which the Administrator makes such a reduction, the Administrator may also reduce the applicable volume of renewable fuel and advanced biofuels requirement established under paragraph (2)(B) by the same or a lesser volume.” Thus Congress authorized EPA to reduce the
As described in the May 2009 NPRM for the RFS regulations, we do not believe it would be appropriate to lower the advanced biofuel standard but not the total renewable standard, as doing so would allow conventional biofuels to effectively be used to meet the standards that Congress specifically set for advanced biofuels. See 74 FR 24914–15. We interpret this provision as authorizing EPA to reduce both total renewable fuel and advanced biofuel, by the same amounts, if EPA reduces the volume of cellulosic biofuel. Using this authority the reductions in total renewable fuel and advanced biofuel can be up to but no more than the amount of reduction in the cellulosic biofuel volume.
The National Biodiesel Board (NBB) commented that the language of CAA 211(o)(7)(D)(i) does not require advanced biofuel and total renewable fuel volumes to be reduced together. NBB cited several other legal decisions to support their assertion that advanced biofuel and total renewable fuel could be reduced by different amounts under the cellulosic waiver authority. While we agree that in some other contexts wording similar to that in 211(o)(7)(D)(i) has taken on a different meaning, in none of those other contexts was there a nested set of requirements such as there are in the RFS program. In the RFS program, cellulosic biofuel is also used to satisfy the advanced biofuel standard and the total renewable fuel standard. Similarly, advanced biofuel is used to satisfy the volume obligation for total renewable fuel. Thus any reductions in the applicable volume of cellulosic biofuel will also simultaneously affect the means through which obligated parties comply with these two other standards, and any reductions in advanced biofuel volume will affect the means through which obligated parties comply with the total renewable fuel volume. Congress structured the volumes such that total renewable fuel volume requirements were increasing in coordination with the increase in advanced biofuel. Congress established the volume requirements for advanced biofuel and total renewable fuel as interrelated standards. Therefore it is appropriate to consider a possible reduction in both the advanced biofuel and total renewable fuel applicable volumes when EPA reduces the cellulosic biofuel volume below the applicable volume for cellulosic biofuel set forth in the statute. Thus to the extent circumstances warrant a reduction in advanced biofuel and total renewable fuel based on the reductions in cellulosic biofuel pursuant to section 211(o)(7)(D)(i), we believe it will best reflect the goals and objectives of the Act for the advanced biofuel and total renewable fuel volumes to both be reduced by the same amount, maintaining the volume relationship between the two renewable fuel categories. In this way, if the circumstances in a specific year warrant not reducing the advanced biofuel and total renewable fuel volumes by the amount that the cellulosic biofuel volume is reduced, then to the extent that the shortfall in cellulosic biofuel production is replaced it would be through advanced biofuel, which comes significantly closer to the GHG reductions achieved by cellulosic biofuel. It is important to note, however, that this discussion does not address whether or under what circumstances the advanced and total volume requirements should be reduced under section 211(o)(7)(D)(i), but solely whether any such reductions would be for both categories of fuel under section 211(o)(7)(D)(i).
NBB also argued that any consideration of a reduction in advanced biofuel should be accompanied by an equivalent reduction in total renewable fuel, but that the reverse was not true. We agree that a reduction in the total renewable fuel requirement that is considered under the general waiver authority at 211(o)(7)(A) need not necessarily be accompanied by an equivalent reduction in the advanced biofuel requirement. It is possible that there could be an inadequate supply of total renewable fuels that would justify a waiver of the total renewable fuel standard, for example, without there also being an inadequate supply of advanced biofuels. However, we are currently setting the annual RFS standard and are not responding to a petition that we assert the general waiver authority.
In 2013, the applicable volume of cellulosic biofuel specified in the statute represents more than a third of the advanced biofuel volume (1.0 bill gal out of 2.75 bill gal), a higher fraction than in any previous year. A substantial reduction in the applicable volume of cellulosic biofuel could potentially also have a substantial impact on the sufficiency of volumes to meet the advanced biofuel and total renewable fuel standards. As described in Section II.D above, we are establishing an available volume of cellulosic biofuel for 2013 of 6 mill ethanol-equivalent gallons, significantly below the statutory applicable volume of 1.0 bill gal. As a result, we have the discretion under CAA section 211(o)(7)(D)(i) to reduce the advanced biofuel and total renewable fuel applicable volumes by up to 994 mill gallons (ethanol-equivalent).
The statute does not provide any explicit criteria that must be met or factors that must be considered when making a determination as to whether and to what degree to reduce the advanced biofuel and total renewable fuel applicable volumes based on a reduction in cellulosic biofuel volumes under CAA section 211(o)(7)(D)(i). In comments on the NPRM, stakeholders differed in their views about which factors EPA should consider when making a determination about whether and to what degree to reduce volumes of advanced biofuel and total renewable fuel under the cellulosic waiver authority. Some indicated that the only factor that should be considered is whether the volumes in question are available. Others indicated that the criteria that apply under the general waiver authority at section 211(o)(7)(A) should also apply to the cellulosic waiver authority at section 211(o)(7)(D)(i). The Clean Air Task Force and the Union of Concerned Scientists both suggested that the criteria in section 211(o)(2)(B)(ii), which are required to be used to determine applicable volumes for years not specified in the statute, should also be considered in the context of the cellulosic waiver authority. The criteria in section 211(o)(2)(B)(ii) are described more fully in Section III.A.3 below.
We agree that nothing in the Act precludes EPA from considering the criteria described in sections 211(o)(2)(B)(ii) and 211(o)(7)(A) in determining appropriate reductions in advanced biofuel and total renewable fuel under the cellulosic waiver authority at section 211(o)(7)(D)(ii). Moreover, it may be appropriate to do so in certain circumstances, as described more fully below. However, we do not believe that there is any legal requirement to apply the criteria of those provisions as binding criteria for purposes of section 211(o)(7)(D)(ii). It is clear that these three statutory provisions are separate and independent provisions, with no cross-references. Congress did not include the criteria in those other waiver provisions in the separate waiver provision for cellulosic biofuel. In the case of the general waiver authority at section 211(o)(7)(A), we do not agree with the comment that it
We believe that the applicable volumes for total and advanced biofuel identified in the statute should be retained for 2013 as there are reasonably available volumes of renewable fuel to achieve the statutory volumes. EPA has also considered the comments concerning factors other than availability, as discussed below. EPA has determined that under the circumstances discussed below for 2013, it is appropriate to retain the statutory volumes.
One stakeholder suggested that uncertainty in potential imports of sugarcane ethanol from Brazil should not be a factor when projecting the volumes expected to be available to meet the statutory volume requirements for advanced biofuel. The stakeholder pointed to a recent decision from the U.S. Court of Appeals indicating that EPA need not present specific numerical projections of available volumes of advanced biofuel if it did not intend to reduce the required volumes below the volumes specific in the statute. In that case the court stated that:
Nothing in the text of § 7545(o)(7)(D)(i), or any other applicable provision of the Act, plainly requires EPA to support its decision not to reduce the applicable volume of advanced biofuels with specific numerical projections. This stands in contrast to the Act's explicit instructions that EPA make a numerical projection for cellulosic biofuel. Certainly EPA must provide a reasoned explanation for its actions, but rationality does not always imply a high degree of quantitative specificity.
In the 2012 RFS standards rule at issue in the referenced Court decision, EPA did not present individual numeric projections of available volumes of advanced biofuel, but instead described historical data, production capacity, competing publicly-available projections and qualitative information to conclude that sufficient volumes could be produced without lowering the applicable volume set forth in the statute. The Court upheld EPA's approach as reasonable. However, the Court decision does not preclude EPA from deriving and seeking comment on numeric projections where EPA believes it is appropriate to do so. In this case EPA believed it would facilitate its decision-making to derive and seek comment on a numeric projection of sugarcane ethanol imports for 2013. This approach is consistent with the statute and the API opinion.
Under CAA 211(o)(7)(A), EPA can reduce the amount of any of the four volume requirements specified in the statute if one of the following determinations is made:
• Implementation of the requirement would severely harm the economy or the environment of a State, a region, or the United States;
• There is an inadequate domestic supply.
Under certain specified conditions, CAA section 211(o)(7)(F) requires EPA to modify the applicable volume provided in the statute for calendar years 2016 and beyond if EPA has waived a volume requirement using the waiver authorities provided in CAA section 211(o)(7)(A), (D), or (E). This requirement to modify the applicable volumes is triggered when one of the following occurs:
Volume modifications made pursuant to CAA 211(o)(7)(F) would differ from waivers in several important ways. First, while waivers leave the statutory volume mandates at CAA 211(o)(2)(B)(i) intact and merely reduce them for the purposes of calculating the applicable annual percentage standards for that year, the volume modifications under 211(o)(7)(F) would instead modify the applicable volumes that are provided in the statute. Once modified, the new volumes would replace those in the statute for the applicable years. Second, waivers are generally determined and applied for one year at a time, while the volume modifications could be done at one time for multiple years after 2015. Third, CAA 211(o)(7)(F) provides explicit direction concerning those factors that EPA must consider in modifying the statutory volumes for 2016 and beyond, incorporating by reference the requirements in CAA section 211(o)(2)(B)(ii):
• The impact of the production and use of renewable fuels on the environment, including on air quality, climate change, conversion of wetlands, ecosystems, wildlife habitat, water quality, and water supply;
• The impact of renewable fuels on the energy security of the United States;
• The expected annual rate of future commercial production of renewable fuels, including advanced biofuels in each category (cellulosic biofuel and biomass-based diesel);
• The impact of renewable fuels on the infrastructure of the United States, including deliverability of materials, goods, and products other than renewable fuel, and the sufficiency of infrastructure to deliver and use renewable fuel;
• The impact of the use of renewable fuels on the cost to consumers of transportation fuel and on the cost to transport goods; and
• The impact of the use of renewable fuels on other factors, including job creation, the price and supply of agricultural commodities, rural economic development, and food prices.
In response to the NPRM, one stakeholder requested that EPA use the authority under CAA 211(o)(7)(F) as soon as possible, or by 2014, to modify the required future volumes for cellulosic biofuel as a way of providing more long-term certainty to the market. However, we do not believe that taking action sooner would provide such long-term certainty since the authority under CAA 211(o)(7)(D) would continue to apply and we would still be required to reduce the applicable volume of cellulosic biofuel if the volume
In the NPRM we discussed the cellulosic waiver authority provided in CAA 211(o)(7)(D)(i), which provides that EPA may reduce the applicable volume of advanced biofuel and total renewable fuel up to the amount of the reduction in required cellulosic biofuel volumes (986 mill gal in the NPRM). We clarified that, if we were to reduce the required volume of advanced biofuel under this statutory authority, we would also reduce the required volume of total renewable fuel by the same amount, with the net effect being that the volume of non-advanced biofuel needed to meet the statutory required volumes would be unchanged. In the NPRM we did not discuss reductions in any of the statutory volume requirements under the general waiver authority.
Our focus in the NPRM was on the availability of advanced biofuel in comparison to the volume needed to meet the statutory volume of 2.75 bill gal in light of the substantial reduction in cellulosic biofuel. Based on our assessment of availability of advanced biofuel, we proposed no reduction in the advanced biofuel and total renewable fuel volumes. We continue to believe that the availability of advanced biofuel is a critical component in determining whether the statutory volume requirement of 2.75 bill gal should be reduced. However, we recognize that we can also consider other factors in this determination. For instance, in response to our request for comment on whether the E10 blendwall might present difficulty in meeting the statutory volume requirements, a number of stakeholders indicated that we should use one of the statutory waiver authorities to reduce the required volumes of advanced biofuel and total renewable fuel to account for limitations in the volume of ethanol that can be consumed. Other stakeholders suggested that we reduce advanced and total volumes because of environmental or cost concerns.
We have the discretion under 211(o)(7)(D)(i) to reduce the advanced biofuel and total renewable fuel volumes by up to the amount we reduce the applicable volume of cellulosic biofuel, and such a reduction would contribute to reducing complications associated with the E10 blendwall. The net effect of such a change would be that the volume of non-advanced biofuel needed to meet the required volumes for total renewable fuel would be unaffected. We discuss the E10 blendwall and the treatment of total renewable fuel in Section III.C below, and we discuss a longer-term strategy for combining considerations of biofuel availability and the ethanol blendwall in Section III.E. In this section we focus on the availability of advanced biofuels in our determination of whether to reduce the advanced biofuel and total renewable fuel volumes using the cellulosic waiver authority.
Renewable fuels that can be used to meet the standard for advanced biofuel include those with Renewable Identification Number (RIN) codes of 3, 4, 5, or 7. Table III.B–1 shows the number of each of these types of RIN that was generated in 2012.
The applicable volume in the statute for advanced biofuel in 2013 is 2,750 mill gal, an increase of 750 mill gal over the 2012 requirement of 2,000 mill gal, and 413 mill gal above the volume actually produced or imported in 2012. In order to determine the sufficiency of advanced biofuel volumes to meet a requirement for 2,750 mill gal in 2013, we first accounted for biomass-based diesel and cellulosic biofuels that would be required under the standards we are setting today. As shown in Table III.B–2, the result is that there would need to be 824 mill ethanol-equivalent gallons of other advanced biofuels in order to meet the total advanced biofuel requirement of 2,750 mill gal.
In a separate action, we have finalized a biomass-based diesel volume of 1.28 bill gal for 2013.
The biodiesel industry has demonstrated that it can increase production quickly under appropriate circumstances. Total domestic production of biomass-based diesel in 2011 exceeded 1.0 bill gal, compared to a 2010 production of about 380 mill gallons.
Recently, the tax credit for biodiesel was reinstated after having expired at the end of 2011.
Because the 2013 volume requirement of 1.28 bill gal for biomass-based diesel was established in a final rulemaking published on September 27, 2012, we did not take comment on this volume in the NPRM. Nevertheless, in their comments on the NPRM, several refiners and their associations requested that the 2013 volume requirement for biomass-based diesel be reduced from 1.28 bill gal to the statutory minimum of 1.0 bill gal. They cited concerns about the industry's ability to produce this volume and pointed to a DOE study indicating that 2012 production was below the 1.0 bill gal requirement.
In response to the NPRM, some parties expressed concern that there would not be sufficient feedstocks available for production of biomass-based diesel in excess of 1.28 bill gal in 2013. Recognizing that there was some uncertainty regarding production in excess of 1.28 bill gal, we did not make a specific numerical projection in the NPRM. Nevertheless, we continue to believe that the availability of qualifying feedstocks is not likely to be a hindrance to excess biodiesel production in 2013.
According to EMTS, in 2012 nearly 90% of biomass-based diesel was produced from soybean oil and waste oils/fats/greases.
Since the supply of waste oils/fats/greases is generally considered to be
According to USDA, domestic soybean production is expected to increase by 13% in the 2013 soybean marketing year compared to the 2012 marketing year, or about 3% for calendar year 2013.
In addition to soy oil, it is also possible that other qualifying feedstocks could be available to produce biodiesel in excess of 1.28 bill gal in 2013. For instance, while production of non-food grade corn oil has been relatively constant over the last several years, exports have risen over this same time period. In 2012, more than one third of the 320 mill gal of corn oil produced was exported instead of being used domestically. These exports could be diverted to biodiesel production depending on relative prices and other factors. Taken together, the use of both soy oil and corn oil could potentially provide about 300 mill ethanol-equivalent gal of biodiesel in excess of the 1.28 bill gal requirement.
A number of stakeholders commented that the NPRM overly relies on biofuel production availability as a criterion for setting the standards and fails to consider other criteria and potential impacts. With respect to biodiesel, for example, commenters argued that maintaining the advanced standard at statutory levels could lead to increased production and use of biodiesel for compliance purposes, and that this increased biodiesel would likely be produced from soybean oil. Commenters argued that EPA failed to consider the follow-on, or indirect, effects, namely that world demand for other replacement food-grade oils, particularly for palm oil, would increase.
In making this argument, commenters made a number of assertions with respect to the modeling and lifecycle analysis EPA conducted as part of the March 2010 final RFS rulemaking. For example, commenters argued that EPA did not adequately account for substitutions in the vegetable oil markets, and therefore did not fully account for the potential GHG emissions associated with clearing of forests and draining of peat lands in Malaysia or Indonesia. Commenters also asserted that market data suggests the increase in biodiesel production has had more of an impact on global palm oil production than increased U.S. soybean production, as modeled in EPA's March 2010 lifecycle analysis of soybean oil biodiesel.
Commenters further argued that EPA's modeling for the March 2010 final rule was based on volume projections that are inconsistent with the potential growth in advanced biofuels, including biodiesel, should EPA determine that the advanced and total required volumes should not be reduced. As a result, commenters stated, EPA's assessments of the lifecycle GHG emissions associated with various advanced biofuels are flawed, and relying on them is inappropriate. If we were to reassess soybean oil lifecycle impacts, as at least one commenter recommended, commenters argued that such an analysis would show soybean oil biodiesel not meeting the statutory 50 percent reduction threshold in lifecycle GHGs needed to qualify as an advanced biofuel under the RFS program.
With respect to commenters' arguments regarding the GHG impacts of biodiesel, we note that the lifecycle GHG threshold determinations conducted for various categories of biofuels (as required by statute) were completed as part of the March 2010 final RFS rule. We made the determination in that rulemaking that biomass-based diesel from soy oil meets the greenhouse gas reduction threshold for advanced biofuel. We are not revisiting that determination as part of this action. Instead this rulemaking addresses the applicable volume requirements for the various categories of renewable fuels, in the context of applying the provision for a waiver of the cellulosic biofuel volumes. Thus we are not reconsidering or reopening the GHG threshold determinations made in the 2010 RFS final rule. Instead, we are considering this comment solely in the context of exercising our discretion under CAA section 211(o)(7)(D)(i).
We disagree with commenters' assertion that the indirect effects of using biodiesel have not been accurately accounted for in the 2010 lifecycle determination for biomass-based diesel. In response, we first note that we here discuss the 2010 lifecycle GHG emissions analysis for the purpose of assessing the 2013 volume standards; this discussion is not intended for purposes of reexamining the lifecycle analysis that led to the GHG determinations. When conducting our GHG emissions lifecycle analysis in 2010, we used the FAPRI-Iowa State model to examine the impacts that an increase in biomass-based diesel in the U.S. would have on world demand for oils. That analysis specifically allowed for the ability for palm oil production to respond to increased soybean biodiesel demand. Our analysis showed that the increased demand for soybean based biodiesel led primarily to an increase in soybean production, though the results also showed some increase in palm oil production. Taking all the GHG impacts of these effects together, the analysis showed lifecycle GHG emissions associated with soy biodiesel production and use met the 50 percent threshold required for qualifying as an advanced biofuel under the RFS program. The data provided by commenters does not isolate the impact that changes in biodiesel demand have on vegetable oil markets, which are driven by multiple factors, including population growth, changes in eating habits, and economic growth. Commenters do not provide new
Commenters also stated that the volumes of advanced biofuels that would be needed to fill the cellulosic void are larger than the volumes EPA modeled in the 2010 lifecycle analysis. EPA notes that we analyzed 1.7 billion gallons of biodiesel in our 2010 analysis, which is within the range of volumes being considered in this annual rule. Commenters also stated that the volumes of advanced biofuels that would be needed to fill the cellulosic void are larger than the volumes EPA modeled in the 2010 lifecycle analysis. EPA notes that we analyzed 1.7 billion gallons of biodiesel in our 2010 analysis, which is within the range of volumes being considered in this annual rule. In addition, commenters suggested that EPA quantify the impacts for the criteria described in section 211 (o)(2)(B)(ii) of the Clean Air Act. However, conducting such a comprehensive quantification was not practical for this rulemaking. We also note that the RFS program is a long-term program aimed at replacing substantial volumes of fossil-based transportation fuels with low-GHG renewable fuels over a multi-year period of time. In that context, the analysis of various impacts conducted for the March 2010 final RFS rule considered the effects of the program over the long term. Specifically, our analysis focused on quantifying the GHG impacts of an increase in biomass-based diesel demand in 2022, when the full volumes of the RFS program would be implemented.
In their comments on the NPRM, the American Cleaning Institute (ACI) expressed concern that demand for biodiesel and/or renewable diesel could adversely affect the oleochemical industry by diverting animal fats away from the production of soaps, detergents, and general cleaning supplies. ACI requested that the advanced biofuel volume requirement be reduced to ensure that such diversion of animals fats does not occur, or alternatively that animal fats be explicitly prohibited as a valid feedstock option for the production of biofuels. In our response to comments from ACI in the final rule setting the required volume biomass-based diesel for 2013,
Since the biomass-based diesel volume of 1.28 bill gal was established previously, the NPRM only requested comment on volumes of biomass-based diesel in excess of 1.28 bill gal. Although we believe it is likely that such excess volumes would be produced from soybean oil as described above, it is possible that they could be produced from animal fats. The only way to influence whether or not animal fats would be used to make excess biodiesel above the 1.28 bill gal biomass-based diesel applicable volume would be to reduce the advanced biofuel standard to 1.926 bill gal, which is the ethanol-equivalent sum of the biomass-based diesel and cellulosic biofuel applicable volumes. Even then, it would not prevent animal fats from being used to produce biodiesel.
For the reasons discussed above, we conclude that the volumes of excess biomass-based diesel available for use in 2013 as advanced biofuel are reasonably projected as 300 mill gal or more. In addition, the arguments for reducing the advanced biofuel standard to reduce the reliance on excess biomass-based diesel are not of a nature to warrant changing the conclusions we would draw.
While we are not projecting a specific volume of biodiesel in excess of 1.28 bill gal for 2013, we do acknowledge that there may be potential limitations on biodiesel consumption that could be imposed by manufacturer warranties and cold-weather operation.
Most diesel engines are warranted by their manufacturer to B5. That is, the use of biodiesel in concentrations above 5vol% may void these commercial warranties. While not a legal limitation on the use of biodiesel, it does present a practical limitation. Assuming a total diesel consumption volume of about 50 bill gal for 2013, B5 for the diesel pool as a whole would correspond to a biodiesel volume of 2.5 bill gal.
However, some diesel truck engines have been warranted by their manufacturers to consume B20, starting in 2011. Model-specific sales data for these vehicles was not available, so we could not directly estimate the volume of B20 consumed by these trucks. Nor were we able to assess the ability of the retail and distribution system to supply higher biodiesel blends for a subset of the fleet. But in the extreme, assuming all MY 2011 and newer trucks were designed for operation on B20 and that these trucks could always fuel on B20, it would only account for approximately 30% of the nationwide biodiesel volume in 2012.
At the same time, even B5 blends cannot be utilized year-round due to cold weather constraints. If biodiesel was not used at all in the 20 most northern states from December through March, the nation as a whole could still consume 1.9 bill gal annually.
Generic pathways that have been approved for the generation of RINs are specified in the regulations in Table 1
In the NPRM, we projected that the total volume of other advanced biofuel could be 150 mill gal in 2013. Some stakeholders expressed their belief that this was a reasonable volume to project for domestic advanced biofuel producers for 2013, and Clean Energy Renewable Fuels provided information supporting their view that we had significantly underestimated the potential for biogas. Nevertheless, others expressed concern that 150 mill gal was too aggressive, pointing to the fact that the actual domestic production of other advanced biofuel in 2012 was only 50 mill gal. Consistent with our approach to cellulosic biofuel projections, we do not believe that future projections of advanced biofuel should be based strictly on actual historical production volumes. Nevertheless, we agree with stakeholders that expressed concern that we based our projections in part on information from registered producers that did not submit a Production Outlook Report as required under § 80.1449 for all registered producers. For this final rule, we have not considered production volumes from a specific producer if that producer did not provide a projection for 2013 in a Production Outlook Report.
In order to estimate the volumes of other advanced biofuels that could be produced in 2013, we reviewed the most recent set of Production Outlook Reports. These reports were submitted in the summer of 2012 and contain projections of renewable fuel production for each of the next five years.
We recognize that these volumes are higher than the 150 mill gal that we projected in the NPRM. Nevertheless, we believe that they provide a reasonable estimate of the volumes that can be achieved in 2013. Because Production Outlook Reports are provided directly to the EPA and are not made public (except in the aggregate), producers have less incentive to overstate volume projections. These projected volumes also do not account for imports of renewable diesel from foreign producers which have the capacity to produce hundreds of millions of gallons per year. More importantly, the projected volumes in Table III.D.2–2 were made in June 2012. Since that time, we have established additional valid pathways for the generation of advanced biofuel RINs using camelina oil and grain sorghum.
We also investigated a variety of other potential RIN-generating pathways for advanced biofuel that could result in additional volumes in 2013. In addition to potential new pathways for cellulosic biofuel that would also count towards the advanced biofuel volume requirement as discussed in Section II.D, new pathways are also under review that may provide additional advanced biofuel volumes in 2013. These include pathways for renewable diesel from jatropha oil, ethanol from barley and biomass sorghum, and a number of others. We have not yet determined, either through rulemaking or approval of an industry petition, whether these pathways are valid for the
In the NPRM we projected that the volume of imported sugarcane ethanol in 2013 would need to reach about 670 mill gal in order for the statutory volume of 2.75 bill gal to be met. Given the availability of carryover RINs from 2012, potential for excess biomass-based diesel, and domestic production of other advanced biofuel, the amount of imported sugarcane ethanol needed to reach the statutory volume of 2.75 bill gallons could be significantly below 670 mill gal. Here we evaluate whether the actual 2012 import volume of 580 mill gal could also be imported in 2013.
Total exports of ethanol from Brazil depend on ethanol production and demand within Brazil and have varied significantly over the last decade. The historical maximum occurred in 2008 when 1.35 bill gal was exported, and ongoing efforts to upgrade distribution infrastructure mean that Brazil has the infrastructure in place to export at least this volume annually.
In response to the NPRM, stakeholders provided widely diverging views on the volumes of imported sugarcane ethanol that could be expected in 2013. Some stakeholders suggested that the advanced biofuel standards should be set based on an assumption that there would be no more than a few hundred mill gal of imported sugarcane ethanol available in 2013, and others indicated that imported sugarcane ethanol should be excluded entirely from consideration. The Brazilian Ministry of Mines and Energy (MME) provided a detailed assessment supporting their view that Brazil can supply at least 670 mill gal to the U.S. in 2013, and the Brazilian sugarcane industry association UNICA likewise indicated that at least 670 mill gal could be expected
From the supply perspective, production of sugarcane in Brazil in the years just preceding 2013 has been lower than normally expected due to two factors. First, adverse weather conditions reduced production.
Second, the general global economic downturn in recent years made obtaining credit more difficult in the Brazilian sugar cane industry, resulting in delayed replanting of existing fields. Normally sugarcane fields are replanted every five or six years to maximize yield. However, the lack of available credit caused some growers to delay the expense of this replanting, resulting in older fields losing production.
In the proposal, EPA cited data from September and December 2012 in estimating that the South Central region, the dominant region for ethanol production in Brazil, would produce a total of 5.56 bill gal for the 2012/13 year.
Some parties expected a more typical trend in sugarcane ethanol production for both the 2012/2013 and 2013/2014 harvest years, with replanted fields beginning to boost sugarcane production in existing plantations and, in response to increased worldwide demand, a growth in the acres planted with sugarcane. Increased production is supported by the Brazilian government which announced in February 2012 support for a plan to invest over $8 billion annually to boost cane and ethanol production.
The 2012/2013 harvest year in Brazil's South Central region has ended, and EPA now has early estimates concerning the 2013/2014 harvest year, which began in April 2013. UNICA now projects an increased 2013/2014 harvest for the South Central region of 10.7% over the 2012/2013 harvest.
With respect to ethanol production, analyses supplied in comment to the proposal by the Brazilian Ministry of Mines and Energy (MME) indicate it is projecting 2013/14 ethanol production to range from 7.2 to 7.5 bill gal, reflecting improvements in yield, additional acres planted and the expected market for sugar from sugarcane. MME's projections are in line with other data sources referenced in MME's comments that projected ethanol
Brazil's sugarcane ethanol production serves both its domestic market as well as the export market. The government of Brazil sets a minimum ethanol concentration for its gasoline. In 2011, the Brazilian government lowered this concentration to 20%, reflecting in part the decrease in domestic ethanol production. However, given the more optimistic production outlook, Brazil raised the minimum ethanol concentration to 25% effective May 1, 2013.
Aside from production capability and domestic demand within Brazil, market conditions generally determine the amount of sugarcane ethanol imported into the U.S. from Brazil. Approved as an advanced biofuel pathway, ethanol produced from sugarcane benefits from the RIN value associated with advanced biofuel but also has to compete with other sources of ethanol used for blending with gasoline in the U.S., most notably ethanol made from corn starch (which does not qualify as an advanced biofuel). The expiration of the tariff applicable to imported ethanol has helped make imported sugarcane ethanol more cost competitive in the U.S., and any volumes of Brazilian sugarcane ethanol imported into California to meet the requirements of their Low Carbon Fuel Standard (LCFS) would also count towards meeting the requirements of the RFS program.
In both calendar years 2011 and 2012 there was some two-way trade in ethanol between the United States and Brazil. A number of stakeholders raised concerns about this two-way ethanol trade between the U.S. and Brazil. Some suggested that we should adjust the advanced biofuel standard to reduce or eliminate such outcomes.
According to currently available Energy Information Administration (EIA) data, 2013 U.S. fuel ethanol imports from Brazil through May were 75.9 million gallons compared to 36.1 million gallons during the same period in 2012, a 110% rise.
2013 exports of fuel ethanol from the U.S. to Brazil have been relatively small. EIA data indicates that 26 million gallons of fuel ethanol have been exported from the U.S. to Brazil between January 1 and May 31, 2013.
Comments on this two-way trade focused on associated GHG impacts, both direct impacts from transportation-related emissions, and the indirect GHG impacts resulting from the market dynamics that could potentially result as a consequence of EPA's volume determinations.
With respect to direct emissions, commenters noted that GHG emissions occur as a result of shipping sugarcane ethanol to the U.S. and shipment of corn-based ethanol to Brazil. We recognize that there are GHG emissions
Stakeholder's comments regarding sugarcane ethanol and U.S.-Brazil trade concern the annual standard-setting process for 2013 and the indirect GHG impacts associated with the use of imported sugarcane ethanol as an advanced biofuel. Commenters raised two major issues associated with the potential GHG impacts associated with sugarcane ethanol demand in the U.S. (1) In the long-run (e.g., 2022), if EPA were to maintain the full statutory advanced standard while reducing the cellulosic standard to levels seen in recent years based on availability, more than 10 bill gal of imported ethanol would be required to meet the advanced standard. At those volumes, based on studies by the OECD and FAPRI-Missouri, commenters state that it is likely that a majority of the imported ethanol gallons would be diverted from Brazilian consumption of ethanol, and that much of the sugarcane ethanol would be backfilled by corn ethanol imports from the U.S. As a result, commenters argue that imported sugarcane would not meet the 50 percent GHG emissions reductions required for an advanced biofuel. (2) In the short-run, commenters claim that there are limited options for increasing the supply of sugarcane ethanol, many of which would undermine the GHG emission reductions included in EPA's lifecycle analysis. Commenters claim that in the 2013 time period, increased sugarcane ethanol imports to the U.S. could only be supplied if Brazil decreases gasoline consumption, Brazil replaces sugarcane ethanol with fossil gasoline, Brazil replaces sugarcane ethanol with another ethanol (presumably corn), sugar production in Brazil increases, or stocks of sugar are reduced to meet increased demand. Commenters claim that if replacement of sugarcane ethanol is with gasoline or corn ethanol, sugarcane ethanol would not meet the GHG emission reductions required for an advanced biofuel.
Regarding the first issue, it is premature and would be speculation to consider at this time what emissions might result were EPA to maintain the statutory advanced standard over the next several years. That issue is also not relevant for this rulemaking action. For each calendar year, EPA may reduce the required volumes of advanced biofuel and total renewable fuel if it reduces the volume required for cellulosic biofuel. This rulemaking addresses only calendar year 2013, and does not establish or set a precedent for what actions EPA may or may not take for future calendar years. Therefore, we believe the analysis presented by commenters on future scenarios that rely on imported volumes of sugarcane ethanol that exceed current Brazilian production are not relevant to this 2013 rulemaking.
The second issue raised in this context pertains to the question of how the national applicable volume for advanced biofuel influences ethanol production and trade patterns (along with concomitant indirect GHG emissions effects) in a given year. A comprehensive analysis of those effects is challenging, as there are a variety of economic and other factors at play. A thorough analysis of this issue would require complex economic and emissions modeling for multiple market sectors, which is impractical, particularly for a rule that establishes a yearly volume requirement. Furthermore, we do not believe that the data commenters submitted provides an adequate basis for drawing the conclusion, as commenters do, that retaining the statutory 2013 advanced biofuel requirement would result in an overall increase in GHG emissions due to ethanol trade. For example, in the comments submitted by ICCT, no data is provided indicating whether it is more likely that increased sugarcane exports will result in increased petroleum gasoline consumption or increased corn ethanol imports in Brazil, or if the market response will be an increase in sugar production or drawing down sugar stocks.
Each of these different market implications would have significantly different GHG emissions impacts. Multiple reasons exist for the volume of trade between the US and Brazil beyond the RFS program's requirements, including other US demand for sugarcane ethanol (e.g., California's LCFS); seasonal production of sugarcane which results in off-season demand for ethanol; and regional infrastructure constraints in Brazil, which makes it easier for parts of Brazil to import corn ethanol in some regions. As shown by Table III.B.3–1 above, there is no clear correlation at all between corn ethanol exports to Brazil and sugarcane ethanol imports from Brazil. There is no basis to assume that each gallon of sugarcane ethanol imported into the U.S. would be offset by a gallon of corn ethanol exported to Brazil. Furthermore, fluctuations in the sugar markets could lead to increased sugarcane ethanol supply without increasing sugarcane production. As discussed in the UNICA comments, world sugar prices are currently down 36% since 2011, which creates an additional incentive for producers, to the extent possible, to shift from sugar production to ethanol production. In fact, UNICA expects ethanol production to increase by 18–20% in 2013/2014, even though sugarcane production will only increase by 10%. To the extent that the increase in sugarcane ethanol to the U.S. results in increased sugarcane production, decreased sugar production, or a drawdown of sugar stocks, it is not likely that the increase in U.S. imports of sugarcane ethanol would lead to increased exports of corn ethanol to Brazil or a significant change in GHG emissions.
We also note that Congress established the RFS as a long-term program aimed at replacing substantial volumes of fossil-based transportation fuels with low-GHG renewable fuels over time. The annual standard-setting process however involves a decision for a single year, which may not reflect the long-term effects of the program. For example, our emissions analysis conducted for the March 2010 final RFS rule focused not on yearly decisions on standards, but rather the effects of the program over the long term. That analysis did not attempt to answer the question of what the GHG emissions impacts would be of increasing or lowering the volume mandates in any one year. Instead, our analysis focused on quantifying the GHG impacts of an
In sum, we believe that the import of sugar cane ethanol as an advanced biofuel in 2013 should produce reductions in GHGs compared to the fossil-based gasoline it will replace, which would not occur if the advanced biofuel standard were reduced. While the points raised by commenters indicate there is some uncertainty about the magnitude of these reductions on a year-by-year basis, the evidence and arguments they present do not warrant a conclusion that there would be any significant change in GHG benefits. In addition, as noted above, the ongoing demand for advanced biofuels is part of a long-term approach to achieving major GHG reductions from the RFS program.
Finally, with respect to commenters' arguments regarding the GHG impacts of imported sugarcane ethanol, we note that the lifecycle threshold determinations conducted for various biofuels pathways (as required by statute) were completed as part of the March 2010 final RFS rule. We made the determination in that rulemaking that imported sugar cane ethanol meets the greenhouse gas reductions threshold for advanced biofuel. We are not revisiting those determinations as part of this action. Instead this rulemaking addresses the applicable volume requirements for the various categories of renewable fuels, in applying the provision for a waiver of the cellulosic biofuel volumes. Thus we are not reconsidering or reopening the GHG threshold determinations made in the 2010 RFS final rule. Instead, we are considering this comment solely in the context of exercising its discretion under CAA section 211(o)(7)(D)(i).
For the reasons discussed above, we conclude that the volumes of sugarcane ethanol that are available for use in 2013 as advanced biofuel are reasonably projected as at least as much as 580 mill gallons. We continue to place primary weight on this factor in determining whether to maintain the statutory levels for advanced biofuel. In addition, the arguments and reasons for reducing the advanced biofuel standard to reduce the reliance on imported sugar cane ethanol are not of a nature to warrant changing the conclusions we would draw based on the available supply of sugarcane ethanol as an advanced biofuel.
As described in Section III.B above, the NPRM addressed potential reductions in advanced biofuel and total renewable fuel under the cellulosic waiver authority. In this context, any reduction in advanced biofuel would be matched gallon-for-gallon (on an ethanol-equivalent basis) by reductions in total renewable fuel, effectively having no impact on volumes of non-advanced biofuel such as corn ethanol.
In response to the NPRM, many stakeholders expressed concern about the E10 blendwall and the possibility that the applicable standards for 2013, absent a reduction in the advanced biofuel and total renewable fuel volume requirements, could require the consumption of more volumes of higher ethanol blends (E15–E85) than can reasonably be absorbed by the market.
In the NPRM we proposed a significant reduction in the required volume of cellulosic biofuel. For today's final rule we are adjusting this volume requirement downward to 6 mill gal as described in Section II.D above. We also set a volume requirement for biomass-based diesel of 1.28 bill gal in a separate rulemaking.
In order to determine the volume of ethanol that would need to be consumed in blends higher than E10 in order to meet this standard, we assumed a total 2013 energy consumption for all gasoline-powered vehicles and engines of 14.58 Quadrillion Btu.
In their comments on the NPRM, a number of refiners contended that E85 is not a viable strategy for consuming volumes of ethanol in excess of the E10 blendwall. Some called for reducing the required volumes of renewable fuel so that ethanol would comprise no more than 10% of the gasoline fuel pool. We agree that, historically, E85 consumption has been very low. In 2012 EIA estimated that E85 consumption was about 40 mill gal, and in prior years it was less.
While recent consumption of E85 (approximately 40 mill gal in 2012) has been considerably lower than the 2.1 bill gal that would be needed in the scenario outlined above, we note that the price of E85 has historically only been about 15% lower than the price of E10. Since the average volumetric energy content of E85
There are also mechanisms other than increased volumes of E85 through which obligated parties could comply with the applicable volume requirements in the absence of reductions in the advanced biofuel and total renewable fuel volume requirements. One of those options is carryover RINs from 2012. EMTS was examined after the February 28, 2013 deadline for compliance with the 2012 standards to determine the total number of 2012 RINs that had not been used for compliance in 2012 or retired for any other reason. The totals are shown below.
As discussed above, compliance with the statutory volume requirements for advanced biofuel and total renewable fuel in 2013 could in theory be met by the consumption of 2.1 bill gal of E85 containing about 1.6 bill gal of ethanol. However, given that there are over 2.6 bill carryover RINs available, there are more than enough in the market to permit compliance with the 2013 advanced biofuel and total renewable fuel volume requirements even if E85 consumption does not increase in 2013. These carryover RINs are also available to address any potential shortfalls in production of corn-based ethanol that may result from the 2012 drought.
We recognize that in some cases carryover RINs from 2012 may not be available to an individual obligated party that needs them. There are indications from some stakeholders that those who own carryover RINs may opt to not sell them, instead carrying them over to help assure compliance with their own obligations in a future year. There is no way to determine what fraction of carryover RINs may fall into this category. However, we note that the 14.5 bill gal of ethanol that might need to be consumed in 2013 (Table III.C–2) is only 1.4 bill gal above the E10 blendwall. This is significantly less than the number of available carryover RINs available. Thus only about half of the carryover RINs in existence would need to be made available in order for the full statutory volume requirements for advanced biofuel and total renewable fuel to be met in 2013.
In response to the NPRM, one stakeholder indicated that carryover RINs should not be considered in the process of setting standards. Instead, this stakeholder argued, carryover RINs were intended only to provide flexibility to enable companies to remain in compliance in years when circumstances such as drought or other biofuel supply shortage limit the availability of RINs. However, the final rulemaking for the RFS1 program did not describe the purpose of carryover RINs in such narrow terms. Droughts were indeed provided as an example of a market circumstance that could limit the production of renewable fuels, but the RFS1 final rule also described the use of carryover RINs more broadly as a means for protecting against any potential supply shortfalls that could limit the availability of RINs. The rule also put this flexibility in terms of availability of RINs and the potential for waivers:
Carryover RINs and increased E85 are not the only available mechanisms that obligated parties have for meeting the 2013 standards. There are also additional sources for non-ethanol biofuels that could potentially be used for compliance in 2013 instead of relying on increased volumes of E85. As discussed in Section III.B.1 above, there is unused biodiesel production capacity and sufficient feedstocks available to permit biodiesel production in excess of 1.28 bill gal if demand for it exists. In addition, various feedstocks not currently identified in Table 1 to 80.1426 can be used in facilities that have been grandfathered under § 80.1403 to produce biodiesel that is categorized as renewable fuel, but not advanced biofuel, providing these feedstocks meet the definition of renewable biomass.
Several commenters indicated that the recent rise in D6 RIN prices, from approximately 5 ¢/RIN in early January 2013 to approximately 70 ¢/RIN by March 2013
One commenter also suggested that this increase in RIN prices would increase the cost of transportation fuel to U.S. consumers by about $17 billion. We do not believe this is a credible program cost increase resulting from high RIN prices even if it does represent the market value of RINs required for compliance with the RFS program. It is incorrect to assume a direct correlation between the increase in RIN prices and a rise in average transportation fuel costs. The cost of the RFS program is driven by the cost of renewable fuels relative to the petroleum fuels they displace. The effect of increasing RIN prices is not to increase overall transportation fuel costs, but rather to reduce the price of more renewable-fuel intensive fuels (e.g. E85) relative to the price of fuels with a lower renewable content (e.g. E10). Since the cost of renewable fuels did not increase over this time period, we do not believe that recent higher RIN prices have caused a significant increase in the total cost of transportation fuels in 2013.
We recognize, however, that high RIN prices may impact individual fuel market participants differently. For example, high D6 RIN prices are likely to have differing effects on how various levels of gasoline/ethanol blends and diesel fuel are priced. The refining industry has raised concerns that in response to high RIN prices, individual refiners may choose to export fuel, and individual importers may reduce imports in order to reduce their RIN obligations. These actions could increase the cost of transportation fuels if increased exports and/or decreased imports significantly reduce the available supply of transportation fuel in the United States. We believe this is highly unlikely as increased exports or decreased imports by one company would provide the opportunity for another obligated party to increase sales volumes and market share within the U.S. and offset any change in transportation fuel supply. EPA will continue to monitor RIN prices and potential impacts closely.
For all of the reasons discussed above, we conclude that for 2013 adequate volumes of renewable fuel and carryover RINs are available to meet the requirements for total and advanced biofuel, and that the E10 blendwall is not a barrier to compliance with these volumes given the various alternative methods to comply besides the blending of ethanol as E10. This conclusion is specific to the circumstances present for 2013.
As shown in Table III.B–2, in order for an advanced biofuel requirement of 2.75 bill gal to be met, there would need to be 824 mill gal of advanced biofuels in addition to the volumes that would
As described in the NPRM, we recognize that ethanol will likely continue to predominate the renewable fuel pool in the near future, and that for 2014 the ability of the market to consume ethanol in higher blends such as E85 is constrained as a result of infrastructure- and market-related factors. Most stakeholders that submitted comments in response to the NPRM made reference to the impending E10 blendwall, though they differed on how EPA should address it. A number of obligated parties and other stakeholders have communicated to EPA that while the E10 blendwall may be manageable in 2013, in 2014 compliance is expected to become significantly more difficult. We agree with that assessment. In 2014 the applicable volume of total renewable fuel set forth in the statute rises to 18.15 billion ethanol-equivalent gallons, of which 14.4 bill gal would be non-advanced biofuel comprised primarily of corn-ethanol, and 3.75 bill gal would be advanced biofuel. A significant portion of the fuel available to meet the advanced biofuel requirement would also likely be ethanol, including domestically produced cellulosic and advanced ethanol, along with advanced ethanol imported from Brazil. However, the maximum volume of ethanol that could be consumed as E10 in 2014 is projected to be just 13.2 bill gal.
Given these challenges, EPA anticipates that in the 2014 proposed rule, we will propose adjustments to the 2014 volume requirements, including to both the advanced biofuel and total renewable fuel categories. We expect that in preparing the 2014 proposed rule, we will estimate the available supply of cellulosic and advanced biofuel, assess the E10 blendwall and current infrastructure and market-based limitations to the consumption of ethanol in gasoline-ethanol blends above E10, and then propose to establish volume requirements that are reasonably attainable in light of these considerations and others as appropriate. EPA believes that the statute provides EPA with the authorities and tools needed to make appropriate adjustments in the national volume requirements to address these challenges. We are currently evaluating a variety of options and approaches consistent with our statutory authorities for use in establishing RFS requirements for 2014. We will discuss these options in detail in the forthcoming NPRM for the 2014 standards and expect to utilize the notice and comment process to fully engage the public in consideration of a reasonable path forward that appropriately addresses the blendwall and other constraints.
We received a number of comments suggesting that because EPA was late in issuing these final RFS standards for 2013, and in light of concerns over the blendwall and RIN prices, that the Agency should take action to relieve or reduce burdens associated with RFS compliance in 2013. While we do not believe that it would be appropriate to remove or further reduce the statutory volume obligations for 2013 as some suggested, we do agree with the commenter who suggested that EPA provide additional time for obligated parties to demonstrate compliance with the 2013 standards. Knowledge of the volume requirements for 2014 is crucial to the strategies that obligated parties may implement when purchasing RINs and wet gallons of fuel for compliance with their individual 2013 RVOs. Given this, EPA's view is that delaying the compliance demonstration for the 2013 compliance period would alleviate some of the uncertainty and concerns that obligated parties have regarding the tardiness of the final rule and its effect on their decisions regarding RIN acquisition.
Therefore, we are extending the RFS compliance deadline for the calendar year 2013 RFS standards to June 30, 2014. This change affects § 80.1451(a)(1) and adds a new paragraph (a)(1)(xiv). In addition to providing obligated parties with more time to demonstrate compliance, we believe that this extension will allow obligated parties to implement various purchasing and allocation strategies that help them comply on an individual basis given the tardiness of this final rule. The compliance demonstration deadline extension is for the 2013 compliance year only, and does not extend the compliance demonstration deadline in any subsequent year. Additionally, given the extension of the compliance demonstration deadline for the 2013 compliance period, we are extending the deadline for submitting reports for the attest engagement requirement for the corresponding compliance year until September 30, 2014. This change affects § 80.1464(d) and adds a new paragraph (g). The attest engagement deadline extension is likewise for the 2013 compliance year only, and does not extend the deadline in any subsequent year.
The renewable fuel standards are expressed as volume percentages and are used by each refiner, blender, or importer to determine their renewable volume obligations (RVO). Since there are four separate standards under the RFS2 program, there are likewise four separate RVOs applicable to each obligated party. Each standard applies to the sum of all gasoline and diesel
As discussed in Section II.D, we are projecting a volume of cellulosic biofuel for 2013 of 4 million gallons (6 million ethanol-equivalent gallons). This is the volume we have used as the basis for setting the percentage standard for cellulosic biofuel for 2013. We are maintaining the advanced biofuel and total renewable fuel volumes at the applicable volumes specified in the statute. The biomass-based diesel volume for 2013 has been established at 1.28 billion gallons through a separate rulemaking. The volumes used to determine the four final percentage standards are shown in Table IV.A–1.
As with previous years' renewable fuels standards determinations, the formulas used in deriving the annual standards are based in part on estimates of the volumes of gasoline and diesel fuel, for both highway and nonroad uses, that are projected to be used in the year in which the standards will apply. Producers of other transportation fuels, such as natural gas, propane, and electricity from fossil fuels, are not subject to the standards, and volumes of such fuels are not used in calculating the annual standards. Since the standards apply to producers and importers of gasoline and diesel, these are the transportation fuels used to set the standards, and then again to determine the annual volume obligations of an individual gasoline or diesel producer or importer.
The following formulas are used to calculate the four percentage standards applicable to producers and importers of gasoline and diesel (see § 80.1405):
The Act requires EPA to base the standards on an EIA estimate of the amount of gasoline and diesel that will be sold or introduced into commerce for that year. The four separate renewable fuel standards for 2013 are based on the gasoline, ethanol, diesel, and biodiesel consumption volumes projected by EIA.
In CAA section 211(o)(9), enacted as part of the Energy Policy Act of 2005, Congress provided a temporary exemption to small refineries (those refineries with a crude throughput of no more than 75,000 barrels of crude per day) through December 31, 2010. In our initial rulemaking to implement the new RFS program,
Congress provided two ways that small refineries can receive a temporary extension of the exemption beyond 2010. One is based on the results of a study conducted by the Department of Energy (DOE) to determine whether small refineries would face a disproportionate economic hardship under the RFS program. The other is based on EPA determination of disproportionate economic hardship on a case-by-case basis in response to refiner petitions.
In January 2009, DOE issued a study which did not find that small refineries would face a disproportionate economic hardship under the RFS program.
Following the release of DOE's 2009 small refinery study, Congress directed DOE to complete a reassessment and issue a revised report. In March of 2011, DOE re-evaluated the impacts of the RFS program on small entities and concluded that some small refineries would suffer a disproportionate hardship.
EPA may also extend the exemption for individual small refineries or small refiners on a case-by-case basis if they demonstrate disproportionate economic hardship. 40 CFR §§ 80.1441(e)(2), 80.1442(h). EPA has granted some exemptions pursuant to this process that apply in 2011 and 2012. EPA has granted one exemption for 2013. However, any requests for exemption that are approved after the release of today's final rulemaking will not affect the 2013 standards. As stated in the final rule establishing the 2011 standards, “EPA believes the Act is best interpreted to require issuance of a single annual standard in November that is applicable in the following calendar year, thereby providing advance notice and certainty to obligated parties regarding their regulatory requirements. Periodic revisions to the standards to reflect waivers issued to small refineries or refiners would be inconsistent with the statutory text, and would introduce an undesirable level of uncertainty for obligated parties.” Thus, any additional exemptions for small refineries or small refiners that are issued after today will not affect the 2013 standards.
EPA requested comment on two areas related to small refiner/refinery exemptions. The first was whether it would be appropriate to extend the two year exemption for small refineries. Two commenters stated that EPA should not provide such an extension to small refineries. Both referenced the number of years the program has been in place, leading to the conclusion that small entities have had time to prepare to meet the standards. One of the commenters also stated that small refiners likely have been blending renewable fuel for years given market incentives. One of these commenters stated that the relief provided was meant to be temporary and not “on-going.” A third commenter suggested that EPA not only continue to provide hardship waivers, but extend the opportunity for waivers to mid-size refiners, on the basis that these refiners, like small refiners, do not own ethanol facilities and have little control of the RIN and ethanol markets. In addition, the location of several small and mid-size refineries prohibits the export of gasoline, thus reducing their compliance options in the face of limited RIN availability. However, it is the limited financial resources of such entities that provide overarching hardship to such entities, according to the commenter. This commenter also stated that EPA's granting of hardship relief is based on whether the refinery cannot remain economically viable without said relief. The commenter believes the decision point should be based on whether the refiner suffers disproportionately to others in the industry.
The Act specifically provides for a temporary RFS exemption for small refineries, and for the possibility of extensions of those temporary exemptions. EPA used its discretion in the RFS1 program regulations, and again in the RFS2 regulations, to extend the temporary exemption (and possibility of extensions) to a few small refiners meeting criteria established in prior EPA fuels rules based on general authority to provide appropriate lead time in establishing implementing regulations and based on the language in section 211(o) directing EPA to apply RFS requirements to refineries, blenders, distributors, and importers “as appropriate.” Regarding EPA's use of “economic viability” (in the commenter's words) as a decision point, the Agency has interpreted this to be a
EPA also requested comment on whether it is appropriate for the agency to change the standards if small refiner exemptions are granted after the final rule is issued. As discussed above, EPA has heretofore considered and rejected this option for the primary reason of wanting to provide certainty to obligated parties regarding the levels of the standards. One commenter stated that, though they were opposed to further extending exemptions to small entities, that—lawfully, the standards must be adjusted whenever a waiver is granted. In the rule establishing the 2011 standards, we stated that “EPA believes the Act is best interpreted to require issuance of a single annual standard . . . thereby providing advance notice and certainty to obligated parties . . .” The Agency continues to believe that this is the single best approach; the commenter did not provide new information to cause us to re-evaluate this position.
As specified in the March 26, 2010 RFS2 final rule,
The levels of the percentage standards would be reduced if Alaska or a U.S. territory chooses to participate in the RFS2 program, as gasoline and diesel produced in or imported into that state or territory would then be subject to the standard. Neither Alaska nor any U.S. territory has chosen to participate in the RFS2 program at this time, and thus the value of the related terms in the calculation of the standards is zero.
Note that because the gasoline and diesel volumes estimated by EIA include renewable fuel use, we must subtract the total renewable fuel volumes from the total gasoline and diesel volumes to get total non-renewable gasoline and diesel volumes. The values of the variables described above are shown in Table IV.B.3–1.
Using the volumes shown in Table IV.B.3–1, we have calculated the final percentage standards for 2013 as shown in Table IV.B.3–2.
In the RFS2 final rule, we stated our intent to make two announcements each year:
• Set the price for cellulosic biofuel waiver credits that will be made available to obligated parties in the event that we reduce the volume of cellulosic biofuel below the applicable volume specified in the Clean Air Act (CAA), and
• Announce the results of our annual assessment of the aggregate compliance approach for U.S. planted crops and crop residue.
The biofuel waiver credit price being announced today was calculated in accordance with the specifications in § 80.1456(d). The manner in which EPA calculates the waiver credit price is precisely set forth in EPA regulations, and EPA's assessment of the aggregate compliance approach is based on data sources, methodology, and criteria that were identified and explained in the preamble to the RFS2 final rule. For these reasons we would not typically include these administrative announcements in a Notice of Proposed Rulemaking. However, given that the NPRM for the 2013 standards was not published prior to 2013, we determined that regulated parties would benefit from knowing the waiver credit price and our conclusions regarding the aggregate compliance approach as soon as possible. Therefore, the February 7, 2013 NPRM included both of these administrative announcements. In today's rulemaking we are finalizing both announcements, and responding to a number of comments we received on the aggregate compliance approach.
Section 211(o)(7)(D) of the CAA requires that whenever EPA sets the applicable volume of cellulosic biofuel at a level lower than that specified in the Act, EPA is to provide a number of cellulosic credits for sale that is no more than the EPA-determined applicable volume. Congress also specified the formula for calculating the price for such waiver credits: adjusted for inflation, the credits must be offered at the price of the higher of 25 cents per gallon or the amount by which $3.00 per gallon exceeds the average wholesale price of a gallon of gasoline in the United States. The inflation adjustment is for years after 2008. EPA regulations provide that the inflation adjustment is calculated by comparing the most recent Consumer Price Index for All Urban Consumers (CPI–U) for the “All Items” expenditure category as provided by the Bureau of Labor Statistics that is available at the time EPA sets the cellulosic biofuel standard to the comparable value that was reported soonest after December 31, 2008.
In contrast to its directions to EPA for setting the price of a cellulosic biofuel waiver credit, Congress afforded the Agency considerable flexibility in designing regulations specifying the
For the 2013 compliance period, since the applicable volume of cellulosic biofuel used to set the annual cellulosic biofuel standard is lower than the volume for 2013 specified in the CAA, we are making cellulosic waiver credits available to obligated parties for end-of-year compliance should they need them at a price of $0.42 per credit. To calculate this price, EPA first determined the average wholesale (refinery gate) price of gasoline using the most recent 12 months of data available from the EIA Web site on September 30, 2012. Based on this data, we calculated an average price of gasoline for the period July 2011 to June 2012 of $2.85. In accordance with the Act, we then calculated the difference of the inflation-adjusted value of $3.00, or $3.27, and $2.85, which yielded $0.42. Next, we compared the value of $0.42 to the inflation-adjusted value of $0.25, or $0.27. The Act requires EPA to use the greater of these two values as the price for cellulosic biofuel waiver credits.
The derivation of this value is more fully explained in a memorandum submitted to the docket for this rulemaking, and a more complete description of the statutory requirements and their application can be found in the RFS2 final rule.
The RFS2 regulations contain a provision for renewable fuel producers who use planted crops and crop residue from U.S. agricultural land that relieves them of the individual recordkeeping and reporting requirements concerning the specific land from which their feedstocks were harvested. To enable this approach, EPA established a baseline number of acres for U.S. agricultural land in 2007 (the year of EISA enactment) and determined that as long as this baseline number of acres was not exceeded, it was unlikely that new land outside of the 2007 baseline would be devoted to crop production based on historical trends and economic considerations. We therefore provided that renewable fuel producers using planted crops or crop residue from the U.S. as feedstock in renewable fuel production need not comply with the individual recordkeeping and reporting requirements related to documenting that their feedstocks are renewable biomass, unless EPA determines through one of its annual evaluations that the 2007 baseline acreage of agricultural land has been exceeded.
In the final RFS2 regulations, EPA committed to make an annual finding concerning whether the 2007 baseline amount of U.S. agricultural land has been exceeded in a given year. If the baseline is found to have been exceeded, then producers using U.S. planted crops and crop residue as feedstocks for renewable fuel production would be required to comply with individual recordkeeping and reporting requirements to verify that their feedstocks are renewable biomass.
In response to the NPRM, we received two comments criticizing the aggregate compliance approach, including a comment questioning transparency surrounding the data and methodology. EPA continues to believe that USDA cropland and reserve program acreage data are the most appropriate and applicable sources of data on which to base our annual evaluation for whether the 2007 baseline has been exceeded for aggregate compliance. The USDA data along with a description of our evaluation has been provided in the rulemaking dockets for each annual RFS standard.
Based on data provided by the USDA Farm Service Agency (FSA) and Natural Resources Conservation Service (NRCS), we have estimated that U.S. agricultural land reached approximately 384 million acres in 2012, and thus did not exceed the 2007 baseline acreage. This acreage estimate is based on the same methodology used to set the 2007 baseline acreage for U.S. agricultural land in the RFS2 final rulemaking. Specifically, we started with FSA crop history data for 2012, from which we derived a total estimated acreage of 384 million acres. We then subtracted the amount of land estimated to be participating in the Grasslands Reserve Program (GRP) and Wetlands Reserve Program (WRP) by the end of Fiscal Year 2012, 230,550 acres, to yield an estimate of approximately 384 million acres of U.S. agricultural land in 2012. The USDA data used to make this calculation can be found in the docket to this rule.
On March 15, 2011, EPA issued a notice of receipt of and solicited public comment on a petition for EPA to authorize the use of an aggregate approach for compliance with the Renewable Fuel Standard renewable biomass requirements, submitted by the Government of Canada. The petition requested that EPA determine that an aggregate compliance approach will provide reasonable assurance that planted crops and crop residue from Canada meet the definition of renewable biomass. After thorough consideration of the petition, all supporting documentation provided and the public comments received, EPA determined that the criteria for approval of the petition were satisfied and approved the use of an aggregate compliance approach to renewable biomass verification for planted crops and crop residue grown in Canada.
The Government of Canada utilized several types of land use data to demonstrate that the land included in their 124 million acre baseline is cropland, pastureland or land equivalent to U.S. Conservation Reserve Program land that was cleared or cultivated prior to December 19, 2007, and was actively managed or fallow and nonforested on that date (and is therefore RFS2 qualifying land). The total agricultural land in Canada in 2012
On January 25, 2013 a DC circuit court ruled that the EPA's projection of cellulosic biofuel production was in excess of the agency's statutory authority and vacated the cellulosic biofuel standards.
In their comments responding to the NPRM, a number of parties used the opportunity to raise concerns that were not directly related to the issues and provisions we were addressing in the NPRM, namely the determination of the applicable volume requirements and associated percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel. Instead, they addressed issues associated with the following:
While we are taking these comments under consideration as we continue to implement the RFS2 program, these comments are outside the scope of today's action, and we are not providing substantive responses to them at this time. With regard to comments on the 1.28 bill gal requirement for biomass-based diesel, we will take them into consideration in the context of our response to the petition for reconsideration submitted by the American Fuels and Petrochemical Manufacturers.
Many interested parties participated in the rulemaking process that culminates with this final rule. This process provided opportunity for submitting written public comments following the proposal that we published on February 7, 2013 (78 FR 9282), and we also held a public hearing on March 8, 2013 at which a number of parties provided both verbal and written testimony. All comments received, both verbal and written, are available in EPA docket EPA–HQ–OAR–2012–0546 and we considered these comments in developing the final rule. Public comments and EPA responses are discussed throughout this preamble.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
The economic impacts of the RFS2 program on regulated parties, including the impacts of the required volumes of renewable fuel, were already addressed in the RFS2 final rule promulgated on March 26, 2010 (75 FR 14670). With the exception of cellulosic biofuel, this action proposes the percentage standards applicable in 2013 based on the volumes that were analyzed in the RFS2 final rule.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This final rule does not impose any additional reporting requirements on regulated parties beyond those already required under the RFS program; therefore, there will not be any additional reporting burdens on entities impacted by this regulation. This action merely establishes the RFS annual standards for 2013 as required by section 211(o) of the Clean Air Act.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
Today's rule is an annual rulemaking implementing a long-term program that was finalized in 2010. Under that program small refiners and small refineries were already granted two years of relief that could be extended upon demonstration of ongoing hardship. EPA, with the assistance of DOE, has continued to implement these provisions and provide relief when warranted.
After considering the economic impacts of today's final rule on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. This rule sets the annual standard for cellulosic biofuel for 2013 at 6 mill gal. Since small refiners and small refineries collectively comprise about 11.9% of gasoline and 15.2% of diesel production
The impacts of the RFS2 program on small entities were already addressed in the RFS2 final rule promulgated on March 26, 2010 (75 FR 14670), and this final rule will not impose any additional requirements on small entities.
This final action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for State, local, or tribal governments or the private sector. This action implements mandate(s) specifically and explicitly set forth by the Congress in Clean Air Act section 211(o) without the exercise of any policy discretion by EPA. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This final rule only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers and merely sets the 2013 annual standards for the RFS program.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action sets the 2013 annual standards for the RFS program and only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers. Thus, Executive Order 13132 does not apply to this rule.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This final rule will be implemented at the federal level and affects transportation fuel refiners, blenders, marketers, distributors, importers, exporters, and renewable fuel producers and importers. Tribal governments would be affected only to the extent they purchase and use regulated fuels. Thus, Executive Order 13175 does not apply to this action.
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks and because it implements specific standards established by Congress in statutes (section 211(o) of the Clean Air Act).
This action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action simply sets the annual standards for renewable fuel under the RFS program for 2013.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This final rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action does not relax the control measures on sources regulated by the RFS regulations and therefore will not cause emissions increases from these source.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Statutory authority for this action comes from section 211 of the Clean Air Act, 42 U.S.C. 7545. Additional support for the procedural and compliance related aspects of today's Final rule, come from Sections 114, 208, and 301(a) of the Clean Air Act, 42 U.S.C. Sections 7414, 7542, and 7601(a).
Administrative practice and procedure, Air pollution control, Diesel fuel, Environmental protection, Fuel additives, Gasoline, Imports, Oil imports, Petroleum.
For the reasons set forth in the preamble, 40 CFR part 80 is amended as follows:
42 U.S.C. 7414, 7542, 7545, and 7601(a).
(a) * * *
(4)
(i) The value of the cellulosic biofuel standard for 2013 shall be 0.004 percent.
(ii) The value of the biomass-based diesel standard for 2013 shall be 1.13 percent.
(iii) The value of the advanced biofuel standard for 2013 shall be 1.62 percent.
(iv) The value of the renewable fuel standard for 2013 shall be 9.74 percent.
(d) * * *
(4) The 2013 price for cellulosic biofuel waiver credits is $0.42 per waiver credit.
(a) * * *
(1) Annual compliance reports for the previous compliance period shall be submitted by February 28 of each year except as provided in paragraph (xiv) below, and shall include all of the following information:
(xiv) For the 2013 compliance year, annual compliance reports shall be submitted by June 30, 2014.
(d) For each compliance year, each party subject to the attest engagement requirements under this section shall cause the reports required under this section to be submitted to EPA by May 31 of the year following the compliance year, except as provided in paragraph (g) below.
(g) For the 2013 compliance year, reports required under this section shall be submitted to EPA by September 30, 2014.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Florida leafwing
We will accept comments received or postmarked on or before October 15, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
Larry Williams, Field Supervisor, U.S. Fish and Wildlife Service, South Florida Ecological Services Office, 1339 20th Street, Vero Beach, FL 32960, by telephone 772–562–3909, or by facsimile 772–562–4288. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339.
Why we need to publish a rule. Under the Act, once we determine that a species is endangered or threatened, then we must also designate critical habitat for the species. Designations and revisions of critical habitat can only be completed by issuing a rule. Elsewhere in today's
This rule consists of: A proposed rule for designation of critical habitat for the Florida leafwing and Bartram's scrub-hairstreak butterflies. The Florida leafwing and Bartram's scrub-hairstreak butterflies have been proposed for listing under the Act. This rule proposes designation of critical habitat necessary for the conservation of the species.
• Approximately 3,351 hectares (ha) (8,283 acres (ac)) are proposed as critical habitat for the Florida leafwing butterfly and approximately 3,748 ha (9,261 ac) are proposed for the Bartram's scrub-hairstreak butterfly. The critical habitat proposed for the Florida leafwing occurs entirely within that proposed for the Bartram's scrub-hairstreak. The proposed critical habitat for both butterflies is located in Miami-Dade and Monroe Counties, Florida.
• The proposed designation for both butterflies includes both occupied and unoccupied critical habitat. The Service determined that the proposed unoccupied units are essential for the conservation of the butterflies, in order to provide for the necessary expansion of current Florida leafwing and Bartram's scrub-hairstreaks population(s) and for reestablishment of populations into areas where these subspecies previously occurred.
Section 4(b)(2) of the Endangered Species Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as
(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
(2) Specific information on:
(a) The amount and distribution of the Florida leafwing and Bartram's scrub-hairstreak habitat including the hostplant, pineland croton
(b) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by the species;
(c) Where these features are currently found;
(d) Whether any of these features may require special management considerations or protection;
(e) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why;
(f) What areas not occupied at the time of listing are essential for the conservation of the species and why; and
(g) Whether we have determined the most appropriate size and configuration of our proposed critical habitat units.
(3) Land use designations and current or planned activities in the areas occupied by the species or proposed to be designated as critical habitat, and possible impacts of these activities on these species and proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of climate change on both butterflies and proposed critical habitat.
(5) Any probable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
(6) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.
(7) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
We will post your entire comment—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
All previous Federal actions are described in the proposal to list the Florida leafwing and Bartram's scrub-hairstreak butterflies as endangered species under the Act published elsewhere in today's
It is our intent to discuss below only those topics directly relevant to the designation of critical habitat for the Florida leafwing and Bartram's scrub-hairstreak in this section of the proposed rule. For more information on Florida leafwing and Bartram's scrub-hairstreak taxonomy, life history, habitat, and population descriptions, please refer to the proposed listing rule published elsewhere in today's
The Florida leafwing and Bartram's scrub-hairstreak butterflies are endemic to south Florida and the lower Florida Keys. Both butterflies occur within pine rockland habitat that retain their shared larval hostplant, pineland croton
At present, the Florida leafwing is extant only within the Long Pine Key (LPK) region of Everglades National Park (ENP). Until 2006 when it was extirpated, an additional population occurred on Big Pine Key (BPK), part of National Key Deer Refuge (NKDR). The Bartram's scrub-hairstreak also occurs within the LPK region on ENP, as well as locally within conservation lands adjacent to the ENP and in the Florida Keys on BPK.
Although Florida leafwing and Bartram's scrub-hairstreak populations occur almost entirely within public conservation lands, threats remain from a wide array of natural and human-related sources. Habitat loss, fragmentation and degradation, specifically from natural fire suppression (combined with limited prescribed burns or mechanical clearing), are the most imminent threats to these butterflies and their hostplant. The Florida leafwing has been extirpated (no longer in existence) from nearly 96 percent of its historical range; the only known extant population occurs within ENP in Miami-Dade County. The Bartram's scrub-hairstreak has been extirpated from nearly 93 percent of its historical range; only five isolated metapopulations remain on Big Pine Key in Monroe County, Long Pine Key in ENP, and relict pine rocklands adjacent to the ENP in Miami-Dade County.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) essential to the conservation of the species, and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are the specific elements of physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, would continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools would continue to contribute to recovery of these butterflies if we list the Florida leafwing and the Bartram's scrub hairstreak butterflies. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:
(1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or
(2) such designation of critical habitat would not be beneficial to the species.
A threat of take attributed to collection under Factor B currently exists for both these butterflies. There is evidence that the designation of critical habitat could result in an increased threat from taking, specifically collection, for both butterflies, through publication of maps and a narrative description of specific critical habitat units in the
In the absence of finding that the designation of critical habitat would increase threats to a species, if any benefits would result from a critical habitat designation, then a prudent finding is warranted. Here, the potential benefits of designation include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species.
Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, we find that designation of critical habitat is prudent for the Florida leafwing and Bartram's scrub-hairstreak butterflies.
Having determined that designation of critical habitat is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the Florida leafwing and Bartram's scrub-hairstreak butterflies is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:
(i) Information sufficient to perform required analyses of the impacts of the designation is lacking; or
(ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.
We reviewed the available information pertaining to the biological needs of the butterflies and habitat characteristics where the butterflies are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Florida leafwing and Bartram's scrub-hairstreak butterflies.
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features (PBFs) that are essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derived the specific PBFs for the Florida leafwing and Bartram's scrub-hairstreak butterflies from studies of both of the butterflies' habitat, ecology, and life histories as described below—(see
The Florida leafwing occurs within pine rockland habitat, and occasionally associated rockland hammock interspersed in these pinelands, throughout their entire lifecycle. Description of these communities and associated native plant species are provided in the Status Assessment for the Florida Leafwing and Bartram's Scrub-hairstreak Butterflies section in the proposed listing rule elsewhere in today's
The Florida leafwing is dependent on pine rocklands that retain the butterfly's sole hostplant, pineland croton (Hennessey and Habeck 1991, pp. 13–17; Smith
Immature stages of the Florida leafwing occur entirely on the hostplant, pineland croton. Adult Florida leafwing disperse and roost within the pine rockland canopy, and also in rockland hammock vegetation interspersed within these pinelands. Because of their use of the croton and their choice of roosting sites, the former Florida leafwing population on Big Pine Key may have been deleteriously impacted by exposure to seasonal pesticide applications designed to control mosquitoes. The potential for mosquito control chemicals to drift into nontarget areas on the island and to persist for varying periods of time has been well documented (Hennessey and Habeck 1989, pp. 1–22; 1991, pp. 1–68; Hennessey
The Florida leafwing, with its strong flight abilities, can disperse to make use of appropriate habitat in ENP (Salvato and Salvato 2010a, p. 95). Reproduction and larval development occur entirely within the pine rocklands. The Florida leafwing is multivoltine (
Pine rockland native vegetation includes, but is not limited to, canopy vegetation dominated by slash pine
The Florida leafwing continues to occur in habitats that are protected from human-generated disturbances and are only partially representative of the butterflies' historical, geographical, and ecological distribution because its range within these habitats has been reduced. The subspecies is still found in its representative plant communities of pine rocklands and associated rockland hammocks. Representative plant communities are located on Federal, State, local, and private conservation lands that implement conservation measures benefitting the butterflies.
Pine rockland is dependent on some degree of disturbance, most importantly from natural or prescribed fires (Loope and Dunevitz 1981, p. 5; Snyder
The Florida leafwing, as with other subtropical butterflies, have adapted over time to the influence of tropical storms and other forms of adverse weather conditions (Minno and Emmel 1994, p. 671; Salvato and Salvato 2007, p. 154). Hurricanes and other significant weather events create openings in the pine rockland habitat (FNAI 2010, p. 3) However, given the substantial reduction in the historical range of the butterfly in the past 50 years, the threat
According to 50 CFR 424.12(b), we are required to identify the PBFs essential to the conservation of the Florida leafwing in areas occupied at the time of listing, focusing on the features' primary constituent elements (PCEs). We consider PCEs to be specific elements of the PBFs that provide for a species' life-history processes and are essential to the conservation of the species.
The Florida leafwing is dependent upon functioning pine rockland habitat to provide its fundamental life requirements, such as pineland croton for larval development, food sources and roosting areas required by adult butterflies. Based on our current knowledge of the PBFs and habitat characteristics required to sustain the butterfly's life-history processes, we determine that the PCEs for the Florida leafwing are:
(1) Areas of pine rockland habitat, and in some locations, associated rockland hammocks.
(a) Pine rockland habitat contains:
(i) Open canopy, semi-open subcanopy, and understory;
(ii) Substrate of oolitic limestone rock; and
(iii) A plant community of predominately native vegetation.
(b) Rockland hammock habitat associated with the pine rocklands contains:
(i) Canopy gaps and edges with an open to semi-open canopy, subcanopy, and understory; and
(ii) Substrate with a thin layer of highly organic soil covering limestone or organic matter that accumulates on top of the underlying limestone rock; and
(iii) A plant community of predominately native vegetation.
(2) Competitive nonnative plant species in quantities low enough to have minimal effect on survival of the Florida leafwing.
(3) The presence of the butterfly's hostplant, pineland croton, in sufficient abundance for larval recruitment, development, and, food resources, and for adult butterfly roosting habitat, and reproduction.
(4) A dynamic natural disturbance regime or one that artificially duplicates natural ecological processes (e.g. fire, hurricanes or other weather events, at 3- to 5-year intervals) that maintains the pine rockland habitat and associated plant community.
(5) Pine rockland habitat and associated plant community that are sufficient in size to sustain viable Florida leafwing populations.
(6) Pine rockland habitat with levels of pesticide low enough to have minimal effect on the survival of the butterfly or its ability to occupy the habitat.
When designating critical habitat, we assess whether the specific areas within the geographic areas occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protections. The features essential to the conservation of this species may require special management considerations or protection to reduce the following threats:
In the best case scenario, which assumes low sea level rise, high financial resources, proactive planning, and only trending human population growth, analyses suggest that the extant Florida leafwing population within ENP is susceptible to future losses, with losses attributed to increases in sea level and human population. In the worst case scenario, which assumes high sea level rise, low financial resources, a “business as usual” approach to planning, and a doubling of human population, the habitat at Long Pine Key may be lost resulting in the complete extirpation of the Florida leafwing. Actual impacts may be greater or less than anticipated based upon high variability of factors involved (e.g., sea level rise, human population growth) and assumptions made. Being proactive to address sea level rise may be beyond the feasibility of land owners or managers. However, while land owners or land managers may not be able to be proactive in preventing these events, they may be able to respond with management or protection. Management actions or activities that could ameliorate sea level rise include providing protection of suitable habitats unaffected or less affected by sea level rise.
In recent years, ENP has used partial and systematic prescribed burns to treat the Long Pine Key pine rocklands in
Fire management of pine rocklands in NKDR is hampered by the pattern of land ownership and development; residential and commercial properties are embedded within or in close proximity to pineland habitat (Snyder
Pesticide spraying practices by the Mosquito Control District at NKDR have changed to reduce pesticide use over the years. Since 2003 expanded larvicide treatments to surrounding islands have significantly reduced adulticide use on BPK, No Name Key, and the Torch Keys. In addition, the number of aerially applied naled treatments allowed on NKDR has been limited since 2008 (Florida Key Mosquito Control District 2012, pp. 10–11). No spray zones that include the core habitat used by pine rockland butterflies and several linear miles of pine rockland habitat within the Refuge-neighborhood interface were excluded from truck spray applications (C. Anderson, pers. comm. 2012a; Service 2012, p. 32). These exclusions and buffer zones encompass over 95 percent of extant croton distribution on Big Pine Key, and include the majority of known extant and historical Florida leafwing population centers on the island (Salvato, pers. comm. 2012). However, some areas of pine rocklands within NKDR are still sprayed with naled (aerially applied adulticide), and buffer zones remain at risk from drift; additionally, private residential areas and roadsides across Big Pine Key are treated with permethrin (ground-based applied adulticide) (Salvato 2001, p. 10). Therefore, the hairstreak and, if extant, the leafwing and their habitat on Big Pine Key may be directly or indirectly (via drift) exposed to adulticides used for mosquito control at some unknown level.
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b) we review available information pertaining to the habitat requirements of the species and identify occupied areas at the time of listing that contain the features essential to the conservation of the species. If, after identifying currently occupied areas, a determination is made that those areas are inadequate to ensure conservation of the species, in accordance with the Act and our implementing regulations at 50 CFR 424.12(e), we then consider whether designating additional areas—outside those currently occupied—are essential for the conservation of the species. As discussed above we are proposing to designate critical habitat in areas within the geographical area presently occupied by the species, i.e., occupied at the time of listing. We also are proposing to designate specific areas outside the geographical area occupied by the species at the time of listing but that were historically occupied, because such areas are essential for the conservation of the species.
Small butterfly populations with limited, fragmented distributions, such as the Florida leafwing, are highly vulnerable to localized extirpations (Schulz and Hammond 2003, pp. 1377, 1379; Frankham 2005, pp. 135–136). Historical populations of endangered south Florida butterflies such as the Miami blue (Saarinen 2009, p. 79) and Schaus swallowtail (Daniels and Minno 2012, p. 2), once linked, now are subject to the loss of genetic diversity from genetic drift, the random loss of genes, and inbreeding. In general, isolation, whether caused by geographic distance, ecological factors, or reproductive strategy, will likely prevent the influx of new genetic material and can result in a highly inbred population with low viability and, or fecundity (Chesser 1983, p. 68). Fleishman
When designating critical habitat, we consider future recovery efforts and
Only one extant Florida leafwing population remains (Salvato and Salvato 2010c, p. 139). Population estimates for the Florida leafwing are estimated to be only several hundred or fewer at any given time. Although this population occurs on conservation lands, management and law enforcement are limited. We believe it is necessary for conservation that additional populations of the Florida leafwing be established within its historical range. Therefore, we have proposed three unoccupied areas for designation as critical habitat, one on Big Pine Key within the Florida Keys, and two others on the mainland within Miami-Dade County, where the Florida leafwing was historically recorded, but has since been extirpated.
The Miami-Dade County proposed critical habitat areas are large pine rockland fragments (Navy Wells Pineland Preserve) or contiguous fragments (Richmond Pine Rocklands), which we believe provide the minimal habitat size (at least 120 ha (296 ac)) required for the subspecies to persist. The Florida leafwing was known to occur at Navy Wells Pineland Preserve within the past 25 years (Smith
The current distribution of the Florida leafwing is much reduced (90 percent) from its historical distribution. We anticipate that recovery will require continued protection of the remaining extant population and habitat, as well as establishing populations in additional areas that more closely approximate its historical distribution in order to ensure there are adequate numbers of butterflies in stable populations and that these populations occur over a wide geographic area. This will help to ensure that catastrophic events, such as storms, cannot simultaneously affect all known populations.
To determine the location and boundaries of critical habitat, the Service used the following sources of information and considerations:
(1) Historical and current records of Florida leafwing occurrence and distribution found in publications, reports, and associated voucher specimens housed at museums and private collections;
(2) Institute for Regional Conservation (IRC) and Fairchild Tropical Gardens (FTG) geographic information system (GIS) data showing the location and extent of documented occurrences of the pine rockland habitat with pineland croton;
(3) Reports prepared by ecologists, biologists, and botanists with the IRC, ENP, FTG, and Service assessing the current and historic distribution of pine rockland habitat and pineland croton. Some of these were funded by the Service; others were requested or volunteered by biologists with the Service, NPS, or IRC; and
(4) Historical records of pineland croton found in publications, reports and associated voucher specimens housed at herbaria, all of which are also referenced in the above mentioned reports from the IRC and cited publications.
The one occupied critical habitat unit was delineated around the only remaining extant Florida leafwing population. This unit includes the mapped extent of the population that contains one or more of the elements of the PBFs.
The delineation included space to allow for the successional nature of the occupied pine rockland habitat, the habitat being one of the elements of the PBFs. While suitable, at any one time, only a portion of this habitat is optimal for the Florida leafwing and the size and location of optimal areas is successional over time, being largely driven by the frequency and scale of natural or prescribed fires or other disturbances such as storms. Correspondingly the abundance and distribution of pineland croton within the pine rockland habitat varies greatly from time to time depending on habitat changes because of these events. Although prescribed burns are administered on the conservation land that retains the Florida leafwing population, fire return intervals and scope are inconsistent. As a result, areas within the pine rockland habitat supporting the subspecies may not always provide optimal habitat for the butterfly in the future as natural or prescribed burns, fire suppression or other disturbances removes or fragments hostplant distribution. Conversely, changes in hostplant distribution over time following fires or other disturbances, may allow the butterfly to return, expand, and colonize areas with shifting hostplant populations.
The delineation also included space to plan for the persistence of the current Florida leafwing population in the face of imminent effects on habitats as a result of sea level rise. Although currently occupied and containing the elements of PBFs, this area may be altered as a result of vegetation shifts or salt water intrusion, to an extent to which cannot be predicted at this time.
The Florida leafwing has been extirpated from several locations where it was previously recorded. We are proposing three critical habitat units for those that are well-documented as historically occupied and are essential to the conservation of the subspecies. As it is not always possible to identify the exact location where a specimen was collected, we used the best available descriptions to determine likely locales, but ultimately were guided by the location of remaining pine rockland habitats.
In identifying these areas we considered additional refining criteria:
(1) Areas of sufficient size to support ecosystem processes for populations of the Florida leafwing. The historical distribution of the Florida leafwing appeared limited to large pine rocklands parcels 120 ha (296 ac) or greater. For many years the leafwing persisted at Navy Wells, which has an area of 120 ha (296 ac), long after being extirpated from everywhere else in Miami-Dade County that was smaller in area. The only other leafwing populations that occurred outside of the Everglades in the past 25 years were those in the Richmond Pine Rocklands and Big Pine Key, which have approximately 900 and 1,400 acres of pine rocklands, respectively. So we believe appropriately-sized units should be at a minimum the size of the Navy Wells
(2) Areas to maintain connectivity of habitat to allow for population expansion. Isolation of habitat can prevent recolonization of the Florida leafwing and result in extinction. Because of the dangers associated with small populations or limited distributions, the recovery of many rare butterfly species includes the creation of new sites or reintroductions to ameliorate these effects.
(3) Areas once restored will allow the Florida leafwing to disperse and recolonize and in some instances, may be able to support expansion and a larger number of the subspecies either through reintroduction or expansion from areas already occupied by the butterfly. These areas generally are habitats within or adjacent to pine rocklands that have been affected by natural or anthropogenic impacts but retain areas that are still suitable for the butterfly or that could be restored. These areas would help to offset the anticipated loss and degradation of habitat occurring or expected from the effects of climate change (such as sea level rise) or due to development.
In summary, for areas within the geographic area occupied by the subspecies at the time of listing, we delineated the critical habitat unit boundaries by evaluating habitat suitability of pine rockland habitat within the geographic area occupied at the time of listing (current), and retained those areas that contain some or all of the PCEs to support life-history functions essential for conservation of the subspecies.
In summary, for areas outside the geographic area occupied by the species at the time of listing, but that are within the historical range of the species, we determined that they are essential to the survival and recovery of the species. These areas are essential for the conservation of the species because they:
(1) Provide sufficient size to support ecosystem processes for populations of the Florida leafwing;
(2) Maintain connectivity of habitat to allow for population expansion; and
(3) Once restored will allow the Florida leafwing to expand throughout its historical range.
We conclude that the areas proposed for critical habitat provide for the conservation of the Florida leafwing because they include habitat for all of the one remaining extant population. Further, the current amount of habitat that is occupied is not sufficient for the recovery of the subspecies; therefore, we included unoccupied habitat in this proposed critical habitat designation which is essential for the long-term conservation of the species.
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the PBFs in the adjacent critical habitat.
The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on
One of the four critical habitat units (FLB1) proposed for the Florida leafwing is currently designated as critical habitat under the Act for the Cape Sable seaside sparrow (
The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Florida leafwing. The four areas we propose as critical habitat are: (1) FLB1 Everglades National Park, Miami-Dade County, Florida, (2) (FLB2) Navy Wells Pineland Preserve, Miami-Dade County, Florida, (3) (FLB3) Richmond Pine Rocklands, Miami-Dade County, Florida, and (4) (FLB4) Big Pine Key, Monroe County, Florida. Land ownership within the proposed critical habitat consists of Federal (81 percent), State (4 percent), and private and other (15 percent). Table 1 shows these units by land ownership, area, and occupancy.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Florida leafwing, below.
Unit FLB1 consists of 2,313 ha (5,716 ac) in Miami-Dade County. This unit is composed entirely of lands in Federal ownership, 100 percent of which are located within the Long Pine Key region of ENP. This unit is currently occupied and contains all the PBFs, including suitable habitat (pine rockland habitat of sufficient size), hostplant presence, natural or artificial disturbance regimes, low levels of nonnative vegetation and larval parasitism, and restriction of pesticides required by the subspecies, and contains the PCE of pine rockland. The PBFs in this unit may require special management considerations or protection to address threats of fire suppression, habitat fragmentation, poaching, and sea level rise. However, in most cases these threats are being addressed or coordinated with the ENP to implement needed actions.
For instance, ENP is currently in the process of updating its fire management plan (FMP) and environmental assessment which will assess the impacts of fire on various environmental factors, including listed, proposed, and candidate species (Land, pers. comm. 2011; Sadle, pers. comm. 2013a). ENP is actively coordinating with the Service, as well as other members of the Imperiled Butterfly Working Group (IBWG) to review and adjust the prescribed burn practices outlined in the FMP to help maintain or increase Florida leafwing population sizes, protect pine rocklands, expand or restore remnant patches of hostplants, and ensure that short-term negative effects from fire (i.e., loss of hostplants, loss of eggs and larvae) can be avoided or minimized.
Unit FLB2 consists of 120 ha (296 ac) in Miami-Dade County. This unit is comprised entirely of conservation lands located within the Navy Wells Pineland Preserve which is jointly owned by Miami-Dade County (85 ha (211 ac)) and the State (35 ha (85 ac)). State lands are interspersed within Miami-Dade County Parks and Recreation Department lands which are managed for conservation. This unit is bounded on the north by SW 348 Street and on the south by SW 360 Street; on the east by State Road 9336 and on the west by the vicinity of SW 2002 Avenue.
This unit was occupied historically by the Florida leafwing. This unit is not currently occupied but is essential to the conservation of the subspecies because it serves to protect habitat needed to recover the subspecies, reestablish wild populations within the historical range of the subspecies, and maintain populations throughout the historic distribution of the subspecies in Miami-Dade County, and provides habitat for recovery in the case of stochastic events if the butterfly is extirpated from the one location where it is presently found.
Unit FLB3 consists of 359 ha (889 ac) in Miami-Dade County. This unit is comprises of lands in Federal (U.S. Coast Guard (Homeland Security) (29 ha (72 ac)), U.S. Army Corps of Engineers (Department of Defense (DoD) (8 ha (20 ac)), National Oceanic Atmospheric Administration (NOAA) (4 ha (9 ac)), Federal Bureau of Prisons (Department of Justice (DoJ) (9 ha (21 ac)), and private or other (309 ha (767 ac)) ownership. This unit is bordered on the north by Coral Reef Road and on the south by SW 168 Street; on the east by SW 117 Avenue and on the west by US1; then resumes bordered on the north by Coral Reef Road and on the south by SW 184 Street; on the east by US1 and on the west by SW 137 Avenue.
The unit was occupied historically by the Florida leafwing and includes some of the largest remaining contiguous fragments of pine rockland habitats outside of ENP. This unit is not currently occupied but is essential to the conservation of the butterfly because it serves to protect habitat needed to recover the subspecies, reestablish wild populations within the historical range of the subspecies, and maintain populations throughout the historic distribution of the subspecies in Miami-Dade County, and it provides habitat for recovery in the case of stochastic events if the butterfly is extirpated from the one location where it is presently found.
Unit FLB4 consists of 559 ha (1,382 ac) in Monroe County. This unit includes Federal lands within National Key Deer Refuge (365 ha (901 ac)), State lands (90 ha (223 ac)), and property in private or other ownership (104 ha (258 ac)). State lands are interspersed within NKDR lands and managed as part of the Refuge. The unit begins on northern Big Pine Key on the southern side of Gulf Boulevard, continues south on both sides of Key Deer Boulevard (County Road 940 (CR 940)) to the vicinity of Osprey Lane on the western side of CR 940 and Tea Lane to the east of CR 940, then resumes on both sides of CR 940 from Osprey Lane south of the vicinity of Driftwood Lane, then resumes south of Osceola Street, between Fern Avenue to the west and Baba Lane to the east, then resumes north of Watson Boulevard in the vicinity of Avenue C, then continues south on both sides of Avenue C to South Street, then resumes on both sides of CR 940 south to US 1 between Ships Way to the west and Sands Street to the east, then resumes south of US 1 from Newfound Boulevard to the west and Deer Run Trail to the east, then resumes south of US 1 from Palomino Horse Trail to the west and Industrial Road to the east.
This unit was historically occupied by the Florida leafwing. This unit is not currently occupied but is essential to the conservation of the Florida leafwing because it serves to protect habitat needed to recover the subspecies,
Bartram's scrub-hairstreak's entire lifecycle occurs within pine rockland habitat and occasionally associated rockland hammock interspersed in these pinelands. A description of these communities and associated native plant species are provided in the Status Assessment for the Florida Leafwing and Bartram's Scrub-hairstreak section in the proposed listing rule elsewhere in today's
At present, the Bartram's scrub-hairstreak is extant on Big Pine Key, within ENP, and several pineland fragments on mainland Miami-Dade County (Smith
The Bartram's scrub-hairstreak is dependent on pine rocklands that retain the butterfly's sole hostplant, pineland croton. The immature stages of this butterfly feed on the croton for development (Minno and Emmel 1993, p. 129; Worth
Immature stages of the Bartram's scrub-hairstreak occur entirely on the hostplant, pineland croton. Adult Bartram's scrub-hairstreaks prefer more open pine areas, at the edges and openings of associated rockland hammocks. The Bartram's scrub-hairstreak population on Big Pine Key may be deleteriously impacted by exposure to seasonal pesticide applications designed to control mosquitoes because of where the butterflies congregate in the vegetation. Salvato (2001, p. 13) suggested that the Bartram's scrub-hairstreak was particularly vulnerable to truck-based applications based on the fact that the subspecies commonly aggregates on low-lying shrubs occurring along frequently treated roadsides. Therefore, based on the information above, we identify the absence of pesticide in the pine rocklands, and associated rockland hammock communities or in low enough quantities that is not detrimental to the butterfly to be a PBF for this subspecies.
Bartram's scrub-hairstreak reproduction and larval development occur entirely within the pine rocklands. The butterfly has been observed during every month throughout its range; however the exact number of broods appears to be sporadic from year to year, with varying peaks in seasonal abundance (Baggett 1982, p. 81; Hennessey and Habeck 1991, pp. 17–19; Emmel
Pine rockland native vegetation includes, but is not limited to, canopy vegetation dominated by slash pine
The Bartram's scrub-hairstreak continues to occur in habitats that are protected from human-generated disturbances and are representative of the butterflies' historical, geographical, and ecological distribution, although its range has been reduced. The subspecies is still found in its representative plant communities of pine rocklands. Representative communities are located on Federal, State, local, and private conservation lands that implement conservation measures benefitting the butterfly.
Pine rockland is dependent on some degree of disturbance, most importantly from natural or prescribed fires (Loope and Dunevitz 1981, p. 5; Carlson
The Bartram's scrub-hairstreak, as with other subtropical butterflies, have adapted over time to the influence of tropical storms and other forms of adverse weather conditions (Minno and Emmel 1994, p. 671; Salvato and Salvato 2007, p. 154). Hurricanes and other significant weather events create openings in the pine rockland habitat (FNAI 2010, p. 3). However, given the substantial reduction in the historical range of the butterfly in the past 50 years, the threat and impact of tropical storms and hurricanes on their remaining populations is much greater than when their distribution was more widespread (Salvato and Salvato 2010a, p. 96; 2010c, p. 139). Therefore, based on the information above, we identify disturbance regimes natural or prescribed to mimic natural disturbances such as fire, to be a PBF for this subspecies.
The Bartram's scrub-hairstreak is dependent upon functioning pine rockland habitat to provide its fundamental life requirements, such as pineland croton for larval development, and food sources required by adult butterflies. Based on our current knowledge of the PBFs and habitat characteristics required to sustain the butterfly's life-history processes, we determine that the PCEs for the Bartram's scrub-hairstreak are:
(1) Pine rockland habitat, and in some instances, associated rockland hammocks.
(a) Pine rockland habitat contains:
(i) Open canopy, semi-open subcanopy, and understory;
(ii) Substrate of oolitic limestone rock; and
(iii) A plant community of predominately native vegetation.
(b) Rockland hammock habitat associated with the pine rocklands contains:
(i) Canopy gaps and edges with an open to semi-open canopy, subcanopy, and understory;
(ii) Substrate with a thin layer of highly organic soil covering limestone or organic matter that accumulates on top of the underlying limestone rock; and;
(iii) A plant community of predominately native vegetation.
(2) Competitive nonnative plant species in quantities low enough to have minimal effect on survival of Bartram's scrub-hairstreak butterfly.
(3) The presence of the butterfly's hostplant, pineland croton, in sufficient abundance for larval recruitment, development, and food resources, and for adult butterfly nectar source and reproduction;
(4) A dynamic natural disturbance regime or one that artificially duplicates natural ecological processes (e.g., fire, hurricanes, or other weather events) that maintains the pine rockland habitat and associated plant community.
(5) Pine rockland habitat and associated plant community that allow for connectivity and are sufficient in size to sustain viable populations of Bartram's scrub hairstreak butterfly.
(6) Pine rockland habitat with levels of pesticide low enough to have minimal effect on the survival of the butterfly or its ability to occupy the habitat.
The special management considerations or protections for the Bartram's scrub-hairstreak, and the primary threats to the PBFs on which the Bartram's scrub-hairstreak depends, are the same as those described for the Florida leafwing above, except where noted below.
In recent years, ENP has used partial and systematic prescribed burns to treat the Long Pine Key pine rocklands in their entirety over a 3-year window (NPS 2005, p. 27). These methods attempt to burn adjacent pine rockland habitats alternately. In addition, refugia (
Fire management of pine rocklands in NKDR is hampered by the pattern of land ownership and development; residential and commercial properties are embedded within or in close proximity to pineland habitat (Snyder
Pesticide spraying practices by the Mosquito Control District at NKDR have changed to reduce pesticide use over the years. Since 2003 expanded larvicide treatments to surrounding islands have significantly reduced adulticide use on BPK, No Name Key, and the Torch Keys. In addition, the number of aerially applied naled treatments allowed on NKDR has been limited since 2008 (FKMCD 2012, pp. 10–11). No spray zones that include the core habitat used by pine rockland butterflies and several linear miles of pine rockland habitat within the Refuge-neighborhood interface were excluded from truck spray applications (C. Anderson, pers. comm. 2012a; Service 2012, p. 32). These exclusions and buffer zones encompass over 95 percent of extant croton distribution on Big Pine Key, and include the majority of known extant and historical Bartram's scrub-hairstreak population centers on the island (Salvato, pers. comm. 2012). However, some areas of pine rocklands within NKDR are still sprayed with naled (aerially applied adulticide), and buffer zones remain at risk from drift; additionally, private residential areas and roadsides across Big Pine Key are treated with permethrin (ground-based applied adulticide) (Salvato 2001, p. 10). Therefore, the Bartram's scrub-hairstreak habitat on Big Pine Key is directly or indirectly (via drift) exposed to adulticides used for mosquito control at some level. Expansion of no-spray zones may aid in butterfly dispersal within the pine rocklands of Big Pine Key.
The criteria used to identify critical habitat for the Bartram's scrub-hairstreak are the same as those discussed above for the Florida leafwing, except where noted below.
We are proposing to designate critical habitat in areas within the geographical area currently occupied i.e., occupied by the species at the time of listing. We also are proposing to designate specific areas outside the geographical area occupied by the species at the time of listing that were historically occupied, but are presently unoccupied, because such areas are essential for the conservation of the species.
Isolation of habitat can prevent recolonization of Bartram's scrub-hairstreak from other sites and result in extinction. Because of the dangers associated with small populations or limited distributions, the recovery of many rare butterfly species includes the creation of new sites or reintroductions to ameliorate these effects. In addition, establishing corridors or employing small patches (stepping stones) of similar habitats have been shown to facilitate dispersal, reduce extinction rates and increase gene flow of imperiled butterflies (Schultz 1998, p. 291; Haddad 2000, pp. 739; 744; Haddad
Accordingly, realizing that the current occupied habitat is not adequate for the conservation of Bartram's scrub-hairstreak, we used habitat and historical occurrence data to identify unoccupied habitat essential for the conservation of the subspecies.
Only five extant Bartram's scrub-hairstreak populations remain within the subspecies' historical range. Total population estimates for the Bartram's
To determine the location and boundaries of critical habitat for the Bartram's scrub-hairstreak, the Service used the following information sources and considerations.
(1) Historical and current records of Bartram's scrub-hairstreak occurrence and distribution found in publications, reports and associated voucher specimens housed at museums and private collections;
(2) IRC and FTG GIS data showing the location and extent of documented occurrences of the pine rockland habitat with pineland croton;
(3) Reports prepared by ecologists, biologists, and botanists with the IRC, ENP, FTG, and Service assessing the current and historic distribution of pine rockland habitat and pineland croton; and
(4) Historical records of pineland croton found in publications, reports and associated voucher specimens housed at herbaria, all of which are also referenced in the above-mentioned reports from the IRC and cited publications.
We have identified areas to include in this proposed designation by applying the following considerations to the existing Bartram's scrub-hairstreak habitats that contain PBFs.
The occupied critical habitat units were delineated around extant populations. These units include the mapped extent of the population and supporting habitat that contained the elements of the PBFs that allow for population growth and expansion. In ENP, the distribution of the Bartram's scrub-hairstreak is across a larger area than at any other single location. Outside of ENP, units are limited to three units composed of pine rockland fragments within the current distribution of the subspecies that contain the elements of the PBFs. These units retain extant, localized Bartram's scrub-hairstreak populations. The units include only pine rocklands fragments that are at least 7 ha (18 ac) in size (which represents the minimum known extant population size) and are currently occupied. On Big Pine Key, the distribution of the Bartram's scrub-hairstreak is across all extant pine rocklands on the island that contain the elements of the PBFs.
The delineation included space to plan for the persistence of the current Bartram's scrub-hairstreak populations in the face of imminent effects on habitats as a result of sea level rise. Under the worst case scenario for sea level rise (as discussed above in
In summary, for areas within the geographic area occupied by the subspecies at the time of listing, we delineated critical habitat unit boundaries by evaluating habitat suitability of pine rockland habitat within the geographic area occupied at the time of listing (current), and retain those areas that contain some or all of the PCEs to support life-history functions essential for conservation of the subspecies.
The Bartram's scrub-hairstreak has become extirpated from several locations where it was previously recorded. We are proposing critical habitat for those areas that are well-documented historic butterfly locations (i.e., Big Pine Key, Long Pine Key, areas in Miami-Dade County) (Smith
(1) Large contiguous parcels of habitat are more likely to be resilient to ecological processes of disturbance and succession, and support viable populations of the Bartram's scrub-hairstreak. However, in Miami-Dade County, the Bartram's scrub-hairstreak is extant on parcels as small as 7 ha (18 ac), which lay adjacent to larger pine rocklands. Bartram's scrub-hairstreak populations may be able to utilize these smaller fragments while dispersing between units. Therefore, all pine rocklands fragments, at least 7 ha (18 ac) in size, that are currently unoccupied and within 5 km (3 miles) of an extant Bartram's scrub-hairstreak population within Miami-Dade County, were identified as critical habitat for the Bartram's scrub-hairstreak.
(2) Areas are needed to maintain connectivity of habitat and aid butterfly dispersal within and between occupied units (i.e. stepping stones for dispersal). These areas maintain connectivity within and between populations and allow for population expansion within the butterfly's historical range.
(3) Areas are needed to allow the dynamic ecological nature of the pine rockland habitat to continue. The abundance and distribution of pineland croton within the pine rockland habitat varies greatly throughout the range of the Bartram's scrub-hairstreak. At any one time, only a portion of this habitat is optimally suitable for the Bartram's scrub-hairstreak and the size and location of suitable areas is dynamic over time, being largely driven by the frequency and scale of natural or prescribed fires. Historically lighting-induced fires maintained native vegetation within the pine rockland ecosystem, including pineland croton. Although prescribed burns are administered on the majority of conservation lands which retain Bartram's scrub-hairstreak populations, fire return intervals and scope are inconsistent. In addition, little or no fire management occurs on private lands. Thus, areas of pine rockland that now support the subspecies, may not provide as optimal habitat in the future as fire suppression and resultant succession removes or fragments hostplant distribution. Conversely, hostplants may return or increase in areas following prescribed fires, allowing the butterflies to expand or colonize within them in the future.
In summary, we determined that the areas proposed outside the geographic area occupied by the species at the time of listing, but that are within the historical range of the species, are essential to the survival and recovery of the species. Essential areas are those that maintain pine rockland habitat and are within the historical range of the butterfly, where the butterfly has been
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the PBFs in the adjacent critical habitat.
In summary, we are proposing areas for designation of critical habitat that we have determined are occupied at the time of listing and contain sufficient elements of physical or biological features to support life-history processes essential for the conservation of the species, and lands outside of the geographical area occupied at the time of listing that we have determined are essential for the conservation of the Bartram's scrub-hairstreak butterfly.
The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on
Two of the seven units proposed for Bartram's scrub-hairstreak are currently designated as critical habitat under the Act for other species. Unit BSHB1—Everglades National Park, is currently designated as critical habitat for the Cape Sable seaside sparrow
The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Bartram's scrub-hairstreak. The seven areas we propose as critical habitat are: (1) BSHB1 Everglades National Park, Miami-Dade County, Florida, (2) BSHB2 Navy Wells Pineland Preserve, Miami-Dade County, Florida, (3) BSHB3 Camp Owaissa Bauer, Miami-Dade County, Florida, (4) BSHB4 Richmond Pine Rocklands, Miami-Dade County, Florida, (5) BSHB5 Big Pine Key, Monroe County, Florida, (6) BSHB6 No Name Key, Monroe County, Florida, and (7) BSHB7 Little Pine Key, Monroe County, Florida. Land ownership within the proposed critical habitat consists of Federal (75 percent), State (5 percent), and private and other (20 percent). Table 2 summarizes these units. Proposed critical habitat for the Florida leafwing occurs entirely within Bartram's scrub-hairstreak units BSHB1, BSHB2, BSHB4, and BSHB5.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Bartram's scrub-hairstreak, below.
Unit BSHB1 consists of 2,313 ha (5,716 ac) in Miami-Dade County. This unit is composed entirely of lands in Federal ownership, 100 percent of which are located within the Lone Pine Key region of ENP. This unit is currently occupied by the Bartram's scrub-hairstreak and contains all the PBFs, including suitable habitat (pine rockland habitat of sufficient size), hostplant presence, natural or artificial disturbance regimes, low levels of nonnative vegetation and larval parasitism, hostplant, and restriction of pesticides and contains the PCE of pine rockland. The PBFs in this unit may require special management considerations or protection to address threats of fire suppression, habitat fragmentation, poaching, and sea level rise. However, in most cases these threats are being addressed or coordinated with the NPS to implement needed actions.
ENP is currently in the process of updating its FMP and Environmental Assessment, which will assess the impacts of fire on various environmental factors, including listed, proposed, and candidate species (Land, pers. comm. 2011; Sadle, pers. comm. 2013a). ENP is actively coordinating with the Service, as well as other members of the IBWG to review and adjust the prescribed burn practices outlined in the FMP to help maintain or increase Bartram's scrub-hairstreak population sizes, protect pine rocklands, expand or restore remnant patches of hostplants and ensure that short-term negative effects from fire (i.e., loss of hostplants, loss of eggs and larvae) can be avoided or minimized.
Unit BSHB2 consists of 203 ha (502 ac) in Miami-Dade County. This unit comprises lands in State (62 ha (153 ac)) and private or other (141 ha (349 ac)) ownership. The 120-ha (296-ac) Navy Wells Pineland Preserve is jointly owned by Miami-Dade County (85 ha (211 ac)) and the State (35 ha (85 ac)). State lands are interspersed within Miami-Dade County Parks and Recreation Department lands, which are managed for conservation.
This unit begins in Homestead, Florida, on SW 304 Street, between SW 198 Avenue to SW 204 Avenue, then resumes between SW 340 Street and SW 344 Street, between SW 213 Avenue and SW 214 Avenue, then resumes between SW 344 Street and SW 360 Street on SW 209 Avenue, then resumes along SW 268 Street, between SW 202 Avenue and SW 205 Avenue, then resumes along SW 360 Street, between SW 202 Avenue and SW 188 Avenue, then resumes between SW 7 Street and SW 158 Street, in the vicinity of SW 180 Avenue, then resumes along Palm Drive and SW 3 Terrace, between SW 6 Avenue and SW 8 Avenue.
This unit is occupied by the Bartram's scrub-hairstreak and contains all the PBFs, including suitable habitat, hostplant, adult food sources, breeding sites, disturbance regimes, and restriction of pesticides and contains pine rockland and rockland hammock PCEs. The PBFs in this unit may require special management considerations or protection to address threats of fire suppression, habitat fragmentation, poaching, and sea level rise. However, in most cases these threats are being addressed or coordinated with our partners and landowners to implement needed actions.
Unit BSHB3 consists of 146 ha (359 ac) in Miami-Dade County. This unit is comprised of lands in State (29 ha (71 ac)), private or other (117 ha (288 ac)) ownership of which one large fragment (40 ha (99 ac) is owned by Miami-Dade County-Camp Owaissa Bauer). State lands are interspersed within Miami-Dade County Parks and Recreation Department lands, which are managed for conservation.
This unit begins in Homestead, Florida, on SW 147 Ave, between SW 216 Street and SW 200 Street, then resumes on both sides of SW 157 Avenue, between SW 216 Street and SW 228 Street, then resumes along SW 232 Street, between SW 142 Avenue and SW 144 Avenue, then continues south of SW 232 Street along both sides of SW 142 Ave to SW 248 Street, then resumes along SW 248 Street, south to SW 256 Street, between SW 244 Avenue and the vicinity of SW 157 Avenue, then resumes along SW 240 Street, north to the vicinity of SW 238 Street, between SW 152 Avenue and SW 147 Avenue, then resumes between of SW 264 Street and SW 272 Street, along both sides of SW 155 Avenue, then resumes along both sides of SW 264 Street in the vicinity of SW 262 Avenue.
This unit is occupied by the Bartram's scrub-hairstreak and contains all the PBFs, including suitable habitat, hostplant, adult food sources, breeding sites, disturbance regimes, and restriction of pesticides required by the subspecies and contains pine rockland and rockland hammock PCEs. The PBFs in this unit may require special management considerations or protection to address threats of fire suppression, habitat fragmentation, poaching, and sea level rise. However, in most cases these threats are being addressed or coordinated with our partners and landowners to implement needed actions.
Unit BSHB4 consists of 438 ha (1,082 ac) in Miami-Dade County. This unit comprises lands in both Federal (U. S. Coast Guard (Homeland Security) (29 ha (72 ac)), U.S. Army Corps of Engineers (DoD) (8 ha (20 ac)), National Oceanic Atmospheric Administration (NOAA) (4 ha (9 ac)), Federal Bureau of Prisons (Department of Justice (DoJ) (9 ha (21 ac)), State (32 ha (79 ac)), and private or other (356 ha (881 ac)) ownership. The unit includes some of the largest remaining contiguous fragments of pine rockland habitats outside of ENP known to be occupied by the Bartram's scrub-hairstreak.
This unit begins in Miami, Florida, at SW 120 Street, north to SW 112 Street, between SW 142 Avenue and the vicinity of SW 137 Avenue, then resumes along SW 124 Street south to SW 128 Street between SW127 Avenue and the vicinity of SW 137 Avenue, then resumes in the vicinity of SW 136 Street and SW 122 Avenue, then resumes on Coral Reef Road (State Road 992) south to SW 168 Street, between US 1 and SW 117 Avenue, then resumes from Coral Reef Road south to SW 184 Street, between US 1 and SW 137 Avenue.
This unit is currently occupied by the Bartram's scrub-hairstreak and contains all the PBFs, including suitable habitat, hostplant, adult food sources, breeding sites, disturbance regimes, and restriction of pesticides and contains pine rockland and rockland hammock PCEs. The PBFs in this unit may require special management considerations or protection to address threats of fire suppression, habitat fragmentation, poaching, and sea level rise. However, in most cases these threats are being addressed or coordinated with our partners and landowners to implement needed actions. The U.S. Army Corps of Engineers lands do not have an integrated natural resources management plan (INRMP) or other natural resource management plan.
Unit BSHB5 consists of 559 ha (1,382 ac) in Monroe County. This unit includes Federal lands within National Key Deer Refuge (NKDR) (365 ha (901 ac)), State (90 ha (223 ac)), and property in private or other (104 ha (258 ac)) ownership. State lands are interspersed within NKDR lands and managed as part of the Refuge.
The unit begins on northern Big Pine Key on the southern side of Gulf Boulevard, continues south on both sides of Key Deer Boulevard (County Road 940 (CR 940)) to the vicinity of Osprey Lane on the western side of CR 940 and Tea Lane to the east of CR 940, then resumes on both sides of CR 940 from Osprey Lane to rest south of the vicinity of Driftwood Lane, then resumes south of Osceola Street, between Fern Avenue to the west and Baba Lane to the east, then resumes north of Watson Boulevard in the vicinity of Avenue C, then continues south on both sides of Avenue C to South Street, then resumes on both sides of CR 940 south to US 1 between Ships Way to the west and Sands Street to the east, then resumes south of US 1 from Newfound Boulevard to the west and Deer Run Trail to the east, then resumes south of US 1 from Palomino Horse Trail to the west and Industrial Road to the east.
This unit is currently occupied by the Bartram's scrub-hairstreak. This unit contains three of the PBFs, including suitable habitat, hostplant, adult food sources, and breeding sites required by the subspecies, and contains pine rockland and rockland hammock PCEs. The PBFs in this unit may require special management considerations or protection to address threats of disturbance regimes (fire), and pesticide applications, as well as habitat fragmentation, poaching, and sea level rise. However, in most cases these threats are being addressed or coordinated with our partners and landowners to implement needed actions.
Unit BSHB6 consists of 50 ha (123 ac) in Monroe County. This unit includes Federal lands within National Key Deer Refuge (30 ha (75 ac)), State (9 ha (22 ac)), and property in private or other ownership (11 ha (26 ac)). State lands are interspersed within NKDR lands and managed as part of the Refuge. The unit extends from Watson Road entirely on National Key Deer Refuge lands just south of the vicinity of Spanish Channel Drive eastward to the vicinity of Paradise Drive, then resumes north of Watson Road from No Name Drive east to Paradise Lane.
This unit is not currently occupied by the Bartram's scrub-hairstreak but is essential to the conservation of the subspecies because it serves to protect habitat needed to recover the subspecies, reestablish wild populations within the historical range of the subspecies, and maintain populations throughout the historical distribution of the subspecies in the Florida Keys, and provides area for recovery in the case of stochastic events that otherwise hold the potential to eliminate the subspecies from the one or more locations where it is presently found. The Lower Key Refuges, CCP management objective number 11 provides specifically for maintaining and restoring butterfly populations of special conservation concern, including the Bartram's scrub-hairstreak.
Unit BSHB7 consists of 39 ha (97 ac) in Monroe County. This unit comprises entirely lands in Federal ownership, 100 percent of which are located within National Key Deer Refuge. This unit is not currently occupied by the Bartram's scrub-hairstreak but is essential to the conservation of the subspecies because it serves to protect habitat needed to recover the subspecies, reestablish wild populations within the historical range of the subspecies, and maintain populations throughout the historical distribution of the subspecies in the Florida Keys, and it provides area for recovery in the case of stochastic events that otherwise hold the potential to eliminate the subspecies from one or more locations where it is presently found. The Lower Key Refuges, CCP management objective number 11 provides specifically for maintaining and restoring butterfly populations of special conservation concern, including the Bartram's scrub-hairstreak.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for the Florida leafwing and Bartram's scrub-hairstreak. As discussed above, the role of critical habitat is to support life-history needs of these butterflies and provide for the conservation of these subspecies.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Florida leafwing and Bartram's scrub-hairstreak. These activities include, but are not limited to:
(1) Actions that would significantly alter the pine rockland and associated rockland hammock ecosystem. Such activities may include, but are not limited to, residential, commercial, or recreational development including associated infrastructure.
(2) Actions that would significantly alter vegetation structure or composition, such as natural fire suppression or excessive prescribed burning, clearing vegetation for construction of residential, commercial, or recreational development, and associated infrastructure.
(3) Actions that would introduce nonnative plant species that would significantly alter vegetation structure or composition. Such activities may include, but are not limited to, residential and commercial development, and associated infrastructure.
(4) Actions that would introduce nonnative arthropod species that would significantly influence the natural histories of the Florida leafwing and Bartram's scrub-hairstreak. Such activities may include release of parasitic or predator species (flies or wasps) for use in agriculture-based biological control programs.
(5) Actions that would introduce chemical pesticides into the pine rockland and associated rockland hammock ecosystem in a manner that impacts the butterflies. Such activities may include use of adulticides for control of mosquitos or agricultural-related pests.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are Department of Defense lands within the critical habitat designation area; however, none of the lands are covered by an INRMP. Accordingly, no lands that otherwise meet the definition of critical habitat are exempt under section 4(a)(3)(B)(i).
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species.
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we are preparing an analysis of economic impacts of the proposed critical habitat designation and related factors. The draft economic analysis will be made available for public comment.
During the development of a final designation, we will consider economic impacts based on information in our economic analysis, public comments, and other new information, and areas
Under section 4(b)(2) of the Act, we consider whether there are lands where a national security impact might exist. In preparing this proposal, we have determined that some lands within the proposed designation of critical habitat for the Florida leafwing and Bartram's scrub-hairstreak are owned or managed by the Department of Defense and the Department of Homeland Security. However, we anticipate no impact on national security. Consequently, the Secretary is not intending to exercise her discretion to exclude any areas from the final designation based on impacts on national security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.
In preparing this proposed rule, we have determined that there are currently no HCPs or other management plans for the Florida leafwing and Bartram's scrub-hairstreak. An HCP for Big Pine and No Name Keys in Monroe County, Florida, which was implemented in 2006, did not address the Florida leafwing and Bartram's scrub-hairstreak. However, in order to fulfill the HCP's mitigation requirements Monroe County has been actively acquiring parcels of high-quality pine rockland and placing them into conservation. These conservation actions have benefited the Florida leafwing and Bartram's scrub-hairstreak by protecting habitat. However, we anticipate no impact on the HCP from this proposed critical habitat designation. Furthermore, the proposed designation does not include any tribal lands or additional trust resources so we anticipate no impact on tribal lands or partnerships from this proposed critical habitat designation. Accordingly, the Secretary does not intend to exercise his discretion to exclude any areas from the final designation based on other relevant impacts.
In accordance with our joint policy on peer review published in the
We will consider all comments and information received during this comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include such businesses as manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and forestry and logging operations with fewer than 500 employees and annual business less than $7 million. To determine whether small entities may be affected, we will consider the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
Importantly, the incremental impacts of a rule must be
Under the RFA, as amended, and following recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking only on those
We acknowledge, however, that in some cases, third-party proponents of the action subject to permitting or funding may participate in a section 7 consultation, and thus may be indirectly affected. We believe it is good policy to assess these impacts if we have sufficient data before us to complete the necessary analysis, whether or not this analysis is strictly required by the RFA. While this regulation does not directly regulate these entities, in our draft economic analysis we will conduct a brief evaluation of the potential number of third parties participating in consultations on an annual basis in order to ensure a more complete examination of the incremental effects of this proposed rule in the context of the RFA.
In conclusion, we believe that, based on our interpretation of directly regulated entities under the RFA and relevant case law, this designation of critical habitat will only directly regulate Federal agencies which are not by definition small business entities. And as such, we certify that, if promulgated, this designation of critical habitat would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. However, though not necessarily required by the RFA, in our draft economic analysis for this proposal we will consider and evaluate the potential effects to third parties that may be involved with consultations with Federal action agencies related to this action.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect the designation of this proposed critical habitat 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. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)–(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We lack the available economic information to determine if a Small Government Agency Plan is required. Therefore, we defer this finding until completion of the draft economic analysis is prepared under section 4(b)(2) of the Act.
In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), this rule is not anticipated to have significant takings implications. As discussed above, the designation of critical habitat affects only Federal actions. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. Due to current public knowledge of the species protections and the prohibition against take of the species both within and outside of the proposed areas we do not anticipate that property values will be affected by the critical habitat designation. However, we have not yet completed the economic analysis for this proposed rule. Once the economic analysis is available, we will review and revise this preliminary assessment as warranted, and prepare a Takings Implication Assessment.
In accordance with Executive Order 13132 (Federalism), this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in Florida. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these governments no longer have to wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the species. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to 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.
We determined that there are no tribal lands that are currently occupied by the Florida leafwing and Bartram's scrub-hairstreak that contain the features essential for conservation of these subspecies, and no tribal lands unoccupied by the Florida leafwing and Bartram's scrub-hairstreak that are essential for the conservation of these subspecies. Therefore, we are not proposing to designate critical habitat for the Florida leafwing and Bartram's scrub-hairstreak on tribal lands.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
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 South Florida Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to 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.
(i)
(1) Critical habitat units are depicted for Miami-Dade and Monroe Counties, Florida, on the maps below.
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Bartram's scrub-hairstreak are:
(i) Areas of pine rockland habitat, and in some instances, associated rockland hammocks.
(A) Pine rockland habitat contains:
(B) Rockland hammock habitat associated with the pine rocklands contains:
(ii) Competitive nonnative plant species in quantities low enough to have minimal effect on survival of Bartram's scrub-hairstreak butterfly.
(iii) The presence of the butterfly's hostplant, pineland croton, in sufficient abundance for larval recruitment, development, and food resources, and for adult butterfly nectar source and reproduction;
(iv) A dynamic natural disturbance regime or one that artificially duplicates natural ecological processes (e.g. fire, hurricanes or other weather events) that maintains the pine rockland habitat and associated plant community.
(v) Pine rockland habitat and associated plant community that allow for connectivity and are sufficient in size to sustain viable populations of Bartram's scrub hairstreak butterfly.
(vi) Pine rockland habitat with levels of pesticide low enough to have minimal effect on the survival of the butterfly or its ability to occupy the habitat.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(4)
(5)
(6)
(i) General description: Unit BSHB1 consists of 2,313 ha (5,716 ac) in Miami-Dade County and is composed entirely of lands in Federal ownership, 100 percent of which are located within the Long Pine Key region of Everglades National Park.
(ii) Index map of Unit BSHB1 follows:
(A) Map A of Unit BSHB1: Everglades National Park, Miami-Dade County, Florida follows:
(B) Map B of Unit BSHB1: Everglades National Park, Miami-Dade County, Florida follows:
(C) Map C of Unit BSHB1: Everglades National Park, Miami-Dade County, Florida follows:
(7) Unit BSHB2: Navy Wells Pineland Preserve, Miami-Dade County, Florida.
(i) General description: Unit BSHB2 consists of 203 ha (502 ac) in Miami-Dade County and is composed of lands in State (62 ha (153 ac)), and private or other ownership (141 ha (349 ac)) including the County and State-owned Navy Wells Pineland Preserve.
(ii) Map of Unit BSHB2 follows:
(8) Unit BSHB3: Camp Owaissa Bauer, Miami-Dade County, Florida.
(i) General Description: Unit BSHB3 consists of 146 ha (9359 ac)) in Miami-Dade County and is comprised of lands in State (29 ha (71 ac)), private or other ownership (117 ha (288 ac)) including 40 ha (99 ac) Miami-Dade County-owned Camp Owaissa Bauer.
(ii) Map of Unit BSHB3 follows:
(9) Unit BSHB4: Richmond Pine Rocklands, Miami-Dade County, Florida.
(i) General Description: Unit BSHB4 consists of 438 ha (1,082 ac) in Miami-Dade County and is composed of lands in Federal (U.S. Coast Guard, U.S. Army Corps of Engineers, Federal Bureau of Prisons, and National Oceanic and Atmospheric Administration (50 ha (122 ac)), State (32 ha (79 ac)) and private or other (356 ha (881 ac)) ownership.
(ii) Index map of Unit BSHB4 follows:
(A) Map A of Unit BSHB4: Richmond Pine Rocklands, Miami-Dade County, Florida follows:
(B) Map B of Unit BSHB4: Richmond Pine Rocklands, Miami-Dade County, Florida follows:
(10) Unit BSHB5: Big Pine Key, Monroe County, Florida.
(i) General description: Unit BSHB5 consists of 559 ha (1,382 ac) in Monroe County and is composed of lands in National Key Deer Refuge (365 ha (901 ac)), State ownership (90 ha (223 ac)), and private or other ownership (104 ha (258 ac)). State lands are interspersed within NKDR lands and managed as part of the Refuge.
(ii) Index Map of Unit BSHB5: follows:
(A) Map A of Unit BSHB5: Big Pine Key, Monroe County, Florida follows:
(B) Map B of Unit BSHB5: Big Pine Key, Monroe County, Florida follows:
(11) Unit BSHB6: No Name Key, Monroe County, Florida.
(i) General Description: Unit BSHB6 consists of 50 ha (123 ac) in Monroe County and is composed of lands in National Key Deer Refuge (30 ha (75 ac)), State ownership (9 ha (22 ac)), and private or other ownership (11 ha (26 ac)). State lands are interspersed within NKDR lands and managed as part of the Refuge.
(ii) Map of Unit BSHB6: No Name Key, Monroe County, Florida follows:
(12) Unit BSHB 7: Little Pine Key, Monroe County, Florida.
(i) General Description: Unit BSHB7 consists of 39 ha (97 ac) in Monroe County. This unit is composed entirely of lands in Federal ownership, 100 percent of which are located within National Key Deer Refuge.
(ii) Map of Unit BSHB7: Little Pine Key, Monroe County, Florida follows:
(1) Critical habitat units are depicted for Miami-Dade and Monroe Counties, Florida, on the maps below.
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Florida leafwing butterfly consist of six components:
(i) Areas of pine rockland habitat, and in some locations, associated rockland hammocks.
(A) Pine rockland habitat contains:
(B) Rockland hammock habitat associated with the pine rocklands contains:
(ii) Competitive nonnative plant species in quantities low enough to have minimal effect on survival of the Florida leafwing.
(iii) The presence of the butterfly's hostplant, pineland croton, in sufficient abundance for larval recruitment, development, and food resources and for adult butterfly roosting habitat and reproduction.
(iv) A dynamic natural disturbance regime or one that artificially duplicates natural ecological processes (e.g. fire, hurricanes or other weather events, at 3- to 5-year intervals) that maintains the pine rockland habitat and associated plant community.
(v) Pine rockland habitat and associated plant community sufficient
(vi) Pine rockland habitat with levels of pesticide low enough to have minimal effect on the survival of the butterfly or its ability to occupy the habitat.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(4)
(5)
(6) Unit FLB1: Everglades National Park, Miami-Dade County, Florida.
(i) General Description: Unit FLB1 consists of 2,313 ha (5,716 ac) composed entirely of lands in Federal ownership, 100 percent of which are located within the Long Pine Key region of Everglades National Park.
(ii) Index map of Unit FLB1 follows:
(A) Map A of Unit FLB1: Everglades National Park, Miami-Dade County, Florida, follows:
(B) Map B of Unit FLB1: Everglades National Park, Miami-Dade County, Florida, follows:
(C) Map C of Unit FLB1: Everglades National Park, Miami-Dade County, Florida, follows:
(7) Unit FLB2: Navy Wells Pineland Preserve, Miami-Dade County, Florida.
(i) General description: Unit FLB2 consists of 120 ha (296 ac) in Miami-Dade County composed entirely of lands in Miami-Dade County ownership, 100 percent of which are located within the Navy Wells Pineland Preserve.
(ii) Index map of Unit FLB2 follows:
(8) Unit FLB3: Richmond Pine Rocklands, Miami-Dade County, Florida.
(i) General Description: Unit FLB3 consists of 359 ha (889 ac) in Miami-Dade County composed of lands in Federal (U.S. Coast Guard, U.S. Army Corps of Engineers, Federal Bureau of Prisons, and National Oceanic and Atmospheric Administration) (50 ha (122 ac)) and private or other (309 ha (767 ac)) ownership.
(ii) Index map of Unit FLB3 follows:
(9) Unit FLB4: Big Pine Key, Monroe County, Florida.
(i) General Description: Unit FLB4 consists of 559 ha (1,382 ac) in Monroe County composed of National Key Deer Refuge (365 ha (901 ac)), State lands (90 ha (223 ac)), and property in private or other ownership (104 ha (258 ac)). State lands are interspersed within NKDR lands and managed as part of the Refuge.
(ii) Index map of Unit FLB4 follows:
(A)
(B)
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (USFWS), propose to list the Florida leafwing (
We will accept comments received or postmarked on or before October 15, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all information received on
Larry Williams, Field Supervisor, U.S. Fish and Wildlife Service, South Florida Ecological Services Office, 1339 20th Street, Vero Beach, FL 32960, by telephone 772–562–3909, or by facsimile 772–562–4288. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339.
We have determined the threats to both subspecies fall under all five factors, and consist of a lack of adequate fire management, small population size, isolation from habitat loss and fragmentation, loss of genetic diversity, inadequate regulatory mechanisms, pesticide applications, poaching, hurricanes and storm surge, and sea level rise.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) Both species' biology, range, and population trends, including:
(a) Habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, their habitat, or both.
(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act, which are:
(a) The present or threatened destruction, modification, or curtailment of their 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 their continued existence.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and regulations that may be addressing those threats; including the use and effects of pesticides to control mosquitos and other insects considered pests.
(4) The use of prescribed fire or other management tools to simulate historical natural disturbances to restore or maintain the species habitat.
(5) Additional information concerning the historical and current status, range, distribution, and population size of these species, including the locations of any additional populations of these species.
(6) Current or planned activities in the areas occupied by these species and possible impacts of these activities on these species.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
The Florida leafwing and Bartram's scrub-hairstreak (previously known as the Bartram's hairstreak) butterflies have the same history of being candidates for listing under the Act. Both butterflies were first recognized as candidates on May 22, 1984 (49 FR 21664). We assigned both species a listing priority number (LPN) of 2. Candidate species are assigned LPNs based on immediacy and magnitude of threats, as well as taxonomic status. The lower the LPN, the higher priority that species is for us to determine appropriate action using our available resources (September 21, 1983; 48 FR 43100). Category 2 species were defined as species for which we had information that proposed listing was possibly appropriate, but conclusive data on biological vulnerability and threats were not available to support a proposed rule at the time. Both species remained on the candidate list, as published in what is now known as the Candidate Notice of Review (CNOR), as category 2 species until 1994 (January 6, 1989, 54 FR 572; November 21, 1991, 56 FR 58830). Both species were removed from the candidate list from 1996 to 2005 because we did not have sufficient information on the species' biological vulnerability and threats to support issuance of a proposed rule. Both species were added to the candidate list in the 2006 CNOR and assigned an LPN of 3 (September 12, 2006, 71 FR 53760). An LPN of 3 meant that the magnitude of threats remained high and immediate with recognition of their taxonomic status as subspecies. Both species remained on the candidate list as published in the CNORs from 2007 to 2012 with the LPN of 3 (72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 578040, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; and November 21, 2012, 77 FR 69994).
On May 10, 2011, the Service announced a work plan to restore biological priorities and certainty to the Service's listing process. As part of an agreement with one of the agency's most frequent plaintiffs, the Service filed a work plan with the U.S. District Court for the District of Columbia. The work plan will enable the agency to, over a period of 6 years, systematically review and address the needs of more than 250 species listed within the 2010 Candidate Notice of Review, including the Florida leafwing and Bartram's scrub-hairstreak, to determine if these species should be added to the Federal Lists of Endangered and Threatened Wildlife and Plants. This work plan will enable the Service to again prioritize its workload based on the needs of candidate species, while also providing State wildlife agencies, stakeholders, and other partners clarity and certainty about when listing determinations will be made. On July 12, 2011, the Service reached an agreement with a frequent plaintiff group and further strengthened the workplan, which will allow the agency to focus its resources on the species most in need of protection under the Act. These agreements were approved on September 9, 2011. The timing of this proposed listing is, in part, therefore, an outcome of the workplan.
The Service's decision to propose listing of the Florida leafwing and Bartram's scrub-hairstreak resulted from our careful review of the status of these butterflies and assessments of their threats.
Elsewhere in today's
The Florida leafwing butterfly is a medium-sized butterfly approximately 76 to 78 millimeters (mm) (2.75 to 3.00 inches (in)) in length with a forewing length of 34 to 38 mm (1.3 to 1.5 in) and an appearance characteristic of its genus (Comstock 1961, p. 44; Pyle 1981, p. 651; Opler and Krizek 1984, p. 172; Minno and Emmel 1993, p. 153). The upper-wing (or open wing) surface color is red to red-brown. The underside (closed wings) is gray to tan, with a tapered outline, cryptically looking like a dead leaf or the bark of slash pine trees (
The Florida leafwing has only one known hostplant, the pineland croton (
The Florida leafwing butterfly (
The Integrated Taxonomic Information System (ITIS) (2013, p. 1) uses the name
Numerous authors have observed and documented the behavior and natural history of the Florida leafwing (Lenczewski 1980, p. 17; Pyle 1981, p. 651; Baggett 1982, pp. 78–79; Opler and Krizek 1984, p. 172; Schwartz 1987, p. 22; Hennessey and Habeck 1991, pp. 13–17; Smith
Eggs are spherical and light cream-yellow in color (Worth
Adult Florida leafwings will feed on tree sap, take minerals from mud, and occasionally visit flowers. Adults have also been observed feeding on rotting fruit and dung (Baggett 1982, p. 78; Opler and Krizek 1984, p. 172; Minno and Emmel 1993, p. 153), senescent (older) flowers of saw palmetto (
The Bartram's scrub-hairstreak is a small butterfly approximately 25 mm (1 in) in length with a forewing length of 10.0 to 12.5 mm (0.4 to 0.5 in) and has an appearance (
Eggs are laid singly on the flowering racemes of pineland croton (Worth
The Bartram's scrub-hairstreak butterfly (
The ITIS (2013, p. 1) uses the name
The Bartram's scrub-hairstreak is a sedentary butterfly rarely encountered more than 5 m (16.4 ft) from its host plant (Schwartz 1987, p. 16; Worth
The Bartram's scrub-hairstreak is most often observed visiting pineland croton flowers for nectar, but has also been observed using the flowers of other species, including: Pine acacia (
The Bartram's scrub-hairstreak has been observed during every month on Big Pine Key and ENP; however, the exact number of broods appears to vary sporadically from year to year (Salvato and Hennessey 2004, p. 226; Salvato and Salvato 2010b, p. 156). Baggett (1982, p. 81) indicated that the Bartram's scrub-hairstreak seemed most abundant October–December. Salvato and Salvato (2010b, p. 156) encountered the butterfly most often during March through June within ENP. Land (pers. comm. 2012b) has noted the butterfly to be most abundant in the spring and summer months. One of the earliest reports of
The Florida leafwing and Bartram's scrub-hairstreak occur only within pine rocklands, specifically those that retain their mutual and sole hostplant, pineland croton. Adult butterflies will also make use of rockland hammock vegetation when interspersed within the pine rockland habitat.
Pine rockland is characterized by an open canopy of South Florida slash pine (
Pine rockland has an open canopy of South Florida slash pine, generally with multiple age classes. The diverse, open shrub and subcanopy layer is composed of more than 100 species of palms and hardwoods (FNAI 2010a, p. 1), most derived from the tropical flora of the West Indies (FNAI 2010a, p. 1). Many of these species vary in height depending on fire frequency, getting taller with time since fire. These include saw palmetto (
Grasses, forbs, and ferns make up a diverse herbaceous layer ranging from mostly continuous in areas with more soil development and little exposed rock to sparse where more extensive outcroppings of rock occur. Typical herbaceous species include bluestems (
Pine rockland occurs on relatively flat, moderately to well drained terrain from 2 to 7 m (6.5 to 23 ft) above sea level (FNAI 2010a, p. 2). The oolitic limestone is at or very near the surface, and there is very little soil development. Soils are generally composed of small accumulations of nutrient-poor sand, marl, clayey loam, and organic debris in depressions and crevices in the rock surface. Organic acids occasionally dissolve the surface limestone causing collapsed depressions in the surface rock called solution holes (FNAI 2010a, p. 1). Drainage varies according to the porosity of the limestone substrate, but is generally rapid. Consequently, most sites are wet for only short periods following heavy rains. During the rainy season, however, some sites may be
Pine rockland is maintained by regular fire, and susceptible to other natural disturbances such as hurricanes, frost events, and sea-level rise (Ross
Presently, prescribed fire must be periodically introduced into pine rocklands to sustain community structure, prevent invasion by woody species, maintain high herbaceous diversity (Loope and Dunevitz 1981, pp. 5–6; FNAI 2010a, p. 3), and prevent succession to rockland hammock. The amount of woody understory growth is directly related to the length of time since the last fire. Herbaceous diversity declines with time since last fire. The ecotone between pine rockland and rockland hammock is abrupt when regular fire is present in the system. However when fire is removed, the ecotone becomes more gradual and subtle as hammock hardwoods encroach into the pineland (FNAI 2010a, p. 3).
Rockland hammock is a species-rich tropical hardwood forest on upland sites in areas where limestone is very near the surface and often exposed. The forest floor is largely covered by leaf litter with varying amounts of exposed limestone and has few herbaceous species. Rockland hammocks typically have larger, more mature trees in the interior, while the margins can be almost impenetrable in places with dense growth of smaller shrubs, trees, and vines. Typical canopy and subcanopy species include,
Mature hammocks can be open beneath a tall well-defined canopy and subcanopy. More commonly, in less mature or disturbed hammocks, dense woody vegetation of varying heights from canopy to short shrubs is often present. Species that generally make up the shrub layers within rockland hammock include several species of
Rockland hammock occurs on a thin layer of highly organic soil covering limestone on high ground that does not regularly flood, but it is often dependent upon a high water table to keep humidity levels high. Rockland hammocks are frequently located near wetlands; in the Everglades they can occur on organic matter that accumulates on top of the underlying limestone; in the Florida Keys they occur inland from tidal flats (FNAI 2010b, p. 1).
Rockland hammock is susceptible to fire, frost, canopy disruption, and ground water reduction. Rockland hammock can be the advanced successional stage of pine rockland, especially in cases where rockland hammock is adjacent to pine rockland. In such cases, when fire is excluded from pine rockland for 15 to 25 years it can succeed to rockland hammock vegetation. Historically, rockland hammocks in South Florida evolved with fire in the landscape, fire most often extinguished near the edges when it encountered the hammock's moist microclimate and litter layer. However, rockland hammocks are susceptible to damage from fire during extreme drought or when the water table is lowered. In these cases fire can cause tree mortality and consume the organic soil layer (FNAI 2010b, p. 2).
The lifecycle of both butterflies occur in the pine rocklands, and in some instances associated rockland hammock vegetation interspersed within this habitat. Adult leafwings prefer the transitional zones between pineland and hammock and will disperse and roost within the pine rockland canopy and associated rockland hammock vegetation (Minno, pers. comm. 2009; Salvato and Salvato 2008, p. 246; 2010a, p. 96). The leafwing, with its strong flight abilities, can disperse to make use of available habitat throughout pine rockland and associated rockland hammock habitat in ENP. Leafwing dispersed similarly into these habitats on Big Pine Key until it was extirpated. The hairstreak prefers more open pine rocklands and is more sedentary than the leafwing with adults rarely encountered more than 5 m (16 ft) from the hostplant.
The Florida leafwing and Bartram's scrub-hairstreak are endemic to south Florida including the lower Florida Keys. The butterflies were locally common within pine rockland habitat that once occurred within Miami-Dade and Monroe Counties and were less common and sporadic within croton-bearing pinelands in Collier, Martin (leafwing only), Palm Beach, and Broward Counties (Comstock and Huntington 1943, p. 65; Kimball 1965, pp. 45–46; Baggett 1982, p. 78; Smith
There is little evidence that these butterflies ventured further north than southern Miami-Dade County to make use of localized, relict populations of hostplants that still persist as far north as Martin County (Salvato 1999, p. 117; Salvato and Hennessey 2003, p. 243; 2004, p. 223). Although these butterflies were widely reported from several locations in southern Miami until the mid-20th century (Smith
Populations of Florida leafwing and Bartram's scrub-hairstreak have become increasingly localized as pine rockland habitat has been lost or altered through anthropogenic activity (Lenczewski 1980, p. 43; Baggett 1982, p. 78; Hennessey and Habeck 1991, p. 4; Schwarz
In Miami-Dade County, outside of ENP, approximately 375 pine rockland habitat fragments remain totaling approximately 1,780 ha (4,398 ac) in 1999 (Service 1999, p. 173). Several of these fragments, particularly those adjacent to ENP, such as Navy Wells and Richmond Pine Rocklands (a mixture of publically and privately owned lands), maintain localized populations of pineland croton as well as small or sporadic occurrences of Bartram's scrub-hairstreak (Salvato 1999, p. 123; Salvato and Hennessey 2004, p. 223; Salvato and Salvato 2010b, p. 154). However, Salvato and Hennessey (2003, p. 243) and Salvato (pers. comm. 2008) have generally failed to observe the Florida leafwing in these or other relict (surviving remnant) pine rockland areas outside ENP. During June 2007, one adult leafwing was observed within Navy Wells (Salvato, pers. comm. 2008); however, no evidence of larval activity was encountered suggesting this observation was a stray occurrence. In addition, no leafwing have been recorded outside of ENP since that time.
Breeding Florida leafwing populations have not been documented in pine rockland fragments adjacent to ENP for the past 25 years. The smallest of the former breeding populations was Navy Wells Pineland Preserve (Navy Wells) (owned and managed by Miami-Dade County), which is approximately 120 ha (296 ac) in size. The hairstreak retains breeding populations on Big Pine Key, on Long Pine Key in ENP, and within a number of pine rockland fragments adjacent to ENP, the smallest of which is approximately 7 ha (18 ac) in size. It is possible that leafwings require relatively larger patches of croton-bearing pine rockland habitat to persist than do hairstreaks. Although larger patches of habitat may be more suitable for these butterflies, the relationship between habitat patch size and suitability is not completely understood.
A geographic information system (GIS) analysis conducted by the Service using data collected by The Institute for Regional Conservation (IRC) in 2004 indicates that 65 pine rockland fragments (of various sizes but at least 1 hectare) containing pineland croton remain in private ownership in Miami-Dade County totaling approximately 190 ha (470 ac) (IRC 2006, page numbers not applicable). Another 12 fragments totaling 180 ha (446 ac) contain the croton and are in public ownership (IRC 2006, page numbers not applicable). In 2012, the Service funded Fairchild Tropical Botanic Gardens (FTBG) to conduct extensive surveys of Miami-Dade pine rockland fragments in order to determine current pineland croton abundance and distribution. Initial results from these surveys are expected in 2013.
In the lower Florida Keys, Big Pine Key retains the largest undisturbed tracts of pine rockland habitat totaling an estimated 560 ha (1,382 ac) (Zhang
Based on results of all historical (Baggett 1982, p. 78; Schwartz 1987, p. 22; Hennessey and Habeck 1991, p. 17; Worth
Surveys by Salvato and Salvato (2010c, pp. 139–140) indicate the average number of adult Florida leafwings recorded annually on Big Pine Key declined from a high of 11 per ha (4.4 per ac) in 1999 to 0 from late 2006 onward, based on monthly (1999 to 2006) or quarterly (2007 to 2012) surveys. Similar studies in Long Pine Key indicated that the average number of leafwings recorded annually ranged from a high of 22.5 per ha (9 per ac) (1999) to 1.5 per ha (0.6 per ac) (2005), based on monthly surveys conducted from 1999 through 2008 (Salvato and Salvato 2010a, p. 93).
Ongoing surveys conducted by Salvato (pers. comm. 2012) from 2009 to 2012 have recorded an average abundance of 2.6 adult Florida leafwings per ha (1 per ac), in Long Pine Key in ENP. In addition, Salvato and Salvato (2010a, p. 96) and Salvato (pers. comm. 2012) have encountered leafwing populations elsewhere within Long Pine Key as well as adjacent habitats within ENP (Palma Vista Hammock and several former agricultural and military lands) during 2005 to 2012. ENP staff also monitors leafwing larval densities at several transects within Long Pine Key monthly as part of studies on the recovery time of pineland croton in response to prescribed burns (Land, pers. comm. 2012a). Ongoing surveys conducted by ENP staff from 2005 to present have encountered approximately 34 and 216 leafwing adults and larvae, respectively, throughout Long Pine Key (Land, pers. comm. 2012a; Sadle, pers. comm. 2013b).
No leafwings have been documented on Big Pine Key in the Florida Keys since 2006 (Salvato and Salvato 2010c, p. 139). On the mainland, Salvato (pers. comm. 2012) has found that the extant leafwing population within ENP is maintained at several hundred or fewer, although it varies greatly depending upon season and other factors. However, Minno (pers. comm. 2009) estimated the extant leafwing population size at less than 100 at any given period.
In ENP, the butterfly is most often encountered from late fall through spring, and less abundantly during the summer (Salvato and Salvato 2010a, p. 95; Land, pers. comm. 2012b). However, the leafwing appeared to maintain a consistent year-round phenology (reproductive life cycle) when it occurred on Big Pine Key (Salvato and Salvato 2010a, p. 95; 2010c, p. 140), with a slight peak in abundance during the summer. Ongoing natural history studies of the leafwing by Salvato and Salvato (Salvato, pers. comm. 2012) designed to evaluate mortality factors amongst the butterfly's immature stages have identified a suite of predators, parasitoids, and pathogens that may substantially influence annual variability.
Based on the results of historic (Baggett 1982, p. 80; Schwartz 1987, p. 16; Hennessey and Habeck 1991, pp. 117–119; Smith
Ongoing surveys by Salvato and Salvato (unpublished data) indicate the average number of adult Bartram's scrub-hairstreaks recorded annually on Big Pine Key has declined considerably, from a high of 19.3 per ha (7.7 per ac) in 1999 to a low of less than 1 per ha (0.3 per ac) in 2011, based on monthly (1999–2006) or quarterly (2007 to 2012) surveys. Minno and Minno (2009, p. 76) recorded an average of 35 adults annually on Big Pine Key during
In order to more frequently survey hairstreak populations within NKDR, the Service, from 2010 to 2012, has implemented a standardized monitoring method to monitor the butterfly at three core pine rockland locations across Big Pine Key (C. Anderson, pers. comm. 2012a). Since that time, the mean monthly count across sites has ranged from 0.0 to 2.8 (with a standard error of ± 0.33) adult hairstreaks per ha (C. Anderson, pers. comm. 2012a). The maximum adult counts were 15 and 8 adults per ha for 2010 and 2011, respectively; however, the means were not significantly different between years (C. Anderson, pers. comm. 2012a). These densities are much higher than those encountered by Salvato and Salvato (unpublished data) in 2010 and 2011; this disparity may be due to the fact that NKDR has established survey transects at locations with more optimal hostplant abundance, where the latter studies continue to monitor long-term transects (15 to 25 years) that were historic strongholds for the butterfly, but have since become degraded. In other words, NKDR is monitoring at what may be current strongholds, while Salvato and Salvato are documenting the butterfly's status at former strongholds. Since early 2012, North Carolina State University personnel have collaborated with the Service to access detection probabilities, estimate abundances, and measure vegetation characteristics associated with butterfly populations on NKDR.
Due in large part to the benefits of an effective and systematic burn plan in ENP, Salvato and Salvato (2010b, p. 159) and Salvato (pers. comm. 2012) have encountered as many as 6.3 adult Bartram's scrub-hairstreaks per ha (2.5 per acre) annually from 1999 to 2012, based on monthly surveys in Long Pine Key. In addition, Salvato and Salvato (2010b, p. 156) and Salvato (pers. comm. 2012) have also monitored populations of the Bartram's scrub-hairstreak elsewhere within Long Pine Key during 2005–2012 and encountered similar densities. Ongoing surveys conducted by ENP staff from 2005 to present have encountered a total of approximately 24 and 30 hairstreak adults and larvae, respectively, throughout Long Pine Key (Land, pers. comm. 2012a; Sadle, pers. comm. 2013b).
Additional pine rockland fragments within Miami-Dade County that are known to maintain small, localized populations of pineland croton and sporadic occurrences of Bartram's scrub-hairstreak, based on limited survey work, include: Navy Wells (120 ha (297 acres)), Camp Owaissa Bauer (39 ha (99 ac)) (owned and managed by Miami-Dade County), and several parcels within the Richmond Pine Rocklands, including: Larry and Penny Thompson Memorial Park (109 ha (270 ac)), Miami Metro Zoo Preserve (300 ha (740 ac)), Martinez Pineland Park (53 ha (132 ac)), and Coast Guard lands in Homestead (29 ha (72 ac)) (Minno and Minno 2009, pp. 70–76; J. Possley, FTBG, pers. comm. 2010).
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on any of the following five factors: (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.
The Florida leafwing and Bartram's scrub-hairstreak have experienced substantial destruction, modification, and curtailment of their habitat and range (see Status Assessment section). The pine rockland community of south Florida, on which both butterflies and their hostplant depend, is critically imperiled globally (FNAI 2012, p. 27). Destruction of the pinelands for economic development has reduced this habitat community by 90 percent on mainland south Florida (O'Brien 1998, p. 208). All known mainland populations of the Florida leafwing and Bartram's scrub-hairstreak occur on publicly or privately owned lands that are managed for conservation (table 3). However, any unknown extant populations of these butterflies or suitable habitat that may occur on private land or nonconservation public land, such as within the Richmond Pine Rocklands, are vulnerable to habitat loss.
Similarly, most of the ecosystems on the Florida Keys have been impacted by humans, through widespread clearing of habitat in the 19th century for farming, or building of homes and businesses; extensive areas of pine rocklands have been lost (Hodges and Bradley 2006, p. 6). Overall, the human population in Monroe County is expected to increase from 79,589 to more than 92,287 people by 2060 (Zwick and Carr 2006, p. 21). All vacant land in the Florida Keys is projected to be developed by then, including lands currently inaccessible for development, such as islands not attached to the Overseas Highway (US 1) (Zwick and Carr 2006, p. 14). However, during 2006, Monroe County implemented a Habitat Conservation Plan (HCP) for Big Pine and No Name Keys. Subsequently, development on these islands has to meet the requirements of the HCP with the resulting pace of development changed accordingly. Furthermore, in order to fulfill the HCP's mitigation requirements, the County has been actively acquiring parcels of high-quality pine rockland, such as The Nature Conservancy's 20-acre Terrestris Tract on Big Pine Key, and managing them for conservation. However, land development pressure and habitat losses may resume when the HCP expires in 2023. If the HCP is not renewed, residential or commercial development could increase to pre-HCP levels. Consequently, remaining suitable habitat for Bartram's scrub-hairstreak and potential habitat for the Florida leafwing could be at significant risk to habitat loss and modification. Further losses will seriously affect the hairstreak's ability to persist in the wild and decrease the possibility of recovery or recolonization by the leafwing.
The threat of habitat destruction or modification is further exacerbated by a lack of adequate fire management (Salvato and Salvato 2010a, p. 91; 2010b, p. 154; 2010c, p. 139). Historically, lightning-induced fires were a vital component in maintaining native vegetation within the pine rockland ecosystem, including pineland croton (Loope and Dunevitz 1981, p. 5; Slocum
Prescribed fire is used throughout the pine rocklands of Long Pine Key (ENP) and has been consistently used for the past 50 years (Loope and Dunevitz 1981, p. 5; Salvato and Salvato 2010b, p. 154). Little is known about the fire history in ENP prior to 1947, and initially fires were suppressed (Slocum
Cyclic and alternating treatment of burn units may have benefited the Florida leafwing throughout Long Pine Key (Salvato and Salvato 2010a, pp. 91–97). The leafwing, with its strong flight abilities, can disperse to make use of adjacent patches of hostplant and then quickly recolonize burned areas following hostplant resurgence (Salvato 1999, p. 5; 2003, p. 53; Salvato and Salvato 2010a, p. 95). Salvato and Salvato (2010a, p. 95) encountered similar adult leafwing densities pre- and postburn throughout their 10-year study within Long Pine Key, suggesting the leafwing can quickly recolonize pine rocklands following a fire. Surveys conducted shortly after burns often found adult leafwings actively exploring the recently burned locations in search of new hostplant growth (Land, pers. comm. 2009; Salvato and Salvato 2008, p. 326; 2010a, p. 95). In most instances croton returned to the burned parts of Long Pine Key within 1 to 3 months postburn; however, it may take up to 6 months before the leafwing will use the new growth for oviposition (Lenczewski 1980, p. 35; Land, pers. comm. 2009; Salvato and Salvato 2010a, p. 95). Land (pers. comm. 2009) indicated that 96 percent of pineland croton burned during prescribed fires on Long Pine Key had resprouted within a few months. Although Salvato and Salvato (2010a, p. 96) occasionally encountered signs of leafwing reproduction within recently burned Long Pine Key locations at approximately 6 weeks postburn, the majority of their observations indicated that oviposition and larval activity increased at about 3 to 6 months postburn. Similarly, Land (pers. comm. 2009) reported finding leafwing larval activity on resprouting croton at 6 months postburn. This finding suggests there may be some lag time between hostplant resurgence and compatibility with recolonization.
The influence of prescribed burns on the status and distribution of the hairstreak and croton is being evaluated by ENP throughout Long Pine Key. The effects of new burn techniques on the Bartram's scrub-hairstreak within Long Pine Key were not immediately obvious (Salvato and Salvato 2010b, p. 159). The hairstreak is rarely encountered more than 5 m (16.4 ft) from its hostplant (Schwartz 1987, p. 16; Worth
ENP is actively coordinating with the Service, as well as other members of the Imperiled Butterfly Working Group to review and adjust the prescribed burn practices outlined in the FMP to help maintain or increase Florida leafwing and Bartram's scrub-hairstreak population sizes, protect pine rocklands, expand or restore remnant patches of hostplants and ensure that short-term negative effects from fire (i.e., loss of hostplants, loss of eggs and larvae) can be avoided or minimized.
Outside of the ENP, Miami-Dade County has implemented various conservation measures, such as burning in a mosaic pattern and on a small scale, during prescribed burns in order to protect the butterflies (Maguire, pers. comm. 2010). Miami-Dade County Parks and Recreation staff has burned several of their conservation lands on a fire return interval of approximately 3 to 7 years. In addition, prescribed burns on large conservation areas, such as Navy Wells, have been conducted in a cyclic and systematic pattern, which has provided refugia within or adjacent to treatment areas. As a result, the Bartram's scrub-hairstreak has retained populations within many of these County-managed conservation lands.
Recent natural or prescribed fire activity on Big Pine Key and adjacent islands within NKDR appears to be insufficient to prevent loss of pine rockland habitat (Carlson
Fire management of pine rocklands in NKDR is hampered by the pattern of land ownership and development; residential and commercial properties are embedded within or in close proximity to pineland habitat (Snyder
The NKDR is attempting to increase the density of hostplants within their pine rockland habitat through the use of prescribed fire. However, the majority of pine rocklands within NKDR are several years departed from the ideal fire return interval (5–7 years) suggested for this ecosystem (Synder
Climatic changes, including sea level rise, are major threats to south Florida, including the Florida leafwing and Bartram's scrub-hairstreak. Our analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). The term “climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007a, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007a, p. 78).
Scientific measurements spanning several decades demonstrate that changes in climate are occurring, and that the rate of change has been faster since the 1950s. Examples include warming of the global climate system, 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; and Solomon
Scientists use a variety of climate models, which include consideration of natural processes and variability, as well as various scenarios of potential levels and timing of GHG emissions, to evaluate the causes of changes already observed and to project future changes in temperature and other climate conditions (e.g., Meehl
Various changes in climate may have direct or indirect effects on species. These effects may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as interactions of climate with other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8–14, 18–19). Identifying likely effects often involves aspects of climate change vulnerability analysis. Vulnerability refers to the degree to which a species (or system) is susceptible to, and unable to cope with, adverse effects of climate change, including climate variability and extremes. Vulnerability is a function of the type, magnitude, and rate of climate change and variation to which a species is exposed, its sensitivity, and its adaptive capacity (IPCC 2007a, p. 89; see also Glick
Global climate projections are informative, and, in some cases, the only or the best scientific information available for us to use. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world (e.g., IPCC 2007a, pp. 8–12). Therefore, we use “downscaled” projections when they are available and have been developed through appropriate scientific procedures, because such projections provide higher resolution information that is more relevant to spatial scales used for analyses of a given species (see Glick
With regard to our analysis for the Florida leafwing and Bartram's scrub-hairstreak,
Other processes to be affected by projected warming include temperatures, rainfall (amount, seasonal timing, and distribution), and storms (frequency and intensity). The Massachusetts Institute of Technology (MIT) modeled several scenarios combining various levels of sea level rise, temperature change, and precipitation differences with population, policy assumptions, and conservation funding changes. All of the scenarios, from small climate change shifts to major changes, indicate significant effects on the Florida Keys.
The Nature Conservancy (TNC) modeled several scenarios for the Florida Keys, and predicted that sea level rise will first result in the conversion of habitat, and eventually the complete inundation of habitat. In the best-case scenario, by the year 2100, a rise of 18 cm (7 in) would result in the inundation of 745 ha (1,840 ac) (34 percent) of Big Pine Key and the loss of 11 percent of the island's upland habitat (TNC 2010, p. 1). In the worst-case scenario, a rise of 140 cm (4.6 ft would result in the inundation of about 2,409 ha (5,950 ac) (96 percent) and the loss of all upland habitat on the Key (TNC 2010, p. 1). Extant populations of Bartram's scrub-hairstreak in the pine rocklands on Big Pine Key are located just slightly above mean sea level, and saturation or increase in salinity of the soil would correspondingly change the vegetation and habitat structure making the butterfly's survival at this location in the Keys very unlikely. In addition, the Florida leafwing also occurred on Big Pine Key until 2006, within the same locations as extant Bartram's scrub-hairstreak populations. Re-establishment of the Florida leafwing to this island will be a major component in recovering the butterfly. The loss of this portion of the Florida leafwing's range will further reduce their overall resiliency to threats and limit their capacity for survival and recovery.
Hydrology has a strong influence on plant distribution in these and other coastal areas (IPCC 2008, p. 57). Such communities typically grade from salt to brackish to freshwater species. From the 1930s to 1950s, increased salinity of coastal waters contributed to the decline of cabbage palm forests in southwest Florida (Williams
Drier conditions and increased variability in precipitation associated with climate change are expected to hamper successful regeneration of
The ranges of recent projections of global sea level rise (Pfeffer
Various model scenarios developed at MIT have projected possible trajectories of future transformation of the south Florida landscape by 2060 based upon four main drivers: climate change, shifts in planning approaches and regulations, human population change, and variations in financial resources for conservation (Vargas-Moreno and Flaxman 2010, pp. 1–6). The Service used various MIT scenarios in combination with extant and historic Florida leafwing and Bartram's scrub-hairstreak occurrences and remaining hostplant-bearing pine rocklands to predict what may occur to the butterflies and their habitat.
In the best-case scenario, which assumes low sea level rise, high financial resources, proactive planning, and only trending population growth, analyses suggest that the Big Pine Key population of the Bartram's scrub-hairstreak may be lost or greatly reduced. Based upon the above assumptions, extant butterfly populations on Big Pine Key (Bartram's scrub-hairstreak) and Long Pine Key (Florida leafwing and Bartram's scrub-hairstreak) appear to be most susceptible for future losses, with losses attributed to increases in sea level and human population. In the worst-case scenario, which assumes high sea level rise, low financial resources, a “business as usual” approach to planning, and a doubling of human population, the habitat at Big Pine Key and Long Pine Key may be lost and the loss of habitat at Long Pine Key resulting in the complete extirpation of the Florida leafwing. Under the worst-case scenario, pine rockland habitat would remain within both Navy Wells and the Richmond Pine Rocklands, both of which currently retain Bartram's scrub-hairstreak populations. Actual impacts may be greater or less than anticipated based upon high variability of factors involved (e.g., sea level rise, human population growth) and assumptions made.
Projects designed to restore the historic hydrology of the Everglades and other natural systems in southern Florida (collectively known as the Comprehensive Everglades Restoration Project (CERP)) may produce collateral impacts to extant pine rockland within Long Pine Key. Salvato (pers. comm. 2012) noted substantial flooding of pine rocklands at the gate 11 nature trail in Long Pine Key following Hurricane Isaac (August 2012) and subsequent above-average rainfall in the region. Although Long Pine Key has experienced storm damages in the recent past (Salvato and Salvato 2010a, p. 96), none of the prior activity produced the level (several feet) or duration (more than 2 months) of inundation noted in the aftermath of Isaac. However, by mid-December 2012, Salvato noted no apparent lasting influence on croton health or abundance from the inundation. Sadle (pers. comm. 2012) suggests various CERP projects (C–111 spreader canal; L–31N seepage barrier), specifically the operation of pumps and associated detention areas along the ENP boundary, may influence select portions of eastern Long Pine Key, including pineland croton populations at gate 11. However, Pace (pers. comm. 2013) attributed the pine rockland flooding event of late 2012 more to localized and above-average rainfall patterns than to a change in water management practices. Analysis of the hydrology associated with operation of these CERP-related structures along the Everglades boundary will be conducted following the initial years of operation. However, Service and NPS biologists realize the need to assess this potential threat.
The National Wildlife Refuge System Improvement Act of 1997 and the Fish and Wildlife Service Manual (601 FW 3, 602 FW 3) require maintaining biological integrity and diversity, comprehensive conservation planning for each refuge, and set standards to ensure that all uses of refuges are compatible with their purposes and the Refuge System's wildlife conservation mission. The comprehensive conservation plans (CCP) address conservation of fish, wildlife, and plant resources and their related habitats, while providing opportunities for compatible wildlife-dependent recreation uses. An overriding consideration reflected in these plans is that fish and wildlife conservation has first priority in refuge management, and that public use be allowed and encouraged as long as it is compatible with, or does not detract from, the Refuge System mission and refuge purpose(s). The CCP for the Lower Florida Keys National Wildlife Refuges (NKDR, Key West National Wildlife Refuge, and Great White Heron National Wildlife Refuge) provides a description of the environment and priority resource issues that were considered in developing the objectives and strategies that guide management over the next 15 years. The CCP promotes the enhancement of wildlife populations by maintaining and enhancing a diversity and abundance of habitats for native plants and animals, especially imperiled species that are found only in the Florida Keys. The CCP also provides for obtaining baseline data and monitoring indicator species to detect changes in ecosystem diversity and integrity related to climate change. In the Lower Key Refuges, CCP management objective no. 11 provides specifically for maintaining and restoring butterfly populations of special conservation concern, including the Bartram's scrub-hairstreak and Florida leafwing butterflies.
As Federal candidates, the Florida leafwing and Bartram's scrub-hairstreak are afforded some protection through sections 7 and 10 of the Act and associated policies and guidelines. Service policy requires candidate species be treated as proposed species for purposes of intra-Service consultations and conferences where the Service's actions on National Wildlife Refuges may affect candidate species. Federal action agencies (e.g., Service, NPS) are to consider the potential effects (e.g., prescribed fire,
The NPS is also currently preparing a revised General Management Plan for ENP (Sadle, NPS, pers. comm. 2013a). ENP's current Management Plan (initiated in 1979) serves to protect, restore, and maintain natural and cultural resources at the ecosystem level (NPS 2000, p. 10). The current GMP is not regulatory and its implementation is not mandatory. In addition, this GMP does not specifically address either the Florida leafwing or Bartram's scrub-hairstreak.
Fairchild Tropical Botanic Gardens (FTBG), with the support of various Federal, State, local and nonprofit organizations, has established the “Connect to Protect Network.” The objective of this program is to encourage widespread participation of citizens to create corridors of healthy pine rocklands by planting stepping-stone gardens and rights-of-way with native pine rockland species, and restoring isolated pine rockland fragments. By doing this, FTBG hopes to increase the probability that pollinators can find and transport seeds and pollen across developed areas that separate pine rocklands fragments to improve gene flow between fragmented plant populations and increase the likelihood that these species will persist over the long term. Although this project may serve as a valuable component toward the conservation of pine rockland species, it is dependent on continual funding, as well as participation from private landowners, both of which may vary through time.
We have identified a number of threats to the habitat of the Florida leafwing and Bartram's scrub-hairstreak that have operated in the past, are impacting the butterflies now, and will continue to impact these butterflies in the future. Habitat loss, fragmentation, and degradation and associated pressures from increased human population are major threats; these threats are expected to continue, placing these butterflies at greater risk. Both butterflies may be impacted when pine rocklands are converted to other uses or when lack of fire causes the conversion to hardwood hammocks or other habitats that are unsuitable for these butterflies and their host plant. Routine land management activities (e.g., prescribed fire) may also cause impacts to hostplant abundance and availability of nectar sources. Environmental effects resulting from climatic change, including sea level rise, are occurring now and are expected to become severe in the future, resulting in additional habitat losses. Although efforts are being made to conserve natural areas and apply prescribed fire, the long-term effects of large-scale and wide-ranging habitat modification, destruction, and curtailment will last into the future.
Rare butterflies and moths are highly prized by collectors, and an international trade exists in specimens for both live and decorative markets, as well as the specialist trade that supplies hobbyists, collectors, and researchers (Collins and Morris 1985, pp. 155–179; Morris
In the past, when the Florida leafwing and Bartram's scrub-hairstreak were widespread on Big Pine Key and throughout southern Miami-Dade County, collecting likely exerted little pressure on these butterfly populations. At present, even limited collection from the small, remaining populations could have deleterious effects on reproductive and genetic viability and thus could contribute to their eventual extinction (see Factor E—Effects of Few, Small Populations and Isolation, below). Collection, which is prohibited on conservation lands, could occur (e.g., ENP, NKDR, State or County owned lands) without being detected, because these areas are all not actively patrolled (see Factor D—
We have direct evidence of interest in the collecting, as well as proposed commercial sale, of the Florida leafwing and Bartram's scrub-hairstreak. Salvato (pers. comm. 2011) has also been contacted by several individuals requesting specimens of the Florida leafwing, as well as information regarding locations where both butterflies may be collected in the field. Salvato (pers. comm. 2012) observed several individuals collecting butterflies at Navy Wells during 2005, including times when Bartram's scrub-hairstreak was present at this site.
We are also aware of multiple Web sites that offer or have offered specimens of south Florida butterflies for sale that are candidates for listing under the Act (Minno, pers. comm. 2009; Nagano, pers. comm. 2011; Olle, pers. comm. 2011). Until recently, one Web site offered male and female Florida leafwing specimens for €110.00 and €60.00 (euros), respectively (approximately $144 and $78). It is unclear from where the specimens originated or when they were collected, but this butterfly is now mainly restricted to ENP where collection is prohibited. The same Web site currently offers specimens of Bartram's scrub-hairstreak for €10.00 ($13). It is unclear from where these specimens originated or when they were collected. The hairstreak can be found on private lands on Big Pine Key and perhaps locally within Miami-Dade County. However, given that the majority of known populations of both butterflies now
Some techniques (e.g., capture, handling) used to understand or monitor the leafwing and hairstreak butterflies have the potential to cause harm to individuals or habitat. Visual surveys, transect counts, and netting for identification purposes have been performed during scientific research and conservation efforts with the potential to disturb or injure individuals or damage habitat. Mark–recapture, a common method used to determine population size, has been used by some researchers to monitor Florida leafwing and Bartram's scrub-hairstreak populations (Emmel
Although effects may vary depending upon taxon, technique, or other factors, some studies suggest that marking may damage (wing damage) or kill butterflies or alter their behaviors (Mallet
Collection interest of imperiled butterflies is high, and there are ample examples of collection pressure contributing to extirpations. Although we do not have information indicating the extent to which the Florida leafwing and Bartram's scrub-hairstreak are being collected, we have evidence of both being recently offered for sale. Even limited collection from the remaining metapopulations could have deleterious effects on reproductive and genetic viability of both butterflies and could contribute to their extinction. Although the effects of various scientific studies on butterflies vary amongst species, we do have limited information to suggest that techniques such as mark–recapture may have deleterious impacts to the Florida leafwing and Bartram's scrub-hairstreak. We consider collection, including for scientific research, to be a significant threat to both butterflies due to the few remaining metapopulations, reduced population sizes, restricted range, and because collection could potentially occur at any time.
A number of predators have been documented to impact Florida leafwings throughout their life cycle. One of the earliest natural history accounts of the leafwing (Matteson 1930, p. 8) reported ants as predators of leafwing eggs in Miami. On Big Pine Key, Hennessey and Habeck (1991, p. 17) encountered a pupa of the Florida leafwing being consumed by ants. Land (pers. comm. 2009) observed a native twig ant (
Additional predators of immature Florida leafwings include spiders (Rutkowski 1971, p. 137; Glassberg
A number of parasites have been documented to impact Florida leafwings throughout their life cycle. Hennessey and Habeck (1991, p. 16) and Salvato and Hennessey (2004, p. 247) noted that leafwing egg mortality within ENP and Big Pine Key, from trichogrammid wasp (
Caldas (1996, p. 89), Muyshondt (1974, pp. 306–314), DeVries (1987, p. 21) and Salvato and Hennessey (2003, p. 247) each indicated high parasitism rates from tachinid flies for larvae of
Salvato
Salvato and Salvato (2012, p. 1) have monitored Florida leafwing immature development in the field for several years at Long Pine Key. To date these studies have measured mortality rates of more than 70 percent for immature leafwing, individuals dying from various parasites, predators, and other factors such as fungal pathogens (Salvato and Salvato 2012, p. 1). The majority of mortality noted thus far in these studies has occurred in the earliest, immature stages.
Native parasites and predators have been documented to impact Bartram's scrub-hairstreaks. Hennessey and Habeck (1991, p. 19) collected an older hairstreak larva on Big Pine Key from which a single braconid wasp emerged during pupation. During 2010, Salvato
Salvato and Salvato (2010d, p. 71) observed erythraeid larval mite parasites on an adult Bartram's scrub-hairstreak in Long Pine Key. Although mite predation on butterflies is rarely fatal (Treat 1975, pp. 1–362), the role of parasitism by mites in the natural history of the hairstreak requires further study. Salvato and Salvato (2008, p. 324) have observed dragonflies (Odonata) preying on adult hairstreaks. Crab spiders, orb weavers, ants, and number of other predators discussed as mortality factors for the leafwing have also been frequently observed on croton during hairstreak surveys and may also prey on hairstreak adults and larvae (Salvato and Hennessey 2004, p. 225; Salvato, pers. comm. 2012). NKDR biologists have witnessed nonnative Cuban anoles (
At this time, it is not known to what extent predation, parasitism, or disease may act as threats to the Florida leafwing and Bartram's scrub-hairstreak. Studies have documented a wide array of predators and parasitoids and, in some cases, high levels of mortality amongst immature leafwings, throughout development. Although many of the mortality factors of immature leafwing have also been shown to influence the hairstreak, to date, these studies have been limited. Disease, in the form of viruses or fungal pathogens, is known to cause mortality of the young leafwing larvae; these factors may also influence the young hairstreak larvae. Given the leafwing and hairstreak butterflies' low numbers and few occurrences, and limited distributions, it is unclear how the leafwing and hairstreak will respond to these factors.
Under this factor, we examine whether existing regulatory mechanisms are inadequate to address the threats to the species discussed under the other factors. Section 4(b)(1)(A) of the Act requires the Service to take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species. . . .” In relation to Factor D, we interpret this language to require the Service to consider relevant Federal, State, and Tribal laws, plans, regulations, and other such mechanisms that may minimize any of the threats we describe in threat analyses under the other four factors, or otherwise enhance conservation of the species. We give strongest weight to statutes and their implementing regulations and to management direction that stems from those laws and regulations. An example would be State governmental actions enforced under a State statute or constitution, or Federal action under statute.
Having evaluated the significance of the threat as mitigated by any such conservation efforts, we analyze under Factor D the extent to which existing regulatory mechanisms are inadequate to address the specific threats to the species. Regulatory mechanisms, if they exist, may reduce or eliminate the impacts from one or more identified threats. In this section, we review existing State and Federal regulatory mechanisms to determine whether they effectively reduce or remove threats to the Florida leafwing and Bartram's scrub-hairstreak butterflies.
Existing regulatory mechanisms that could provide some protection for the Florida leafwing and Bartram's scrub-hairstreak butterflies include: (1) the National Park Service Organic Act and its implementing regulations; (2) the National Wildlife Refuge System Administration Act (16 U.S.C. 668dd–ee) as amended, and the Refuge Recreation Act (16 U.S.C. 460k–460k–4) and their implementing regulations.
National Park Service (NPS) regulations at 36 CFR 2.1 and 2.2 prohibit visitors from harming or removing wildlife, listed or otherwise, from ENP. In addition, NPS regulation 36 CFR 2.5 prohibits visitors from conducting research or collecting specimens without a permit. Although ENP was not able to provide specific information concerning poaching of butterflies or enforcement of NPS regulations protecting the butterflies and their habitats from harm the apparent online sales of the butterflies suggests that poaching could be occurring. Insufficient implementation or enforcement could become a threat to the two butterflies in the future if they continue to decline in numbers.
Special Use Permits (SUPs) are issued by the Refuges as authorized by the National Wildlife Refuge System Administration Act (16 U.S.C. 668dd–ee) as amended, and the Refuge Recreation Act. The Service's South Florida Ecological Services Office and NKDR coordinate annually on potential impacts to the Florida leafwing and Bartram's scrub-hairstreak prior to issuance of a SUP to the FKMCD (see Factor E—Pesticides, below). In addition, as discussed above (Factor A—Conservation Efforts to Reduce the Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range), the CCP for the Lower Key Refuges provides specifically for maintaining and restoring butterfly populations within NKDR, including the Bartram's scrub-hairstreak and Florida leafwing butterflies.
The Florida leafwing and Bartram' scrub-hairstreak butterflies are not currently listed by the State of Florida ESA, so there are no existing regulations designated to protect them.
Under Miami-Dade County ordinance (Section 26–1), a permit is required to conduct scientific research (Rule 9) on county environmental lands. In
In summary, existing regulatory mechanisms that help conserve the Florida leafwing and Bartram's scrub-hairstreak are present on Federal lands (ENP and NKDR) and within Miami-Dade County conservation areas. The butterflies are provided limited or no protections on State of Florida or Monroe County lands. Despite the existing regulatory mechanisms, habitat loss and modification, inconsistent fire management, poaching, and pesticide applications suggest that existing regulatory mechanisms have not been sufficient to provide for the conservation of either species.
The Florida leafwing and Bartram's scrub-hairstreak are vulnerable to extinction due to their severely reduced range, reduced population size, lack of metapopulation structure, few remaining populations, and relative isolation. Abundance of the Florida leafwing and Bartram's scrub-hairstreak is not known, but each butterfly is estimated to number in the hundreds, and at times, possibly much lower. Although highly dependent on individual species considered, a population of 1,000 has been suggested as marginally viable for an insect (Schweitzer, TNC, pers. comm. 2003). Schweitzer (pers. comm. 2003) has also suggested that butterfly populations of less than 200 adults per generation would have difficulty surviving over the long term. In comparison, in a review of 27 recovery plans for listed insect species, Schultz and Hammond (2003, p. 1377) found that 25 plans broadly specified metapopulation features in terms of requiring that recovery include multiple population areas (the average number of sites required was 8.2). The three plans that quantified minimum population sizes as part of their recovery criteria for butterflies ranged from 200 adults per site (Oregon silverspot
Schultz and Hammond (2003, pp. 1372–1385) used population viability analyses to develop quantitative recovery criteria for insects whose population sizes can be estimated and applied this framework in the context of the Fender's blue
Losses in diversity within populations of the Florida leafwing and Bartram's scrub-hairstreak may have already occurred (Salvato, pers. comm. 2012). The leafwing and hairstreak have been extirpated from several locations where they were previously recorded (Baggett 1982, pp. 78–81; Salvato and Hennessey 2003, p. 243; 2004 p. 223). Initially described from Brickell Hammock in Coral Gables, Florida (present day Vizcaya Museum and Gardens), in the 1940s (Salvato, pers. comm. 2012), mainland populations of the leafwing have subsequently retreated with the loss, fragmentation and degradation of native pine rocklands throughout Miami-Dade County (Baggett 1982, pp. 78–81; Salvato and Hennessey 2003, p. 243). At present, the leafwing is extant only within ENP, and ongoing surveys suggest the butterfly actively disperses throughout the Long Pine Key region of the Park (Salvato and Salvato 2010, p. 91; 2010c, p. 139). Once locally common at Navy Wells and the Richmond Pine Rocklands (which occur approximately 8 and 27 km (5 and 17 mi) to the northeast of ENP, respectively), leafwings are not known to have bred at either location in more than 25 years (Salvato and Hennessey 2003, p. 243; Salvato pers. comm. 2012). In the lower Florida Keys, the leafwing had maintained a stronghold for many decades on Big Pine Key, within NKDR, until 2006 when that population disappeared due to a variety of factors (Salvato and Salvato 2010c, pp. 139–140).
The Bartram's scrub-hairstreak is extant within ENP, Navy Wells, Camp Owaissa Bauer, Richmond Pine Rocklands, as well as on Big Pine Key (Baggett 1982, pp. 80–81; Smith
Another south Florida lycaenid, the Miami blue (
Extant hairstreak populations are likely experiencing a similar lack of continuity in genetic exchange given their current fragmented distribution. Based upon modeling with a different butterfly species, Fleishman
In general, isolation, whether caused by geographic distance, ecological factors, or reproductive strategy, will likely prevent the influx of new genetic material and can result in a highly inbred population with low viability or fecundity (Chesser 1983, p. 68). Natural fluctuations in rainfall, hostplant vigor, or predation may weaken a population to such an extent that recovery to a viable level would be impossible. Isolation of habitat can prevent recolonization from other sites and result in extinction. The leafwing and hairstreak are restricted to one (leafwing) or a few small (hairstreak) localized populations. The extent of
The climate of southern Florida and the Florida Keys is driven by a combination of local, regional, and global events, regimes, and oscillations. There are three main “seasons”: (1) The wet season, which is hot, rainy, and humid from June through October, (2) the official hurricane season that extends 1 month beyond the wet season (June 1 through November 30) with peak season being August and September, and (3) the dry season, which is drier and cooler from November through May. In the dry season, periodic surges of cool and dry continental air masses influence the weather with short-duration rain events followed by long periods of dry weather.
According to the Florida Climate Center, Florida is by far the most vulnerable State in the United States to hurricanes and tropical storms
Other processes to be affected by climate change include temperatures, rainfall (amount, seasonal timing, and distribution), and storms (frequency and intensity). Temperatures are projected to rise from 2 °C to 5 °C (3.6 °F to 9 °F) for North America by the end of this century (IPCC 2007, pp. 7–9, 13). Based upon modeling, Atlantic hurricane and tropical storm frequencies are expected to decrease (Knutson
The Florida leafwing and Bartram's scrub-hairstreak have adapted over time to the influence of tropical storms and other forms of adverse weather conditions (Minno and Emmel 1994, p. 671; Salvato and Salvato 2007, p. 154). However, given the substantial reduction in the historic range of these butterflies in the past 50 years, the threat and impact of tropical storms and hurricanes on their remaining populations is much greater than when their distribution was more widespread (Salvato and Salvato 2010a, p. 96; 2010b, p. 157; 2010c, p. 139).
During late October 2005, Hurricane Wilma caused substantial damage to the pine rocklands of northwestern Big Pine Key (Salvato and Salvato 2010c, p. 139), specifically within the Watson Hammock region of NKDR, the historic stronghold for the Florida leafwing on the island. In historical instances when leafwing and hairstreak population numbers were larger on Big Pine, such as following Hurricane Georges in 1998, these butterflies appeared able to recover soon after a storm (Salvato and Salvato 2010c, p. 139). In ENP, where leafwing and hairstreak densities remained stable, these butterflies were minimally affected by the 2005 hurricane season (Salvato and Salvato 2010a, p. 96, 2010b, p. 157). However, for the leafwing, given its substantial decline on Big Pine Key prior to Wilma, it is possible that the impact of this storm served to further hinder and reduce extant populations of the butterfly on the island (Salvato and Salvato 2010c, p. 139).
Environmental factors have likely impacted both butterflies and their habitat within their historical and current ranges. For example, unusually cold temperatures were encountered throughout southern Florida during the winters of 2009 and 2010. Sadle (pers. comm. 2009) noted frost damage on croton at ENP on Long Pine Key in late 2009, but observed living larvae earlier that year, when temperatures were at or barely above freezing (2.2 °C; 36 °F) and frost was on the ground. Frost in winter 2010 resulted in substantial dieback of native plants, including damage and widespread defoliation of the croton in Long Pine Key (Sadle, pers. comm. 2010; Land, pers. comm. 2010; Hallac
During late 2010, Salvato and Salvato (2011, p. 2) noted increased larval leafwing mortality on their survey sites due to a number of factors, including cold. Sadle (pers. comm. 2011) also observed significant leaf and stem damage to croton during the same time period. A single dead leafwing larva was observed on a frost-damaged croton plant, though it is unclear if the mortality was a direct or indirect consequence of the freezing temperatures (Sadle, pers. comm. 2011). Salvato and Salvato (2011, p. 2) examined several (n = 4) dark, apparently frozen leafwing larvae during this time period, but later determined these had likely been killed from tachinid fly parasitism prior to the freeze. Sadle (pers. comm. 2011) and Salvato and Salvato (2011, p. 2) noted living larvae following the late 2010 freeze, largely in areas unaffected by the frost. From these observations, Sadle (pers. comm. 2011) suggested that frost damage may produce similar effects to loss of aboveground plant parts that results from fire. It is not clear what the short- or long-term impacts of prolonged cold periods may be on leafwing or hairstreak populations; however, it is likely that prolonged cold periods have some negative impacts on both the butterflies and their hostplant (Sadle, pers. comm. 2010; Land, pers. comm. 2010).
As described above (see
Efforts to control mosquitoes and other insect pests have increased as human activity and population have increased in south Florida. To control mosquito populations, organophosphate (naled) and pyrethroid (permethrin) adulticides are applied by mosquito control districts throughout south Florida. In a rare case in upper Key Largo, another organophosphate (malathion) was applied in 2011 when the number of permethrin applications reached its annual limit. All three of these compounds have been characterized as being highly toxic to nontarget insects by the U.S. Environmental Protection Agency (2002, p. 32; 2006a, p. 58; 2006b, p. 44). The use of such pesticides (applied using both aerial and ground-based methods) for mosquito control presents a potential risk to nontarget species, such as the Florida leafwing and Bartram's scrub-hairstreak.
The potential for mosquito control chemicals to drift into nontarget areas and persist for varying periods of time has been documented. Hennessey and Habeck (1989, pp. 1–22; 1991, pp. 1–68) and Hennessey
More recently, Pierce (2009, pp. 1–17) monitored naled and permethrin deposition following application in and around NKDR from 2007 to 2009. Permethrin, applied by truck, was found to drift considerable distances from target areas with residues that persisted for weeks. Naled, applied by plane, was also found to drift into nontarget areas but was much less persistent, exhibiting a half-life of approximately 6 hours. To expand this work, Pierce (2011, pp. 6–11) conducted an additional deposition study in 2010 focusing on permethrin drift from truck spraying and again documented low but measurable amounts of permethrin in nontarget areas. In 2009, Bargar (pers. comm. 2011) conducted two field trials on NKDR that detected significant naled residues at locations within nontarget areas on the Refuge that were up to 402 meters (440 yards) from the edge of zones targeted for aerial applications. After this discovery, the Florida Key Mosquito Control District recalibrated the on-board model (Wingman
In addition to mosquito control chemicals entering nontarget areas, the toxic effects of mosquito control chemicals to nontarget organisms have also been documented. Lethal effects on nontarget moths and butterflies have been attributed to fenthion and naled in both south Florida and the Florida Keys (Emmel 1991, pp. 12–13; Eliazar and Emmel 1991, pp. 18–19; Eliazar 1992, pp. 29–30). Zhong
In the lower Keys, Salvato (2001, pp. 8–14) suggested that declines in populations of the Florida leafwing were also partly attributable to mosquito control chemical applications. Salvato (2001, p. 14; 2002, pp. 56–57) found relative populations of the Florida leafwing, when extant on Big Pine Key within NKDR, to increase during drier years when adulticide applications over the pinelands decreased, although Bartram's scrub-hairstreak did not follow this pattern. Salvato (2001, p. 14) suggested that butterflies, such as the leafwing, were particularly vulnerable to aerial applications based on their tendency to roost within the pineland canopy, an area with maximal exposure to aerial treatments. Because roosting sites for the Bartram's hairstreak are not well documented, more study is needed to assess their potential exposure. The role of vegetation in limiting exposure is unknown, but could be important when considering that spraying operations are conducted during early morning and late evening hours when, presumably, nontarget butterflies would be occupying roost sites (C. Anderson, pers. comm. 2013).
Toxicity data on Florida native butterflies exposed to permethrin and naled in the laboratory (Hoang
Based on these studies, it can be concluded that mosquito control activities that involve the use of both aerial and ground-based spraying methods have the potential to deliver pesticides in quantities sufficient to cause adverse effects to nontarget species in both target and nontarget areas. It should be noted that many of the studies referenced above dealt with single application scenarios and examined effects on only one to two butterfly life stages. Under a realistic scenario, the potential exists for exposure to all life stages to occur over
Spraying practices by the Florida Keys Mosquito Control District (FKMCD) at NKDR have changed to reduce pesticide use over the years. In addition, larvicide treatments to surrounding islands have significantly reduced adulticide use on Big Pine Key, No Name Key, and the Torch Keys since 2003 (FKMCD 2012, p. 11). According to the Special Use Permit issued by the Service, the number of aerially applied naled treatments allowed on NKDR has been limited since 2008 (FKMCD 2012, pp. 10–11).
The Service's Integrated Pest Management (IPM) Policy (569 FW 1) establishes procedures and responsibilities for pest management activities on and off Service lands. These may include (1) Preparing pesticide use proposals (PUPs) for approval before applying pesticides; (2) entering pesticide usage information annually into the online IPM and Pesticide Use Proposal System (PUPS) database; (3) conducting Endangered Species Act consultations; and (4) following National Environmental Protection Act policies. Since these butterflies have been on the candidate list, the Service's South Florida Ecological Services Office and NKDR coordinate annually on potential impacts to the Florida leafwing and Bartram's scrub-hairstreak prior to issuance of a PUP to the FKMCD. Based on this consultation, 478 ha (1,180 ac) (705 ha (1,741 ac) of pine rockland) in the NKDR have been designated no-spray zones by agreement (as of May 2012) between the Service and FKMCD that includes the core habitat used by pine rockland butterflies (C. Anderson, pers. comm. 2012a; Service 2012, p. 32). In addition, several linear miles of pine rockland habitat within the Refuge-neighborhood interface were excluded from truck spray applications in the most sensitive habitats. These exclusions and buffer zones encompass over 95 percent of extant croton distribution on Big Pine Key, and include the majority of known extant and historical Florida leafwing and Bartram's scrub-hairstreak population centers on the island (Salvato, pers. comm. 2012). However, some areas of pine rocklands within NKDR are still sprayed with naled (aerially applied adulticide), and buffer zones remain at risk from drift; additionally, private residential areas and roadsides across Big Pine Key are treated with permethrin (ground-based applied adulticide) (Salvato 2001, p. 10). Therefore, the hairstreak and, if extant, the leafwing and their habitat on Big Pine Key may be directly or indirectly (via drift) exposed to adulticides used for mosquito control at some unknown level. Although there is evidence that mosquito control practices may influence butterfly species, limited information currently exists about population-level impacts. Actual impacts to the Florida leafwing and Bartram's scrub-hairstreak from mosquito control are unknown at this time; however, additional research is under way to quantify risk.
The Service will ensure compliance with our Pest Management Policy and the Act. We anticipate the need to expand existing buffer and no spray zones to include all hostplant-containing areas on the NKDR, as well as implement other measures (e.g., use more larvicides and less adulticides) to prevent adverse impacts to the butterflies and their habitat (on and off NKDR). Any changes to the pesticide application protocol will be closely coordinated with FKMCD. In addition, field monitoring may be required to demonstrate that application of pesticides in areas adjacent to Florida leafwing and Bartram's scrub-hairstreak habitat does not result in drift into the no spray zones, as has been documented in previous studies.
In general Long Pine Key in ENP does not appear to be regularly impacted by mosquito control practices, except for the use of adulticides (e.g., Sumithrin (Anvil)) in Park residential areas and campgrounds. Housing areas, maintenance areas, outside work areas for park maintenance staff and contractors, and areas near buildings have been sprayed in the past (Perry, pers. comm. 2007). Spraying occurred within ENP following hurricanes in 2005 (Perry, pers. comm. 2008). Subsequently, however, no spraying has been conducted in or near Long Pine Key. Populations of these butterflies occurring adjacent to and outside ENP in suitable and potential habitat within Miami-Dade County are also vulnerable to the lethal and sublethal effects of adulticide applications. However, mosquito control pesticide use within Miami-Dade County pine rockland areas is limited (approximately 2 to 4 times per year, and only within a portion of proposed critical habitat) (Vasquez, pers. comm. 2013)
In summary, although substantial progress has been made in reducing impacts, the potential effects of mosquito control applications and drift residues remain a threat to both butterflies.
Based on our analysis of the best available information, we have identified several natural and manmade factors affecting the continued existence of the Florida leafwing and Bartram's scrub-hairstreak. Effects of small population size, isolation, and loss of genetic diversity are likely significant threats. Given the existing few populations and small size of the populations, environmental stochasticity may also contribute to imperilment. Other natural (e.g., changes to habitat) and anthropogenic factors (e.g., pesticides, fire, processes affected by climate change) are also identifiable threats.
The limited distributions and small population sizes of the Florida leafwing and Bartram's scrub-hairstreak make them extremely susceptible to habitat loss, degradation, and modification and other anthropogenic threats. Mechanisms leading to the decline of the Florida leafwing and Bartram's scrub-hairstreak, as discussed above, range from local (e.g., a lack of adequate fire management, fragmentation, poaching), to regional (e.g., development, pesticides), to global influences (e.g., climate change, sea level rise). The synergistic (interaction of two or more components) effects of threats (such as hurricane effects on a species with a limited distribution consisting of just a few small populations) make it difficult to predict population viability. While these stressors may act in isolation, it is more probable that many stressors are acting simultaneously (or in combination) on Florida leafwing and Bartram's scrub-hairstreak populations.
The Florida leafwing has been extirpated (no longer in existence) from nearly 96 percent of its historical range; the only known extant population occurs within ENP in Miami-Dade County. Threats of habitat loss and fragmentation, including climatic change (
The Bartram's scrub-hairstreak has been extirpated from nearly 93 percent of its historical range; only five isolated metapopulations remain on Big Pine Key in Monroe County, Long Pine Key in ENP, and relict pine rocklands adjacent to the Park in Miami-Dade County. All 5 of these populations are, in part, on protected lands. Threats of habitat loss and fragmentation from lack of fire (
Habitat loss, fragmentation, and degradation, and associated pressures from increased human population are major threats; these threats are expected to continue, placing these butterflies at greater risk. Although efforts are being made to conserve natural areas and apply prescribed fire, the long-term effects of large-scale and wide-ranging habitat modification, destruction, and curtailment will last into the future. Based on our analysis of the best available information, there is no evidence to suggest that vulnerability to collection and risks associated with scientific or conservation efforts will change and, instead, are likely to continue into the future. At this time, we consider predation, parasitism, and disease to be threats to both butterflies due to their current tenuous statuses. We have no information to suggest that vulnerability to these threats will change in the future. Based on our analysis of the best available information, we find that existing regulatory mechanisms, due to their inherent limitations and constraints, are inadequate to address threats to these butterflies throughout their ranges. We have no information to indicate that poaching, inconsistent fires, pesticide use, or habitat loss will be ameliorated in the future by enforcement of existing regulatory mechanisms.
Therefore, we find it reasonably likely that the effects on the Florida leafwing and Bartram's scrub-hairstreak will continue at current levels or potentially increase in the future. Effects of small population size, isolation, and loss of genetic diversity are likely significant threats as well as natural changes to habitat and anthropogenic factors (e.g., pesticides, fire, processes affected by climate change). Collectively, these threats have impacted the butterflies in the past, are impacting these butterflies now, and will continue to impact these butterflies in the future.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Florida leafwing and Bartram's scrub-hairstreak butterflies. As described in detail above, both butterflies are currently at risk throughout all of their respective ranges due to the immediacy, severity, and scope of threats from habitat destruction and modification (
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 Florida leafwing butterfly is presently in danger of extinction throughout its entire range based on the severity and immediacy of threats currently impacting the subspecies. The overall range has been significantly reduced; the remaining habitat and population is threatened by a variety of factors acting in combination to reduce the overall viability of the subspecies. The risk of extinction is high because the remaining population is small, isolated, and the potential for recolonization is limited based on habitat loss and fragmentation, mosquito control, poaching, parasitism, predation, and climatic change.
The Florida leafwing and Bartram's scrub-hairstreak butterflies are highly restricted in their ranges and threats occur throughout their ranges. Therefore, we assessed the status of the species throughout their entire ranges. The threats to the survival of the species occur throughout the species' ranges and are not restricted to any particular significant portion of those ranges. Accordingly, our assessment and proposed determination applies to both the species throughout their entire ranges.
Therefore, on the basis of the best available scientific and commercial information, we propose listing the Bartram's scrub-hairstreak butterfly as endangered in accordance with sections 3(6) and 4(a)(1) of the Act. We find that a threatened species status is not appropriate for the Bartram's scrub-hairstreak butterfly because of the severity and immediacy of the threats, its restricted range (93 percent loss), threats are occurring rangewide and are not localized, its five small populations, and because the threats are ongoing and expected to continue into the future.
Conservation measures provided to species listed as endangered or threatened 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
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 recovery actions and describes the process to be used to develop a 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. Recovery teams (comprising species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, 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.
If these butterflies are 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, under section 6 of the Act, the State of Florida would be eligible for Federal funds to implement management actions that promote the protection and recovery of Florida leafwing and Bartram's scrub-hairstreak butterflies. Information on our grant programs that are available to aid species recovery can be found at:
Although Florida leafwing and Bartram's scrub-hairstreak are only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for these butterflies. Additionally, we invite you to submit any new information on these butterflies whenever it becomes available and any information you may have for recovery planning purposes (see
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 consultation with the Service.
Federal agency actions within these butterflies' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Department of Defense, National Park Service, and U.S. Fish and Wildlife Service; construction and maintenance of roads or highways by the Federal Highway Administration; flood insurance and disaster relief efforts conducted by the Federal Emergency Management Agency; and pesticide treatments required by the U.S. Department of Agriculture or Florida Department of Agriculture and Consumer Services in the event of emergency pest outbreak.
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.
The Service acknowledges that it cannot fully address some of the natural threats facing the Florida leafwing and Bartram's scrub-hairstreak (e.g., hurricanes, tropical storms) or even some of the other significant, long-term threats (e.g., climatic changes, sea level rise). However, through listing, we provide protection to the known population(s) and any new population of these butterflies that may be discovered (see section 9 of Available Conservation Measures below). With listing, we can also influence Federal actions that may potentially impact these butterflies (see section 7 below); this is especially valuable if they are found at additional locations. With this action, we are also better able to deter illicit collection and trade.
Our policy, as published in the
(1) Unauthorized possession, collecting, trapping, capturing, killing, harassing, sale, delivery, or movement, including interstate and foreign commerce, or harming or attempting any of these actions, of the Florida leafwing or Bartram's scrub-hairstreak butterflies (research activities where the Florida leafwing or Bartram's scrub-hairstreak are handled, captured (e.g., netted, trapped), marked, or collected will require authorization pursuant to the Act).
(2) Incidental take of the Florida leafwing or Bartram's scrub-hairstreak without authorization pursuant to section 7 or section 10(a)(1)(B) of the Act.
(3) Sale or purchase of specimens of these taxa, except for properly documented antique specimens at least 100 years old, as defined by section 10(h)(1) of the Act.
(4) Unauthorized destruction or alteration of the Florida leafwing or Bartram's scrub-hairstreak habitat (including unauthorized grading, leveling, plowing, mowing, burning, herbicide spraying, or pesticide application) in ways that kills or injures individuals by significantly impairing these butterflies' essential breeding, foraging, sheltering, or other essential life functions.
(5) Unauthorized use of pesticides or herbicides resulting in take of the Florida leafwing or Bartram's scrub-hairstreak butterflies.
(6) Unauthorized release of biological control agents that attack any life stages of these taxa.
(7) Unauthorized removal or destruction of pineland croton, the hostplant utilized by the Florida leafwing or Bartram's scrub-hairstreak butterflies, within areas used by the butterflies that result in harm to the butterflies.
(8) Release of nonnative species into occupied Florida leafwing and Bartram's scrub-hairstreak habitat that may displace the butterflies or their native host plants.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Field Supervisor of the Service's South Florida Ecological Services Office (see
In accordance with our joint policy on peer review published in the
We will consider all comments and information received during this comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal.
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this proposed rule are the staff members of the South Florida Ecological Services Field Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to 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; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; unless otherwise noted.
(h) * * *