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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 when compared to the state of technology and design envisioned in the airworthiness standards for transport category airplanes. This design feature is a high incidence protection system that limits the angle of attack at which the airplane can be flown during normal low speed operation. 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.
Joe Jacobsen, FAA, Airplane and Flight Crew Interface Branch, ANM–111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone (425) 227–2011; facsimile (425) 227–1149.
On May 14, 2009, Embraer S.A. applied for a type certificate for its new Model EMB–550 airplane, which was subsequently revised to August 29, 2009. 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 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 AS907–3–1E medium bypass ratio turbofan engines mounted on aft fuselage pylons. Each engine produces approximately 6,540 pounds of thrust for normal takeoff.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Embraer S.A. must show that the Model EMB–550 meets the applicable provisions of part 25, as amended by Amendments 25–1 through 25–128 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 Model EMB–550 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 Model EMB–550 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 section 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 Model EMB–550 will incorporate the following novel or unusual design features: A high incidence protection system that replaces the stall warning system during normal operating conditions, prohibits the airplane from stalling, limits the angle of attack at which the airplane can be flown during normal low speed operation, and that cannot be overridden by the flightcrew. The application of this angle-of-attack limit impacts the stall speed determination, the stall characteristics and stall warning demonstration, and the longitudinal handling characteristics. The current regulations do not address this type of protection feature.
The high incidence protection function prevents the airplane from stalling at low speeds, and, therefore, a stall warning system is not needed during normal flight conditions. However, if there is a failure of the high incidence protection function that is not shown to be extremely improbable, stall warning must be provided in a conventional manner. Also the flight characteristics at the angle of attack for maximum lift coefficient (C
These special conditions address this novel or unusual design feature on the EMB–550. These special conditions, which include airplane performance requirements, establish a level of safety equivalent to the current regulations for reference stall speeds, stall warning, stall characteristics, and miscellaneous other minimum reference speeds.
Notice of proposed special conditions No. 25–14–04–SC for the Embraer Model EMB–550 airplane was published in the
As discussed above, these special conditions are applicable to the Embraer Model EMB–550 airplane. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same
Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the
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, the Federal Aviation Administration (FAA) issues the following special conditions as part of the type certification basis for Embraer S.A. Model EMB–550.
The current airworthiness standards do not contain adequate safety standards for the unique features of the high incidence protection system on the Embraer EMB–550. Part I of the following special conditions are issued in lieu of the specified paragraphs of §§ 25.21, 25.103, 25.145, 25.201, 25.203, 25.207, and 25.1323. Part II are in lieu of the specified paragraphs of §§ 25.103, 25.105, 25.107, 25.121, 25.123, 25.125, 25.143, and 25.207.
The following special conditions are in lieu of §§ 25.21(b), 25.103, 25.145(a), 25.145(b)(6), 25.201, 25.203, 25.207, and 25.1323(d).
In the following paragraphs, “in icing conditions” means with the ice accretions (relative to the relevant flight phase) as defined in 14 CFR part 25, Amendment 121, appendix C.
These special conditions address a novel or unusual design feature of the EMB–550 airplane and use terminology that does not appear in 14 CFR part 25.
These terms relating to the novel or unusual design feature addressed by these special conditions are the following:
• High incidence protection system: A system that operates directly and automatically on the airplane's flying controls to limit the maximum angle of attack that can be attained to a value below that at which an aerodynamic stall would occur.
• Alpha-limit: The maximum angle of attack at which the airplane stabilizes with the high incidence protection system operating and the longitudinal control held on its aft stop.
• V
• V
The capability and reliability of the high incidence protection system can be established by flight test, simulation, and analysis as appropriate. The capability and reliability required are as follows:
1. It must not be possible during pilot-induced maneuvers to encounter a stall, and handling characteristics must be acceptable, as required by section 5 of Part I of these special conditions.
2. The airplane must be protected against stalling due to the effects of wind-shears and gusts at low speeds as required by section 6 of Part I of these special conditions.
3. The ability of the high incidence protection system to accommodate any reduction in stalling incidence must be verified in icing conditions.
4. The high incidence protection system must be provided in each abnormal configuration of the high lift devices that is likely to be used in flight following system failures.
5. The reliability of the system and the effects of failures must be acceptable in accordance with § 25.1309.
In lieu of § 25.103, we propose the following requirements:
(a) The minimum steady flight speed, V
(b) The minimum steady flight speed, V
(1) The high incidence protection system operating normally;
(2) Idle thrust and automatic thrust system (if applicable) inhibited;
(3) All combinations of flap settings and landing gear position for which V
(4) The weight used when reference stall speed, V
(5) The most unfavorable center of gravity allowable; and
(6) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.
(c) The 1-g minimum steady flight speed, V
(d) The reference stall speed, V
(e) V
(1) Engines idling, or, if that resultant thrust causes an appreciable decrease in stall speed, not more than zero thrust at the stall speed;
(2) The airplane in other respects (such as flaps and landing gear) in the condition existing in the test or performance standard in which V
(3) The weight used when V
(4) The center of gravity position that results in the highest value of reference stall speed;
(5) The airplane trimmed for straight flight at a speed achievable by the automatic trim system, but not less than 1.13 V
(6) The high incidence protection system adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system.
(7) Starting from the stabilized trim condition, apply the longitudinal control to decelerate the airplane so that the speed reduction does not exceed 1 knot per second.
In lieu of § 25.207, we propose the following requirements:
If the capabilities of the high incidence protection system are met, then the conditions of section 2, “Capability and Reliability of the High Incidence Protection System,” are satisfied. These conditions provide safety equivalent to § 25.207,
Following failures of the high incidence protection system, not shown to be extremely improbable, such that the capability of the system no longer satisfies items (a), (b), and (c) of section 2, “Capability and Reliability of the High Incidence Protection System,” stall warning must be provided and must protect against encountering unacceptable stall characteristics and against encountering stall.
(a) Stall warning with the flaps and landing gear in any normal position must be clear and distinctive to the pilot and meet the requirements specified in paragraphs (d) and (e) below.
(b) Stall warning must also be provided in each abnormal configuration of the high lift devices that is likely to be used in flight following system failures.
(c) The warning may be furnished either through the inherent aerodynamic qualities of the airplane or by a device that will give clearly distinguishable indications under expected conditions of flight. However, a visual stall warning device that requires the attention of the crew within the cockpit is not acceptable by itself. If a warning device is used, it must provide a warning in each of the airplane configurations prescribed in paragraph (a) above and for the conditions prescribed in paragraphs (d) and (e) below.
(d) In non-icing conditions stall warning must provide sufficient margin to prevent encountering unacceptable stall characteristics and encountering stall in the following conditions:
(1) In power off straight deceleration not exceeding 1 knot per second to a speed 5 knots or 5 percent calibrated airspeed, whichever is greater, below the warning onset.
(2) In turning flight stall deceleration at entry rates up to 3 knots per second when recovery is initiated not less than 1 second after the warning onset.
(e) In icing conditions stall warning must provide sufficient margin to prevent encountering unacceptable characteristics and encountering stall, in power-off straight and turning flight decelerations not exceeding 1 knot per second, when the pilot starts a recovery maneuver not less than three seconds after the onset of stall warning.
(f) An airplane is considered stalled when the behavior of the airplane gives the pilot a clear and distinctive indication of an acceptable nature that the airplane is stalled. Acceptable
(1) A nose-down pitch that cannot be readily arrested;
(2) Buffeting, of a magnitude and severity that is strong and effective deterrent to further speed reduction; or
(3) The pitch control reaches the aft stop and no further increase in pitch attitude occurs when the control is held full aft for a short time before recovery is initiated.
(g) An aircraft exhibits unacceptable characteristics during straight or turning flight decelerations if it is not always possible to produce and to correct roll and yaw by unreversed use of aileron and rudder controls, or abnormal nose-up pitching occurs.
In lieu of both §§ 25.201 and 25.203, we propose the following requirements:
In lieu of § 25.201:
(a) Maneuvers to the limit of the longitudinal control, in the nose-up pitch, must be demonstrated in straight flight and in 30° banked turns with:
(1) The high incidence protection system operating normally;
(2) Initial power conditions of:
i. Power off; and
ii. The power necessary to maintain level flight at 1.5 V
(3) Flaps, landing gear, and deceleration devices in any likely combination of positions;
(4) Representative weights within the range for which certification is requested; and
(5) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.
(b) The following procedures must be used to show compliance in non-icing and icing conditions:
(1) Starting at a speed sufficiently above the minimum steady flight speed to ensure that a steady rate of speed reduction can be established, apply the longitudinal control so that the speed reduction does not exceed 1 knot per second until the control reaches the stop;
(2) The longitudinal control must be maintained at the stop until the airplane has reached a stabilized flight condition and must then be recovered by normal recovery techniques;
(3) Maneuvers with increased deceleration rates:
(i) In non-icing conditions, the requirements must also be met with increased rates of entry to the incidence limit, up to the maximum rate achievable; and
(ii) In icing conditions, with the anti-ice system working normally, the requirements must also be met with increased rates of entry to the incidence limit, up to 3 knots per second; and
(4) Maneuver with ice accretion prior to operation of the normal anti-ice system. With the ice accretion prior to operation of the normal anti-ice system, the requirements must also be met in deceleration at 1 knot per second up to full back stick.
In lieu of § 25.203:
In icing and non-icing conditions:
(a) Throughout maneuvers with a rate of deceleration of not more than 1 knot per second, both in straight flight and in 30° banked turns, the airplane's characteristics must be as follows:
(1) There must not be any abnormal nose-up pitching.
(2) There must not be any uncommanded nose-down pitching, which would be indicative of stall. However, reasonable attitude changes associated with stabilizing the incidence at Alpha limit as the longitudinal control reaches the stop would be acceptable.
(3) There must not be any uncommanded lateral or directional motion and the pilot must retain good lateral and directional control, by conventional use of the controls, throughout the maneuver.
(4) The airplane must not exhibit buffeting of a magnitude and severity that would act as a deterrent from completing the maneuver specified in paragraph 5.1(a).
(b) In maneuvers with increased rates of deceleration, some degradation of characteristics is acceptable, associated with a transient excursion beyond the stabilized Alpha limit. However, the airplane must not exhibit dangerous characteristics or characteristics that would deter the pilot from holding the longitudinal control on the stop for a period of time appropriate to the maneuver.
(c) It must always be possible to reduce incidence by conventional use of the controls.
(d) The rate at which the airplane can be maneuvered from trim speeds associated with scheduled operating speeds such as V
Also in lieu of § 25.201:
(a) In non-icing conditions:
Maneuvers with a rate of deceleration of not more than 1 knot per second up to the angle of attack at which V
(1) The high incidence protection deactivated or adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system;
(2) Automatic thrust increase system inhibited (if applicable);
(3) Engines idling;
(4) Flaps and landing gear in any likely combination of positions; and
(5) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.
(b) In icing conditions:
Maneuvers with a rate of deceleration of not more than 1 knot per second up to the maximum angle of attack reached during maneuvers from paragraph 5.1(b)(3)(ii) must be demonstrated in straight flight with:
(1) The high incidence protection deactivated or adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system;
(2) Automatic thrust increase system inhibited (if applicable);
(3) Engines idling;
(4) Flaps and landing gear in any likely combination of positions, and
(5) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.
(c) During the maneuvers used to show compliance with paragraphs (a) and (b) above, the airplane must not exhibit dangerous characteristics, and it must always be possible to reduce angle of attack by conventional use of the controls. The pilot must retain good lateral and directional control, by conventional use of the controls, throughout the maneuver.
Operation of the high incidence protection system must not adversely affect aircraft control during expected levels of atmospheric disturbances, nor impede the application of recovery procedures in case of wind-shear. This must be demonstrated in non-icing and icing conditions.
We propose the following requirement be added in lieu of § 25.21(b), [Reserved]:
(b) The flying qualities must be evaluated at the most unfavorable center-of-gravity position.
We propose the following requirements:
• For § 25.145(a), add “V
• For § 25.145(b)(6), and “V
• For § 25.1323(d), add “From 1.23 V
The following special conditions are in lieu of the specified paragraphs of §§ 25.103, 25.105, 25.107, 25.121, 25.123, 25.125, 25.143, and 25.207.
1. Define the stall speed as provided in these special conditions, Part I, in lieu of § 25.103.
2. We propose the following requirements in lieu of § 25.105(a)(2)(i):
In lieu of § 25.105(a)(2)(i) Takeoff:
(i) The V
3. In lieu of § 25.107(c) and (g) we propose the following requirements, with additional sections (c☐) and (g☐):
In lieu of § 25.107(c) and (g) Takeoff speeds:
(c) In non-icing conditions V
(1) V
(2) V
(3) A speed that provides the maneuvering capability specified in § 25.143(h).
(c☐) In icing conditions with the “takeoff ice” accretion defined in part 25, appendix C, V
(1) The V
(2) A speed that provides the maneuvering capability specified in § 25.143(h).
(g) In non-icing conditions, V
(1) 1.18 V
(2) A speed that provides the maneuvering capability specified in § 25.143(h).
(g☐) In icing conditions with the “final takeoff ice” accretion defined in part 25, appendix C, V
(1) The V
(2) A speed that provides the maneuvering capability specified in § 25.143(h).
4. In lieu of §§ 25.121(b)(2)(ii)(A), 25.121(c)(2)(ii)(A), and 25.121(d)(2)(ii), we propose the following requirements:
In lieu of § 25.121(b)(2)(ii)(A):
(A) The V
In lieu of § 25.121(c)(2)(ii)(A):
(A) The V
In lieu of § 25.121(d)(2)(ii):
(d)(2) The requirements of subparagraph (d)(1) of this paragraph must be met:
(ii) In icing conditions with the approach ice accretion defined in appendix C, in a configuration corresponding to the normal all-engines-operating procedure in which V
5. In lieu of § 25.123(b)(2)(i) we propose the following requirements:
In lieu of § 25.123(b)(2)(i):
(i) The minimum en-route speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the en-route configuration, or
6. In lieu of § 25.125(b)(2)(ii)(B) and § 25.125(b)(2)(ii)(C), we propose the following requirement:
(B) A speed that provides the maneuvering capability specified in § 25.143(h) with the landing ice accretion defined in part 25, appendix C.
7. In lieu of § 25.143(j)(2)(i), we propose the following requirement:
(i) The airplane is controllable in a pull-up maneuver up to 1.5 g load factor or lower if limited by angle of attack protection; and
8. In lieu of § 25.207, Stall warning, to read as the requirements defined in these special conditions Part I, Section 4.
Federal Aviation Administration (FAA), DOT.
Final special condition; request for comments.
These special conditions are issued for Gulfstream Aerospace Corporation Model GVI airplane. This airplane, as modified by Gulfstream Aerospace Corporation, will have novel or unusual design features associated with the installation of electro-hydraulically operated seats with a backup power supply (BPS) and hydraulic reservoir, pump, and actuators, as well as massage and heating functions. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. 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.
The effective date of these special conditions is September 3, 2014. We must receive your comments by October 20, 2014.
Send comments identified by docket number FAA–2014–0419 using any of the following methods:
•
•
•
•
Dan Jacquet, FAA, Airframe and Cabin Safety Branch, ANM–115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone 425–227–2676; facsimile 425–227–1320.
The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On June 14, 2014, Gulfstream Aerospace Corporation applied for an amendment to a Supplemental Type Certificate (STC) ST04252AT–D for the installation of electro-hydraulically operated seats with novel or unusual features in the Model GVI airplane. These features include a backup power supply used to return the backrest, seat pan, and leg rest to the taxi, takeoff, and landing (TT&L) position in the event of a power failure. In addition, each seat contains a hydraulic reservoir, pump, and actuators, as well as massage and heating functions. The Model GVI is a business jet airplane powered by two Rolls-Royce Deutschland Ltd. and Company KG turbofan engines and is certified for 19 passengers and a crew of 3.
Under the provisions of Title 14, Code of Federal Regulation (14 CFR) 21.101, Gulfstream Aerospace Corporation must show that the Model GVI, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. T00015AT or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. T00015AT are as follows:
• 14 CFR part 25,
• 14 CFR part 36,
• Compliance with Section 44715(e) of Title 49 U.S.C. (Noise Control Act of 1972).
• Optional Design Regulations:
(a) The Model GVI has been shown to comply with the requirements for ditching: §§ 25.801, 25.563, 25.807(e), and 25.1585(a). When the operating rules require emergency ditching equipment, compliance with §§ 25.1411 and 25.1415 must be shown. Gulfstream Report GVI–GER–1709, “Design Requirements Document for Ditching Equipment,” provides an acceptable means for showing compliance with §§ 25.1411 and 25.1415.
(b) The Model GVI is approved for flight into known icing conditions and has demonstrated compliance to § 25.1419.
•
In addition, the certification basis includes certain special conditions, exemptions, and equivalent safety findings that are not relevant to these proposed special conditions.
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 Gulfstream Model GVI because of a novel or unusual design feature, special conditions are prescribed under the provisions of 14 CFR 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a STC to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model.
In addition to the applicable airworthiness regulations and special conditions, the Gulfstream Model GVI 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.
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 14 CFR 21.101.
The Gulfstream Model GVI will incorporate the following novel or unusual design features: Hydraulically-actuated components on airplane seats including hydraulic reservoir, pump, and actuators, as well as massage and heating functions and backup power systems.
Hydraulically-actuated components and backup power systems on airplane seats are considered novel or unusual by the FAA. Therefore, we developed special conditions that contain the additional standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The FAA has considered the installation of seats with these features to have four primary safety concerns:
1. Reliability of the backup power supply;
2. Safety hazards to the occupants from the hydraulically-actuated components of the seat;
3. Structural integrity of the hydraulic components; and
4. Flammability.
Emergency exits must be accessible to the passengers and the effectiveness of evacuation must be maintained. Typical airplane seats can be manually positioned to the lateral (track) and directional (swivel) TT&L position by mechanical means, so they can be positioned in the event of a loss of cabin power. For this electro-hydraulically operated seat design, in lieu of a manual means to re-position the hydraulically operated seat features (backrest, seat pan, and leg rest deployment) for TT&L, a BPS is used to temporarily power the hydraulic system. The BPS is only intended for use in the event of a loss of cabin power. If the seats are installed in the path of the emergency over wing exits, failure to return the seat to a TT&L position may have an adverse effect on evacuation. Substantiation of 14 CFR 25.809(b) and 25.813(c)(2)(ii) must be shown with the seats in their most adverse positions.
It must be shown that the hydraulically-actuated components of the seat pose no safety hazard to the occupants or airplane. This includes injuries caused by crushing of airplane occupants who are between the hydraulically-actuated components and any part of the passenger cabin when seat features (e.g., leg rest or backrest) are actuated. Additionally, the risk of loss of function of a control or proximity switch resulting in the pump motor being commanded to stay on, after the hydraulic actuator(s) have reached their maximum/minimum limit, must not cause the overloaded motor to overheat, as it could catch fire.
The FAA has also considered the emergency landing dynamic conditions for the installation of electro-hydraulically actuated seats. The applicant must show that the hydraulic system (actuators, reservoir, lines, etc.) remains intact and free from leakage under the conditions specified in § 25.562. Testing of each seat's hydraulic system per § 25.1435(c) may be conducted off of the airplane.
Flammability of hydraulic fluid used in the seat movement mechanism must be considered. If the fluid is flammable, it could contribute to a post-crash or in-flight fire. Any failure modes that would result in release of the flammable hydraulic fluid during a post-crash or in-flight fire causing such fluid to materially increase an existing fire must be examined. Examples of this could be flex lines burning through and releasing the flammable hydraulic fluid, or the fluid reservoir could be heated in a fire resulting in a boiling liquid expanding vapor explosion. The potential for spontaneous ignition of the fluid coming into contact with hot surfaces or other ignition sources should also be addressed. The applicant should examine any possible failure mode in which the flammable hydraulic fluid could be absorbed into materials, like the seat foam/fabric, carpeting, etc. The applicant must show that any fluid-soaked seat parts are still self-extinguishing. The applicant must also show that flammability of dry residue, which may be present from a slow leak/fluid weepage, does not degrade the flammability characteristics of any materials it may come into contact with to a level below the requirements specified in § 25.853.
As discussed above, these special conditions are applicable to STC ST04252AT–D, which modifies the Gulfstream Model GVI airplane. Should Gulfstream Aerospace Corporation apply at a later date to amend this STC to incorporate the same novel or unusual design feature, the special conditions would apply to that amended STC as well.
This action affects only certain novel or unusual design features on one airplane model. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the
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 Gulfstream Aerospace Corporation airplanes modified by Gulfstream Aerospace Corporation.
1. The probability of failure of the backup power supply to return seat components to the required taxi, takeoff, and landing position must be shown to be no greater than 10
2. It must be shown that the hydraulically-actuated components of the seat pose no safety hazard to the occupants. Hazards to be considered per the latest revision of Advisory Circular 25.1309–1, at a minimum are:
a. Injuries caused by crushing of airplane occupants who are between the hydraulically actuated components and any part of the passenger cabin when the leg rest or backrest is actuated.
b. The risk of loss of function of a control or proximity switch resulting in the pump motor being commanded to stay on after the hydraulic actuator(s) have reached their maximum/minimum limit, creating potential for overheat or fire.
c. The potential for a significant contribution to a fire in the event fluid comes into contact with hot surfaces or other ignition sources, and the potential for release of toxic or flammable vapors/gasses.
3. It must be shown that the hydraulic system (actuators, reservoir, lines, etc.) remains intact and free from leakage under the conditions specified in § 25.562. Testing of each seat's hydraulic system per § 25.1435(c) may be conducted off of the airplane.
4. Section 25.863 requires consideration of any effects the fluid, including the fluid as a dry residue, could have on combustible or absorbing materials. The characteristics of the flammable fluid in these conditions must be tested to the requirements of § 25.853(a) and (c), or the materials must be shielded in a manner that prevents contact by the fluid. However, as an alternative to such testing or shielding, the applicant may provide, in accordance with § 25.863(c), a quick-acting means that alerts the crew that the fluid has leaked.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all Pratt & Whitney Canada Corp. (P&WC) PT6A–114 and PT6A–114A turboprop engines. This AD requires initial and repetitive borescope inspection (BSI) of compressor turbine (CT) blades, and the removal from service of blades that fail inspection. This AD was prompted by several incidents of CT blade failure, causing power loss, and engine failure. We are issuing this AD to prevent failure of CT blades, which could result in damage to the engine and damage to the airplane.
This AD becomes effective October 8, 2014.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of October 8, 2014.
For service information identified in this AD, contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin, Longueuil, Quebec, Canada, J4G 1A1; phone: 800–268–8000; fax: 450–647–2888; Internet:
You may examine the AD docket on the Internet at
Robert Morlath, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7154; fax: 781–238–7199; email:
We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The SNPRM was published in the
There have been a number of reported incidents where Compressor Turbine (CT) blade failures have caused power loss on PT6A–114 & PT6A–114A engines, resulting in in-flight shutdown (IFSD). Investigation by engine manufacturer Pratt & Whitney Canada (P&WC) has determined that when operated at high power and high temperature settings, the subject CT blades are prone to crack/fracture as a result of creep and/or sulfidation.
P&WC issued Service Bulletin (SB) 1669 that introduces a newly designed CT blade which has proven to be far less affected by the blade “Creep” phenomenon. Additionally, to help prevent IFSD by identifying pending creep induced blade failure of the pre-SB 1669 configuration blades, P&WC has revised SB 1669 to include specific inspection/maintenance requirements for engines with pre-SB 1669 configuration CT blade installation.
An engine power loss or IFSD on a single engine powered aeroplane such as Cessna 208 could result in an unsafe condition. AD CF–2013–21 was issued on 1 August 2013 to mandate compliance with SB 1669R9 requirements to inspect and replace the existing CT blades on PT6A–114 & PT6A–114A engines with a new type of post SB 1669 configuration CT blades. P&WC, through SB 1727, has now introduced a new version of the post SB 1669 configuration CT blade that features a tighter tolerance on the platform width. This enhances the ability of the maintainer to achieve the required inter-platform gap.
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
One commenter requested that we remove the mandatory terminating action requirement to install P&WC single crystal CT blades, part numbers (P/Ns) 3072791–01 and 3072791–02. The commenter states that mandating the installation of an unproven replacement CT blade is not prudent and could be costly. The post-SB blade has a questionable operating history including failure. This blade has been identified for removal in the PT6A–34 and –36 engines, so it should not be made mandatory for installation in the PT6A–114 engine.
We do not agree. P&WC single crystal CT blades, P/Ns 3072791–01 and 3072791–02, are proven replacement CT blades for the PT6A–114 and PT6A–114A engines. These single crystal CT blades have successfully performed over 2 million flight hours in service and have displayed a lower rate of failure than older CT blade designs. An ongoing investigation into blade failures on other PT6A series engines has shown that the root cause of those failures does not impact the PT6A–114 and PT6A–114A fleets. Therefore, P&WC single crystal CT blades, P/Ns 3072791–01 and 3072791–02, have not been identified for removal from the PT6A–114 and PT6A–114A series engines. We did not change this AD.
One commenter suggested that the 36-month compliance time for the mandatory terminating action is not appropriate. The commenter states that mandating replacement of the complete set of single crystal CT blades withP/N 3072791–02 blades within 36 months is an undue cost burden for certain operators and that the availability of CT blade, P/N 3072791–02, is unreliable. The operator will not reach the next scheduled hot section interval prior to 36 months, thereby causing the performance of the next hot section inspection (HSI) sooner than necessary.
We do not agree. The 36-month compliance time for installing single crystal CT blades, P/Ns 3072791–01 and 3072791–02, adequately addresses the unsafe condition without imposing undue burden on operators. P&WC single crystal CT blades, P/Ns 3072791–01 and 3072791–02 are currently available from P&WC both as replacement parts and installed in new production engines. We did not change this AD.
Hawkins Aero Engineering, Inc. (Hawkins Aero) requested that the mandatory terminating action be changed to allow for installation of CT
We do not agree. We cannot approve P/Ns that do not exist. We did not change this AD.
One commenter requested that we remove P&WC SB No. PT6A–72–1669 and CT blade, P/N 3072791–01, from this AD. The commenter states that this SB introduces CT blade, P/N 3072791–01, which is no longer available. The commenter suggests that in this AD, to avoid confusion when an operator reviews engine repair records to determine SB compliance, we should mention only P&WC SB No. PT6A–72–1727, which introduces single crystal CT blade, P/N 3072791–02.
We partially agree. We agree that referencing P&WC SB No. PT6A–72–1669 in this AD may introduce some confusion as to what P/Ns are mandated for installation.
We disagree with removing all references to P&WC SB No. PT6A–72–1669 from this AD because this SB contains instructions on performing the optional metallurgical examination cited in paragraph (e)(1)(iii)(B) of this AD.
We disagree with removing all references to single crystal CT blade, P/N 3072791–01, because it is still acceptable for installation even though it is no longer in production.
We made the following change to the Credit for Previous Actions paragraph of this AD: “If you performed a metallurgical examination of single crystal CT blades in accordance with P&WC SB No. PT6A–72–1669, Revision 9, dated June 28, 2013, or earlier versions, you met the initial inspection requirements of paragraph (e)(1)(i) of this AD. However, you must still comply with the repetitive BSI requirement of paragraph (e)(1)(ii) of this AD.”
Hawkins Aero requested that we re-evaluate the stated number of fatalities that have been associated with CT blade failures. Hawkins Aero then provided a brief synopsis of recent fatal incidents involving CT blade failures and associated forced landings that provide a different number than what was published in the SNPRM (79 FR 26901, May 12, 2014).
We partially agree. We agree that we should be accurate in what we report. We disagree that we must identify fatalities to demonstrate the need for the AD. We changed the justification statement in the Summary and Unsafe Condition paragraphs to state that “This AD was prompted by several incidents of CT blade failure, causing power loss, and engine failure.”
One commenter requested that we re-evaluate the costs of compliance. The commenter states that the cost of performing the HSI, other than the cost of the blades, was not considered. The commenter also indicated that the hidden cost of installing the post-SB blades has not been revealed. The replacement single crystal CT blades have a hard time life limit of 10,000 hours, whereas the CT blades that are being replaced do not. The post-SB blades have a lower stretch inspection interval of 4,000 hours compared to 5,000 for pre-SB blades.
We do not agree. The cost of compliance calculation includes the initial work and parts costs associated with removing the unsafe condition. It does not include costs associated with normal scheduled maintenance. We did not change this AD.
Hawkins Aero requested that we approve AMOCs to this AD.
We do not agree. This AD sets forth our required method of compliance to correct the specified unsafe condition. Operators may request AMOCs to this AD using the procedures below. We did not change this AD.
Hawkins Aero requested that each time we reference the single crystal CT blades in this AD we use the nomenclature “P&WC single crystal CT blade P/N's 3072791–01 and 3072791–02.” The commenter states that “In several locations within the SNPRM the FAA has referred to: `single crystal CT blades P/Ns 3072791–01 or 3072791–02,' `CT blades, part numbers P/Ns 3072791–01 or 3072791–02,' and `P&WC single crystal CT blades P/Ns 3072791–01 or 3072791–02'.”
We agree. We changed this AD by replacing all references to the single crystal CT blades with the nomenclature “P&WC single crystal CT blades, P/Ns 3072791–01 and 3072791–02.”
One commenter requested that we clarify the language in paragraph (e)(1)(iii)(A) of this AD with a specific P/N.
We do not agree. Operators may install any P/N single crystal CT blade eligible for installation. We did not change this AD.
One commenter requested that we re-evaluate the 1,800 hour assumption for a typical hot section interval. The commenter states, “Assuming that 1,800 hours is the normal interval for all operators is incorrect; some operators have extended intervals up to and including On Condition; therefore, stating to perform the AD at next HSI could be much longer than the expected 1,800 hours.”
We do not agree. We did not assume 1,800 hours as a typical HSI interval. This AD requires blade examination or replacement at next HSI, and not at specific flight-hour or cycles-in-operation intervals, precisely due to the wide variety of approved inspection intervals that exist for these engines. We did not change this AD.
We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We estimate that this AD affects 300 engines installed on airplanes of U.S. registry. We also estimate that it will take about 4 hours per engine to perform the required inspection and 8 hours to replace the blades. The average labor rate is $85 per hour. Required parts cost about $59,334 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $18,106,200, if all blades are replaced.
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:
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 AD:
(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 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 becomes effective October 8, 2014.
None.
This AD applies to all Pratt & Whitney Canada Corp. (P&WC) PT6A–114 and PT6A–114A turboprop engines.
This AD was prompted by several incidents of compressor turbine (CT) blade failure, causing power loss, and engine failure. We are issuing this AD to prevent failure of CT blades, which could lead to damage to the engine and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) For engines that have CT blades installed other than P&WC single crystal CT blades, part numbers (P/Ns) 3072791–01 or 3072791–02, perform the following actions:
(i) Within 150 operating hours after the effective date of this AD, perform a borescope inspection (BSI) of CT blades for engines with 500 or more hours time-since-new that have not been previously inspected or time-since-last-inspection (TSLI).
(ii) Thereafter, repeat the inspection in paragraph (e)(1)(i) of this AD within 500 flight hours TSLI.
(iii) During the next hot section inspection (HSI) after the effective date of this AD, and each HSI thereafter, replace the complete set of CT blades with any of the following:
(A) New CT blades;
(B) CT blades that have passed a two-blade metallurgical examination in accordance with paragraph 3.B., Accomplishment Instructions, of P&WC Service Bulletin (SB) No. PT6A–72–1669, Revision 9, dated June 28, 2013; or
(C) P&WC single crystal CT blades, P/Ns 3072791–01 or 3072791–02.
(2) Reserved.
Within 36 months after the effective date of this AD, replace the complete set of CT blades with P&WC single crystal CT blades, P/Ns 3072791–01 or 3072791–02.
If you performed a metallurgical examination of single crystal CT blades before the effective date of this AD in accordance with P&WC SB No. PT6A–72–1669, Revision 8, dated January 17, 2013, or earlier versions, all of which are not incorporated by reference, you have met the initial inspection requirements of paragraph (e)(1)(i) of this AD. However, you must still comply with the repetitive BSI requirement of paragraph (e)(1)(ii) of this AD.
The Manager, Engine Certification Office, FAA, may approve AMOCs to this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For more information about this AD, contact Robert Morlath, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7154; fax: 781–238–7199; email:
(2) Refer to Transport Canada Civil Aviation AD CF–2013–21R1, dated November 13, 2013, for more information. You may examine the MCAI in the AD docket on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Pratt & Whitney Canada Service Bulletin No. PT6A–72–1669, Revision 9, dated June 28, 2013.
(ii) Reserved.
(3) For P&WC service information identified in this AD, contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin, Longueuil, Quebec, Canada, J4G 1A1; phone: 800–268–8000; fax: 450–647–2888; Internet:
(4) You may view this service information at FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
(5) You may view this service information at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus Model A300 series airplanes; Model A300 B4–600, B4–600R, and F4–600R series airplanes; Model A300 C4–605R Variant F airplanes (collectively called Model A300–600 series airplanes); and Model A310 series airplanes. This AD was prompted by reports of rupture of the uplock springs of the nose landing gear (NLG) and main landing gear (MLG) doors and legs. This AD requires repetitive inspections of the uplock springs of the NLG and MLG doors and legs for broken and damaged springs, and corrective actions if necessary. We are issuing this AD to detect and correct improper free fall extension of the MLG or NLG, which could lead to possible loss of control of the airplane on the ground, and consequent damage to the airplane and injury to occupants.
This AD becomes effective October 8, 2014.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 8, 2014.
You may examine the AD docket on the Internet at
For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Dan Rodina, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–2125; fax 425–227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A300 series airplanes; Model A300 B4–600, B4–600R, and F4–600R series airplanes; Model A300 C4–605R Variant F airplanes (collectively called Model A300–600 series airplanes); and Model A310 series airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2013–0150, dated July 16, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A300 series airplanes; Model A300 B4–600, B4–600R, and F4–600R series airplanes; Model A300 C4–605R Variant F airplanes (collectively called Model A300–600 series airplanes); and Model A310 series airplanes. The MCAI states:
Springs within the uplock are used to either lock the gear or the door in the up position, or to participate in emergency mechanical unlocking.
The springs are positioned in pairs, and in case of rupture of one spring the other one remains to fulfill the function, whereas the rupture of both springs will disable the locking function or the emergency unlocking function.
This condition, if not detected and corrected, could prevent proper free fall extension of the MLG or NLG, possibly leading to loss of control of the aeroplane on the ground, consequently resulting in damage to the aeroplane and injury to occupants.
For the reason described above, this [EASA] AD requires [repetitive] detailed visual inspection[s] of the NLG and MLG Door and Leg Uplock springs [for broken and damaged springs] and, depending of findings, their replacement.
You may examine the MCAI 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 (79 FR 13003, March 7, 2014) or on the determination of the cost to the public.
Since late 2006, we have included a standard paragraph titled “Airworthy Product” in all MCAI ADs in which the FAA develops an AD based on a foreign authority's AD.
We have become aware that some operators have misunderstood or misinterpreted the Airworthy Product paragraph to allow the owner/operator to use messages provided by the manufacturer as approval of deviations during the accomplishment of an AD-mandated action. The Airworthy Product paragraph does not approve messages or other information provided by the manufacturer for deviations to the requirements of the AD-mandated actions. The Airworthy Product paragraph only addresses the requirement to contact the manufacturer for corrective actions for the identified unsafe condition and does not cover deviations from other AD requirements. However, deviations to AD-required actions are addressed in 14 CFR 39.17, and anyone may request the approval for an alternative method of compliance to the AD-required actions using the procedures found in 14 CFR 39.19.
To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed the paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this AD to obtain corrective actions from a manufacturer, the actions must be accomplished using a method approved by the FAA, the European Aviation Safety Agency (EASA), or Airbus's EASA Design Organization Approval (DOA).
The Contacting the Manufacturer paragraph also clarifies that, if approved by the DOA, the approval must include the DOA-authorized signature. The DOA signature indicates that the data and information contained in the document are EASA-approved, which is also FAA-approved. Messages and other information provided by the manufacturer that do not contain the DOA-authorized signature approval are not EASA-approved, unless EASA directly approves the manufacturer's message or other information.
This clarification does not remove flexibility previously afforded by the Airworthy Product paragraph. Consistent with long-standing FAA policy, such flexibility was never intended for required actions. This is also consistent with the recommendation of the Airworthiness Directive Implementation Aviation Rulemaking Committee to increase flexibility in complying with ADs by identifying those actions in manufacturers' service instructions that are “Required for Compliance” with ADs. We continue to work with manufacturers to implement this
We also have decided not to include a generic reference to either the “delegated agent” or “design approval holder (DAH) with State of Design Authority design organization approval,” but instead we have provided the specific delegation approval granted by the State of Design Authority for the DAH throughout this AD.
We reviewed the relevant data and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (79 FR 13003, March 7, 2014) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 13003, March 7, 2014).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We estimate that this AD affects 156 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
In addition, we estimate that any necessary replacement would take about 9 work-hours for a cost of $765 per product. The cost of parts is minimal. We have no way of determining the number of aircraft that might need this action.
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 that this AD:
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.
You may examine the AD docket on the Internet at
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 becomes effective October 8, 2014.
None.
This AD applies to the Airbus airplanes specified in paragraphs (c)(1), (c)(2), (c)(3), (c)(4), (c)(5), and (c)(6) of this AD; certificated in any category; all serial numbers.
(1) Model A300 B2–1A, B2–1C, B2K–3C, B2–203, B4–2C, B4–103, and B4–203 airplanes.
(2) Model A300 B4–601, B4–603, B4–620, and B4–622 airplanes.
(3) Model A300 B4–605R and B4–622R airplanes.
(4) Model A300 F4–605R and F4–622R airplanes.
(5) Model A300 C4–605R Variant F airplanes.
(6) Model A310–203, –204, –221, –222, –304, –322, –324, and –325 airplanes.
Air Transport Association (ATA) of America Code 32, Landing Gear.
This AD was prompted by reports of rupture of the uplock springs of the nose landing gear (NLG) and main landing gear (MLG) doors and legs. We are issuing this AD to detect and correct improper free fall extension of the MLG or NLG, which could lead to possible loss of control of the airplane on the ground, and consequent damage to the airplane and injury to occupants.
Comply with this AD within the compliance times specified, unless already done.
Within 18 months after the effective date of this AD: Perform a detailed inspection of the uplock springs of the MLG and NLG legs and doors for broken and damaged springs, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD. Repeat the inspection thereafter at intervals not to exceed 18 months.
(1) Airbus Service Bulletin A300–32–0465, Revision 01, dated April 25, 2013 (for Model A300 series airplanes).
(2) Airbus Service Bulletin A300–32–6111, Revision 01, dated April 25, 2013 (for Model A300–600 series airplanes).
(3) Airbus Service Bulletin A310–32–2147, Revision 01, dated April 25, 2013 (for Model A310 series airplanes).
The corrective actions required by paragraphs (h)(1), (h)(2), and (h)(3) of this AD do not constitute terminating actions for the repetitive inspections required by paragraph (g) of this AD.
(1) If, during any inspection required by paragraph (g) of this AD, one spring on the MLG or NLG door uplock is found broken or damaged, within 2 months after the inspection, replace the affected MLG or NLG door uplock, as applicable, with a serviceable part, in accordance with the Accomplishment Instructions of the applicable service bulletin identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.
(2) If, during any inspection required by paragraph (g) of this AD, one spring on the MLG or NLG leg uplock is found broken or damaged, repeat the inspection required by paragraph (g) of this AD thereafter at intervals not to exceed 50 flight cycles. Replacement of any affected leg uplock, as required by paragraph (h)(2)(i) or (h)(2)(ii) of this AD, as applicable, constitutes terminating action for the repetitive inspections required by paragraph (h)(2) of this AD.
(i) If, during any inspection required by paragraph (h)(2) of this AD, the second free fall spring on the MLG or NLG leg uplock is found broken or damaged, before further flight, replace the affected MLG or NLG leg uplock, as applicable, with a serviceable part, in accordance with the Accomplishment Instructions of the applicable service bulletin identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.
(ii) Within 1,000 flight cycles after doing the inspection required by paragraph (g) of this AD during which the spring has been found broken, replace the affected MLG or NLG leg uplock, as applicable, with a serviceable part, in accordance with the Accomplishment Instructions of the applicable service bulletin identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.
(3) If, during any inspection required by paragraph (g) of this AD, two free fall springs on the same MLG or NLG leg uplock are found broken or damaged, before further flight, replace the affected MLG or NLG leg uplock, as applicable, with a serviceable part, in accordance with the Accomplishment Instructions of the applicable service bulletin identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.
This paragraph provides credit for the applicable actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using the applicable service information identified in paragraph (i)(1), (i)(2), or (i)(3) of this AD.
(1) Airbus Service Bulletin A300–32–0465, dated July 20, 2012, which is not incorporated by reference in this AD.
(2) Airbus Service Bulletin A300–32–6111, dated July 20, 2012, which is not incorporated by reference in this AD.
(3) Airbus Service Bulletin A310–32–2147, dated July 20, 2012, which is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2013–0150, dated July 16, 2013, for related information. This MCAI may be found in the AD docket on the Internet at
(2) Service information identified in this AD that is not incorporated by reference may be viewed at the addresses specified in paragraphs (l)(3) and (l)(4) of this AD.
(1) The Director of the
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus Service Bulletin A300–32–0465, Revision 01, dated April 25, 2013.
(ii) Airbus Service Bulletin A300–32–6111, Revision 01, dated April 25, 2013.
(iii) Airbus Service Bulletin A310–32–2147, Revision 01, dated April 25, 2013.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for all Harry E. Williams de Havilland Model DH 82A airplanes, all Cliff Robertson de Havilland Model DH 82A airplanes, and all de Havilland Model DH 83 airplanes. This AD requires inspecting the aircraft maintenance records and/or the installed lateral fuselage tie rods and
This AD is effective September 18, 2014.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 18, 2014.
We must receive comments on this AD by October 20, 2014.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this AD, for de Havilland DH 82A airplanes, contact de Havilland Support Ltd., Building 213, Duxford Airfield, Cambridge, United Kingdom CB22 4QR, telephone: +44 (0) 1223 830090; fax: +44 (0) 1223 83008; email:
For service information identified in this AD, for de Havilland DH 83, contact Air Stratus Ltd., Oaksey Park Airfield, Oaksey, Malmesbury, Wiltshite, United Kingdom SN 16 9SD, telephone: +44 (0) 1666 575111; no known Internet address.
You may view this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64016. For information on the availability of this material at the FAA, call (816) 329–4148.
You may examine the AD docket on the Internet at
For airplanes covered under Type Certificate Data Sheet (TCDS) A5PC (Model de Havilland DH 82A airplanes built in Australia): Andrew McAnaul, Aerospace Engineer, FAA, Fort Worth Airplane Certification Office, ASW–150 (c/o San Antonio MIDO), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; phone: (210) 308–3365; fax: (210) 308–3370; email:
For airplanes covered under TCDS A8EU (Model de Havilland DH 82A airplanes built in the United Kingdom): Fred Guerin, Aerospace Engineer, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Blvd., Suite 100, Lakewood, California 90712; phone (562) 627–5232; fax: (562) 627–5210; email:
For airplanes covered under TCDS 2–439 (Model de Havilland DH 83 airplanes built in the United Kingdom): Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; phone: (816) 329–4123; fax: (816) 329–4090; email:
We received a report from the Australia Transportation Safety Board (ASTB) of accident investigation results on a de Havilland Model DH 82A airplane, which had a wing failure in flight. Investigation revealed that both of the accident airplane's fuselage lateral tie rods, which join the lower wings to the fuselage, were found fractured in three of the four threaded sections near the join with the left wing. The failed lateral fuselage tie rods, part number JRA–776–1, were under an Australian parts manufacturing approval (PMA) and were found to have different characteristics than the OEM parts.
Although the defective PMA parts were manufactured in Australia, some airplanes of U.S. registry may have the PMA parts installed.
De Havilland Model DH 82A airplanes (commonly referred to as Tiger Moths) are type certificated under two type certificates. TCDS A5PC, currently held by Harry E. Williams, is for airplanes built in Australia, and TCDS A8EU, currently held by Cliff Robertson, c/o Gadbois Business Management, is for airplanes built in the United Kingdom. This type certification approval was not by validation, but by an acceptance process; as such, the U.S. type certificate holders are not the manufacturers of the airplanes and the original manufacturers (de Havilland and its licensees) are not type certificate holders.
De Havilland Support Ltd (DHSL) holds the type certificate responsibility for de Havilland Model DH 82A airplanes (the type design for TCDS A8EU) in the United Kingdom.
DHSL is custodian of the airframe design data, manufacturing drawings, and repair schemes still in existence for de Havilland Model DH 82A Tiger Moth series airplanes only. In 2012, DHSL entered into a CAA Type Responsibility Agreement (TRA) so that the airplane remains eligible, if required, for an ICAO-compliant Certificate of Airworthiness to facilitate training and pleasure flying.
Similarly, Air Stratus Ltd holds the type certificate responsibility for de Havilland Model DH 83 airplanes (the type design for TCDS 2–439) in the United Kingdom.
The process for making mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country mandatory for airplanes of U.S. registry is through rulemaking.
This condition, if not corrected, could result in structural failure of the attachment of the wing to the fuselage. We are issuing this AD to correct the unsafe condition on these products.
We reviewed British Aerospace Military Aircraft and Aerostructures BAe Aircraft Bulletin for de Havilland Moth Aircraft, Document Type and Ref No Technical News Sheet CT (Moth) No 29, Issue 3, dated March 1, 1999, which was approved by the Civil Aviation Authority (CAA) for the United Kingdom to ensure the continued airworthiness of these airplanes in the United Kingdom. The service information describes procedures for replacing the lateral tie rods and attaching nuts.
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires inspecting the aircraft maintenance records and/or the installed lateral fuselage tie rods and attaching nuts to determine if they were produced by J & R Aerospace Pty Ltd. This AD also requires replacing all lateral fuselage tie rods and attaching nuts produced by J & R Aerospace Pty Ltd with airworthy parts.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because structural failure of the attachment of the wing to the fuselage could result in loss of control. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 69 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We have no way of determining the number of airplanes that might need this replacement:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 18, 2014.
None.
This AD applies to Harry E. Williams and Cliff Robertson Model de Havilland DH 82A airplanes, all serial numbers, and de Havilland Model DH 83 airplanes, all serial numbers, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 5341, Fuselage, Wing Attach Fittings.
This AD was prompted by reports of structural failure of the attachment of the wing to the fuselage that resulted from failed lateral fuselage tie rods. We are issuing this AD to correct the unsafe condition on these products.
Comply with this AD within the compliance times specified in paragraphs (g) through (j) of this AD, unless already done.
(1) As of September 18, 2014 (the effective date of this AD), the airplane is restricted to non-aerobatic flight until the actions required in paragraphs (h)(1) through (i)(1) of this AD are done.
(2) As of September 18, 2014 (the effective date of this AD), before further flight, place a copy of this AD into the Limitations section of the airplane flight manual (AFM).
Within the next 10 hours time-in-service (TIS) after September 18, 2014 (the effective date of this AD), review the aircraft maintenance records and/or inspect the installed lateral fuselage tie rods and attaching nuts to determine if the lateral fuselage tie rods and attaching nuts were produced by J & R Aerospace Pty Ltd., P/N JRA–776–1 (for de Havilland Model DH 82A airplanes), and P/N JRA–776–3 (for de Havilland Model DH 83 airplanes).
(1) If you are able to positively determine that the installed lateral fuselage tie rods and attaching nuts are not produced by J & R Aerospace Pty Ltd, remove the flight restriction required in paragraph (g) of this AD, and no further action is required by this AD.
(2) If you are not able to positively determine that the installed lateral fuselage tie rods and attaching nuts are not produced by J & R Aerospace Pty Ltd or if you determine that the installed lateral fuselage tie rods and attaching nuts are produced by J & R Aerospace, before further flight, remove and replace the lateral fuselage tie rods and attaching nuts as specified in paragraph (i) of this AD.
(1) Before further flight after making the determination required in paragraph (h)(2) of this AD, remove and destroy the installed lateral fuselage tie rods and attaching nuts and replace the lateral fuselage tie rods and attaching nuts. Replace the lateral tie rods and attaching nuts following the procedures in paragraph 2.C. of the Accomplishment Instructions and using the table on Figure 1 in British Aerospace Military Aircraft and Aerostructures BAe Aircraft Bulletin for De Havilland Moth Aircraft, Document Type and Ref No Technical News Sheet CT (Moth) No 29, Issue 3, dated March 1, 1999.
(2) Before further flight after doing the replacement required in paragraph (i)(1) of this AD, remove the flight restriction required in paragraph (g) of this AD.
As of September 18, 2014 (the effective date of this AD), do not install P/N JRA–776–1 or JRA–776–3 lateral fuselage tie rods manufactured under Australian part manufacture approval (PMA) manufacturer J & R Aerospace Pty Ltd.
Special flight permits are permitted with the following limitations:
(1) No passengers,
(2) Day VRF only,
(3) Straight and level flight, and
(4) Avoid areas of known turbulence.
(1) The Manager of the Fort Worth Airplane Certification Office (ACO), the Manager of the Los Angeles Aircraft Certification Office (ACO), and the Manager of the Standards Office, FAA, have the authority to approve AMOCs for their respective products covered by this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the applicable FAA office, send it to the attention of the person identified in paragraph (n).
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD for airplanes covered under TCDS A5PC (Model de Havilland DH 82A airplanes built in Australia), contact Andrew McAnaul, Aerospace Engineer, FAA, Fort Worth ACO, ASW–150 (c/o San Antonio MIDO), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; phone: (210) 308–3365; fax: (210) 308–3370; email:
(2) For more information about this AD for airplanes covered under TCDS A8EU (Model de Havilland DH 82A airplanes built in the United Kingdom), contact Fred Guerin, Aerospace Engineer, FAA, Los Angeles ACO, 3960 Paramount Blvd., Suite 100, Lakewood, California 90712; phone (562) 627–5232; fax: (562) 627–5210; email:
(3) For more information about this AD for airplanes covered under TCDS 2–439 (Model de Havilland DH 83 airplanes built in the United Kingdom), contact Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329–4123; fax: (816) 329–4090; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) British Aerospace Military Aircraft and Aerostructures BAe Aircraft Bulletin for De Havilland Moth Aircraft, Document Type and Ref No Technical News Sheet CT (Moth) No 29, Issue 3, dated March 1, 1999.
(ii) Reserved.
(3) For British Aerospace Military Aircraft and Aerostructures BAe Aircraft Bulletin for De Havilland Moth Aircraft, Technical New Sheet CT (Moth) No 29, Issue 3, dated March 1, 1999, service information identified in this AD, contact:
(i) For de Havilland DH 82A airplanes: de Havilland Support Ltd, Building 213, Duxford Airfield, Cambridge, United Kingdom CB22 4QR, telephone: +44 (0) 1223 830090; fax: +44 (0) 1223 83008; email:
(ii) For de Havilland DH 83 airplanes: Air Stratus Ltd., Oaksey Park Airfield, Oaksey, Malmesbury, Wiltshite, United Kingdom SN 16 9SD, telephone: +44 (0) 1666 575111; no known Internet address.
(4) You may view this service information at FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64016. For information on the availability of this material at the FAA, call (816) 329–4148.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding Airworthiness Directive (AD) 2011–17–08 for all Airbus Model A330–200 series airplanes, Model A330–200 Freighter series airplanes, and Model A330–300 series airplanes. AD 2011–17–08 required revising the maintenance program by incorporating certain Airworthiness Limitation Items (ALIs). This new AD requires a revision to the maintenance or inspection program, as applicable, to incorporate new or revised structural inspection requirements. This AD was prompted by a revision of certain airworthiness limitations items (ALI) documents, which specifies more restrictive instructions and/or airworthiness limitations. We are issuing this AD to detect and correct fatigue cracking, damage, and corrosion in certain structure, which could result in reduced structural integrity of the airplane.
This AD becomes effective October 8, 2014.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 8, 2014.
The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of September 30, 2011 (76 FR 53303, August 26, 2011).
You may examine the AD docket on the Internet at
For service information identified in this AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1138; fax 425–227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2011–17–08, Amendment 39–16772 (76 FR 53303, August 26, 2011), which superseded AD 2006–09–07, Amendment 39–14577 (71 FR 25919, May 3, 2006). AD 2011–17–08 applied to all Airbus Model A330–200 series airplanes, Model A330–200 Freighter series airplanes, and Model A330–300 series airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012–0211, dated October 12, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A330–200 series airplanes, Model A330–200 Freighter series airplanes, and Model A330–300 series airplanes. The MCAI states:
The airworthiness limitations are currently defined and published in the Airbus A330 Airworthiness Limitations Section (ALS).
The airworthiness limitations applicable to the Damage Tolerant Airworthiness Limitation Items (DT ALI) are currently specified in Airbus A330 ALI, Airbus Document reference AI/SE–M4/95A.0089/97, which is approved by EASA and referenced in Airbus ALS Part 2.
Issue 19 of the Airbus A330 ALI Document introduces more restrictive maintenance requirements and/or airworthiness limitations. Failure to comply with the relevant instructions could result in an unsafe condition.
For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2010–0174 [
The unsafe condition is fatigue cracking, damage, and corrosion in certain structure, which could result in reduced structural integrity of the airplane. You may examine the MCAI 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 (79 FR 19294, April 8, 2014) or on the determination of the cost to the public.
Since late 2006, we have included a standard paragraph titled “Airworthy Product” in all MCAI ADs in which the FAA develops an AD based on a foreign authority's AD.
We have become aware that some operators have misunderstood or misinterpreted the Airworthy Product paragraph to allow the owner/operator to use messages provided by the manufacturer as approval of deviations during the accomplishment of an AD-mandated action. The Airworthy Product paragraph does not approve messages or other information provided by the manufacturer for deviations to the requirements of the AD-mandated actions. The Airworthy Product paragraph only addresses the requirement to contact the manufacturer for corrective actions for the identified unsafe condition and does not cover deviations from other AD requirements. However, deviations to AD-required actions are addressed in 14 CFR 39.17, and anyone may request the approval for an alternative method of compliance to the AD-required actions using the procedures found in 14 CFR 39.19.
To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed the paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this AD to obtain corrective actions from a
The Contacting the Manufacturer paragraph also clarifies that, if approved by the DOA, the approval must include the DOA-authorized signature. The DOA signature indicates that the data and information contained in the document are EASA-approved, which is also FAA-approved. Messages and other information provided by the manufacturer that do not contain the DOA-authorized are not EASA-approved, unless EASA directly approves the manufacturer's message or other information.
This clarification does not remove flexibility previously afforded by the Airworthy Product paragraph. Consistent with long-standing FAA policy, such flexibility was never intended for required actions. This is also consistent with the recommendation of the Airworthiness Directive Implementation Aviation Rulemaking Committee to increase flexibility in complying with ADs by identifying those actions in manufacturers' service instructions that are “Required for Compliance” with ADs. We continue to work with manufacturers to implement this recommendation. But once we determine that an action is required, any deviation from the requirement must be approved as an alternative method of compliance.
We also have decided not to include a generic reference to either the “delegated agent” or “design approval holder (DAH) with State of Design Authority design organization approval,” but instead we have provided the specific delegation approval granted by the State of Design Authority for the DAH throughout this AD.
We reviewed the available data and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (79 FR 19294, April 8, 2014) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 19294, April 8, 2014).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We estimate that this AD affects 30 airplanes of U.S. registry.
The actions that are required by AD 2011–17–08, Amendment 39–16772 (76 FR 53303, August 26, 2011), and retained in this AD take about 1 work-hour per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that were required by AD 2011–17–08 is $85 per product.
We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $2,550, or $85 per product.
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 that this AD:
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.
You may examine the AD docket on the Internet at
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 becomes effective October 8, 2014.
This AD replaces AD 2011–17–08, Amendment 39–16772 (76 FR 53303, August 26, 2011).
This AD applies to Model A330–201, –202, –203, –223, –223F, –243, –243F, –301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes; certificated in any category; all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 05, Periodic inspections.
This AD was prompted by a revision of certain airworthiness limitations items (ALI)
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (h) of AD 2011–17–08, Amendment 39–16772 (76 FR 53303, August 26, 2011), with no changes. Within 3 months after September 30, 2011 (the effective date of this AD 2011–17–08): Revise the maintenance program by incorporating Airbus Document AI/SE–M4/95A.0089/97, “A330 Airworthiness Limitation Items,” Issue 17, dated May 28, 2010. At the times specified in Airbus Document AI/SE–M4/95A.0089/97, “A330 Airworthiness Limitation Items,” Issue 17, dated May 28, 2010, comply with all applicable maintenance requirements and associated airworthiness limitations included in Airbus Document AI/SE–M4/95A.0089/97, “A330 Airworthiness Limitation Items,” Issue 17, dated May 28, 2010.
This paragraph restates the requirements of paragraph (i) of AD 2011–17–08, Amendment 39–16772 (76 FR 53303, August 26, 2011), with no changes. Except as provided by paragraphs (i) and (k)(1) of this AD, after accomplishing the actions specified in paragraph (g) of this AD, no alternatives to the maintenance tasks, intervals, or limitations specified in paragraph (g) of this AD may be used.
(1) Within 3 months after the effective date of this AD: Revise the maintenance or inspection program, as applicable, by incorporating Airbus Document AI/SE–M4/95A.0089/97, “A330 Airworthiness Limitation Items,” Issue 19, dated March 23, 2012; “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” variation reference 0GVLG120018/C0S, dated October 24, 2012; and “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” variation reference 0GVLG130002/C01, dated March 26, 2013.
(2) Comply with all applicable instructions and airworthiness limitations included in Airbus Document AI/SE M4/95A.0089/97, “A330 Airworthiness Limitation Items,” Issue 19, dated March 23, 2012; “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” variation reference 0GVLG120018/C0S, dated October 24, 2012; and “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” variation reference 0GVLG130002/C01, dated March 26, 2013. The initial compliance times for the actions specified Airbus Document AI/SE–M4/95A.0089/97, “A330 Airworthiness Limitation Items,” Issue 19, dated March 23, 2012; “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” variation reference 0GVLG120018/C0S, dated October 24, 2012; and “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” 0GVLG130002/C01, dated March 26, 2013; are at the times specified in Airbus Document AI/SE–M4/95A.0089/97, “A330 Airworthiness Limitation Items,” Issue 19, dated March 23, 2012; “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” variation ref. 0GVLG120018/C0S, dated October 24, 2012; and “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” variation ref. 0GVLG130002/C01, dated March 26, 2013; or within 3 months after the effective date of this AD, whichever occurs later. Accomplishing the revision in this paragraph ends the requirements in paragraph (g) of this AD.
Compliance with tasks 533021–02–01, 533021–02–02, and 533021–02–03, specified in “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” variation ref. 0GVLG120022/C0S, dated December 21, 2012, may be used as a method of compliance to tasks 533021–01–01, 533021–01–02, 533021–01–03 specified in Section 2.2.1 and 2.2.2 of Section 2, “Airworthiness Limitations,” of Airbus Document AI/SE M4/95A.0089/97, “A330 Airworthiness Limitation Items,” Issue 19, dated March 23, 2012.
Except as provided by paragraph (j) of this AD, after the maintenance or inspection program, as applicable, has been revised as required by paragraph (i) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) under the provisions of paragraph (l)(1) of this AD.
The following provisions also apply to this AD:
(1)
(2)
Refer to Mandatory Continuing Airworthiness Information (MCAI) European Aviation Safety Agency Airworthiness Directive 2012–0211, dated October 12, 2012, for related information. You may examine the MCAI in the AD docket on the Internet at http
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR October 8, 2014.
(i) Airbus Document AI/SE–M4/95A.0089/97, “A330 Airworthiness Limitation Items,” Issue 19, dated March 23, 2012.
(ii) “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” variation ref. 0GVLG120018/C0S, dated October 24, 2012.
(iii) “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” variation ref. 0GVLG120022/C0S, dated December 21, 2012.
(iv) “Variation to Issue 19 of ALI Document (referenced in ALS Part 2) Damage Tolerant Airworthiness Limitation Items (DT ALI),” variation ref. 0GVLG130002/C01, dated March 26, 2013.
(4) The following service information was approved for IBR on September 30, 2011 (76 FR 53303, August 26, 2011).
(i) Airbus Document AI/SE–M4/95A.0089/97, “A330 Airworthiness Limitation Items,” Issue 17, dated May 28, 2010.
(ii) Reserved.
(5) For service information identified in this AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
(6) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding Airworthiness Directive (AD) 2007–06–12 for certain Airbus Model A330–200 and A330–300 airplanes. This new AD reduces the compliance times for reinforcing the structure of the center fuselage. This AD was prompted by a new fatigue and damage tolerance evaluation that revealed the compliance time for an existing reinforcement of the fuselage has to be reduced. We are issuing this AD to prevent fatigue cracking of the fuselage, which could result in reduced structural integrity of the fuselage.
This AD becomes effective October 8, 2014.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 8, 2014.
You may examine the AD docket on the Internet at
For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1138; fax 425–227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2007–06–12, Amendment 39–14993 (72 FR 12555, March 16, 2007). AD 2007–06–12 applied to certain Airbus Model A330–200 and A330–300 airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2013–0016, dated January 16, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330–200 and A330–300 airplanes. The MCAI states:
During the fatigue tests (EF2) of the Airbus A330 test fuselage, initiation and development of cracks were evidenced at the circumferential joint of frame 53.3.
This condition, if not corrected, could lead to a reduction in the structural integrity of the fuselage.
EASA issued AD 2006–0266 [(
Since that [EASA] AD was issued, in the frame of a new fatigue and damage tolerance evaluation taking into account the aeroplane utilisation, the thresholds for the reinforcement were reassessed and the conclusion is that some thresholds must be reduced.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2006–0266, which is superseded, and requires reinforcement of structure of the centre fuselage at the upper circumferential joint of frame 53.3 within the new thresholds.
You may examine the MCAI 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 (79 FR 11016, February 27, 2014) or on the determination of the cost to the public.
Since late 2006, we have included a standard paragraph titled “Airworthy Product” in all MCAI ADs in which the FAA develops an AD based on a foreign authority's AD.
The MCAI or referenced service information in an FAA AD often directs the owner/operator to contact the manufacturer for corrective actions, such as a repair. Briefly, the Airworthy Product paragraph allowed owners/operators to use corrective actions provided by the manufacturer if those actions were FAA-approved. In addition, the paragraph stated that any actions approved by the State of Design Authority (or its delegated agent) are considered to be FAA-approved.
In the NPRM (79 FR 11016, February 27, 2014), we proposed to prevent the use of repairs that were not specifically developed to correct the unsafe condition, by requiring that the repair approval provided by the State of Design Authority or its delegated agent specifically refer to this FAA AD. This change was intended to clarify the method of compliance and to provide operators with better visibility of repairs that are specifically developed and approved to correct the unsafe condition. In addition, we proposed to change the phrase “its delegated agent” to include a design approval holder (DAH) with State of Design Authority design organization approval (DOA), as applicable, to refer to a DAH authorized to approve required repairs for the proposed AD.
No comments were provided to the NPRM (79 FR 11016, February 27, 2014) about these proposed changes. However, a comment was provided for an NPRM
This comment has made the FAA aware that some operators have misunderstood or misinterpreted the Airworthy Product paragraph to allow the owner/operator to use messages provided by the manufacturer as approval of deviations during the accomplishment of an AD-mandated action. The Airworthy Product paragraph does not approve messages or other information provided by the manufacturer for deviations to the requirements of the AD-mandated actions. The Airworthy Product paragraph only addresses the requirement to contact the manufacturer for corrective actions for the identified unsafe condition and does not cover deviations from other AD requirements. However, deviations to AD-required actions are addressed in 14 CFR 39.17, and anyone may request the approval for an alternative method of compliance to the AD-required actions using the procedures found in 14 CFR 39.19.
To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed the paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this AD to obtain corrective actions from a manufacturer, the actions must be accomplished using a method approved by the FAA, the European Aviation Safety Agency (EASA), or Airbus's EASA Design Organization Approval (DOA).
The Contacting the Manufacturer paragraph also clarifies that, if approved by the DOA, the approval must include the DOA-authorized signature. The DOA signature indicates that the data and information contained in the document are EASA-approved, which is also FAA-approved. Messages and other information provided by the manufacturer that do not contain the DOA-authorized signature approval are not EASA-approved, unless EASA directly approves the manufacturer's message or other information.
This clarification does not remove flexibility previously afforded by the Airworthy Product paragraph. Consistent with long-standing FAA policy, such flexibility was never intended for required actions. This is also consistent with the recommendation of the Airworthiness Directive Implementation Aviation Rulemaking Committee to increase flexibility in complying with ADs by identifying those actions in manufacturers' service instructions that are “Required for Compliance” with ADs. We continue to work with manufacturers to implement this recommendation. But once we determine that an action is required, any deviation from the requirement must be approved as an alternative method of compliance.
Other commenters to the NPRM having Directorate Identifier 2012–NM–101–AD (78 FR 78285, December 26, 2013) pointed out that in many cases the foreign manufacturer's service bulletin and the foreign authority's MCAI might have been issued some time before the FAA AD. Therefore, the DOA might have provided U.S. operators with an approved repair, developed with full awareness of the unsafe condition, before the FAA AD is issued. Under these circumstances, to comply with the FAA AD, the operator would be required to go back to the manufacturer's DOA and obtain a new approval document, adding time and expense to the compliance process with no safety benefit.
Based on these comments, we removed the requirement that the DAH-provided repair specifically refer to this AD. Before adopting such a requirement, the FAA will coordinate with affected DAHs and verify they are prepared to implement means to ensure that their repair approvals consider the unsafe condition addressed in this AD. Any such requirements will be adopted through the normal AD rulemaking process, including notice-and-comment procedures, when appropriate.
We also have decided not to include a generic reference to either the “delegated agent” or “DAH with State of Design Authority design organization approval,” but instead we have provided the specific delegation approval granted by the State of Design Authority for the DAH throughout this AD.
We reviewed the relevant data and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (79 FR 11016, February 27, 2014) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 11016, February 27, 2014).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We estimate that this AD affects 9 airplanes of U.S. registry.
We estimate that it will take about 327 work-hours per product to comply with the new basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $17,850 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be up to $410,805, or up to $45,645 per product.
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 that this AD:
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.
You may examine the AD docket on the Internet at
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 becomes effective October 8, 2014.
This AD replaces AD 2007–06–12, Amendment 39–14993 (72 FR 12555, March 16, 2007).
This AD applies to Airbus Model A330–201, –202, –203, –223, and –243 airplanes; and Model A330–301, –321, –322, –323, –341, –342, and –343 airplanes, certificated in any category, except those on which Airbus Modification 49202 has been embodied in production.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a new fatigue and damage tolerance evaluation that concluded the compliance time for an existing reinforcement of the fuselage has to be reduced. We are issuing this AD to prevent fatigue cracking of the fuselage, which could result in reduced structural integrity of the fuselage.
Comply with this AD within the compliance times specified, unless already done.
For Airbus Model A330–301, A330–321, A330–322, A330–323, A330–341, A330–342, and A330–343 airplanes, except those on which Airbus Modification 41652S11819 has been incorporated in production: At the time specified in paragraph (g)(1) or (g)(2) of this AD, whichever occurs later, install butt straps at FR53.3 on the fuselage skin between left-hand (LH) and right-hand (RH) stringer (STR) 13, and do all related investigative and corrective actions before further flight. Except as provided by paragraph (h) of this AD, do all actions in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330–53–3127, Revision 02, including Appendix 01, dated December 7, 2011.
(1) At the applicable time specified in paragraph (g)(1)(i) or (g)(1)(ii) of this AD.
(i) For airplanes with a short-range mission as specified in Airbus Service Bulletin A330–53–3127, Revision 02, including Appendix 01, dated December 7, 2011: Within 15,300 flight cycles or 46,100 flight hours, whichever occurs first, after the first flight of the airplane.
(ii) For airplanes with a long-range mission as specified in Airbus Service Bulletin A330–53–3127, Revision 02, including Appendix 01, dated December 7, 2011: Within 13,200 flight cycles or 79,300 flight hours, whichever occurs first after the first flight of the airplane.
(2) Within 24 months after the effective date of this AD, but not to exceed 14,700 total flight cycles or 51,400 total flight hours, whichever occurs earlier.
For Airbus Model A330–301, –321, –322, –323, –341, –342, and –343 airplanes, except those on which Airbus Modification 41652S11819 has been incorporated in production: If any crack is detected during the related investigative actions (rototest) required by paragraph (g) of this AD, before further flight, repair using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.
For airplanes specified in paragraph (c) of this AD on which Airbus Modification 41652S11819 has been embodied in production: At the time specified in paragraph (i)(1) or (i)(2) of this AD, whichever occurs later, install butt straps at FR53.3 on the fuselage skin between LH and RH STR13; and do all related investigative and other specified actions before further flight, as applicable. Do all actions in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330–53–3143, Revision 05, dated May 29, 2012, including Appendix 1; except, if any crack is detected during a related investigative action (rototest), before further flight, repair the crack using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.
(1) At the applicable times specified in the “threshold” column of the table in 1.E. “Compliance” of Airbus Service Bulletin A330–53–3143, Revision 05, including Appendix 01, dated May 29, 2012. Where paragraph 1.E. “Compliance” of Airbus Service Bulletin A330–53–3143, Revision 05, dated May 29, 2012, specifies a time in the “threshold” column, this AD requires compliance within the corresponding times after the first flight of the airplane.
(2) Within 24 months after the effective date of this AD, but not to exceed 17,600 total flight cycles or 61,600 total flight hours, whichever occurs earlier.
(1) This paragraph provides credit for actions required by paragraph (g) of this AD if those actions were performed before the effective date of this AD using Airbus Service Bulletin A330–53–3127, Revision 01, including Appendix 01, dated November 21, 2003, which was incorporated by reference in AD 2005–20–07, Amendment 39–14300 (70 FR 57732, October 4, 2005).
(2) This paragraph provides credit for actions required by paragraph (i) of this AD if those actions were performed before the effective date of this AD using any service information specified in paragraphs (j)(2)(i) through (j)(2)(v) of this AD.
(i) Airbus Service Bulletin A330–53–3143, including Appendix 01, dated December 24, 2004, which is not incorporated by reference in this AD.
(ii) Airbus Service Bulletin A330–53–3143, Revision 01, including Appendix 01, dated June 29, 2006, which was incorporated by reference in AD 2007–06–12, Amendment 39–14993 (72 FR 12555, March 16, 2007).
(iii) Airbus Service Bulletin A330–53–3143, Revision 02, including Appendix 01, dated August 31, 2010, which is not incorporated by reference in this AD.
(iv) Airbus Service Bulletin A330–53–3143, Revision 03, including Appendix 01, dated March 3, 2011, which is not incorporated by reference in this AD.
(v) Airbus Service Bulletin A330–53–3143, Revision 04, including Appendix 01, dated December 6, 2011, which is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(i) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.
(ii) AMOCs approved previously for AD 2007–06–12, Amendment 39–14993 (72 FR 12555, March 16, 2007), are approved as AMOCs for the corresponding provisions of paragraph (i) of this AD.
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2013–0016, dated January 16, 2013, for related information. You may examine the MCAI in the AD docket on the Internet at
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (m)(3) and (m)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus Service Bulletin A330–53–3127, Revision 02, dated December 7, 2011, including Appendix 01.
(ii) Airbus Service Bulletin A330–53–3143, Revision 05, dated May 29, 2012, including Appendix 01.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Dassault Aviation Model FALCON 2000EX airplanes. This AD was prompted by a revision to the airplane airworthiness limitations to introduce a corrosion prevention control program, among other changes, to the maintenance requirements and airworthiness limitations. This AD requires revising the maintenance or inspection program to include the maintenance tasks and airworthiness limitations specified in the airworthiness limitations section of the airplane maintenance manual. We are issuing this AD to prevent reduced structural integrity of the airplane.
This AD becomes effective October 8, 2014.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of October 8, 2014.
You may examine the AD docket on the Internet at
For service information identified in this AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1137; fax 425–227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Dassault Aviation Model FALCON 2000EX airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012–0157, dated August 23, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
The airworthiness limitations and maintenance requirements for the Falcon 2000EX type design are included in Dassault Aviation Falcon 2000EX (F2000EX) Aircraft Maintenance Manual (AMM) chapter 5–40 and are approved by the European Aviation Safety Agency (EASA). EASA issued AD 2008–0221 [
Since that [EASA] AD was issued, Dassault Aviation issued F2000EX AMM chapter 5–40 at revision 7, which introduces new or more restrictive maintenance requirements and/or airworthiness limitations.
Dassault Aviation AMM chapter 5–40 revision 7 contains among other changes the following requirements:
The maintenance tasks and airworthiness limitations, as specified in the F2000EX AMM chapter 5–40, have been identified as mandatory actions for continued airworthiness of the F2000EX type design. Failure to comply with AMM chapter 5–40 at revision 7 might constitute an unsafe condition.
For the reasons described above, this [EASA] AD requires the implementation of the maintenance tasks and airworthiness limitations, as specified in Dassault Aviation F2000EX AMM chapter 5–40 at revision 7.
You may examine the MCAI in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (78 FR 58973, September 25, 2013) and the FAA's response to each comment.
An anonymous commenter stated that Dassault Aviation has taken appropriate steps to ensure that operators have sufficient knowledge and awareness of the corrosion prevention control program and that the maintenance manual includes the requirements of the proposed AD (78 FR 58973, September 25, 2013). The commenter declared that all operators are likely including the actions in the proposed AD into their maintenance programs, even though the actions are not mandated by an AD. The commenter also stated that “ . . . any structural inspection of moderate detail already highlights specific critical areas (like the stabilizer actuator) so yet another avenue to enforce inspections of this nature is ludicrous.” We infer that the commenter is requesting that the NPRM be withdrawn.
We do not agree to withdraw the NPRM (78 FR 58973, September 25, 2013). Although an airplane manufacturer's maintenance manual includes corrosion control inspections, with appropriate approval, operators are allowed to deviate from those procedures for their maintenance programs. This AD addresses the unsafe condition related to uncontrolled corrosion by requiring operators to include the manufacturer's maintenance procedures in the operators' maintenance program. No change has been made to this AD regarding this issue.
Dassault requested the NPRM (78 FR 58973, September 25, 2013) be revised to refer to Chapter 5–40, Airworthiness Limitations, DGT 113877, Revision 9, dated February 2013, of the Dassault Falcon 2000EX Maintenance Manual.
We agree with the commenter's request and have updated paragraph (g) of this AD accordingly. We have also included a new paragraph (j) in this AD to give credit for the actions required by paragraph (g) of this AD, if those actions were done before the effective date of this AD using Chapter 5–40, Airworthiness Limitations, DGT 113877, Revision 8, dated July 2012, of the Dassault Falcon 2000EX Maintenance Manual. We have redesignated subsequent paragraphs accordingly.
Dassault commented that paragraph (h) of the proposed AD (78 FR 58973, September 25, 2013) was “not suited.” Paragraph (h) of the proposed AD stated that “Accomplishing paragraph (g) of this AD terminates the requirements of paragraph (g) of AD 2010–26–05, Amendment 39–16544 (75 FR 79952, December 21, 2010), for Dassault Aviation Model FALCON 2000EX Airplanes.” Paragraph (g) of the proposed AD proposed to require revising the maintenance or inspection program by incorporating the information specified in Chapter 5–40, Airworthiness Limitations, DGT 113877, Revision 8, dated July 2012, of the Dassault Falcon 2000EX Maintenance Manual. The commenter stated that the repetitive inspection interval of 1,640 flight hours was the same in the service information referenced in the NPRM and in FAA AD 2010–26–05. We infer that the commenter is requesting that paragraph (h) of the proposed AD be removed because it is unnecessary.
We do not agree that paragraph (h) of the proposed AD (78 FR 58973, September 25, 2013) should be omitted from this AD. We are providing relief for operators of Dassault Aviation Model FALCON 2000EX airplanes by allowing them to terminate the actions required by paragraph (g) of AD 2010–26–05, Amendment 39–16544 (75 FR 79952, December 21, 2010), and instead doing the actions required by paragraph (g) of this AD. If we did not include paragraph (h) in this AD, operators of Dassault Aviation Model FALCON 2000EX airplanes would have to show compliance with both paragraph (g) of AD 2010–26–05 and paragraph (g) of this AD. Paragraph (h) of this AD removes that redundancy. No change has been made to this AD in this regard.
Since late 2006, we have included a standard paragraph titled “Airworthy Product” in all MCAI ADs in which the FAA develops an AD based on a foreign authority's AD.
We have become aware that some operators have misunderstood or misinterpreted the Airworthy Product paragraph to allow the owner/operator to use messages provided by the manufacturer as approval of deviations during the accomplishment of an AD-mandated action. The Airworthy Product paragraph does not approve messages or other information provided by the manufacturer for deviations to the requirements of the AD-mandated actions. The Airworthy Product paragraph only addresses the requirement to contact the manufacturer for corrective actions for the identified unsafe condition and does not cover deviations from other AD requirements. However, deviations to AD-required actions are addressed in 14 CFR 39.17, and anyone may request the approval for an alternative method of compliance to the AD-required actions using the procedures found in 14 CFR 39.19.
To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed the paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the FAA, EASA, or Dassault Aviation's EASA DOA.
The Contacting the Manufacturer paragraph also clarifies that, if approved by the DOA, the approval must include the DOA-authorized signature. The DOA signature indicates that the data and information contained in the document are EASA-approved, which is also FAA-approved. Messages and other information provided by the manufacturer that do not contain the DOA-authorized signature approval are not EASA-approved, unless EASA
This clarification does not remove flexibility previously afforded by the Airworthy Product paragraph. Consistent with long-standing FAA policy, such flexibility was never intended for required actions. This is also consistent with the recommendation of the Airworthiness Directive Implementation Aviation Rulemaking Committee to increase flexibility in complying with ADs by identifying those actions in manufacturers' service instructions that are “Required for Compliance” with ADs. We continue to work with manufacturers to implement this recommendation. But once we determine that an action is required, any deviation from the requirement must be approved as an alternative method of compliance.
We also have decided not to include a generic reference to either the “delegated agent” or “design approval holder (DAH) with State of Design Authority design organization approval,” but instead we have provided the specific delegation approval granted by the State of Design Authority for the DAH throughout this AD.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (78 FR 58973, September 25, 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 58973, September 25, 2013).
We estimate that this AD affects 18 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 that this AD:
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.
You may examine the AD docket on the Internet at
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 airworthiness directive (AD) becomes effective October 8, 2014.
Certain requirements of this AD terminate the requirements of AD 2010–26–05, Amendment 39–16544 (75 FR 79952, December 21, 2010), for the airplanes identified in paragraph (c) of this AD.
This AD applies to Dassault Aviation Model FALCON 2000EX airplanes, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a revision to the airplane airworthiness limitations to introduce the corrosion prevention control program, among other changes, to the maintenance requirements and airworthiness limitations. We are issuing this AD to prevent reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Chapter 5–40, Airworthiness Limitations, DGT 113877, Revision 9, dated February 2013, of the Dassault Falcon 2000EX Maintenance Manual. The initial compliance time for accomplishing the actions specified in Chapter 5–40, Airworthiness Limitations, DGT 113877, Revision 9, dated February 2013, of the Dassault Falcon 2000EX Maintenance Manual, is within the times specified in that maintenance manual, or 30 days after the effective date of this AD, whichever occurs later, except as provided by paragraphs (g)(1) through (g)(4) of this AD.
(1) The term “landings” in the “First Inspection” column of any table in the service information means total airplane landings.
(2) The term “flight hours” in the “First Inspection” column of any table in the service information means total flight hours.
(3) The term “flight cycles” in the “First Inspection” column of any table in the service information means total flight cycles.
(4) For task number 52–20–00–610–801–01 52–205 the initial compliance time is within 24 months after the effective date of this AD.
Accomplishing the actions specified in paragraph (g) of this AD terminates the requirements of paragraph (g) of AD 2010–26–05, Amendment 39–16544 (75 FR 79952, December 21, 2010), for Dassault Aviation Model FALCON 2000EX airplanes.
After accomplishment of the revision required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (k) of this AD.
This paragraph provides credit for the actions specified in paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Chapter 5–40, Airworthiness Limitations, DGT 113877, Revision 8, dated July 2012, of the Dassault Falcon 2000EX Maintenance Manual.
The following provisions also apply to this AD:
(1)
(2)
Refer to Mandatory Continuing Airworthiness Information (MCAI) European Aviation Safety Agency Airworthiness Directive 2012–0157, dated August 23, 2012, for related information. This MCAI may be found in the AD docket on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Chapter 5–40, Airworthiness Limitations, DGT 113877, Revision 9, dated February 2013, of the Dassault Falcon 2000EX Maintenance Manual.
(ii) Reserved.
(3) For service information identified in this AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; Internet
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 767–400ER series airplanes. This AD was prompted by reports of turbine wheel bursts in the air driven pump (ADP) turbine gearbox assembly (TGA), which resulted in the release of high energy fragments. This AD requires replacing the existing ADP TGA with an improved ADP TGA. We are issuing this AD to prevent fragments from an uncontained turbine wheel burst penetrating the fuselage and striking passengers, or penetrating the wing-to-body fairing and striking ground handling or maintenance personnel, causing serious injury.
This AD is effective October 8, 2014.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of October 8, 2014.
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Kenneth Frey, Aerospace Engineer, Systems and Equipment Branch, ANM–130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6468; fax: 425–917–6190; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 767–400ER series airplanes. The NPRM published in the
In Note 1 to paragraph (g) of the NPRM (78 FR 73460, December 6, 2013), we referred to Fairchild Controls Service Bulletin N012000000–29–03, Revision 2, dated January 29, 2013, as a source of guidance information for modifying an existing ADP TGA. Since the NPRM was published, Fairchild Controls has published Fairchild Controls Service Bulletin N012000000–29–03, Revision 3, dated March 7, 2014. We have revised Note 1 to paragraph (g) of this final rule to refer to Fairchild Controls Service Bulletin N012000000–29–03, Revision 3, dated March 7, 2014.
We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the proposal (78 FR 73460, December 6, 2013) and the FAA's response to the comment.
Boeing commented that the compliance time in paragraph (i) of the proposed NPRM (78 FR 73460, December 6, 2013) was confusing and requested clarification. Boeing stated that the compliance time in Boeing Special Attention Service Bulletin 767–29–0113, dated May 29, 2013, is 36 months after the release date of that service bulletin, which was May 29, 2013. Boeing asked if the NPRM's compliance time was also 36 months after that service bulletin's release date, or if it was 36 months after the effective date of the final rule. Boeing suggested that paragraph (i) of the proposed NPRM be revised to state “36 months after the effective date of the AD.”
We agree to clarify the compliance time. Paragraph (i) of this AD explains that where Boeing Special Attention Service Bulletin 767–29–0113, dated May 29, 2013, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time “after the effective date of this AD. Boeing Special Attention Service Bulletin 767–29–0113, dated May 29, 2013, specifies a compliance time of “within 36 months after the original issue date of this service bulletin.” Therefore, the compliance time for accomplishing the replacement required by this AD is within 36 months after the effective date of this AD. No change was made to this final rule regarding this issue.
We reviewed the relevant data, considered the comment received, 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 73460, December 6, 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 73460, December 6, 2013).
We estimate that this AD affects 37 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 8, 2014.
None.
This AD applies to The Boeing Company Model 767–400ER series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 767–29–0113, dated May 29, 2013.
Air Transport Association (ATA) of America Code 29, Hydraulic Power.
This AD was prompted by reports of turbine wheel bursts in the air driven pump (ADP) turbine gearbox assembly (TGA), which resulted in the release of high energy fragments. We are issuing this AD to prevent fragments from an uncontained turbine wheel burst penetrating the fuselage and striking passengers, or penetrating the wing-to-body fairing and striking ground handling or maintenance personnel, causing serious injury.
Comply with this AD within the compliance times specified, unless already done.
Except as required by paragraph (i) of this AD: At the time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 767–29–0113, dated May 29, 2013, replace the existing ADP TGA having part number N012000000 or N012000000–1 with an improved ADP TGA having part number N012000000–2 or N012000000–3, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 767–29–0113, dated May 29, 2013.
Guidance on modifying an existing ADP TGA so it can be re-identified as part number N012000000–2 or N012000000–3 can be found in Fairchild Controls Service Bulletin N012000000–29–03, Revision 3, dated March 7, 2014.
As of the effective date of this AD, no person may install an ADP TGA having part number N012000000 or N012000000–1 on any airplane.
Where Boeing Special Attention Service Bulletin 767–29–0113, dated May 29, 2013, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time “after the effective date of this AD.”
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (k) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane.
For more information about this AD, contact Kenneth Frey, Aerospace Engineer, Systems and Equipment Branch, ANM–130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6468; fax: 425–917–6190; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Special Attention Service Bulletin 767–29–0113, dated May 29, 2013.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
(4) You may view this service information at FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at the Albuquerque VHF Omni-Directional Radio Range Tactical Air Navigation Aid (VORTAC), Albuquerque, NM, to facilitate vectoring of Instrument Flight Rules (IFR) aircraft under control of Albuquerque Air Route Traffic Control Center (ARTCC). This improves the safety and management of IFR operations within the National Airspace System.
Effective date, 0901 UTC, November 13, 2014. The Director of the Federal Register approves this incorporation by reference action under
FAA Order 7400.9X, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15. For further information, you can contact the Airspace Policy and Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
Richard Roberts, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA, 98057; telephone (425) 203–4517.
On December 26, 2013, the FAA published in the
Class E airspace designations are published in paragraph 6006, of FAA Order 7400.9X dated August 7, 2013, and effective September 15, 2013, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E en route domestic airspace extending upward from 1,200 feet above the surface, at the Albuquerque VORTAC navigation aid, Albuquerque, NM, to accommodate IFR aircraft under control of Albuquerque Air Route Traffic Control Center (ARTCC) by vectoring aircraft from en route airspace to terminal areas. This action is necessary for the safety and management of IFR operations.
The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at the Albuquerque, NM, VORTAC navigation aid, Albuquerque, NM.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air)
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 1,200 feet above the surface within an area bounded by lat. 35°41′00″ N., long. 109°38′30″ W.; to lat. 35°51′00″ N., long. 109°19′00″ W.; to lat. 36°02′00″ N., long. 108°13′00″ W.; to lat. 36°12′00″ N., long. 107°28′00″ W.; to lat. 36°37′37″ N., long. 106°21′00″ W.; to lat. 36°43′00″ N., long. 106°05′00″ W.; to lat. 36°43′00″ N., long. 105°20′30″ W.; to lat. 35°12′30″ N., long. 105°28′30″ W.; to lat. 35°00′00″ N., long. 105°04′00″ W.; to lat. 35°00′00″ N., long. 104°33′00″ W.; to lat. 34°43′00″ N., long. 104°33′00″ W.; to lat. 34°30′00″ N., long. 105°09′00″ W.; to lat. 34°08′45″ N., long. 105°09′00″ W.; to lat. 33°58′00″ N., long. 105°27′00″ W.; to lat. 34°17′00″ N., long. 105°51′00″ W.; to lat. 34°17′00″ N., long. 106°04′00″ W.; to lat. 33°44′45″ N., long. 106°04′00″ W.; to lat. 33°49′30″ N., long. 106°16′30″ W.; to lat. 33°49′45″ N., long. 106°45′20″ W.; to lat. 33°35′00″ N., long. 106°48′10″ W.; to lat. 33°35′00″ N., long. 107°36′00″ W.; to lat. 33°50′00″ N., long. 108°00′00″ W.; to lat. 34°00′00″ N., long. 108°00′00″ W.; to lat. 34°21′00″ N., long. 108°00′00″ W.; to lat. 34°25′27″ N., long. 109°08′37″ W.; to lat. 34°17′28″ N., long. 109°17′27″ W.; to lat. 34°30′00″ N., long. 109°35′00″ W.; to lat. 34°47′52″ N., long. 110°18′52″ W., thence to the point of beginning.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class E airspace at Hulett Municipal Airport, Hulett, WY, to accommodate aircraft using the Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures. This action enhances the safety and management of aircraft operations at the airport.
Effective date, 0901 UTC, November 13, 2014. The Director of the Federal Register approves this incorporation by reference action under 1 CFR Part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9X, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15. For further information, you can contact the Airspace Policy and Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202–267–8783.
Richard Roberts, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203–4517.
On January 9, 2014, the FAA published in the
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9X dated August 7, 2013, and effective September 15, 2013, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface within a 8.3-mile radius of Hulett Municipal Airport, Hulett, WY; and from 1,200 feet above the surface within prescribed parameters. This action accommodates RNAV (GPS) standard instrument approach procedures and enhances the safety and management of aircraft operations at the airport.
The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Hulett Municipal Airport, Hulett, WY.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist, that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air)
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 8.3-mile radius of Hulett Municipal Airport; that airspace extending upward from 1,200 feet above the surface beginning at lat. 44°54′00″ N., long. 105°18′00″ W.; to lat. 44°52′00″ N., long. 104°00′00″ W.; to lat. 43°56′00″ N., long. 103°37′00″ W.; to lat. 43°48′00″ N., long. 105°16′00″ W.; to lat. 44°20′00″ N., long. 105°26′00″ W., thence to the point of beginning.
Food and Drug Administration, HHS.
Final order.
The Food and Drug Administration (FDA) is classifying early growth response 1 (EGR1) gene fluorescence in-situ hybridization (FISH) test system for specimen characterization into class II (special controls). The special controls that will apply to this device are identified in this order and will be part of the codified language for the early growth response 1 (EGR1) gene fluorescence in-site hybridization (FISH) test system for specimen characterization classification. The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.
This order is effective October 3, 2014. The classification was applicable July 29, 2013.
Shyam Kalavar, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5568, Silver Spring, MD 20993–0002, 301–796–6807.
In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of the regulations.
Section 513(f)(2) of the FD&C Act, as amended by section 607 of the Food and Drug Administration Safety and Innovation Act (Public Law 112–144), provides two procedures by which a person may request FDA to classify a device under the criteria set forth in section 513(a)(1). Under the first procedure, the person submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified and, within 30 days of receiving an order classifying the device into class III under section 513(f)(1) of the FD&C Act, the person requests a classification under section 513(f)(2). Under the second procedure, rather than first submitting a premarket notification under section 510(k) of the FD&C Act and then a request for classification under the first procedure, the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence and requests a classification under section 513(f)(2) of the FD&C Act. If the person submits a request to classify the device under this second procedure, FDA may decline to undertake the classification request if FDA identifies a legally marketed device that could provide a reasonable basis for review of substantial equivalence with the device or if FDA determines that the device submitted is not of “low-moderate risk” or that general controls would be inadequate to control the risks and special controls to mitigate the risks cannot be developed.
In response to a request to classify a device under either procedure provided by section 513(f)(2) of the FD&C Act, FDA will classify the device by written order within 120 days. This classification will be the initial classification of the device.
In accordance with section 513(f)(1) of the FD&C Act, FDA issued an order on March 20, 2013, classifying the Vysis EGR1 FISH Probe Kit—SC into class III, because it was not substantially equivalent to a device that was introduced or delivered for introduction into interstate commerce for commercial distribution before May 28, 1976, or a device that was subsequently reclassified into class I or class II. On April 9, 2013, Abbott Molecular, Inc., submitted a request for classification of Vysis EGR1 FISH Probe Kit—SC under section 513(f)(2) of the FD&C Act. The manufacturer recommended that the device be classified into class II.
In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act. FDA classifies devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the de novo request, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on July 29, 2013, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding § 864.1870.
Following the effective date of this final classification administrative order, any firm submitting a premarket notification (510(k)) for an early growth response 1 (EGR1) gene fluorescence in-situ hybridization (FISH) test system for specimen characterization will need to comply with the special controls named in the final administrative order.
The device is assigned the generic name early growth response 1 (EGR1) gene fluorescence in-situ hybridization (FISH) test system for specimen characterization, and it is identified as a device intended to detect the EGR1 probe target on chromosome 5q in bone marrow specimens from patients with acute myeloid leukemia (AML) or myelodysplastic syndrome (MDS). The assay results are intended to be interpreted only by a qualified pathologist or cytogeneticist. These devices do not include automated systems that directly report results without review and interpretation by a qualified pathologist or cytogeneticist. These devices also do not include any device intended for use to select patient therapy, predict patient response to therapy, or to screen for disease as well as any device with a claim for a particular diagnosis, prognosis, monitoring, or risk assessment.
FDA has identified the following risks to health associated with this type of device and the measures required to mitigate these risks in table 1:
FDA believes that the following special controls, in addition to the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness:
1. Premarket notification submissions must also include the following information:
a. A detailed description of all probes included in the kit;
b. Purpose of each probe;
c. Probe molecular specificity;
d. Probe specificity;
e. Probe limits;
f. Probe sensitivity;
g. Specification of required ancillary reagents, instrumentation, and equipment;
h. Specification of the specimen collection, processing, storage, and slide preparation methods;
i. Specification of the assay procedure;
j. Specification of control elements that are incorporated into the recommended testing procedures;
k. Specification of risk mitigation elements: Description of all additional procedures, methods, and practices incorporated into the directions for use that mitigate risks associated with testing;
l. Specification of the criteria for test result interpretation and reporting;
m. Device analytical sensitivity data;
n. Device analytical specificity data;
o. Device reference limit data;
p. Device precision/reproducibility data;
q. Device stability data to include:
i. Real-time stability;
ii. Freeze-thaw stability;
iii. Transport and temperature stability;
iv. Post-hybridization signal stability;
v. Photostability of probe; and
r. Documentation that demonstrates the clinical validity of the device. The documentation must include data from clinical studies, a minimum of two peer-reviewed published literature references using the specific device seeking marketing clearance, or both. Documentation for the clinical studies and peer-reviewed published literature references cited must include the following elements:
i. Documentation that the sponsor's probe was used in the literature reference,
ii. Number and type of specimens,
iii. Target population studied,
iv. Upper reference limit, and
v. Range of positive probe results.
2. Your § 809.10(b)(12) (21 CFR 809.10(b)(12)) compliant labeling must include a statement summarizing the data identified in § 864.1870(b)(1)(xiii) through (b)(1)(xviii) and a description of the studies supporting the information, including the pre-specified acceptance criteria for these performance studies, justification for the pre-specified acceptance criteria, and whether the pre-specified acceptance criteria were met.
3. Your § 809.10 compliant labeling must include:
a. A warning that reads “The assay results are intended to be interpreted only by a qualified pathologist or cytogeneticist.”
b. A warning that reads “This device is not for high-risk uses such as selecting therapy, predicting therapeutic response or disease screening.”
c. A warning that reads “The use of this device for diagnosis, monitoring or risk assessment has not been established.”
Early growth response 1 (EGR1) gene fluorescence in-situ hybridization (FISH) test system for specimen characterization are prescription devices restricted to patient use only upon the authorization of a practitioner licensed by law to administer or use the device. (See section 520(e) of the FD&C Act (21 U.S.C. 360j(e)) and 21 CFR 801.109 (
Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the FD&C Act if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, prior to marketing the device, which contains information about the early growth response 1 (EGR1) gene fluorescence in-situ hybridization (FISH) test system for specimen characterization they intend to market.
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final administrative order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in part 807, subpart E, regarding premarket notification submissions have been approved under OMB control number 0910–0120 and the collections of information in 21 CFR parts 801 and 809 regarding labeling have been approved under OMB control number 0910–0485.
Blood, Medical devices, Packaging and containers.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 864 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(a)
(b)
(1) Premarket notification submissions must also include the following information:
(i) A detailed description of all probes included in the kit;
(ii) Purpose of each probe;
(iii) Probe molecular specificity;
(iv) Probe specificity;
(v) Probe limits;
(vi) Probe sensitivity;
(vii) Specification of required ancillary reagents, instrumentation, and equipment;
(viii) Specification of the specimen collection, processing, storage and slide preparation methods;
(ix) Specification of the assay procedure;
(x) Specification of control elements that are incorporated into the recommended testing procedures;
(xi) Specification of risk mitigation elements: Description of all additional procedures, methods, and practices incorporated into the directions for use that mitigate risks associated with testing;
(xii) Specification of the criteria for test result interpretation and reporting;
(xiii) Device analytical sensitivity data;
(xiv) Device analytical specificity data;
(xv) Device reference limit data;
(xvi) Device precision/reproducibility data;
(xvii) Device stability data to include:
(A) Real-time stability,
(B) Freeze-thaw stability,
(C) Transport and temperature stability,
(D) Post-hybridization signal stability,
(E) Photostability of probe, and
(xviii) Documentation that demonstrates the clinical validity of the device. The documentation must include data from clinical studies, a minimum of two peer-reviewed published literature references using the specific device seeking marketing clearance, or both. Documentation for the clinical studies and peer-reviewed published literature references cited must include the following elements:
(A) Documentation that the sponsor's probe was used in the literature reference,
(B) Number and type of specimens,
(C) Target population studied,
(D) Upper reference limit, and
(E) Range of positive probe results.
(2) Your § 809.10(b)(12) of this chapter compliant labeling must include a statement summarizing the data identified in paragraphs (b)(1)(xiii) through (xviii) of this section and a description of the studies supporting the information, including the pre-specified acceptance criteria for these performance studies, justification for the pre-specified acceptance criteria, and whether the pre-specified acceptance criteria were met.
(3) Your § 809.10 of this chapter compliant labeling must include:
(i) A warning that reads “The assay results are intended to be interpreted only by a qualified pathologist or cytogeneticist.”
(ii) A warning that reads “This device is not for high-risk uses such as selecting therapy, predicting therapeutic response or disease screening.”
(iii) A warning that reads “The use of this device for diagnosis, monitoring or risk assessment has not been established.”
Department of State.
Interim final rule; correction.
The Department of State published a
The interim rule published on August 28, 2014 (79 FR 51247), becomes effective September 12, 2104. Written comments must be received on or before October 26, 2014.
Interested parties may submit comments to the Department by any of the following methods:
•
•
•
• All comments should include the commenter's name, the organization the commenter represents, if applicable, and the commenter's address. If the Department is unable to read your comment for any reason, and cannot contact you for clarification, the Department may not be able to consider your comment. After the conclusion of the comment period, the Department will publish a Final Rule (in which it will address relevant comments) as expeditiously as possible.
Celeste Scott, Special Assistant, Office of the Comptroller, Bureau of Consular Affairs, Department of State; phone: 202–485–6681, telefax: 202–485–6826; Email:
In the
In FR Doc 2014–20516, appearing on page 51247 in the
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Direct final rule; Treasury decision; Correction.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) recently published a direct final rule amending its regulations regarding the electronic submission of forms and other documents. Among other provisions, those amendments added a new section providing that any requirement in the TTB regulations to submit a form to another agency may be met by the electronic submission of the form to the other agency, as long as that agency provides for and authorizes the electronic submission of the form. This final rule corrects those recent amendments by amending the definition of the term “form” to encompass all documents required by the TTB regulations to be submitted to any other agency, as well as to TTB, and by inserting a cross reference to that definition in the new section on the electronic submission of forms to other agencies.
Effective September 3, 2014.
Michael D. Hoover, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, at 202–453–1039, ext. 135.
The electronic submission of forms to the Alcohol and Tobacco Tax and Trade Bureau (TTB) is governed by the regulations in 27 CFR Part 73, Electronic Signatures; Electronic Submission of Forms. Part 73 sets forth the conditions under which TTB allows current and prospective industry members to submit forms to TTB or to other agencies electronically, and to use electronic signatures or digital signatures to sign those forms, in lieu of submitting paper documents with handwritten signatures.
When first issued in 2003, part 73 did not address the electronic submission to other agencies of forms that are required by the TTB regulations to be submitted to those agencies (see T.D. TTB–5, 68 FR 58600, October 10, 2003). To address this issue, as well as several other regulatory issues, TTB published T.D. TTB–119 in the
Among other regulatory changes, T.D. TTB–119 amended 27 CFR 73.1(a)(2) to state that part 73 sets forth the conditions under which TTB allows the electronic submission of certain forms to other agencies, where applicable, in addition to the conditions for the electronic submission of certain forms to TTB. To accomplish this purpose, T.D. TTB–119 added new subpart D, “Electronic Filing of Documents with Other Agencies,” to part 73, which consisted of one new section, § 73.40. This new section provides that any requirement in the TTB regulations to submit a form to another agency may be satisfied by submitting the form electronically to that agency, as long as the agency provides for and authorizes the electronic submission of that form and the submitter satisfies any registration or related requirement of that agency for this electronic submission.
A full discussion of the amendments made by T.D. TTB–119, including TTB's authority to issue regulations under the Internal Revenue Code of 1986, as amended (26 U.S.C.), and the Federal Alcohol Administration Act (27 U.S.C. 201
In part 73, the term “form” is defined in § 73.3 to mean “all documents required by 27 CFR, chapter I, to be submitted to TTB.” In T.D. TTB–119, when adding a provision allowing the electronic submission of forms required by the TTB regulations to be submitted to other agencies, TTB inadvertently neglected to amend this definition to include documents required by 27 CFR chapter I to be submitted to other agencies. Therefore, TTB is correcting the definition of the term “form” in § 73.3 in order to clarify that, when used in part 73, the term “form” includes all documents required by 27 CFR chapter I to be submitted to TTB or to any other agency. In addition, TTB is amending new § 73.40 to add a cross reference to the amended definition of “form” in § 73.3 in order to clarify that the provisions of § 73.40 regarding the electronic submission of forms to other agencies apply to all documents required by the TTB regulations to be submitted to other agencies, not just official TTB forms (documents issued by TTB that bear an Office of Management and Budget control number).
These corrections are merely clarifying in nature and do not change any existing regulatory or recordkeeping requirement.
TTB is issuing this final rule without prior notice and opportunity for public comment in accordance with sections 553(b)(A) and (B) of the Administrative Procedure Act (5 U.S.C. 553(b)(A) and (B)). These provisions authorize an agency to issue a rule without prior notice and comment when it issues rules of agency procedure or when an agency for good cause finds that prior notice and public comment procedures are unnecessary. Because the amendments contained in this final rule merely make technical corrections to existing procedural regulations in order to clarify the application of those provisions to documents submitted electronically to other agencies, and because these corrections do not change TTB's interpretation of any regulation or the requirements of any recordkeeping provision, TTB has determined that the 5 U.S.C. 553(b) prior notice and public comment requirement does not apply to this final rule.
Because this final rule merely makes technical corrections to existing regulations to clarify the application of those provisions to documents submitted electronically to other agencies and does not change TTB's interpretation of any regulation or the requirements of any recordkeeping provision, TTB finds good cause under 5 U.S.C. 553(d)(3) to dispense with the effective date limitation in 5 U.S.C. 553(d).
Michael D. Hoover of the Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, drafted this document.
Electronic filing, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, TTB is correcting 27 CFR chapter I, part 73 as follows:
26 U.S.C. 6011(f), 6061(b), 7502(c); 44 U.S.C. 3504 Note.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the navigable waters of South San Francisco Bay in Oakland, CA in support of the Urban Shield maritime training exercises. This safety zone is established to ensure the safety of the exercise participants and mariners transiting the area. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or their designated representative.
This rule is effective on September 6 and 7, 2014. This rule will be enforced from 8 a.m. to 7 p.m. on September 6 and 7, 2014.
Documents mentioned in this preamble are part of docket USCG–2014–0658. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, call or email Lieutenant Junior Grade Joshua Dykman, U.S. Coast Guard Sector San Francisco; telephone (415) 399–3585 or email at
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis for the proposed rule is 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Public Law 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish safety zones.
The Alameda County Fire Department will host Urban Shield 2014 on September 6 and 7, 2014 in the navigable waters of South San Francisco Bay in Oakland, CA. The safety zone is issued to establish a temporary restricted area on the waters surrounding the training exercise. This restricted area is necessary to provide freedom of movement for law enforcement officers conducting maritime interdiction training and to ensure the safety of mariners transiting the area.
The Coast Guard will enforce a safety zone in navigable waters around the Urban Shield maritime training exercises. The Urban Shield 2014 Safety Zone establishes a temporary restricted area on the water within an area connecting the following points: 37°41′57″ N, 122°13′17″ W; 37°41′49″ N, 122°17′42″ W; 37°40′16″ N, 122°17′42″ W; 37°40′27″ N, 122°14′49″ W; thence back to the point of origin (NAD 83). This safety zone will be enforced from 8 a.m. until 7 p.m. on September 6 and 7, 2014. At the conclusion of the training exercises the safety zone shall terminate.
The effect of the temporary safety zone will be to restrict navigation in the vicinity of the training exercise. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep vessels a safe distance away from the vicinity of the training exercise to ensure the safety of law enforcement officers conducting training and other mariners transiting the area.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and
We expect the economic impact of this rule will not rise to the level of necessitating a full Regulatory Evaluation. The safety zone is limited in duration, and is limited to a narrowly tailored geographic area. In addition, although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
This rule may affect owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone would be activated, and thus subject to enforcement, for a limited duration. When the safety zone is activated, vessel traffic could pass safely around the safety zone. The maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone of limited size and duration. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or a designated representative. Persons and vessels may request permission to enter the safety zone on VHF–23A or through the 24-hour Command Center at telephone (415) 399–3547.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving the Clean Air Act section 111(d)/129 State Plan revisions for Large and Small Municipal Waste Combustors (MWCs) submitted by the New Hampshire Department of Environmental Services (DES) on January 29, 2009 with amendments submitted on February 13, 2009. The revised State Plan is in response to amended emission guidelines (EGs) and new source performance standards (NSPS) for Large MWCs promulgated by EPA on May 10, 2006 and the strengthening of emission limits on Small MWCs as enacted by the New Hampshire General Court in 2005. New Hampshire DES's State Plan is for implementing and enforcing provisions at least as protective as the EPA EGs applicable to existing Large and Small MWC units.
This direct final rule will be effective November 3, 2014, unless EPA receives adverse comments by October 3, 2014. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA–R01–OAR–2012–0260 by one of the following methods:
1.
2.
3.
4.
5.
In addition, copies of the state submittal are also available for public inspection during normal business hours, by appointment at the New Hampshire Department of Environmental Services, Air Resources Division, 6 Hazen Drive, P.O. Box 95, Concord, NH 03302–0095.
Patrick Bird, Air Permits, Toxics, & Indoor Programs Unit, Air Programs Branch, Office of Ecosystem Protection, U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Mail Code: OEP05–2, Boston, MA, 02109–0287. The telephone number is (617) 918–1287. Mr. Bird can also be reached via electronic mail at
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
The following outline is provided to aid in locating information in this preamble.
Clean Air Act (CAA) section 111, which Congress enacted as part of the 1970 CAA Amendments, establishes mechanisms for controlling emissions of air pollutants from stationary sources. This provision requires EPA to promulgate a list of categories of stationary sources that the Administrator, in his or her judgment, finds “causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Once EPA lists a source category, EPA must, under CAA section 111(b)(1)(B), establish “standards of performance” for emissions of air pollutants from new sources in the source category. These standards are known as new source performance standards (NSPS), and they are national requirements that apply directly to the sources subject to them.
When the EPA establishes NSPS for new sources in a particular source category, the EPA is also required, under CAA section 111(d)(1), to prescribe regulations for states to submit plans regulating existing sources in that source category for any air pollutant that, in general, is not regulated under the CAA section 109 requirements for the national ambient air quality standards (NAAQS) or regulated under the CAA section 112 requirements for hazardous air pollutants (HAP). In contrast with CAA section 111(b), which provides for direct federal regulation of new sources, section 111(d)'s mechanism for regulating existing sources provides that states will submit plans that establish “standards of performance” for the affected existing sources and that contain other measures to implement and enforce those standards.
Under section 129 of the CAA, EGs are not federally enforceable. Section 129(b)(2) of the CAA requires states to submit state plans to EPA for approval. Each state must show that its state plan will carry out and enforce the EGs. State plans must be at least as protective as the EGs and will become federally enforceable upon EPA's approval. The procedures for adopting and submitting state plans are in 40 CFR Part 60, Subpart B.
When burned, municipal solid wastes emit various air pollutants, including hydrochloric acid, dioxin/furan, toxic metals (lead, cadmium, and mercury) and particulate matter. Mercury is highly hazardous and is of particular concern because it persists in the environment and bioaccumulates through the food web. Serious human health effects, primarily to the nervous system, have been associated with exposures to mercury. Harmful effects in wildlife have also been reported; these include nervous system damage and behavioral and reproductive deficits. Human and wildlife exposure to mercury occur mainly through eating of fish. When inhaled, mercury vapor attacks the lung tissue and is a cumulative poison. Short-term exposure to mercury in certain forms can cause hallucinations and impair consciousness. Long-term exposure to mercury in certain forms can affect the central nervous system and cause kidney damage.
Exposure to particulate matter can aggravate existing respiratory and cardiovascular disease and increase risk of premature death.
Exposure to dioxin and furan can cause skin disorders, cancer, and reproductive effects such as endometriosis.
On August 16, 2002, New Hampshire Department of Environmental Services (DES) submitted a CAA section 111(d)/129 State Plan for implementing and enforcing EGs for existing large and
New Hampshire DES's State Plan was analyzed by EPA. The Plan included all necessary elements of an approvable CAA section 111(d)/129 state plan, including: identification of legal authority; identification of enforceable state mechanisms for implementing plan; inventory of affected sources; inventory of emissions from affected sources; emissions limitations for affected sources; compliance schedule; and testing, monitoring, recordkeeping, and reporting requirements. EPA approved the New Hampshire DES State Plan on February 10, 2003 (68 FR 6630).
Section 129(a)(5) of the CAA requires EPA to conduct a 5-year review of NSPS and EGs for solid waste incinerators and amend standards and requirements as appropriate. Accordingly, EPA promulgated amended standards and requirements for Large MWCs on May 10, 2006 (71 FR 27324). This rulemaking included revised limits for dioxin/furan (only for units equipped with electrostatic precipitators), mercury, cadmium, lead, particulate matter, and nitrogen oxides (for some types of units). It also contained revisions to the compliance testing provisions to require increased data availability from continuous emissions monitoring systems (CEMS). CEMS are required to generate at least ninety-five percent (95%) data availability on a calendar year basis and at least ninety percent (90%) data availability on a calendar quarter basis. The compliance testing provisions have also been revised to allow the optional use of CEMS to monitor particulate matter and mercury. Other revisions include:
• Operator stand-in provisions to clarify how long a shift supervisor is allowed to be off site when a provisionally certified control room operator is standing in;
• An eight-hour block average for measuring activated carbon injection rate;
• A provision for waiver of operating parameter limits during the mercury performance test and for two weeks preceding the test, as is already allowed for dioxin testing;
• A revision to relative accuracy criteria for sulfur dioxide and carbon monoxide CEMS;
• Flexibility to the annual compliance testing schedule so that a facility tests once per calendar year, but no less than nine months and no more than 15 months since the previous test;
• Allowing use of parametric monitoring limits from an exceptionally well-operated MWC unit to be applied to all identical units at the same plant site without retesting for dioxin;
• The option of monitoring the activated carbon injection pressure or equivalent parameter; and
• Clarifying the exclusion of monitoring data from compliance calculations.
In addition to EPA's amended standards and requirements for Large MWCs, the New Hampshire General Court enacted more stringent emission limits for Small MWCs, codified at New Hampshire Revised Statutes Annotated 125–C:10-a, in 2005. The limits took effect January 1, 2006.
In response to the actions described above, New Hampshire DES submitted a revised State Plan to EPA on January 29, 2009. The formal submittal was accompanied by minor technical amendments submitted to EPA on February 13, 2009. EPA is taking action on the January 29, 2009 State Plan revision and the February 13, 2009 amendments in today's
New Hampshire DES amended the emission limits for Large MWCs in Env-A 3300 to be consistent with EPA's amended EGs. Amendments to operating practices, training and certification, testing and monitoring, and reporting and recordkeeping were incorporated into Env-A 3300 by reference, as Env-A 3300 references specific citations in EPA's Large MWC EGs.
Sections of Env-A 3300 were revised to reflect name/numbering changes made to other New Hampshire DES rules cross-referenced in Env-A 3300. Instances where reference was made to Env-Wm 2705.07 and Env-Wm 3300 were changed to Env-Sw 1005.07 and Env-Sw 1600, respectively. These changes account for the name/numbering changes in the cross-referenced sections.
Env-A 3306.01 was revised to make reference to Env-A 808,
New Hampshire DES also submitted revised emission limits for Small MWCs, which are more stringent than the federal limits pursuant to 40 CFR part 60, Subpart BBBB. The New Hampshire General Court enacted the more stringent emission limits, codified at New Hampshire Revised Statutes Annotated 125–C:10–a, in 2005. The emission limits took effect January 1, 2006. New Hampshire DES submitted the more stringent emission limits as part of its revised State Plan.
New Hampshire DES's January 29, 2009 submittal did not change the NOx emission standard for mass burn rotary waterwall MWCs in Env-A 3300 as there is no such facility within the jurisdiction of New Hampshire DES that operates with this specified technology. As such, on February 13, 2009, New Hampshire DES submitted an amendment to the State Plan for MWCs, which redacted the NOx standards for mass burn rotary waterwall units in Env-A 3300.
New Hampshire DES's final revised State Plan for MWCs includes all revisions submitted on January 29, 2009 and the amendment submitted on February 13, 2009.
EPA has evaluated the revised State Plan for MWCs submitted by New Hampshire DES for consistency with the CAA and EPA guidelines and policies. EPA has determined that New Hampshire DES's State Plan for Large and Small MWCs meets or exceeds all requirements and, therefore, EPA is approving New Hampshire DES's State Plan to implement and enforce the EGs, as they apply to existing Large and Small MWCs within the jurisdiction of New Hampshire DES.
EPA's approval of New Hampshire's State Plan is based on our findings that:
1. New Hampshire DES provided adequate public notice of public hearings for the proposed rulemaking that allows New Hampshire to carry out and enforce provisions that are at least as protective as the EGs for Large and Small MWCs, and;
2. New Hampshire DES demonstrated legal authority to adopt emission standards and compliance schedules applicable to the designated facilities; enforce applicable laws, regulations, standards and compliance schedules; seek injunctive relief; obtain information necessary to determine
EPA is approving New Hampshire's revised State Plan for existing Large and Small MWCs. EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this
If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on November 3, 2014 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
Under the CAA, the Administrator is required to approve 111(d)/129 plan submissions that comply with the provisions of the CAA and applicable Federal regulations. 40 CFR 62.02(a). Thus, in reviewing 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the 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 State Plan 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 November 3, 2014. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Administrative practice and procedure, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides, Waste treatment and disposal.
Part 62 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401–7671q.
(b) * * *
(4) * * *
(i) Revised State Plan for Large and Small Municipal Waste Combustors was submitted on January 29, 2009, with a technical amendment submitted on February 13, 2009. Revisions included
(ii) [Reserved]
Environmental Protection Agency.
Final rule.
In accordance with section 107(d)of the Clean Air Act (CAA), the Environmental Protection Agency (EPA) is redesignating the Hayden area, which encompasses portions of southern Gila and eastern Pinal counties, Arizona, from “unclassifiable” to “nonattainment” for the 2008 national ambient air quality standards (“NAAQS” or “standards”) for lead (Pb). EPA's redesignation of the Hayden area is based on recorded violations of the Pb standards at the Arizona Department of Environmental Quality's (ADEQ's) Globe Highway monitoring site, located near the towns of Hayden and Winkleman, Arizona, and additional relevant air quality information. The effect of this action will be to redesignate the Hayden area to nonattainment for the Pb standards and thereby to impose certain planning requirements on the State of Arizona to reduce Pb concentrations within the Hayden area, including, but not limited to, the requirement to submit, within 18 months of redesignation, a revision to the Arizona state implementation plan (SIP) that provides for attainment of the Pb standards as expeditiously as practicable, but no later than five years after the effective date of this redesignation.
This rule is effective on October 3, 2014.
EPA has established a docket for this action under Docket ID No. EPA–R09–OAR–2014–0266. Generally, documents in the docket for this action are available electronically at
Ginger Vagenas, Air Planning Office (AIR–2), U.S. Environmental Protection Agency, Region IX, (415) 972–3964,
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
EPA revised the primary (health-based) Pb NAAQS on October 15, 2008, lowering it from the 1.5 micrograms per cubic meter (μg/m
Section 107(d) of the Clean Air Act (CAA or “Act”) establishes a process for making initial area designations when a NAAQS is revised. In general, states are required to submit designation recommendations to EPA within one year of promulgation of a new or revised standard and EPA is required to complete initial designations within two years of promulgation. However, if EPA has insufficient information to promulgate designations, it can extend the period for initial designations for up to one year.
On November 8, 2011, EPA completed its initial designations for the revised Pb standards.
The CAA grants EPA the authority to change the designation of, or “redesignate,” areas in light of changes in circumstances. More specifically EPA has the authority under CAA section 107(d)(3) to redesignate areas (or portions thereof) on the basis of air quality data, planning and control considerations, or any other air quality-related considerations. In June 2013 we determined that quality assured, certified monitoring data collected in 2012 at the ADEQ Globe Highway monitor showed the area was violating the Pb NAAQS.
Governor Brewer responded on September 25, 2013, with a
Under section 107(d)(3) of the CAA, EPA may modify states' recommendations as it deems necessary. After reviewing the Governor's September 25, 2013 recommendation, the supporting information submitted by the State, and additional relevant, available information, EPA concluded that it would be appropriate to redesignate the Hayden area to nonattainment for the 2008 Pb NAAQS. EPA notified the Governor of its intention to modify her recommendation in a letter dated April 21, 2014.
On May 2, 2014, EPA issued our proposal to redesignate the Hayden area to nonattainment for the Pb NAAQS. Our proposal was based on the monitoring data from the ADEQ Globe Highway monitor recorded between January 2010 and December 2012. We also evaluated preliminary monitoring data collected in 2013
For our proposal, we also reviewed and where appropriate updated our 2010 analysis of relevant factors related to establishing an appropriate nonattainment area boundary. We concluded that the existing boundary for the Hayden area should be retained.
In light of the violations of the Pb standards recorded in 2012 at ADEQ's Globe Highway monitor, and in consideration of other relevant air quality data indicating that elevated levels of Pb continue to occur within the Hayden area, EPA concluded that the SIP planning and control requirements that are triggered by redesignation of an area to nonattainment for the Pb NAAQS would be the most appropriate means to ensure that this air quality problem is remedied.
For more detailed background information concerning the 2008 Pb NAAQS and the initial designation process for the 2008 Pb NAAQS in general and the Hayden area in particular, and for an in-depth discussion of the rationale for our proposal, please see our May 2, 2014 proposed rule and the accompanying technical support document, which is included in the docket for this action.
EPA's May 2, 2014 proposed rule provided a 30-day public comment period. During this period, we received one comment letter from ASARCO, which opposes the redesignation. A summary of ASARCO's comments along with EPA's responses to the comments are provided below.
Exposure to Pb is a serious health concern. It causes a range of adverse health effects, most notably in children. Exposures to low levels of Pb early in life have been linked to effects on IQ, learning, memory, and behavior.
For the reasons provided in the proposed rule and TSD and in this final rule, EPA is taking final action pursuant to section 107(d)(3) of the Clean Air Act to redesignate the Hayden area, which encompasses portions of southern Gila and eastern Pinal counties, from “unclassifiable” to “nonattainment” for the 2008 national ambient air quality standards for lead (Pb). This redesignation to nonattainment is based on violations of the 2008 Pb NAAQS recorded at the Globe Highway site and on additional relevant information as described above and in more detail in our proposal.
As a result of this redesignation to nonattainment, the Hayden area is subject to the applicable requirements of part D, title I of the Act (see section 191 of the Act). Within 18 months of the redesignation, the State is required to submit to EPA an implementation plan for the area containing, among other things: (1) Provisions to assure that reasonably available control measures (including reasonably available control technology) are implemented; (2) a demonstration, including modeling, that the plan will provide for attainment of the Pb NAAQS as expeditiously as practicable, but no later than five years after the area's designation as nonattainment; (3) provisions that result in reasonable further progress toward timely attainment by adherence to an ambitious compliance schedule; (4) contingency measures that are to be implemented if the area fails to achieve and maintain reasonable further progress or fails to attain the NAAQS by the applicable attainment date; and (5) a permit program meeting the requirements of section 173 governing the construction and operation of new and modified major stationary sources of Pb.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA has determined that today's redesignation to nonattainment, as well as the establishment of SIP submittal schedules, will result in none of the effects identified in Executive Order 12866, section 3(f). Under section 107(d)(3) of the Act, redesignations to nonattainment are based upon air quality considerations. This redesignation, based upon air quality data showing that the Hayden area is not attaining the Pb standard and upon other air-quality-related considerations, does not, in and of itself, impose any new requirements on any sectors of the economy. Similarly, the establishment of new SIP submittal schedules would merely establish the dates by which SIPs must be submitted, and would not adversely affect entities.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601
Under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, EPA has concluded that this rule is not likely to result in the promulgation of any Federal mandate that may result in expenditures of $100 million or more for State, local or tribal governments in the aggregate, or for the private sector, in any one year. It is questionable whether a redesignation would constitute a federal mandate in any case. The obligation for the state to revise its State Implementation Plan that arises out of a redesignation is not legally enforceable and at most is a condition for continued receipt of federal highway funds. Therefore, it does not appear that such an action creates any enforceable duty within the meaning of section 421(5)(a)(i) of UMRA (2 U.S.C. 658(5)(a)(i)), and if it does the duty would appear to fall within the exception for a condition of Federal assistance under section 421(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I)).
Even if a redesignation were considered a Federal mandate, the anticipated costs resulting from the mandate would not exceed $100 million to either the private sector or state, local and tribal governments. Redesignation of an area to nonattainment does not, in itself, impose any mandates or costs on the private sector, and thus, there is no private sector mandate within the meaning of section 421(7) of UMRA (2 U.S.C. 658(7)). The only cost resulting from the redesignation itself is the cost to the State of Arizona of developing, adopting, and submitting any necessary SIP revision. Because that cost will not exceed $100 million, this action (if it is a federal mandate at all) is not subject to the requirements of sections 202 and 205 of UMRA (2 U.S.C. 1532 and 1535). EPA has also determined that this action would not result in regulatory requirements that might significantly or uniquely affect small governments because only the State would take any action as result of today's rule, and thus the requirements of section 203 (2 U.S.C. 1533) do not apply.
Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” This rule
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The area redesignated in today's action does not include any tribal lands, but is adjacent to the San Carlos Apache Tribe's reservation. EPA has been communicating with and plans to continue to communicate with representatives of the San Carlos Apache Tribe, as provided in Executive Order 13175. Accordingly, EPA has addressed Executive Order 13175 to the extent that it applies to this action.
This rule is not subject to Executive Order 13045 (“Protection of Children from Environmental Health Risks”) (62 FR 19885, April 23, 1997), because it is not an economically significant regulatory action based on health or safety risks.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. The EPA believes that the requirements of NTTAA are inapplicable to this action because they would be inconsistent with the Clean Air Act.
Today's action redesignates an area to nonattainment for an ambient air quality standard. It will not have disproportionately high and adverse effects on any communities in the area, including minority and low-income communities.
Environmental protection, Air pollution control, Intergovernmental relations, Lead.
42 U.S.C. 7401
Part 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of trifloxystrobin in or on pea, dry, seed; pea, field, hay; and pea, field, vines. Bayer CropScience requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective September 3, 2014. Objections and requests for hearings must be received on or before November 3, 2014, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2013–0504, is available at
Lois Rossi, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2013–0504 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before November 3, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2013–0504, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA has corrected proposed commodity definitions and eliminated certain proposed crop tolerances. The reasons for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for trifloxystrobin including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with trifloxystrobin follows.
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Trifloxystrobin exhibits very low toxicity following single oral, dermal and inhalation exposures. It is a strong dermal sensitizer and a mild dermal and eye irritant. In repeated dose tests in rats, the liver is the target organ for trifloxystrobin; toxicity is induced following oral and dermal exposure for 28 days. Liver effects characterized by an increase in liver weights and an increased incidence of hepatocellular hypertrophy and/or hepatocellular necrosis were seen in rats, mice, and dogs.
There is no concern for neurotoxicity or immunotoxicity in the database. In the rabbit developmental toxicity study, an increase in the incidence of fused sternabrae was seen at a dose 10 times higher than the maternal lowest observed adverse effect level (LOAEL). In the rat reproduction study, both parents and offspring showed decreases in body weight during lactation. The rat and rabbit developmental and the rat reproduction toxicity data do not demonstrate an increase in susceptibility in the fetus or other offspring.
Trifloxystrobin is classified as: “Not likely to be Carcinogenic to Humans” based on negative results in:
1. The battery of mutagenicicty tests (except at a cytoxic dose in one
2. The long-term carcinogenicity studies in rats and mice.
Specific information on the studies received and the nature of the adverse effects caused by trifloxystrobin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in the final rule published in the
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for trifloxystrobin used for human risk assessment was discussed in Unit III B. of the final rule published in the
1.
i.
ii.
iii.
iv.
EPA used anticipated residue information in the chronic dietary assessment for trifloxystrobin for grapes, apples, oranges, and pears.
2.
Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and PRZMGround Water (PRZM–GW) models, the estimated drinking water concentrations (EDWCs) of total toxic residues of trifloxystrobin and its major degradation product for acute exposures are estimated to be 29 parts per billion (ppb) for surface water and 427 ppb for ground water. For chronic exposures for non-cancer assessments are estimated to be 23 ppb for surface water and 365 ppb for ground water. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 427 ppb was used to assess the contribution to drinking water.
For chronic dietary risk assessment, the water concentration of value 365 ppb was used to assess the contribution to drinking water.
3.
Trifloxystrobin is currently registered for the following uses that could result in residential exposures: Ornamentals and turfgrass. EPA assessed residential exposure from relevant registered trifloxystrobin products using the Agency's 2012 Residential Standard Operating Procedures (SOPs) along with updates in dermal risk assessment hazard and policy regarding body weight in addition to the following assumptions:
i.
ii.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at:
4.
EPA has not found trifloxystrobin to share a common mechanism of toxicity with any other substances, and trifloxystrobin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that trifloxystrobin does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3.
i. The toxicity database for trifloxystrobin is complete. The Agency has waived requirements for a subchronic neurotoxicity study because:
a. Trifloxystrobin was not neurotoxic in the acute neurotoxicity study, nor in any of the repeated dose studies in the available data,
b. There is no evidence of neurotoxicity in the existing trifloxystrobin database or that of other strobilurin pesticides, and
c. Because endpoints and PODs used for risk assessment are likely to be protective of neurotoxicity concerns. EPA has also waived requirements for subchronic inhalation testing. Trifloxystrobin exhibits low toxicity (Category IV) via inhalation route of exposure.
ii. There is no indication that trifloxystrobin is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity. Adverse effects were not seen up to the limit dose in an acute neurotoxicity study. There is no evidence of neurotoxicity in subchronic and chronic toxicity studies (rats, dogs, mice), in developmental toxicity studies (rats, rabbits), or in a reproductive toxicity study (rats). There is no concern for neurotoxicity of trifloxystrobin based on the available database.
iii. There is no evidence that trifloxystrobin results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The exposure databases are complete or are estimated based on data that reasonably account for potential exposures. The exposure assessments will not underestimate the potential dietary (food and drinking water) or non-dietary exposures for infants and children from the use of trifloxystrobin. The acute and chronic dietary food exposure assessment was conservatively based on 100 PCT assumptions and conservative ground water drinking water modeling estimates. The dietary drinking water assessment utilizes water concentration values generated by models and associated modeling parameters which are designed to provide conservative, health protective, high-end estimates of water concentrations, and are not likely to be exceeded. In addition, the residential post-application assessment is based upon the residential SOPs employing surrogate study data and reasonable “worst-case” assumptions. These data and assessments are reliable and are not expected to underestimate exposure and risk posed by trifloxystrobin to adults or children as well as incidental oral exposure of young children (1–2 years old).
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
Trifloxystrobin is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to trifloxystrobin.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs for adults of 300 (from food, water and residential inhalation exposures) and for children 120 (from food, water and residential incidental/hand-to-mouth oral exposure). Because EPA's level of concern for trifloxystrobin is a MOE of 100 or below, these MOEs are not of concern.
4.
Although the Agency identified an intermediate-term endpoint, the Agency does not expect trifloxystrobin to result in intermediate-term residential exposure, due to the intermittent nature of homeowner applications and its short soil half-life (about 2 days). Therefore, the Agency relies on the chronic risk assessment to account for intermediate-term risk and concludes that trifloxystrobin does not pose an intermediate-term aggregate risk.
5.
6.
Adequate enforcement methodology (gas chromatography method with nitrogen phosphorus detection (GC/NPD), Method AG–659A) is available to enforce the tolerances for the combined residues of trifloxystrobin and CGA–321113 in plant and livestock commodities. Subject crops under this
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established MRLs for trifloxystrobin on the crops subject to this action.
EPA determined that the proposed tolerances for chickpea hay and vines are not needed since both commodities are not significant livestock feed items. In addition, the proposed tolerances on chickpea seed and lentil seed are not needed since pea, dry, seed under the definition in 40 CFR 180.1 includes these commodities.
To reflect the correct commodity definitions, EPA revised the proposed commodity listings for “pea, dry, hay” and “pea, dry, vines” to read: “pea, field, hay” and “pea, field, vines”, respectively.
Therefore, tolerances are established for residues of trifloxystrobin, benzeneacetic acid, (E,E)-α-(methoxyimino)-2-[[[[1-[3-(trifluoromethyl) phenyl]ethylidene] amino]oxy]methyl]-, methyl ester, and the free form of its acid metabolite CGA–321113, (E,E)-methoxyimino-[2-[1-(3-trifluoromethyl-phenyl)-ethylideneaminooxymethyl]-phenyl]acetic acid, calculated as the stoichiometric equivalent of trifloxystrobin, in or on pea, dry, seed at 0.06 ppm; pea, field, hay at 15 ppm; and pea, field, vines at 4 ppm.
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes and revises tolerances for residues of saflufenacil in or on multiple commodities which are identified and discussed later in this document. BASF Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective September 3, 2014. Objections and requests for hearings must be received on or before November 3, 2014, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The dockets for this action, identified by docket identification (ID) numbers EPA–HQ–OPP–2013–0622 and EPA–HQ–OPP–2014–0124, are available at
Lois Rossi, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID numbers EPA–HQ–OPP–2013–0622 and EPA–HQ–OPP–2014–0124 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before November 3, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2013–0622 and EPA–HQ–OPP–2014–0124, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
The same
Finally, in the
Based upon review of the supporting data, EPA has made modifications to the proposed tolerances which include:
1. Rounding the proposed tolerance for barley, bran.
2. Revising the commodity definition for crop group 16.
3. Decreasing the proposed tolerances for grass, seed screenings and grass, straw.
4. Increasing the existing tolerance for residues in or on grain, aspirated fractions.
5. Making several changes to the proposed livestock tolerances.
The reasons for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for saflufenacil, including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with saflufenacil follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the lowest dose at which the LOAEL are identified. Uncertainty/safety factors (UFs) are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
1.
i.
ii.
iii.
iv.
2.
Based on the Tier 1 Rice Model and Tier II Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of saflufenacil for acute exposures are estimated to be 133 parts per billion (ppb) for surface water and 69.2 ppb for ground water. Chronic exposures for non-cancer assessments are estimated to be 120 ppb for surface water and 51.5 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 133 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 120 ppb was used to assess the contribution to drinking water.
3.
Saflufenacil is not registered for any specific use patterns that would result in residential exposure.
4.
1.
2.
3.
i. The toxicity database for saflufenacil is complete.
ii. There is no indication that saflufenacil is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. The concern for increased susceptibility following prenatal or postnatal exposure is low because clear NOAELs/LOAELs were established for the developmental effects seen in rats and rabbits as well as for the offspring effects seen in the 2-generation reproductive toxicity study. Further, the dose-response relationship for the effects of concern is also well characterized and being used for assessing risks. None of the effects in the developmental or reproduction studies were attributable to a single exposure and, therefore, are not of concern for acute risk assessment. The chronic point of departure used for risk assessment is protective of any developmental and offspring effects observed in these studies.
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to saflufenacil in drinking water. These assessments will not underestimate the exposure and risks posed by saflufenacil.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
4.
5.
Adequate enforcement methods “D0603/02” and “L0073/01” (liquid chromatography/mass spectroscopy/mass spectroscopy (LC–MS/MS)) are available to enforce the tolerance expression. These methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
There are MRLs established for residues of saflufenacil, measuring the levels of the parent only and not residues of the metabolites, as follows: 0.01 ppm in or on cereal grains, which includes barley, corn, and wheat; 0.05 ppm for maize fodder (dry), sorghum straw and fodder, dry; 0.05 ppm for barley straw and fodder, dry; 0.05 ppm for wheat straw and fodder, dry; 0.01 mammalian fats (except milk fats), which includes cattle, goat, hog, horse, and sheep; and 0.3 edible offal mammalian, which includes cattle, goat, hog, horse, and sheep.
Harmonization between the Codex MRLs for cereal grains and the U.S. tolerances for barley, grain and wheat, grain and between the Codex MRL for barley straw and fodder, dry and the U.S. tolerance for barley, straw and between the Codex MRL for wheat straw and fodder, dry and the U.S. tolerance for wheat, straw is not possible as the U.S. use pattern (harvest-aide/burndown application) results in significantly higher residues than the Codex use pattern (pre-emergence application). The higher residues translate into higher residues of saflufenacil in animal byproducts than are covered by the corresponding Codex MRLs for livestock commodities under the Codex use pattern; therefore, U.S. tolerances for livestock commodities cannot be harmonized with Codex MRLs for corresponding livestock commodities.
The U.S. tolerances for crop groups 15 and 16 are not harmonized with the Codex MRLs for cereal grains and straw and fodder because the compliance with the Codex MRLs involve measurement of residues of the parent only and not the metabolites, whereas the U.S. tolerance requires measurement of both, in order to be harmonized with Canadian tolerances.
EPA is making several revisions to the petitioned-for tolerances. These include the following. First, the petitioned value for barley bran is being rounded from 1.53 ppm to 1.5 ppm to be consistent with the current Organization for Economic Cooperation and Development (OECD) tolerance-calculation procedure. Second, the commodity definition “Grain, cereal, forage, fodder, and straw group 16 (except barley, wheat and rice straw)” is being revised to “Grain, cereal, forage, fodder and straw group 16 (except barley and wheat straw)” as the new use pattern (harvest aid/desiccant) was not proposed for rice. Third, the petitioner requested tolerance values for grass straw and seed screenings were based on data from trials in which the samples were harvested at a significantly shorter preharvest interval (PHI) than that listed on the label. Additional residue data reflecting the actual PHI listed on the label showed lower residue levels; therefore, the tolerance values for grass straw and seed screenings are being decreased. Fourth, the existing tolerance of 10 ppm for residues in or on grain, aspirated fractions is being increased to 50 ppm as a result of the new tolerances for cereal grains and based on available residues data. Finally, EPA is making several revisions to the proposed livestock tolerances which include:
1. Decreasing the proposed tolerances for cattle, goat, sheep, hog and horse fat from 0.05 ppm to 0.04 ppm and meat byproducts (except liver) from 0.05 ppm to 0.03 ppm.
2. Increasing the tolerances proposed for cattle, goat, sheep and horse liver from 45 ppm to 50 ppm.
3. Decreasing the tolerance proposed for hog liver from 45 ppm to 2.0 ppm.
4. Establishing tolerances for cattle, goat, sheep and horse meat at 0.02 ppm.
5. Retaining the currently established tolerances for hog, fat or hog, meat byproducts (except liver), instead of increasing them as requested.
The tolerances being set for residues in livestock differ from the petitioned-for tolerances due to differences in calculation methods of the maximum reasonably balanced diets (MRBDs) with the results of the ruminant feeding study. It also appears that the petitioner over-estimated residues in hog commodities as a result of using the cattle MRDB.
Therefore, tolerances are established for residues of saflufenacil, including its metabolites and degradates, as set forth in the regulatory text. Compliance with the plant tolerances is to be determined by measuring the sum of saflufenacil, 2-chloro-5-[3,6-dihydro-3-methyl-2,6-dioxo-4-(trifluoromethyl)-1(2
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
The amendments read as follows:
(a) * * *
(1) * * *
(2) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The State of Texas has applied to the Environmental Protection Agency (EPA) for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for Final authorization, and is authorizing the State's changes through this direct final action. The EPA is publishing this rule to authorize the changes without a prior proposal because we believe this action is not controversial and do not expect comments that oppose it. Unless we receive written comments which oppose this authorization during the comment period, the decision to authorize Texas' changes to its hazardous waste program will take effect. If we receive comments that oppose this action, we will publish a document in the
This final authorization will become effective on November 3, 2014 unless the EPA receives adverse written comment by October 3, 2014. If the EPA receives such comment, it will publish a timely withdrawal of this direct final rule in the
Submit your comments by one of the following methods:
1.
2.
3.
4.
Alima Patterson, Region 6 Regional Authorization Coordinator, State/Tribal Oversight Section (6PD–O), Multimedia Planning and Permitting Division, (214) 665–8533, EPA Region 1445 Ross Avenue, Dallas, Texas 75202–2733, and Email address
States which have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask the EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.
We conclude that the State of Texas' application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant the State of Texas Final Authorization to operate its hazardous waste program with the changes described in the authorization application. The State of Texas has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates under the authority of HSWA take effect in authorized States before they are
The effect of this decision is that a facility in the State of Texas subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. The State of Texas has enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
• Do inspections, and require monitoring, tests, analyses, or reports;
• enforce RCRA requirements and suspend or revoke permits and
• take enforcement actions after notice to and consultation with the State.
This action does not impose additional requirements on the regulated community because the regulations for which the State of Texas is being authorized by today's action are already effective under State law, and are not changed by today's action.
The EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's
If the EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the
The State of Texas initially received final authorization on December 26, 1984 (49 FR 48300), to implement its Base Hazardous Waste Management Program. This authorization was clarified in a notice published March 26, 1985 (50 FR 11858). Texas received authorization for revisions to its program, effective October 4, 1985 (51 FR 3952), February 17, 1987 (51 FR 45320), March 15, 1990 (55 FR 7318), July 23, 1990 (55 FR 21383), October 21, 1991 (56 FR 41626), December 4, 1992 (57 FR 45719), June 27, 1994 (59 FR 16987), June 27, 1994 (59 FR 17273), November 26, 1997 (62 FR 47947), December 3, 1997 (62 FR 49163), October 18, 1999 (64 FR 44836), November 15, 1999 (64 FR 49673), September 11, 2000 (65 FR 43246), June 14, 2005 (70 FR 34371), December 29, 2008, (73 FR 64252), and July 13, 2009 (74 FR 22469). The EPA incorporated by reference Texas' then authorized hazardous waste program effective December 3, 1997 (62 FR 49163), November 15, 1999 (64 FR 49673), December 29, 2008 (73 FR 64252), March 7, 2011 (76 FR 12285) effective May 6, 2011 and March 6, 2012 (77 FR 13200) effective May 7, 2012.
On March 28, 2013, Texas submitted a final complete program revision application, seeking authorization of its program revision in accordance with 40 CFR 271.21. In 1991, Texas Senate Bill 2 created the Texas Natural Resource Conservation Commission (TNRCC) which combined the functions of the former Texas Water Commission and the former Texas Air Control Board. The transfer of functions to the TNRCC from the two agencies became effective on September 1, 1993. House Bill 2912, Article 18 of the 77th Texas Legislature, 2001, changed the name of the TNRCC to the Texas Commission on Environmental Quality (TCEQ) and directed the TNRCC to adopt a timetable for phasing in the change of the agency's name. The TNRCC decided to make the change of the agency's name to the TCEQ effective September 1, 2002. The change of name became effective September 1, 2002, and the legislative history of the name change is documented at (See, Act of June 15, 2001, 77th Leg. R. S., Ch 965, Section 18.01, 2001 Tex. Gen. Laws 1985). The TCEQ may perform any act authorized by law either as the TNRCC or as the TCEQ.
The TCEQ has primary responsibility for administration of laws and regulations concerning hazardous waste. The official State regulations may be found in Title 30, Texas Administrative Code, Chapters 305, 324 and 335, effective February 21, 2013. Some of the State rules incorporate the Federal regulations by reference. Texas Water Code Section 5.103 and Section 5.105 and Texas Health and Safety Code Section 361.017 and Section 361.024 confer on the Texas Commission on Environmental Quality the powers to perform any acts necessary and convenient to the exercise of its jurisdiction. The TCEQ is authorized to administer the RCRA program. However, the Railroad Commission (RRC) has jurisdiction over the discharge, storage, handling, transportation, reclamation, or disposal of waste materials (both hazardous and non-hazardous) that result from the activities associated with the exploration, development, or production of oil or gas or geothermal resources and other activities regulated by the RRC. A list of activities that generate wastes that are subject to the jurisdiction of the RRC is found at Texas Health and Safety Code Section 401.415. Such wastes are termed “oil and gas wastes.” The TCEQ has responsibility to administer the RCRA program, however, hazardous waste generated at natural gas or natural gas liquids processing plants or reservoir pressure maintenance or repressurizing plants are subject to the jurisdiction of the TCEQ until the RRC is authorized by EPA to administer that waste under RCRA. The TCEQ jurisdiction over Solid waste can be found at Chapter 361, Sections 361.001 through 361.754 of the Texas Health and Safety Code. The TCEQ's jurisdiction encompasses hazardous and nonhazardous, industrial and municipal Solid waste. The definition of Solid waste can be found at Texas Health and Safety Code Section 361.003(34). When the RRC is authorized by EPA to administer the RCRA program for these wastes, jurisdiction over such hazardous waste will transfer from the TCEQ to the RRC. The EPA has designated the TCEQ as the lead agency to coordinate RCRA activities between the two agencies. The EPA is responsible for the regulation of
Further clarification of the jurisdiction between the TCEQ and the RRC can be found in a separate document. This document, a Memorandum of Understanding (MOU), became effective on May 31, 1998.
The TCEQ has the rules necessary to implement EPA's RCRA Clusters XIX through XXI excluding the Definition of Solid Waste (Checklist 219) in RCRA Cluster XIX and Removal of “Saccharin and Its Salts” from the Lists of Hazardous Generator Standards Technical Corrections (Checklist 225) also in RCRA Cluster XXI, because the TCEQ did not adopt these rules. The State is also seeking authorization for Recycled Used Oil Management Standards; Clarification (Checklist 203), Uniform Hazardous Waste Manifest Rule (Checklist 207), Academic Laboratories Generator Standards (Checklist 220), Organization for Economic Cooperation and Development ((OECD) (Checklist 222)) Requirements, Hazardous Waste Technical Corrections and Clarification (Checklist 223) and Academic Laboratories Generator Standards Technical Corrections (Checklist 226). The TCEQ authority includes changes to 30 Texas Administrative Code Chapters 305, 324, and 335. The Commissioners adopted these rules on January 29, 2013 and the rules became effective on February 21, 2013. The TCEQ authority to incorporate Federal rules by reference can be found at Texas Administrative Code 335 Sections 335.28, 335.29 and 335.31.
On March 28, 2013, the State of Texas submitted a final complete program application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a direct final decision, subject to receipt of written comments that oppose this action that the State of Texas' hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. The State of Texas revisions consist of regulations which specifically govern Federal Hazardous Waste revisions promulgated from July 30, 2003, through December 20, 2010. The adoption for RCRA Clusters XIX through XXI are Checklists 220, 222, 223, and 226. Also Checklists 203, 207 and 208 are included in the below chart.
The State hazardous waste program is at least as equivalent to the Federal program in all areas, except where the State program is more stringent and broader in scope. The State's more stringent and broader in scope provisions are listed in the State codification crosswalk dated July 2009. Under RCRA title C provisions, the EPA cannot authorize broader in scope provisions because the Agency cannot enforce those regulations.
The State of Texas will issue permits for all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization. We will not issue any more new permits or new portions of permits for the provisions listed in the Table in this document after the effective date of this authorization. The EPA will continue to implement and issue permits for HSWA requirements for which Texas is not yet authorized.
The State of Texas Hazardous Program is not being authorized to operate in Indian Country.
Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the CFR. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart SS for this authorization of Texas' program changes until a later date. In this authorization application the EPA is not codifying the rules documented in this
The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes preexisting requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
Under RCRA 3006(b), the EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application; to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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. The EPA will submit a report containing this document 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 in the
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b).
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection associated with the Commission's
47 CFR 25.170, 25.171, 25.172, 25.173, 25.285, 25.286, and 25.287, and the amendments to 47 CFR 25.103, 25.111, 25.112, 25.113, 25.114, 25.115, 25.118, 25.121, 25.129, 25.130, 25.131, 25.132, 25.133, 25.134, 25.135, 25.136, 25.138, 25.140, 25.142, 25.143, 25.144, 25.145, 25.146, 25.153, 25.154, 25.161, 25.164, 25.201, 25.202, 25.203, 25.204, 25.206, 25.208, 25.209, 25.210, 25.211, 25.212, 25.214, 25.215, 25.217, 25.218, 25.220, 25.221, 25.222, 25.223, 25.226, 25.227, 25.259, 25.260, 25.271, 25.272, 25.276, and 25.281 published February 12, 2014 (79 FR 8308) are effective September 3, 2014.
The incorporation by reference of certain publications listed in 47 CFR 25.281 is approved by the Director of the Federal Register as of September 3, 2014.
For additional information contact Cathy Williams,
This document announces that, on August 15, 2014, OMB approved the information collection requirements contained in the Commission's
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060–0678.
The foregoing notice is required by the Paperwork Reduction Act of 1995, Pub. L. 104–13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
The information collection requirements accounted for in this collection are needed to determine the technical and legal qualifications of applicants or licensees to operate a station and to determine whether the authorization is in the public interest, convenience, and necessity. Without such information, the Commission could not determine whether to permit respondents to provide telecommunications services in the United States. Therefore, the Commission would not be able to fulfill its statutory responsibilities in accordance with the Communications Act of 1934, as amended, and the obligations imposed on parties to the World Trade Organization (WTO) Basic Telecom Agreement.
Federal Communications Commission.
Final rule; petitions for reconsideration.
The Audio Division grants Petitions for Reconsideration filed by Edward Czelada (“Czelada”) and Sanilac Broadcasting Company (“Sanilac”) and reserves Channel 256A at Lexington, Michigan, for noncommercial educational (“NCE”) use because no other channels in the reserved FM band are available; and the channel would provide a first or second NCE service to more than 2,000 persons who constitute ten percent of the population within the allotment's 60 dBu contour.
Andrew J. Rhodes, Media Bureau, (202) 418–2180.
This is a synopsis of the Commission's
The
In the
Although the
The Commission will send a copy of the
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 303, 334, 336 and 339.
Federal Communications Commission.
Correcting amendments.
This document contains a correction to the final regulations of the Commission's rules, which were published in the
William T. Cross, Mobility Division, Wireless Telecommunications Bureau, at (202) 418–0680, or TTY (202) 418–7233.
The Federal Communications Commission published a document amending 47 CFR Part 97 in the
As published, the final regulations inadvertently deleted two sub-paragraphs of § 97.507(a) and needs to be corrected accordingly.
Radio.
Accordingly, 47 CFR part 97 is corrected by making the following correcting amendments:
48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303. Interpret or apply 48 Stat. 1064–1068, 1081–1105, as amended; 47 U.S.C. 151–155, 301–609, unless otherwise noted.
(a) * * *
(1) Element 3: Advanced Class operator.
(2) Element 2: Advanced or General class operators.
Fish and Wildlife Service, Interior.
Final rule.
This rule prescribes special early-season migratory bird hunting regulations for certain tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands. This rule responds to tribal requests for U.S. Fish and Wildlife Service (hereinafter Service or we) recognition of tribal authority to regulate hunting under established guidelines. This rule allows the establishment of season bag limits and, thus, harvest, at levels compatible with populations and habitat conditions.
This rule takes effect on September 1, 2014.
You may inspect comments received on the special hunting regulations and tribal proposals during normal business hours U.S. Fish & Wildlife Headquarters, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041–3803, or at
Ron W. Kokel, U.S. Fish and Wildlife Service, Department of the Interior, MS: MB, 5275 Leesburg Pike, Falls Church, VA 22041–3803; (703) 358–1967.
The Migratory Bird Treaty Act (MBTA) of July 3, 1918 (40 Stat. 755; 16 U.S.C. 703
In the August 11, 2014,
(1) On-reservation hunting by both tribal members and nonmembers, with hunting by nontribal members on some reservations to take place within Federal frameworks but on dates different from those selected by the surrounding State(s);
(2) On-reservation hunting by tribal members only, outside of usual Federal frameworks for season dates and length, and for daily bag and possession limits; and
(3) Off-reservation hunting by tribal members on ceded lands, outside of usual framework dates and season length, with some added flexibility in daily bag and possession limits.
In all cases, the regulations established under the guidelines must be consistent with the March 10–September 1 closed season mandated by the 1916 Migratory Bird Treaty with Canada. We have successfully used the guidelines since the 1985–86 hunting
No action is required if a tribe wishes to observe the hunting regulations established by the State(s) in which an Indian reservation is located. On August 11, 2014, we published a proposed rule (79 FR 46940) that included special migratory bird hunting regulations for 31 Indian tribes, based on the input we received in response to the April 30, 2014, proposed rule and previous rules. All the regulations contained in this final rule were either submitted by the tribes or approved by the tribes and follow our proposals in the August 11 proposed rule.
Although the August 11 proposed rule included generalized regulations for both early- and late-season hunting, this rulemaking addresses only the early-season proposals. Therefore, it includes information for only 24 tribes. The letter designations for the paragraphs pertaining to each tribe in this rule are discontinuous because they follow the letter designations for the 31 tribes discussed in the August 11 proposed rule, which set forth paragraphs (a) through (ee). Late-season hunting will be addressed in late September. As a general rule, early seasons begin during September each year and have a primary emphasis on such species as mourning and white-winged doves. Late seasons begin about October 1 or later each year and have a primary emphasis on waterfowl.
Information on the status of waterfowl and information on the status and harvest of migratory shore and upland game birds, including detailed information on methodologies and results, is available at the address indicated under
For the 2014–15 migratory bird hunting season, we proposed regulations for 31 tribes and/or Indian groups that followed the 1985 guidelines. Only 24 tribes were considered appropriate for this final rulemaking because we did not receive proposals from five of the tribes for whom we had proposed regulations. Some of the tribal proposals had both early- and late-season elements. However, as noted earlier, only those with early-season proposals are included in this final rulemaking; 24 tribes have proposals with early seasons. The comment period for the proposed rule, published on August 11, 2014, closed on August 21, 2014. Because of the necessary brief comment period, we will respond to any comments on the proposed rule and/or these regulations postmarked by August 21, but not received prior to final action by us, in the September late-season final rule. At this time, we have received two comments.
We received comments on GLIFWC's initial proposal from the Mississippi Flyway Council. The Mississippi Flyway Council recommended denial of GLIFWC's waterfowl hunting season requests regarding the use of electronic calls and extending shooting hours to 40 minutes before sunrise and after sunset. The Council recognized that tundra swans are a federally approved game species with a flyway management plan but are not hunted in this region of Minnesota, Wisconsin, and Michigan. In concept, the Council did not oppose a hunting season on swans but requested the tribal proposal follow the current management plan for the eastern population of tundra swans and that additional biological evaluation and harvest planning be conducted in cooperation with the State wildlife agencies and the Service.
GLIFWC states that the regulatory changes are intended to provide tribal members a harvest opportunity within the scope of rights reserved in their various treaties and increase tribal subsistence harvest opportunities, while protecting migratory bird populations. Under the GLIFWC's proposed regulations, GLIFWC expects total ceded territory harvest to be approximately 1,650 ducks, 375 geese, 20 sandhill cranes, and 20 swans, which is roughly similar to anticipated levels in previous years for those species for which seasons were established. GLIWFC further anticipates that tribal harvest will remain low given the small number of tribal hunters and the limited opportunity to harvest more than a small number of birds on most hunting trips.
Recent GLIFWC harvest surveys (1996–98, 2001, 2004, 2007–08, 2011, and 2012) indicate that tribal off-reservation waterfowl harvest has averaged fewer than 1,100 ducks and 250 geese annually. In the latest survey year for which we have specific results (2012), an estimated 86 hunters took an estimated 1,090 trips and harvested 1,799 ducks (1.7 ducks per trip) and 822 geese. Analysis of hunter survey data over 1996–2012 indicates a general downward trend in both harvest and hunter participation. While we acknowledge that tribal harvest and participation has declined in recent years, we do not believe that some of the GLIFWC's proposal for tribal waterfowl seasons on ceded lands in Wisconsin, Michigan, and Minnesota for the 2014–15 season is in the best interest of the conservation of migratory birds. While we acknowledge that tribal harvest and participation has declined in recent years, we do not believe that some of the GLIFWC's proposal for tribal waterfowl seasons on ceded lands in Wisconsin, Michigan, and Minnesota for the 2014–15 season is in the best interest of the conservation of migratory birds. More specific discussion follows below.
As we have stated the last three-years (76 FR 54676, September 1, 2011; 77 FR 54451, September 5, 2012; 78 FR 53218, August 28, 2013), the issue of allowing electronic calls and other electronic devices for migratory game bird hunting has been highly debated and highly controversial over the last 40 years, similar to other prohibited hunting methods such as baiting. Electronic calls,
Available information from the use of additional hunting methods, such as electronic calls, during the special light-goose seasons indicate that total harvest increased approximately 50 to 69 percent. On specific days when light-goose special regulations were in effect, the mean light goose harvest increased 244 percent. One research study found that lesser snow goose flocks were 5.0 times more likely to fly within gun range (≤50 meters) in response to electronic calls than to traditional calls, and the mean number of snow geese killed per hour per hunter averaged 9.1 times greater for electronic calls than for traditional calls. While these results are only directly applicable to light geese, we believe these results are applicable to most waterfowl species, and indicative of some likely adverse harvest impacts on other geese and ducks.
Removal of the electronic call prohibition would be inconsistent with our long-standing conservation concerns. Given available evidence on the effectiveness of electronic calls, and the large biological uncertainty surrounding any widespread use of electronic calls, we believe the potential for overharvest could contribute to long-term population declines. Further, migratory patterns could be affected, and it is possible that hunter participation could increase beyond GLIFWC's estimates (50 percent) and could result in additional conservation impacts, particularly on locally breeding populations. Thus, we continue to not support allowing the use of electronic calls in the 1837 and 1842 Treaty Areas.
Additionally, given the fact that tribal waterfowl hunting covered by this proposal would occur on ceded lands that are not in the ownership of the Tribes, we believe the use of electronic calls to take waterfowl would lead to confusion on the part of the public, wildlife-management agencies, and law enforcement officials in implementing the requirements of 50 CFR part 20. Further, similar to the impacts of baiting, uncertainties concerning the zone of influence attributed to the use of electronic calls could potentially increase harvest from nontribal hunters operating within areas electronic calls are being used during the dates of the general hunt, thereby posing risks to the migratory patterns and distribution of migratory waterfowl.
Lastly, we remind GLIFWC that electronic calls generally are permitted for the take of resident Canada geese during Canada-goose-only September seasons when all other waterfowl and crane seasons are closed (generally September 1–15 in the areas in question). However, in the case of GLIFWC's proposed seasons, electronic calls could be not used since GLIFWC has elected a September 1 duck season opener. This specific regulatory change was implemented in 2006, in order to significantly control resident Canada geese due to widespread population overabundance, depredation issues, and public health and safety issues.
Normally, shooting hours for migratory game birds are one-half hour before sunrise to sunset. A number of reasons and concerns have been cited for extending shooting hours past sunset. Potential impacts to some locally breeding populations (
In 2012, in deference to tribal traditions and in the interest of cooperation, and in spite of our previously identified concerns regarding species identification, species conservation of locally breeding populations, retrieval of downed birds, hunter safety, and law enforcement impacts, we approved shooting 30 minutes after sunset (an extension of 15 minutes from the then-current 15 minutes after sunset) (77 FR 54451, September 5, 2012). This was consistent with other Tribes in the general area (Fond du Lac, Leech Lake, Oneida, Sault Ste Marie, and White Earth). Extending shooting hours on both the front end and the back end of the day to 40 minutes before sunrise and 40 minutes after sunset as GLIWFC has proposed would be contrary to public safety and only heightens our previously identified concerns. We see no viable remedies to allay our concerns. Shooting this early or late would also significantly increase the potential take of non-game birds. Thus, we cannot support increasing the shooting hours by an additional 10 minutes in the 1837 and 1842 Treaty Areas (to 40 minutes before sunrise and 40 minutes after sunset).
As we stated the last two years (77 FR 54451, September 5, 2012; 78 FR 53218, August 28, 2013), we are not opposed to the establishment of a tundra swan season in Wisconsin. Further, we are not conceptually opposed to the establishment of a general swan season. However, before the establishment of such a season in the ceded territory areas in question, we stated that there were several significant concerns and special considerations. We believe that GLIFWC has addressed those concerns with their current proposal.
First, the proposed areas in question are home to significant numbers of trumpeter swans. While the GLIFWC's proposed season is for both tundra and trumpeter swans, there are important differences that require careful consideration. Many cooperators, including GLIFWC, worked together to reestablish a breeding trumpeter swan population in the Great Lakes. These efforts have been largely successful with the removal of this species from Wisconsin's endangered species list in 2009. After a 25-year recovery program, there are currently about 200 breeding pairs in Wisconsin. Further, within Wisconsin, the northern ceded territory is an area of high trumpeter swan use containing over 80 percent of the breeding pairs. We believe it is best to avoid such areas with significant concentrations of trumpeter swans, and to focus hunting efforts in primary tundra swan migration and staging areas. Most such trumpeter swan areas are located outside of the ceded territories of northern Wisconsin.
To address concerns about the potential harvest of trumpeter swans by tribal hunters hunting during a general swan season, GLIFWC has proposed two
For these reasons, we believe that a tribal swan hunting season in the ceded territory should be implemented this year.
In Wisconsin, State law requires that decoys may not be placed more than an hour before legal shooting hours or left out more than 20 minutes after legal shooting hours. As we stated in 2011 concerning a similar decoy restriction in Michigan (76 FR 54676, September 1, 2011), and in 2012 concerning this restriction (77 FR 54451, September 5, 2012), while we believe that there may be safety concerns with elimination of such a restriction, we take no position on the relative need or lack of need for such a restriction. Other than regulations on National Wildlife Refuges and other Federal lands, there are no Federal restrictions requiring the removal of unattended decoys.
Additionally, given the fact that tribal waterfowl hunting covered by this rule would occur on ceded lands that are not in the ownership of the Tribes, we believe the use of unattended decoys to “reserve” hunting areas in public waters (
We received one comment on the Oneida's proposal from the Village of Hobart, Wisconsin (Village) and one response to the Village's comments from the Oneida. The Village requested that the entire section regarding the Oneida's proposed regulations be removed, as applied to tribal members or non-tribal members upon fee lands within the Village of Hobart, since there is no Oneida “reservation” eligible for consideration of special migratory bird hunting regulations. The Village asserts that the Service does not have the power to overrule binding federal court decisions respecting the discontinuance of the former Oneida Reservation. The Village also asserts potential safety problems with hunting on Austin Straubel International Airport property.
The programmatic document, “Second Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (EIS 20130139),” filed with the Environmental Protection Agency (EPA) on May 24, 2013, addresses NEPA compliance by the Service for issuance of the annual framework regulations for hunting of migratory game bird species. We published a notice of availability in the
Section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all 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. E.O. 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.
An updated economic analysis was prepared for the 2013–14 season. This analysis was based on data from the 2011 National Hunting and Fishing Survey, the most recent year for which data are available (see discussion in
The annual migratory bird hunting regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule will have an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we are not deferring the effective date under the exemption contained in 5 U.S.C. 808(1).
This final rule does not contain any new information collection that requires approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• 1018–0010—Mourning Dove Call Count Survey (discontinued 7/29/2014).
• 1018–0019—North American Woodcock Singing Ground Survey (expires 4/30/2015).
• 1018–0023—Migratory Bird Surveys (expires 6/30/2017). Includes Migratory Bird Harvest Information Program, Migratory Bird Hunter Surveys, Sandhill Crane Survey, and Parts Collection Survey.
We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Department, in promulgating this rule, has determined that this rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 12630, this rule, authorized by the Migratory Bird Treaty Act (16 U.S.C. 703–711), does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this rule allows hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
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, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no effects on Indian trust resources. However, in the April 30
Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or Indian tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
The rulemaking process for migratory game bird hunting must, by its nature, operate under severe time constraints. However, we intend that the public be given the greatest possible opportunity to comment. Thus, when the preliminary proposed rulemaking was published, we established what we believed were the longest periods possible for public comment. In doing this, we recognized that when the comment period closed, time would be of the essence. That is, if there were a delay in the effective date of these regulations after this final rulemaking, States and Tribes would have insufficient time to select season dates and limits; to communicate those selections to us; and to establish and publicize the necessary regulations and procedures to implement their decisions. We therefore find that “good cause” exists, within the terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and these seasons will, therefore, take effect less than 30 days after the date of publication.
Accordingly, with each participating Tribe having had an opportunity to participate in selecting the hunting seasons desired for its reservation or ceded territory on those species of migratory birds for which open seasons are now prescribed, and consideration having been given to all other relevant matters presented, certain sections of title 50, chapter I, subchapter B, part 20, subpart K, are hereby amended as set forth below.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
Accordingly, part 20, subchapter B, chapter I of title 50 of the Code of Federal Regulations is amended as follows:
Migratory Bird Treaty Act, 40 Stat. 755, 16 U.S.C. 703–712; Fish and Wildlife Act of 1956, 16 U.S.C. 742a–j; Pub. L. 106–108, 113 Stat. 1491, Note Following 16 U.S.C. 703.
The following hunting regulations provided for by 50 CFR 20.110 will not appear in the Code of Federal Regulations because of their seasonal nature.
Unless specifically provided for below, all of the regulations contained in 50 CFR part 20 apply to the seasons listed herein.
1854 and 1837 Ceded Territories:
Reservation:
1854 and 1837 Ceded Territories:
Reservation:
1854 and 1837 Ceded Territories:
Reservation:
1854 and 1837 Ceded Territories:
Reservation:
1854 and 1837 Ceded Territories:
1854 and 1837 Ceded Territories:
Reservation:
1854 and 1837 Ceded Territories:
Reservation:
1854 and 1837 Ceded Territories:
Reservation:
1854 and 1837 Ceded Territories:
Reservation:
1. While hunting waterfowl, a tribal member must carry on his/her person a valid tribal waterfowl hunting permit.
2. Except as otherwise noted, tribal members will be required to comply with tribal codes that will be no less restrictive than the provisions of Chapter 10 of the Model Off-Reservation Code. These regulations parallel Federal requirements in 50 CFR part 20 as to hunting methods, transportation, sale, exportation, and other conditions generally applicable to migratory bird hunting.
3. Band members in each zone will comply with State regulations providing for closed and restricted waterfowl hunting areas.
4. There are no possession limits on any species, unless otherwise noted above. For purposes of enforcing bag and possession limits, all migratory birds in the possession or custody of band members on ceded lands will be considered to have been taken on those lands unless tagged by a tribal or State conservation warden as having been taken on-reservation. All migratory birds that fall on reservation lands will not count as part of any off-reservation bag or possession limit.
5. Shooting hours for migratory birds are one-half hour before sunrise to one-half hour after sunset.
The 2014–15 waterfowl hunting season regulations apply to all treaty areas (except where noted):
1836 Ceded Territory: 30 ducks.
1837 and 1842 Ceded Territories:
1837 and 1842 Ceded Territories Only:
1837 and 1842 Ceded Territories Only:
A. All tribal members are required to obtain a valid tribal waterfowl hunting permit.
B. Except as otherwise noted, tribal members are required to comply with tribal codes that are no less restrictive than the model ceded territory conservation codes approved by Federal courts in the
C. Particular regulations of note include:
1. Nontoxic shot is required for all waterfowl hunting by tribal members.
2. Tribal members in each zone must comply with tribal regulations providing for closed and restricted waterfowl hunting areas. These regulations generally incorporate the same restrictions contained in parallel State regulations.
3. There are no possession limits, with the exception of 2 swans (in the aggregate) and 25 rails (in the aggregate). For purposes of enforcing bag limits, all migratory birds in the possession and custody of tribal members on ceded lands are considered to have been taken on those lands unless tagged by a tribal or State conservation warden as taken on reservation lands. All migratory birds that fall on reservation lands do not count as part of any off-reservation bag or possession limit.
4. The baiting restrictions included in the respective section 10.05(2)(h) of the model ceded territory conservation codes will be amended to include language which parallels that in place for nontribal members as published at 64 FR 29799, June 3, 1999.
5. The shell limit restrictions included in the respective section 10.05(2)(b) of the model ceded territory conservation codes will be removed.
6. Hunting hours are from one-half hour before sunrise to one-half hour after sunset.
1836 Ceded Territory and Tribal Reservation:
All other Federal regulations contained in 50 CFR part 20 apply. The following restrictions also apply:
(1) As per Makah Ordinance 44, only shotguns may be used to hunt any species of waterfowl. Additionally, shotguns must not be discharged within 0.25 miles of an occupied area.
(2) Hunters must be eligible, enrolled Makah tribal members and must carry
(3) The Cape Flattery area is open to waterfowl hunting, except in designated wilderness areas, or within 1 mile of Cape Flattery Trail, or in any area that is closed to hunting by another ordinance or regulation.
(4) The use of live decoys and/or baiting to pursue any species of waterfowl is prohibited.
(5) Steel or bismuth shot only for waterfowl is allowed; the use of lead shot is prohibited.
(6) The use of dogs is permitted to hunt waterfowl.
(7) Shooting hours for all species of waterfowl are one-half hour before sunrise to one-half hour after sunset.
(8) Open hunting areas are: GMUs 601 (Hoko), a portion of the 602 (Dickey) encompassing the area north of a line between Norwegian Memorial and east to Highway 101, and 603 (Pysht).
Tribal members hunting on lands will observe all basic Federal migratory bird hunting regulations found in 50 CFR part 20, which will be enforced by the Stillaguamish Tribal Law Enforcement. Tribal members are required to use steel shot or a nontoxic shot as required by Federal regulations.
Tribal members must have the tribal identification and harvest report card on their person to hunt. Tribal members hunting on the Reservation will observe all basic Federal migratory bird hunting regulations found in 50 CFR part 20, except shooting hours would be one-half hour before official sunrise to one-half hour after official sunset.
Farm Service Agency, Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Commodity Credit Corporation, USDA.
Proposed rule.
The Farm Service Agency (FSA) proposes to consolidate, update, and amend its regulations implementing the National Environmental Policy Act of 1969, as amended (NEPA). FSA's NEPA regulations have been in place since 1980. Significant changes to the structure of FSA and the scope of FSA's programs require changes in FSA's NEPA regulations. The proposed changes would also better align FSA's NEPA regulations with the President's Council on Environmental Quality (CEQ) NEPA regulations and guidance and meet the FSA responsibilities for periodic review of their categorical exclusions. One component of the changes proposed to improve the clarity and consistency of the regulations, is the proposed additions to the existing list of categorical exclusions (CatExs). CatExs involve actions that typically do not result in individual or cumulative significant environmental effects or impacts and therefore do not merit further environmental review in an Environmental Assessment (EA) or Environmental Impact Statement (EIS). This proposed rule would also propose to expand and clarify the list of actions that require an EA. In addition, this rule proposes conforming changes to existing references to FSA NEPA regulations in other current USDA regulations. The revisions to the FSA NEPA implementing regulations are intended to improve transparency and clarity of the FSA NEPA process for FSA program participants and to provide for a more efficient environmental review that will lead to better decisions and outcomes for stakeholders and the environment.
We will consider comments that we receive by December 2, 2014.
We invite you to submit comments on this proposed rule and the information collection. In your comment, specify RIN 0560–AH02 and the volume, date, and page number of this issue of the
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FSA will post all comments received without change, including any personal information that is included with the comments, on
Nell Fuller; telephone (202) 720–6303. Persons with disabilities or who require alternative means for communication should contact the USDA Target Center at (202) 720–2600.
NEPA (Pub. L. 91–190, 42 U.S.C. 4321–4370) establishes a national environmental policy, sets goals for the protection, maintenance, and enhancement of the environment and provides a process for carrying out the policy and working toward those policy goals. The NEPA process requires different levels of environmental review and analysis of Federal agency actions, depending on the nature of the action. As stated in 40 CFR 1508.18(a), actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals. Some actions, because of the nature of their potential environmental effects are categorically excluded from further environmental analysis and are known as CatExs. If an action is not categorically excluded, additional review will be performed either through an EA, or, where the circumstances warrant, a more rigorous EIS to ensure that the additional time and analysis is both expeditious and serves to better inform the decision at hand. Rules specifying the requirements for NEPA analysis are in government-wide NEPA regulations issued by CEQ and available at 40 CFR parts 1500 through 1508, and in individual agency regulations, including the Department of Agriculture's NEPA implementing regulations (7 CFR part 1b). The scope of this proposed rule is to update the FSA NEPA implementing regulations.
A CatEx is used typically for actions that do not have a significant impact on the quality of the human environment, such as a farm loan consolidation or funding for the maintenance of existing buildings. The general NEPA regulations define the human environment as “the natural and physical environment, and the relationship of people with that environment” (40 CFR 1508.14). Individual actions are not categorically excluded by this rulemaking; in the future, those actions that fit into a specific category can be categorically excluded if there are no extraordinary circumstances for the specific proposed action at hand. If an action is not in a categorically excluded category, then the next step in the NEPA process is usually an EA. An EA is prepared to analyze the potential environmental impact of a Federal agency action and
NEPA requires a Federal agency to prepare an EIS for any major Federal action that significantly affects the quality of the human environment (see 42 U.S.C. 4332(c)). The criteria for what constitutes a “major Federal action significantly affecting the quality of the human environment” are specified in the general NEPA regulations that apply to all Federal agencies in 40 CFR 1508.18. The EIS must include a detailed evaluation of:
(1) The environmental impact of the proposed action;
(2) Any adverse environmental effects that cannot be avoided;
(3) Alternatives to the proposed action;
(4) The relationship between the local, short-term resource uses and the maintenance and enhancement of long-term ecosystem productivity; and
(5) Any irreversible and irretrievable commitments of resources.
NEPA requires that the environmental evaluation must be started once a proposal to take an action is concrete enough to warrant analysis and must be completed at the earliest possible time to ensure that planning and implementation decisions reflect environmental values. The NEPA review informs the decision maker and the public, and must be completed before a decision is made.
NEPA also establishes the President's Council on Environmental Quality (CEQ). Executive Order 11514, “Protection and Enhancement of Environmental Quality,” as amended by Executive Order 11991, “Relating to Protection and Enhancement of Environmental Quality,” directs the CEQ to prepare binding regulations governing how Federal agencies are to implement NEPA. The CEQ NEPA regulations (40 CFR parts 1500–1508) provide this general regulatory framework.
The CEQ NEPA regulations require every Federal agency to develop agency-specific procedures for implementing NEPA. Each Federal agency's NEPA implementing procedures supplement the CEQ regulations to address the agency's specific environmental review needs. This proposed rule supplements the CEQ's NEPA regulations, and the USDA general NEPA regulations at 7 CFR part 1b, addressing their implementation by FSA.
FSA was created in 1995 by merging the former Agricultural Stabilization and Conservation Service (ASCS) and the farm loan portion of the Farmers Home Administration (FmHA); currently the Farm Programs and Farm Loan Programs, respectively. (As required by the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 (Pub. L. 103–354).) Since that reorganization, FSA has been operating under two separate sets of NEPA regulations, one for the programs within the scope of the former ASCS and one for programs within the scope of the former FmHA. This proposed rule would consolidate, clarify, and update FSA NEPA regulations to establish a single set of NEPA regulations for FSA, and so that those regulations reflect current FSA organizational structure, environmental laws, Executive Orders, and CEQ guidance and policy.
FSA's scope also includes field operations and commodity warehouse activities that were included in the scope of the former ASCS. These activities are categorically excluded as inventory, informational, or administrative actions under USDA's general NEPA implementing rules in 7 CFR part 1b and those CatExs would continue to be available for application by the FSA. This rule would not change the USDA department-wide CatExs that would apply to FSA programs that solely involve those actions or similar actions identified in 7 CFR 1b.3.
The Farm Programs part of FSA oversees conservation, disaster assistance, direct and countercyclical payments, price support, farm storage facility loans, and commodity loan programs. Currently, the NEPA regulations governing FSA Farm Programs are in 7 CFR part 799. Many current FSA programs did not exist in 1980 and are therefore not specifically addressed under the current NEPA regulations in 7 CFR part 799.
The Farm Loan Programs part of FSA is responsible for providing direct farm loans, guaranteed farm loans, and land contract guaranteed loans. Currently, the NEPA regulations governing Farm Loan Programs are at 7 CFR part 1940, subpart G, and apply to FSA farm loans and to other USDA activities associated with the Rural Housing Service, Rural Business-Cooperative Service, and Rural Utilities Service, (also formerly part of FmHA). These regulations contain provisions that refer to programs that either no longer exist or are not FSA programs.
FSA is responsible for NEPA compliance for the Commodity Credit Corporation (CCC) programs that FSA administers. FSA currently has no separate NEPA regulations for CCC; existing FSA NEPA regulations in 7 CFR part 799 apply for CCC programs that are administered by FSA. Those will be included in this rule.
The proposed rule would implement a single consolidated set of FSA NEPA regulations in 7 CFR part 799. As a result, the regulations in 7 CFR part 1940, subpart G, would no longer apply to FSA, and would be amended accordingly. The proposed changes are intended to improve clarity in the regulations, allow more efficient program implementation at the field level, provide more openness and transparency during FSA's environmental decision-making, and simplify program administration.
The revised part 799 would have six subparts, titled “General FSA Implementing Regulations for NEPA,” “FSA and Program Participant Responsibilities,” Environmental Screening Worksheet,” “Categorical Exclusions,” “Environmental Assessments,” and “Environmental Impact Statements.” The “FSA and Program Participant Responsibilities” subpart would include a summary chart of the entire FSA NEPA process.
Following the discussion of the regulatory changes, a summary table provides a general comparison of the major NEPA provisions, the current regulations, and the proposed regulation. In general, FSA has already administratively implemented FSA NEPA procedures to meet current NEPA requirements as specified in Executive Orders and CEQ guidance; those currently implemented FSA NEPA procedures are reflected in this rule as proposed changes to the regulation. For example, Programmatic EAs (PEAs) are not in the current regulations, but FSA already does such analyses in compliance with current CEQ regulations and guidance. So, the proposed provisions for PEAs represent a revision to the regulations, which specifically authorize and further explain FSA NEPA procedures. A detailed crosswalk comparing the specific regulatory changes between the current FSA regulations and the
The CEQ regulations require that Federal agencies implement NEPA procedures, in part to “reduce paperwork and the accumulation of extraneous background data and to emphasize real environmental issues and alternatives” (40 CFR 1500.2(b)). FSA believes that the proposed changes will meet that requirement, by clarifying the procedures for completing EAs and EISs, and by expanding and making the CatEx list more specific. The changes will significantly reduce paperwork and allow FSA to focus limited resources on real environmental issues and alternatives for other actions, as appropriate.
Emergency circumstances will continue to be handled consistent with 40 CFR 1506.11 and applicable CEQ guidance.
This rule includes procedures to increase transparency and accountability of FSA's NEPA process. One of those procedures is a new worksheet that will be used to assess the need for, and extent of, NEPA evaluations for all FSA programs. This proposed rule describes the use of the new environmental screening worksheet (ESW) in the revised 7 CFR part 799, subpart C. ESW and the process for using it would represent a substantive change from current practice. Implementation of the ESW would consolidate two forms required by 7 CFR parts 799 and 1940, subpart G, reducing total paperwork and ensuring better compliance with NEPA. FSA staff would use the ESW as an initial screening tool to evaluate and document any likely environmental impacts of proposed actions and determine the potential significance and appropriate level of NEPA review (CatEx, EA, or EIS). For some types of CatEx, completion of the ESW will identify the CatEx being considered and document the determination whether extraordinary circumstances exist, and will determine whether the CatEx is appropriately applied or further NEPA review of that proposed action is appropriate. The new ESW consolidates the evaluation criteria from multiple forms and checklists currently used by FSA for environmental evaluation. Having one form will reduce the paperwork for FSA and ensure compliance with NEPA.
As proposed, 7 CFR part 799, subpart C, specifies the categories of actions that would require the use of the ESW and how the ESW would be used. In general, the ESW would be required for all actions except those CatExs listed in § 799.31, which FSA has determined do not require further documentation (beyond that provided in the substantiation for establishing the CatEx and the project file) for specific proposed actions. An administrative record was created, in consultation with CEQ, to substantiate the CatExs in this rule. The administrative record includes benchmarking CatExs by other government agencies and documentation from previous FSA NEPA analysis of these types of actions.
The next section of this document explains the new categories of CatExs, some of which require an ESW. Some examples of CatEx actions proposed in § 799.31 that would not require an ESW include many loan actions, fence repair, and maintenance of existing buildings. The list of actions specified in § 799.32 of this rule may be categorically excluded depending on the outcome of the review documented in the ESW. Those CatEx actions would require an ESW to determine if extraordinary circumstances exist that require further environmental analysis. Some examples of these actions that would be analyzed with an ESW include loan transfers with planned new land disturbance and fence installation.
Extraordinary circumstances, as specified in this proposed rule, are considered in the context of a specific action and include situations with potentially significant impacts. If such circumstances do exist, then an EA is required for an action that would otherwise be categorically excluded.
In addition to its use for NEPA review, the ESW would also be required for a list of specific actions, specified in § 799.34, that FSA has determined may have the potential to affect historic properties. This includes actions such as operating loans for construction and well drilling.
For all actions for which there is no applicable CatEx, the ESW would be used to determine whether an EA or an EIS is the next step in the NEPA process.
USDA agencies and other Federal agencies have similar environmental screening tools (for example, USDA's Natural Resources Conservation Service (NRCS) and Rural Development, the Department of Energy, the Department of Defense). FSA reviewed those screening tools and considered these agencies' approaches during development of the ESW.
The ESW would replace the existing form FSA 850 “Environmental Evaluation Checklist” document and the RD 1940–22, which local FSA staff and County Office Committee reviewers have found to be somewhat lengthy, confusing, and duplicative paperwork. Due to its length and complexity, the existing checklist has been used inconsistently. The new, more concise ESW is designed to be applied consistently.
This proposed rule specifies the situations in which the ESW would be used by FSA. The ESW would be completed by FSA field office personnel during the review of an application for any FSA program, unless the program is categorically excluded from further NEPA analysis without documentation in an ESW, or FSA receives technical assistance with the environmental evaluation from USDA or another Federal agency that can be used in place of the ESW. For example, FSA often receives technical assistance from NRCS, which uses its own evaluation form. The NRCS form provides the same information as the ESW and therefore is used instead of the ESW when NRCS supplies FSA technical assistance. The use of the new FSA ESW as specified in this rule is expected to make overall action planning, and project-specific environmental reviews, more timely and cost effective. It is also expected to provide more clarity and transparency to the environmental review process.
This proposed rule would update and clarify the CatEx requirements that apply to FSA programs and group those requirements in a new subpart. Consistent with CEQ regulations, subpart D of the proposed rule specifies that a “categorical exclusion” is a category of agency actions that normally have no individually or cumulatively significant effect on the human environment (see 7 CFR 799.30). Subpart D would provide a longer and more specific list of categorically excluded actions than is in the current
Some of the proposed CatExs are similar to the CatExs of other Federal agencies and reflect FSA's experience with similar factual circumstances. For example, the action of “fencing” is an action that FSA has categorized as a CatEx that also has been identified as a CatEx by other agencies, such as the Department of Energy, in their NEPA implementing regulations. It has also been documented in several FSA EISs for the Emergency Conservation Program to have no significant impact on the environment. Other new CatExs are more specific to FSA and reflect FSA's past experience with similar factual circumstances. These CatExs have been found to have no potential to produce significant environmental impacts on the human environment based on past NEPA documentation by FSA environmental experts and their review of the impacts for implementing those actions. For example, many of the loan program actions conducted by FSA such as refinancing, closing cost payments, and deferral of loan payments, have been shown consistently to have no potential to significantly impact the human environment as a result of the FSA action. In addition, those actions are categorically excluded in 7 CFR 1940.310(e)(2) as loan-closing and servicing activities.
There are many CatExs proposed in this rule on the basis of the location where the specific actions would be occurring. For example, various actions that would take place within previously disturbed or developed farmland, and actions on land where the former state of the area and its ecological functions have already been altered, are appropriate for a CatEx. These would also include actions on land that has been previously cultivated, as long as the proposed new action would not disturb below the plow zone or amount to very limited disturbance. The Department of Energy uses this same previously disturbed ground criteria as an integral component of their CatExs.
FSA proposes to separate its actions into three broad categories with regards to categorical exclusion and any further required environmental review. As explained below, these are actions that (1) are automatically excluded from further environmental review without further documentation, (2) may be excluded from further environmental review based on the result of the ESW, and (3) are not excluded and require further environmental review (EA or EIS):
• First, those actions that would be categorically excluded from further environmental review without documentation. There are a total of 71 of these types of actions proposed in this rule and include actions such as paying loan closing costs, refinancing debt, and a payment to support commodity prices with no requirement for any action on part of the recipient. Most of these type of actions would also not be considered as undertakings that have potential to affect a historic property and therefore would not be subject to section 106 of the National Historic Preservation Act of 1966 (NHPA) (16 U.S.C. 470f). FSA may also add CatExs to the regulations in the future. As specified in this rule, and discussed below future CatExs would be proposed in the
• Second, those actions that would be considered as CatExs so long as they are documented with an ESW. Extraordinary circumstances, as specified in this proposed rule, are unique to a specific action and include situations where an action has potentially significant impacts. The presence or absence of such extraordinary circumstances would be determined by the completion of the ESW. There are a total of 21 of these actions proposed in this rule, including actions such as loans for livestock purchases, construction in previously disturbed areas, grading, shaping, leveling, and refilling. These are categories of actions where such extraordinary circumstances with the potential for environmental impact have rarely resulted in potentially significant effects. In addition, most of these actions are not considered as undertakings that have the potential to affect a historic property and therefore would not be subject to section 106 of the NHPA.
• Third, those actions that typically have the potential to have a significant impact on the human environment but for which, as a general matter, mitigation measures can be applied to decrease the level of significance to support a Finding of No Significant Impact. For those actions an environmental review in the form of an EA or EIS will be required and a CatEx would not be considered. These would be analyzed by completing the ESW and using the results to determine the need for an EA or an EIS. There are a total of 47 of these actions and include actions such as pond planning and construction, dike planning and construction, and operating loans for actions with demolition or construction planned. If a property is deemed historic, these actions are also considered as undertakings that have the potential to affect a historic property and would be subject to section 106 of NHPA. Consultation with the State Historic Preservation Officer (SHPO), Tribal Historic Preservation Officer (THPO), Tribal governments, and the public will be conducted as appropriate based on the location, nature, and scale of the action.
As specified in § 799.35 of this proposed rule, the CEQ regulations at 40 CFR 1507.3, and in CEQ guidance on “Establishing, Applying and Revising Categorical Exclusions under the National Environmental Policy Act (NEPA)” and published in the
The inclusion in the regulations of CatExs that were previously not explicitly listed as CatExs in the current FSA NEPA regulations but were previously documented as CatExs in their corresponding program regulations and FSA handbooks will increase transparency and clarity of FSA's NEPA process. The new CatExs added with this rule, and the new ESW, will reduce the time and effort required for the
The current FSA NEPA regulations in 7 CFR part 1940, subpart G, have two categories of Environmental Assessments (Class I and Class II). As currently specified by CEQ, there is no variation on EA requirements, for example, a checklist does not meet the definition of an EA (40 CFR 1508.9). This proposed regulation has only one category of Environmental Assessment, which would make the NEPA process less complex and consistent with the CEQ regulations. This is a substantive change in the regulation, but not in the current process.
The current FSA Farm Programs NEPA regulations in 7 CFR part 799 do not specify the types of actions for which an EA is required. This rule proposes a specific list of actions for which an EA is normally required, in addition to the previously discussed list of CatExs where an ESW is needed to determine if an EA is required (see 7 CFR 799.31 and 799.32, respectively). This rule also proposes the information that must be included in an EA (see 7 CFR 799.42). These provisions would help add clarity to the NEPA process.
This rule proposes to add criteria for developing a programmatic EA (PEA) if proposed actions in a program individually have an insignificant environmental impact, but cumulatively could have a significant impact (see 7 CFR 799.40(c)). FSA currently performs PEAs under the current regulations. FSA's PEAs are broad NEPA documents that examine a program or policy on a larger scale and provide an analytical framework to examine environmental impacts in comprehensive manner while providing the basis for future proposed actions and site-specific analyses (“tiering”). For example, the rulemaking to implement the Voluntary Public Access and Habitat Incentive Program (VPA–HIP) required State-level PEAs for all grant recipients. This eliminates the need to review and prepare an ESW for each of the individual incentives to provide public access or implement public access related activities for any single parcel of land in a State. The PEA process allows FSA to identify similar actions that share common issues, timing or geography; provides a framework for future tiered analyses to be consistent with one another; shortens development time; and reduces funding needs while streamlining or eliminating the environmental review process for certain individual actions analyzed in the PEA.
The use of the amended CatEx lists would likely substantially reduce the number of EAs that FSA is required to complete in a year, as compared to the number of EAs that FSA has completed in the past. The expected reduction in the number of EAs would depend on the finding of no extraordinary circumstances during the ESW analysis—in some cases the ESW process could result in a finding that an EA is required. Specifically, many Farm Loan Programs actions that currently require an EA would be categorically excluded with documentation required using the new ESW process. Some would be categorically excluded without documentation.
This rule proposes a new subpart on the EIS process that consolidates EIS requirements from the existing regulations and more specifically describes the processes involved. As proposed in this rule and as required by NEPA and CEQ regulations, an EIS would be required for the following four types of actions:
• Legislative proposals, not including appropriations requests, drafted and submitted to Congress by FSA that have the potential to have significant impact on the quality of the human environment, as specified in 40 CFR 1506.8;
• Regulations for new programs, if through the preparation of an EA, FSA has determined that an EIS is necessary;
• Broad Federal assistance programs administered by FSA involving significant financial assistance for ground disturbing activities or payments to program participants that may have significant cumulative impacts on the human environment or national economy; and
• Ongoing programs that have been found through previous environmental analyses to have major environmental concerns.
These four categories of actions, while more clearly defined in this proposed rule than in the current regulations, are substantially similar to the requirements in the current NEPA regulations for FSA Farm Programs in 7 CFR part 799. The current NEPA regulations for FSA Farm Loan Programs in 7 CFR part 1940, subpart G, specify some general criteria for determining if an EIS is needed, with an emphasis on the location of the action (for example, floodplains, wetlands). The proposed changes are intended to clarify the requirements for an EIS, but are not intended to substantively change when an EIS is required. The changes in this proposed rule are not expected to result in a change in the number of EISs that FSA conducts each year. The proposed changes explain more clearly the procedures and process FSA will follow when preparing an EIS, including specific requirements for the information that must be included in an EIS. This rule also adds specific information on the process for developing a programmatic EIS, which is currently specified in the FSA handbooks rather than the regulations. As noted earlier, much of that process has already been implemented administratively.
This proposed rule consolidates and reorganizes the provisions currently in 7 CFR parts 799 and 1940, subpart G, into a revised 7 CFR part 799, adds longer and more specific lists of CatExs and of actions requiring an EA, and adds new provisions to comply with current CEQ guidance. The following table summarizes how the major provisions in this proposed regulation compare to similar provisions in the existing regulations.
Many of the proposed changes in this rule are essentially minor technical and clarifying changes, some changes reorganize the requirements from the current regulations. This section of the preamble discusses the technical and structural changes to the regulations that are intended to increase clarity and remove obsolete provisions, but would not change requirements for the public or change the environmental review processes administratively.
All of the definitions that apply to NEPA implementation for FSA Farm Programs, Farm Loan Programs, and CCC programs administered by FSA would be in one section of the consolidated regulations, § 799.4. In addition to the definitions already in the current regulations, this rule proposes to add definitions for “application,” “construction,” “consultation,” “environmental screening worksheet,” “financial assistance,” “historic properties,” “memorandum of agreement,” “program participant,” “protected resources,” “State Historic Preservation Officer,” “Tribal Historic Preservation Officer,” and “wetlands.” These terms are all already used in FSA's current NEPA implementation and Environmental Quality Programs handbook (1–EQ); adding them to the regulations will provide clarity to the FSA NEPA process, but will not change the existing process. For example, the definition for “historic properties” in this rule, includes prehistoric or historic districts, sites, buildings, structures or objects, which are included in, or eligible for inclusion in, the National Register of Historic Places, which is consistent with the other Federal agencies and NHPA (16 U.S.C. 470–470x–6) regulations.
Similarly, the definition for “consultation” in this rule includes the process of considering the views of other participants in the environmental review process and seeking agreement where feasible is consistent with how other USDA agencies (for example, NRCS) define “consultation” in their NEPA and NHPA regulations.
As proposed in this rule, all of the FSA NEPA compliance responsibilities would be specified in 7 CFR part 799. The regulations would clarify who is responsible for NEPA and NHPA compliance at the national level by specifying that the Administrator or designee will appoint a National Environmental Compliance Manager as required by 40 CFR 1507.2(a) and a Federal Preservation Officer as required by section 110 of NHPA (16 U.S.C. 470hndash;2(a)) and Executive Order 13287. These are not new responsibilities; this would clarify the regulations. To update the current position titles in FSA, the references to State Director from 7 CFR part 1940, subpart G, would be changed to State Executive Director. Other revised provisions would clarify the role of the State Environmental Coordinator, to be consistent with current practice.
The requirements for CatExs, EAs, and EISs would be organized into separate subparts, so that it would be clearer which requirements and processes apply to each type of environmental review. For example, the section on “tiering,” a process that is relevant to the EIS process but not used for EAs or CatExs, would be in the EIS subpart, but the requirements for “tiering” would not change.
Many of the changes in this proposed rule would remove obsolete provisions and terminology. For example, references to agencies that no longer exist would be removed, and replaced with references to FSA. This rule would also remove references to programs that no longer exist (such as the Agricultural Conservation Program, Water Bank Program, Tobacco Production Adjustment Program, Bee Indemnity Program, and Naval Stores Program), replacing them with more general provisions that apply to types of programs and actions rather than to specific programs. These changes would make the regulations clearer, more transparent, and up to date, but are not substantive changes and should have no impact on the NEPA analysis process.
The current regulations in 7 CFR parts 799 and 1940, subpart G, have numerous exhibits and appendices. These include obsolete forms and obsolete organizational charts. This rule would remove those exhibits and appendices, which would not change the current process because in most cases the referenced items are no longer used. This rule would add references in § 799.1, “Purpose,” to several dozen relevant environmental laws, Executive Orders, and regulations that were developed since the current regulations were published. References to departmental regulations currently listed in appendices to 7 CFR part 1940 would also be moved to this list of references. FSA is already required to comply with these laws, Executive Orders, departmental regulations, and regulations of other agencies, so listing all of the relevant references in one consolidated section would not be a change the current practice.
In addition to the changes discussed above, a number of changes would need to be made in other related FSA regulations. Throughout the FSA regulations, references to NEPA regulations and environmental compliance would be updated to refer to 7 CFR part 799. Several environmental compliance sections would become redundant and would be removed. For example, the separate environmental compliance section for the Farm Storage Facility Loan program would be removed, because that program is subject to the same environmental compliance requirements as every other FSA program.
Currently, the Rural Housing Service and Rural Business-Cooperative Service also use 7 CFR part 1940, subpart G. However, exhibit M to subpart G, “Implementation Procedures for the Conservation of Wetlands and Highly Erodible Land Affecting Farmer Program Loans and Loans to Indian Tribes and Tribal Corporations,” is currently only used by FSA. The Rural Development agencies do not use exhibit M to subpart G because the provisions related to swampbuster and sodbuster do not apply to the Rural Development agencies. There are cross references to exhibit M throughout subpart G that would be unnecessarily complicated to change at this time because the goal is to remove subpart G when both Rural Development and FSA have their own replacement regulations in place. Therefore, the content of exhibit M to subpart G would be replaced with references for specific types of information, for example, when to refer to 7 CFR part 12 or 7 CFR part 799.
Along with the changes proposed to the regulations, FSA will make conforming changes to any references to 7 CFR part 1940, subpart G, for example, in forms and handbooks.
Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (OMB) designated this rule as significant under Executive Order 12866, “Regulatory Planning and Review,” and has reviewed this rule. A summary of the cost benefit analysis is provided below and is available at
Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this proposed rule, we invite your comments on how to make it easier to understand. For example:
• Are the requirements in the rule clearly stated? Are the scope and intent of the rule clear?
• Does the rule contain technical language or jargon that is not clear?
• Is the material logically organized?
• Would changing the grouping or order of sections or adding headings make the rule easier to understand?
• Could we improve clarity by adding tables, lists, or diagrams?
• Would more, but shorter, sections be better? Are there specific sections that are too long or confusing?
• What else could we do to make the rule easier to understand?
This rule is expected to provide both quantifiable and qualitative benefits. It is expected to provide qualitative benefits by improving the efficiency and transparency of the NEPA process. By consolidating FSA NEPA procedures into a single rule and more clearly identifying the process required under different types of circumstances, this rule is expected to increase understanding and consistency in implementing the NEPA process while decreasing the time spent addressing NEPA requirements. Confusion in
The expanded and clarified list of CatExs in this rule is expected to generate specific, quantifiable benefits associated with reducing the number of EAs required. One benefit will be the cost savings due to reduced FSA workload. The public, including, but not limited to, individual program participants, lenders, and State agencies and organizations, will likely see both cost savings and qualitative benefits from the reduced time required to complete the NEPA process for both Farm Programs and Farm Loan Programs actions. To estimate the impact of fewer EAs, the Cost Benefit Analysis uses the assumptions that current programs continue and that most Farm Loan Programs actions for which the current regulation would require site level EAs would qualify for either CatExs without documentation or for CatExs that require the use of the ESW. Using these assumptions, the proposed NEPA rule changes could eliminate, on average, 314 environmental assessments per year based on our analysis of Farm Loan Programs EAs done between 2002 and 2009. In 2008, the average cost to FSA for these EAs was estimated at $1,100, suggesting an annual savings of $345,000 in FSA expenses for environmental reviews as a result of this rule.
Actual cost savings may be higher or lower than $345,000 in any specific year, because the number and types of required NEPA analyses in any given year depend on participation in the specific FSA programs for which NEPA applies. For example, the impact for Farm Loan Programs depends on how many loans are for actions on land that has already been disturbed, as opposed to those that involve additional disturbance such as pond or building construction.
This rule does not change the basic requirements for an EIS, so it is not expected to result in a change in the number of EISs associated with FSA programs. Therefore, no costs or benefits, other than increased clarity of procedure, are expected for the EIS process as a result of this rule.
The Regulatory Flexibility Act (5 U.S.C. 601–612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule whenever an agency is required by the Administrative Procedure Act (5 U.S.C. 553) or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. FSA has determined that this rule would not have a significant impact on a substantial number of small entities for the reasons explained below. Consequently, FSA has not prepared a regulatory flexibility analysis.
This rule would generally reduce the level of NEPA analysis required for most Farm Loan Programs and some Farm Programs actions. It should have a minor positive effect on small entities, including small government entities, by reducing the uncertainty and delay associated with NEPA compliance.
The Council on Environmental Quality regulations do not direct agencies to prepare a NEPA analysis or document before establishing Agency procedures (such as this regulation) that supplement the CEQ regulations for implementing NEPA. Agencies are required to adopt NEPA procedures that establish specific criteria for, and identification of, three classes of actions: Those that normally require preparation of an environmental impact statement; those that normally require preparation of an environmental assessment; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). Categorical exclusions are one part of those agency procedures, and therefore establishing categorical exclusions does not require preparation of a NEPA analysis or document. Agency NEPA procedures are procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The determination that establishing categorical exclusions does not require NEPA analysis and documentation has been upheld in
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. This rule does not provide grants, cooperative agreements, or any other benefits. Therefore, FSA has concluded that this rule does not require consultation with State and local officials as when USDA provides Federal financial assistance or direct Federal development (see 7 CFR 3015.307). Therefore, this rule is not subject to Executive Order 12372.
This rule has been reviewed in accordance with Executive Order 12988, “Civil Justice Reform.” This rule preempts State and local laws, regulations, or policies that are in conflict with the provisions of this rule. The rule will not have retroactive effect. Any action under this rule may be appealed, consistent with the Administrative Procedure Act (Pub. L. 79–404). Before any judicial action may be brought regarding the provisions of this rule, all administrative remedies in accordance with 7 CFR parts 11 and 780 must be exhausted.
This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government. Nor does this proposed rule impose substantial direct compliance costs on State and local governments. The provisions in this proposed rule may impose compliance costs on State and local governments, but these are not new costs, as the provisions in this rule have already been implemented as required by per various Executive Orders, laws, and CEQ guidance. Therefore, consultation with the States is not required.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation
FSA has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, FSA will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications are identified for this rule, which are not expressly mandated by any law or regulation.
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA, Pub. L. 104–4) requires Federal agencies to assess the effects of their regulatory actions on State, local, or Tribal governments, or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule does not contain Federal mandates for State, local, or tribal governments or for the private sector that would result in the addition analysis as required by Title II of UMRA. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
This rule applies to all Farm Service Agency Federal assistance programs found in the Catalog of Federal Domestic Assistance.
Currently, as specified in 7 CFR 1940.350, the OMB control number approving the NEPA information collection, for FSA and the Rural Development agencies is 0575–0094. The proposed changes to the regulation eliminate FSA's use of the form, RD 1940–22, Request for Environmental Information, previously used by FSA and included in that approval. In the past, financial institutions completed the form RD 1940–22 and submitted the form to FSA; that process has been revised and that form is no longer used.
The proposed FSA NEPA regulation does not have any information collection activities related to the NEPA process. An FSA county office employee gathers information from soil maps, wetland maps, etc. then visits the site. The FSA county office employee uses the ESW form, which is an internal form within FSA only. The ESW is completed by the FSA county office staff, with relevant information from one or more of the following as appropriate: completed application, from the visiting farmers, and like all other FSA programs an AD–1026, which is approved for FSA use under OMB control number 0560–0185 is required to be on file to comply with swampbuster and sodbuster. There is no information collection burden for this proposed rule because it is associated with application for or participation in one or more FSA programs and that information collection burden is approved for each respective FSA program, as needed. As noted in § 799.42(c), FSA may request a program participant to provide information for use in an EA. That supplemental information will be case specific; the primary information comes from the information the applicant gave to the program itself (already covered by PRA) and site visits. Any additional information will be specific to the action in question. Therefore, it does not require additional approval under the Paperwork Reduction Act.
FSA is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. The proposed rule and substantiating documents, and the final rule when approved, will be available on the FSA Web site at
Accounting, Loan programs-agriculture, Rural areas.
Agriculture, Banks, Banking, Credit, Loan programs-agriculture, Reporting and recordkeeping requirements.
Agriculture, Banks, Banking, Credit, Loan programs-agriculture.
Agriculture, Disaster assistance, Loan programs-agriculture.
Agriculture, Agricultural commodities, Credit, Livestock, Loan programs—agriculture.
Agriculture, Agricultural commodities, Credit, Livestock, Loan programs—agriculture.
Agriculture, Credit, Government property, Government property management, Indians—loans, Loan programs—agriculture.
Credit, Indians, Loan programs-agriculture, Reporting and recordkeeping requirements.
Agriculture, Credit, Loan programs-agriculture, Rural areas.
Apples, Loan programs-agriculture.
Loan programs-agriculture, Seeds.
Environmental impact statements.
Administrative practice and procedure, Loan programs-agriculture, Penalties, Price support programs, Reporting and recordkeeping requirements.
Agriculture, Environmental protection, Flood plains, Grant programs-agriculture, Grant programs-housing and community development, Loan programs-agriculture, Loan programs-housing and community development, Low and moderate income housing, Reporting and recordkeeping requirements, Rural areas, Truth in lending.
For the reasons discussed in the preamble, FSA proposes to amend 7 CFR chapters VII, XIV, and XVIII as follows:
5 U.S.C. 301 and 7 U.S.C. 1989.
5 U.S.C. 301 and 7 U.S.C. 1989.
5 U.S.C. 501 and 7 U.S.C. 1989.
5 U.S.C. 301 and 7 U.S.C. 1989.
5 U.S.C. 301 and 7 U.S.C. 1989.
5 U.S.C. 301, 7 U.S.C. 1989, and 1981d(c).
5 U.S.C. 301 and 7 U.S.C. 1989.
5 U.S.C. 301 and 25 U.S.C. 488.
5 U.S.C. 301, 7 U.S.C. 1989, 25 U.S.C. 490.
Pub. L. 106–224.
Pub. L. 106–224
42 U.S.C. 4321–4370.
(a) This part:
(1) Explains major U.S. Department of Agriculture Farm Service Agency (FSA) environmental policies.
(2) Establishes FSA procedures to implement the:
(i) National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321–4370);
(ii) Council on Environmental Quality (CEQ) regulations (40 CFR parts 1500 through1518); and
(iii) United States Department of Agriculture (USDA) NEPA regulations (§§ 1b.1 through 1b.4 of this title).
(3) Establishes procedures to ensure that FSA complies with other applicable laws, regulations, and Executive Orders, including but not limited to the following:
(i) American Indian Religious Freedom Act (42 U.S.C. 1996);
(ii) Archaeological and Historic Preservation Act (16 U.S.C. 469–469c);
(iii) Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa–470mm);
(iv) Clean Air Act (42 U.S.C. 7401–7671q);
(v) Clean Water Act (33 U.S.C. 1251–1387);
(vi) Coastal Barrier Resources Act (16 U.S.C. 3501–3510);
(vii) Coastal Zone Management Act of 1972 (CZMA) (16 U.S.C. 1451–1466);
(viii) Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601–9675);
(ix) Endangered Species Act (16 U.S.C. 1531–1544);
(x) Farmland Protection Policy Act (7 U.S.C. 4201–4209);
(xi) Migratory Bird Treaty Act (16 U.S.C. 703–712);
(xii) National Historic Preservation Act (NHPA) of 1966, as amended (16 U.S.C. 470–470x–6),
(xiii) Native American Graves Protection and Repatriation Act (25 U.S.C. 3001–3013);
(xiv) Resource Conservation and Recovery Act (42 U.S.C. 6901–6992k);
(xv) Safe Drinking Water Act (42 U.S.C. 300h–300h.8);
(xvi) Wild and Scenic Rivers Act (16 U.S.C. 1271–1287);
(xvii) Wilderness Act (16 U.S.C. 1131–1136);
(xviii) Advisory Council on Historic Preservation regulations in 36 CFR part 800 “Protection of Historic Properties;”
(xix) USDA, Office of Environmental Quality regulations in part 3100 of this title, “Cultural and Environmental Quality” (see part 190, subpart F, of this title, “Procedures for the Protection of Historic and Archaeological Properties,” for more specific implementation procedures);
(xx) USDA, Natural Resources Conservation Service regulations in part 658 of this title, “Farmland Protection Policy Act;”
(xxi) USDA regulations in part 12 of this title, “Highly Erodible Land and Wetland Conservation;”
(xxii) U.S. Department of the Interior, National Park Service regulations in 36 CFR part 60, “National Register of Historic Places;”
(xxiii) U.S. Department of the Interior, National Park Service regulations in 36 CFR part 63, “Determinations of Eligibility for Inclusion in the National Register of Historic Places;”
(xxiv) USDA, Departmental Regulation 9500–3, “Land Use Policy;”
(xxv) USDA, Departmental Regulation 9500–4, “Fish and Wildlife Policy;”
(xxvi) Executive Order 11514, “Protection and Enhancement of Environmental Quality;”
(xxvii) Executive Order 11593, “Protection and Enhancement of the Cultural Environment;”
(xxviii) Executive Order 11988, “Floodplain Management;”
(xxix) Executive Order 11990, “Protection of Wetlands;”
(xxx) Executive Order 11991, “Relating to Protection and Enhancement of Environmental Quality;”
(xxxi) Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations;”
(xxxii) Executive Order 13007, “Indian Sacred Sites;”
(xxxiii) Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments;”
(xxxiv) Executive Order 13186, “Responsibilities of Federal Agencies to Protect Migratory Birds;” and
(xxxv) Executive Order 13287, “Preserve America;”
(b) The procedures and requirements in this part supplement CEQ and USDA regulations; they do not replace or supersede them.
(a) FSA will:
(1) Use all practical means to protect and, where possible, improve the quality of the human environment and avoid or minimize any adverse environmental effects of FSA actions;
(2) Ensure the requirements of NEPA and other State and national environmental policies designed to protect and manage impacts on the human environment are addressed:
(i) As required by 40 CFR 1501.2, at the earliest feasible stage in the planning of any FSA action,
(ii) Concurrently and in a coordinated manner,
(iii) During all stages of the decision making process,
(iv) Using professional and scientific integrity in their discussions and analyses, identify applicable methodologies, and explain the use of the best available information, and
(v) In consultation with all interested parties, including Federal, State, and Tribal governments;
(3) Make environmental analysis available to the public before decisions are finalized though various means including posting the analyses on the FSA Web site; and
(4) Ensure that, if an FSA action represents one of several phases of a larger proposal, the entire proposal is the subject of an environmental review independent of the phases of funding. If the FSA action is one segment of a
(b) A proposal that consists of more than one categorically excluded action may be categorically excluded only if all components of the action are eligible for a single categorical exclusion.
(a) Except as provided for in paragraph (b) of this section, this part applies to:
(1) The development or revision of FSA rules, regulations, plans, policies, or procedures;
(2) New or continuing FSA actions and programs, including Commodity Credit Corporation (CCC) programs, Farm Loan Programs, and Farm Programs; and
(3) FSA legislative proposals, not including appropriations requests, developed by FSA or with significant FSA cooperation and support.
(b) This part does not apply to FSA programs specifically exempted from environmental review by the authorizing legislation for those programs.
(a) The following abbreviations apply to this part:
(b) The definitions in 40 CFR part 1508 apply and are supplemented by parts 718 and 1400 of this title, and in the event of a conflict with the definitions in this section will be controlling. In addition, the following definitions apply to this part:
(a) The FSA Administrator or designee:
(1) Is the Responsible Federal Officer (RFO) for FSA compliance with applicable environmental laws, regulations, and Executive Orders, including NEPA;
(2) Will ensure responsibilities for complying with NEPA are adequately delegated to FSA personnel within their areas of responsibility at the Federal, State, and county levels;
(3) Will appoint a National Environmental Compliance Manager (NECM), as required by 40 CFR 1507.2(a), who reports directly to the FSA Administrator; and
(4) Will appoint a qualified Federal Preservation Officer (FPO), as required by Executive Order 13287 “Preserve America” section 3(e) and by section 110 of NHPA (16 U.S.C. 470h–2(a)). This individual must meet the National
(b) The NECM or designee coordinates FSA environmental policies and reviews under this part on a national basis and is responsible for:
(1) Ensuring FSA legislative proposals and multistate and national programs are in compliance with NEPA and other applicable environmental and cultural resource laws, regulations, and Executive Orders;
(2) Providing education and training on implementing NEPA and other environmental requirements to appropriate FSA personnel;
(3) Serving as the principal FSA advisor to the FSA Administrator on NEPA requirements;
(4) Representing FSA, and serving as an intra- and inter- agency liaison, on NEPA-related matters on a national basis;
(5) Maintaining a record of FSA environmental actions; and
(6) Ensuring State and county office compliance with NEPA and other applicable environmental laws, regulations, and Executive Orders.
(c) The FPO or designee coordinates NHPA compliance under this part and is responsible for:
(1) Serving as the principal FSA advisor to the NECM on NHPA requirements;
(2) Representing FSA, and serving as FSA intra- and inter- agency liaison, on all NHPA-related matters on a national basis;
(3) Maintaining current FSA program guidance on NHPA requirements;
(4) Maintaining a record of FSA environmental actions related to the NHPA; and
(5) Ensuring State and county office compliance with the NHPA.
(a) FSA State Executive Directors (SEDs) or designees are the responsible approving officials (RAOs) in their respective States and are responsible for:
(1) Ensuring FSA actions within their State comply with applicable environmental laws, regulations, and Executive Orders, including NEPA; and
(2) Appointing one or more State Environmental Coordinators (SECs).
(b) An SED will not appoint more than one SEC for Farm Programs and one SEC for Farm Loan Programs in a State unless approved in writing by the NECM.
(c) SECs or designees are responsible for:
(1) Serving as the environmental compliance coordinators on all environmental-related matters within their respective State;
(2) Advising SEDs on environmental issues;
(3) Providing training, in coordination with the NECM, on NEPA and other environmental compliance requirements to appropriate FSA State and county office personnel;
(4) Providing technical assistance on environmental-related matters on an action-by-action basis to State and county office personnel, as needed;
(5) Developing controls for avoiding or mitigating adverse environmental impacts and monitoring the implementation of those controls;
(6) Reviewing FSA actions that are not categorically excluded from NEPA and that require State office approval or clearance, and making appropriate recommendations to the approving official;
(7) Providing assistance to resolve post approval environmental issues at the State office level;
(8) Maintaining decision records for State office environmental compliance matters;
(9) Monitoring their respective State's compliance with environmental laws, regulations, and Executive Orders;
(10) Acting as a liaison on FSA State office environmental compliance matters with the public and other Federal, State, and Tribal governments;
(11) Representing the SED on environmental issues as requested;
(12) Delegating duties under this section with the approval of both the SED and NECM; and
(13) Other NEPA related duties as assigned.
(d) County Executive Directors, District Directors, and Farm Loan Programs loan approval officers or designees are responsible for compliance with this part within their geographical areas.
(a) Potential FSA program participants seeking FSA assistance must do all of the following, unless the action is categorically excluded as specified in §§ 799.31 or 799.32:
(1) Consult with FSA early in the application process about potential environmental concerns associated with program participation.
(2) Submit applications for all Federal, regional, State, and local approvals and permits early in the planning process.
(3) Coordinate the submission of applications to FSA and other agencies (for example, if a conservation plan is required the application is also submitted to USDA's Natural Resources Conservation Service).
(4) Work with other appropriate Federal, State, and Tribal governments to ensure all environmental factors are identified and impacts addressed and, to the extent possible, mitigated consistent with how mitigation is defined in 40 CFR 1508.20.
(5) Inform FSA of other Federal, State, and Tribal government environmental reviews that have previously been completed or required of the program participant.
(6) Provide FSA with a list of all parties affected by or interested in the proposed action.
(b) When FSA receives an application for assistance or notification that an application will be filed, FSA will contact the potential program participant about the environmental information the program participant must provide as part of the application process. This required information may include:
(1) Design specifications;
(2) Topographical, aerial, and location maps;
(3) Surveys and assessments necessary for determining the impact on environmentally sensitive resources listed in § 799.33(c);
(4) Nutrient management plans; and
(5) Applications and permits for all Federal, regional, State and local approvals including construction permits, storm water run-off and operational permits, and engineering plans.
(c) FSA will prepare and make available general guidelines for program participants that describe the scope and level of environmental information required for evaluating proposed actions and make those available on the FSA Web site at
In determining whether a proposed action will have a significant effect on the quality of the human environment, FSA will consider the action's potential effects in the context of society as a whole, the affected region and interests, and the locality, and the intensity of the potential impact as specified in 40 CFR 1508.27.
(a) FSA may prepare the following documents during the environmental review process:
(1) Environmental screening worksheet;
(2) Programmatic Environmental Assessment (PEA);
(3) Environmental Assessment (EA);
(4) Supplemental Environmental Assessment;
(4) Programmatic Environmental Impact Statement (PEIS);
(5) Environmental Impact Statement (EIS);
(6) Supplemental Environmental Impact Statement (SEIS);
(7) Finding of No Significant Impact (FONSI);
(8) Record of Decision (ROD);
(9) Notice of Intent (NOI) to prepare any type of EA or EIS;
(10) Notice of Availability (NOA) of environmental documents for public review or comment;
(11) Notice of public scoping meetings;
(12) Other notices, including those required under Executive Order 11988, “Floodplain Management,” and Executive Order 11990, “Protection of Wetlands;”
(13) Memorandums of Agreement or Understanding (MOA or MOU), such as those for mitigation of adverse effects on historic properties as specified in 36 CFR part 800, “Protection of Historic Properties;” and
(14) Environmental studies, as indicated and appropriate.
(b) [Reserved]
(a) FSA will maintain an administrative record of documents and materials FSA created or considered during its NEPA decision making process for a proposed action and referenced as such in the NEPA documentation, which can include any or all the following:
(1) All NEPA environmental review documents listed in § 799.9, as applicable;
(2) Technical information, sampling results, survey information, engineering reports, and studies, including environmental impact studies and assessments;
(3) Policies, guidelines, directives, and manuals;
(4) Internal memorandums or informational papers;
(5) Contracts or agreements;
(6) Notes of telephone conversations and meetings, unless they are personal notes;
(7) Meeting minutes;
(8) Correspondence with agencies and stakeholders;
(9) Communications to and from the public;
(10) Documents and materials that contain any information that supports or conflicts with the FSA decision;
(11) Maps, drawings, charts, and displays; and
(12) All public comments received during the NEPA comment periods.
(b) The administrative record may be used, among other purposes, to facilitate better decision making.
(a) Except as specified in paragraphs (b) and (c) of this section, FSA or a program participant must not take any action, implement any component of an action, or make any final decision during FSA's NEPA review process that could have an adverse environmental impact or limit the range of alternatives until FSA:
(1) Determines that the proposed action is categorically excluded under NEPA under subpart D of this part; or
(2) Issues a FONSI or ROD under subpart E or F of this part.
(b) FSA may approve interim actions related to proposed actions provided the:
(1) Interim actions will not have an adverse environmental impact;
(2) Expenditure is necessary to maintain a schedule for the proposed action;
(3) Interim actions and expenditures will not compromise FSA's review and decision making process; and
(4) NEPA review has been completed for the interim action or expenditure; or
(c) FSA and program participants may develop preliminary plans or designs, or perform work necessary to support an application for Federal, State, or local permits or assistance, during the NEPA review process.
(a) If emergency circumstances exist that make it necessary to take action to mitigate harm to life, property, or important natural, cultural, or historic resources, FSA may take an action with significant environmental impact without complying with the requirements of this part.
(b) If emergency circumstances exist, the NECM will consult with CEQ as soon as feasible about alternative NEPA arrangements for controlling the immediate impact of the emergency, as specified in 40 CFR 1506.11.
(c) If emergency circumstances exist, the FPO will follow the emergency procedures specified in 36 CFR 800.12 regarding preservation of historic properties, if applicable.
(d) FSA assistance provided in response to a Presidentially-declared disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as subsequently amended, is exempt from NEPA requirements, as specified in 42 U.S.C. 5159. Under a Presidentially-declared disaster, the following actions are exempt from NEPA and NHPA:
(1) Clearing roads and constructing temporary bridges necessary for performing emergency tasks and essential community services;
(2) Debris removal;
(3) Demolishing unsafe structures that endanger the public or could create a public health hazard if not demolished;
(4) Disseminating public information and assistance for health and safety measures;
(5) Providing technical assistance to State, regional, local, or Tribal governments on disaster management control;
(6) Reducing immediate threats to life, property, and public health and safety; and
(7) Warning of further risks and hazards.
(a) When FSA acts as the lead agency in a NEPA review as specified in 40 CFR 1501.5, FSA will:
(1) Coordinate its review with other appropriate Federal, State, and Tribal governments; and
(2) Request other agencies to act as cooperating agencies as specified in 40 CFR 1501.6 and defined at 40 CFR 1508.5 as early in the review process as possible.
(b) If FSA acts as a lead agency for a proposed action that affects more than one State, the NECM will designate one SEC to act as RAO.
(c) If the role of lead agency is disputed, the RAO will refer the matter to the FSA Administrator, who will attempt to resolve the matter with the other agency. If the Federal agencies cannot agree which will serve as the lead agency, the FSA Administrator will follow the procedures specified in 40 CFR 1501.5(e) to request that CEQ determine the lead agency.
(a) FSA will act as a cooperating agency if requested by another agency, as specified in 40 CFR 1501.6 and defined at 40 CFR 1508.5. However, FSA may decline another agency's request if FSA determines the proposed action does not fall within FSA's area of expertise or FSA does not have jurisdiction by law. If FSA declines such a request to cooperate, that will be documented in writing to the requesting agency and a copy will be provided to CEQ.
(b) FSA may request to be designated as a cooperating agency if another agency's proposed action falls within FSA's area of expertise.
(a) FSA will involve the public in the environmental review process as early as possible and in a manner consistent with 40 CFR 1506.6. To determine the appropriate level of public participation, FSA will consider:
(1) The scale of the proposed action and its probable effects;
(2) The likely level of public interest and controversy; and
(3) Advice received from knowledgeable parties and experts.
(b) Depending upon the scale of the proposed action, FSA will:
(1) Coordinate public notices and consultation with the U.S. Fish and Wildlife Service, USDA's Natural Resources Conservation Service, Federal Emergency Management Agency, the National Marine Fisheries Service, the U.S. Army Corp of Engineers, and other agencies, as appropriate, if wetlands, floodplains, or endangered species have the potential to be impacted;
(2) Make appropriate environmental documents available to interested parties on request;
(3) Publish a Notice of Intent (NOI) to prepare an EA or EIS as specified in subparts E and F; and
(4) Publish a Notice of Availability (NOA) of draft and final EAs, FONSIs, EISs, and RODs as specified in subparts E and F.
(c) If the effects of a proposed action are local in nature and the scale of the proposed action is likely to generate interest and controversy at the local level, in addition to the actions specified in paragraphs (a) and (b) of this section, FSA will:
(1) Notify appropriate State, local, regional, and Tribal governments and clearinghouses, and parties and organizations, including the State Historic Preservation Officer (SHPO) and Tribal Historic Preservation Officer (THPO), known to have environmental, cultural, and economic interests in the locality affected by the proposed action; and
(2) Publish notice of the proposed action in the local media.
(d) If the effects of a proposed action will set a precedent for future actions with potentially widespread effects, or the proposed action is highly controversial in nature, FSA will publish notice of the proposed action in the regional or national media, and in the
(a) FSA will determine the appropriate scoping process for the NEPA analysis of a proposed action based upon the nature, complexity, and level of controversy of the proposed action.
(b) As part of its scoping process, FSA will:
(1) Invite appropriate Federal, State, and Tribal governments, and other interested parties to participate in the process, if determined necessary by FSA;
(2) Identify the significant issues to be analyzed;
(3) Identify and eliminate from further analysis issues that were determined not significant or have been adequately addressed in prior environmental reviews;
(4) Determine the roles of lead and cooperating agencies, if appropriate;
(5) Identify any related EAs or EISs;
(6) Identify other environmental reviews and consultation requirements, including NHPA requirements and State, local, regional, and Tribal requirements, so they are integrated into the NEPA process;
(7) Identify the relationship between the timing of the environmental review process and FSA's decision making process;
(8) Determine points of contact within FSA; and
(9) Establish time limits for the environmental review process.
(c) FSA may hold public meetings as part of the scoping process, if appropriate and as time permits. The process that FSA will use to determine if a public scoping meeting is needed, and how such meetings will be announced, is specified in § 799.17.
(a) The NECM will determine if public meetings will be held on a proposed action to:
(1) Inform the public about the details of a proposed action and its possible environmental effects;
(2) Gather information about the public concerns; and
(3) Resolve, address, or respond to issues raised by the public.
(b) In determining whether to hold a public meeting, FSA will consider whether:
(1) There is substantial controversy concerning the environmental impact of the proposed action;
(2) There is substantial interest in holding a public meeting; and
(3) Another Federal agency or Tribal government has requested a public scoping meeting and their request is warranted.
(c) FSA will publish notice of a public meeting, including the time, date and location of the meeting, in the local media or
(d) If a NEPA document is to be considered at a public meeting, FSA will make the appropriate documentation available to the public at least 15 days before the meeting.
(a) FSA uses the environmental screening worksheet as an initial screening tool to evaluate and document any likely environmental impacts of a proposed action and to determine the appropriate type of analysis required.
(b) The environmental screening worksheet is not required for actions that are categorically excluded as specified in § 799.31(b) or § 1b.3 of this title, or for actions where FSA determines at an early stage that there is clearly the potential for environmental impact and therefore an EA or EIS is required.
(a) FSA has determined that the categories of actions listed in §§ 799.31 and 799.32 do not normally individually or cumulatively have a significant effect on the human environment and do not threaten a violation of applicable statutory, regulatory, or permit requirements for environment, safety, and health, including requirements of Executive Orders and other USDA regulations in this chapter.
(b) If a proposed action falls within one of the categories of actions listed in §§ 1b.3 of this title, 799.31, or 799.32, and there are no extraordinary circumstances present as specified in § 799.33, then the action is categorically excluded from the requirements to prepare an EA or an EIS.
(a) Actions that fit within a category of action listed in paragraph (b) of this section may be categorically excluded if there are no extraordinary circumstances as specified in § 799.33. Unless otherwise noted in paragraph (b) of this section, the proposed actions listed in paragraph (b) of this section also do not have the potential to cause effects to historic properties, and will therefore not be reviewed for compliance with section 106 of NHPA (16 U.S.C. 470f) or its implementing regulations, 36 CFR part 800.
(b) The following actions are categorically excluded without the need to complete an environmental screening worksheet. However, some actions may require other Federal consultation as indicated. These actions are grouped into broader categories of similar types of actions. Based on FSA's previous experience implementing these actions and similar actions through the completion of EAs, these actions are categorically excluded. Those actions that are similar in nature and intent to those listed below and not listed in §§ 799.32 or 799.33, will be considered a categorical exclusion in this category:
(1)
(i) Closing cost payments;
(ii) Commodity loans;
(iii) Debt set asides;
(iv) Deferral of loan payments;
(v) Income producing projects associated with youth loans;
(vi) Loan consolidation;
(vii) Loans for annual operating expenses, except livestock;
(viii) Loans for equipment;
(ix) Loans for family living expenses;
(x) Loan subordination, with no or minimal construction or change in operations (may require NHPA consultation under section 106 of NHPA (16 U.S.C. 470f));
(xi) Loans to pay for labor costs;
(xii) Loan (debt) transfers and assumptions with no new ground disturbance;
(xiii) Partial or complete release of loan collateral;
(xiv) Re-amortization of loans;
(xv) Refinancing of debt;
(xvi) Rescheduling loans;
(xvii) Restructuring of loans; and
(xviii) Writing down of debt;
(2)
(i) Fence repair; and
(ii) Improvement or repair of farm-related structures under 50 years of age (if property is older than 50 years NHPA consultation will be required under section 106 of NHPA (16 U.S.C. 470f);
(3)
(i) Issuing technical corrections to regulations, handbooks, and internal guidance, as well as amendments to them;
(ii) Minor amendments or revisions to previously approved projects provided such actions do not alter the purpose, operation, location, or design of the project as originally approved;
(iii) Personnel actions, reduction-in-force, or employee transfers; and
(iv) Procurement actions for goods and services conducted in accordance with Executive Orders;
(4)
(i) Bareland planting or planting without site preparation;
(ii) Bedding site establishment for wildlife;
(iii) Chiseling and subsoiling;
(iv) Clean tilling firebreaks;
(v) Conservation crop rotation;
(vi) Contour farming;
(vii) Contour grass strip establishment;
(viii) Cover crop and green manure crop planting;
(ix) Critical area planting;
(x) Firebreak installation;
(xi) Grass, forbs, or legume planting;
(xii) Heavy use area protection;
(xiii) Installation and maintenance of field borders or field strips;
(xiv) Pasture, range, and hayland planting;
(xv) Seeding of shrubs;
(xvi) Seedling shrub planting;
(xvii) Site preparation;
(xviii) Strip cropping;
(xix) Wildlife food plot planting; and
(xx) Windbreak and shelterbelt establishment;
(5)
(i) Forage harvest management;
(ii) Integrated crop management;
(iii) Mulching, including plastic mulch;
(iv) Netting for hard woods;
(v) Nutrient management;
(vi) Obstruction removal;
(vii) Pest management;
(viii) Plant grafting;
(ix) Plugging artesian wells;
(x) Residue management including seasonal management;
(xi) Roof runoff management (if property is older than 50 years NHPA consultation will be required under section 106 of NHPA (16 U.S.C. 470f);
(xii) Thinning and pruning of plants;
(xiii) Toxic salt reduction; and
(xiv) Water spreading;
(6)
(i) Conservation easement purchases with no construction planned;
(ii) Emergency program actions (including Emergency Conservation Program and Emergency Forest Restoration Program) that have a cost share of less than $5,000;
(iii) Financial assistance to supplement income, manage the supply of agricultural commodities, influence the cost and supply of such commodities or programs of a similar nature or intent;
(iv) Individual farm participation in FSA programs where no ground disturbance or change in land use occurs as a result of the action or participation;
(v) Inventory property disposal or lease with protective easements or covenants;
(vi) Issuance of grants under the Voluntary Public Access and Habitat Incentive Program;
(vii) Safety net programs administered by FSA;
(viii) Site characterization, environmental testing, and monitoring where no significant alteration of existing ambient conditions would occur, including air, surface water, groundwater, wind, soil, or rock core sampling; installation of monitoring wells; installation of small scale air, water, or weather monitoring equipment;
(ix) Stand analysis for forest management planning; and
(x) Tree protection including plastic tubes.
(a) The actions listed in paragraph (b) of this section are eligible for categorical exclusion after completion of an environmental screening worksheet to document that an action does not involve any of the extraordinary circumstances specified in § 799.33. Unless otherwise noted in paragraph (b) of this section, the actions listed in paragraph (b) also do not have the potential to cause effects to historic properties and will therefore not be reviewed for compliance with section 106 of NHPA or its implementing regulations, 36 CFR part 800.
(b) The following actions are eligible for categorical exclusion with completion of an environmental screening worksheet. These actions are grouped into broader categories of similar types of actions:
(1)
(i) Farm storage and drying facility loans for added capacity;
(ii) Loans for livestock purchases;
(iii) Release of loan for forestry improvements;
(iv) Reorganizing farm operations (if new construction is planned or buildings over 50 years will be impacted, NHPA consultation will be required under section 106 of NHPA (16 U.S.C. 470f)); and
(v) Replacement building loans (if property is older than 50 years NHPA consultation will be required under section 106 of NHPA (16 U.S.C. 470f));
(2)
(i) Construction in previously disturbed areas;
(ii) Construction involving an addition (if property is older than 50 years NHPA consultation will be required under section 106 of NHPA (16 U.S.C. 470f));
(iii) Drain tile replacement;
(iv) Erosion control measures;
(v) Grading, leveling, shaping, and filling;
(vi) Grassed waterway establishment;
(vii) Hillside ditches; (may require NHPA consultation under section 106 of NHPA (16 U.S.C. 470f));
(viii) Land-clearing operations of no more than 15 acres, provided any amount of land involved in tree harvesting is to be conducted on a sustainable basis and according to a Federal, State, Tribal, or other governmental unit approved forestry management plan (may require NHPA consultation under section 106 of NHPA (16 U.S.C. 470f));
(ix) Permanent establishment of a water source for wildlife;
(x) Restoring and replacing property (if property is older than 50 years NHPA consultation will be required under section 106 of NHPA (16 U.S.C. 470f));
(xi) Soil and water development;
(xii) Spring development;
(xiii) Trough or tank installation; and
(iiv) Water harvesting catchment; and
(3)
(i) Fence installation and replacement;
(ii) Fish stream improvement;
(iii) Grazing land mechanical treatment; (if disturbance will be below plow zone NHPA consultation will be required under section 106 of NHPA (16 U.S.C. 470f)); and
(iv) Herbicide, insecticide, fungicide, or mineral application;
(v) Inventory property disposal or lease without protective easements or covenants (this action has the potential to cause effects to historic properties and therefore requires analysis under section 106 of NHPA (16 U.S.C. 470f)).
(a) Extraordinary circumstances are unique situations presented by specific proposals. Extraordinary circumstances include, but are not limited to:
(1) Scientific controversy about environmental effects of the proposal; and
(2) Uncertain effects or effects involving unique or unknown risks.
(b) A categorical exclusion is possible in situations specified in paragraph (a) of this section only if the proposal:
(1) Is also not “connected” (as specified in 40 CFR 1508.25(a)(1)) to other actions with potentially significant impacts,
(2) Is not related to other proposed actions with cumulatively significant impacts (40 CFR 1508.25(a)(2)), and
(3) Complies with 40 CFR 1506.1, “Limitations on actions during NEPA process.”
(c) FSA will use an environmental screening worksheet (ESW) to review proposed actions that are eligible for categorical exclusion to determine if extraordinary circumstances exist that could impact environmentally sensitive resources. If extraordinary circumstances exist, then an EA or EIS will be prepared as specified in this part.
(d) Environmentally sensitive resources include, but are not limited to:
(1) Property (for example, sites, buildings, structures, and objects) of historic, archeological, or architectural significance designated by Federal, Tribal, State, or local governments or property eligible for listing on the National Register of Historic Places;
(2) Federally-listed threatened or endangered species or their habitat (including critical habitat), Federally-proposed or candidate species or their habitat, or State-listed endangered or threatened species or their habitat;
(3) Important and prime agricultural, forest, and range lands, as specified in part 657 of this chapter and in USDA Departmental Regulation 9500–3;
(4) Wetlands regulated under the Clean Water Act (33 U.S.C. 1344), highly erodible land, and floodplains;
(5) Areas having a special designation, such as Federally- and State-designated
(6) Special sources of water such as sole-source aquifers, wellhead protection areas, and other water sources that are vital in a region.
(a) FSA will complete an environmental screening worksheet for proposed actions that fall within the list of categorical exclusions specified in § 799.32 to determine whether extraordinary circumstances under § 799.33 are present.
(b) FSA or an authorized technical representative will also complete an ESW to determine whether to prepare an EA or EIS for the following actions, unless technical assistance is provided by another Federal agency that uses its own environmental screening documentation and provide the information called for in an ESW. These actions have the potential to cause effects to historic properties, and therefore analysis is required for compliance under section 106 of the NHPA (16 U.S.C. 470f). FSA will comply with 36 CFR part 800, “Protection of Historic Properties,” when reviewing the environmental impact of these actions. If an authorized technical representative from another Federal agency assists with compliance with 36 CFR part 800, FSA will remain responsible for any consultation with SHPO, THPO, or Tribal governments. These actions are grouped into broader categories of similar types of actions. All of the categories include, but are not limited to, the specific actions listed in this section; other actions that are similar in nature will also require review for extraordinary circumstances that would require either an EA or EIS:
(1)
(i) Loans and loan subordination with construction, demolition, or ground disturbance planned;
(ii) Real estate purchase loans with new ground disturbance planned; and
(iii) Term operating loans with construction or demolition planned;
(2)
(i) Animal trails and walkways;
(ii) Bridges;
(iii) Chiseling and subsoiling in areas not previously tilled;
(iv) Construction of a new farm storage facility;
(v) Dams;
(vi) Dikes and levees;
(vii) Diversions;
(viii) Drop spillways;
(ix) Dugouts;
(x) Excavation;
(xi) Grade stabilization structures;
(xii) Grading, leveling, shaping and filling in areas not previously disturbed;
(xiii) Installation of structures designed to regulate water flow such as pipes, flashboard risers, gates, chutes, and outlets;
(xiv) Irrigation systems;
(xv) Land smoothing;
(xvi) Line waterways or outlets;
(xvii) Lining;
(xviii) Livestock crossing facilities;
(xix) Pesticide containment facility;
(xx) Pipe drop;
(xxi) Pipeline for watering facility;
(xxii) Ponds, including sealing and lining;
(xxiii) Precision land farming with ground disturbance;
(xxiv) Riparian buffer establishment;
(xxv) Roads, including access roads;
(xxvi) Rock barriers;
(xxvii) Rock filled infiltration trenches;
(xxvii) Sediment basin;
(xxix) Sediment structures;
(xxx) Site preparation for planting or seeding in areas not previously tilled;
(xxxi) Soil and water conservation structures;
(xxxii) Stream bank and shoreline protection;
(xxxiii) Structures for water control;
(xxxiv) Subsurface drains;
(xxxv) Surface roughening;
(xxxvi) Terracing;
(xxxvii) Underground outlets;
(xxxviii) Watering tank or trough installation, if in areas not previously disturbed;
(xxxix) Wells; and
(xl) Wetland restoration; and
(3)
(i) Establishing or maintaining wildlife plots in areas not previously tilled or disturbed;
(ii) Prescribed burning;
(iii) Tree planting when trees have root balls of one gallon container size or larger; and
(iv) Wildlife upland habitat management.
(c) If technical assistance is provided by another Federal agency, FSA will ensure that the environmental documentation provided is commensurate to or exceeds the requirements of the FSA environmental screening worksheet.
(a) As part of the process to establish a new categorical exclusion, FSA will consider all relevant information, including the following:
(1) Completed FSA NEPA documents;
(2) Other Federal agency NEPA documents on actions that could be considered similar to the categorical exclusion being considered;
(3) Results of impact demonstration or pilot projects;
(4) Information from professional staff, expert opinion, and scientific analyses; and
(5) The experiences of FSA, private, and public parties that have taken similar actions.
(b) FSA will consult with CEQ and appropriate Federal agencies while developing or modifying a categorical exclusion.
(c) Before establishing a new final categorical exclusion, FSA will:
(1) Publish a notice of the proposed categorical exclusion in the
(2) Consider the public comments in developing the final categorical exclusion;
(3) Consult with CEQ on the final categorical exclusion and obtain a written statement from CEQ that the final categorical exclusion was developed in conformity with NEPA requirements and CEQ regulations;
(4) Publish the final categorical exclusion in the
(5) Post the final categorical exclusion on the FSA Web site.
(d) FSA will maintain an administrative record that includes the supporting information and findings used in establishing a categorical exclusion.
(e) FSA will periodically review its categorical exclusions at least once
(f) FSA will use the same process specified in this section and the results of its periodic reviews to revise a categorical exclusion or remove a categorical exclusion.
(a) FSA prepares an EA to determine whether a proposed action would significantly affect the environment and to consider the potential impact of reasonable alternatives and the potential mitigation measures to the alternatives and proposed action.
(b) FSA may determine that a proposed action will significantly affect the environment or is environmentally controversial without first preparing an EA. In that case, FSA will prepare an EIS as specified in subpart F of this part.
(c) FSA will prepare a programmatic EA to determine if proposed actions that are broad in scope or similar in nature have cumulative significant environmental impacts, although the impacts of the actions may be individually insignificant.
(d) The result of the EA process will be either a FONSI or a determination that an EIS is required.
(a) Actions that require the preparation of an EA include the following:
(1) Conservation Reserve Enhancement Program (CREP) agreements;
(2) Development of farm ponds or lakes greater than or equal to 20 acres;
(3) Restoration of wetlands greater than or equal to 100 acres aggregate;
(4) Installation or enlargement of irrigation facilities, including storage reservoirs, diversions, dams, wells, pumping plants, canals, pipelines, and sprinklers designed to irrigate greater than 320 acres aggregate;
(5) Land clearing operations involving greater than or equal to 40 acres aggregate;
(6) Clear cutting operations for timber involving greater than or equal to 100 acres aggregate;
(7) Construction or enlargement of aquaculture facilities when the capacity is either 20,000 pounds for cold water flow through systems or 100,000 pounds for warm water confined systems;
(8) Construction of commercial facilities or structures;
(9) Construction or expansion of a CAFO, regardless of the type of manure handling system or water system;
(10) Refinancing of a newly constructed CAFO, including medium CAFOs, as defined in 40 CFR 122.23, or aquaculture facilities that have been in operation for 12 months or less;
(11) Issuance of FSA regulations,
(12) Newly authorized programs that involve actions specified in § 799.34;
(13) Any FSA action that after completion of the environmental screening worksheet for extraordinary circumstances specified in § 799.33(b) has been determined to have a potentially significant impact on the quality of the human environment; and
(14) Any action that will involve the planting of a potential invasive species, unless exempted by Federal law.
(b) [Reserved]
(a) The EA must include at least the following:
(1) FSA cover sheet;
(2) Executive summary;
(3) Table of contents;
(4) List of acronyms;
(5) A discussion of the purpose of and need for the proposed action;
(6) A discussion of alternatives, if the proposal involves unresolved conflicts concerning the uses of available resources;
(7) A discussion of environmental impacts of the proposed action, with reference to the significance of the impact as specified in § 799.8 and 40 CFR 1508.27;
(8) Likelihood of any significant impact and potential mitigation measures to include those FSA will undertake to support a FONSI;
(9) A list of preparers and contributors;
(10) A list of agencies and persons consulted;
(11) References; and
(12) Appendixes, if appropriate.
(b) FSA will prepare a Supplemental EA, and place the supplements in the administrative record of the original EA, if:
(1) Substantial changes occur in the proposed action that are relevant to environmental concerns previously presented, or
(2) Significant new circumstances or information arise that are relevant to environmental concerns and to the proposed action or its impacts.
(c) FSA may request that a program participant prepare or provide information for FSA to use in the EA and may use the program participant's information in the EA or Supplemental EA provided that FSA also:
(1) Independently evaluates the environmental issues; and
(2) Takes responsibility for the scope and content of the EA.
(a) FSA may adopt an EA prepared by another Federal agency, State, or Tribal government if the EA meets the requirements of this subpart.
(b) If FSA adopts another agency's EA and issues a FONSI, FSA will follow the procedures specified in § 799.44.
(a) If after completing the EA, FSA determines that the proposed action will not have a significant effect on the quality of the human environment, FSA will issue a FONSI.
(b) The FONSI will include the reasons FSA determined that the proposed action will have no significant environmental impacts.
(c) If the decision to issue the FONSI is conditioned upon the implementation of measures (mitigation actions) to ensure that impacts will be held to a nonsignificant level, the FONSI must include an enforceable commitment to implement such measures on the part of FSA, and any applicant or other party responsible for implementing the measures will be responsible for the commitments outlined in the FONSI.
(d) FSA will make the FONSI available to the public prior to making a decision as specified in 40 CFR 1506.6, including publishing a notice of availability of the final EA and FONSI in the local media or
(e) FSA will make the final EA and FONSI available for public review for at least 15 days before taking any final agency action. FSA will determine whether an EIS is required based in part on the comments received during such review.
(a) FSA will prepare an EIS for proposed actions that are expected to have a significant effect on the human environment. The purpose of the EIS is to ensure that all significant environmental impacts and reasonable alternatives are fully considered in connection with the proposed action.
(b) FSA will prepare a PEIS for proposed actions that are broad in scope or similar in nature and may cumulatively have significant environmental impacts, although the impact of the individual actions may be insignificant.
(a) The following FSA actions normally require preparation of an EIS:
(1) Legislative proposals, not including appropriations requests, with the potential for significant environmental impact that are drafted and submitted to Congress by FSA;
(2) Broad Federal assistance programs administered by FSA involving significant financial assistance or payments to program participants that may have significant cumulative impacts on the human environment or national economy; and
(3) Ongoing programs that have been found through previous environmental analyses to have major environmental concerns.
(b) [Reserved]
(a) FSA will publish a Notice of Intent to prepare an EIS in the
(b) The notice will include the following:
(1) A description of the proposed action and possible alternatives;
(2) A description of FSA's proposed scoping process, including information about any public meetings; and
(3) The name of an FSA point of contact who can receive input and answer questions about the proposed action and the preparation of the EIS.
(a) FSA will prepare the EIS as specified in 40 CFR part 1502.
(b) The EIS must include at least the following:
(1) An FSA cover sheet;
(2) An executive summary explaining the major conclusions, areas of controversy, and the issues to be resolved;
(3) A table of contents;
(4) List of acronyms and abbreviations;
(5) A brief statement explaining the purpose and need of the proposed action;
(6) A detailed discussion of the environmental impacts of the proposed action and reasonable alternatives to the proposed action, a description and brief analysis of the alternatives considered but eliminated from further consideration, the no-action alternative, FSA's preferred alternative(s), and discussion of appropriate mitigation measures;
(7) A discussion of the affected environment;
(8) A detailed discussion of:
(i) The direct and indirect environmental consequences, including any cumulative impacts, of the proposed action and of the alternatives;
(ii) Any unavoidable adverse environmental effects;
(iii) The relationship between local short-term uses of the environment and long-term ecosystem productivity;
(iv) Any irreversible and irretrievable commitments of resources;
(vi) Possible conflicts with the objectives of Federal, regional, State, local, regional, and Tribal land use plans, policies, and controls for the area concerned;
(vii) Energy and natural depletable resource requirements, and conservation potential of the alternatives and mitigation measures; and
(viii) Urban quality, historic, and cultural resources and the design of the built environment, including the reuse and conservation potential of the alternatives and mitigation measures;
(9) In the draft EIS, a list of all Federal permits, licenses, and other entitlements that must be obtained for implementation of the proposal;
(10) A list of preparers;
(11) Persons and agencies contacted;
(12) References, if appropriate;
(13) Glossary, if appropriate;
(14) Index;
(15) Appendixes, if appropriate;
(16) A list of agencies, organizations, and persons to whom copies of the EIS are sent; and
(17) In the final EIS, a response to substantive comments on environmental issues.
(c) FSA may have a contractor prepare an EIS as specified in 40 CFR 1506.5(b). If FSA has a contractor prepare an EIS, FSA will:
(1) Require the contractor to sign a disclosure statement specifying it has no financial or other interest in the outcome of the action, which will be included in the Administrative Record; and
(2) Furnish guidance and participate in the preparation of the EIS, and independently evaluate the EIS before its approval.
(a) FSA will prepare the draft EIS addressing the information specified in § 799.53.
(b) FSA will circulate the draft EIS as specified in 40 CFR 1502.19.
(c) FSA will request comments on the draft EIS from:
(1) Any Federal agency that has jurisdiction by law or has special expertise with respect to the environmental impact involved or is authorized to develop and enforce environmental standards;
(2) Appropriate State and local agencies authorized to develop and enforce environmental standards relevant to the scope of the EIS;
(3) Tribal governments that have interests that could be impacted;
(4) Any agency that requested to receive statements on the type of action proposed;
(5) The public, particularly persons or organizations who may be interested or affected;
(6) If the action affects historic properties, the appropriate SHPO, THPO, and the Advisory Council on Historic Preservation; and
(7) An applicant or program participant, if applicable.
(d) FSA will file the draft EIS with the Environmental Protection Agency as specified in 40 CFR 1506.9 and in accordance with the EPA filing requirements (available at
(e) The draft EIS will include a cover sheet with the information specified in 40 CFR 1502.11.
(f) FSA will provide for a minimum 45-day comment period calculated from the date the Environmental Protection Agency publishes the NOA of the draft EIS.
(a) FSA will prepare the final EIS addressing the information specified in § 799.53.
(b) FSA will evaluate the comments received on the draft EIS and respond in the final EIS as specified in 40 CFR 1503.4. FSA will discuss in the final EIS any issues raised by commenters that were not discussed in the draft EIS and provide a response to those comments.
(c) FSA will attach substantive comments, or summaries of lengthy comments, to the final EIS and will include all comments in the administrative record.
(d) FSA will circulate the final EIS as specified in 40 CFR 1502.19.
(e) FSA will file the final EIS with the Environmental Protection Agency as specified in 40 CFR 1506.9.
(f) The final EIS will include a cover sheet with the information specified in 40 CFR 1502.11.
(a) FSA will prepare supplements to a draft or final EIS if:
(1) Substantial changes occur in the proposed action that are relevant to environmental concerns previously presented; or
(2) Significant new circumstances or information arise that are relevant to environmental concerns and to the proposed action or its impacts.
(b) The requirements of this subpart for completing the original EIS apply to the supplemental EIS, with the exception of the scoping process, which is optional.
(a) As specified in 40 CFR 1508.28, tiering is a process of covering general environmental review in a broad programmatic EIS, followed by subsequent narrower scope analysis to address specific actions, action stages, or sites. FSA will use tiering when FSA prepares a broad programmatic EIS and subsequently prepares a site-specific EA or PEA for a proposed action included within the program addressed in the original, broad programmatic EIS.
(b) When FSA uses tiering, the subsequent EA or PEA will:
(1) Summarize the issues discussed in the broader statement;
(2) Incorporate by reference the discussions from the broader statement and the conclusions carried forward into the subsequent tiered analysis and documentation; and
(3) State where the programmatic EIS document is available.
(a) FSA may elect to adopt an EIS prepared by another Federal agency, State, or Tribal government if:
(1) The NECM determines that the EIS and the analyses and procedures by which they were developed meet the requirements of this part; and
(2) The agency responsible for preparing the EIS concurs.
(b) If FSA participated in the NEPA process as a cooperating agency, FSA may adopt the lead agency's final EIS and reference it in the FSA ROD. However, the NECM must independently review the EIS and determine that FSA requirements in this part have been satisfied.
(c) If FSA was not a cooperating agency but the FSA action is substantially the same as the subject of another agency's EIS, the NECM may adopt the EIS and recirculate it as a final EIS. However, the NECM must independently review the EIS and determine that FSA requirements in this part have been satisfied. The final EIS must identify the other Federal action involved.
(d) If the FSA action is not substantially the same as the subject of another agency's EIS, FSA may incorporate by reference the relevant portions of the EIS into the FSA draft EIS. The draft EIS must include the content specified in § 799.53. The NECM must inform the agency that prepared the original EIS of FSA's intent and the proposed FSA action for which the EIS will be used.
(e) If an adopted EIS is not final, or it is subject to a referral to CEQ as specified in 40 CFR part 1504, or the EIS's adequacy is the subject of a judicial action that is not final, the NECM must include an explanation in the FSA EIS why adoption of the EIS was appropriate.
(a) FSA will issue an ROD within the time periods specified in 40 CFR 1506.10(b) but no sooner than 30 days after the Environmental Protection Agency's publication of the NOA of the final EIS. The ROD will:
(1) State the decision reached;
(2) Identify all alternatives considered by FSA in reaching its decision, specifying the alternative or alternatives considered to be environmentally preferable;
(3) Identify and discuss all factors, including any essential considerations of national policy, which were balanced by FSA in making its decision, and state how those considerations entered into its decision; and
(4) State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted and, if not, explain why these mitigation measures were not adopted.
(b) FSA will distribute the ROD to all parties who request it.
(c) FSA will publish the ROD or a notice of availability of the ROD in the
7 U.S.C. 7971 and 8789; and 15 U.S.C. 714–714p.
5 U.S.C. 301; 7 U.S.C. 1989; and 42 U.S.C. 1480.
(i) This subpart does not apply to the Farm Service Agency Farm Loan Programs. (See part 799 of this title for the Farm Service Agency NEPA implementing regulations.)
The Farm Service Agency consolidated the Farm Loan Programs NEPA implementing regulations into part 799 of this title. (The swampbuster and sodbuster provisions previously contained in Exhibit M do not apply to the Rural Housing Service, Rural Business-Cooperative Service, and Rural Utilities Service.) Therefore, see part 799 of this title for information related to the Farm Service Agency's NEPA implementing regulations; see part 12 of this title for information related to highly erodible land and wetland conservation; and see parts 761 through 774 of this title for information related to Farm Loan Programs.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all BAE Systems (Operations) Limited Model BAe 146 series airplanes, and Model Avro 146–RJ series airplanes. This proposed AD was prompted by a report of a pressurization problem on an airplane during climb-out; a subsequent investigation showed a crack in the fuselage skin. This proposed AD would require repetitive external eddy current inspections on the aft skin lap joints of the rear fuselage for cracking, corrosion, and other defects, and repair if necessary. We are proposing this AD to detect and correct cracking, corrosion, and other defects, which could affect the structural integrity of the airplane.
We must receive comments on this proposed AD by October 20, 2014.
You may send comments by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: (202) 493–2251.
• Mail: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Delivery: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this proposed AD, contact BAE Systems (Operations) Limited, Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; telephone +44 1292 675207; fax +44 1292 675704; email
You may examine the AD docket on the Internet at
Todd Thompson, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1175; fax 425 227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2013–0207, dated September 9, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all BAE Systems (Operations) Limited Model BAe 146 series airplanes, and Model Avro 146–RJ series airplanes. The MCAI states:
This condition, if not detected and corrected, could lead to degradation of the structural integrity of the aeroplane.
Prompted by this finding, BAE Systems (Operations) Ltd issued Inspection Service Bulletin (ISB) 53–239, providing instructions to inspect the internal area of the rear fuselage drum for cracks, corrosion and any other defects and EASA issued AD 2012–0178 [
After analysing the responses to EASA AD 2012–0184, which covered the initial inspection of stringer 30, left hand (LH) and right hand (RH), BAE Systems (Operations) Ltd also assessed the similar design features at other skin lands in the rear fuselage drum, namely at stringer 2 right and stringers 11 and 18, LH and RH. As a result, they determined that inspections at the other stringers would be required and also that repeat inspections of all these stringers would be necessary. Consequently, BAE Systems (Operations) Ltd ISB.53–239 Revision 1 and 2 were issued to include these new inspections.
For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2012–0184, which is superseded, and requires accomplishment of additional inspections of the affected fuselage area, including repetitive inspections, and depending on findings, repair of cracked structural items.
BAE Systems (Operations) Limited has issued Inspection Service Bulletin
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
EASA AD 2013–0207, dated September 9, 2013, specifies that, if any cracking, corrosion, or any other irregularity is detected during any inspection required by paragraph (1) of the EASA AD, owners/operators must contact BAE Systems (Operations) Limited before further flight for approved repair instructions, and within the compliance time specified in those instructions, must accomplish the repair accordingly. This AD requires that if any cracking, corrosion, or any other irregularity is found during any inspection, owners/operators must repair before further flight using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or EASA; or BAE Systems (Operations) Limited's EASA Design Organization Approval (DOA). This difference has been coordinated with EASA.
Since late 2006, we have included a standard paragraph titled “Airworthy Product” in all MCAI ADs in which the FAA develops an AD based on a foreign authority's AD.
The MCAI or referenced service information in an FAA AD often directs the owner/operator to contact the manufacturer for corrective actions, such as a repair. Briefly, the Airworthy Product paragraph allowed owners/operators to use corrective actions provided by the manufacturer if those actions were FAA-approved. In addition, the paragraph stated that any actions approved by the State of Design Authority (or its delegated agent) are considered to be FAA-approved.
In an NPRM having Directorate Identifier 2012–NM–101–AD (78 FR 78285, December 26, 2013), we proposed to prevent the use of repairs that were not specifically developed to correct the unsafe condition, by requiring that the repair approval provided by the State of Design Authority or its delegated agent specifically refer to the FAA AD. This change was intended to clarify the method of compliance and to provide operators with better visibility of repairs that are specifically developed and approved to correct the unsafe condition. In addition, we proposed to change the phrase “its delegated agent” to include a design approval holder (DAH) with State of Design Authority design organization approval (DOA), as applicable, to refer to a DAH authorized to approve required repairs for the proposed AD.
One commenter to the NPRM having Directorate Identifier 2012–NM–101–AD (78 FR 78285, December 26, 2013) stated the following: “The proposed wording, being specific to repairs, eliminates the interpretation that Airbus messages are acceptable for approving minor deviations (corrective actions) needed during accomplishment of an AD mandated Airbus service bulletin.”
This comment has made the FAA aware that some operators have misunderstood or misinterpreted the Airworthy Product paragraph to allow the owner/operator to use messages provided by the manufacturer as approval of deviations during the accomplishment of an AD-mandated action. The Airworthy Product paragraph does not approve messages or other information provided by the manufacturer for deviations to the requirements of the AD-mandated actions. The Airworthy Product paragraph only addresses the requirement to contact the manufacturer for corrective actions for the identified unsafe condition and does not cover deviations from other AD requirements. However, deviations to AD-required actions are addressed in 14 CFR 39.17, and anyone may request the approval for an alternative method of compliance to the AD-required actions using the procedures found in 14 CFR 39.19.
To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed the paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this proposed AD to obtain corrective actions from a manufacturer, the actions must be accomplished using a method approved by the FAA, the European Aviation Safety Agency (EASA), or BAE Systems (Operations) Limited's EASA DOA.
The Contacting the Manufacturer paragraph also clarifies that, if approved by the DOA, the approval must include the DOA-authorized signature. The DOA signature indicates that the data and information contained in the document are EASA-approved, which is also FAA-approved. Messages and other information provided by the manufacturer that do not contain the DOA-authorized signature approval are not EASA-approved unless EASA directly approves the manufacturer's message or other information.
This clarification does not remove flexibility previously afforded by the Airworthy Product paragraph. Consistent with long-standing FAA policy, such flexibility was never intended for required actions. This is also consistent with the recommendation of the Airworthiness Directive Implementation Aviation Rulemaking Committee to increase flexibility in complying with ADs by identifying those actions in manufacturers' service instructions that are “Required for Compliance” with ADs. We continue to work with manufacturers to implement this recommendation. But once we determine that an action is required, any deviation from the requirement must be approved as an alternative method of compliance.
We also have decided not to include a generic reference to either the “delegated agent” or “design approval holder (DAH) with State of Design Authority design organization approval,” but instead we have provided the specific delegation approval granted by the State of Design Authority for the DAH throughout this proposed AD.
We estimate that this proposed AD affects 1 airplane of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This proposed regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
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.
We must receive comments by October 20, 2014.
None.
This AD applies to all BAE Systems (Operations) Limited Model BAe 146–100A, –200A, and –300A airplanes; and Model Avro 146–RJ70A, 146–RJ85A, and 146–RJ100A airplanes; certificated in any category.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a report of a pressurization problem on an airplane during climb-out; a subsequent investigation showed a crack in the fuselage skin. We are issuing this AD to detect and correct cracking, corrosion, and other defects, which could affect the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within the compliance times specified in paragraphs (g)(1)(i) and (g)(1)(ii) of this AD, as applicable: Do an external eddy current inspection on the aft skin lap joints of the rear fuselage for cracking, corrosion, and other defects (i.e. surface damage and spot displacement), in accordance with paragraph 2.C. of the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin 53–239, Revision 2, dated July 15, 2013.
(i) For any airplane which has accumulated 9,000 flight cycles or more since the airplane's first flight as of the effective date of this AD: Do the inspection within 1,000 flight cycles or 6 months after of the effective date of this AD, whichever occurs first.
(ii) For any airplane which has accumulated less than 9,000 flight cycles since the airplane's first flight as the effective date of this AD: Do the inspection before accumulating 10,000 flight cycles since the airplane's first flight.
(2) Repeat the inspection required by paragraph (g)(1) of this AD thereafter at intervals not to exceed the times specified in paragraphs (g)(2)(i) and (g)(2)(ii) of this AD, as applicable to the airplane's modification status.
(i) For Model BAe 146 series airplanes and Model Avro 146–RJ series airplanes post modification HCM50070E, or post modification HCM50070F, or post modification HCM50259A, repeat the inspection at intervals not to exceed 4,000 flight cycles.
(ii) For Model BAe 146 series airplanes and Model Avro 146–RJ series airplanes pre-modification HCM50070E, and pre-modification HCM50070F, and pre-modification HCM50259A, repeat the inspection at intervals not to exceed 7,500 flight cycles.
If any cracking, corrosion, or other defect is found during any inspection required by this AD: Before further flight, repair using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or BAE Systems (Operations) Limited's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature. Accomplishment of the repair does not constitute a terminating action for the inspections required by paragraph (g) of this AD.
(1) This paragraph provides credit for the initial inspection and corrective action on stringer 30, left hand (LH) and right hand (RH), as required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using BAE Systems (Operations) Limited Inspection Service Bulletin 53–239, dated June 13, 2012, which is not incorporated by reference in this AD.
(2) This paragraph provides credit for the initial inspection and corrective action, as required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using BAE Systems (Operations) Limited Inspection Service Bulletin 53–239, Revision 1, dated June 18, 2013, which is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2013–0207, dated September 9, 2013, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact BAE Systems (Operations) Limited, Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; telephone +44 1292 675207; fax +44 1292 675704; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2008–06–18, for all Airbus Model A300 B4–600, B4–600R, and F4–600R series airplanes, and Model A300 C4–605R Variant F airplanes (collectively called Model A300–600 series airplanes) and Model A300 series airplanes. AD 2008–06–18 currently requires repetitive inspections for any cracking of the wing lower skin panel and associated internal support structure, and if necessary, corrective actions such as modifying the lower panel inboard of rib 9 aft of the rear spar and repairing cracks. Since we issued AD 2008–06–18, we have received a report that information from an analysis and fleet survey show a need for reduced compliance times and intervals. This proposed AD would continue to require the existing requirements, and would reduce some compliance times. We are proposing this AD to detect and correct cracking, which could lead to reduced structural integrity of the airplane.
We must receive comments on this proposed AD by October 20, 2014.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus SAS Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–2125; fax 425–227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On March 7, 2008, we issued AD 2008–06–18, Amendment 39–15430 (73 FR 14670, March 19, 2008). AD 2008–06–18 requires actions intended to address an unsafe condition on all Airbus Model A300 B4–600, B4–600R, and F4–600R series airplanes, and Model A300 C4–605R Variant F airplanes (collectively called Model A300–600 series airplanes) and Model A300 series airplanes.
Since we issued AD 2008–06–18, Amendment 39–15430 (73 FR 14670, March 19, 2008), we have received a report that information from an analysis and fleet survey show a need for reduced compliance times and intervals.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012–0203, dated October 1, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A300 B4–600, B4–600R, and F4–600R series airplanes, and Model A300 C4–605R Variant F airplanes (collectively called Model A300–600 series airplanes) and Model A300 series airplanes. The MCAI states:
During routine maintenance, cracks were found in the wing bottom skin and in the associated internal support structure on an A300 aeroplane aft of the rear spar and inboard of rib 9. Initially, cracks were found in the skin only, starting from a fastener close to the forward outboard corner of access panel 575FB/675FB. Subsequently, cases were reported of cracks being found in the skin support strap and the stiffener.
This condition, if not detected and corrected, could affect the structural integrity of the aeroplane.
To address this unsafe condition, EASA issued AD 2006–0282 [
Since that [EASA] AD was issued, the results of a fleet survey and updated Fatigue and Damage Tolerance analysis, which were performed in order to substantiate the second A300 and A300–600 Extended Service Goal (ESG2) exercise, revealed that the inspection threshold and interval had to be reduced to allow timely detection of cracks and the accomplishment of an applicable corrective action.
Prompted by these findings, Airbus issued Revision 05 of Airbus Service Bulletin (SB) A300–57–0177 and Revision 07 of Airbus SB A300–57–6029.
For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2006–0282, which is superseded, but requires the accomplishment of those actions within reduced thresholds and intervals.
Airbus has issued Service Bulletin A300–57–6029, Revision 08, dated April 25, 2013. The compliance times for the initial inspections range approximately from 160 flight cycles or 270 flight hours, whichever occurs first, to 49,300 flight cycles or 98,700 flight hours, whichever occurs first, depending on the model and configuration. The repetitive intervals range from 30 flight cycles or 40 flight hours, whichever occurs first, to 3,800 flight cycles or 7,700 flight hours, whichever occurs first, depending on the model and configuration. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This proposed AD would retain all requirements of AD 2008–06–18, Amendment 39–15430 (73 FR 14670, March 19, 2008). Since AD 2008–06–18 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
Paragraph (f)(3) of AD 2008–06–18, Amendment 39–15430 (73 FR 14670, March 19, 2008), contains a typographical error. That error resulted in a reference to paragraph “(e)(f)(ii)” of AD 2008–06–18. The correct reference is to paragraph (f)(3)(ii) of AD 2008–06–18. Since the AD format has been revised and certain paragraphs have been rearranged, the reference is now to paragraph (g)(3)(ii) of the proposed AD.
Since late 2006, we have included a standard paragraph titled “Airworthy Product” in all MCAI ADs in which the FAA develops an AD based on a foreign authority's AD.
The MCAI or referenced service information in an FAA AD often directs the owner/operator to contact the manufacturer for corrective actions, such as a repair. Briefly, the Airworthy Product paragraph allowed owners/operators to use corrective actions provided by the manufacturer if those actions were FAA-approved. In addition, the paragraph stated that any actions approved by the State of Design Authority (or its delegated agent) are considered to be FAA-approved.
In an NPRM having Directorate Identifier 2012–NM–101–AD (78 FR 78285, December 26, 2013), we proposed to prevent the use of repairs that were not specifically developed to correct the unsafe condition, by requiring that the repair approval provided by the State of Design Authority or its delegated agent specifically refer to the FAA AD. This change was intended to clarify the method of compliance and to provide operators with better visibility of repairs that are specifically developed and approved to correct the unsafe condition. In addition, we proposed to change the phrase “its delegated agent” to include a design approval holder (DAH) with State of Design Authority design organization approval (DOA), as applicable, to refer to a DAH authorized to approve required repairs for the proposed AD.
One commenter to the NPRM having Directorate Identifier 2012–NM–101–AD (78 FR 78285, December 26, 2013) stated the following: “The proposed wording, being specific to repairs, eliminates the interpretation that Airbus messages are acceptable for approving minor deviations (corrective actions) needed during accomplishment of an AD mandated Airbus service bulletin.”
This comment has made the FAA aware that some operators have misunderstood or misinterpreted the Airworthy Product paragraph to allow the owner/operator to use messages provided by the manufacturer as approval of deviations during the accomplishment of an AD-mandated action. The Airworthy Product paragraph does not approve messages or other information provided by the manufacturer for deviations to the requirements of the AD-mandated actions. The Airworthy Product paragraph only addresses the
To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed the paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this proposed AD to obtain corrective actions from a manufacturer, the actions must be accomplished using a method approved by the FAA, the European Aviation Safety Agency (EASA), or Airbus's EASA DOA.
The Contacting the Manufacturer paragraph also clarifies that, if approved by the DOA, the approval must include the DOA-authorized signature. The DOA signature indicates that the data and information contained in the document are EASA-approved, which is also FAA-approved. Messages and other information provided by the manufacturer that do not contain the DOA-authorized signature approval are not EASA-approved, unless EASA directly approves the manufacturer's message or other information.
This clarification does not remove flexibility previously afforded by the Airworthy Product paragraph. Consistent with long-standing FAA policy, such flexibility was never intended for required actions. This is also consistent with the recommendation of the Airworthiness Directive Implementation Aviation Rulemaking Committee to increase flexibility in complying with ADs by identifying those actions in manufacturers' service instructions that are “Required for Compliance” with ADs. We continue to work with manufacturers to implement this recommendation. But once we determine that an action is required, any deviation from the requirement must be approved as an alternative method of compliance.
We also have decided not to include a generic reference to either the “delegated agent” or “design approval holder (DAH) with State of Design Authority design organization approval,” but instead we have provided the specific delegation approval granted by the State of Design Authority for the DAH throughout this proposed AD.
We estimate that this proposed AD affects 162 airplanes of U.S. registry.
The actions that are required by AD 2008–06–18, Amendment 39–15430 (73 FR 14670, March 19, 2008), and retained in this proposed AD take about 2 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2008–06–18 is $170 per product.
We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $27,540, or $170 per product.
In addition, we estimate that any necessary follow-on actions would take about 12 work-hours and require parts costing $10,000, for a cost of $11,020 per product. We have no way of determining the number of aircraft that might need these actions.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120–0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591. ATTN: Information Collection Clearance Officer, AES–200.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
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.
We must receive comments by October 20, 2014.
This AD replaces AD 2008–06–18, Amendment 39–15430 (73 FR 14670, March 19, 2008).
This AD applies to the airplanes identified in paragraphs (c)(1) through (c)(5) of this AD, certificated in any category, all certified models, all serial numbers.
(1) Airbus Model A300 B2–1A, B2–1C, B2K–3C, B2–203, B4–2C, B4–103, and B4–203 airplanes.
(2) Airbus Model A300 B4–601, B4–603, B4–620, and B4–622 airplanes.
(3) Airbus Model A300 B4–605R and B4–622R airplanes.
(4) Airbus Model A300 F4–605R and F4–622R airplanes.
(5) Airbus Model A300 C4–605R Variant F airplanes.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by a report that information from an analysis and fleet survey show a need for reduced compliance times and intervals. We are issuing this AD to detect and correct cracking, which could lead to reduced structural integrity of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
This paragraph restates the requirements of paragraph (f) of AD 2008–06–18, Amendment 39–15430 (73 FR 14670, March 19, 2008), with revised service information. Unless already done, do the following actions.
(1) Except as provided by paragraphs (g)(1)(i), (g)(1)(ii), (g)(1)(iii), (g)(1)(iv), and (h) of this AD: At the threshold specified in paragraph 1.E.(2) of Airbus Service Bulletin A300–57–0177, Revision 05, dated March 23, 2007 (for Model A300 series airplanes); Airbus Service Bulletin A300–57–6029, Revision 06, dated March 23, 2007 (for Model A300–600 series airplanes); or Airbus Service Bulletin A300–57–6029, Revision 08, dated April 25, 2013 (for Model A300–600 series airplanes); as applicable; perform the inspection of the wing lower skin panel and associated internal support structure aft of the rear spar and inboard of rib 9 and apply applicable corrective measures in accordance with Airbus Service Bulletin A300–57–0177, Revision 05, dated March 23, 2007 (for Model A300 series airplanes); or Airbus Service Bulletin A300–57–6029, Revision 06, dated March 23, 2007 (for Model A300–600 series airplanes); or Airbus Service Bulletin A300–57–6029, Revision 08, dated April 25, 2013 (for Model A300–600 series airplanes); as applicable. All applicable corrective measures must be done at the applicable times specified in paragraph 1.E.(2) and the Accomplishment Instructions of Airbus Service Bulletin A300–57–0177, Revision 05, dated March 23, 2007 (for Model A300 series airplanes); Airbus Service Bulletin A300–57–6029, Revision 06, dated March 23, 2007 (for Model A300–600 series airplanes); or Airbus Service Bulletin A300–57–6029, Revision 08, dated April 25, 2013 (for Model A300–600 series airplanes); as applicable. Accomplishing the requirements of paragraph (h) of this AD terminates the requirements of this paragraph for Model A300–600 airplanes.
(i) Where the tables in paragraph 1.E.(2), “Accomplishment Timescale,” of Airbus Service Bulletin A300–57–0177, Revision 05, dated March 23, 2007; A300–57–6029, Revision 06, dated March 23, 2007; specify a grace period for doing the actions, this AD requires that the actions be done within the specified grace period relative to April 23, 2008 (the effective date of AD 2008–06–18, Amendment 39–15430 (73 FR 14670, March 19, 2008)).
(ii) Where the tables in paragraph 1.E.(2)(e), “Config 04,” of Airbus Service Bulletin A300–57–0177, Revision 05, dated March 23, 2007, specify an inspection interval but not an initial threshold, this AD requires that the actions be done within the specified interval after inspecting in accordance with Table 1A or 1B, as applicable, for Configuration 01 airplanes described in the service bulletin and thereafter at the inspection interval specified in the tables in paragraph 1.E.(2)(e), “Config 04,” of Airbus Service Bulletin A300–57–0177, Revision 05, dated March 23, 2007.
(iii) Where the tables in paragraph 1.E.(2)(f), “Config 05,” of Airbus Service Bulletin A300–57–6029, Revision 06, dated March 23, 2007, specify an inspection interval but not an initial threshold, this AD requires that the actions be done within the specified interval after inspecting in accordance with Table 1A, or 1B, as applicable, for configuration 01 of Airbus Service Bulletin A300–57–6029, Revision 06, dated March 23, 2007, and thereafter at the inspection interval specified in the tables in paragraph 1.E.(2)(f), “Config 05,” of Airbus Service Bulletin A300–57–6029, Revision 06, dated March 23, 2007.
(iv) All crack lengths specified in Airbus Service Bulletin A300–57–0177, Revision 05, dated March 23, 2007; and A300–57–6029, Revision 06, dated March 23, 2007, are considered “not to exceed” lengths.
(2) Repeat the inspection at the intervals in, and according to the instructions defined in, Airbus Service Bulletin A300–57–0177, Revision 05, dated March 23, 2007 (for Model A300 series airplanes); Airbus Service Bulletin A300–57–6029, Revision 06, dated March 23, 2007 (for Model A300–600 series airplanes); or Airbus Service Bulletin A300–57–6029, Revision 08, dated April 25, 2013 (for Model A300–600 series airplanes); as applicable; except where Airbus Service Bulletin A300–57–0177, Revision 05, dated March 23, 2007, specifies repetitive inspections for cracking if Airbus Service Bulletin A300–57–022 has not been embodied, this AD requires doing repetitive inspections for cracking if Airbus Service Bulletin A300–57–0222 (modification 11178H5410) has not been embodied.
(3) Report to Airbus the first inspection results, whatever they may be, at the applicable time specified in paragraph (g)(3)(i) or (g)(3)(ii) of this AD.
(i) If the inspection was done after April 23, 2008 (the effective date of AD 2008–06–18, Amendment 39–15430 (73 FR 14670, March 19, 2008)), submit the report within 30 days after the inspection.
(ii) If the inspection was accomplished prior to April 23, 2008 (the effective date of AD 2008–06–18, Amendment 39–15430 (73 FR 14670, March 19, 2008)), submit the report within 30 days after April 23, 2008.
For Model A300–600 airplanes, do the actions specified in paragraphs (h)(1) through (h)(3) of this AD at the applicable times specified in those paragraphs.
(1) Except as provided by paragraphs (h)(1)(i) and (h)(1)(ii) of this AD: Within the compliance times specified in Airbus Service Bulletin A300–57–6029, Revision 08, dated April 25, 2013, perform the inspection of the wing lower skin panels and associated internal support structures aft of the rear spar and inboard of rib 9, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300–57–6029, Revision 08, dated April 25, 2013. Thereafter, repeat these inspections at intervals specified in Airbus Service Bulletin A300–57–6029, Revision 08, dated April 25, 2013. Accomplishment of the actions required by this paragraph terminates the requirements of paragraph (g) of this AD for Model A300–600 airplanes.
(i) Where the tables in paragraph 1.E.(2), “Accomplishment Timescale,” of Airbus Service Bulletin A300–57–6029, Revision 08, dated April 25, 2013, specify a grace period for doing the actions for airplanes that have exceeded the thresholds, this AD requires, for all airplanes, that the actions be done within the specified grace period after the effective date of this AD or before the specified thresholds, whichever occurs later.
(ii) Where Airbus Service Bulletin A300–57–6029, Revision 08, dated April 25, 2013, specifies to “contact Airbus” before further flight, this AD requires repairing using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA); and accomplishing those actions before further flight. If approved by the DOA, the approval must include the DOA-authorized signature.
(2) If, during any inspection as required by paragraph (h)(1) of this AD, discrepancies are detected, before next flight, accomplish the applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300–57–6029, Revision 08, dated April 25, 2013.
(3) Corrective actions, as required by paragraph (h)(2) of this AD, do not constitute terminating action for the repetitive inspection requirements of paragraph (h)(1) of this AD.
(1) This paragraph provides credit for actions required by paragraph (g) of this AD,
(i) Airbus Service Bulletin A300–57–0177, Revision 03, dated May 29, 2006.
(ii) Airbus Service Bulletin A300–57–0177, Revision 04, dated January 5, 2007.
(iii) Airbus Service Bulletin A300–57–6029, Revision 04, dated May 29, 2006.
(iv) Airbus Service Bulletin A300–57–6029, Revision 05, dated October 23, 2006.
(2) This paragraph provides credit for actions required by paragraph (g) or (h) of this AD, if those actions were performed before the effective date of this AD, using Airbus Service Bulletin A300–57–6029, Revision 07, dated June 6, 2011, which is not incorporated by reference by this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) European Aviation Safety Agency Airworthiness Directive 2012–0203, dated October 1, 2012, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Airbus SAS Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A318–111 and –112 airplanes, Model A319, A320, and A321 series airplanes. This proposed AD was prompted by reports of cracks on the forward corner fittings of engine pylon aft secondary structures. This proposed AD would require repetitive inspections of certain forward corner fittings of the pylon aft secondary structures, and corrective actions if necessary. This proposed AD also provides optional terminating action for the repetitive inspections. We are proposing this AD to detect and correct detachment of the lower fairing attachment and/or loss of the aft fixed fairing with the movable fairing from the airplane in flight, which could result in damage to the airplane.
We must receive comments on this proposed AD by October 20, 2014.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: 202–493–2251.
• Mail: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Delivery: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this proposed AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1405; fax 425–227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2014–0064, dated March 14, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Model A318–111 and –112 airplanes, Model A319 series airplanes, Model A320 series airplanes, and Model A321 series airplanes. The MCAI states:
Several operators of A320 family aeroplanes have reported finding cracks on the forward corner fittings of engine pylon aft secondary structures, on the lateral face (lateral panel side). In some cases, these cracks had propagated onto the forward face (Rib 11 side). Investigation results have highlighted that these cracks are initiated by stress corrosion.
This condition, if not detected and corrected, could lead to loss (i.e. detachment from the aeroplane) of the lower fairing attachment at Rib 10, and/or loss of the aft fixed fairing with the movable fairing, possibly resulting in * * * [damage to the airplane].
For the reasons described above, this [EASA] AD requires repetitive detailed inspections (DI) of the right hand (RH) Part Number (P/N) D54530014201 and left hand (LH) P/N D54530014200 corner fittings of engine pylon aft secondary structures (pre-mod 38067 or pre-Airbus Service Bulletin (SB) A320–54–1019) to detect cracks or deformation in the splicing area with corner fitting between Ribs 11–12 and, depending on findings, replacement of the corner fittings.
This [EASA] AD also recognizes that replacement of the corner fittings with improved parts (as per Airbus SB A320–54–1019) constitutes a terminating action for the repetitive DI required by this [EASA] AD.
You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Service Bulletin A320–54–1019, Revision 01, dated April 10, 2008; and Service Bulletin A320–54–1022, Revision 02, dated July 12, 2013. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 851 airplanes of U.S. registry.
We also estimate that it would take about 30 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $2,170,050, or $2,550 per product.
In addition, we estimate the optional terminating modification would take about 60 work-hours and require parts costing about $932 per product, for a cost of $6,032 per product.
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
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.
We must receive comments by October 20, 2014.
None.
This AD applies to the Airbus airplanes identified in paragraphs (c)(1) through (c)(4) of this AD, certificated in any category, except for airplanes on which Airbus Modification 33844, or Modification 33847, as applicable, has been embodied in production.
(1) Airbus Model A318–111 and –112 airplanes.
(2) Airbus Model A319–111, –112, –113, –114, –115, –131, –132, and –133 airplanes.
(3) Airbus Model A320–211, –212, –214, –231, –232, and –233 airplanes.
(4) Airbus Model A321–111, –112, –131, –211, –212, –213, –231, and –232 airplanes.
Air Transport Association (ATA) of America Code 54, Nacelles/pylons.
This AD was prompted by reports of cracks on the forward corner fittings of engine pylon aft secondary structures. We are issuing this AD to detect and correct detachment of the lower fairing attachment and/or loss of the aft fixed fairing with the movable fairing from the airplane in flight, which could result in damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the latest of the times specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD: Do a detailed inspection for cracking of forward corner fittings having part number (P/N) D54530014201 (right-hand (RH)) andP/N D54530014200 (left-hand (LH)) of the pylon aft secondary structures, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–54–1022, Revision 02, dated July 12, 2013, except as provided by paragraph (j) of this AD. Repeat the inspection thereafter at intervals not to exceed 15,000 flight cycles or 22,500 flight hours, whichever occurs first. Accomplishment of the actions required by paragraph (i) of this AD terminates the actions required by this paragraph.
(1) Within 15,000 flight cycles or 22,500 flight hours, whichever occurs first since first flight of the airplane.
(2) Within 5,000 flight cycles or 7,500 flight hours after the effective date of this AD, without exceeding 40,750 flight cycles or 60,750 flight hours, whichever occurs first since first flight of the airplane.
(3) Within 750 flight cycles or 750 flight hours, whichever occurs first after the effective date of this AD.
If any crack is found on the corner fittings of a pylon during any inspection required by paragraph (g) of this AD: Before further flight, do a detailed inspection for cracking of the lower and medium spars, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–54–1022, Revision 02, dated July 12, 2013.
(1) If any damage is found: Before further flight, repair using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).
(2) If no damage is found: Within 5,000 flight cycles or 7,500 flight hours, whichever occurs first after the detailed inspection specified in paragraph (h) of this AD, modify the airplane, in accordance with the Accomplishment Instructions of Service Bulletin A320–54–1019, Revision 01, dated April 10, 2008.
Modification of an airplane by installation of corner fittings having P/N D0041092120000 RH and P/N D0041092120100 LH on both pylons, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–54–1019, Revision 01, dated April 10, 2008, constitutes terminating action for the repetitive inspections required by paragraph (g) of this AD.
Airplanes on which Airbus Modification 38067 (installation of new corner fittings) has been embodied in production, and airplanes already modified in service as described in Airbus Service Bulletin A320–54–1019, are not affected by the requirements of paragraph (g) of this AD, provided that no corner fittings having P/N D54530014201 RH orP/N D54530014200 LH have been installed since first flight of the airplane, or since modification, as applicable.
(1) As of the effective date of this AD, for airplanes on which Airbus Modification 38067 has been embodied in production on both pylons, and for airplanes previously modified in service as described in Airbus Service Bulletin A320–54–1019: Do not install any corner fittings having P/N D54530014201 RH or P/N D54530014200 LH.
(2) After modification as required by paragraph (h) of this AD, or after optional modification as specified in paragraph (i) of this AD, as applicable: Do not install any corner fittings having P/N D54530014201 RH or P/N D54530014200 LH.
This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320–54–1022, dated July 7, 2009; or Airbus Service Bulletin A320–54–1022, Revision 01, dated September 29, 2011; which are not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014–0064, dated March 14, 2014, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all BAE Systems (Operations) Limited Model 4101 airplanes. This proposed AD was prompted by a report of the failure, due to overheat, of a bracket on which the earth post (EP) for the generator and propeller de-ice systems is located. This proposed AD would require an inspection of the affected EPs and attachment structure for damage, an inspection of the earth cables of the generator and propeller de-ice system for signs of overheating and arcing damage, a torque check of the affected EP stiff nuts, an electrical high current bonding check of the bracket, and corrective actions if necessary. We are proposing this AD to detect and correct an overheat failure of the EPs for the generator and propeller de-ice system, and possible degradation of the wing front spar cap and/or web, which could affect the structural integrity of the wing.
We must receive comments on this proposed AD by October 20, 2014.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: 202–493–2251.
• Mail: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Delivery: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For service information identified in this proposed AD, contact BAE Systems (Operations) Limited, Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; telephone +44 1292 675207; fax +44 1292 675704; email
You may examine the AD docket on the Internet at
Todd Thompson, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1175; fax 425–227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2014–0006, dated January 7, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all BAE Systems (Operations) Limited Model 4101 airplanes. The MCAI states:
This condition, if not detected and corrected, could reduce the capacity of the wing to support loads, possibly resulting in wing structure failure and consequent loss of the aeroplane.
To address this potential unsafe condition, BAE Systems (Operations) Ltd issued [Inspection] Service Bulletin (SB) J41–24–043 [Revision 2, dated August 21, 2013] to provide inspection instructions.
For the reasons described above, this [EASA] AD requires a one-time visual inspection of the affected earth posts, an electrical high current bonding check of the bracket and, if discrepancies are detected, accomplishment of applicable corrective action(s).
BAE Systems (Operations) Limited has issued Inspection Service Bulletin
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Although the MCAI and BAE Systems (Operations) Limited Inspection Service Bulletin J41–24–043, Revision 2, dated August 21, 2013; tells you to submit information to the manufacturer, paragraph (k) of this proposed AD specifies that such submittal is not required. This difference has been coordinated with EASA.
Since late 2006, we have included a standard paragraph titled “Airworthy Product” in all MCAI ADs in which the FAA develops an AD based on a foreign authority's AD.
The MCAI or referenced service information in an FAA AD often directs the owner/operator to contact the manufacturer for corrective actions, such as a repair. Briefly, the Airworthy Product paragraph allowed owners/operators to use corrective actions provided by the manufacturer if those actions were FAA-approved. In addition, the paragraph stated that any actions approved by the State of Design Authority (or its delegated agent) are considered to be FAA-approved.
In an NPRM having Directorate Identifier 2012–NM–101–AD (78 FR 78285, December 26, 2013), we proposed to prevent the use of repairs that were not specifically developed to correct the unsafe condition, by requiring that the repair approval provided by the State of Design Authority or its delegated agent specifically refer to the FAA AD. This change was intended to clarify the method of compliance and to provide operators with better visibility of repairs that are specifically developed and approved to correct the unsafe condition. In addition, we proposed to change the phrase “its delegated agent” to include a design approval holder (DAH) with State of Design Authority design organization approval (DOA), as applicable, to refer to a DAH authorized to approve required repairs for the proposed AD.
One commenter to the NPRM having Directorate Identifier 2012–NM–101–AD (78 FR 78285, December 26, 2013) stated the following: “The proposed wording, being specific to repairs, eliminates the interpretation that Airbus messages are acceptable for approving minor deviations (corrective actions) needed during accomplishment of an AD mandated Airbus service bulletin.”
This comment has made the FAA aware that some operators have misunderstood or misinterpreted the Airworthy Product paragraph to allow the owner/operator to use messages provided by the manufacturer as approval of deviations during the accomplishment of an AD-mandated action. The Airworthy Product paragraph does not approve messages or other information provided by the manufacturer for deviations to the requirements of the AD-mandated actions. The Airworthy Product paragraph only addresses the requirement to contact the manufacturer for corrective actions for the identified unsafe condition and does not cover deviations from other AD requirements. However, deviations to AD-required actions are addressed in 14 CFR 39.17, and anyone may request the approval for an alternative method of compliance to the AD-required actions using the procedures found in 14 CFR 39.19.
To address this misunderstanding and misinterpretation of the Airworthy Product paragraph, we have changed the paragraph and retitled it “Contacting the Manufacturer.” This paragraph now clarifies that for any requirement in this proposed AD to obtain corrective actions from a manufacturer, the actions must be accomplished using a method approved by the FAA, the European Aviation Safety Agency (EASA), or BAE Systems (Operations) Limited's EASA DOA.
The Contacting the Manufacturer paragraph also clarifies that, if approved by the DOA, the approval must include the DOA-authorized signature. The DOA signature indicates that the data and information contained in the document are EASA-approved, which is also FAA-approved. Messages and other information provided by the manufacturer that do not contain the DOA-authorized signature approval are not EASA-approved, unless EASA directly approves the manufacturer's message or other information.
This clarification does not remove flexibility previously afforded by the Airworthy Product paragraph. Consistent with long-standing FAA policy, such flexibility was never intended for required actions. This is also consistent with the recommendation of the Airworthiness Directive Implementation Aviation Rulemaking Committee to increase flexibility in complying with ADs by identifying those actions in manufacturers' service instructions that are “Required for Compliance” with ADs. We continue to work with manufacturers to implement this recommendation. But once we determine that an action is required, any deviation from the requirement must be approved as an alternative method of compliance.
We also have decided not to include a generic reference to either the “delegated agent” or “design approval holder (DAH) with State of Design Authority design organization approval,” but instead we have provided the specific delegation approval granted by the State of Design Authority for the DAH throughout this proposed AD.
We estimate that this proposed AD affects 4 airplanes of U.S. registry.
We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $1,360, or $340 per product.
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This proposed
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
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.
We must receive comments by October 20, 2014.
None.
This AD applies to BAE Systems (Operations) Limited Model 4101 airplanes, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 24, Electrical Power.
This AD was prompted by a report of the failure, due to overheat, of a bracket on which the earth post (EP) for the generator and propeller de-ice systems is located. We are issuing this AD to detect and correct an overheat failure of the EPs for the generator and propeller de-ice system and possible degradation of the wing front spar cap and/or web, which could affect the structural integrity of the wing.
Comply with this AD within the compliance times specified, unless already done.
Within 6 months after the effective date of this AD: Do a general visual inspection on both engines of the structure around EP2 and EP4; the brackets on which the EPs are mounted; the attachment of the nacelle horizontal support for damage, and lateral movement of the EPs; in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin J41–24–043, Revision 2, dated August 21, 2013. If any lateral movement of the EP or any other damage is detected, before further flight, repair using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or BAE Systems (Operations) Limited's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.
Within 6 months after the effective date of this AD: Do a general visual inspection of the earth cables of the generator and propeller de-ice system for arcing damage and signs that the cable insulation or terminal tags have been overheated, and do all applicable corrective actions; in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin J41–24–043, Revision 2, dated August 21, 2013. Do all applicable corrective actions before further flight.
Within 6 months after the effective date of this AD: Do a torque check of the EP2 and EP4 stiff nuts, and adjust the torque load as applicable, in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin J41–24–043, Revision 2, dated August 21, 2013.
Within 6 months after the effective date of this AD: Measure the resistance of the EP2 and EP4 earth bolts using a high-current millivolts-drop test, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin J41–24–043, Revision 2, dated August 21, 2013. Do all applicable corrective actions before further flight.
Although BAE Systems (Operations) Limited Inspection Service Bulletin J41–24–043, Revision 2, dated August 21, 2013, specifies to submit information to the manufacturer, this AD does not require that this information be submitted.
This paragraph provides credit for actions required by paragraphs (g), (h), (i), and (j) of this AD, if those actions were performed before the effective date of this AD using BAE Systems (Operations) Limited Inspection Service Bulletin J41–24–043, dated September 27, 2011; or BAE Systems (Operations) Limited Inspection Service Bulletin J41–24–043, Revision 1, dated January 16, 2012; which are not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) European Aviation Safety Agency Airworthiness Directive 2014–0006, dated January 7, 2014, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact BAE Systems (Operations) Limited, Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; telephone +44 1292 675207; fax +44 1292 675704; email
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking; extension of comment period.
The Alcohol and Tobacco Tax and Trade Bureau is extending the comment period for Notice No. 145, Proposed Expansion of the Sta. Rita Hills Viticultural Area, a notice of proposed rulemaking published in the
The comment period for the proposed rule published on August 7, 2014 (79 FR 46204), has been extended. Written comments on Notice No. 145 are now due on or before December 5, 2014.
You may send comments on Notice No. 145 to one of the following addresses:
•
•
•
See the Public Participation section of this notice for specific instructions and requirements for submitting comments, and for information on how to request a public hearing.
You may view copies of the petition, selected supporting materials, Notice No. 145, and all public comments associated with this proposal within Docket No. TTB–2014–0007 at
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; telephone 202–453–1039, ext. 175.
In Notice No. 145, a notice of proposed rulemaking published in the
On August 18, 2014, TTB received a letter from the chairman of the Sta. Rita Hills Winegrowers Alliance requesting a 90-day extension of the comment period for Notice No. 145 in order to allow more time for industry members to submit comments. The letter states that many local grape growers and winemakers are in the process of bottling previous vintages and preparing for harvest and thus do not have adequate time to prepare and submit comments before the end of the comment period. This request is posted as Comment 20 within Docket No. TTB–2014–0007 at
In response to this request, TTB extends the comment period for Notice No. 145 for an additional 60 days. Therefore, comments on Notice No. 145 are now due on or before December 5, 2014. TTB believes that an additional 60 days is an adequate extension of the comment period and is consistent with previous comment period extensions TTB has granted. TTB does not believe a 90-day extension is necessary because neither Notice No. 145 nor the petition and its supporting materials are voluminous or unusually complex, and a 60-day extension will extend the comment period deadline well past the peak of the typical harvest period.
Karen A. Thornton of the Regulations and Rulings Division drafted this notice.
Office of Postsecondary Education, Department of Education.
Intent to establish negotiated rulemaking committee.
We announce our intention to establish a negotiated rulemaking committee to prepare proposed regulations governing the Federal William D. Ford Direct Loan (Federal Direct Loan) Program authorized under Title IV of the Higher Education Act of 1965, as amended (HEA). The committee will include representatives of organizations or groups with interests that are significantly affected by the subject matter of the proposed regulations. We also announce two public hearings at which interested parties may suggest additional issues that should be considered for action by the negotiating committee. In addition, we announce that the Department will accept written comments regarding additional issues that should be considered for action by the negotiating committee.
The dates, times, and locations of the public hearings are listed under
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by email. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.
•
•
The Department's policy is to make all comments received from members of the public (including those comments submitted by mail, commercial delivery, or hand delivery) available for public viewing in their entirety on the Federal eRulemaking Portal at
For information about the public hearings, go to
For information about negotiated rulemaking in general, see
If you use a telecommunications device for the deaf (TDD) or text telephone (TTY), call the Federal Relay Service (FRS) toll free at 1–800–877–8339.
Section 492 of the HEA requires that, before publishing any proposed regulations to implement programs authorized under Title IV of the HEA, the Secretary obtain public involvement in the development of the proposed regulations. After obtaining advice and recommendations from the public, the Secretary conducts negotiated rulemaking to develop the proposed regulations. We announce our intent to develop proposed Title IV regulations by following the negotiated rulemaking procedures in section 492 of the HEA.
We intend to select participants for the negotiated rulemaking committee from nominees of the organizations and groups that represent the interests significantly affected by the proposed regulations. To the extent possible, we will select from the nominees individual negotiators who reflect the diversity among program participants, in accordance with section 492(b)(1) of the HEA.
We intend to convene a committee to develop proposed regulations to allow more student borrowers of Federal Direct Loans to use the “Pay as You Earn Repayment Plan”, in accordance with the Presidential Memorandum issued on June 9, 2014, (available at
After a complete review of the public comments presented at the public hearings and in the written submissions, we will publish a document (or documents) in the
We will hold two public hearings for interested parties to discuss the rulemaking agenda. The public hearings will be held:
• October 23, 2014, from 9:00 a.m. to 4:00 p.m. local time, at the U.S. Department of Education, 1990 K Street NW., Eighth Floor Conference Center, Washington, DC 20006.
• November 4, 2014, from 1 p.m. to 4 p.m. local time, at the Marriott Anaheim, 700 West Convention Way, Grand Ballroom E, Anaheim, CA 92802.
Further information on the public hearing sites is available at
Individuals who would like to present comments at the public hearings must register by sending an email to
Registration is not required to observe the public hearings.
Speakers may also submit written comments at the public hearings. In addition, the Department will accept written comments through November 4, 2014. (See the
We anticipate that any committee established after the public hearings
20 U.S.C. 1098a.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve the Clean Air Act section 111(d)/129 State Plan revisions for Large and Small Municipal Waste Combustors (MWC) submitted by the New Hampshire Department of Environmental Services (DES) on January 29, 2009 with amendments submitted on February 13, 2009. The revised Plan is in response to amended emission guidelines (EGs) and new source performance standards (NSPS) for Large MWCs promulgated on May 10, 2006 and the strengthening of emission limits on Small MWCs as enacted by the New Hampshire General Court in 2005. New Hampshire DES's State Plan is for implementing and enforcing provisions at least as protective as the EGs applicable to existing Large and Small MWC units.
Written comments must be received on or before October 3, 2014.
Submit your comments, identified by Docket ID Number EPA–R01–OAR–2012–0206 by one of the following methods:
1.
2. Email:
3. Fax: (617) 918–0653.
4. Mail: “Docket Identification Number EPA–R01–OAR–2012–0206,” Ida E. McDonnell, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Permits, Toxic, & Indoor Programs Unit, 5 Post Office Square—Suite 100, (Mail code OEP05–2), Boston, MA 02109–3912.
5. Hand Delivery or Courier. Deliver your comments to: Ida E. McDonnell, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Permits, Toxic, & Indoor Programs Unit, 5 Post Office Square—Suite 100, (Mail code OEP05–2), Boston, MA 02109–3912. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.
Please see the direct final rule which is located in the Rules Section of this
Patrick Bird, Air Permits, Toxic, & Indoor Programs Unit, Air Programs Branch, Office of Ecosystem Protection, U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Mail Code: OEP05–2, Boston, MA, 02109–0287. The telephone number is (617) 918–1287. Mr. Bird can also be reached via electronic mail at
In the Final Rules section of this
For additional information, see the direct final rule which is located in the Rules Section of this
Environmental Protection Agency (EPA).
Proposed rule.
The State of Texas has applied to the Environmental Protection Agency (EPA) for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA proposes to grant Final authorization to the State of Texas. In the “Rules and Regulations” section of this
Send your written comments by October 3, 2014.
Send written comments to Alima Patterson, Region 6, Regional Authorization Coordinator, (6PD–O), Multimedia Planning and Permitting Division, at the address shown below. You can examine copies of the materials submitted by the State of Texas during normal business hours at the following locations: EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202–2733, phone number (214) 665–8533; or Texas Commission on Environmental Quality, (TCEQ) 12100 Park S. Circle, and Austin, Texas 78753–3087, (512) 239–6079. Comments may also be submitted electronically or through hand delivery/courier; please follow the detailed instructions in the
Alima Patterson (214) 665–8533.
For additional information, please see the direct final rule published in the “Rules and Regulations” section of this
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of 90-day petition finding, request for information.
We (NMFS) announce a 90-day finding on seven Indo-Pacific species included in a petition to list eight species of pomacentrid reef fish as threatened or endangered under the Endangered Species Act (ESA). These are the orange clownfish (
Information and comments on the subject action must be received by November 3, 2014.
You may submit comments, information, or data on this document, identified by the code NOAA–NMFS–2014–0072, by any of the following methods:
• Electronic Submissions: Submit all electronic comments via the Federal eRulemaking Portal. Go to
• Mail: Submit written comments to Regulatory Branch Chief, Protected Resources Division, Pacific Islands Regional Office, NMFS Protected Resources Division, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818.
Copies of the petition and references are available upon request from the Regulatory Branch Chief, Protected Resources Division, Pacific Islands Regional Office, NMFS Protected Resources Division, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818, or online at:
Jean Higgins, NMFS Pacific Islands Regional Office, 808–725–5151.
On September 14, 2012, we received a petition from the Center for Biological Diversity to list eight species of pomacentrid reef fish as threatened or endangered under the ESA and to
Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531
Under the ESA, a listing determination may address a “species,” which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NMFS and U.S. Fish and Wildlife Service (USFWS) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (“DPS Policy”; 61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, the determination of whether a species is threatened or endangered shall be based on any one or a combination of the following five section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In evaluating whether substantial information is contained in a petition, we must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
Judicial decisions have clarified the appropriate scope and limitations of the Services' review of petitions at the 90-day finding stage, in making a determination whether a petitioned action “may be” warranted. As a general matter, these decisions hold that a petition need not establish a “strong likelihood” or a “high probability” that a species is either threatened or endangered to support a positive 90-day finding.
At the 90-day stage, we evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person would conclude that it supports the petitioner's assertions. Conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone negates a positive 90-day finding, if a reasonable person would conclude that the unknown information itself suggests an extinction risk of concern for the species at issue.
To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species at issue faces extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species at issue (e.g., population abundance and trends, productivity, spatial structure,
Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.
Many petitions identify risk classifications made by non-governmental organizations, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but the classification alone may not provide the rationale for a positive 90-day finding under the ESA. Thus, when a petition cites such classifications, we will evaluate the source of information upon which the classification is based in light of the species extinction risk and impacts or threats discussed above.
The orange clownfish is also referred to as an anemone fish because of its symbiotic relationship with host sea anemones. Individuals are orange with three white bands, with the middle band bulging forward toward the head centrally. Black stripes separate the orange and white coloration on the body. They can reach a maximum length of 11 cm (Florida Museum of Natural History, 2011).
The Black-axil chromis is a damselfish with a broad geographic range occurring throughout most of the Indo-Pacific; they range from the Ryuku Islands to the Great Barrier Reef, Lord Howe Island, east through the islands of Oceania except the Hawaiian Islands, Marquesas, and Pitcairn Islands, and west in the Indian Ocean to the Maldives and Seychelles (Randall, 2005). Within U.S. Pacific possessions this species occurs in American Samoa and the Marianas archipelago (Allen, 1991).
The petition did not present any information regarding the global population size or trends of
The blue-green damselfish has a broad geographic range occurring throughout most of the Indo-Pacific; they range from the Red Sea and east coast of Africa to the Line Islands and Tuamotu
The petition did not present any information regarding the global population size or trends of
Individuals are blue-green in color shading to white ventrally with a blue line from the front of the snout to the eye and can reach 10 cm in length (Randall, 2005).
The Hawaiian dascyllus, also known as the domino damselfish, is endemic to the United States, occurring only in Hawaii and Johnston Atoll (Danilowicz, 1995; Asoh and Yoshikawa, 2002).
The petition provided no estimate of global population size or trends for this species. The entire range of
Individuals are small and deep-bodied, reaching a maximum length of 13 cm. Adults are pale or dark with white spots fading with age, while juveniles are black with a white spot on each side and a turquoise spot on the head (Stevenson, 1963).
The petition did not present any information regarding the global population size or trends of
Individuals are pale blue-grey, the edges of the scales are narrowly black with a blackish bar anteriorly on the body continuing as a broad outer border on the spinous portion of the dorsal fin. They can attain 8.5 cm in length (Randall, 2005).
The petition did not present any information regarding the global population size or trends of
Individuals are light brown with a sharp black band toward the back end with a white back end and tail; they reach a maximum length of 8.5 cm (Randall, 2005). They are commonly observed associated with branching corals, primarily
The blue-eyed damselfish has a broad geographic range occurring throughout most of the Indo-Pacific; it ranges from the east coast of Africa to the Hawaiian Islands, French Polynesia, and Pitcairn Islands, and from the Ryuku and Ogasawara Islands to the Great Barrier Reef, Lord Howe, and Norfolk Island (Randall, 2005). Within U.S. Pacific possessions, it occurs in Hawaii, American Samoa, the Marianas archipelago (Allen, 1991) and the PRIAs (PIFSC, unpublished data).
The petition did not present any information regarding the global population size or trends of
Individuals have a pale yellowish grey body with a very broad black posterior bar, a head that is gray dorsally shading to yellowish grey ventrally, a violet-blue line on the sides of the snout, and lavender scales rimming the eyes (Randall, 2005). This species inhabits passes and outer reefs and is often observed associated with
For each of the seven petitioned species, we evaluated whether the petition provides the information and documentation required in 50 CFR 424.14(b)(2). The petition clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved. The petition also contains a narrative justification for the recommended measures and provides limited information on the species' geographic distribution, habitat use, and threats. The petition did not include any information on past or present population numbers and it states that abundance and population trends are unknown for all petitioned species. The petition does not identify any risk classifications by other organizations for any petitioned species. The petition includes supporting references. The petition states that primary threats to the petitioned species include loss of coral reef habitat due to climate change, overharvest for the marine aquarium fish trade, inadequate regulatory mechanisms, and direct harm to essential biological functions from ocean acidification and ocean warming.
The petition begins with general biological and ecological information about pomacentrids, and then provides sections for each petitioned species that contain a brief discussion of unique material for each species, including a species description, information on distribution, habitat, natural history, and threats, each with a range map. These sections are followed by sections providing generalized discussion of four of the five ESA listing factors that the petition states are affecting the extinction risk of the petitioned species, some of which contain limited species-specific information for one or more of the petitioned species.
In the following sections, we use the information presented in the petition and in our files to determine whether the petitioned action may be warranted. We summarize our analysis and conclusions regarding the information presented by the petitioner and in our files on the specific ESA section 4(a)(1) factors affecting each of the species' risk of global extinction below.
According to the petition, four of the five causal threat factors in section 4(a)(1) of the ESA are adversely affecting the continued existence of each of the seven Indo-Pacific petitioned species: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (D) inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence.
In this section we assess the generalized information that was provided regarding these four threats; the species-specific threat information will be addressed below in the individual species sections.
Under Listing Factor A, the petition states the petitioned species are “threatened by the loss and degradation
The petition discusses at length climate change impacts to corals and coral reefs and future predictions for worsening impacts to corals at a global scale. In general terms, “climate” refers to average weather conditions, as well as associated variability, over a long period of time (e.g., decades, centuries, or thousands of years). Thus we define “climate change” as a non-random change in the state of the climate (whether due to natural variability, human activity, or both) that can be identified by changes in the mean or variability of its properties and that persists for an extended period, typically decades or longer. In the context of coral reefs, the primary climate variables described relevant to climate change are ocean temperatures and acidity. Many of the climate-change references provided by the petitioner offer global predictions on future rises in sea surface temperature (Donner
We have additional information regarding climate change impacts and predictions for coral reefs readily available in our files, much of which is more recent than the literature presented in the petition. This information indicates a highly nuanced and variable pattern of exposure, susceptibility, resilience, and recovery of coral reefs to climate change over regionally and locally different spatial and temporal scales, and reflects the high level of uncertainty associated with future predictions. The literature underscores the multitude of factors contributing to coral response to thermal stress, including taxa, geographic location, biomass, previous exposure, frequency, intensity, and duration of thermal stress events, gene expression, and symbiotic relationships (Pandolfi
Vulnerability of a coral species to a threat is a function of susceptibility and exposure, considered at the appropriate spatial and temporal scales. Susceptibility is primarily a function of biological processes and characteristics, and can vary greatly between and within coral taxa (i.e., family, genus, or species). Susceptibility depends on direct effects of the threat on the species, and it also depends on the cumulative (i.e., additive) and interactive (i.e., synergistic or antagonistic) effects of multiple threats acting simultaneously on the species. For example, ocean warming affects coral colonies through the direct effect of bleaching, together with the interactive effect of bleaching and disease, because there is evidence that bleaching increases disease susceptibility in some species. Vulnerability of a coral species to a threat also depends on the proportion of colonies that are exposed to the threat. Exposure is primarily a function of location and physical processes and characteristics that limit or moderate the impact of the threat across the range of the species. Information in our files suggests that not all coral species are highly vulnerable to the threats associated with global climate change (Brainard
The petition's general discussion of climate change acknowledges that some corals are resistant to bleaching, but continues to attempt to generalize bleaching as an extinction threat to all corals. Likewise the petition implies that ocean acidification is a threat to all coral species with which the petitioned species may associate. Data in our files as summarized by Brainard
In addition to predicted vulnerabilities based on biological and demographic characteristics, we consider empirical information on overall trends of live coral cover within the range of the petitioned species. No recent, region-wide reports of current overall live coral cover are available for the Indo-Pacific as a whole. However, recent reports from parts of the region have found current live coral cover to be stable or increasing in many areas, while others have experienced some decreases. Monitoring data collected annually from 47 sites on the GBR from 1995 to 2009 averaged 29 percent live coral cover (Osborne
In conclusion, information in our files regarding live coral cover confirms that there has been a long-term overall decline in live coral cover in the Indo-Pacific (Birkeland 2004; Fenner 2012; Pandolfi et al. 2003; Sale and Szmant 2012), and that those declines are likely ongoing and likely to continue in the future due to a multitude of global and local threats at all spatial scales. However, as the above information illustrates, live coral cover trends are highly variable both spatially and temporally, producing patterns on small scales that may not be extrapolated beyond the localized area. Live coral cover trends are complex, dynamic, and highly variable across space and time. Thus their interpretation requires the appropriate spatiotemporal context, and an understanding of the various physical, biological, and ecological processes at work within coral communities and coral reef ecosystems. The ranges of the petitioned reef fish are expansive and encompass much of the variability in environmental conditions discussed above, indicating that while overall habitat may have declined, some portions of their range may have experienced declines in coral cover while some have experienced stability or increasing coral cover over the last few decades.
The petitioner goes on to discuss more specific coral habitat and describes the preferred habitat for most of the petitioned species, excluding
In another study from our files, Foden
The petition presented site specific studies from bleaching events in Okinawa, Japan (Loya
Foden
Based on the information in the petition and our files, we cannot infer that the general information on coral bleaching and acidification effects on pomacentrid habitat, in conjunction with the high variability in response to climate change, indicates a threat that may warrant protection for the petitioned fishes under the ESA. Species-specific issues related to this threat are discussed in species-specific sections below.
The petition also presents scientific studies indicating pomacentrid reef fishes show a strong preference for inhabiting live coral rather than sub-lethally bleached or dead corals, and pomacentrid recruitment on bleached and dead corals declines quickly after a bleaching event. However, Bonin
In general, considering the effects of climate change on damselfishes and their habitat based on the information in the petition and in our files, we acknowledge the growing threat that ocean warming and acidification present to coral reef ecosystems. Even though all species of
Under Listing Factor B, the petitioner identified four of the seven petitioned Indo-Pacific species as potentially threatened by overharvest for the marine aquarium fish trade and stated that the harvest of corals threatens all of the petitioned species by removing their habitat. This section addresses overharvest of corals only. The threat of overharvest to the four identified fish species,
The petition states “[t]he widespread and growing trade in coral reef fish and corals adds to the cumulative stresses that the petitioned pomacentrids face from ocean warming and ocean acidification.” The petition provides no further information on the threat of harvest of corals as it pertains to the petitioned species. Information in our files suggests that coral trade can have significant local effects on targeted coral species, but the overall contribution of ornamental trade to the extinction risk of 82 species of reef building corals was determined to be a threat of low importance (Brainard
Under listing Factor D, the petitioner asserts that the petitioned species are warranted for listing under the ESA due to the inadequacy of regulatory mechanisms, specifically addressing greenhouse gas pollution, coral reef habitat protection, and the marine aquarium trade. The petition states that both international and domestic laws controlling greenhouse gas emissions are inadequate and/or have failed to control emissions: “As acknowledged by NMFS in its
With respect to coral reef habitat protection from localized impacts, the petition quotes Burke
The petition states that “United States and international regulations are inadequate to protect the petitioned pomacentrids from threats from the global marine aquarium trade.” The petition cites Tissot
In summary, we find the petition does not provide substantial information to suggest existing regulatory mechanisms are inadequate and may be causing an extinction risk for six of the petitioned species Indo-Pacific species. This listing factor will be addressed more specifically for
Under Listing Factor E, the petition states generally that ocean acidification and ocean warming, in addition to causing habitat loss, “directly threaten the survival of the petitioned species through a wide array of adverse impacts that are predicted to lead to negative fitness consequences and population declines.” We acknowledge that the potential for physiological impacts as a result of changing temperatures and changing CO
The petition states that elevated sea surface temperatures “can influence the physiological condition, developmental rate, growth rate, early life history traits, and reproductive performance of coral reef fishes, all of which can affect their population dynamics, community structure, and geographical distributions.” The section of the petition asserting that ocean warming impacts reproductive success and development for the petitioned species relies on references that are general in nature and lack species specific information. (i.e., Munday, 2008; Lo-Yat
Other references in the petition do offer species-specific results (although not for any petitioned species) showing reduced breeding success of
With regard to ocean warming impacts to respiratory and metabolic
Johansen and Jones (2011) tested wild-captured adult fish in a laboratory setting, exposing them to two temperature treatments representing current average summer temperatures around their habitat (29 degrees C) and the predicted average summer temperature after three degrees C increase in sea temperature following current climate change predictions for the end of this century. They found that increased temperature (32 degrees C) had a significant negative effect across all performance measures examined (for all species except
The information provided indicates both the potential for declines of some species in low-latitude reefs, as well as the potential for expansion for these species in higher latitudes or more thermally favorable areas. Both studies suggest species that are specialized to a narrow thermal environment, especially those optimized for colder temperatures, are likely to be the most sensitive to projected changes in temperature. We have no information that suggests the petitioned species are specialized to narrow thermal environments or optimized to colder temperatures. To the contrary, the petitioned species are widely distributed in geographic range and/or depth, which suggests they are less likely to be among the most sensitive to projected changes in temperature.
Many of the authors of the physiology studies discussed above acknowledge that acclimation, developmental plasticity, and genetic adaptation may or may not alleviate some physical and physiological limitations, although capacity for acclimation or adaptation is unknown and was not factored into the experiments. Donelson
The petition also states “ocean acidification impairs the sensory capacity and behavior of larval clownfish and damselfish” but only provides species-specific information for
Miller
In summary, we acknowledge the potential for physiological and behavioral impacts to the marine species due to ocean warming and acidification levels that may occur later this century. However, we find the petition did not present substantial information to indicate this may increase extinction risk for the petitioned species. References provided in the petition acknowledge that there are limitations associated with applying results from laboratory studies to the complex natural environment where impacts will be experienced gradually over the next century at various magnitudes in a non-uniform spatial pattern. Lab experiments presented do not reflect the conditions the petitioned species will experience in nature; instead of experiencing changes in levels of ocean warming and acidification predicted for the end of the century within a single generation, species in nature are likely to experience gradual increases over many generations. The few multi-generational studies that have been completed show evidence of rapid trans-generational acclimation and individual variation that could lead to rapid selection for tolerant phenotypes. These are likely to be influential factors in how changing
Although the petition broadly states that the petitioned species are habitat specialists that depend on live corals,
In addition, the geographic range of A. percula is more restricted than the other petitioned species and occurs largely in the Coral Triangle area. A hot spot of ocean warming occurs in the equatorial western Pacific where regional warming is higher than overall warming in the Indo-Pacific, exposing coral reef ecosystems, including anemones, in this area to a higher risk of warming-induced bleaching. The hot spot overlaps the Coral Triangle and a large part of A. percula's range (Couce et al. 2013; Lough 2012; Teneva et al. 2012; van Hooidonk et al. 2013b).
The petitioner claims that
There was no discussion in the petition of regulatory mechanisms specific to this species. However, references provided by the petitioner question the sustainability of management practices associated with the global aquarium trade indicating that in many cases the status of targeted species is largely unknown (Jones et al. 2008; Rhyne et al. 2012). With no additional information regarding the abundance of A. percula, we are unable to determine if current management regimes are sufficient to prevent overharvest. Because we have determined that substantial information has been presented to indicate that listing may be warranted for
In summary, we find that the petition presents substantial information that A. percula may be warranted for listing due to species specific threats identified under listing Factor A. We will be seeking additional information on all threats to
In the species section, the petition states that
Lewis (1998) examined impacts to the
Wilson
Overall, the petition establishes that this species prefers branching corals as adults and branching and plate corals as juveniles, but can be found with other coral species in its territory (Wilson
We find that substantial information has not been presented to indicate a concern for the extinction risk of this species due to the destruction, modification, or curtailment of its habitat or range.
The petitioner asserts that analyses of the aquarium fisheries in Hawaii, the Philippines, and Florida indicate that damselfish, including
The petitioner also cited Rhyne
The petitioners do not provide information that the level of harvest of this species may be unsustainable. They have simply identified a potential threat and provided no other demographic information, leaving no basis upon which to reasonably infer that harvest may be increasing the extinction risk of this species. Accordingly, we cannot reasonably infer from these reports that this species may be facing an extinction risk across all or a significant portion of its range due to overharvest.
There was no discussion in the petition of regulatory mechanisms specific to this species. The evaluation of the general information provided in the petition regarding inadequacy of regulatory mechanisms above applies here. As such, substantial information has not been provided to indicate that inadequacy of regulatory mechanisms may be contributing to increased extinction risk for
For
The petition argues that
The petition cites several references to demonstrate that
The petition states, “[i]n a survey of a portion of the GBR that experienced bleaching during the 1997–98 mass bleaching event, Booth and Beretta (2002) found that numbers of
Overall, the petition establishes that this species is commonly observed associated with branching corals and the work of Ben-Tzvi
The petitioner cited Rhyne
As noted in the species description above, we estimate the global abundance of the
The petitioners do not provide information that the level of harvest of this species may be unsustainable. They have simply identified a potential threat and given no other demographic information, leaving no basis upon which to infer that harvest may be increasing the extinction risk of this species. Accordingly, we cannot infer from this information that this species may be facing increased extinction risk across all or a significant portion of its range due to overharvest.
There was no discussion in the petition of regulatory mechanisms specific to this species. The evaluation of the general information provided in the petition regarding inadequacy of regulatory mechanisms above applies here. As such, substantial information has not been provided to indicate that inadequacy of regulatory mechanisms may be contributing to increased extinction risk for
No species-specific information was provided regarding the effects of increased ocean warming or acidification on
The petition claims that
The petitioner provides no abundance or density information for this species, however our internal files indicate that
Additional information readily available in our files includes a study that documented
The petition does not provide any specific information indicating coral habitat loss due to temperature-induced mass bleaching events and ocean acidification (or any other cause) has affected the status of the species. As such, we cannot infer that loss or degradation of coral reef habitat is a threat to the species to the extent it may warrant protection under the ESA.
The petitioner argues that analyses of the aquarium fisheries in Hawaii, the Philippines, and Florida indicate that damselfish, including
There was no discussion in the petition of regulatory mechanisms specific to this species. The evaluation of the general information provided in the petition regarding inadequacy of regulatory mechanisms above applies here. As such, substantial information has not been provided to indicate that inadequacy of regulatory mechanisms may be contributing to increased extinction risk for
No species-specific information was provided regarding the effects of increased ocean warming or acidification on
As noted above, the petition states that “the petitioned pomacentrid reef fish are habitat specialists that directly depend on live corals for survival, including shelter, reproduction, recruitment, and food.” In the species section, the petitioner provides more details on this species and states that
The petition also states that declines in
In order to evaluate the significance of the evidence presented, we consider whether the conditions that led to declines may be experienced throughout all or a significant portion of the species range. Based on the information in the petition and in our files, we do not believe that
There was no discussion in the petition of regulatory mechanisms specific to this species. The evaluation of the general information provided in the petition regarding inadequacy of regulatory mechanisms above applies here. As such, substantial information has not been provided to indicate that inadequacy of regulatory mechanisms may be contributing to increased extinction risk for
For
As noted above, the petition states that “the petitioned pomacentrid reef fish are habitat specialists that directly depend on live corals for survival, including shelter, reproduction, recruitment, and food.” More specifically in the species section, the petitioner claims that many sources report a “strong association” of
The petition references studies by Wilson
There was no discussion in the petition of regulatory mechanisms specific to this species. The evaluation of the general information provided in the petition regarding inadequacy of regulatory mechanisms above applies here. As such, substantial information has not been provided to indicate that inadequacy of regulatory mechanisms may be contributing to increased extinction risk for
No species-specific information was provided regarding the effects of increased ocean warming or acidification on
The petitioner argues that
The petitioner reports
The four coral genera that are reported to be included in
The petition references studies by Wilson
As noted with the other species, localized decline in response to habitat disturbance is not unexpected for any species. In order to evaluate the significance of the evidence presented, we consider whether the conditions that led to declines may impact the species throughout all or a significant portion of the species range. Based on the information in the petition and in our files, we have no basis to infer that
As summarized above, information in our files regarding live coral cover does not dispute that there has been a long-term overall decline in live coral cover in the Indo-Pacific, and that those declines are likely ongoing and likely to continue in the future due to a multitude of global and local threats at all spatial scales. However, live coral cover trends are complex, dynamic, and highly variable across space and time. Even though all species of
There was no discussion in the petition of regulatory mechanisms specific to this species. The evaluation of the general information provided in the petition regarding inadequacy of regulatory mechanisms above applies here. As such, substantial information has not been provided to indicate that inadequacy of regulatory mechanisms may be contributing to increased extinction risk for
No species-specific information was provided regarding the effects of increased ocean warming or acidification on
Finally, we have considered whether there are cumulative or synergistic effects to any of the petitioned reef fish species from the combined impacts of threats identified in the petition, such
For
For the other six petitioned species, we have specifically considered whether two or more of the threats assessed above (loss of coral reef habitat due to climate change, harm to essential functions from ocean acidification and ocean warming, overharvest for the aquarium trade, and inadequacy of regulatory mechanisms) are cumulatively or synergistically likely to interact and result in significant impacts to the species, either now or in the foreseeable future. We have no information to suggest that the identified threats to the species will work synergistically, thereby enhancing impacts to the six petitioned species populations. With regard to cumulative impacts, we must consider whether the information provided would suggest that the additive impacts from the various threats indicate that the species may warrant protection under the ESA. Because of the expansive ranges of the petitioned species and the non-uniform nature of the potential future threats we do not expect the petitioned species to be exposed to all threats simultaneously throughout all or a significant portion of their ranges. Additionally, in places where they experience multiple threats simultaneously, e.g., coral bleaching impacts combined with harvest, impacts are likely to be localized. The lack of any evidence of declining populations is true for all six species.
In summary, we cannot reasonably infer that studies referenced in the petition showing localized declines or generalized threats may describe an extinction risk of these widely-distributed and abundant species. Overall, the petitioner presented insufficient information to suggest the global population of any of these six petitioned species is so depressed or declining due to any of the threats identified in the petition such that it may require ESA listing. Based on the lack of population-level impacts identified in the petition and the information in our files, we cannot reasonably infer that the combined effects of these threats will occur with such frequency, intensity, or geographic scope as to present an extinction risk to these six petitioned species.
Accordingly, we find that for the Hawaiian dascyllus (
After reviewing the information contained in the petition, as well as information readily available in our files, and based on the above analysis, we find that the petition presents substantial information indicating that the petitioned action may be warranted for the orange clownfish (
To ensure that the status review is comprehensive, we are soliciting scientific and commercial information pertaining to
A complete list of references is available upon request (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes specifications for the commercial tilefish fishery for the 2015, 2016, and 2017 fishing years. This action would set the acceptable biological catch, annual catch limit, total allowable landings, and harvest allocations for the individual fishing quota and incidental fishery components of the commercial tilefish fishery. The intent of this action is to establish allowable harvest levels and other management measures to prevent overfishing while allowing optimum yield, consistent with the Magnuson-Stevens Fishery Conservation and
Comments must be received by September 18, 2014.
You may submit comments, identified by NOAA–NMFS–2014–0103, by any of the following methods:
•
•
NMFS will accept anonymous comments. Attachments to electronic comments will be accepted via Microsoft Word, Microsoft Excel, WordPerfect, or Adobe PDF file formats only.
Copies of the specifications document, including the Environmental Assessment (EA) and Initial Regulatory Flexibility Analysis (IRFA) are available upon request from the Mid-Atlantic Fishery Management Council, 800 North State Street, Suite 201, Dover, DE 19901. The specifications document is also accessible via the Internet at:
Douglas Potts, Fishery Policy Analyst, 978–281–9341.
Regulations implementing the Tilefish Fishery Management Plan (FMP) appear at 50 CFR part 648, subparts A and N. The FMP (section 1.2.1.2) states that, after a “benchmark” stock assessment, conducted at the Northeast Fisheries Science Center (NEFSC) sponsored stock assessment workshop (SAW), and subsequent review by the stock assessment review committee (SARC), from which the biological reference points for tilefish could change, a change to the quota may be warranted. The 58th SAW met in December 2013, assessed the tilefish stock using updated information and a new analytical model, and concluded that the stock is not overfished and overfishing is not occurring. Fishing mortality (F) was estimated to be 74 percent of the F that allows maximum sustainable yield (F
The Mid-Atlantic Fishery Management Council's Scientific and Statistical Committee (SSC) met in March 2014 to review the assessment results and other available scientific information and make recommendations for an overfishing limit (OFL) and acceptable biological catch (ABC) for up to a 3-year period. The SSC accepted the new stock assessment model, and identified the tilefish assessment as Level 3 under the Council's tiered ABC control rule structure. The previous stock assessment had been considered Level 4. The change in assessment level led the SSC to apply a different requirement of the Council's risk policy for setting ABC relative to the OFL. This change resulted in a lower recommended ABC, and therefore a lower harvest quota, than has been used in this fishery since 2001.
The Council's Tilefish Monitoring Committee met to consider the SSC's recommendations as well as additional information about the fishery, including recent average estimated discards of tilefish, to recommend annual catch limit (ACL), annual catch target (ACT), and total allowable landings (TAL) for the same 3-year time period. The Monitoring Committee recommended for each of the three years that the ACL and ACT be set equal to the ABC. In determining a recommended TAL, the Monitoring Committee incorporated a deduction of 5 mt from the ACT to account for discards of tilefish across all fisheries. This amount represents the recent average discards calculated from observer data.
The Council met on April 9, 2014, to consider the SSC's and Monitoring Committee's recommendations, receive public comments, and to formalize recommendations to NMFS for the 2015–2017 catch limit specifications, management measures, and research set-aside amounts. The Council's quota recommendations are listed in Table 1.
The Council recommended the same quota for 2017 as proposed for 2016, because, even though stock assessment projections indicate that the quota could be increased slightly, the Tilefish FMP has used a constant landings management strategy since it was implemented in 2001. The tilefish industry has been supportive of this approach, and stated they benefit from the predictability that a stable quota provides. At the urging of the tilefish industry, and because the lower harvest in 2017 would likely support further growth in this stock, the Council decided that the value of quota stability between 2016 and 2017 outweighed the potential gain from the small amount of quota increase that could have been realized in 2017. As in previous years, the Council opted not to allocate any tilefish quota for research set-aside. If these recommended quotas are implemented, the Council would have
The regulation at § 648.292(b)(1) specifies that the TAL for each fishing year will be 1.995 million lb (905,172 kg), unless modified by the specifications process. This default value in the regulations may become confusing, because this action is proposing different TALs for 2015, 2016, and 2017 that would not appear in the regulations. To avoid confusion this action would revise the regulations to remove this reference to a specific TAL value.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this proposed rule is consistent with the Tilefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Council prepared a draft EA for this action that analyzes the impacts of this proposed rule. A copy of the draft EA is available from the Federal e-Rulemaking portal
The Council prepared an initial regulatory flexibility analysis (IRFA), as required by section 603 of the Regulatory Flexibility Act (RFA), which is included in the EA for this action and supplemented by information contained in the preamble of this proposed rule. The IRFA describes the economic impact that this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY of the proposed rule. A summary of the analysis follows. A copy of this analysis is available from the Council (see
The Small Business Administration (SBA) defines a small business in the commercial harvesting sector as a firm with receipts (gross revenues) of up to $20.5 million for finfish businesses. A small business in the recreational fishery (i.e., party or charter vessel operations) is a firm with receipts of up to $7.5 million. The proposed measures regarding the 2015, 2016, and 2017 tilefish quotas could affect any vessel holding an active Federal permit for tilefish. Vessel permit data shows that in 2013 there were 1,827 vessels that held a valid commercial tilefish permit and 393 vessels held a valid party/charter tilefish permit. However, not all of those vessels are active participants in the fishery. According to dealer-reported landings data, 141 vessels landed tilefish in fishing year 2013. In addition, according to vessel trip report data, 25 party/charter vessels reported catching tilefish in 2013.
Some of the vessels with tilefish permits may be considered to be part of the same firm because they may have the same owners. Firms are classified as finfish or for-hire firms based on the activity from which they derive the most revenue. All of the party/charter firms fall within the definition of a small business according to the 2010–2012 average revenues; however some of these firms also landed tilefish commercially. If the contribution of tilefish commercial receipts is more than 50 percent of the total, the party/charter firm is considered a commercial operation. Using the $20.5 million cutoff for commercial finfish firms, there are 190 firms that are small and 4 that are large assuming average revenues for the 2010–2012 period. The majority of the permitted vessels readily fall within the definition of small business.
There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action. In addition, NMFS is not aware of any relevant Federal rule that may duplicate, overlap, or conflict with this proposed rule.
In general terms, the active tilefish fishery participants derive a small share of gross receipts from the tilefish fishery. However, for small entities generating on average $10,000 or more of their total revenues from tilefish revenues, a large number of the active participants generate a large share of gross receipts from the tilefish fishery. The category of small entities likely to be affected by the proposed actions is that of IFQ shareholders and fishermen in the commercial fishery. The overall commercial tilefish quota is allocated to IFQ shareholders, which are allocated 95 percent of the overall quota and incidental fishery vessels which are allocated 5 percent of the overall quota. IFQ vessels directly target tilefish using bottom longline gear, and incidental vessels land tilefish incidentally when targeting other species. Most of the incidental landings occur with bottom trawl gear. However, for the incidental fishery, changes in quotas are not expected to affect the effort of vessels that land tilefish incidentally (e.g., otter trawl vessels) as the catch and/or landings of tilefish incidentally occur as these vessels target other species and their fishing behavior is not expected to be driven by the level of the incidental tilefish quota.
The IRFA addressed three alternatives (including a no action/status quo alternative) for the 2015, 2016, and 2017 tilefish fishing years. All quota alternatives considered in this analysis are based on various commercial harvest levels for tilefish. Procedurally, the economic effects of the quota alternatives were estimated using four steps. First, the dealer-reported landings data were queried to identify all vessels that landed at least one pound of tilefish in fishing year 2013 (November 1, 2012—October 31, 2013). The second step was to estimate total revenues from all species landed by each vessel during fishing year 2013. This estimate provides the basis from which subsequent quota changes and their associated effects on vessel revenues were compared.
The third step was to deduct or add, as appropriate, the expected change in vessel revenues depending upon which of the quota scenarios were evaluated. This was accomplished by estimating proportional reductions or increases in the quota scenarios for 2015 versus the base quota year 2013. For 2016 and 2017, proportional reductions between the 2016–2017 measures and the status quo (no action) alternative for 2016–2017 were used to assess revenue changes. For the purpose of estimating the 2015, 2016, and 2017 quotas and revenue changes, the following assumptions were made: (a) The industry will fully harvest, and not exceed, the 2014 quota; and (b) the entire tilefish quota allocations will be taken in 2015, 2016, and 2017. The fourth step was to compare the estimated 2015, 2016, and 2017 base revenues for every vessel to assess potential changes.
The proposed action (Alternative 1) would set commercial tilefish quotas for 2015, 2016, and 2017 at 1.755 million lb (796 mt), 1.887 million lb (856 mt), and 1.887 million lb (856 mt), respectively. Under Alternative 1 for 2015–2017, it is expected that the number of vessels impacted by revenue losses on the order of 5 percent or less (relative to the status quo) would range from 134 (in year 2015) to 138 (in each year 2016 and 2017). In addition, it is expected that that the number of vessels impacted by revenue losses on the order of 5 percent
Overall, it is expected that Alternative 1 for 2015–2017 would result in a combined decrease in revenue of $1,567,979 relative to the status quo quota for 2015–2017. Because the overall dependence on tilefish for most of the vessels projected to incur revenue losses is small (83 to 97 percent of the vessels), it is expected that the potential decrease in revenue stated above would more greatly affect the 11 vessels that are more dependent on tilefish (i.e., IFQ vessels) than the vessels that incidentally catch tilefish. On average, each IFQ vessel that landed tilefish during fishing year 2013 (11 vessels) would incur a total reduction in revenues of $135,416 under Alternative 1 over the 3-year period, when compared to the status quo alternative for 2015–2017; and each incidental vessel (130 vessels) would incur a $603 reduction in revenues over the same 3-year period.
Alternative 2 is the status quo alternative, and contains commercial quotas of 1.995 million lb (905 mt) for tilefish for each 2015, 2016, and 2017. Under this alternative, the tilefish specifications would result in no change in commercial landings when compared to current conditions. Therefore, commercial landings for tilefish would be expected to be the same relative to 2014 quota. As such, it is not expected that revenue changes would occur under this alternative when compared to existing conditions.
Alternative 3 would set commercial tilefish quotas for 2015, 2016, and 2017 at 1.755 million lb (796 mt), 1.887 million lb (856 mt), and 1.938 million lb (879 mt), respectively. Under Alternative 3 for 2015–2017, it is expected that the number of vessels impacted by revenue losses on the order of 5 percent or less (relative to the status quo) would range from 138 (in year 2016) to 141 (in 2017). In addition, it is expected that that the number of vessels impacted by revenue losses on the order of 5 percent or more would range from 7 (in year 2015) to 3 (in year 2016; no vessels were projected to incur revenue losses of 5 percent or more in 2017). All vessels with revenue reduction of 5 percent or greater are from New Jersey and/or New York, with the largest number of impacted vessels homeported in Suffolk County, NY.
Overall, it is expected that Alternative 3 for 2015–2017 would result in a combined decrease in revenue of $1,393,547 relative to the status quo quota for 2015–2017. Because the overall dependence on tilefish for most of the vessels projected to incur revenue losses is small, it is expected that the potential decrease in revenue stated above would more greatly affect the 11 vessels that are more dependent on tilefish (i.e., IFQ vessels) than the vessels that incidentally catch tilefish. On average, each IFQ vessel that landed tilefish during fishing year 2013 (11 vessels) would incur a total reduction in revenues of $120,352 under Alternative 3 over the 3-year period, when compared to the status quo alternative for 2015–2017; and each incidental vessel (130 vessels) would incur a $536 reduction in revenues over the same 3-year period.
For both Alternative 1 and Alternative 3 projected changes in ex-vessel gross revenues associated with the quotas in 2015–2017 relative to the status quo are based on assumed static prices for tilefish. However, it is possible that given the potential decrease in landings for tilefish, the price for this species may increase, holding all other factors constant. If this occurs, an increase in the price for tilefish may mitigate some of the revenue losses associated with lower quantity of tilefish quota availability.
The Council recommended Alternative 1 for 2015, 2016, and 2017, over Alternatives 2 and 3 because it is projected to prevent overfishing in 2015 and 2016, while allowing quota stability between 2016 and 2017, which the tilefish industry considers important in order to promote stability in price and supply in the marketplace. Alternative 2 was not recommended by the Council because it would exceed the catch level recommendations of the Council's SSC, and would therefore be inconsistent with the requirements of the Magnuson-Stevens Act. Alternative 3 was not selected because it would not support the consistency of quota/landings from year to year that the tilefish industry considers important to maintaining price and supply stability in this fishery.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:
16 U.S.C. 1801
(b)
(2) The sum of the TAL and the estimated discards shall be less than or equal to the ACT.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by October 3, 2014 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725–17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Agricultural Marketing Service, USDA.
Notice of public meeting.
Pursuant to the Federal Advisory Committee Act, the Agricultural Marketing Service (AMS) is announcing a meeting of the Fruit and Vegetable Industry Advisory Committee (Committee). The meeting is being convened to examine the full spectrum of fruit and vegetable issues and provide recommendations and ideas to the Secretary of Agriculture on how the U.S. Department of Agriculture (USDA) can tailor programs and services to better meet the needs of the U.S. produce industry. The meeting is open to the public. This notice sets forth the schedule and location for the meeting.
Monday, September 29, 2014, from 8:30 a.m. to 5:00 p.m., and Tuesday, September 30, 2014, from 8:30 a.m. to 1:00 p.m.
The Committee meeting will be held at the Hyatt Regency Crystal City Hotel, at 2799 Jefferson Davis Highway, Arlington, Virginia 22202.
Marlene Betts, Acting Designated Federal Official, USDA, AMS, Fruit and Vegetable Program; Telephone: (202) 720–3334; Email:
Pursuant to the Federal Advisory Committee Act (FACA)(5 U.S.C. App.), the Secretary of Agriculture (Secretary) established the Committee in 2001, to examine the full spectrum of issues faced by the fruit and vegetable industry and to provide suggestions and ideas to the Secretary on how USDA can tailor its programs to meet the fruit and vegetable industry's needs. The Committee was re-chartered in July 2013, for a two-year period.
A notice soliciting nominations was published in the
AMS Deputy Administrator for the Fruit and Vegetable Program, Charles Parrott, serves as the Committee's Executive Secretary. Representatives from USDA mission areas and other government agencies affecting the fruit and vegetable industry are called upon to participate in the Committee's meetings as determined by the Committee. AMS is giving notice of the Committee meeting to the public so that they may attend and present their recommendations. The meeting is open to the public. Reference to dates and addresses section for the time and place of the meeting.
Agenda items will include, but are not limited to, welcome and introductions, administrative matters, selection of Committee Chairman and Vice-Chairman, and discussions by the Committee on the full spectrum of issues facing the fruit and vegetable industry. The Committee will determine the areas that they would like to address concerning the Department's programs.
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the new information collection
Comments must be received in writing on or before November 3, 2014 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Lynne Westphal, USDA Forest Service, 1033 University Place, Suite 360, Evanston, IL 60201.
Comments also may be submitted via facsimile to 847–866–9506 or by email to
Comments submitted in response to this notice may be made available to the public through relevant Web sites and upon request. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email comment, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. Please note that responses to this public comment request containing any routine notice about the confidentiality of the communication will be treated as public comments that may be made available to the public notwithstanding the inclusion of the routine notice.
The public may inspect the draft supporting statement and/or comments received at USDA Forest Service, 1033 University Place, Suite 360, Evanston, IL during normal business hours. Visitors are encouraged to call ahead to 847–866–9311 to facilitate entry to the building. The public may request an electronic copy of the draft supporting statement and/or any comments received be sent via return email. Requests should be emailed to
Lynne Westphal at 847–866–9311 extension 11. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 twenty-four hours a day, every day of the year, including holidays.
In urban areas, the roles of civic environmental stewards and their levels of engagement and commitment are often not understood by land managers and other decision makers. This means that the valuable services they provide are not appreciated and built on to full advantage. In addition, stewards themselves may not be aware of others doing similar work in their area so there may be lost opportunities for collaboration between groups.
The purpose of this research is to gather information on civic stewardship groups and their efforts such as where
There are three phases to a STEW–MAP project:
• Phase One (Census) is a census of stewardship groups in the target city or region, essentially putting together a master list of known stewardship groups and their contact information.
• Phase Two (Survey) is a survey which is distributed to all of the organizations identified in Phase One to collect information about what they work on, how their group is structured, where they work, and what other groups they collaborate with.
• Phase Three (Follow-Up Interviews) is follow-up interviews with key longstanding organizations identified during Phase Two to collect more detailed information about their organizational histories.
A primary goal of STEW–MAP is to visualize stewardship activities across the urban landscape. The geographic information provided by stewardship groups on the survey (Phase Two) will allow the researchers to do a spatial analysis of where stewardship groups are working, identify “gaps” where little to no stewardship is being done, and provide locally relevant geographic information like what kinds of stewardship groups are working in particular places. This geographic information will be displayed on maps to show stewards, local land managers, policy makers, and other interested stakeholders how stewardship work is distributed across the region with the goal of encouraging collaboration, building innovative partnerships, increasing organizational capacities, and generally making stewardship efforts more effective.
All of the information from STEW–MAP will help planners, natural resource decision makers, land managers, and the general public work across property jurisdictions, management regimes and political boundaries to conserve, protect, and manage urban natural resources effectively. It will also be used to enhance local resource management efforts by helping public officials, land managers, and civic stewards connect to local stewardship groups.
STEW–MAP is being led by researchers from the Forest Service in partnership with researchers from universities and nongovernment organizations. The exact makeup of the research team will vary from location to location where STEW–MAP is conducted. The Forest Service, Research and Development branch is authorized to conduct basic scientific research to improve the health of forests and rangelands involving State, Federal, Tribal agencies, and private landowners across multiple jurisdictions including in urban areas. The study is aligned with the U.S. Department of Agriculture policy of an “all-lands approach” to resource management, which “requires land managers to work across jurisdictions and land-use types, viewing forests landscapes as an integrated whole, both ecologically and socially” (National Report on Sustainable Forests, 2010). This all-lands approach applies to urban ecosystems as well. Our project goals are consistent with the Forest Service, Urban and Community Forestry (UCF) program, which focus on urban forest ecosystems and the role of stewardship and trail connections to parks and public lands that promote health and sustainability for urban residents. This study seeks to identify opportunities for stewardship organizations to better collaborate and, thus, be more effective in the stewardship of urban natural areas.
Due to local geographical and/or cultural differences, and to meet the needs of any particular collaborative effort, we anticipate that there may be changes to the survey and interview questions and perhaps in methodology to accommodate the unique requirements of individual communities; therefore, we are submitting this request for a Generic Information Collection Clearance for the information collection activities associated with the STEW–MAP program in order to afford us the flexibility of tailoring the information collection activities and instruments to each location, and to apply lessons learned from previous STEW–MAP efforts and locations to future efforts and locations.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.
Forest Service, USDA.
Notice of meeting.
The Hood/Willamette Resource Advisory Committee (RAC) will meet in Sandy, Oregon. The Committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) (Pub. L. 110–343) and operates in compliance with the Federal Advisory Committee Act of 1972 (5 U.S.C. App 2). The purpose of the Committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the Title II of the Act. The meeting is open to the public. Additional information concerning the Committee, can be found by visiting the Committee's Web site at:
The meeting will be held September 30, 2014 at 10:00 a.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person
The meeting will be held at Mt. Hood National Forest Headquarters Office, 16400 Champion Way, Sandy, Oregon. Written comments may be submitted as described under
Connie Athman, Designated Federal Offical, by phone at (503) 668–1672 or via email at
The purpose of the meeting is to experience a field trip review of projects authorized under Title II of the Act.
The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing within 7 days of the meeting to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Written comments and time requests for oral comments must be sent to Connie Athman, Mt. Hood National Forest, 16400 Champion Way, Sandy, Oregon 97055; by email to
An application has been submitted to the Foreign-Trade Zones (FTZ) Board (the Board) by the Northeastern Vermont Development Association, grantee of FTZ 286, requesting authority to expand its service area under the alternative site framework (ASF) adopted by the Board (15 CFR Sec. 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of general-purpose zones and can permit significantly greater flexibility in the designation of new “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the Board's standard 2,000-acre activation limit for a zone. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S. C. 81a–81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on August 27, 2014.
FTZ 286 was approved by the Board on March 22, 2013 (Board Order 1890, 78 FR 20295–20296, 04–04–2013). The zone currently has a service area that includes the Counties of Caledonia, Essex and Orleans Counties.
The applicant is requesting authority to expand the service area of the zone to include Lamoille County, as described in the application. If approved, the grantee would be able to serve sites throughout the expanded service area based on companies' needs for FTZ designation. The application indicates that the proposed expanded service area is adjacent to the Derby Line Customs and Border Protection port of entry.
In accordance with the Board's regulations, Kathleen Boyce of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board. Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is November 3, 2014. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to November 17, 2014.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room”section of the Board's Web site, which is accessible via
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is rescinding its administrative review of the antidumping duty order on certain preserved mushrooms (mushrooms) from India for the period February 1, 2013, through January 31, 2014 (POR).
Kate Johnson or Terre Keaton Stefanova, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–4929 or (202) 482–1280, respectively.
On February 3, 2014, the Department published in the
On February 28, 2014, in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(b), the Department received
On April 1, 2014, the Department published in the
The Department stated in its initiation of this review that it intended to rely on U.S. Customs and Border Protection (CBP) data to select respondents.
On April 4, 2014, we sent a “No Shipments Inquiry” to CBP to confirm that there were no shipments or entries of mushrooms from India during the POR from the companies subject to review. We received no information from CBP to contradict the results of our data query.
On April 17, 2014, we received a no shipment claim for the POR from Weikfield.
On May 21, 2014, Sunny Dell Food Inc. timely withdrew its request for a review of all five companies named above. On June 3, 2014, Monterey Mushrooms timely withdrew its request for a review of Agro Dutch, Hindustan, Transchem and Weikfield.
On June 6, 2014, Monterey Mushrooms placed on the record shipment manifest data that suggested that Himalya may have exported subject merchandise to the United States during the POR. Monterey Mushrooms requested that the Department work with CBP to determine whether Himalya, in fact, exported subject merchandise to the United States during the POR and, if appropriate, to conduct a review of Himalya's POR shipments
On June 30, 2014, we rescinded the review, in part, with respect to Agro Dutch, Hindustan, Transchem, and Weikfield.
On August 12, 2014, we issued a memorandum stating that because the CBP data query showed there are no suspended entries from Himalya subject to this review upon which to assess duties, we intend to rescind this review.
It is the Department's practice to rescind an administrative review pursuant to 19 CFR 351.213(d)(3) when there are no reviewable entries of subject merchandise during the POR for which liquidation is suspended.
This notice serves as a final reminder to importers for whom this review is being rescinded of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is published in accordance with section 751 of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) has conducted an administrative review of the countervailing duty order on certain oil country tubular goods (OCTG) from the People's Republic of China (PRC). On February 25, 2014, the Department published the Preliminary Results for this administrative review.
Christopher Siepmann, Sergio Balbontin, or Joseph Shuler AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–7958, (202) 482–6478, or (202) 482–1293 respectively.
The scope of the order consists of OCTG. The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.31.10, 7304.29.31.20, 7304.29.31.30, 7304.29.31.40, 7304.29.31.50, 7304.29.31.60, 7304.29.31.80, 7304.29.41.10, 7304.29.41.20, 7304.29.41.30, 7304.29.41.40, 7304.29.41.50, 7304.29.41.60, 7304.29.41.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.61.15, 7304.29.61.30, 7304.29.61.45, 7304.29.61.60, 7304.29.61.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.29.10.30, 7306.29.10.90, 7306.29.20.00, 7306.29.31.00, 7306.29.41.00, 7306.29.60.10, 7306.29.60.50, 7306.29.81.10, and 7306.29.81.50.
The OCTG coupling stock covered by the order may also enter under the following HTSUS item numbers: 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.39.00.36, 7304.39.00.40, 7304.39.00.44, 7304.39.00.48, 7304.39.00.52, 7304.39.00.56, 7304.39.00.62, 7304.39.00.68, 7304.39.00.72, 7304.39.00.76, 7304.39.00.80, 7304.59.60.00,, 7304.59.80.15, 7304.59.80.20, 7304.59.80.25, 7304.59.80.30, 7304.59.80.35, 7304.59.80.40, 7304.59.80.45, 7304.59.80.50, 7304.59.80.55, 7304.59.80.60, 7304.59.80.65, 7304.59.80.70, and 7304.59.80.80. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description remains dispositive.
A full description of the scope of the
The Decision Memorandum is a public document and is on file electronically
All issues raised in parties' briefs are addressed in the Decision Memorandum. A list of the issues raised is attached to this notice as an appendix.
The Department has conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our conclusions, including our decision to apply facts otherwise available with an adverse inference,
As a result of this review, we determine a net subsidy rate of 59.29 percent for Wuxi and a net subsidy rate of 1.49 percent for Jiangsu Chengde for the period January 1, 2012, through December 31, 2012.
Upon issuance of these final results, the United States Customs and Border Protection (CBP) shall assess countervailing duties on all appropriate entries covered by this review. We intend to issue instructions to CBP 15 days after publication of these final results.
The Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amount listed above on shipments of subject merchandise by Wuxi or Jiangsu Chengde entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed companies, we will instruct CBP to continue to collect cash deposits at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to companies covered by the order, but not examined in this review, are those established in the most recently completed segment of the proceeding for each company.
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is amending the final determination of sales at less than fair value in the antidumping duty investigation of certain oil country tubular goods (OCTG) from Ukraine covering the period of investigation (POI) July 1, 2012, through June 30, 2013. For information on the amended weighted-average dumping margins, see the “Amended Final Determination” section of this notice.
David Lindgren, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3870.
On July 18, 2014, the Department published in the
As noted in the
The merchandise covered by the investigation is certain OCTG, which are hollow steel products of circular cross-section, including oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, regardless of end finish (
The Department's regulations at 19 CFR 351.224(f) defines a “ministerial error” as an error “in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.”
In accordance with 19 CFR 351.224(e), we are amending the final affirmative determination of sales at less than fair value by revising the weight-averaged dumping margin calculated for Interpipe. Furthermore, because the all-others rate was derived entirely from Interpipe's margin,
We determine the revised weighted-average dumping margins are as follows:
In light of the
In accordance with section 735(d) of the Act, we have notified the International Trade Commission of our amended final determination.
We are issuing and publishing this determination and notice pursuant to sections 735(d), 735(e), and 777(i) of the Act.
The merchandise covered by the investigation is certain oil country tubular goods (OCTG), which are hollow steel products of circular cross-section, including oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, regardless of end finish (
Excluded from the scope of the investigation are: Casing or tubing containing 10.5 percent or more by weight of chromium; drill pipe; unattached couplings; and unattached thread protectors.
The merchandise subject to the investigation is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.31.10, 7304.29.31.20, 7304.29.31.30, 7304.29.31.40, 7304.29.31.50, 7304.29.31.60, 7304.29.31.80, 7304.29.41.10, 7304.29.41.20, 7304.29.41.30, 7304.29.41.40, 7304.29.41.50, 7304.29.41.60, 7304.29.41.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.61.15, 7304.29.61.30, 7304.29.61.45, 7304.29.61.60, 7304.29.61.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.29.10.30, 7306.29.10.90, 7306.29.20.00, 7306.29.31.00, 7306.29.41.00, 7306.29.60.10, 7306.29.60.50, 7306.29.81.10, and 7306.29.81.50.
The merchandise subject to the investigation may also enter under the following HTSUS item numbers: 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.39.00.36, 7304.39.00.40, 7304.39.00.44, 7304.39.00.48, 7304.39.00.52, 7304.39.00.56, 7304.39.00.62, 7304.39.00.68, 7304.39.00.72, 7304.39.00.76, 7304.39.00.80, 7304.59.60.00, 7304.59.80.15, 7304.59.80.20, 7304.59.80.25, 7304.59.80.30, 7304.59.80.35, 7304.59.80.40, 7304.59.80.45, 7304.59.80.50, 7304.59.80.55, 7304.59.80.60, 7304.59.80.65, 7304.59.80.70, 7304.59.80.80, 7305.31.40.00, 7305.31.60.90, 7306.30.50.55, 7306.30.50.90, 7306.50.50.50, and 7306.50.50.70.
The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the investigation is dispositive.
National Institute of Standards and Technology, Department of Commerce.
Notice.
This notice lists the membership of the National Institute of Standards and Technology Performance Review Board (NIST PRB) and supersedes the list published on August 30, 2013.
The changes to the NIST PRB membership list announced in this notice are effective on September 3, 2014.
Didi Hanlein at the National Institute of Standards and Technology, (301) 975–3000 or by email at
The National Institute of Standards and Technology Performance Review Board (NIST PRB or Board) reviews performance appraisals, agreements, and recommended actions pertaining to employees in the Senior Executive Service and ST–3104 employees. The Board makes recommendations to the appropriate appointing authority concerning such matters so as to ensure the fair and equitable treatment of these individuals.
This notice lists the membership of the NIST PRB and supersedes the list published in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public workshops.
Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in October, November, and December of 2014. Certain fishermen and shark dealers are required to attend a workshop to meet regulatory requirements and to maintain valid permits. Specifically, the Atlantic Shark Identification Workshop is mandatory for all federally permitted Atlantic shark dealers. The Protected Species Safe Handling, Release, and Identification Workshop is mandatory for vessel owners and operators who use bottom longline, pelagic longline, or gillnet gear, and who have also been issued shark or swordfish limited access permits. Additional free workshops will be conducted during 2015 and will be announced in a future notice.
The Atlantic Shark Identification Workshops will be held on October 9, November 6, and December 4, 2014.
The Protected Species Safe Handling, Release, and Identification Workshops will be held on October 14, October 16, November 18, November 19, December 10, and December 17, 2014.
See
The Atlantic Shark Identification Workshops will be held in Boston, MA; Mount Pleasant, SC; and Clearwater, FL.
The Protected Species Safe Handling, Release, and Identification Workshops will be held in Warwick, RI; Key Largo, FL; Kitty Hawk, NC; Palm Coast, FL; Kenner, LA; and Ronkonkoma, NY.
See
Rick Pearson by phone: (727) 824–5399, or by fax: (727) 824–5398.
The workshop schedules, registration information, and a list of frequently asked questions regarding these workshops are posted on the Internet at:
Since January 1, 2008, Atlantic shark dealers have been prohibited from receiving, purchasing, trading, or bartering for Atlantic sharks unless a valid Atlantic Shark Identification Workshop certificate is on the premises of each business listed under the shark dealer permit that first receives Atlantic sharks (71 FR 58057; October 2, 2006). Dealers who attend and successfully complete a workshop are issued a certificate for each place of business that is permitted to receive sharks. These certificate(s) are valid for 3 years. Approximately 101 free Atlantic Shark Identification Workshops have been conducted since January 2007.
Currently, permitted dealers may send a proxy to an Atlantic Shark Identification Workshop. However, if a dealer opts to send a proxy, the dealer must designate a proxy for each place of business covered by the dealer's permit which first receives Atlantic sharks. Only one certificate will be issued to each proxy. A proxy must be a person who is currently employed by a place of business covered by the dealer's permit; is a primary participant in the identification, weighing, and/or first receipt of fish as they are offloaded from a vessel; and who fills out dealer reports. Atlantic shark dealers are prohibited from renewing a Federal shark dealer permit unless a valid Atlantic Shark Identification Workshop certificate for each business location that first receives Atlantic sharks has been submitted with the permit renewal application. Additionally, trucks or other conveyances that are extensions of a dealer's place of business must possess a copy of a valid dealer or proxy Atlantic Shark Identification Workshop certificate.
1. October 9, 2014, 12 p.m.–4 p.m., Hampton Inn & Suites, 811 Massachusetts Avenue, Boston, MA 02118.
2. November 6, 2014, 12 p.m.–4 p.m., Hampton Inn & Suites, 1104 Isle of Palms Connector, Mount Pleasant, SC 29464.
3. December 4, 2014, 12 p.m.–4 p.m., LaQuinta Inn & Suites, 5000 Lake Boulevard, Clearwater, FL 33760.
To register for a scheduled Atlantic Shark Identification Workshop, please contact Eric Sander at
To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items to the workshop:
• Atlantic shark dealer permit holders must bring proof that the attendee is an owner or agent of the business (such as articles of incorporation), a copy of the applicable permit, and proof of identification.
• Atlantic shark dealer proxies must bring documentation from the permitted dealer acknowledging that the proxy is attending the workshop on behalf of the permitted Atlantic shark dealer for a specific business location, a copy of the appropriate valid permit, and proof of identification.
The Atlantic Shark Identification Workshops are designed to reduce the number of unknown and improperly identified sharks reported in the dealer
Since January 1, 2007, shark limited-access and swordfish limited-access permit holders who fish with longline or gillnet gear have been required to submit a copy of their Protected Species Safe Handling, Release, and Identification Workshop certificate in order to renew either permit (71 FR 58057; October 2, 2006). These certificate(s) are valid for 3 years. As such, vessel owners who have not already attended a workshop and received a NMFS certificate, or vessel owners whose certificate(s) will expire prior to the next permit renewal, must attend a workshop to fish with, or renew, their swordfish and shark limited-access permits. Additionally, new shark and swordfish limited-access permit applicants who intend to fish with longline or gillnet gear must attend a Protected Species Safe Handling, Release, and Identification Workshop and submit a copy of their workshop certificate before either of the permits will be issued. Approximately 184 free Protected Species Safe Handling, Release, and Identification Workshops have been conducted since 2006.
In addition to certifying vessel owners, at least one operator on board vessels issued a limited-access swordfish or shark permit that uses longline or gillnet gear is required to attend a Protected Species Safe Handling, Release, and Identification Workshop and receive a certificate. Vessels that have been issued a limited-access swordfish or shark permit and that use longline or gillnet gear may not fish unless both the vessel owner and operator have valid workshop certificates onboard at all times. Vessel operators who have not already attended a workshop and received a NMFS certificate, or vessel operators whose certificate(s) will expire prior to their next fishing trip, must attend a workshop to operate a vessel with swordfish and shark limited-access permits that uses longline or gillnet gear.
1. October 14, 2014, 9 a.m.–5 p.m., Hilton Garden Inn, 1 Thurber Street, Warwick, RI 02886.
2. October 16, 2014, 9 a.m.–5 p.m., Holiday Inn, 99701 Overseas Highway, Key Largo, FL 33037.
3. November 18, 2014, 9 a.m.–5 p.m., Hilton Garden Inn, 5353 North Virginia Dare Trail, Kitty Hawk, NC 27949.
4. November 19, 2014, 9 a.m.–5 p.m., Hilton Garden Inn, 55 Town Center Boulevard, Palm Coast, FL 32164.
5. December 10, 2014, 9 a.m.–5 p.m., Hilton Hotel, 901 Airline Drive, Kenner, LA 70062.
6. December 17, 2014, 9 a.m.–5 p.m., Clarion Inn, 3845 Veterans Memorial Highway, Ronkonkoma, NY 11779.
To register for a scheduled Protected Species Safe Handling, Release, and Identification Workshop, please contact Angler Conservation Education at (386) 682–0158.
To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items with them to the workshop:
• Individual vessel owners must bring a copy of the appropriate swordfish and/or shark permit(s), a copy of the vessel registration or documentation, and proof of identification.
• Representatives of a business-owned or co-owned vessel must bring proof that the individual is an agent of the business (such as articles of incorporation), a copy of the applicable swordfish and/or shark permit(s), and proof of identification.
• Vessel operators must bring proof of identification.
The Protected Species Safe Handling, Release, and Identification Workshops are designed to teach longline and gillnet fishermen the required techniques for the safe handling and release of entangled and/or hooked protected species, such as sea turtles, marine mammals, and smalltooth sawfish. In an effort to improve reporting, the proper identification of protected species will also be taught at these workshops. Additionally, individuals attending these workshops will gain a better understanding of the requirements for participating in these fisheries. The overall goal of these workshops is to provide participants with the skills needed to reduce the mortality of protected species, which may prevent additional regulations on these fisheries in the future.
16 U.S.C. 1801
Department of Defense.
Notice; revision.
On May 19, 2014 (79 FR 28688–28689), the Department of Defense published a notice titled “Comprehensive Review of the Military Justice System.” Subsequent to the publication of that notice, the Department extended the deadline for the Military Justice Review Group (MJRG) reports recommending changes to the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM). This notice is being published with revisions to the notice of May 19, 2014. The deadline for the MJRG report recommending changes to the UCMJ has been extended to March 25, 2015, and the deadline for the report recommending changes to the MCM has been extended to September 21, 2015.
You may forward submissions by either of the following methods:
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Mr. William Sprance, DoD Office of the General Counsel, 1600 Defense Pentagon, Washington DC 20301–1600; (703) 571–9457.
Comments submitted via email should be in one of the following formats: Adobe Acrobat or Microsoft Word. Materials received will not be returned, and any comments or submission received may become available to the public.
Department of the Air Force, Department of Defense.
Air Mobility Command (AMC) is providing notice that it intends to change Domestic Air Tender policy within the MFTURP NO. 1 to restrict registration in the FCRP for Domestic Air Tenders to Civil Reserve Air Fleet (CRAF) Transportation Service Providers (TSP) only. CRAF TSPs may, if they choose to, act through a freight forwarder, logistics company, or broker. This change only affects domestic air tender TSPs such as airlines, logistics companies, freight forwarders, and brokers. The purpose of the new policy is to strengthen the CRAF program in support of the national defense airlift objectives to ensure military and civil airlift resources are capable of meeting the defense mobilization and deployment requirements supporting U.S. Defense & Foreign Policy.
Comments must be received by HQ AMC/A4TC NLT (30) days after the post date.
Submit comments to Air Mobility Command, Directorate of Logistics, Cargo & Traffic Management Branch (A4TC), Commercial Services Team, 402 Scott Drive, Unit 2A2, Scott AFB, IL 62225–5308. Electronic comments or requests for additional information may be sent by email to:
AMC/A4TC, Commercial Services Team, (618) 229–4684, THOMAS J. TRUMBULL II, Colonel, USAF, Chief Air Transportation Division Directorate of Logistics.
Institute of Education Sciences/National Center for Education Statistics (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before November 3, 2014.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Kashka Kubzdela, 202–502–7411.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Institute of Education Sciences/National Center for Education Statistics (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before October 3, 2014.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Elizabeth Warner, 202–208–7169.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Institute of Education Sciences, National Center for Education Statistics (IES–NCES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before October 3, 2014.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Kashka Kubdzela, 202–502–7411.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Science, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Fusion Energy Sciences Advisory Committee (FESAC). The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of these meetings be announced in the
September 22, 2014; 8:30 a.m. to 6:00 p.m. September 23, 2014; 8:30 a.m. to 12:00 noon
Gaithersburg Marriott Washingtonian Center, 9751 Washingtonian Boulevard, Gaithersburg, MD 20878.
Edmund J. Synakowski, Designated Federal Officer, Office of Fusion Energy Sciences; U.S. Department of Energy; 1000 Independence Avenue SW., Washington, DC 20585–1290. Telephone: (301) 903–4941.
Remote attendance of the FESAC meeting will be possible via ReadyTalk. Instructions can be found on FESAC Web site:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB) Chairs. 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 17, 2014; 8:00 a.m.–5:00 p.m. Thursday, September 18, 2014; 8:00 a.m.–12:15 p.m.
The Shilo Inn Convention Center, 780 Lindsay Boulevard, Idaho Falls, Idaho 83402.
David Borak, Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; Phone: (202) 586–9928.
Office of Science, Department of Energy.
Notice of partially closed meeting.
This notice sets forth the schedule and summary agenda for a partially closed meeting of the President's Council of Advisors on Science and Technology (PCAST), and describes the functions of the Council. Notice of this meeting is required under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2.
September 19, 2014, 9:00 a.m. to 12:00 p.m.
National Academy of Sciences, (Lecture Room), 2101 Constitution Avenue NW., Washington, DC.
Information regarding the meeting agenda, time, location, and how to register for the meeting is available on the PCAST Web site at:
The President's Council of Advisors on Science and Technology (PCAST) is an advisory group of the nation's leading scientists and engineers, appointed by the President to augment the science and technology advice available to him from inside the White House, cabinet departments, and other Federal agencies. See the Executive Order at
The public comment period for this meeting will take place on September 19, 2014 at a time specified in the meeting agenda posted on the PCAST Web site at
Please note that because PCAST operates under the provisions of FACA, all public comments and/or presentations will be treated as public documents and will be made available for public inspection, including being posted on the PCAST Web site.
Department of Energy.
Notice of open meeting.
This notice announces an open meeting of the Commission to Review the Effectiveness of the National Energy Laboratories (Commission). The Commission was created pursuant section 319 of the Consolidated Appropriations Act, 2014, Public Law No. 113–76, and in accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. 2. This notice is provided in accordance with the Act.
Monday, September 15, 2014; 10:30 a.m.–4:00 p.m.
Institute for Defense Analyses, 4850 Mark Center Drive, Alexandria, VA 22311.
Karen Gibson, Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; telephone (202) 586–3787; email
Those not able to attend the meeting or who have insufficient time to address the committee are invited to send a written statement to Karen Gibson, U.S. Department of Energy, 1000 Independence Avenue SW., Washington DC 20585, or to email
Office of Electricity Delivery and Energy Reliability, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Electricity Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Wednesday, September 24, 2014; 12:00 p.m.–5:45 p.m. Thursday, September 25, 2014; 8:00 a.m.–12:50 p.m.
National Rural Electric Cooperative Association, 4301 Wilson Boulevard, Arlington, Virginia 22203.
Matthew Rosenbaum, Office of Electricity Delivery and Energy Reliability, U.S. Department of Energy, Forrestal Building, Room 8G–017, 1000 Independence Avenue SW., Washington, DC 20585; Telephone: (202) 586–1060 or Email:
The meeting agenda may change to accommodate EAC business. For EAC agenda updates, see the EAC Web site at:
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The following electronic file formats are acceptable: Microsoft Word (.doc), Corel Word Perfect (.wpd), Adobe Acrobat (.pdf), Rich Text Format (.rtf), plain text (.txt), Microsoft Excel (.xls), and Microsoft PowerPoint (.ppt). If you submit information that you believe to be exempt by law from public disclosure, you must submit one complete copy, as well as one copy from which the information claimed to be exempt by law from public disclosure has been deleted. You must also explain the reasons why you believe the deleted information is exempt from disclosure.
DOE is responsible for the final determination concerning disclosure or nondisclosure of the information and for treating it in accordance with the DOE's Freedom of Information regulations (10 CFR 1004.11).
Delivery of the U.S. Postal Service mail to DOE may be delayed by several weeks due to security screening. DOE, therefore, encourages those wishing to comment to submit comments electronically by email. If comments are submitted by regular mail, the Department requests that they be accompanied by a CD or diskette containing electronic files of the submission.
Office of Science, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Biological and Environmental Research Advisory Committee (BERAC). The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Wednesday, October 1, 2014; 8:30 a.m. to 5:00 p.m., Thursday, October 2, 2014; 8:30 a.m. to 12:00 p.m.
Hilton Washington DC/Rockville Hotel & Executive Meeting Center, 1750 Rockville Pike, Rockville, MD 20852.
Dr. David Thomassen, Designated Federal Officer, BERAC, U.S. Department of Energy, Office of Science, Office of Biological and Environmental Research, SC–23/Germantown Building, 1000 Independence Avenue SW., Washington, DC 20585–1290. Phone (301) 903–9817; Fax (301) 903–5051 or email:
Federal Energy Regulatory Commission.
Comment request.
In compliance with the requirements of the Paperwork Reduction Act of 1995, 44 USC 3506(c)(2)(A), the Federal Energy Regulatory Commission (Commission or FERC) Staff is soliciting public comment on a revised, previously approved information collection, FERC–922, Performance Metrics for ISOs, RTOs and Regions Outside ISOs and RTOs.
Comments on the collection of information are due November 3, 2014.
You may submit comments (identified by Docket No. AD14–15–000) by either of the following methods:
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Ellen Brown may be reached by email at
Concurrent with the issuance of this notice, Commission Staff is issuing a report establishing 30 common metrics for ISOs/RTOs and utilities. Commission Staff intends to collect information on these common metrics initially covering the period 2008–2012, and at a later time for the 2010–2014 period. The common metrics are attached to this notice. The attachment will not be published in the
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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 has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clickling 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 date(s). 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:
This is a supplemental notice in the above-referenced proceeding, of Ioway Energy, LLC's application for market-based rate authority, with an accompanying rate schedule, noting that such application includes a request for blanket authorization, under 18 CFR Part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability is September 15, 2014.
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 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding(s) 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
Take notice that on August 12, 2014, pursuant to Rule 207(a)(2) of the Commission's Rules of Practices and Procedure, 18 CFR 385.207(a)(2)(2014), Whiting Oil and Gas Corporation filed a petition requesting temporary waiver of the Interstate Commerce Act Section 6 and Section 20 tariff filing and reporting requirements applicable to interstate common carrier pipelines with respect to its natural gas liquids pipeline, as more fully explained in the 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. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. 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 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street 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
Comments: 5:00 p.m. Eastern Time on September 11, 2014.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “Reformulated Gasoline and Conventional Gasoline: Requirements for Refiners, Oxygenate Blenders, and Importers of Gasoline; Requirements for Parties in the Gasoline Distribution Network” (EPA ICR No. 1591.26, OMB Control No. 2060–0277) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before November 3, 2014.
Submit your comments, referencing Docket ID No. EPA–HQ–OAR–2014–0548 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Jose Solar, Office of Transportation and Air Quality, (Mail Code 6405A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202–343–9027; fax number: 202–343–2801; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated
The United States has an annual gasoline consumption of about 133 billion gallons, of which about 30% is RFG. In 2013 EPA received reports from 255 refineries, 60 importer facilities/facility groups, 51 oxygenate blending facilities, 25 independent laboratory facilities, and the RFG Survey Association, Inc. under this program.
Section 211(k) of the Act requires the Administrator to promulgate regulations establishing requirements for RFG to be used in gasoline-fueled vehicles in the nine specified nonattainment areas, and opt-in areas. The Act specifically provides that recordkeeping, reporting, and sampling and testing requirements are among the tools EPA may use in enforcement of the provisions, and also provides that EPA must develop an enforceable scheme. Sections 114 and 208 of the Clean Air Act, 42 U.S.C. 7414 and 7542, authorize EPA to require recordkeeping and reporting regarding enforcement of the provisions of Title II of the Clean Air Act.
Information claimed as confidential is handled in accordance with EPA Freedom of Information Act regulations at 40 CFR 2. Most of the information submitted is claimed as such, and the forms have a simple check-off for this. Data submitted electronically are encrypted. Hard copies are housed in a secure area. Electronic files are in the same area on a secure data base.
Environmental Protection Agency.
Notice.
This notice announces the Environmental Protection Agency (EPA's) approval of the State of Arizona's request to revise/modify certain of its EPA-authorized programs to allow electronic reporting.
EPA's approval is effective October 3, 2014 for the State of Arizona's National Primary Drinking Water Regulations Implementation program, if no timely request for a public hearing is received and accepted by the Agency, and on September 3, 2014 for the State of Arizona's National Pollutant Discharge Elimination System program.
Karen Seeh, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 566–1175,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On January 14, 2010, the Arizona Department of Environmental Quality (ADEQ) submitted an application titled “AZ ADEQ SmartNOI/SDWIS Lab to State” for revisions/modifications of its EPA-authorized programs under title 40 CFR. EPA reviewed ADEQ's request to revise/modify its EPA-authorized programs and, based on this review, EPA determined that the application met the standards for approval of authorized program revisions/modifications set out in 40 CFR part 3, subpart D. In accordance with 40 CFR 3.1000(d), this notice of EPA's decision to approve Arizona's request to revise/modify its following EPA-authorized programs to allow electronic reporting under 40 CFR parts 122 and 141 is being published in the
ADEQ was notified of EPA's determination to approve its application with respect to the authorized programs listed above.
Also, in today's notice, EPA is informing interested persons that they may request a public hearing on EPA's action to approve the State of Arizona's request to revise its authorized public water system program under 40 CFR part 142, in accordance with 40 CFR 3.1000(f). Requests for a hearing must be submitted to EPA within 30 days of publication of today's
In the event a hearing is requested and granted, EPA will provide notice of the hearing in the
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency.
Notice of availability.
This notice announces applicability determinations, alternative monitoring decisions, and regulatory interpretations that EPA has made under the New Source Performance Standards (NSPS); the National Emission Standards for Hazardous Air Pollutants (NESHAP); and/or the Stratospheric Ozone Protection Program.
An electronic copy of each complete document posted on the Applicability Determination Index (ADI) database system is available on the Internet through the Office of Enforcement and Compliance Assurance (OECA) Web site at:
The General Provisions of the NSPS in 40 Code of Federal Regulations (CFR) part 60 and the General Provisions of the NESHAP in 40 CFR part 61 provide
The following table identifies the database control number for each document posted on the ADI database system on August 6, 2014; the applicable category; the section(s) and/or subpart(s) of 40 CFR parts 60, 61, or 63 (as applicable) addressed in the document; and the title of the document, which provides a brief description of the subject matter.
We have also included an abstract of each document identified with its control number after the table. These abstracts are provided solely to alert the public to possible items of interest and are not intended as substitutes for the full text of the documents. This notice does not change the status of any document with respect to whether it is “of nationwide scope or effect” for purposes of CAA section 307(b)(1). For example, this notice does not convert an applicability determination for a particular source into a nationwide rule. Neither does it purport to make a previously non-binding document binding.
Q1: Does EPA consider, as force majeure, certain weather conditions that prevented initial stack tests from being conducted before the compliance deadline under 40 CFR part 60, subparts OOO and UUU, at a Cadre Material Products (Cadre) in Voca, Texas?
A1: Yes. EPA finds that certain events, such as an ice storm, may be considered, dependent upon the circumstances specific to each event, as force majeure under 40 CFR part 60 subpart A. The ice storm, and the resultant amount of time necessary to complete repairs to equipment damaged solely as a result of the weather event, is beyond the control of the company. EPA will grant a one-week extension.
Q2: Does EPA consider, as force majeure, certain contract disputes between the company and its contractor over production testing and plant operation at the same facility.
A2: No. EPA does not consider that this qualifies as a force majeure event since it was not beyond the control of the company. EPA will not grant an extension.
Q: Does EPA approve an exemption in lieu of an Alternative Monitoring Plan (AMP) for combusting the off gas vent stream from a continuous catalytic reformer (PtR–3) as an inherently low-sulfur stream under 40 CFR part 60 subpart J, at the ExxonMobil Beaumont Refinery located in Beaumont, Texas?
A: Yes. EPA determined that a monitoring exemption is appropriate for the vent stream combusted in the continuous catalytic reformer (PtR–3), and therefore, the AMP request is no longer needed, based on the process operating and monitoring data submitted by the company and in light of changes made to Subpart J on June 24, 2008 (73 FR 35866). EPA agreed that the vent stream combusted in the fuel gas combustion device (FGCD) is inherently low in sulfur, and thus, meets the exemption criteria in 40 CFR 60.105(a)(4)(iv)(C). EPA agreed that the FGCD is exempt from monitoring requirements of 40 CFR 60.l05(a)(3) and (4). If the sulfur content or process operating parameters for the vent stream change from representations made for the exemption determination, the company must document the changes, re-evaluate the vent stream characteristics, and follow the appropriate steps outlined in 60.105(b)(3)(i) through (iii). The exemption determination should also be referenced and attached to the facility's new source review and Title V permit for federal enforceability.
Q: The Oklahoma Department of Environmental Quality (OK DEQ) has requested a determination on whether a fuel gas treatment unit at the Atlas Pipeline Mid-Continent Herron Compressor Station in Oklahoma is subject to NSPS Subpart KKK if it extracts heavy hydrocarbons from field gas prior to its use as a fuel for engines subject to 40 CFR part 60 subpart JJJJ, but does not sell the field gas?
A: Based on the information provided by OK DEQ, EPA has determined that a facility does not have to sell liquids to be considered a natural gas processing plant under 40 CFR part 60 subpart KKK, and there is no specific operating temperature criteria for a facility to be considered as engaged in the extraction of natural gas liquids. The only temperature criteria mentioned in 40 CFR part 60 subpart KKK is in the definition of equipment in light liquid service.
Q: Does EPA approve an Alternative Monitoring Plan (AMP) for monitoring hydrogen sulfide (H2S) in lieu of installing a continuous emission monitoring system (CEMS) for a refinery truck loading rack off-gas vent stream combusted at a thermal oxidizer under 40 CFR part 60 subpart J at the Valero Refining Corpus Christi, Texas West refinery?
A: Yes. EPA conditionally approves Valero AMP, based on the description of the process vent stream, the design of the vent gas controls, and the H2S monitoring data furnished. Valero AMP approval is conditioned on following the seven step process detailed in EPA's guidance for Alternative Monitoring Plans for 40 CFR part 60 subpart J relative to monitoring the facility's proposed operating parameter limits (OPLs).
Q: Does Kippur Corporation's El Paso, Texas Other Solid Waste Incinerator (OSWI), which is used to combust contraband, qualify for the exclusion from 40 CFR part 60 subpart EEEE or subpart FFFF under 40 CFR 60.2993(p), if the unit is owned and operated by a non-government (commercial) entity, but where a government agency representative maintains a supervisory and oversight role of handling of the contraband feed while the owner/operator's employees start and operate the incinerator?
A: No. EPA further clarified the exclusion of 40 CFR 60.2993(p) in the preamble to the OSWI final rule, published on December 16, 2005, to state that the exclusion applies only to goods confiscated by a government agency. In addition, the Ninth Circuit Court of Appeals has defined the term supervisor in the context of the definition of owner or operator provided in the Clean Air Act. The court held that substantial control is the governing criterion when determining if one is a supervisor. The Court elaborated that significant and substantial control means having the ability to direct the manner in which work is performed and the authority to correct problems. Based on review of the information provided, EPA did not consider USCBP to be an operator of the incinerator. The training requirements of 40 CFR 60.3014 for OSWI unit operators also demonstrate that EPA intended the operator of an OSWI incinerator be physically in control of the system or the direct supervisor of someone who is physically operating the incinerator. U.S. Customs and Border Protection (USCBP) is only in control of feeding the contraband to the incinerator, presumably for custody control, but not for any operative purpose. Since USCBP is not in control of the incinerator itself, the Kippur OSWI unit is not exempt and must comply with either 40 CFR part 60 subpart EEEE or subpart FFFF.
Q: Does EPA approve an exemption in lieu of an Alternative Monitoring Plan (AMP) for combusting a vent stream from a hydrogen plant's steam methane reformer (SMR) degassifier knockout drum as an inherently low-content sulfur stream under 40 CFR part 60 subpart J, at the Valero Corpus Christi East Plant (Valero) in Corpus Christi, Texas?
A: Yes. EPA determined that a monitoring exemption is appropriate for the vent stream, and EPA voided the AMP request based on the process and monitoring data provided, and in light of changes made to subpart J on June 24, 2008 (73 FR 35866). EPA agreed that the flare is exempt from monitoring requirements of 40 CFR 60.105(a)(3) and (4). The vent stream combusted in the flare is inherently low in sulfur because it is produced in a process unit intolerant to sulfur contamination, and thus, meets the exemption in 40 CFR 60.105(a)(4)(iv)(C). If refinery operations change from representations made for this exemption determination, then Valero must document the change(s) and follow the appropriate steps outlined in 40 CFR 60.105(b)(3)(i) through (iii).
Q: Does EPA approve the request from Domtar Paper Company (Domtar), LLC, in Plymouth, North Carolina to derate the capacity of a boiler (HFBI) to less than 250 mmBtu/hr in order that it will no longer be subject to 40 CFR part 60 subpart D?
A: No. EPA has determined that Domtar's proposed derate for coal firing procedure is not acceptable, as it does not meet EPA's criteria for derate of boilers based on the description in Domtar's request, as indicated to the North Carolina Department of Environment and Natural Resources. The proposed derate procedure is based only on changes to the fuel feed system and does not reduce the capacity of the boiler. Domtar indicates that they must maintain the ability to use hog fuel at a heat input greater than 250 million Btu/hr for HFB1 and cannot make changes to the induced draft fan to reduce the boiler capacity.
Q1: The Alabama Department of Environmental Management (AL DEM) requests clarification of the initial monitoring requirements for pumps and valves for new process units subject to 40 CFR part 60 subpart VVa. Under 40 CFR part 60 subpart VVa, is a new facility required to initially monitor pumps and valves within 30 days of startup of a new process unit or within 180 days of startup of the process unit?
A1: The NSPS Subpart VVa requires initial monitoring of pumps and valves for a new process unit to be conducted within 30 days after the startup of a new process unit. Section 60.482–2a(a)(1) requires monthly monitoring to detect leaks from pumps in light liquid service. Section 60.482–7a(a) requires monthly monitoring to detect leaks from valves in gas/vapor service and in light liquid service. Further, § 60.482–1a(a) requires an initial compliance demonstration within 180 days of initial startup of the valve or pump, and does not provide a grace period during which a facility is exempt from the work practice standards of Subpart VVa and the requirement to conduct monthly monitoring of pumps and valves.
Q2: Under 40 CFR part 60 subpart VVa, what is the initiation of monthly monitoring for pumps and valves which do not begin service at the initial startup of a process unit but are placed in service over time?
A2: For both pumps and valves, 40 CFR part subpart VVa requires that monthly monitoring of the pump or valve is to begin within 30 days after the end of its startup period to ensure
Q: Does EPA approve an Alternate Monitoring Plan for an inherently low-sulfur gas stream from the Caustic Vent Degasser vented to a flare at the Marathon Petroleum Company LLC (MPC) in Robinson, Illinois?
A: Yes. EPA conditionally approves MPC's Alternate Monitoring Plan for the Caustic Tank Degasser vent to flare based on the process description and the data showing the low and stable H2S content of the stream. MPC will continue to monitor the NaOH (caustic strength) in the spent caustic wash streams in lieu of continuously monitoring this combined stream, and the proposed sampling schedule will be implemented quarterly until December 2013, and thereafter EPA requires sampling frequency on a biannual basis. The biannual sampling will be performed with a minimum of three months between the collections of the samples. If at any time the sample results from a single detector tube are equal to or greater than 81 ppm H2S, MPC must follow the procedures and notification requirements established in the EPA response letter.
Q: Does EPA approve an exemption in lieu of an Alternative Monitoring Plan (AMP) for combusting a vent stream from a cyclic reformer caustic scrubber in a process furnace as an inherently low-sulfur stream under 40 CFR part 60 subpart J, at the British Petroleum's Texas City, Texas refinery?
A: Yes. EPA determined the cyclic reformer caustic scrubber vent stream, and therefore the AMP request is no longer needed, based on the process operating parameters and monitoring data submitted by the company and in light of changes made to Subpart J on June 24, 2008 (73 FR 35866). EPA agreed that the process furnace is exempt from monitoring requirements of 40 CFR 60.105(a)(3) and (4). The vent stream combusted in the furnace is inherently low in sulfur because it is produced in a process unit intolerant to sulfur contamination, and thus, meets the exemption criteria in 40 CFR 60.105(a)(4)(iv)(C). If it is determined that the stream is no longer exempt, continuous monitoring must begin within 15 days of the change, in accordance with 40 CFR 60.105(a)(4)(iv).
Q: Does EPA approve an exemption in lieu of an Alternative Monitoring Plan (AMP) for combusting vent streams from two continuous catalytic reformer unit lock hoppers in a flare as an inherently low-sulfur stream under 40 CFR part 60 subpart J, at the Chalmette Refining, Chalmette), Louisiana refinery?
A: Yes. EPA determined that a monitoring exemption is appropriate for the continuous catalytic reformer unit lock hopper vent streams, and EPA voided the AMP request based on the process operating parameters and monitoring data submitted by Chalmette and in light of changes made to subpart J on June 24, 2008 (73 FR 35866). EPA agreed that the flare is exempt from monitoring requirements of 40 CFR 60.105(a)(3) and (4). The vent streams combusted in the flare are inherently low in sulfur because they are produced in a process unit intolerant to sulfur contamination, and thus, meet the exemption criteria in 40 CFR 60.105(a)(4)(iv)(C). If Chalmette determines that the streams no longer meet the exempt criteria as a result of refinery operations change(s), then Chalmette must document the change(s) and must begin continuous monitoring within 15 days of the change, in accordance with 40 CFR 60.105(a)(4)(iv).
Q: Does EPA approve an exemption in lieu of an Alternative Monitoring Plan (AMP) for combusting a vent stream from an alkylation unit Merox disulfide separator in a reboiler heater as an inherently low-sulfur stream under 40 CFR part 60 subpart J, at the Chalmette Refining, Chalmette, Louisiana refinery?
A: Yes. EPA determined that a monitoring exemption is appropriate for the alkylation unit Merox separator vent stream, and therefore the AMP request is no longer needed, based on the process operating parameters and monitoring data submitted by Chalmette and in light of changes made to subpart J on June 24, 2008 (73 FR 35866). EPA agreed that the reboiler heater is exempt from monitoring requirements of 40 CFR 60.l05(a)(3) and (4). The vent stream combusted in the heater is inherently low in sulfur because it is produced in a process unit intolerant to sulfur contamination, and thus, meets the exemption criteria in 40 CFR 60.105(a)(4)(iv)(C). EPA also clarified that, if refinery operations change such that the sulfur content for the vent stream changes such that it no longer meets the exemption criteria, continuous monitoring must begin within 15 days of the change, in accordance with 40 CFR 60.105(a)(4)(iv).
Q: Does EPA approve an exemption in lieu of an Alternative Monitoring Plan (AMP) for combusting the vent stream from a continuous catalytic reformer unit lock hopper in two reformer heaters as an inherently low-sulfur stream under 40 CFR part 60 subpart J, at the ExxonMobil's Beaumont, Texas refinery?
A: Yes. EPA determined that a monitoring exemption is appropriate for the continuous catalytic reformer unit lock hopper vent stream, and EPA voided the AMP request based on the process operating parameters and monitoring data submitted by ExxonMobil and in light of changes made to subpart J on June 24, 2008 (73 FR 35866). Based on review of the information provided, EPA agreed that the reformer heaters are exempt from monitoring requirements of 40 CFR 60.105(a)(3) and (4). The vent stream combusted in the heaters is inherently low in sulfur because it is produced in a process unit intolerant to sulfur contamination, and thus, meets the exemption in 40 CFR 60.105(a)(4)(iv)(C). If it is determined that the stream is no longer exempt, continuous monitoring must begin within 15 days of the change, in accordance with 40 CFR 60.105(a)(4)(iv).
Q: Does EPA approve an exemption in lieu of an Alternative Monitoring Plan (AMP) for combusting the off gas vent stream from a hydrogen plant pressure swing adsorption (PSA) unit in a flare as an inherently low-sulfur stream under 40 CFR part 60 subpart J, at the Valero Refining East Refinery in Corpus Christi, Texas?
A: Yes. EPA determined that a monitoring exemption is appropriate for the hydrogen plant PSA vent stream, and EPA voided the AMP request based on the process operating parameters and monitoring data submitted by Valero and in light of changes made to subpart J on June 24, 2008 (73 FR 35866). Based on review of the information provided, EPA agreed that the flare is exempt from the monitoring requirements of 40 CFR 60.105(a)(3) and (4). The vent stream combusted in the flare is inherently low in sulfur because it is produced in a process unit intolerant to sulfur contamination, and thus, meets the exemption in 40 CFR 60.105(a)(4)(iv)(C). If it is determined that the vent stream is no longer exempt, continuous monitoring must begin within 15 days
Q: Does EPA approve the Alternative Monitoring Plans (AMPs) for monitoring hydrogen sulfide (H2S) in lieu of installing a continuous emission monitoring system (CEMS) for three sour water tank off-gas vent streams, subject to 40 CFR part 60 subpart J, that are combusted in two sulfur recovery unit tail gas incinerators at the Valero Refining facility in Houston, Texas?
A: No. EPA does not approve Valero's proposed AMPs for the off-gas vent streams from the three sour water tank off-gas vent streams because the necessary fuel gas system and stream sampling data was not provided to demonstrate that the fuel gas streams are sufficiently low in sulfur content or to establish appropriate alternative monitoring methods, parameters, and frequencies to ensure inherently low and stable H2S content of the off-gas vent streams to be combusted at the incinerators.
Q: Does EPA approve a waiver of the initial performance test under the NSPS for Non-metallic Mineral Processing Plants for the Emission Unit PO 14 at the Carmeuse Industrial Sands, Millwood Operation in Howard, Ohio? The Emission Unit PO 14 is operated infrequently and for short durations, and the plant lacks testing facilities.
A: Yes. EPA approves this waiver request because the facility is operated for small amounts of time per day, which is not sufficient to implement a Method 5 or 17 performance test meeting the requirements in this standard. However, EPA does not consider a lack of testing facilities as a valid reason to waive a test and points out that construction of a source subject to testing requirements in a manner that prevents it from being tested might be considered circumvention under the General Provisions. In addition, EPA approves all determinations on a case-by-case basis and is not necessarily bound by previous determinations.
Q1: Does EPA approve the continued operation of several gas wells at the closed Willowcreek Landfill in Atwater, Ohio without expansion of the gas collection system, despite instances of positive pressure and oxygen exceedance under the NSPS for Landfills?
A1: Yes. EPA approves the continued operation of the Willowcreek wells without expansion of the collection system because they are showing signs of declining gas quality and expansion of the system is expected to be of little to no value.
Q2: Does EPA approve the continued operation of other wells that in the future may experience the same conditions at the Willowcreek Landfill?
A2: EPA does not provide a blanket approval for all future wells experiencing the same conditions. Expansion of this alternative monitoring approval will require subsequent requests.
Q: Are the emissions from AIRS ID 060 and 079 from dust collectors at the top of enclosed conveyor belt transfer points “process fugitive emissions” subject to the standard outlined in 40 CFR 60.382(b) or “stack emissions” subject to the standards in 40 CFR 60.382(a) of NSPS Subpart LL, which are located at the Climax Molybdenum facility in Leadville, CO?
A. The EPA determines that the fugitive emissions from the dust collectors utilized by AIRS ID 060 and 079 are “stack emissions,” as these are being released through a “stack, chimney, or flue” and will be “released to the atmosphere.” In addition, the process fugitive emission standard applies to “emissions from an affected facility that are not collected by a capture system.” Therefore, the emissions from the dust collectors are not “process fugitive emissions” since these emissions are being captured and controlled and are not emissions that have escaped control.
Q: Does EPA approve Elk River Landfill, Incorporated's alternative monitoring request under 40 CFR 60.753(c) of the Landfill NSPS, Subpart WWW, for a variance of the operating temperature for five gas wells at Elk River Landfill in Elk River, Minnesota?
A: Yes. EPA approves Elk's request for an alternative operating temperature for the five gas wells. Based on the supporting information, the higher operating gas temperatures do not significantly inhibit anaerobic decomposition by killing methanogens and do not cause subsurface landfill fire at the site. Therefore, EPA approves Elk River Landfill's request for an operating temperature of 155 °F for gas well numbers EREW35R2, EREW0042, EREW045R, EREW0066, and ERHC0010.
Q: Does EPA approve a request from Advanced Disposal Service (ADS) to use an alternate span value of 50 parts per million by Volume (ppmV) in lieu of 500 ppmV required by 40 CFR 60.48b(e)(2) for the nitrogen oxide continuous emission monitors (CEMs) on each of two process heaters at the Rolling Hills Landfill (RHLF) in Buffalo, Minnesota?
A: Yes. EPA approves the use of the alternate span value for the two process heaters' CEMs. EPA concludes that the span will be more appropriate for the typical range of emission concentrations and that the span will yield more accurate measurement(s) during normal operating conditions.
Q. Do the Stationary Reciprocating Internal Combustion Engines (RICE) powering floodwater pumps and associated generators at the U.S. Army Corps of Engineers (USACE), W.G. Huxtable Pumping Plant, Lee County, Arkansas, meet the definition of an institutional emergency RICE under 40 CFR part 63, subpart ZZZZ?
A. Yes. EPA determines that the RICE SN–01 through SN–13 pumps and associate generators meet the definition of institutional emergency at 40 CFR 63.6675 because these are located at an area source facility for HAPs and are only used when significant flooding occurs. Specifically, pumping does not begin until the water level on the downstream (Mississippi River) side of the facility is higher than the water on the upstream side, a condition that would only happen in the case of significant flooding. Also, these engines are located at a facility with a North American Industry Classification System (NAICS) code of 924110. This NAICS code is on the list of codes that identifies the types of facilities that would be considered residential, commercial, or institutional, provided as guidance by the EPA after the RICE NESHAP was published. Therefore, the engines are existing institutional emergency stationary RICE located at an area source of hazardous air pollutant (HAP) emissions, not subject to the RICE NESHAP per the exemption in 40 CFR 63.6585(f)(3).
Q1: Does EPA concur that design capacity for municipal solid waste (MSW) of the Advanced Disposal Service (ADS) Rolling Hills Landfill (RHLF) in Buffalo, Minnesota, is less than 2.5 million megagrams (2.7 million tons) and 2.5 million cubic meters (3.3 million cubic yards) for purposes of NSPS Subpart WWW rule?
A1: No. EPA concludes that the design capacity of the ADS RHLF is greater than 2.5 million megagrams and
Q2: Are the Landfill NSPS applicability thresholds based not only on physical volumes or masses but also upon the state regulatory environment, recycling mandates, and intercounty solid waste planning directives?
A2: EPA determines that the state restrictions and limitations on the types of waste that the RHLF has been allowed to accept cannot reduce the design capacity below the Landfill NSPS applicability thresholds. The NSPS does not distinguish nonmethane organic compounds (NMOC) emissions generated from MSW and those generated from non-MSW. Consequently, even though restrictions on the types of waste that the RHLF has been allowed to accept may be federally enforceable under the federal SWDA, EPA concludes that ADS may not exclude the volume and mass of non-MSW from the calculation of the RHLF's design capacity.
Q: Can EPA approve an Alternative Monitoring Plan (AMP) for Envent Corporation to conduct monitoring of hydrogen sulfide (H2S) emissions, in lieu of installing a continuous emission monitoring system (CEMS), when performing tank degassing and other similar operations controlled by portable, temporary thermal oxidizers, at refineries in Region 6 States that are subject to NSPS subparts J or Ja?
A: Yes. EPA conditionally approved the AMP based on the description of the process, the vent gas streams, the design of the vent gas controls, and the H2S monitoring data furnished. EPA included proposed operating parameter limits (OPLs) and data which the refineries must furnish as part of the conditional approval. The approved AMP applies only to similar degassing operations conducted by ENVENT at refineries in EPA Region 6.
Q. Does EPA approve the Holly Frontier Corporation, Holly Refining & Marketing Company—Woods Cross's (Holly's) alternative monitoring plan (AMP) for monitoring opacity from the fluid catalytic cracking unit (FCCU) regenerator since moisture in the wet gas scrubbers to the FCCU causes interference with opacity monitors, making the results unreliable?
A. Yes. EPA conditionally approves Holly's AMP request to monitor alternative operating parameters in its wet gas scrubber since these ensure optimum collection efficiency for particulates. The Holly AMP approval is conditional on maintaining liquid flow to the nozzles in the absorber tower vessel and the filtering modules, and ensuring a minimum pressure drop across the filtering modules.
Q: Does EPA approve the alternate compliance remedies to correct the surface scan emissions exceedances that occurred during the surface emissions monitoring (SEM) event at five designated locations at the Settle's Hill Recycling and Disposal Facility (Settle's Hill) and Midway Landfill in Batavia, Illinois?
A: Yes. EPA conditionally approves this request for alternative compliance remedies that involve installing dewatering pumps in several gas extraction wells in the vicinity of the exceedances, further enhancement of the landfill gas collection and control system (GCCS), further enhancement of the landfill cap with the placement of additional soil cover and corresponding schedule for locations designated as EX–1, –2, –3, –5, and –6 at the Midway Landfill and Settler's Hill. The condition for approval requires that the remedies eliminate methane exceedances at the locations listed above. If such is not the case in subsequent SEM, beginning December 6, 2012, more aggressive measures will be required to reduce surface emissions at both the Midway Landfill and Settler's Hill to ensure compliance.
Q: Does EPA approve a higher operating value for oxygen concentration under NSPS Subpart WWW for a well collector at the Roxana Landfill, Incorporated facility located in Roxana, Illinois?
A: No. EPA does not approve Roxana's request because the criteria for approval of a higher operating value for oxygen concentration at Roxana's Collector Well 0TD1 under the provisions in 40 CFR 60.753(c) of NSPS Subpart WWW has not been met. In order to approve a higher oxygen operating value, 40 CFR 60.753(c) requires, “data that shows the elevated parameter does not cause fires or significantly inhibit anaerobic decomposition by killing methanogens.”
Q: Does EPA approve Flint Hills Resources' request to set the span value for the nitrogen oxide continuous emission monitors on each of two process heaters 25H1 and 25H3 at 50 parts per million by Volume (ppmV) rather than 500 ppmV as required by 40 CFR 60.48b(e)(2)?
A: Yes. EPA concludes that the span will be more appropriate for the typical range of emission concentrations and that the span will yield more accurate measurements during normal operating conditions.
Q: Does EPA approve an exemption in lieu of Alternative Monitoring Plan (AMP) for monitoring hydrogen sulfide (H2S) rather than installing a continuous emission monitoring system (CEMS) for a refinery caustic regeneration unit off-gas vent stream combusted at two process furnaces under 40 CFR part 60 subpart J at the ExxonMobil refinery in Baton Rouge, Louisiana?
A: Yes. EPA conditionally approves the exemption under the seven step process detailed in EPA's guidance for Alternative Monitoring Plans for 40 CFR part 60 subpart J, based on the description of the process vent stream, the design of the vent gas controls, and the H2S monitoring data furnished. EPA included the facility's proposed operating parameter limits (OPLs), which the facility must continue to monitor, as part of the conditional approval.
Q: Does EPA approve an Alternative Monitoring Plan (AMP) for Gem Mobile Services to conduct monitoring of hydrogen sulfide (H2S) emissions, in lieu of installing a continuous emission monitoring system (CEMS), when performing tank degassing and other similar operations controlled by portable, temporary thermal oxidizers, at refineries located in EPA Region 6 states that are subject to NSPS Subparts J or Ja?
A: Yes. EPA conditionally approves the AMP, based on the description of the process, the vent gas streams, the design of the vent gas controls, and the H2S monitoring data furnished. EPA included proposed operating parameter limits (OPLs) and data which the refineries must furnish as part of the conditional approval. The approved AMP is only for degassing operations conducted at refineries in EPA Region 6.
Q: Does EPA allow an alternative compliance timeline for landfill gas extraction well at the American Disposal Services of Illinois, Inc. (ADSI)—Livingston Landfill facility located in Pontiac, Illinois?
A: No. EPA does not approve the request for an alternative compliance timeline for correcting the operational parameter exceedance at the ADSI's landfill gas extraction well LIV–GW22 (GW22). EPA did not approve an alternative compliance timeline because the request was for a potential situation that may or may not happen and may or may not cause a delay in construction. Such approval will only be granted if ADSI can establish that forces beyond its control prevent on-time compliance.
Q: Does EPA approve a request to use a bag leak detection (BLD) system in lieu of continuous opacity monitoring (COM) or daily Method 9 visible emissions (VE) readings, as required by 40 CFR part 60, subpart UUU for monitoring the new thermal sand reclamation system being installed at the Thyssenkrupp Waupaca, Inc. (Waupaca) foundry (Plant I) in Wisconsin?
A: Yes. EPA conditionally approves the use of the BLD system at the new sand cooler for monitoring in lieu of a COM or daily VE readings to comply with subpart UUU rule. This approval is conditioned upon the BLD system being subject to the same installation, operation, maintenance, monitoring, recordkeeping, and notification provisions of 40 CFR part 63 subpart EEEEE, rule applicable to Waupaca since it is an iron and steel foundry.
Q: Does EPA approve a request to use a bag leak detection (BLD) system in lieu of continuous opacity monitoring (COM) or daily Method 9 visible emissions (VE) readings, as required by 40 CFR part 60 subpart UUU for monitoring the new thermal sand reclamation system being installed at the Thyssenkrupp Waupaca, Inc. (Waupaca) foundry (Plants 2 and 3) in Wisconsin?
A: Yes. EPA conditionally approves use of the BLD system at the new sand cooler for monitoring in lieu of a COM or daily VE readings. This approval is conditioned upon the the BLD system being subject to the same installation, operation, maintenance, monitoring, recordkeeping, and notification provisions of 40 CFR part 63 subpart EEEEE, rule applicable to Waupaca since it is an iron and steel foundry.
Q: Does the EPA approve a petition for approval of operating parameter limits (OPLs) in lieu of installing a wet scrubber, an initial performance test plan, and an initial relative accuracy test audit (RATA) protocol for a continuous emission monitoring system (CEMS) at a dual chamber, commercial incinerator which thermally destroys contraband for U.S. Customs and Border Protection (CBP) at the Southwest Border Incineration (SWBI) facility located in McAllen, Texas, and is subject to regulation as an “other solid waste incineration” (OSWI) unit under 40 CFR part 60 subpart EEEE?
A: Yes. EPA conditionally approves the SWBI's petition for establishing specific OPLs to be monitored, initial performance test plan, and the CEMS RATA protocol based on the information submitted to EPA since the rule requirements at 40 CFR 60.2917(a) through (e) and 40 CFR 60.2940(a) through (d) were met. Final approval of SWBI's petition will be based on the OPL range values and other conditions that are established from the results of the performance testing and the CEMS RATA.
Q1. Is Coater A, part of a coating line that manufactures pressure sensitive tape and labels at the 3M print station facility in Hutchinson, Minnesota, which applies hot melt coating with zero potential VOC emissions and commenced construction after December 30, 1980, subject to 40 CFR part 60 subpart RR?
A1. Yes. Coater A meets the applicability criteria of affected facility in both 40 CFR 60.440(a) and (c), and is therefore subject to 40 CFR part 60 subpart RR. Since Coater A applies coatings with zero potential VOC emissions, it is not subject to the emission limits of 40 CFR 60.442(a). However, it is subject to the requirements of all other applicable provisions of 40 CFR part 60 subpart RR.
Q2. Is Coater B at 3M print station, which coats webs, including paper, film, and metal at two coating application stations, each followed by a drying oven, and a print station with a small oven for making product markings, and was installed in 1985 at the 3M facility in Rockland, Massachusetts, subject to 40 CFR part 60 subpart TT?
A2. Yes. Coater B meets the definitions in 40 CFR part 60 subpart TT of two affected facilities, a prime coat operation and a finish coat operation, and is thus subject to the rule requirements.
Q3. Is Coater B, a coating line which is used in the manufacture of pressure sensitive tape and label materials and was installed in 1985, also subject to 40 CFR part 60 subpart RR?
A3. Yes. Coater B meets the criteria in 40 CFR 60.440 and is, therefore, a 40 CFR part 60 subpart RR affected source subject to the rule requirements.
Q4. Is the 3M print station part of 40 CFR part 60 subpart TT or subpart RR affected facility?
A4. The print station is an affected facility under both 40 CFR part 60 subpart TT and 40 CFR part 60 subpart RR. Under subpart TT, the print station is an affected facility, because it meets the definition of an application system applying an organic coating in 40 CFR 60.461. The print station is also an affected facility under 40 CFR part 60 subpart RR, because it meets the definition of a precoat coating applicator in 40 CFR 60.441(a).
Q5. How would the analysis and conclusions for 40 CFR part 60 subpart RR change if the VOC input to the coating line had never exceeded 45 Mg VOC in any 12-month period?
A5. EPA finds this question outside the scope of an applicability determination, because it is hypothetical and contrary to the stated facts. However, in general, a facility that does not input to the coating process more than 45 MG (50 tons) of VOC per 12-month period is not subject to the emission limits in 40 CFR part 60 subpart RR.
Q6. When and how do the emissions limits of 40 CFR part 60 subpart TT and/or 40 CFR part 60 subpart RR apply?
A6. EPA finds this question outside the scope of an applicability determination, because it does not address applicability. However, in general, an NSPS affected facility is subject to the requirements of a rule at all times while engaged in activity that causes it to meet the definition of an affected facility. So, a 40 CFR part 60 subpart TT affected facility is subject to the rule while engaged in the activities of a metal coil surface coating operation. Similarly, a 40 CFR part 60 subpart RR affected facility is subject to the rule while engaged in the manufacture of pressure sensitive tape and labels. If a facility is subject to more than one NSPS, the facility must demonstrate compliance with each rule (i.e., keep records and calculate the emissions for activities in each applicable category).
Q7. Is Coater C, a major source of HAP emissions that applies coatings to
A7. Yes. Coater C is an existing affected source under 40 CFR part 63 subpart SSSS, because it coats metal coil as defined in 40 CFR 63.5110 and was constructed before July 18, 2000. It does not qualify for the exemption in 40 CFR 63.5090(b)(2) because more than 15 percent of the metal coil coated, based on surface area, is greater than 0.15 millimeter (0.006 inch) thick.
Q8. Is Coater C located at the 3M facility in Hartford City, Indiana, also subject to 40 CFR part 63, subpart JJJJ rule requirements?
A8. No. Coater C is not subject to 40 CFR part 63 subpart JJJJ requirements, as long as it meets the 40 CFR part 63 subpart SSSS rule requirements. In 40 CFR part 63 subpart SSSS, owners/operators of facilities are provided the option that, if they are subject to both subparts, they can choose to comply with the requirements of 40 CFR part 63 subpart SSSS, and have that constitute compliance with 40 CFR part 63 subpart JJJJ, rather than complying with the requirements of both rules.
Q9. Is the 3M print station of Coater C an affected source under both 40 CFR part 63 subpart SSSS and 40 CFR part 63 subpart JJJJ?
A9. Yes. The print station of Coater C meets the applicability criteria of both 40 CFR part 63 subpart SSSS and 40 CFR part 63 subpart JJJJ. However, an owner/operator can choose to comply with the requirements of 40 CFR part 63 subpart SSSS and have that constitute compliance with 40 CFR part 63 subpart JJJJ. The print station meets the applicability criteria of 40 CFR part 63 subpart SSSS, because the inks applied by the print station are included in the definition of a coating. This coating is applied by the print station which meets the definition of a work station that operates on a coil coating line. For 40 CFR part 63 subpart JJJJ, the inks applied at the print station of Coater C meet the definition of a coating material in 40 CFR 63.3310 and are applied by the print station which meets the definition of a work station and operates on a web coating line.
Q10. When and how do the emissions limits of 40 CFR part 63 subpart SSSS and/or 40 CFR part 63 subpart JJJJ apply to 3M print station?
A10. EPA finds this question outside the scope of an applicability determination, because it does not question applicability. However, in general, a 40 CFR part 63 subpart SSSS affected source is subject to the rule at all times while engaged in activity that causes the facility to meet the definition of an affected facility. If the owner/operator does not choose to comply with 40 CFR part 63 subpart SSSS, or the affected facility is engaged in activities that do not meet the applicability criteria of 40 CFR part 63 subpart SSSS, then the affected facility could be subject to 40 CFR part 63 subpart JJJJ. The affected facility would be subject to 40 CFR part 63 subpart JJJJ only while engaging in activities that meet the definition of a 40 CFR part 63 subpart JJJJ affected source.
Q11. Is Coater D, located at the 3M facility in Hutchinson, Minnesota subject to 40 CFR part 63 subpart KK? The facility is a major source of HAP emissions and it is in a collection of web coating lines that are an existing affected source under MACT subpart JJJJ. Also present at the facility is a collection of wide-web flexographic printing presses which are an existing affected source under MACT Subpart KK. A flexographic print station capable of printing onto webs that are greater than 18 inches wide was added to Coater D and more than 5 percent of all materials applied onto the web of Coater D in a month occur at the flexographic print station.
A11. Yes. Coater D meets the definition of a wide-web flexographic press that is a Subpart KK affected source, unless it qualifies for the exclusion provided in 40 CFR 63.821(a)(2)(ii). Coater D does not qualify for the exclusion because more than 5 percent of the mass of all materials applied by Coater D is applied by the wide-web flexographic print station.
Q12. Is Coater D a 40 CFR part 63 subpart JJJJ affected source?
A12. No. Coater D meets the MACT Subpart JJJJ definition of a web coating line in 40 CFR 63.3310; however, 40 CFR 63.3300(b) excludes any web coating line that is a “wide-web flexographic press under Subpart KK.” Since Coater D is included in a 40 CFR part 63 subpart KK affected source, it is not a 40 CFR part 63 subpart JJJJ affected source.
Q13. How does the analysis change if in a single month (or permanently) the total mass of materials applied by the print station of Coater D is no more than 5 percent of the total mass of materials applied?
A13. EPA believes that 3M is asking if Coater D's status as a 40 CFR part 63 subpart KK affected source changes if the mass of material applied by the print station in a month subsequently falls below 5 percent of the total mass of materials applied by Coater D. Coater D remains a 40 CFR part 63 subpart KK affected source even if the mass of material applied by the print station in a month subsequently falls below 5 percent of the total mass of materials applied by Coater D. The word “never” in the exclusion at 40 CFR 63.821(a)(2)(ii)(A) means that once the total mass of materials applied in any month exceeds 5 percent of the total mass of material applied in that month, the coating line continues to be a 40 CFR part 63 subpart KK affected source, even if percentage subsequently falls below 5 percent.
Q14. When and how do the emissions standards of the applicable MACT rules apply to Coater D?
A14. The EPA finds this question outside the scope of an applicability determination, because it does not question applicability. Also, EPA interprets the question as: (1) Do the emission standards apply to the entire coating line or just to the flexographic print station? and (2) If the standards apply to the entire line, do they continue to apply even when the flexographic print station is not operating? In general, the emission standards apply to the entire coating line, not just to the flexographic print station, because the print station is part of the flexographic press in 40 CFR 63.822(a) which meets the definition of an affected source under 40 CFR part 63 subpart KK. The emissions standards apply while any part of the coating line is operating even if the flexographic print station is not operating.
Q15. Does the analysis change if the total mass of materials applied by the print station of Coater D has never exceeded in a month 5 percent of the total mass of materials applied by Coater D overall?
A15. The EPA finds this question outside the scope of an applicability determination as it does not question applicability and is contrary to the stated facts. However, in general, Coater D, including the wide-web printing station, meets the definition of a web coating line in 40 CFR 63.3310 and is, therefore, a subpart JJJJ affected source. The section 40 CFR 63.3300(b) excludes any web coating line that is an affected source under 40 CFR part 63 subpart KK. However, an owner/operator could choose exclude Coater D from 40 CFR part 63 subpart KK if the sum of the total mass of materials applied by print stations in any month never exceeded 5 percent of the total mass of materials applied by Coater D in that same month. If the owner/operator chooses to exclude Coater D from 40 CFR part 63 subpart KK, it would remain a 40 CFR part 63 subpart JJJJ affected source. If
Q16. Would Coater D be a 40 CFR part 63 Subpart KK or 40 CFR part 63 subpart JJJJ affected source if the print station were decommissioned or removed from the coating line?
A16. The EPA finds this question outside the scope of an applicability determination. It is hypothetical and does not question applicability. To answer the question, we would need more information on which coating lines remain in operation. However, in general, upon decommissioning or removing the print station, Coater D would no longer meet the criteria for being a wide-web flexographic printing press and, therefore, would no longer be a subpart KK affected source. At that point, Coater D would be a subpart JJJJ affected source as it would no longer qualify for the exclusion in 40 CFR 63.3300(b).
Q17. If an additional web coating line is constructed at the Springfield facility will it be subject to 40 CFR part 63 subpart JJJJ?
A17. The EPA finds this question outside the scope of an applicability determination, because it is hypothetical and does not have actual facts to address applicability. However, in general, 40 CFR part 63 subpart JJJJ, in 40 CFR 63.3300, defines an affected source as: “the collection of all web coating lines at your facility.” Therefore, if a facility is subject to 40 CFR subpart JJJJ, all web coating lines, new or existing, at that facility would be subject to the requirements of the subpart.
Q18. Are the components which are directly associated with Rack A at the 3M manufacturing facility in Hutchinson, Minnesota, while it is being used to unload solvent from Truck A into Tank A, part of an [organic liquid distribution] OLD and/or an miscellaneous coating manufacturing (MCM) affected source? Tank A at the facility is a bulk solvent storage tank where the solvent contains 5 percent weight or more of the organic HAP listed in Table 1 of 40 CFR 63 subpart EEEE. The solvent in Tank A is used exclusively to manufacture coatings and all coatings manufactured at the facility are used exclusively by the coating lines of the facility. Truck A is a tank truck that delivers the solvent to Tank A, and Rack A is a transfer rack that is used to unload the solvent from Truck A into Tank A.
A18. Rack A is a 40 CFR part 63 subpart EEEE affected source when it is being used to unload Truck A because Truck A contains organic liquid (as defined in 40 CFR part 63 subpart EEEE). Therefore, the equipment leak components directly associated with Rack A are 40 CFR part 63 subpart EEEE affected sources when Rack A is being used to unload solvent from Truck A into Tank A. The section 40 CFR part 63 subpart EEEE was written specifically to regulate the distribution of liquids containing 5 percent by weight or more of organic HAP and requires a commensurate level of control. By comparison, 40 CFR part 63 subpart HHHHH was written to regulate liquids with a lower concentration of organic HAP. As a result, the emission limits for 40 CFR part 63 subpart EEEE are more stringent than those in 40 CFR part 63 subpart HHHHH. Because of this different level of stringency, the EPA believes that the facility is more properly subject to 40 CFR part 63 subpart EEEE because the solvent distributed by the facility has 5 percent weight or more of organic HAP, even though the liquid is used to manufacture coatings.
Q19. Are any components directly associated with Truck A, while Truck A is unloading solvent into Tank A, part of an OLD and/or an MCM affected source?
A19. Any equipment leak components directly associated with Truck A are part of an OLD affected source while Truck A is unloading solvent into Tank A. Because the equipment leak components directly associated with Truck A are part of an OLD affected source, they cannot be part of an MCM affected source.
Q20. Is Rack A, while it is being used to unload solvent from Truck A into Tank A, part an OLD and/or an MCM affected source?
A20. Rack A is part of an OLD affected source while it is being used to unload solvent from Truck A into Tank A. Because Rack A is part of an OLD affected source, it cannot be part of an MCM affected source.
Q21. Is Truck A, while unloading solvent into Tank A, part of an OLD and/or an MCM affected source?
A21. Truck A is part of an OLD affected source while unloading solvent into Tank A. Because Truck A is part of an OLD affected source, it cannot be part of an MCM affected source. Also, transport vehicles are not included in the MCM definition of affected sources.
Q22. If either Truck A and/or Rack A are part of an MCM affected source, does the exclusion of affiliated operations at 40 CFR 63.7985(d)(2) affect how the requirements of 40 CFR part 63 subpart HHHHH apply?
A22. Neither Truck A nor Rack A are part of an MCM affected source while Rack A is being used to unload solvent from Truck A to Tank A.
Q: Does EPA allow an alternative remedy and corresponding schedule to address methane exceedances above 500 PPM for a landfill gas extraction well at the Settler's Hill Recycling and Disposal Facility (Settler's Hill)/Midway Landfill (Midway) facility located in Batavia, Illinois, subject to the New Source Performance Standards (NSPS) for Municipal Solid Waste Landfills, 40 CFR part 60, subpart WWW?
A: EPA approves the proposed alternative remedy to regrade and compact the clay patch in the area near landfill gas extraction well Midway EX–2, and to import and compact an additional foot of clean clay in that same area. EPA understands that the remedy was carried forth, surface emission monitoring was performed, and no methane exceedances were detected.
Q1: The Missouri Department of Natural Resources seeks EPA clarification on whether the 1991 Applicability Determination Index (ADI) document (ADI Number C112) represent EPA's current position on analysis of bulk for asbestos pursuant to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for asbestos?
A1: Yes. The 1991 response for analysis of bulk under the asbestos NESHAP represents EPA's current position. A minimum of three slide mounts should be prepared and examined in their entirety by Polarized Light Microscopy (PLM) to determine if asbestos is present. If the amount by visual estimation appears to be less than 10 percent, the owner and/or operator “may (1) elect to assume the amount to be greater than 1 percent and treat the material as regulated asbestos-containing material or (2) require verification of the amount by point counting.” If a result obtained by point count is different from a result obtained by visual estimation, the point count result will be used.
Q2: Do the EPA interpretations contained in ADI Number C112 extend to non-friable materials that have been or will be rendered into Regulated Asbestos Containing Materials (RACM) by the forces acted on it?
A2: Yes. EPA determined that the requirement for point counting extends to non-friable materials that have been or will be rendered into RACM.
Q3: Would the EPA consider Transmission Electron Microscopy (TEM) analysis as being equally or more effective than Polarized Light
A3. Yes. In a
Q1: Are specific maintenance activities on high voltage electric transmission towers mentioned by URS Corporation facility in San Francisco, California, considered demolitions or renovations under the Asbestos NESHAP, 40 CFR part 61, subpart M?
A1: Based on the provided descriptions, EPA finds that the maintenance activities URS listed in the request are renovations under 40 CFR part 61, subpart M because the activities involve the replacement of lattice extensions and tower legs and not the permanent dismantling of the electrical transmission tower.
Q2: For the described listed renovations, are notifications required for unpainted, galvanized steel?
A2: No. Notifications are not required under the asbestos NESHAP if the owner and/or operator has thoroughly inspected the structure and, (1) determined that the work on the structure is a renovation operation and, (2) that the regulatory threshold amount of regulated asbestos-containing material (RACM) will not be met.
Q3: Would the 15 years of sampling and thousands of sampling results showing non-detection of RACM be sufficient to support no further sampling of towers for RACM?
A3: No. EPA encourages representative sampling of various building materials that are part of a renovation or demolition operation, because such testing enables the owner and/or operator to identify and manage which building materials must be handled in accordance with the asbestos NESHAP. Relying solely on historical analysis and visual inspections may not provide the owner/operator with definitive knowledge, as to whether a specific tower was ever painted with asbestos-containing paint.
Q: Does 40 CFR part 63, subpart XXXXXX apply to the metal processing operations at DePuy Orthopedics, Inc. in Raynham, MA (DePuy), which manufactures a broad range of orthopedic solutions, including hip and knee replacement components and operating room products?
A: No. EPA has determined that DePuy is not subject to subpart XXXXXX because it is not primarily engaged in manufacturing products in one of the nine metal fabrication and finishing source categories listed in section 63.11514(a) and Table 1 of the regulation.
Q: Do the diesel engines operated at Massachusetts Water Resources Authority (MWRA) facilities in Cambridge, Massachusetts fit the definition of “emergency engines” under 40 CFR part 63 subpart ZZZZ?
A: No. EPA has determined that the engines operated at MWRA's facilities do not meet the definition of emergency stationary for purposes of 40 CFR part 63 subpart ZZZZ, because these engines operate during typical large rainfall events and not only during emergencies or floods. However, the engines must meet the requirements of 40 CFR part 63 subpart ZZZZ applicable to non-emergency engines.
Q: Are the precious metals melting operations at Morgan Mill Metals in Johnston, Rhode Island, subject to 40 CFR part 63, subpart TTTTTT?
A: No. EPA has determined that because Morgan Mill Metals only produces precious metal-bearing products and does not produce brass, bronze, or zinc ingots, bars, blocks or metal powders, it does not operate a secondary nonferrous metals processing facility as defined in subpart TTTTTT.
Q: The New Hampshire Department of Environmental Services (NH DES) seeks clarification on whether a used wood-fired boiler installed at Pleasant View Gardens (PVG) in Loudon, New Hampshire, is an existing, new, or reconstructed source under 40 CFR part 63 subpart JJJJJJ?
A: EPA determines that PVG's wood-fired boiler is an existing affected source under 40 CFR part 63 subpart JJJJJJ because the boiler was constructed prior to June 4, 2010, the effective date of the rule, and the removal and reinstallation of the boiler did not trigger reconstruction as defined at 40 CFR 63.2. This applicability determination is made in reliance on the accuracy of the information provided to EPA, and does not relieve PVG of the responsibility for complying fully with any and all applicable federal, state, and local laws, regulations, and permits.
Q: The Western North Carolina Regional Air Quality Agency (WNC RAQA) seeks EPA clarification on whether the alternative monitoring approach used by an area source in its electrolytic process demonstrate continuous compliance as required by 40 CFR 63.11508(d)(6)of 40 CPR part 63, subpart WWWWWW, Area Source Standards for Platting and Polishing Operations?
A: EPA determines that the monitoring system is acceptable, assuming its operation is inspected and verified by NC RAQA, because the company uses a system that prevents plating from occurring when the tank covers are not in place. Specifically, the tank design and its interlock system ensure that the tank covers are in place at least 95 percent of the electrolytic process operating time.
Q1: The West Tennessee Permit Program Division of Air Pollution Control Department of Environment and Conservation (APC DEC) seeks clarification from EPA on whether a facility engaged in open molding operations with mechanical resin and spray gel coat applications, demonstrating compliance under 40 CFR 63.5810(b) of subpart WWWW, NESHAP for Reinforced Plastics Composites Production, is required to demonstrate compliance at the end of a month in which no hazardous air pollutant (HAP) containing materials were applied since it was not operating due to lack of product orders?
A1: Yes. The facility is required to demonstrate compliance at the end of a month in which no HAP containing materials were applied, since the calculation must be “ . . . based on the amounts of each individual resin or gel coat used for the last 12 months.”
Q2: In the event that production does resume at the facility, will it be proper for the facility to include the months in which no HAP containing materials were applied as part of the 12-month period that ends in that month in which production has resumed, or should the facility use only the most recent 11 months in which HAP containing materials were applied plus the month in which production has resumed?
A2: The facility is required to perform the calculation based on the last 12 months, regardless of whether HAP containing materials were applied during those months, whether or not production resumes.
Q: Are two electric boilers at the Elm River Lutheran Church in Galesburg, ND, which burn fuel oil as a backup fuel during power outages subject to 40 CFR part 63 subpart JJJJJJ?
A: No. The EPA believes that the intent of the rule is that electric boilers that only burn liquid fuel during a power outage would not be subject to the rule provided that the power outage is beyond the control of the boiler owner or operator.
Q: Does EPA approve a revision of the June 2, 2008 Alternative Monitoring Request (AMR) to waive metal, ash, and chlorine feed rate operating parameter limits for the Tooele Chemical Agent Disposal Facility (TOCDF) to allow the processing of 155-mm Projectile bursters?
A: Yes. EPA approves revision of TOCDF's AMP request to process 155-mm Projectile bursters in the deactivation furnace system and to limit and monitor the Projectile feed rate rather than 12 HRA feed rate for mercury, ash, semi- and low-volatile metals, and chlorine required by 40 CFR 63.1209(l), (m), (n), and (o), respectively.
Q1: Does EPA approve Huntsman demonstrating compliance with 40 CFR part 63 subpart VVVVVV's, NESHAP for Chemical Manufacturing Area Sources, management practices in 40 CFR 63.11495(a)(3) by inspecting the particulate matter (PM) collection system and baghouses in accordance with 40 CFR 63.11602(a)(2)(ii) of 40 CFR part 63 subpart CCCCCCC, NESHAP for Paints and Allied Products Manufacturing, at its Huntsman Advanced Materials facility in Los Angeles, California, which has several storage vessels subject to subpart VVVVVV and two storage vessels subject to subpart CCCCCCC?
A1: No. EPA determines that the proposal to inspect the PM collection system and baghouses in lieu of inspecting the actual process vessel, cover, and equipment is not acceptable since these are not-overlapping rule requirements along the air emissions path. EPA believes that leaks can occur anywhere along the air emissions path from the mixing vessels to the stack. Therefore, process vessels, covers, and equipment subject to subpart VVVVVV must be inspected according to 40 CFR 63.11495(a)(3).
Q2: Does EPA approve Huntsman's use of one of several proposed alternatives to comply with the ductwork inspection requirements at 40 CFR 63.11495(a)(3) of subpart VVVVVV and 40 CFR 63.11602(a)(2)(ii) of subpart CCCCCCC?
A2: Yes. EPA conditionally approves Huntsman use of Option 1(2) to meet the inspection requirements of the ductwork only, which state: “inspect flexible and stationary ductwork, according to 40 CFR 63.11602(a)(2)(ii), as required, at the specified timeframes whether or not emissions are being actively controlled on every vessel that uses the common control device header.” The condition for approval is that Huntsman must also record which process vessels were in operation during each inspection. Each mixing pot must be operational at least once a year during quarterly inspections and at least once a quarter during weekly inspections.
Q3: Is the rigid cartridge filter Huntsman uses in its baghouses to control PM emissions excluded from the annual inspection requirements of 40 CFR 63.11602(a)(2)(ii)(B) since it does not meet the definition of “fabric filter” in 40 CFR 63.11607, and therefore may be excluded from the annual inspection requirement 40 CFR 63.11602(a)(2)(ii)(B) of subpart CCCCCCC?
A3: Yes. EPA believes the rigid cartridge meets the definition of fabric filter in the rule. In addition, EPA believes that the Huntsman existing preventive maintenance program based on pressure differential established in Condition 5 of the South Coast Air Quality Management District “Permit to Operate” is an acceptable alternative to checking “the condition of the fabric filter.” Huntsman is still required to conduct inspection of the rigid, stationary ductwork for leaks, and of the interior of the dry particulate control unit for structural integrity, according to 40 CFR 63.11602(a)(2)(ii)(B).
Q: Does EPA approve a change in test methods, from Method 5 to Methods 201 A and 202, for determining compliance with the particulate emissions standards in 40 CFR 63.1343(b)(1) of NESHAP Subpart LLL for Portland Cement Plants at the Cemex Construction Materials South (Cemex) Portland cement plant located in New Braunfels, Texas?
A: No. EPA does not approve the Cemex request for a change in test methods for determining compliance with the particulate emissions standards in 40 CFR part 63 subpart LLL. Cemex retroactively requested that EPA Region 6 approve a change in test methods, from Method 5 to Methods 201A and 202 after the tests were conducted in January 2011. The use of alternate test methods must be approved in writing in advance of testing. Additionally, EPA Headquarters Office of Air Quality Planning and Standards (OAQPS), who has the delegation to approve these types of changes in test methods, stated that it would not have approved this change in the test method because the alternate method was not acceptable for compliance demonstration under 40 CFR part 63 subpart LLL.
Q: Does EPA approve a waiver to monitor only the liquid flow rate (and not pH) through five water absorbers used to control emissions from tank truck loading and storage tanks subject to 40 CFR part 63 subpart NNNNN, at the Dow Chemical Company's (Dow) production facility in Plaquemine, Louisiana?
A: No. EPA believes that more than one parameter should be monitored to provide a more complete determination of control performance. Monitoring liquid flow alone is insufficient to determine control effectiveness. Even in once-through absorbers, measurement of effluent pH ensures that the effluent has not reached the acid saturation concentration limit and is capable of absorbing additional acid vapor. Although 40 CFR part 63 subpart MMM allows either liquid flow rate or pressure drop to be chosen as monitored operating parameters, EPA stated in the response to comments for promulgation of 40 CFR part 63 subpart NNNNN in March 2006 that what applies in 40 CFR part 63 subpart MMM may not be appropriate for facilities subject to 40 CFR part 63 subpart NNNNN.
Q: Does EPA approve of comparative temperature monitoring as a type of calibration verification that meets 40 CFR 63.3350(e)(9) of subpart JJJJ, Paper and Other Web Coating NESHAP, at the 3M's Medina, Ohio facility? If not, can this comparative monitoring technique be allowed as an alternative monitoring parameter to the calibration verification requirements?
A: No. EPA finds that that this comparative monitoring is not the same as a calibration verification as specified by 40 CFR part 63 subpart JJJJ. However, EPA can approve it as an alternative monitoring parameter to the calibration verification requirements in 40 CFR 63.3350(e)(9).
Q. Will the overhaul of a 4400 horsepower Reciprocating Internal Combustion Engine (RICE) by Fairbanks Morse Engine (FME) facility in Beloit, Wisconsin, trigger reconstruction or modification under 40 CFR part 63, subpart IIII and JJJJ?
A. No. FME overhaul costs of the engine are less than 50 percent of the cost of a comparable new facility, and modification will not be triggered because emissions will not be increased. After the engine is overhauled, the engine might be subject to 40 CFR part 63, subpart ZZZZ depending on how much diesel fuel is used in a calendar year.
Q: Is Vesatas' facility in Pueblo, CO subject to the NESHAP Area Source Standards for Nine Metal Fabrication and Finishing Source Categories, 40 CFR part 63 subpart XXXXXX, and is Vestas subject to the notification, recordkeeping, and reporting requirements of the regulation?
A. No. EPA finds that Vesatas' facility is not subject to 40 CFR part 63 subpart XXXXXX because it is not a major source of hazardous air pollutants (HAP), and the rule applies to area sources as specified at 40 CFR 63.11514. Because Vestas is not subject to 40 CFR part 63 subpart XXXXXX, Vestas would not be subject to the notification, record-keeping, and reporting requirements of the regulation.
Q. Does EPA approve the petition to waive the initial performance testing for four identical reciprocating internal combustion engines (RICE) at the Saint-Gobian Containers, Inc., Burlington, Wisconsin plant?
A: Yes. EPA approves the petition to waive the initial performance testing provided that the company can show the units are similar, burn the same fuel, and otherwise meet the criteria contained in EPA's stack testing guidance dated September 30, 2005.
Q: Does EPA approve a request to establish a minimum combustion air pressure of 20 inches of water column on an instantaneous basis based upon operating experience as the liquid waste firing system (WFS) operating parameter limit (OPL) at the Lubrizol Corporation's Painesville facility in Ohio?
A: Yes. EPA approves Lubrizol's request to establish a minimum combustion air pressure of 20 inches of water on an instantaneous basis at all times while feeding liquid waste for its WFS OPL. EPA determined that the proposed waste firing system OPL ensures that the same or greater surface area of the waste is exposed to combustion conditions (e.g., temperature and oxygen) during normal operating conditions, as the incinerator demonstrated during the 2003 destruction and removal efficiency test.
Q1. Is the MSW Power gasification unit located at the MSW Power Corporation's (MSW Power's) Green Energy Machine located at the Plymouth County Correctional Facility in Plymouth, Massachusetts subject to 40 part 60 subpart EEEE?
A1. No. EPA has determined that because of the energy recovery exemption in the definition of institutional waste, MSW Power gasification unit is not subject to 40 part 60 subpart EEEE while it is processing waste generated by the Plymouth County Correctional Facility and located on their grounds.
Q2. Is the MSW Power boiler which combusts only syngas generated by the gasifier subject to 40 part 63 subpart JJJJJJ?
A2. No. EPA has determined that because the MSW Power boiler burns only syngas, a gaseous fuel, the boiler is a gas-fired boiler as defined in the rule and therefore it is not subject to 40 part 63 subpart JJJJJJ.
Q1. Is the Jacobs Vehicle Systems facility located in Bloomfield, Connecticut (Jacobs Vehicle), subject to 40 CFR part 63 subpart T if it does not use and it has no present intention of using any of the listed hazardous air pollutants (HAP) solvents in its degreaser in the future?
A1. No. EPA determines that because Jacobs Vehicle has certified that it no longer uses any of the listed HAP solvents due to switching degreasers and based on its commitment that it will continue in that mode for the foreseeable future, Jacobs Vehicle's degreasers and Jacobs Vehicle's facility are no longer subject to 40 CFR part 63 subpart T.
Q2. May Jacobs Vehicle take potential to emit restrictions to below major HAP source levels and no longer be subject to 40 CFR part 63 subpart PPPPP?
A2. Yes. EPA determines that Jacobs Vehicle may now limit its potential to emit to below major HAP source levels and no longer be subject to 40 CFR part 63 subpart PPPPP. Jacobs Vehicle test cells are an existing affected source subject to subpart PPPPP, because these were constructed before May 14, 2002, and not reconstructed after May 14, 2002, but do not have to meet an emission limitation or other substantive rule requirements. Since subpart PPPPP does not set a substantive compliance date for Jacobs Vehicle to comply with an emission limit or other substantive rule requirement for its Jacobs Vehicle test cells, the EPA's general policy referred to as “once in, always in” policy would not apply. EPA's “once in, always in” policy is that sources that are major on the first substantive compliance date of a NESHAP (and, therefore, subject to the requirements of the NESHAP that apply to major sources) remain major sources for purposes of that NESHAP from that point forward, regardless of the level of their potential HAP emissions after that date.
Q3. If Jacobs Vehicle takes facility wide potential to emit restrictions to below major HAP source levels, would its existing compression ignition engine become subject to the area source provisions of 40 CFR part 63 subpart ZZZZ?
A3. Yes. EPA's “once in, always in” policy would allow Jacobs Vehicle to take restrictions on its facility-wide potential to emit to below major HAP source levels and become an area source of HAP for purposes of 40 CFR part 63 subpart ZZZZ applicability before the first compliance date of May 3, 2013. If Jacobs Vehicle were to do so before May 3, 2013, its compression ignition engine would then be subject to the requirements for engines located at an area source of HAP.
Q4. If Jacobs Vehicle takes facility wide potential to emit restrictions to below major HAP source levels, would its existing boilers no longer be subject to 40 CFR part 63 subpart DDDDD? Would the existing boilers then become subject to the area source provisions of 40 CFR part 63 subpart JJJJJJ?
A4. Yes. EPA's “once in, always in” policy would allow Jacobs Vehicle to take restrictions on its facility-wide potential to emit to below major HAP source levels to become an area source of HAP and no longer be subject to 40 CFR part 63 subpart DDDDD before the first compliance date of 40 CFR part 63 subpart DDDDD. Because Jacobs Vehicle's boilers meet the definition of gas-fired boilers, provided they continue to do so, the boilers would not be subject to 40 CFR part 63 subpart JJJJJJ if Jacobs Vehicle became an area source of HAP.
Q: Does EPA approve ExxonMobil's alternative monitoring plan (AMP) request for calculating the sulfur
A: No. EPA does not approve ExxonMobil's AMP request. EPA determined that the request was not a rule-based proposal related to ExxonMobil's inability to meet existing 40 CFR part 63 subpart UUU provisions, but rather, a proposed alternative method to meet Consent Decree requirements that are separate from compliance with the rule.
Q: Does EPA approve ExxonMobil's Alternative Monitoring Plan (AMP) for calculating the flue gas flow rate on two refinery Fluid Catalytic Cracking Units (FCCU), in lieu of direct measurement, to demonstrate initial and continuous compliance with the metal emission standard of 40 CFR 63.1564(a)(1)(iv), described as Option 4 in 40 CFR part 63 subpart UUU, and in accordance with Tables 1, 2, 6 and 7 of the final rule for Option 4, at ExxonMobil's Baton Rouge, Louisiana refinery?
A: Yes. EPA conditionally approves ExxonMobil's AMP request, as described in the EPA response letter. The maximum acceptable difference in stack-test measured and calculated total flue gas flow rate values shall be within ± 7.5 percent. Evaluation and adjustment of affected process monitors must be completed within three months of a stack testing event that resulted in a difference value greater than ± 7.5 percent. If any three consecutive stack testing events result in the need for corrective action adjustments, ExxonMobil must conduct a new stack test within ninety days of the third corrective action implementation in order to verify that the gas flow rate correlation and calculation method are still valid. ExxonMobil should ensure that this approval is referenced and attached to the facility's new source review and Title V permits for federal enforceability and is included in the refinery's Consent Decree.
Q: Are sour water streams managed upstream of a refinery sour water stripper at the Flint Hills Resources Corpus Christi East Refinery in Tulsa, Oklahoma subject to the Benzene Waste Operations 40 CFR part 61 subpart FF?
A: Yes. EPA has determined that the facility must comply with the requirements of 40 CFR part 61 subpart FF for sour water streams managed upstream of a sour water stripper based on the characteristics of the waste streams at the point that the waste water exits the sour water stripper. At facilities with total benzene equal to or greater than 10 megagram per year, all benzene-contaminated wastes are subject to the control requirements of 40 CFR part 61 subpart FF, not just the end waste streams counted toward the total annual benzene amount. EPA's response is based on the 1993 rule amendments which were issued after the March 21, 1991 letter from EPA to the American Petroleum Institute that Flint Hills' mentioned in the request.
Q1: Does the Area Source Boiler Rule, NESHAP subpart JJJJJJ exempt steam boilers that service mixed residential and commercial facilities from regulation?
A1: Yes. EPA clarifies to the National Oilheat Research Alliance that if a boiler meets the definition in 40 CFR 63.11237 of a residential boiler, it is not subject to the requirements of the Area Source Boiler Rule. In that definition, the boiler must be “primarily used to provide heat and/or hot water for: (1) A dwelling containing four or fewer families, or (2) A single unit residence dwelling that has since been converted or subdivided into condominiums or apartments.” EPA intends “primarily” to be interpreted as its common meaning. Therefore, a mixed-use facility must have a majority of the heat and/or hot water produced by the boiler allocated to the residential unit or units. One way a facility could demonstrate primary use is by showing that a majority of the facility's square footage is residential, but EPA recognizes that there may be other ways for a facility to demonstrate primary use.
Q2: Does the Area Source Boiler Rule define mixed residential and commercial buildings as strictly commercial or residential in use?
A2: No. EPA recognizes that some buildings may be used for a variety of uses. The nature of the building is only relevant in terms of determining whether a boiler is primarily used to service the commercial or residential facilities located within the building.
Q: Does EPA approve of the use of closed/covered chromium electroplating and anodizing tanks at the Southern Graphics Systems, Inc, Waukesha, Wisconsin facility in order to satisfy the requirement of a “physical barrier” per the “housekeeping practice” provisions in 40 CFR part 63 subpart N?
A: Yes. EPA conditionally approves the use of closed/covered chromium electroplating and anodizing tanks in order to satisfy the physical barrier requirement of 40 CFR part 63 subpart N. This approval is conditioned upon these tanks being closed/covered at all times buffing, grinding and polishing operations take place; and, the surface area of the tanks is a hundred percent covered, with no visible gaps on the top or side of the tank, except for ventilation inlets routed to a control device under negative pressure.
Q: Does EPA approve Colonial Pipeline Company's alternative monitoring request for use of top-side in-service inspections to meet the out-of-service inspection requirements for specific types of internal floating roof tanks with uniform and specific roof, deck, and seal configurations at several facilities, subject to several gasoline distribution (GD)-related regulations (40 CFR part 63, subpart R (GD MACT) and 40 CFR part 63, subpart BBBBBB (GD GACT) and/or 40 CFR part 60, subpart Kb, NSPS for Volatile Organic Liquid Storage Vessels)?
A: Yes. EPA approves Colonial's top-side in-service internal inspection methodology for the IFR tanks specified in the AMP request, which have uniform and specific roof, deck, and seal configurations, to meet the NSPS Kb internal out-of-service inspection required at intervals no greater than 10 years by the applicable regulations. EPA has determined that for the specified IFR storage tanks (tanks that are full contact, aluminum honeycomb panel constructed decks with mechanical shoe primary and secondary seals in tanks with geodesic dome roofs equipped with skylights), Colonial will be able to have visual access to all of the requisite components (i.e., the primary and secondary mechanical seals, gaskets, and slotted membranes) through the top side of the IFR storage tanks, as well as properly inspect and repair the requisite components while these tanks are still in service, consistent with the inspection and repair requirements established under NSPS Subpart Kb. In addition, Colonial's top-side in-service internal inspection methodology includes more stringent requirements than would otherwise be applicable to the IFR storage tanks specified in the AMP request. Colonial has agreed to (1) identifying and addressing any gaps of more than 1/8 inch between any deck fitting gasket, seal, or wiper and any surface that it is intended to seal; comply with the fitting and deck seal requirements and the repair time frame
Q: Are solvent transfer racks and transport equipment, which are dedicated for the use of unloading hexane from transport vehicles to a vegetable oil production plant, located at the PICO Northstar Hallock facility (PICO Hallock) in Minnesota, subject to part 63, subpart GGGG, Solvent Extraction for Vegetable Oil Production NESHAP or to subpart EEEE, Organic Liquids Distribution (Non-Gasoline) National Emission Standards for Hazardous Air Pollutants?
A: EPA agrees that the PICO Hallock solvent transfer racks and equipment are subject to 40 CFR part 63 subpart GGGG and are not subject to 40 CFR part 63 subpart EEEE, because they would fall under the definition of “Vegetable oil production process” in the rule. Although solvent transfer racks and equipment which are dedicated for the use of unloading hexane from transport vehicles to a vegetable oil production facility are not explicitly mentioned in the definition of vegetable oil production process in 40 CFR part 63 subpart GGGG, they should be considered part of the “equipment comprising a continuous process for producing crude vegetable oil and meal products” when they are used solely to support the vegetable oil production process. EPA believes that the information provided by PICO Hallock confirms that the solvent transfer racks at the facility are exclusively used for this limited purpose.
Q: Does EPA approve United Services Automobile Association's (USAA) petition for additional testing hours under 40 CFR 60.4211(f), for additional maintenance checks and readiness testing hours of six emergency generator internal combustion engines at USAA's San Antonio, Texas headquarters facility?
A: Yes. EPA conditionally approves USAA's request. USAA demonstrated that extensive testing and maintenance of the emergency generators is required to ensure electrical continuity and reliability for maintaining critical operations in a continuous standby mode for immediate emergency use. EPA granted conditional approval of additional testing and maintenance hours on the six engines, provided that the facility maintains documentation to show that the additional hours are not used for meeting peak electrical demand.
Q: Does EPA approve an extension of the initial performance test deadline for a new biomass-fired cogeneration boiler (boiler) due to a force majeure event at the Nippon Paper Industries USA Corporation, Ltd. (NPIUSA) facility in Port Angeles, Washington?
A: Yes. EPA determines that a force majeure event, as defined in 40 CFR part 60, subpart A and 40 CFR part 63, subpart A, has occurred and that an extension of the performance test deadline under the applicable federal standards is appropriate. The inability to meet the performance test deadline was caused by circumstances beyond the control of NPIUSA, its contractors, or any entity controlled by NPIUSA and therefore constitutes a force majeure as defined in 40 CFR 60.2 and 63.2. The letters and supporting documentation submitted by NPIUSA provided timely notice, described the claimed force majeure event and why the event prevents NPIUSA from meeting the deadline for conducting the performance testing, what measures are being taken to minimize the delay, and NPIUSA's proposed date for conducting the testing. The EPA therefore believes it is appropriate to extend the performance test deadline.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before November 3, 2014. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418–2918.
(a) Required video programming distributors to make best efforts to obtain certification from video programmers that their programming (i) complies with the captioning quality standards established in the Report and Order; (ii) adheres to the Best Practices for video programmers set out in the Report and Order; or (iii) is exempt from the closed captioning rules under one or more properly attained and specified exemptions.
(b) Adopted additional requirements and a “compliance ladder” for broadcasters that use electronic newsroom technique.
(c) Required video programming distributors to keep records of their activities related to the maintenance, monitoring, and technical checks of their captioning equipment.
(d) Required that petitions requesting an exemption based on the economically burdensome standard and all subsequent pleadings, as well as comments, oppositions, or replies to comments, be filed electronically in accordance with 47 CFR 0.401(a)(1)(iii) instead of as a paper filing. Comments, oppositions, or replies to comments must be served on the other party, by delivering or mailing a copy to the last known address in accordance with 47 CFR 1.47 or by sending a copy to the email address last provided by the party, its attorney, or other duly constituted agent, and must include a certification that the other party was served with a copy.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 32.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Federal Financial Institutions Examination Council.
Notice of meeting.
If you plan to attend the meeting in person, we ask that you notify the Federal Reserve Board via email at
11:00 a.m., Thursday, September 11, 2014.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (entry from F Street entrance).
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Emogene Johnson (202) 434–9935/(202) 708–9300 for TDD Relay/1–800–877–8339 for toll free.
10:00 a.m., Thursday, September 11, 2014.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (entry from F Street entrance).
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Emogene Johnson (202) 434–9935/(202) 708–9300 for TDD Relay/1–800–877–8339 for toll free.
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 17, 2014.
A. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480–0291:
1.
U.S. General Services Administration (GSA).
Notice.
Pursuant to the National Environmental Policy Act (NEPA) of 1969, as implemented by the Council on Environmental Quality regulations (40 Code of Federal Regulations [CFR] parts 1500–1508), the GSA announces its intent to prepare a Supplement to the Draft Environmental Impact Statement (EIS), released October 26, 2012, analyzing the environmental impacts of site acquisition and development of the United States Department of State (DOS), Bureau of Diplomatic Security, Foreign Affairs Security Training Center (FASTC) at the Virginia Army National Guard Maneuver Training Center at Fort Pickett (Fort Pickett) and Nottoway County's Local Redevelopment Authority (LRA) area in Nottoway County, Virginia.
The Supplemental Draft EIS is being prepared to address substantial changes to the proposed action that are relevant to environmental concerns, as required under NEPA (40 CFR 1502.9), and will assess any new circumstances or information relevant to potential environmental impacts. The Supplemental Draft EIS will incorporate by reference and build upon the analyses presented in the 2012 Draft EIS, and will document the Section 106 process under the National Historic Preservation Act of 1966, as amended (36 CFR Part 800).
GSA will prepare the Supplemental Draft EIS in cooperation with DOS, United States Army Corps of Engineers, United States Environmental Protection Agency, and National Guard Bureau.
Future notices will be published to announce the availability of the Supplemental Draft EIS and additional opportunities for public input.
Abigail Low, GSA Project Manager; 20 N 8th Street, Philadelphia, PA 19107 (215) 446–4815,
Fort Pickett and Nottoway County's LRA area in Nottoway County near Blackstone, Virginia was selected as a potential site in July 2011, and a Draft EIS was released in October 2012. In early 2013, the Administration indicated all efforts and work at the proposed site in Fort Pickett Army National Guard Maneuver Training Center and Nottoway County's LRA area should be put on hold pending additional due diligence and reviews at an existing training site in Georgia. As part of the due diligence effort requested by the Administration, DOS conducted site visits to the Federal Law Enforcement Training Center (FLETC) in Glynco, Georgia. During this time period, DOS assessed the scope and size of the FASTC project and determined a smaller platform at Fort Pickett was more fiscally prudent.
In April 2014, the Administration re-affirmed the earlier DOS selection of the FASTC proposed sites in Fort Picket Army National Guard Maneuver Training Center and the Nottoway County LRA area at a reduced scope of requirements. The project will proceed as a hard-skills only facility.
Based on adjustments made to the proposed FASTC Program, DOS has undertaken the preparation of a Master Plan Update that modifies the previous alternatives evaluated in the 2012 Draft EIS. The Master Plan Update concept will be evaluated as Build Alternative 3 in the Supplemental Draft EIS. The alternatives to be fully evaluated in the Supplemental Draft EIS include the No Action Alternative and Build Alternative 3.
The proposed location of Build Alternative 3 includes three adjacent land parcels: Fort Pickett Parcels 21/20 and Grid Parcel, and Nottoway County LRA Parcel 9.
The Supplemental Draft EIS will assess potential impacts that may result from the modified alternative, including, air quality, noise, land use, socioeconomics, traffic, infrastructure and community services, natural resources, biological resources, cultural resources, and safety and environmental hazards. The analysis will evaluate direct, indirect, and cumulative impacts. Relevant and reasonable measures that could avoid or mitigate environmental effects will also be analyzed. Additionally, GSA will undertake any consultations required by applicable laws or regulations, including the National Historic Preservation Act.
No decision will be made to implement any alternative until the NEPA process is completed and a Record of Decision is signed.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Request for Scientific Information Submissions.
The Agency for Healthcare Research and Quality (AHRQ) is seeking scientific information submissions from the public. Scientific information is being solicited to inform our review of Diagnosis of Gout, which is currently being conducted by the Evidence-based Practice Centers for the AHRQ Effective Health Care Program. Access to published and unpublished pertinent scientific information will improve the quality of this review. AHRQ is conducting this systematic review pursuant to Section 1013 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Public Law 108–173, and Section 902(a) of the Public Health Service Act, 42 U.S.C. 299a(a).
Submission Deadline on or before October 3, 2014.
Online submissions:
Email submissions:
Print submissions:
Mailing Address: Portland VA Research Foundation, Scientific Resource Center, ATTN: Scientific Information Packet Coordinator, PO Box 69539, Portland, OR 97239.
Shipping Address (FedEx, UPS, etc.): Portland VA Research Foundation, Scientific Resource Center, ATTN: Scientific Information Packet Coordinator, 3710 SW U.S. Veterans Hospital Road, Mail Code: R&D 71, Portland, OR 97239.
Ryan McKenna,Telephone: 503–220–8262 ext. 58653 or Email:
The Agency for Healthcare Research and Quality has commissioned the Effective Health Care (EHC) Program Evidence-based Practice Centers to complete a review of the evidence for Diagnosis of Gout.
The EHC Program is dedicated to identifying as many studies as possible
This notice is to notify the public that the EHC Program would find the following information on Diagnosis of Gout helpful:
• A list of completed studies that your organization has sponsored for this indication. In the list, please indicate whether results are available on ClinicalTrials.gov along with the ClinicalTrials.gov trial number.
• For completed studies that do not have results on ClinicalTrials.gov, please provide a summary, including the following elements: study number, study period, design, methodology, indication and diagnosis, proper use instructions, inclusion and exclusion criteria, primary and secondary outcomes, baseline characteristics, number of patients screened/eligible/enrolled/lost to followup/withdrawn/analyzed, effectiveness/efficacy, and safety results.
• A list of ongoing studies that your organization has sponsored for this indication. In the list, please provide the ClinicalTrials.gov trial number or, if the trial is not registered, the protocol for the study including a study number, the study period, design, methodology, indication and diagnosis, proper use instructions, inclusion and exclusion criteria, and primary and secondary outcomes.
• Description of whether the above studies constitute ALL Phase II and above clinical trials sponsored by your organization for this indication and an index outlining the relevant information in each submitted file.
Your contribution will be very beneficial to the EHC Program. The contents of all submissions will be made available to the public upon request. Materials submitted must be publicly available or can be made public. Materials that are considered confidential; marketing materials; study types not included in the review; or information on indications not included in the review cannot be used by the EHC Program. This is a voluntary request for information, and all costs for complying with this request must be borne by the submitter.
The draft of this review will be posted on AHRQ's EHC Program Web site and available for public comment for a period of 4 weeks. If you would like to be notified when the draft is posted, please sign up for the email list at:
The systematic review will answer the following questions. This information is provided as background. AHRQ is not requesting that the public provide answers to these questions. The entire research protocol is also available online at:
• What is the accuracy of clinical signs and symptoms and other diagnostic tests (such as serum uric acid, ultrasound, CT scan, DECT, and plain x-ray), alone or in combination, compared to synovial fluid analysis in the diagnosis of acute gouty arthritis, and how does the accuracy affect clinical decision making, clinical outcomes and complications, and patient centered outcomes?
• How does the diagnostic accuracy of clinical signs and symptoms and other tests vary by affected joint site and number of joints?
• Does the accuracy of diagnostic tests for gout vary by duration of symptoms (i.e., time from the beginning of a flare)
• Does the accuracy of synovial fluid aspiration and crystal analysis differ by i) the type of practitioner who is performing the aspiration and ii) the type of practitioner who is performing the crystal analysis?
What are the adverse effects associated with each diagnostic test (including pain, infection at the aspiration site, radiation exposure) or harms (related to false positives, false negatives, indeterminate results) associated with tests used to diagnose gout?
Agency for Healthcare Research and Quality (AHRQ), HHS.
Request for Scientific Information Submissions.
The Agency for Healthcare Research and Quality (AHRQ) is seeking scientific information submissions from the public. Scientific information is being solicited to inform our review of Emerging Approaches to Diagnosis and Treatment of Non-Muscle-Invasive Bladder Cancer, which is currently being conducted by the Evidence-based Practice Centers for the AHRQ Effective Health Care Program. Access to published and unpublished pertinent scientific information will improve the quality of this review. AHRQ is conducting this systematic review pursuant to Section 1013 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Public Law 108–173, and Section 902(a) of the Public Health Service Act, 42 U.S.C. 299a(a).
Submission Deadline on or before October 3, 2014.
Online submissions:
Email submissions:
Print submissions:
Mailing Address: Portland VA Research Foundation, Scientific Resource Center, ATTN: Scientific Information Packet Coordinator, PO Box 69539, Portland, OR 97239.
Shipping Address (FedEx, UPS, etc.): Portland VA Research Foundation, Scientific Resource Center, ATTN: Scientific Information Packet Coordinator, 3710 SW U.S. Veterans Hospital Road, Mail Code: R&D 71, Portland, OR 97239.
Ryan McKenna, Telephone: 503–220–8262 ext. 58653 or Email:
The Agency for Healthcare Research and Quality has commissioned the Effective Health Care (EHC) Program Evidence-based Practice Centers to complete a review of the evidence for Emerging Approaches to Diagnosis and Treatment of Non-Muscle-Invasive Bladder Cancer.
The EHC Program is dedicated to identifying as many studies as possible that are relevant to the questions for each of its reviews. In order to do so, we are supplementing the usual manual and electronic database searches of the literature by requesting information from the public (e.g., details of studies conducted). We are looking for studies that report on Emerging Approaches to Diagnosis and Treatment of Non-Muscle-Invasive Bladder Cancer, including those that describe adverse events. The entire research protocol, including the key questions, is also available online at:
This notice is to notify the public that the EHC Program would find the following information on Emerging Approaches to Diagnosis and Treatment of Non-Muscle-Invasive Bladder Cancer helpful:
• A list of completed studies that your organization has sponsored for this indication. In the list, please indicate whether results are available on ClinicafTrials.gov along with the ClinicalTrials.gov trial number.
• For completed studies that do not have results on ClinicalTrials.gov, please provide a summary, including the following elements: Study number, study period, design, methodology, indication and diagnosis, proper use instructions, inclusion and exclusion criteria, primary and secondary outcomes, baseline characteristics, number of patients screened/eligible/enrolled/lost to follow-up/withdrawn/analyzed, effectiveness/efficacy, and safety results.
• A list of ongoing studies that your organization has sponsored for this indication. In the list, please provide the ClinicalTrials.gov trial number or, if the trial is not registered, the protocol for the study including a study number, the study period, design, methodology, indication and diagnosis, proper use instructions, inclusion and exclusion criteria, and primary and secondary outcomes.
• Description of whether the above studies constitute ALL Phase II and above clinical trials sponsored by your organization for this indication and an index outlining the relevant information in each submitted file.
Your contribution will be very beneficial to the EHC Program. The contents of all submissions will be made available to the public upon request. Materials submitted must be publicly available or can be made public. Materials that are considered confidential; marketing materials; study types not included in the review; or information on indications not included in the review cannot be used by the EHC Program. This is a voluntary request for information, and all costs for complying with this request must be borne by the submitter.
The draft of this review will be posted on AHRQ's EHC Program Web site and available for public comment for a period of 4 weeks. If you would like to be notified when the draft is posted, please sign up for the email list at:
The systematic review will answer the following questions. This information is provided as background. AHRQ is not requesting that the public provide answers to these questions. The entire research protocol, is also available online at:
What is the diagnostic accuracy of various urinary biomarkers compared with other urinary biomarkers or standard diagnostic methods (cystoscopy, cytology, and imaging) in (1) persons with signs or symptoms warranting evaluation for possible bladder cancer or (2) persons undergoing surveillance for previously treated bladder cancer?
• Does the diagnostic accuracy differ according to patient characteristics (e.g., age, sex, ethnicity), or according to the nature of the presenting signs or symptoms?
For patients with non-muscle-invasive bladder cancer, does the use of a formal risk-adapted assessment approach to treatment decisions (e.g.,
For patients with non-muscle-invasive bladder cancer treated with transurethral resection of bladder tumor (TURBT), what is the effectiveness of various intravesical chemotherapeutic or immunotherapeutic agents for decreasing mortality or improving other outcomes (e.g., recurrence, progression, need for cystectomy, quality of life) compared with other agents, TURBT alone, or cystectomy?
• What is the comparative effectiveness of various chemotherapeutic or imnnunotherapeutic agents, as monotherapy or in combination?
• Does the comparative effectiveness differ according to tumor characteristics, such as histology, stage, grade, size, or molecular/genetic markers?
• Does the comparative effectiveness of various chemotherapeutic or immunotherapeutic agents differ according to dosing frequency, duration of treatment, and/or the timing of administration relative to TURBT?
• Does the comparative effectiveness differ according to patient characteristics, such as age, sex, ethnicity, performance status, or medical comorbidities?
For patients with high risk non-muscle-invasive bladder cancer treated with TURBT, what is the effectiveness of external beam radiation therapy (either alone or with systemic chernotherapy/immunotherapy) for decreasing mortality or improving other outcomes compared with intravesical chemotherapy/immunotherapy alone or cystectomy?
In surveillance of patients treated for non-muscle-invasive bladder cancer, what is the effectiveness of various urinary biomarkers to decrease mortality or improve other outcomes compared with other urinary biomarkers or standard diagnostic methods (cystoscopy, cytology, and imaging)?
• Does the comparative effectiveness differ according to tumor characteristics, such as histology, stage, grade, size, or molecular/genetic markers?
• Does the comparative effectiveness differ according to the treatment used (i.e., specific chemotherapeutic or immunotherapeutic agents and/or TURBT)?
• Does the comparative effectiveness differ according to the length of surveillance intervals?
• Does the comparative effectiveness differ according to patient characteristics, such as age, sex, or ethnicity?
For initial diagnosis or surveillance of patients treated for non-muscle-invasive bladder cancer, what is the effectiveness of blue light or other methods of augmented cystoscopy compared with standard cystoscopy for recurrence rates, progression of bladder cancer, mortality, or other clinical outcomes?
What are the comparative adverse effects of various tests for diagnosis and post-treatment surveillance of bladder cancer, including urinary biomarkers, cytology, and cystoscopy?
What are the comparative adverse effects of various treatments for non-muscle-invasive bladder cancer, including intravesical chemotherapeutic or immunotherapeutic agents and TURBT?
• How do adverse effects of treatment vary by patient characteristics, such as age, sex, ethnicity, performance status, or medical connorbidities such as chronic kidney disease?
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses; and (e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639–7570 or send an email to
Testing Act Early Messages and Materials for “Learn the Signs. Act Early.”—Phase II,—New—National Center on Birth Defects and Developmental Disabilities (NCBDDD), Centers for Disease Control and Prevention (CDC).
The CDC initiated the “Learn the Signs. Act Early.” (LTSAE) campaign in 2004 in an effort to improve the likelihood that children with developmental disabilities are identified and connected with appropriate services at the earliest age possible. To this end, the campaign's overall goal has been to empower parents to “Act Early” if they have concerns about their child's development. Children from families insured by Medicaid and those from families with low incomes are at higher risk for developmental delays and disabilities, and thus are the target audience for the campaign.
The study described in this information collection request seeks to assess the impact of “Act Early” messages embedded within LTSAE campaign materials. To achieve this goal, we will work with our contractor, Westat, to test revised draft messages and materials with low-income parents through focus groups and intercept interviews administered via the web on a tablet device. Parents/guardians who are age 18–55 and who have children age 5 or younger will recruited from six primary care practices (3 in the Baltimore, Maryland metropolitan area and 3 in the Atlanta, Georgia metropolitan area) to participate in focus groups followed by an intercept interview.
Selected primary care practices will see children as part of their patient population and consist of a substantial number of low income families. Each of the six selected practices will receive study promotional materials, including a poster to hang in the office and waiting room as well as handouts to leave at the front desk. These materials will advertise the focus groups and outline eligibility criteria.
Parents interested in participating will be advised to call an 800 number to be screened and scheduled for a group discussion (if eligible). The 800 number will be staffed by the Westat study team who will be responsible for screening and scheduling. Representatives from each of the practices will be provided with brief “talking points” and study FAQs to refer to if interested parents have any basic questions about the study. It is estimated that 80 respondents will have to be screened in order to recruit 40 participants for the focus groups.
The focus groups will have 10 participants each. Four focus groups will be conducted in two locations (the metropolitan areas of Atlanta, Georgia and Baltimore, Maryland) with a total of 40 participants. Parents/guardians will be asked to complete an informed consent, which will take approximately 15 minutes to review and the focus group discussion using the moderator's guide will take 60 minutes to complete. Both of these focus group activities will have a total burden of 50 hours.
We plan to conduct a total of 40 intercept interviews. The intercept interviews will take place in the waiting rooms or right outside the waiting rooms. Parents will be recruited as they are waiting for their appointment. It is estimated that 80 respondents will have to be screened in order to recruit 40 participants. Twenty interviews will be conducted in each of two locations (Atlanta, Georgia and Baltimore, Maryland). The intercept interview will be conducted as a computer-assisted personal interviewing (CAPI) and will take each respondent approximately 15 minutes to complete, for an estimated total burden of 10 hours.
The total estimated burden for this data collection is 74 hours. There is no cost to respondents other than their time.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses; and (e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639–7570 or send an email to
Monitoring and Reporting System for Chronic Disease Prevention and Control Programs (OMB No. 0920–0870, exp. 11/30/2014)—Revision—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Tobacco use is the single most preventable cause of death and disease in the United States. Tobacco use causes heart disease and strokes, lung cancer and many other types of cancer, chronic obstructive pulmonary disease, lung disorders, pregnancy problems, sudden infant death syndrome, gum disease, and vision problems. Approximately 480,000 Americans die from tobacco-related illnesses annually, a higher number of deaths than the combined total deaths from HIV/AIDS, alcohol use, cocaine use, heroin use, homicides, suicides, motor vehicle crashes, and fires. For every person who dies from tobacco use, 20 more people suffer with at least one serious tobacco-related illness. There are also severe economic consequences of tobacco use as the U.S. spends approximately $280 billion annually in direct medical expenses and lost productivity attributable to the effects of tobacco use.
The National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP) provides funding to health departments in States, territories, and the District of Columbia to implement and evaluate chronic disease prevention and control programs, including tobacco control programs. Currently, CDC has cooperative agreements to support tobacco control programs in all 50 states and the District of Columbia under FOA DP14–1415, an extension of FOA DP09–901. These cooperative agreements technically ended on March 28, 2014, however a one-year cost extension (DP14–1415) was granted. Due to the cost extension, final reports on awardee activities are due to CDC approximately 90 days after the end of the funding period (Summer 2015).
In order to maintain continuity in progress reporting through the end of the cost extension, CDC requests OMB approval to continue the collection of information from tobacco control program awardees for one year. Awardees will continue to submit progress reports through a Web-based management information system (MIS).
CDC will continue to collect information about each awardee's tobacco control objectives, planning, activities, resources, partnerships, strategies, and progress toward meeting objectives. Awardees will use the information reported through the electronic MIS to manage and coordinate their activities and to improve their efforts. CDC will use the information reported through the MIS to document and monitor each awardee's progress and to make adjustments, as needed, in the type and level of technical assistance provided to them. The information collection allows CDC to oversee the use of federal funds, and identify and disseminate information about successful tobacco control strategies implemented by awardees. CDC also uses the information to respond to Congressional and stakeholder inquiries about awardee activities, program implementation, and program impact.
Progress reporting through the MIS is required for CDC funded awardees. There are no costs to respondents other than their time. There are no changes to the content of the information collection or the estimated burden per response. The only changes are a decrease in the number of tobacco control program respondents from 53 to 51, and a change in reporting frequency from semi-annual to annual. As a result, there will be a net reduction of 330 annualized burden hours. For the one-year period of this Revision request, the total estimated annualized burden hours are 306.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. To request more information on the below proposed project or to obtain a copy of the information collection plan and instruments, call 404–639–7570 or send comments to Leroy A. Richardson, 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget (OMB) approval. 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; (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; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information. Written comments should be received within 60 days of this notice.
National Health Interview Survey (NHIS) (OMB No. 0920–0214, expires 03/31/2016)—Revision—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306 of the Public Health Service (PHS) Act (42 U.S.C. 242k), as amended, authorizes that the Secretary of Health and Human Services (DHHS), acting through NCHS, shall collect data on the extent and nature of illness and disability of the population of the United States. The annual National Health Interview Survey is a major source of general statistics on the health of the U.S. population and has been in the field continuously since 1957. Clearance is sought for three years, to collect data for 2015, 2016, and 2017.
This voluntary and confidential household-based survey collects demographic and health-related information on a nationally representative sample of persons and households throughout the country. Personal identification information is requested from survey respondents to facilitate linkage of survey data with health-related administrative and other records.
Each year we collect information from approximately 55,000 households, which contain about 137,500 individuals.
Information is collected using computer assisted personal interviews (CAPI). A core set of data is collected each year that remains largely unchanged while sponsored supplements vary from year to year. The core set includes sociodemographic characteristics, health status, health care services, and health behaviors. For 2015, supplemental questions will be cycled in pertaining to cancer control, epilepsy, and inflammatory bowel disease and occupational health.
Supplemental topics that continue or are enhanced from 2014 will be related to food security, heart disease and stroke, children's mental health, disability and functioning, sexual orientation, smokeless tobacco and e-cigarettes, immunizations, and computer use. Questions on the Affordable Care Act from 2014 have been reduced in number in 2015. In addition, a follow-back survey will be conducted on previous NHIS respondents. The follow-back survey will focus on topics related to the Affordable Care Act including health care access and use, and health insurance coverage and will include multiple modes of contacting respondents.
To improve the analytic utility of NHIS data, minority populations are oversampled annually. In 2015, sample augmentation procedures used in previous years will continue to increase the number of African American, Hispanic, and Asian American persons.
In accordance with the 1995 initiative to increase the integration of surveys within the DHHS, respondents to the NHIS serve as the sampling frame for the Medical Expenditure Panel Survey conducted by the Agency for Healthcare Research and Quality. The NHIS has long been used by government, academic, and private researchers to evaluate both general health and specific issues, such as cancer, diabetes, and access to health care. It is a leading source of data for the Congressionally mandated “Health US” and related publications, as well as the single most important source of statistics to track progress toward the National Health
There is no cost to the respondents other than their time.
Health Resources and Services Administration, HHS.
Notice of Class Deviation from Competition Requirements for Delta States Rural Development Network Grant Program.
The Office of Rural Health Policy (ORHP) is announcing supplemental awards to the current Delta States Rural Development Network Grant Program (Delta States) grantees. The supplemental funds will allow current Delta grantees to implement outreach and enrollment activities to the rural uninsured in the Mississippi Delta for the next Affordable Care Act's (ACA) Health Insurance Marketplace open enrollment period (November 15, 2014—February 15, 2015). In addition, it will help educate the newly insured about the insurance and benefits they can now access as a result of enrolling during the initial Health Insurance Marketplace open enrollment period. The overarching goals of this supplemental funding are to: (1) increase the number of uninsured educated about their coverage options, (2) increase the number of uninsured enrolled into the Health Insurance Marketplaces or other available sources of insurance, such as Medicaid and the Children's Health Insurance Program, and (3) increase the number of newly insured individuals educated about the benefits and primary care and preventative services to which they now have access.
Public Health Service Act, Section 330A (e) (42 U.S.C. 254(c)), as amended.
CAPT Valerie A. Darden, MHS,
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c) (4) and 552b(c) (6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
This is notice that the Centers for Disease Control and Prevention, Department of Health and Human Services, is contemplating the transfer of ownership and exclusive use of 510(k) Number K113336 to American Type Culture Collection (ATCC), a District of Columbia non-profit corporation. 510(k) Number K113336 allows marketing of the CDC DENV–1–4 Real-Time RT–PCR Assay, an
Only written comments and/or applications for a license to practice the inventions embodied in HHS Ref. No E–148–2013/0 that include a request for the transfer of 510(k) Number K113336 that are received by the NIH Office of Technology Transfer on or before October 3, 2014 will be considered.
Any inquiries, comments, or other materials relating to the contemplated 510(k) transfer should be directed to: Tara L. Kirby, Ph.D., Unit Chief, CDC Unit, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852–3804; Telephone: (301) 435–4426; Facsimile: (301) 402–0220; Email:
Complete applications for a license to practice the inventions embodied in HHS Ref. No E–148–2013/0 that include a request for the transfer of 510(k) Number K113336 filed in response to this notice will be treated as objections to the grant of the contemplated transfer. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Coast Guard, Department of Homeland Security.
Notice of Federal Advisory Committee Meeting.
The Commercial Fishing Safety Advisory Committee will meet in Providence, Rhode Island to discuss various issues relating to safety in the commercial fishing industry. This meeting will be open to the public.
The Committee will meet on Tuesday, September 23 and Wednesday, September 24, 2014, from 8 a.m. to 5:30 p.m. The meeting may close early if all business is finished. All submitted written materials, comments, and requests to make an oral presentation at the meeting should reach Jack Kemerer, Alternate Designated Federal Officer for the Commercial Fishing Safety Advisory Committee, no later than September 16, 2014. For contact information, please see the
The Committee will meet at Rhode Island Department of Environmental Management Headquarters located at 235 Promenade Street, Providence, Rhode Island, Room 300.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the person listed in the
To facilitate public participation, we are inviting public comment on the issues to be considered by the Committee as listed in the “Agenda” section below. Written comments must be submitted no later than September 16, 2014 if you want Committee members to be able to review it before the meeting, and must be identified by docket number USCG–2014–0801, and submitted by
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Public oral comment periods will be held during the meeting after each presentation and at the end of each day. Speakers are requested to limit their comments to 3 minutes. Please note that the public oral comment periods may end before the prescribed ending time following the last call for comments. Contact Jack Kemerer as indicated below to register as a speaker.
Jack Kemerer, Alternate Designated Federal Officer of Commercial Fishing Safety Advisory Committee, Commandant (CG–CVC–3), United States Coast Guard Headquarters, 2703 Martin Luther King Junior Avenue SE., Mail Stop 7501, Washington, DC 20593–7501; telephone 202–372–1249, facsimile 202–372–8376, electronic mail:
Notice of this meeting is given under the Federal Advisory Committee Act, Title 5 United States Code Appendix.
The Commercial Fishing Safety Advisory Committee is authorized by Title 46 United States Code Section 4508 and the Committee's purpose is to provide advice and recommendations to the United States Coast Guard and the Department of Homeland Security on matters relating to the safety of commercial fishing industry vessels.
A copy of all meeting documentation is available at
The Commercial Fishing Safety Advisory Committee will meet to review, discuss and formulate recommendations on topics contained in the agenda:
The meeting will include administrative matters, reports, presentations, discussions, and Subcommittee sessions as follows:
(1) Swearing-in of new members, election of Chair and Vice-Chair, and completion of Department of Homeland Security Form 420 by Special Government Employee members.
(2) Status of Commercial Fishing Vessel Safety Rulemaking projects resulting from requirements set forth in the Coast Guard Authorization Act of 2010 and the Coast Guard and Maritime Transportation Act of 2012.
(3) Commercial Fishing Vessel Safety District Coordinators' reports on activities and initiatives.
(4) Industry Representatives' updates on safety and survival equipment, and classification of new fishing vessels.
(5) Presentation and discussion on fatality rates by regions and fisheries and update on safety and risk reduction related projects by the National Institute for Occupational Safety and Health.
(6) Presentation and discussion on safety standards by the National Oceanic and Atmospheric Administration, National Marine Fisheries Service.
(7) Subcommittee/working group sessions on (a) standards for alternative safety compliance program(s) development, and (b) training program requirements for individuals in charge of a vessel and engineer officer qualifications.
(8) Public comment period.
(9) Adjournment of meeting.
There will be a comment period for Commercial Fishing Safety Advisory Committee members and a comment period for the public after each presentation and discussion. The Committee will review the information presented on any issues, deliberate on any recommendations presented in Subcommittee reports, and formulate recommendations for the Department's consideration.
The meeting will primarily be dedicated to continuing Subcommittee/working group sessions on training requirements and alternative safety compliance programs, but will also include:
(1) Reports and recommendations from the Subcommittees to the full committee for consideration.
(2) Other safety recommendations and safety program strategies from the Committee.
(3) Public comment period
(4) Future plans and goals for the Committee.
(5) Adjournment of meeting.
Federal Emergency Management Agency, DHS.
Committee Management; Notice of Open Federal Advisory Committee Meeting.
The Board of Visitors for the National Fire Academy (Board) will meet on September 18–19, 2014. The meeting will be open to the public.
The meeting will take place on Thursday, September 18, 8:30 a.m. to 5:00 p.m. EDT and on Friday, September 19, 8:30 a.m. to 5:00 p.m. EDT. Please note that the meeting may close early if the Board has completed its business.
The meeting will be held at the National Emergency Training Center, Building H, Room 300, Emmitsburg, Maryland. Members of the public who wish to obtain details on how to gain access to the facility and directions may contact Cindy Wivell as listed in the
To facilitate public participation, we are inviting public comment on the issues to be considered by the Board as listed in the
• Federal eRulemaking Portal:
• Email:
• Mail/Hand Delivery: Cindy Wivell, 16825 South Seton Avenue, Emmitsburg, Maryland 21727.
The Board of Visitors for the National Fire Academy (Board) will meet on Thursday, September 18, and Friday, September 19, 2014. The meeting will be open to the public. Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. Appendix.
The purpose of the Board is to review annually the programs of the National Fire Academy (NFA) and advise the Administrator of the Federal Emergency Management Agency (FEMA), through the United States Fire Administrator, of the operation of the NFA and any improvements therein that the Board deems appropriate. In carrying out its responsibilities, the Board examines NFA programs to determine whether these programs further the basic missions that are approved by the Administrator of FEMA, examines the physical plant of the NFA to determine the adequacy of the NFA's facilities, and examines the funding levels for NFA programs. The Board submits a written annual report through the United States Fire Administrator to the Administrator of FEMA. The report provides detailed comments and recommendations regarding the operation of the NFA.
On the first day of the meeting, there will be 6 sessions, with deliberations and voting at the end of each session as necessary.
1. The Board will select a Chairperson and Vice Chairperson for Fiscal Year 2015, and the Chairperson will acknowledge the recognition given to the Board of Visitors for the National Fire Academy by the Department of Homeland Security's Committee Management Officer.
2. The Board will then review and give feedback on NFA program activities, including:
• The Managing Officer Program, a new multiyear curriculum that introduces emerging emergency services leaders to personal and professional skills in change management, risk reduction, and adaptive leadership;
• The Executive Fire Officer Program Symposium;
• Scheduling of back-to-back, 6-day classes/one stipend initiative;
• The curriculum development plan for Fiscal Year 2015;
• The curriculum Enterprise Shared Workspace, a database system developed to capture and track course development and revision activities;
• NFA Online, the NFA's web-based learning platform for distance learning courses;
• Mediated course deliveries, which provide NFA training through an instructor facilitated web-based learning environment;
• The Bring-Your-Own-Device program, which allows students to download the student manual to their own personal electronic devices and eliminates the use of paper-based student materials; and
• The Fire and Emergency Services Higher Education Recognition Program.
3. The Board will then receive updates on U.S. Fire Administration data, research, and response support initiatives.
4. The Board will then discuss the Professional Development Subcommittee activities, including the Professional Development Symposium, which brings national training and education audiences together for their annual conference and support initiatives, and the guidelines for work groups within the subcommittee.
5. The BOV will receive annual ethics training.
6. The BOV will discuss deferred maintenance and capital improvements on the National Emergency Training Center campus and Fiscal Year 2015 Budget Request/Budget Planning, as well as tour the campus facility.
On the second day, the Board will conduct classroom visits and engage in an annual report writing session. Deliberations or voting may occur as needed during the report writing session.
There will be a 10-minute comment period after each agenda item; each speaker will be given no more than 2 minutes to speak. Please note that the public comment period may end before the time indicated, following the last call for comments. Contact Cindy Wivell to register as a speaker.
HUD Office of Lead Hazard Control and Healthy Homes, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–3400 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–3400 (this is not a toll-free number) or email at
Office of Multifamily Asset Management, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Harry Messner at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–3400 (this is not a toll-free number) or email at
For copies of the proposed forms and other available information contact Carissa Janis, Office of Housing Assistance and Grants Administration, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410 by email
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The Summary Budget and the Annual Program Budget make up the budget of the grantee's annual extension request. Together the forms provide itemized expenses for anticipated program costs and a matrix of budgeted yearly costs. The budget forms show the services funded through the grant and demonstrate how matching funds, participant fees, and grant funds will be used in tandem to operate the grant program. Field staff approve the annual budget and request annual extension funds according to the budget. Field staff can also determine if grantees are meeting statutory and regulatory requirements through the evaluation of this budget.
HUD will use the Payment Voucher to monitor use of grant funds for eligible activities over the term of the grant. The Grantee may similarly use the Payment Voucher to track and record their requests for payment reimbursement for grant-funded activities.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–3400 (this is not a toll-free number) or email at
Patricia McClung, Office of Single Family Program Development, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 204 402–4378. This is not a toll-free number. Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877–8339.
Copies of available documents submitted to OMB may be obtained from Colette Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The Dodd-Frank Wall Street Reform and Consumer Protection Act, 2010 (Pub. L. 111–203, approved July 21, 2010, Sec 1496) appropriated $1billion to HUD to establish an Emergency Homeowner's Relief Fund, pursuant to section 107 of the Emergency Housing Act of 1975, that will provide emergency mortgage assistance to homeowners that are at risk of foreclosure due to involuntary unemployment or underemployment due to an adverse economic or medical condition. Accordingly, HUD is implementing the Emergency Homeowners Loan Program (EHLP) that is designed to offer a declining balance, deferred payment “bridge loan” (non-recourse, subordinate loan with zero interest) for up to $50,000 to assist eligible homeowners with payments of arrearages, including delinquent taxes and insurance. Additionally, EHLP may be used to assist eligible homeowners with up to 24 months of monthly payments on their mortgage principal, interest, mortgage insurance premiums, taxes, and hazard insurance. Assistance will not exceed $50,000 per eligible homeowner.
HUD will use two approaches to implement EHLP: (1) Provide allocations to States that currently have substantially similar programs to administer their mortgage relief funds directly; and (2) delegate key administrative functions to third party entities that will assist HUD with program implementation. The third party entities will be primarily
Homeowners'(borrowers') participation in the program is voluntary. However, to help determine eligibility for assistance borrowers must submit the required application information and loan documentation to demonstrate that they meet program eligibility guidelines to receive mortgage relief assistance through EHLP.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A.
The
Phase II, proposed here, involves tracking baseline survey respondents. The purpose of Phase II tracking is to maintain contact and location information for households that participated in the Choice Neighborhoods Demonstration Studies' Baseline Survey to analyze household mobility patterns and achieve a strong response rate on any follow up surveys that the U.S. Department of Housing and Urban Development (HUD) may conduct.
The tracking effort relies primarily on passive tracking strategies that use data obtained from HUD's PIC and TRACS systems, Choice Grantees, National Change of Address (NCOA) Database, and Accurint, to update the contact information for households. Active tracking strategies are used to complement passive strategies.
There are five active tracking strategies that will directly affect Panel members:
1. Three quarters each year, panel members will receive a card/flyer with a toll-free number and Web site address set up for this study that will give respondents the opportunity to update their contact information online or by phone. We estimate that 25 percent of respondents (424) will respond to this flyer and it will take at most 5 minutes. This activity is estimated to result in 424 responses, 101.76 hours, and $1,387 of burden per year.
2. Once a year, the flyer/card will also contain a perforated mailer and a postage-paid business reply envelope, providing more opportunity for each panel member to update their contact information. We estimate that 90
3. DIR will initiate follow-up phone calls to determine if the most current telephone number(s) in the contact database are correct. This action will only become necessary if there is no response to the annual mailers and there is no online update and the postcard/flyer is returned. DIR estimates that about half of the neighborhood sample (474) and 10 percent of the target development sample (74) will require a follow-up phone call. We estimate this call will take 5 minutes. We estimate that this activity will be successful for 50% of households (237 neighborhood and 37 target). This activity is estimated to result in 274 responses, 21.92 hours, and $299 of burden per year.
4. After a pre-determined number of unsuccessful telephone attempts (e.g., 3–5), a DIR field locator will visit the household to determine if the head of household still lives there. We estimate about 50 percent of the previous cases are expected to be resolved by telephone contact, with the remaining 50 percent (237 neighborhood and 37 target) being assigned to a field locator. We estimate this field location contact will take 5 minutes. This activity is estimated to result in 274 responses, 21.92 hours, and $299 of burden per year.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A.
The
Pursuant to the Office of Housing Physical Condition of Multifamily Properties regulation at § 200.857(d) and (e), multifamily property owners also have the right, under certain circumstances, to submit a request for a database adjustment and technical review, respectively, of physical condition inspection results.
Appeals when granted change assessment scores and designations, and database adjustments and technical reviews when granted change property scores, all of which result is more accurate assessments.
Section 902.60 of the PHAS rule also provides that, in extenuating circumstances, PHAs may request an extension of time to submit required unaudited financial information. When granted, an extension of time postpones the imposition of sanctions for a late submission.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the General Counsel, HUD.
Notice.
Section 106 of the Department of Housing and Urban Development Reform Act of 1989 (the HUD Reform Act) requires HUD to publish quarterly
For general information about this notice, contact Camille E. Acevedo, Associate General Counsel for Legislation and Regulations, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10282, Washington, DC 20410–0500, telephone 202–708–1793 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800–877–8339.
For information concerning a particular waiver that was granted and for which public notice is provided in this document, contact the person whose name and address follow the description of the waiver granted in the accompanying list of waivers that have been granted in the second quarter of calendar year 2014.
Section 106 of the HUD Reform Act added a new section 7(q) to the Department of Housing and Urban Development Act (42 U.S.C. 3535(q)), which provides that:
1. Any waiver of a regulation must be in writing and must specify the grounds for approving the waiver;
2. Authority to approve a waiver of a regulation may be delegated by the Secretary only to an individual of Assistant Secretary or equivalent rank, and the person to whom authority to waive is delegated must also have authority to issue the particular regulation to be waived;
3. Not less than quarterly, the Secretary must notify the public of all waivers of regulations that HUD has approved, by publishing a notice in the
a. Identify the project, activity, or undertaking involved;
b. Describe the nature of the provision waived and the designation of the provision;
c. Indicate the name and title of the person who granted the waiver request;
d. Describe briefly the grounds for approval of the request; and
e. State how additional information about a particular waiver may be obtained.
Section 106 of the HUD Reform Act also contains requirements applicable to waivers of HUD handbook provisions that are not relevant to the purpose of this notice.
This notice follows procedures provided in HUD's Statement of Policy on Waiver of Regulations and Directives issued on April 22, 1991 (56 FR 16337). In accordance with those procedures and with the requirements of section 106 of the HUD Reform Act, waivers of regulations are granted by the Assistant Secretary with jurisdiction over the regulations for which a waiver was requested. In those cases in which a General Deputy Assistant Secretary granted the waiver, the General Deputy Assistant Secretary was serving in the absence of the Assistant Secretary in accordance with the office's Order of Succession.
This notice covers waivers of regulations granted by HUD from April 1, 2014 through June 30, 2014. For ease of reference, the waivers granted by HUD are listed by HUD program office (for example, the Office of Community Planning and Development, the Office of Fair Housing and Equal Opportunity,
Where more than one regulatory provision is involved in the grant of a particular waiver request, the action is listed under the section number of the first regulatory requirement that appears in 24 CFR and that is being waived. For example, a waiver of both § 58.73 and § 58.74 would appear sequentially in the listing under § 58.73.
Waiver of regulations that involve the same initial regulatory citation are in time sequence beginning with the earliest-dated regulatory waiver.
Should HUD receive additional information about waivers granted during the period covered by this report (the second quarter of calendar year 2014) before the next report is published (the third quarter of calendar year 2014), HUD will include any additional waivers granted for the second quarter in the next report.
Accordingly, information about approved waiver requests pertaining to HUD regulations is provided in the Appendix that follows this notice.
More information about the granting of these waivers, including a copy of the waiver request and approval, may be obtained by contacting the person whose name is listed as the contact person directly after each set of regulatory waivers granted.
The regulatory waivers granted appear in the following order:
I. Regulatory waivers granted by the Office of Community Planning and Development.
II. Regulatory waivers granted by the Office of Housing.
III. Regulatory waivers granted by the Office of Public and Indian Housing.
For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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Therefore, HUD granted a limited, conditional waiver to allow Iowa Legal Aid to provide legal services under the homelessness prevention component to program participants wishing to stay in their units, even if their units do not meet the habitability standards. The waiver also allows ESG funds to be used to provide the same program participants with the case management required by § 576.401(d) and (e), even if their units do not meet the habitability standards. The waiver is contingent upon the recipient's commitment to ensure that Iowa Legal Aid and the subrecipient(s) providing the required case management work with the property owners to bring the units into compliance with the habitability standards or assist the program participants to move if the units are unsafe.
For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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HUD's regulation at 24 CFR 202.5(g) (Approval of Lending Institutions and Mortgagees) provides for all FHA-approved lenders and mortgagees to furnish to HUD with a copy of their audited financial statements within 90 days of the lender or mortgagee's fiscal year end, except as provided in 24 CFR 202.6(c), to maintain FHA approval.
HUD's regulation at 24 CFR 202.6(c) delineates an exception from § 202.5(g)(1) for small supervised lenders and mortgagees, which are instead required to submit to HUD the unaudited financial reports required by their respective financial banking agency within 90 days of the small supervised lender or mortgagee's fiscal year end.
LEAP is being implemented in phases. FHA deployed the latest phase of LEAP, the automation of FHA's annual lender recertification process, on May 27, 2014. This phase, known as LEAP 3.0, includes enhanced financial reporting functionalities based on each lender's specific financial reporting structure, which improves lender usability, as well as FHA's ability to monitor lenders' performance. As of June 26, 2014, users were still having difficulty executing some functions in LEAP 3.0. Accordingly, lenders and mortgagees with a fiscal year end of December 31, 2013 would have had to submit the required reports on or before March 31, 2014.
Because LEAP 3.0 did not go live until after March 31, 2014, lenders and mortgagees who have a fiscal year end of December 31, 2013 were unable to access the new platform for submission. Mortgagees have 90 days after the end of their fiscal year to submit their annual financial reports within the designated timeframe for reporting. As a result, a temporary waiver of the subject regulations for FHA lenders and mortgagees with a fiscal year end of December 31, 2013, until 30 days after the deployment of LEAP 3.0, was granted in December 2013, in order to realign the required financial reporting timeframe with the launch of LEAP 3.0. Additional waivers were later granted for FHA lenders and mortgagees with a fiscal year end of January 31, 2014, and February 28, 2014, until 30 days after the deployment of LEAP 3.0.
Under the waivers, FHA lenders and mortgagees with a fiscal year end of December 31, 2013, January 31, 2014, or February 28, 2014, were required to submit the reports on or before June 30, 2014. Under the subject regulations, FHA lenders and mortgagees with a fiscal year end of March 31, 2014, were required to submit the reports on or before June 30, 2014.
Because technical system issues prevented some lenders from completing their annual recertification package in LEAP 3.0 on or before June 30, 2014, an extension of the temporary waiver of the regulations at 24 CFR 5.801(c)(3) (in relevant part), 202.5(g)(1) and 202.6(c)(2) for FHA lenders and mortgagees with a fiscal year end of December 31, 2013, January 31, 2014, February 28, 2014, and March 31, 2014, from June 30, 2014, until July 15, 2014, or until ten days after the Deputy Assistant Secretary for Single Family Housing has deemed the LEAP 3.0 system to be stable, was granted to allow these lenders and mortgagees the additional time necessary to fulfill their annual financial reporting and recertification requirements once LEAP 3.0 is operating at its full capacity.
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It was determined that granting of the waiver is in the public's interest and consistent with HUD's objectives to expand the availability of FHA mortgage insurance, while providing appropriate safeguards under local and state codes to protect the health and safety of potential occupants. The waiver enables lenders to provide FHA financing to homebuyers for new construction single-family housing, in the designated boroughs, where it is not feasible to procure water from conventional water supply systems.
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For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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Bureau of Land Management, Interior.
Notice of intent.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Western Montana Resource Advisory Council (RAC) will meet as indicated below.
The Western Montana Resource Advisory Council meeting will be held September 17, 2014 in Dillon, Montana. The meeting will begin at 9 a.m. with a 30-minute public comment period starting at 11:30 a.m. and will adjourn at 3 p.m.
BLM's Dillon Field Office, 1005 Selway Drive, Dillon, MT.
David Abrams, Western Montana Resource Advisory Council Coordinator, Butte Field Office, 106 North Parkmont, Butte, MT 59701, 406–533–7617,
This 15-member council advises the Secretary of the Interior through the BLM on a variety of management issues associated with public land management in Montana. During this meeting the council will discuss several topics, including the recent RAC Chair meeting in Billings, an update on the BLM's Greater Sage-Grouse Planning Strategy, and reports from the BLM's Butte, Missoula and Dillon field offices. All RAC meetings are open to the public. The public may present written comments to the RAC. Each formal RAC meeting will also have time allocated for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited.
43 CFR 1784.4–2.
On August 27, 2014, the Department of Justice lodged a proposed consent decree (“proposed Decree”) with the United States District Court for the Southern District of West Virginia in the lawsuit entitled
The United States filed this civil action for assessment of civil penalties and injunctive relief brought under Section 113(b) of the Clean Air Act, 42 U.S.C. 7413(b), Section 325 of EPCRA, 42 U.S.C. 11045; and Section 109(c) of CERCLA, 42 U.S.C. 9609(c) against E.I. du Pont de Nemours and Company (“Defendant”) in which the United States alleges violations of Sections 112(r)(1) and 112(r)(7) of the Clean Air Act, 42 U.S.C. 7412(r)(1) & (r)(7), violations of the emergency release notification requirements of Section 103 of CERCLA, 42 U.S.C. 9603, Section 304 of EPCRA, 42 U.S.C. 11004, and violations of the emergency planning and community right-to-know requirements of Section 312 of EPCRA, 42 U.S.C. 11022 at Defendant's chemical production facility in Belle, West Virginia. Under the proposed Decree, Defendant will pay a $1,275,000 civil penalty and will perform injunctive relief including enhanced training, formal reviews of its safety procedures, and annual reporting.
The publication of this notice opens a period for public comment on the proposed Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $8.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice is hereby given that, on August 4, 2014, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Facilities Electrical Consulting Services, Easton, PA; Raytheon Trusted Computer Solutions, Herndon, VA; HD–PLC Alliance, Hakata-ku, Fukuoka, Japan; IE Technologies, Windsor, CO; Cox Software Architects LLC, Summit, NJ; SmartGrid Network, Chicago, IL; Tansy Energy Network, Scott Valley,
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 MSGIP 2.0 intends to file additional written notifications disclosing all changes in membership.
On February 5, 2013, MSGIP 2.0 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 23, 2014. A notice was published in the
Notice is hereby given that, on August 1, 2014, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Rohm and Haas Electronic Materials (Dow Chemical Subsidiary), Marlborough, MA; ACM, Freemont, CA; Adeka, Hackensack, NJ; Atotech, Rock Hill, SC; Qcept, Atlanta, GA; Lintec, Woburn, MA; Toray, New York, NY; and Kumho, Chugnam, Republic of Korea, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and SEMATECH intends to file additional written notifications disclosing all changes in membership.
On April 22, 1988, SEMATECH 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 21, 2014. A notice was published in the
Notice is hereby given that, on August 1, 2014, 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 USPVMC intends to file additional written notifications disclosing all changes in membership.
On November 14, 2011, USPVMC 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 21, 2014. A notice was published in the
Pursuant to the authority contained in Section 512 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1142, the 173rd open meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans (also known as the ERISA Advisory Council) will be held as a teleconference on September 29, 2014.
The meeting will take place in C5320 room 6, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. Public access is available only in this room (i.e. not by telephone). The meeting will run from 10:00 a.m. to approximately 5:00 p.m. The purpose of the open meeting is to discuss reports/recommendations for the Secretary of Labor on the issues of (1) PBM Compensation and Fee Disclosure, (2) Outsourcing Employee Benefit Plan Services, and (3) Issues and Considerations around Facilitating Lifetime Plan Participation. Descriptions of these topics are available on the Advisory Council page of the EBSA Web site at
Organizations or members of the public wishing to submit a written statement may do so by submitting 30 copies on or before September 22, 2014 to Larry Good, Executive Secretary, ERISA Advisory Council, U.S. Department of Labor, Suite N–5623, 200 Constitution Avenue NW., Washington, DC 20210. Statements also may be submitted as email attachments in rich text, Word, or pdf format transmitted to
Individuals or representatives of organizations wishing to address the Advisory Council should forward their requests to the Executive Secretary or telephone (202) 693–8668. Oral presentations will be limited to ten minutes, time permitting, but an extended statement may be submitted for the record. Individuals with disabilities who need special accommodations should contact the Executive Secretary by September 22, 2014 at the address indicated.
Employee Benefits Security Administration, U.S. Department of Labor.
Notice of Proposed Exemption
This document contains a notice of pendency before the Department of Labor (the Department) of a proposed individual exemption from certain prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974, as amended (ERISA or the Act), and the Internal Revenue Code of 1986, as amended (the Code). The proposed exemption, if granted, would affect the ability of certain entities with specified relationships to Credit Suisse AG to continue to rely upon the relief provided by Prohibited Transaction Class Exemption 84–14.
Written comments and requests for a public hearing on the proposed exemption should be submitted to the Department within 35 days from the date of publication of this
Comments and requests for a hearing should state: (1) The name, address, and telephone number of the person making the comment or request, and (2) the nature of the person's interest in the proposed exemption and the manner in which the person would be adversely affected by the exemption, if granted. A request for a hearing must also state the issues to be addressed and include a general description of the evidence to be presented at the hearing. All written comments and requests for a public hearing concerning the proposed exemption should be sent to the Office of Exemption Determinations, Employee Benefits Security Administration, Room N–5700, U.S. Department of Labor, 200 Constitution Avenue NW., Washington DC 20210, Attention: Application No. D–11819. Interested persons are also invited to submit comments and/or hearing requests to EBSA via email or FAX. Any such comments or requests should be sent either by email to:
Erin S. Hesse, Office of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor, telephone (202) 693–8546. (This is not a toll-free number).
If the proposed exemption in this document is granted, any entity with a specified relationship to Credit Suisse AG will not be precluded from relying on the relief provided by Prohibited Transaction Class Exemption 84–14 (49 FR 9494 (March 13, 1984), as corrected at 50 FR 41430 (October 10, 1985), as amended at 70 FR 49305 (August 23, 2005), and as amended at 75 FR 38837 (July 6, 2010)), notwithstanding a judgment of conviction against Credit Suisse AG for one count of conspiracy to violate section 7206(2) of the Internal Revenue Code in violation of Title 18, United States Code, Section 371, to be entered in the District Court for the Eastern District of Virginia in Case Number 1:14–cr–188–RBS. The proposed exemption has been requested by Credit Suisse AG pursuant to section 408(a) of the Act and section 4975(c)(2) of the Code, and in accordance with the procedures set forth in 29 CFR Part 2570, Subpart B (76 FR 66637, 66644, October 27, 2011). Effective December 31, 1978, section 102 of the Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue administrative exemptions under section 4975(c)(2) of the Code to the Secretary of Labor. Accordingly, this notice of proposed exemption is being issued solely by the Department.
1. The Applicant represents that Credit Suisse Group AG (Credit Suisse Group) is a publicly-traded company organized in Switzerland and headquartered in Zurich. As of December 31, 2013, Credit Suisse Group had assets of approximately $980.1 billion, including approximately $47.3 billion in shareholders' equity. Credit Suisse Group owns a 100% interest in Credit Suisse AG (i.e., the Applicant), which operates as a bank, with all related banking, finance, consultancy, service, and trading activities in Switzerland and abroad.
2. The Applicant further represents that it has financial relationships with a wide range of entities that may act as “qualified professional asset managers” (QPAMs), in reliance on the exemptive relief provided in Prohibited
PTE 84–14 provides a conditional exemption for certain transactions between a party in interest with respect to an employee benefit plan and an investment fund (as defined in Section VI(b) of PTE 84–14) in which the plan has an interest, where the investment fund is managed by a QPAM. One of the conditions for exemptive relief in PTE 84–14, Section I(g), precludes an entity that may otherwise meet the definition of a QPAM provided in Section VI(a) of PTE 84–14 from relying on the relief provided by the class exemption if that entity or an affiliate thereof or any owner, direct or indirect, of a 5 percent or more interest in the QPAM has, within 10 years immediately preceding the transaction, been either convicted or released from imprisonment, whichever is later, as a result of certain specified criminal activity described in that section. This condition was included in PTE 84–14, in part, based on the expectation that a QPAM, and those who may be in a position to influence its policies, maintain a high standard of integrity.
3. The Applicant represents that it is an affiliate (as defined in Section VI(d) of PTE 84–14) of Credit Suisse Asset Management LLC, Credit Suisse Securities (USA) LLC, CSAM Limited, and a number of other entities that act as QPAMs and manage over $2 billion in assets (collectively, the Credit Suisse Affiliated QPAMs). The Applicant represents that it also owns a five percent or more interest in certain other entities (the Credit Suisse Related QPAMs) that may provide investment management services to plans in reliance on the exemptive relief provided in PTE 84–14, but are not affiliates (as defined in Section VI(d) of PTE 84–14) of Credit Suisse AG. As noted above in paragraph two, Section I(g) of PTE 84–14 would also preclude the Credit Suisse Related QPAMs from relying on the relief provided by PTE 84–14, notwithstanding the fact that they are not affiliated with Credit Suisse AG.
4. The Applicant notes that, on May 19, 2014, the Tax Division of the United States Department of Justice and the U.S. Attorney's Office for the Eastern District of Virginia filed a one-count criminal information (the Information) in the District Court for the Eastern District of Virginia (the District Court)
5. According to the Statement of Facts filed in the criminal case (the Statement of Facts), for decades prior to and through approximately 2009, Credit Suisse AG operated an illegal cross-border banking business that knowingly and willfully aided and assisted thousands of U.S. clients in opening and maintaining undeclared accounts
6. According to the Statement of Facts, Credit Suisse AG made a number of ineffectual attempts to consolidate these U.S. clients' accounts in Credit Suisse AG business entities that complied with U.S. law. For instance, starting in or about 2009, Credit Suisse AG engaged in a flawed process of verifying tax compliance of U.S. accounts in order to allow these accounts to remain at Credit Suisse AG. In December 2010, the Tax Division of the DOJ informed Credit Suisse AG that it had begun a criminal investigation of Credit Suisse AG that had uncovered evidence of tax law violations. Although Credit Suisse AG had either transferred or terminated the majority of its relationships with these U.S. clients by approximately 2010, Credit Suisse AG continued to identify U.S. customer accounts for closure until in or about 2013.
7. On May 19, 2014, pursuant to a plea agreement (the Plea Agreement), the Applicant entered a plea of guilty for assisting U.S. citizens in federal income tax evasion. The Applicant represents that it expects the District Court to enter a judgment of conviction (the Conviction) against Credit Suisse AG that will require remedies that are materially the same as set forth in the Plea Agreement. The Conviction is scheduled to be entered on or after November 1, 2014.
8. As noted above, Section I(g) of PTE 84–14 expressly identifies a criminal conviction of a QPAM, an affiliate thereof, or any owner, direct or indirect, of a 5 percent or more interest in a QPAM, for income tax evasion as precluding the QPAM from relying on the relief set forth in the class exemption. Pursuant to that section, once the Conviction is entered, the Credit Suisse Affiliated QPAMs and Credit Suisse Related QPAMs will no longer be able to rely on PTE 84–14. The Applicant is seeking an individual exemption that would permit the Credit Suisse Affiliated QPAMs and the Credit Suisse Related QPAMs to continue to rely on PTE 84–14, notwithstanding the Conviction, to the extent that such QPAMs meet certain additional conditions, as proposed herein.
9. The Applicant submits that the requested exemption would be in the interest of affected plans, those described in section 3(3) of ERISA (ERISA-covered plans) or section 4975(e)(1) of the Code (IRAs). In this regard, the Applicant states that the exemption would allow ERISA-covered plans and IRAs managed by the Credit Suisse Affiliated QPAMs and Credit Suisse Related QPAMs to avoid the costs or losses that would arise if these QPAMs were suddenly unable to rely on the relief afforded by PTE 84–14 after the Conviction. The Applicant submits that if the Credit Suisse Affiliated QPAMs lose the relief in PTE 84–14, three main investment strategies used for ERISA-covered plans and IRAs would be impacted. The first strategy, Credit, seeks to invest in long-term fixed income opportunities by investing in syndicated bank loans, high yield bonds, and structured asset backed securities that trade over-the-counter in the primary and secondary markets. This strategy covers five ERISA-covered plans and pooled funds. About half of the strategy involves loans engaged in by Credit Suisse Affiliated QPAMs in reliance of the relief provided by PTE 84–14. The second strategy, Commodities, seeks to replicate the return of certain commodities indices by investing in futures, structured notes, total return swaps, and other derivatives. This strategy covers eight ERISA-covered plans and pooled funds. The third strategy, Liquid Alternative Beta (LAB), seeks to replicate the performance of hedge fund sectors such as long/short equity, event driven, and managed futures using liquid tradable instruments. The LAB strategy invests in ADRs, equity securities, ETFs, futures, forwards, and options. This strategy covers four ERISA-covered plans.
10. The Applicant represents that the cost of terminating an investment is generally the difference between the bid price and the ask price for any particular investment. Furthermore, some investments are more liquid than others (e.g., Treasury bonds are more liquid than foreign sovereign bonds and equities are more liquid than swaps). According to the Applicant, the strategies mentioned above (Credit, Commodities, and LAB) tend to be less liquid than certain other strategies and, thus, the cost of terminating an investment therein would be significantly higher than, for example, liquidating a large cap equity portfolio. The Applicant estimates that the cost to ERISA-covered plans and IRAs of transitioning from Credit Suisse Affiliated QPAMs to other unrelated managers in each of the three strategies is as follows: LAB—about eleven basis points; Credit—under two basis points to liquidate the assets but because of the bid/ask spread, as much as fifty basis points to reinvest the assets; and Commodities—three to five basis points. Based on the amount of assets in each strategy, the Applicant estimates that the total cost of liquidating would be about $450,000. However, the Applicant notes that the affected ERISA-covered plans and IRAs would need to reinvest in the market, so the real cost would potentially be much higher. The Applicant additionally represents that the Credit Suisse Affiliated QPAMs do not impose any charges or penalties on ERISA-covered plans or IRAs for terminating or withdrawing from any agreements for the provision of asset management or other services by the Credit Suisse Affiliated QPAMs.
11. The Applicant states further that the proposed exemption would enable ERISA-covered plans and IRAs managed by the Credit Suisse Affiliated QPAMs and Credit Suisse Related QPAMs to continue with the current investment strategies of their chosen QPAM. The Applicant suggests that any ERISA-covered plan or IRA that is forced to move to a new investment manager could incur transition costs, including costs associated with identifying an appropriate investment manager to act as a QPAM.
12. The Applicant submits that the proposed exemption, if granted, would be protective of affected ERISA-covered plans and IRAs. The Applicant represents that the criminal conduct of Credit Suisse AG that is the subject of the Conviction did not directly or indirectly involve the assets of any ERISA-covered plan or IRA. The Applicant also represents that neither the Credit Suisse Affiliated QPAMs nor the Credit Suisse Related QPAMs (including the officers, directors, employees, or agents of such QPAMs) participated in the criminal conduct that forms the basis for the Conviction. Additionally, the Applicant represents that neither the Credit Suisse Affiliated QPAMs nor the Credit Suisse Related QPAMs directly received any compensation in connection with such conduct. Finally, the Applicant states that Credit Suisse AG, the entity to be convicted, did not provide any fiduciary services to ERISA-covered plans or IRAs, except in connection with certain securities lending services of the New York Branch of Credit Suisse AG, or act as a QPAM for any ERISA-covered plan or IRA.
13. The Applicant represents that if this proposed exemption is granted, Credit Suisse Affiliated QPAMs will not use their authority or influence to direct an investment fund (as defined in Section VI(b) of PTE 84–14) managed by a Credit Suisse Affiliated QPAM to enter into any transaction with Credit Suisse AG or engage Credit Suisse AG to provide additional services, for a fee, to the investment fund regardless of whether such transactions or services may otherwise be within the scope of relief provided by an administrative or statutory exemption. Additionally, the Applicant represents that any employee accused of engaging in the criminal conduct that underlies the Conviction will not transact business on behalf of any investment fund managed by the Credit Suisse Affiliated QPAMs.
14. The Department notes that the proposed exemption, if granted, provides additional protection to affected ERISA-covered plans and IRAs because it requires a prudently selected, independent auditor, who has appropriate technical training and proficiency with Title I of ERISA, to evaluate the adequacy of and compliance with the policy and training requirements described below. The first of the audits must be completed no later than twelve (12) months after a final exemption for the covered transactions is granted in the
15. The independent auditor shall also determine whether Credit Suisse AG and the Credit Suisse Affiliated QPAMs have developed a training program (the Training) for Credit Suisse AG and Credit Suisse Affiliated QPAM personnel covering, at a minimum, the Policies, ERISA compliance, the consequences for not complying with the conditions of this proposed exemption, if granted, (including the loss of the exemptive relief provided herein), prompt reporting of wrongdoing, and ethical conduct. The auditor shall also determine whether Credit Suisse AG and the Credit Suisse Affiliated QPAMs are operationally compliant with the Policies and Training.
16. The auditor shall provide a written report (the Audit Report), upon completion of each audit that it conducts, to Credit Suisse AG and the Credit Suisse Affiliated QPAMs that describes the auditor's determinations as required under this proposed exemption, if granted, and the steps performed by the auditor during the course of the auditor's examinations. The Report will also include the auditor's determinations with regards to the adequacy of the Policies and the Training and any recommendations with respect to strengthening the Policies and Training, and any instances of Credit Suisse AG's or the Credit Suisse Affiliated QPAMs' noncompliance with the written Policies and Training described above. Any determinations made by the auditor regarding the adequacy of the Policies and Training and the auditor's recommendations (if any) with respect to strengthening the Policies and Training shall be promptly addressed by Credit Suisse AG and the Credit Suisse Affiliated QPAMs, and any actions taken by Credit Suisse AG or the Credit Suisse Affiliated QPAMs to address such recommendations shall be included in an addendum to the Audit Report.
17. The auditor shall notify Credit Suisse AG and the Credit Suisse Affiliated QPAMs of any instances of noncompliance identified by the auditor within five (5) business days after such noncompliance is identified by the auditor, regardless of whether the audit has been completed as of that date. Credit Suisse AG or a Credit Suisse Affiliated QPAM shall provide written notice to the Department's Office of Exemption Determinations (OED) of any instances of noncompliance reviewed by the auditor within ten (10) business days after such notice is received from the auditor. Upon request, the auditor shall provide OED with all of the relevant workpapers reflecting any instances of noncompliance. The workpapers shall identify whether and to what extent the assets of ERISA-covered plans or IRAs were involved in the instance(s) of noncompliance and an explanation of any corrective actions taken by Credit Suisse AG.
18. An executive officer of Credit Suisse AG will certify in writing, under penalty of perjury, that such officer has reviewed each Audit Report and this exemption, addressed any inadequacies identified in the Audit Report, and determined that the Policies and Training in effect at the time of signing are adequate to ensure compliance with the conditions of this exemption and with the applicable provisions of ERISA and the Code. Similarly, an executive officer of each Credit Suisse Affiliated QPAM will certify in writing, under penalty of perjury, that such officer has reviewed each Audit Report and this exemption, addressed any inadequacies identified in the Audit Report, and determined that the Policies and Training in effect at the time of signing are adequate to ensure compliance with the conditions of this exemption and with the applicable provisions of ERISA and the Code. Finally, the Applicant provides each certified Audit Report to OED no later than 30 days following its completion and Credit Suisse AG and the Credit Suisse Affiliated QPAMs make the Audit Report unconditionally
19. The Department notes that the proposed exemption, if granted, will also be protective of plans and their participants and beneficiaries, because, in any agreements with ERISA-covered plans or IRAs for the provision of asset management or other services, Credit Suisse AG and the Credit Suisse Affiliated QPAMs will contain additional protective covenants described herein. In this regard, in such agreements, Credit Suisse AG or a Credit Suisse Affiliated QPAM, as applicable, must agree to comply with ERISA and to refrain from engaging in prohibited transactions; must not purport to waive, limit, or qualify the liability of Credit Suisse AG or the Credit Suisse Affiliated QPAMs for violating ERISA or engaging in prohibited transactions; must not require the ERISA-covered plans or IRAs (or sponsors of such ERISA-covered plans or IRAs) to indemnify Credit Suisse AG or the Credit Suisse Affiliated QPAMs for violating ERISA or engaging in prohibited transactions; must not restrict the ability of such ERISA-covered plans or IRAs to terminate or withdraw from their arrangements with Credit Suisse AG or the Credit Suisse Affiliated QPAMs; and must not impose any fees, penalties, or charges for such termination or withdrawal.
20. The Department also notes that a Credit Suisse Affiliated QPAM will not fail to meet the terms of this proposed exemption, if granted, solely because a Credit Suisse Related QPAM fails to satisfy a condition for relief under this exemption. Additionally, a Credit Suisse Related QPAM will not fail to meet the terms of this proposed exemption, if granted, solely because Credit Suisse AG, a Credit Suisse Affiliated QPAM, or a different Credit Suisse Related QPAM fails to satisfy a condition for relief under this exemption.
21. The Applicant represents that if a final exemption is granted in the
22. The Applicant represents further that, if this proposed exemption is granted, Credit Suisse AG will provide to (1) each sponsor of an ERISA-covered plan and each beneficial owner of an IRA invested in an investment fund managed by a Credit Suisse Affiliated QPAM, or the sponsor of an investment fund in any case where a Credit Suisse Affiliated QPAM acts only as a sub-advisor to the investment fund; (2) each entity that may be a Credit Suisse Related QPAM; and (3) each ERISA-covered plan for which the New York Branch of Credit Suisse AG provides fiduciary securities lending services, a notice of the proposed exemption, along with a separate summary of the facts that led to the Conviction, which has been submitted to the Department, and a prominently displayed statement that the Conviction results in a failure to meet a condition in PTE 84–14.
23. Finally, the Applicant represents that the proposed exemption will protect the interests of affected ERISA-covered Plans and IRAs because it would allow the Credit Suisse Affiliated QPAMs to engage in transactions described in PTE 84–14 only to the extent that all of the longstanding conditions set forth in PTE 84–14 (except for Section I(g), as a result of the Conviction) are fully met.
24. The Applicant represents that the requested exemption is administratively feasible because it does not require any monitoring by the Department but relies on an independent auditor to determine that Credit Suisse AG's and the Affiliated QPAMs' compliance policies, and the conditions for the exemption, are being followed. Furthermore, compliance with other sections of PTE 84–14 has been determined to be administratively feasible by the Department in many other similar cases.
Notice of the proposed exemption (the Notice) will be provided to all interested persons within five (5) days of publication of the Notice in the
All comments will be made available to the public.
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) Before an exemption may be granted under section 408(a) of the Act and/or section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemption, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(4) The proposed exemption, if granted, will be subject to the express condition that the material facts and representations contained in the application are true and complete, and that the application accurately describes all material terms of the transaction which is the subject of the exemption.
Based on the foregoing facts and representations submitted by the Applicant, the Department is considering granting an exemption under the authority of section 408(a) of the Employee Retirement Income Security Act of 1974, as amended (ERISA), and section 4975(c)(2) of the Internal Revenue Code of 1986, as amended (the Code), and in accordance with the procedures set forth in 29 CFR Part 2570, Subpart B (76 FR 66637, 66644, October 27, 2011).
If the proposed exemption is granted, the Credit Suisse Affiliated QPAMs and the Credit Suisse Related QPAMs shall not be precluded from relying on the relief provided by Prohibited Transaction Class Exemption (PTE) 84–14
(a) Any failure of the Credit Suisse Affiliated QPAMs or the Credit Suisse Related QPAMs to satisfy Section I(g) of PTE 84–14 arose solely from the Conviction;
(b) The Credit Suisse Affiliated QPAMs and the Credit Suisse Related QPAMs (including officers, directors, employees, and agents of such QPAMs) did not participate in the criminal conduct of Credit Suisse AG that is the subject of the Conviction;
(c) The Credit Suisse Affiliated QPAMs and the Credit Suisse Related QPAMs did not directly receive compensation in connection with the criminal conduct of Credit Suisse AG that is the subject of the Conviction;
(d) The criminal conduct of Credit Suisse AG that is the subject of the Conviction did not directly or indirectly involve the assets of any plan described in section 3(3) of ERISA (an ERISA-covered plan) or section 4975(e)(1) of the Code (an IRA);
(e) Credit Suisse AG did not provide any fiduciary services to ERISA-covered plans or IRAs, except in connection with securities lending services of the New York Branch of Credit Suisse AG, or act as a QPAM for ERISA-covered plans or IRAs;
(f) The Credit Suisse Affiliated QPAMs will not use their authority or influence to direct an investment fund (as defined in Section VI(b) of PTE 84–14) managed by a Credit Suisse Affiliated QPAM to enter into any transaction with Credit Suisse AG or engage Credit Suisse AG to provide additional services, for a fee, to the investment fund regardless of whether such transactions or services may otherwise be within the scope of relief provided by an administrative or statutory exemption;
(g) Credit Suisse AG and the Credit Suisse Affiliated QPAMs will ensure that no employee or agent involved in the criminal conduct that underlies the Conviction will engage in transactions on behalf of any investment fund (as defined in Section VI(b) of PTE 84–14) managed by the Credit Suisse Affiliated QPAMs;
(h)(1) Credit Suisse AG and the Credit Suisse Affiliated QPAMs immediately develop, implement, maintain, and follow written policies (the Policies) requiring and designed to ensure that: (i) The asset management decisions and asset management operations of the Credit Suisse Affiliated QPAMs are conducted independently of Credit Suisse AG's management and business activities; (ii) Credit Suisse AG and the Credit Suisse Affiliated QPAMs fully comply with ERISA's fiduciary duties and prohibited transaction provisions, and do not knowingly participate in any violations of these duties and provisions; (iii) Credit Suisse AG and the Credit Suisse Affiliated QPAMs do not knowingly participate in any other person's violation of ERISA, the Code, or other federal, state, or local law; (iv) any filings or statements made to federal, state, or local government are accurate and complete; (v) Credit Suisse AG and the Credit Suisse Affiliated QPAMs do not make material misrepresentations or omit material information in their communications with federal, state, or local government, or their ERISA-covered plan and IRA clients; (vi) Credit Suisse AG and the Credit Suisse Affiliated QPAMs comply with the terms of this exemption; and (vii) any violations of or failure to comply with items (ii) through (vi) are promptly reported in writing to appropriate corporate officers, the head of U.S. Asset Management Compliance, the General Counsel for Asset Management, the independent auditor responsible for reviewing compliance with the Policies, and a non-QPAM fiduciary of any affected ERISA-covered plan or IRA;
(2) Credit Suisse AG and the Credit Suisse Affiliated QPAMs also immediately develop and implement a program of training (the Training), conducted at least annually for Credit Suisse AG and Credit Suisse Affiliated QPAM personnel; at a minimum, the training covers the Policies, ERISA compliance (including fiduciary duties and the prohibited transaction provisions) and ethical conduct, the consequences for not complying with the conditions of this proposed exemption, if granted, (including the loss of the exemptive relief provided herein), prompt reporting of wrongdoing;
(i)(1) Credit Suisse AG and the Credit Suisse Affiliated QPAMs submit to an audit conducted annually by an independent auditor, who has been prudently selected and who has appropriate technical training and proficiency with ERISA to evaluate the adequacy of the policies and training required in paragraph (h), as well as compliance with those requirements; the first of the audits must be completed no later than twelve (12) months after a final exemption for the covered transactions is granted in the
(2) The auditor's engagement shall specifically require the auditor to determine whether Credit Suisse AG and the Credit Suisse Affiliated QPAMs have developed, implemented, maintained, and followed Policies in accordance with the conditions of this proposed exemption and developed and implemented the Training, as required herein;
(3) The auditor shall test Credit Suisse AG's and each Credit Suisse Affiliated QPAM's operational compliance with the Policies and Training;
(4) For each audit, the auditor shall issue a written report (the Audit Report) to Credit Suisse AG and the Credit Suisse Affiliated QPAMs that describes the steps performed by the auditor during the course of its examination. The Audit Report shall include the auditor's specific determinations regarding the adequacy of the Policies and Training; the auditor's recommendations (if any) with respect to strengthening such Policies and Training; and any instances of Credit Suisse AG's or the Credit Suisse
(5) The auditor shall notify Credit Suisse AG and the Credit Suisse Affiliated QPAMs of any instances of noncompliance identified by the auditor within five (5) business days after such noncompliance is identified by the auditor, regardless of whether the audit has been completed as of that date. Credit Suisse AG or a Credit Suisse Affiliated QPAM shall provide written notice to the Department's Office of Exemption Determinations (OED), Room N–5700, 200 Constitution Avenue NW., Washington, DC 20210: Of any instances of noncompliance reviewed by the auditor within ten (10) business days after such notice is received from the auditor. Upon request, the auditor shall provide OED with all of the relevant workpapers reflecting any instances of noncompliance. The workpapers shall identify whether and to what extent the assets of ERISA-covered plans or IRAs were involved in the instance(s) of noncompliance and an explanation of any corrective actions taken by Credit Suisse AG;
(6) With respect to each audit, an executive officer of Credit Suisse AG and an executive officer of each Credit Suisse Affiliated QPAM certifies in writing, under penalty of perjury, that the respective officer has reviewed the Audit Report and this exemption, addressed any inadequacies identified in the Audit Report, and determined that the Policies and Training in effect at the time of signing are adequate to ensure compliance with the conditions of this exemption and with the applicable provisions of ERISA and the Code;
(7) Credit Suisse AG provides each certified Audit Report to OED no later than 30 days following its completion and Credit Suisse AG and the Credit Suisse Affiliated QPAMs make the Audit Report unconditionally available for examination by any duly authorized employee or representative of the Department, or other relevant regulators, and any fiduciary of an ERISA-covered plan or IRA, the assets of which are managed by a Credit Suisse Affiliated QPAM;
(j) The Credit Suisse Affiliated QPAMs comply with each condition of PTE 84–14, as amended, with the sole exception of the violation of Section I(g) that is attributable to the Conviction;
(k) In any agreements with ERISA-covered plans or IRAs for the provision of asset management or other services, Credit Suisse AG and the Credit Suisse Affiliated QPAMs agree to comply with ERISA and to refrain from engaging in prohibited transactions; the agreements do not purport to waive, limit, or qualify the liability of Credit Suisse AG or the Credit Suisse Affiliated QPAMs for violating ERISA or engaging in prohibited transactions; the agreements do not require the ERISA-covered plans or IRAs (or sponsors of such ERISA-covered plans or IRAs) to indemnify Credit Suisse AG or the Credit Suisse Affiliated QPAMs for violating ERISA or engaging in prohibited transactions; the agreements do not restrict the ability of such ERISA-covered plans or IRAs to terminate or withdraw from their arrangements with Credit Suisse AG or the Credit Suisse Affiliated QPAMs; and the agreements do not impose any fees, penalties, or charges for such termination or withdrawal;
(l) After a final exemption is granted in the
(m)(1) Each sponsor of an ERISA-covered plan and each beneficial owner of an IRA invested in an investment fund managed by a Credit Suisse Affiliated QPAM, or the sponsor of an investment fund in any case where a Credit Suisse Affiliated QPAM acts only as a sub-advisor to the investment fund; (2) each entity that may be a Credit Suisse Related QPAM; and (3) each ERISA-covered plan for which the New York Branch of Credit Suisse AG provides fiduciary securities lending services, receives this notice of proposed exemption along with a separate summary describing the facts that led to the Conviction, which has been submitted to the Department, and a prominently displayed statement that the Conviction results in a failure to meet a condition in PTE 84–14;
(n) A Credit Suisse Affiliated QPAM will not fail to meet the terms of this proposed exemption, if granted, solely because a Credit Suisse Related QPAM fails to satisfy a condition for relief under this exemption. A Credit Suisse Related QPAM will not fail to meet the terms of this proposed exemption, if granted, solely because Credit Suisse AG, a Credit Suisse Affiliated QPAM, or a different Credit Suisse Related QPAM fails to satisfy a condition for relief under this exemption.
(a) The term “Credit Suisse Affiliated QPAM” means a “qualified professional asset manager” (as defined in section VI(a)
(b) The term “Credit Suisse Related QPAM” means any current or future “qualified professional asset manager” (as defined in section VI(a) of PTE 84–14) that relies on the relief provided by PTE 84–14, and with respect to which Credit Suisse AG owns a direct or indirect five percent or more interest, but with respect to which Credit Suisse AG is not an “affiliate” (as defined in section VI(d) of PTE 84–14).
(c) The term “Conviction” means the judgment of conviction against Credit Suisse AG for one count of conspiracy to violate section 7206(2) of the Internal Revenue Code in violation of Title 18, United States Code, Section 371, which is scheduled to be entered in the District Court for the Eastern District of Virginia in Case Number 1:14–cr–188–RBS.
National Archives and Records Administration (NARA).
Notice of information collection extension request for research cards.
NARA is giving public notice that the agency proposes to request extension of a currently-approved information collection used by individuals applying for a research card, which is needed to use original archival records in a National Archives and Records Administration facility. The public is invited to comment on the proposed information collection pursuant to the Paperwork Reduction Act of 1995.
Written comments must be received on or before November 3, 2014 to be assured of consideration.
Comments should be sent to: Paperwork Reduction Act Comments (ISSD); Room 4400; National Archives and Records Administration; 8601 Adelphi Rd., College Park, MD 20740–6001; faxed to 301–713–7409; or electronically mailed to
Please direct requests for additional information or copies of the proposed information collection and supporting statement to Tamee Fechhelm at telephone number 301–837–1694, or fax number 301–713–7409.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13), NARA invites the general public and other Federal agencies to comment on proposed information collections. The comments and suggestions should address one or more of the following points: (a) Whether the proposed information collection is necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collection; (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 the use of information technology; and (e) whether small businesses are affected by this collection. The comments that are submitted will be summarized and included in the NARA request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this notice, NARA is soliciting comments concerning the following information collection:
Abstract: The information collection is prescribed by 36 CFR 1254.8. The collection is an application for a research card. Respondents are individuals who wish to use original archival records in a NARA facility. NARA uses the information to screen individuals, to identify which types of records they should use, and to allow further contact.
All meetings are held at 2:00 p.m.
Board Agenda Room, No. 11820, 1099 14th St., NW., Washington, DC 20570
Closed.
Pursuant to § 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition . . . of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.” See also 5 U.S.C. 552b(c)(10).
Henry Breiteneicher, Associate Executive Secretary, (202) 273–2917
National Science Foundation.
Notice and request for comments on accelerating the Big Data innovation ecosystem.
Fen Zhao at 703–292–7344 or
Please submit responses no later than November 1, 2014. Comments may be sent to
NSF seeks input from stakeholders across academia, state and local government, industry, non-profits, and others across all parts of the Big Data innovation ecosystem on the formation of new Big Data Regional Innovation Hubs.
• Accelerate the ideation and development Big Data solutions to specific global and societal challenges
• Act as a matchmaker between the various academic, industry, and community stakeholders to help drive successful pilot programs for emerging Big Data technology.
• Coordinate across multiple regions of the country, based on shared interests and industry sector engagement to enable dialogue and share best practices.
• Aim to increase the speed and volume of technology transfer between universities, public and private research centers and laboratories, large enterprises, and SMB's.
• Facilitate engagement with opinion and thought leaders on the societal impact of Big Data technologies as to maximize positive outcomes of adoption while reducing unwanted consequences.
• Support the education and training of the entire Big Data workforce, from data scientists to managers to data end-users.
NSF seeks input from stakeholders across academia, state and local government, industry, and non-profits across all parts of the Big Data innovation ecosystem on the formation of Big Data Regional Innovation Hubs. Please submit a response of no more than two-pages to
1. The goals of interest for a Big Data Regional Hub, with metrics for evaluating the success or failure of the Hub to meet that goal;
2. The multiple stakeholders that would participate in the Hub and their respective roles and responsibilities;
3. Plans for initial and long-term financial and in-kind resources that the stakeholders would need to commit to this hub; and
4. A principal point of contact.
This announcement is posted solely for information and planning purposes; it does not constitute a formal solicitation for grants, contracts, or cooperative agreements.
On November 12, 2013, dozens of public and private organizations met at a White House-sponsored “Data to Knowledge to Action” event to announce an inspiring array of Big Data related collaborations. These collaborations were the product and culmination of over a year of activities catalyzed by teams at OSTP, NITRD and Federal agencies to support the Big Data innovation ecosystem; such activities included workshops, one-on-one conversations with potential partners, Requests for Information, invited speaker lectures, and more. To sustain the forward momentum of the Data2Action event, The National Science Foundation is exploring the establishment of a national network of “Big Data Regional Innovation Hubs.”
Nuclear Regulatory Commission.
Interim staff guidance; issuance.
The U.S Nuclear Regulatory Commission (NRC) staff is issuing its final Interim Staff Guidance (ISG) Combined License and Early Site Permit (COL/ESP) No. 026 (COL/ESP–ISG–026), “Environmental Issues Associated with New Reactors.” The purpose of this ISG is to clarify the NRC guidance and application of NUREG–1555, “Standard Review Plans for Environmental Reviews for Nuclear Power Plants: Environmental Standard Review Plan,” regarding the assessment of construction impacts, greenhouse gas and climate change, socioeconomics, environmental justice, need for power, alternatives, cumulative impacts, and cultural/historical resources as part of the preparation of environmental impact statements for early site permit (ESP) and combined license (COL) applications.
The effective date of this COL/ESP–ISG–026 is October 3, 2014.
Please refer to Docket ID NRC–2013–0212 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
• The agency posts its issued staff guidance in the agency external Web page (
Tanya Hood, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone at 301–415–1387 or email at
The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.
The NRC staff issues COL/ESP–ISGs to facilitate timely implementation of current staff guidance and to facilitate activities associated with review of applications for ESPs, design certifications, and COLs by the Office of New Reactors. The NRC staff intends to incorporate the final approved COL/ESP–ISG–026 into the next revision of the Environmental Standard Review Plan and related guidance documents.
The NRC posts all final ISGs on the NRC's public Web page at
Issuance of this ISG does not constitute backfitting as defined in § 50.109 of Title 10 of the
1.
The ISG provides interim guidance to the staff on how to review an application for NRC regulatory approval in the form of licensing. Changes in internal staff guidance are not matters for which either nuclear power plant applicants or licensees are protected under either the Backfit Rule or the issue finality provisions of 10 CFR part 52.
2.
Applicants are not, with certain exceptions, protected by either the Backfit Rule or any issue finality provisions under 10 CFR part 52. This is because neither the Backfit Rule nor the issue finality provisions under 10 CFR part 52—with certain exclusions discussed below—were intended to apply to every NRC action which substantially changes the expectations of current and future applicants.
The exceptions to the general principle are applicable whenever an applicant references a 10 CFR part 52 license (e.g., an ESP) and/or NRC regulatory approval (e.g., a design certification rule) with specified issue finality provisions. The staff does not, at this time, intend to impose the positions represented in the ISG in a manner that is inconsistent with any issue finality provisions. If, in the future, the staff seeks to impose a position in the ISG in a manner which does not provide issue finality as described in the applicable issue finality provision, then the staff must address the criteria for avoiding issue finality as described in the applicable issue finality provision.
3.
The NRC's consideration of environmental impacts to address the requirements of the National Environmental Policy Act of 1969 (NEPA), and an applicant's submission of environmental information needed to support the NRC's consideration of environmental impacts under NEPA, do not fall within the scope of matters which constitute backfitting. Consideration of environmental impacts to address NEPA compliance falls within the scope of matters protected under issue finality provisions of an ESP and a COL application referencing an ESP. However, this protection applies only after an ESP is issued, or if a COL application references an ESP. The NRC staff does not intend to apply the guidance to already-issued ESPs or COL applications referencing an ESP. Therefore, issuance of this ISG does not constitute a violation or inconsistency of the issue finality provisions applicable to ESPs or COL applications referencing an ESP.
This ISG is a rule as defined in the Congressional Review Act (5 U.S.C. 801–808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Draft interim staff guidance; extension of public comment period.
The U.S. Nuclear Regulatory Commission (NRC) published on June 18, 2014, a notice requesting public comment on draft Interim Staff Guidance (ISG), FSME–ISG–02, “Guidance for Conducting the Section 106 Process of the National Historic Preservation Act for Uranium Recovery
The due date of comments requested in the document published on June 18, 2014 (79 FR 34792) is extended. Comments should be filed no later than November 17, 2014. 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 comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
• Federal Rulemaking Web site: Go to
• Mail comments to: Cindy Bladey, Chief, Rules, Announcements, and Directives Branch, Office of Administration, Mail Stop: 3WFN–06–44M, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001.
For additional direction on accessing information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Diana Diaz Toro, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–0930; email:
Please refer to Docket ID NRC–2014–0142 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Please include Docket ID NRC–2014–0142 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
On June 18, 2014 (79 FR 34792), the NRC published a request for public comments on draft ISG FSME–ISG–02, “Guidance for Conducting the Section 106 Process of the National Historic Preservation Act for Uranium Recovery Licensing Actions.” The purpose of this draft ISG is to assist NRC staff in conducting the Section 106 process of the National Historic Preservation Act of 1966, as amended (NHPA), specific to uranium recovery licensing actions. This guidance document is primarily intended for the NRC staff and does not impose regulatory requirements. This draft ISG also provides useful information to participants in the Section 106 process for uranium recovery licensing actions. The public comment period was originally scheduled to close on September 2, 2014. The NRC has decided to extend the public comment period on this document until November 17, 2014, to allow more time for members of the public to submit their comments.
For the U.S. Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
License amendment application; opportunity to request a hearing and to petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) has docketed a license amendment application from Northern States Power Company (NSPM). NSPM is requesting a revision to the Technical Specifications of the TN–40 and TN–40HT casks utilized at the Prairie Island Independent Spent Fuel Storage Installation located in Welch, Minnesota. The NRC is evaluating whether approval of this request would be categorically excluded from the requirement to prepare an environmental assessment.
A request for a hearing must be filed by November 3, 2014. Any potential party as defined in § 2.4 of Title 10 of the
Please refer to Docket ID NRC–2013–0002 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Chris Allen, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–287–9225; email:
The NRC received, by letter dated May 23, 2014, a license amendment application from Northern States Power Company (NSPM), requesting a revision to the Technical Specifications of the TN–40 and TN–40HT casks utilized at its Prairie Island independent spent fuel storage installation located in Welch, Minnesota (ADAMS Accession No. ML14143A202). License No. SNM–2506 authorizes the licensee to receive, store, and transfer spent fuel from Prairie Island Nuclear Station Units 1 and 2. Specifically, the proposed amendment request seeks to revise the cask cavity pressurization requirements and their technical bases for the spent fuel storage casks.
An NRC administrative completeness review, documented in a letter to NSPM dated July 30, 2014, found the application acceptable to begin a technical review (ADAMS Accession No. ML14213A039). The NRC's Office of Nuclear Materials Safety and Safeguards (NMSS) has docketed this application under docket number 72–10. If the NRC approves the amendment, the approval will be documented in an amendment to NRC License No. SNM–2506. However, before approving the proposed amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations. These findings will be documented in a safety evaluation report. In the amendment request, NSPM asserted that the proposed amendment satisfies the categorical exclusion criteria of 10 CFR 51.22(c)(11). The NRC will evaluate this assertion and make findings consistent with the National Environmental Policy Act (NEPA) and 10 CFR Part 51.
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located in One White Flint North, Room O1–F21 (first floor), 11555 Rockville Pike, Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth, with particularity, the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted, with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion that support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with NRC regulations, policies, and procedures. The Atomic Safety and Licensing Board will set the time and place for any prehearing conferences and evidentiary hearings, and the appropriate notices will be provided.
Petitions for leave to intervene must be filed no later than 60 days from the
A State, local governmental body, federally-recognized Indian tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by November 3, 2014. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may also have the opportunity to participate under 10 CFR 2.315(c).
If a hearing is granted, any person who does not wish, or is not qualified, to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Persons desiring to make a limited appearance are requested to inform the Secretary of the Commission by November 3, 2014.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For the Commission.
The ACRS Subcommittees on Plant License Renewal and Structural Analysis will hold a meeting on September 19, 2014, Room T–2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance with the exception of portions that may be closed to protect information that is proprietary pursuant to 5 U.S.C. 552b(c)(4). The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss the effects of concrete degradation on nuclear plant related infrastructure. The Subcommittee will hear presentations by and hold discussions with representatives of the NRC staff, Department of Energy, Electric Power Research Institute and other interested persons regarding this matter. The combined Subcommittees will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Kent Howard (Telephone 301–415–2989 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240–888–9835) to be escorted to the meeting room.
The ACRS Subcommittee on Reliability & PRA will hold a meeting on September 18, 2014, Room T–2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review and discuss the progress of the National Fire Protection Association (NFPA) 805 transition for non-pilot plants. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), John Lai (Telephone 301–415–5197 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240–888–9835) to be escorted to the meeting room.
The Advisory Committee on Reactor Safeguards (ACRS) Subcommittee on Fukushima will hold a meeting on September 16, 2014, Room T–2B1, 11545 Rockville Pike, Rockville, Maryland.
The entire meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review and discuss the staff's activities and progress regarding reactor and containment instrumentation for severe accident monitoring. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Christina Antonescu (Telephone 301–415–6792 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240–888–9835) to be escorted to the meeting room.
The ACRS Subcommittee on Reliability & PRA will hold a meeting on September 15, 2014, Room T–2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will be briefed on the development of Interim Staff Guidance on Probabilistic Risk Assessment (PRA) requirements for the Advanced Light Water Reactor (ALWR) license applications under 10 CFR Part 52. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Hossein Nourbakhsh (Telephone 301–415–5622 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240–888–9835) to be escorted to the meeting room.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule 18f–2 under the Act, as well as from certain disclosure requirements.
Applicants request an order that would permit them to enter into and materially amend subadvisory agreements without shareholder approval and would grant relief from certain disclosure requirements.
Advisors Series Trust (the “Trust”) and Vivaldi Asset Management, LLC (the “Advisor”).
The application was filed on April 10, 2014 and amended on August 8, 2014.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on September 22, 2014, and should be accompanied by proof of service on the applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants: Advisors Series Trust, 615 East Michigan Street, Milwaukee, WI 53202 and Vivaldi Asset Management, LLC, 1622 Willow Road, Suite 101, Northfield, IL 60093.
Deepak T. Pai, Senior Counsel, at (202) 551–6876 or Mary Kay Frech, Branch Chief, at (202) 551–6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Trust, a Delaware statutory trust, is registered under the Act as an open-end management investment company. The Trust offers multiple series (each a “Fund” and together the “Funds”), two of which will be advised by the Advisor, each with its own investment objectives, policies, and restrictions.
2. The Advisor, a limited liability company organized under Delaware law, is registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”). The Advisor will serve as investment adviser to the Funds pursuant to an investment advisory agreement with the Trust (the “Advisory Agreement”),
3. Under the terms of the Advisory Agreement, the Advisor will provide the Funds with overall investment management services and, as it deems appropriate, will continuously review, supervise, and administer each Fund's investment program, subject to the supervision of, and policies established by, the Board. For the investment management services it will provide to a Fund, the Advisor will receive the fee specified in the Advisory Agreement from that Fund. The Advisory Agreement will permit the Advisor to delegate certain responsibilities to one or more investment subadvisers (each, a “Sub-Advisor”), to manage all or a portion of the assets of each Fund pursuant to an investment subadvisory agreement with a Sub-Advisor (“Sub-Advisory Agreement”). Each Sub-Advisor is, and any future Sub-Advisor will be, an “investment adviser,” as defined in section 2(a)(20) of the Act, and registered as an investment adviser under the Advisers Act, or not subject to such registration. The Advisor evaluates, allocates assets to, and oversees the Sub-Advisors, and make
4. Applicants request an order to permit the Advisor, subject to Board approval, to engage Sub-Advisors to manage all or a portion of the assets of a Fund pursuant to a Sub-Advisory Agreement and materially amend Sub-Advisory Agreements without obtaining shareholder approval. The requested relief will not extend to any Sub-Advisor that is an “affiliated person,” as defined in section 2(a)(3) of the Act, of the Trust, a Fund, or the Advisor, other than by reason of serving as Sub-Advisor to one or more of the Funds (“Affiliated Sub-Advisor”).
5. Applicants also request an order exempting each Fund from certain disclosure provisions described below that may require the Funds to disclose fees paid by the Advisor to Sub-Advisors. Applicants seek an order to permit each Fund to disclose (as both a dollar amount and as a percentage of a Fund's net assets) only: (a) The aggregate fees paid to the Advisor and any Affiliated Sub-Advisor; and (b) the aggregate fees paid to Sub-Advisors other than Affiliated Sub-Advisors (collectively, the “Aggregate Fee Disclosure”). A Fund that employs an Affiliated Sub-Advisor will provide separate disclosure of any fees paid to the Affiliated Sub-Advisor.
6. The Funds will inform shareholders of the hiring of a new Sub-Advisor pursuant to the following procedures (“Modified Notice and Access Procedures”): (a) Within 90 days after a new Sub-Advisor is hired for a Fund, the Fund will send its shareholders either a Multi-Manager Notice or a Multi-Manager Notice and Multi-Manager Information Statement;
1. Section 15(a) of the Act provides, in relevant part, that it is unlawful for any person to act as an investment adviser to a registered investment company except pursuant to a written contract that has been approved by the vote of a majority of the company's outstanding voting securities. Rule 18f–2 under the Act provides that each series or class of stock in a series investment company affected by a matter must approve that matter if the Act requires shareholder approval.
2. Form N–1A is the registration statement used by open-end investment companies. Item 19(a)(3) of Form N–1A requires disclosure of the method and amount of the investment adviser's compensation.
3. Rule 20a–1 under the Act requires proxies solicited with respect to a registered investment company to comply with Schedule 14A under the Exchange Act. Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A, taken together, require a proxy statement for a shareholder meeting at which the advisory contract will be voted upon to include the “rate of compensation of the investment adviser,” the “aggregate amount of the investment adviser's fees,” a description of the “terms of the contract to be acted upon,” and, if a change in the advisory fee is proposed, the existing and proposed fees and the difference between the two fees.
4. Regulation S–X sets forth the requirements for financial statements required to be included as part of a registered investment company's registration statement and shareholder reports filed with the Commission. Sections 6–07(2)(a), (b) and (c) of Regulation S–X require a registered investment company to include in its financial statement information about the investment advisory fees.
5. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provision of the Act, or from any rule thereunder, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants state that the requested relief meets this standard for the reasons discussed below.
6. Applicants assert that the shareholders expect each Fund's Advisor, subject to the review and approval of the Board, to select Sub-Advisors who are best suited to achieve the Fund's investment objective. Applicants assert that, from the perspective of the shareholder, the role of the Sub-Advisor is substantially equivalent to the role of the individual portfolio managers employed by traditional investment company advisory firms. Applicants state that requiring shareholder approval of each Sub-Advisory Agreement would impose unnecessary delays and expenses on the Funds, and may preclude a Fund from acting promptly when the applicable Board and Advisor believe that a change would benefit the Fund and its shareholders. Applicants note that the Advisory Agreements and any sub-advisory agreement with an Affiliated Sub-Advisor will continue to be subject to the shareholder approval requirements of section 15(a) of the Act and rule 18f–2 under the Act.
7. Applicants assert that the requested disclosure relief would benefit shareholders of the Funds because it would improve the Advisor's ability to negotiate the fees paid to Sub-Advisors. Applicants state that the Advisor may be able to negotiate rates that are below a Sub-Advisor's “posted” amounts, if the Advisor is not required to disclose the Sub-Advisors' fees to the public. Applicants submit that the requested relief will encourage Sub-Advisors to negotiate lower sub-advisory fees with the Advisor if the lower fees are not required to be made public.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Before a Fund may rely on the order requested in the application, the operation of the Fund in the manner described in the application will be approved by a majority of the Fund's outstanding voting securities, as defined in the Act, or, in the case of a Fund whose public shareholders purchase shares on the basis of a prospectus containing the disclosure contemplated by condition 2 below, by the sole initial shareholder before offering the Fund's shares to the public.
2. The prospectus for each Fund will disclose the existence, substance and effect of any order granted pursuant to the application. Each Fund will hold itself out to the public as employing the Manager of Managers Structure described in the application. The prospectus will prominently disclose that the Advisor has ultimate responsibility (subject to oversight by the Board) to oversee the Sub-Advisors and recommend their hiring, termination and replacement.
3. The Funds will inform shareholders of the hiring of a new Sub-Advisor within 90 days after the hiring of that new Sub-Advisor pursuant to the Modified Notice and Access Procedures.
4. The Advisor will not enter into a Sub-Advisory Agreement with any Affiliated Sub-Advisor without that agreement, including the compensation to be paid thereunder, being approved by the shareholders of the applicable Fund.
5. At all times, at least a majority of the Board will be Independent Trustees, and the nomination and selection of new or additional Independent Trustees will be placed within the discretion of the then-existing Independent Trustees.
6. When a Sub-Advisor change is proposed for a Fund with an Affiliated Sub-Advisor, the Board, including a majority of the Independent Trustees, will make a separate finding, reflected in the applicable Board minutes, that such change is in the best interests of the Fund and its shareholders and does not involve a conflict of interest from which the Advisor or the Affiliated Sub-Advisor derives an inappropriate advantage.
7. Independent legal counsel, as defined in rule 0–1(a)(6) under the Act, will be engaged to represent the Independent Trustees. The selection of such counsel will be within the discretion of the then existing Independent Trustees.
8. Each Advisor will provide the Board, no less frequently than quarterly, with information about the profitability of the Advisor on a per-Fund basis. The information will reflect the impact on profitability of the hiring or termination of any Sub-Advisor during the applicable quarter.
9. Whenever a Sub-Advisor is hired or terminated, the Advisor will provide the Board with information showing the expected impact on the profitability of the Advisor.
10. The Advisor will provide general management services to a Fund, including overall supervisory responsibility for the general management and investment of a Fund's assets and, subject to review and approval of the Board, will (i) set a Fund's overall investment strategies; (ii) evaluate, select and recommend Sub-Advisors to manage all or part of a Fund's assets; (iii) when appropriate, allocate and reallocate a Fund's assets among multiple Sub-Advisors; (iv) monitor and evaluate the performance of Sub-Advisors; and (v) implement procedures reasonably designed to ensure that the Sub-Advisors comply with a Fund's investment objective, policies and restrictions.
11. No trustee or officer of the Trust or of a Fund, or director, manager or officer of the Advisor, will own directly or indirectly (other than through a pooled investment vehicle that is not controlled by such person) any interest in a Sub-Advisor, except for (i) ownership of interests in the Advisor or any entity that controls, is controlled by or is under common control with the Advisor; or (ii) ownership of less than 1% of the outstanding securities of any class of equity or debt of a publicly traded company that is either a Sub-Advisor or an entity that controls, is controlled by or is under common control with a Sub-Advisor.
12. Each Fund will disclose in its registration statement the Aggregate Fee Disclosure.
13. Any new Sub-Advisory Agreement or any amendment to an existing Advisory Agreement or Sub-Advisory Agreement that directly or indirectly results in an increase in the aggregate advisory fee rate payable by a Fund will be submitted to the Fund's shareholders for approval.
14. In the event the Commission adopts a rule under the Act providing substantially similar relief to that in the order requested in the application, the requested order will expire on the effective date of that rule.
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, September 4, 2014 at 2:00 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the Closed Meeting.
Commissioner Stein, as duty officer, voted to consider the items listed for the Closed Meeting in closed session.
The subject matter of the Closed Meeting will be:
Settlement of injunctive actions;
Institution settlement of administrative proceedings; and other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551–5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange recently filed a proposed rule change to adopt two new routing options called “SWPA” and “SWPB” (collectively the “SWP routing strategies”).
The Exchange now proposes to modify its fee schedule to adopt fees applicable to the SWP routing strategies that are identical to the current fees charged for Parallel T. For order routed pursuant to the SWP routing strategies and executed on an away trading venue, the Exchange proposes to charge $0.033 per share in securities priced at or above $1.00 and 0.33% of the total dollar value of the execution for securities priced below $1.00. The Exchange proposes to implement the amendments to its fee schedule on August 15, 2014.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6 of the Act.
The Exchange believes that the proposed changes to the Exchange's fee schedule to add fees for the SWP routing strategies represents [sic] an equitable allocation of reasonable dues, fees, and other charges among Members and other persons using its facilities because they are identical to the fees charged for executions through an analogous routing strategy, Parallel T, which is currently offered by the Exchange. Lastly, the Exchange notes that the use of the SWP routing strategies is voluntary and believes that the proposed change is non-discriminatory because it applies uniformly to all Members.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Because the market for order execution is extremely competitive, Members may readily opt to disfavor the Exchange's routing services if they believe that alternatives offer them better value. For orders routed through the Exchange through the SWP routing strategies the proposed fee is equal to the fee currently charged for Parallel T routing. As stated above, the Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if the deem fee structures to be unreasonable or excessive.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange recently filed a proposed rule change to adopt two new routing options called “SWPA” and “SWPB” (collectively the “SWP routing strategies”).
The Exchange now proposes to modify its fee schedule to adopt fees applicable to the SWP routing strategies that are identical to the current fees charged for Parallel T. For order routed pursuant to the SWP routing strategies and executed on an away trading venue, the Exchange proposes to charge $0.033 per share in securities priced at or above $1.00 and 0.33% of the total dollar value of the execution for securities priced below $1.00. The Exchange proposes to implement the amendments to its fee schedule on August 15, 2014.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6 of the Act.
The Exchange believes that the proposed changes to the Exchange's fee schedule to add fees for the SWP routing strategies represents [sic] an equitable allocation of reasonable dues, fees, and other charges among Members and other persons using its facilities because they are identical to the fees charged for executions through an analogous routing strategy, Parallel T, which is currently offered by the Exchange. Lastly, the Exchange notes that the use of the SWP routing strategies is voluntary and believes that the proposed change is non-discriminatory because it applies uniformly to all Members.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Because the market for order execution is extremely competitive, Members may readily opt to disfavor the Exchange's routing services if they believe that alternatives offer them better value. For orders routed through the Exchange through the SWP routing strategies the proposed fee is equal to the fee currently charged for Parallel T routing. As stated above, the Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if the deem fee structures to be unreasonable or excessive.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade shares of the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): PIMCO StocksPLUS® Absolute Return Exchange-Traded Fund, PIMCO Small Cap StocksPLUS® AR Strategy Exchange-Traded Fund, PIMCO Fundamental IndexPLUS® AR Exchange-Traded Fund, PIMCO Small Company Fundamental IndexPLUS® AR Strategy Exchange-Traded Fund, PIMCO EM Fundamental IndexPLUS® AR Strategy Exchange-Traded Fund, PIMCO International Fundamental IndexPLUS® AR Strategy Exchange-Traded Fund, PIMCO EM StocksPLUS® AR Strategy Exchange-Traded Fund, and PIMCO International StocksPLUS® AR Strategy Exchange-Traded Fund (Unhedged). 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
The Exchange proposes to list and trade shares (“Shares”) of the following under NYSE Arca Equities Rule 8.600,
The investment manager to the Funds will be Pacific Investment Management Company LLC (“PIMCO” or the “Adviser”). Research Affiliates, LLC (“Research Affiliates” or the “Sub-Adviser”), will be the sub-adviser with respect to the Fundamental IndexPLUS Fund, Small Company Fundamental IndexPLUS Fund, EM Fundamental IndexPLUS Fund, and the International Fundamental IndexPLUS Fund. PIMCO Investments LLC will serve as the distributor for the Funds (“Distributor”). State Street Bank & Trust Co. will serve as the custodian and transfer agent for the Funds (“Custodian” or “Transfer Agent”).
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio.
In the event (a) the Adviser or Sub-Adviser becomes registered as a broker-dealer or newly affiliated with a broker-dealer, or (b) any new adviser or sub-adviser is a registered broker-dealer or becomes affiliated with a broker-dealer, it will implement a fire wall with respect to its relevant personnel or its broker-dealer affiliate regarding access to information concerning the composition and/or changes to a portfolio, and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding such portfolio.
According to the Registration Statement, in selecting investments for each Fund, PIMCO will develop an outlook for interest rates, currency exchange rates and the economy, will analyze credit and call risks, and will use other investment selection techniques. The proportion of each Fund's assets committed to investment in securities with particular characteristics (such as quality, sector, interest rate or maturity) will vary based on PIMCO's outlook for the U.S. economy and the economies of other countries in the world, the financial markets and other factors.
With respect to each Fund, in seeking to identify undervalued currencies,
Among other investments described in more detail herein, each Fund may invest in Fixed Income Instruments, which include:
• Securities issued or guaranteed by the U.S. Government, its agencies or government-sponsored enterprises (“U.S. Government Securities”);
• corporate debt securities of U.S. and non-U.S. issuers, including convertible securities and corporate commercial paper;
• mortgage-backed and other asset-backed securities;
• inflation-indexed bonds issued both by governments and corporations;
• structured notes, including hybrid or “indexed” securities, and event-linked bonds,
• bank capital and trust preferred securities;
• loan participations and assignments,
• delayed funding loans and revolving credit facilities;
• bank certificates of deposit, fixed time deposits and bankers' acceptances;
• repurchase agreements on Fixed Income Instruments and reverse repurchase agreements on Fixed Income Instruments;
• debt securities issued by states or local governments and their agencies, authorities and other government-sponsored enterprises (“Municipal Bonds”);
• obligations of non-U.S. governments or their subdivisions, agencies and government-sponsored enterprises; and
• obligations of international agencies or supranational entities.
Each Fund's investments in derivative instruments will be made in accordance with the 1940 Act and consistent with a Fund's investment objective and policies. With respect to each Fund, derivative instruments will include the following: forwards;
As described further below, each Fund will typically use derivative instruments as a substitute for taking a position in the underlying asset and/or as part of a strategy designed to reduce exposure to other risks, such as interest rate or currency risk. A Fund may also use derivative instruments to enhance
The Adviser believes that derivatives can be an economically attractive substitute for an underlying physical security that each Fund would otherwise purchase. For example, a Fund could purchase Treasury futures contracts instead of physical Treasuries or could sell credit default protection on a corporate bond instead of buying a physical bond. Economic benefits include potentially lower transaction costs or attractive relative valuation of a derivative versus a physical bond (
The Adviser further believes that derivatives can be used as a more liquid means of adjusting portfolio duration as well as targeting specific areas of yield curve exposure, with potentially lower transaction costs than the underlying securities (
Each Fund also can use derivatives to increase or decrease credit exposure. Index credit default swaps (CDX) can be used to gain exposure to a basket of credit risk by “selling protection” against default or other credit events, or to hedge broad market credit risk by “buying protection.” Single name credit default swaps (CDS) can be used to allow a Fund to increase or decrease exposure to specific issuers, saving investor capital through lower trading costs. A Fund can use total return swap contracts to obtain the total return of a reference asset or index in exchange for paying a financing cost. A total return swap may be much more efficient than buying underlying securities of an index, potentially lowering transaction costs.
The Adviser believes that the use of derivatives will allow each Fund to selectively add diversifying sources of return from selling options. Option purchases and sales can also be used to hedge specific exposures in the portfolio, and can provide access to return streams available to long-term investors such as the persistent difference between implied and realized volatility. Option strategies can generate income or improve execution prices (
According to the Registration Statement, the Fund will seek total return which exceeds the total return of its benchmark, the S&P 500 Index (the “S&P 500”).
The Fund will seek to achieve its investment objective by investing, under normal circumstances,
The Fund will typically seek to gain long exposure to the S&P 500 in an amount, under normal circumstances, approximately equal to the Fund's net assets, by investing in S&P 500 derivatives. The value of S&P 500 derivatives should closely track changes in the value of the S&P 500. The Fund will normally use S&P 500 derivatives, instead of S&P 500 stocks, to attempt to equal or exceed the daily performance of the S&P 500. Though the Fund will not normally invest directly in S&P 500 stocks, when S&P 500 derivatives appear to be overvalued relative to the S&P 500, the Fund may invest all of its assets in a “basket” of S&P 500 stocks. The Fund may also invest in exchange-traded funds based on the S&P 500, such as Standard & Poor's Depositary Receipts. The Fund will seek to remain invested in S&P 500 derivatives or S&P 500 stocks even when the S&P 500 is declining.
Assets not invested in S&P 500 derivatives or S&P 500 stocks may be invested in Fixed Income Instruments. PIMCO will actively manage the Fixed Income Instruments held by the Fund with a view toward enhancing the Fund's total return by using an absolute return approach. The absolute return approach, which applies to the portion of the portfolio not invested in S&P 500 derivatives or S&P 500 stocks, will allow the Fund more discretion with respect to overall sector exposures, non-U.S. exposures and credit quality, both as a function of the strategy's investment guidelines and lack of a fixed income benchmark (
The Fund may invest in securities and instruments that are economically tied to foreign (non-U.S.) countries.
The Fund may invest in securities denominated in foreign currencies and in U.S. dollar-denominated securities of foreign issuers, subject to applicable limitations set forth herein. With respect to the Fund's absolute return investments, the Fund will normally limit its foreign currency exposure (from non-U.S. dollar-denominated securities or currencies) to 20% of its total assets. With respect to the Fund's absolute return investments, the Fund may invest up to 25% of its total assets in securities and instruments that are economically tied to emerging market countries.
The Fund may engage in foreign currency transactions on a spot (cash) basis and forward basis
The Fund may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts. The Fund may purchase or sell securities on a when-issued, delayed delivery or forward commitment basis and may engage in short sales.
With respect to the Fund's absolute return investments, the Fund may invest up to 10% of its total assets in preferred stocks, convertible securities and other equity-related securities.
The Fund may invest up to 20% of its total assets in: (i) Variable and floating rate securities
The Fund may also invest up to 20% of its total assets in trade claims,
The Fund may, with up to 20% of its total assets, enter into repurchase agreements on instruments other than Fixed Income Instruments, which involve, like repurchase agreements on Fixed Income Instruments mentioned above, the Fund purchasing a security from a bank or broker-dealer that agrees to purchase the security at the Fund's cost plus interest within a specified time. Repurchase agreements maturing in more than seven days and which may not be terminated within seven days at approximately the amount at which the
The Fund may invest up to 20% of its total assets in “high yield securities” rated B or higher by Moody's Investors Service, Inc. (“Moody's”), or equivalently rated by Standard & Poor's Ratings Services (“S&P”) or Fitch, Inc. (“Fitch”), or, if unrated, determined by PIMCO to be of comparable quality
The Fund may invest up to 20% of its assets in mortgage-related and other asset-backed securities, although this 20% limitation does not apply to securities issued or guaranteed by Federal agencies and/or U.S. government sponsored instrumentalities.
According to the Registration Statement, the Fund will seek total return which exceeds the total return of its benchmark, the Russell 2000 Index (the “Russell 2000”).
The Fund will seek to achieve its investment objective by investing, under normal circumstances,
The Fund will typically seek to gain long exposure to the Russell 2000 in an amount, under normal circumstances, approximately equal to the Fund's net assets, by investing in Russell 2000 derivatives. The value of Russell 2000 derivatives should closely track changes in the value of the Russell 2000. The Fund will normally use Russell 2000 derivatives, instead of Russell 2000 stocks, to attempt to equal or exceed the daily performance of the Russell 2000. Though the Fund will not normally invest directly in Russell 2000 stocks, when Russell 2000 derivatives appear to be overvalued relative to the Russell 2000, the Fund may invest all of its assets in a “basket” of Russell 2000 stocks. The Fund may also invest in exchange-traded funds based on the Russell 2000. The Fund will seek to remain invested in Russell 2000 derivatives or Russell 2000 stocks even when the Russell 2000 is declining.
Assets not invested in Russell 2000 derivatives or Russell 2000 stocks may be invested in Fixed Income Instruments. PIMCO will actively manage the Fixed Income Instruments held by the Fund with a view toward enhancing the Fund's total return by using an absolute return approach. The absolute return approach, which applies to the portion of the portfolio not invested in Russell 2000 derivatives or Russell 2000 stocks, will allow the Fund more discretion with respect to overall sector exposures, non-U.S. exposures and credit quality, both as a function of the strategy's investment guidelines and lack of a fixed income benchmark (
The Fund may invest in securities and instruments that are economically tied to foreign (non-U.S.) countries.
The Fund may engage in foreign currency transactions on a spot (cash) basis and forward basis and invest in foreign currency futures contracts and exchange-traded and OTC options contracts. The Fund may enter into these contracts to hedge against foreign exchange risk, to increase exposure to a foreign currency or to shift exposure to foreign currency fluctuations from one currency to another. Suitable hedging transactions may not be available in all circumstances and there can be no assurance that the Fund will engage in such transactions at any given time or from time to time.
The Fund may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts. The Fund may purchase or sell securities on a when-issued, delayed delivery or forward commitment basis and may engage in short sales.
With respect to the Fund's absolute return investments, the Fund may invest up to 10% of its total assets in preferred stocks, convertible securities and other equity-related securities.
The Fund may invest up to 20% of its total assets in: (i) Variable and floating rate securities that are not Fixed Income Instruments and (ii) floaters and inverse floaters that are not Fixed Income Instruments.
The Fund may also invest up to 20% of its total assets in trade claims, privately placed and unregistered securities, and exchange-traded and OTC-traded structured products, including credit-linked securities and commodity-linked notes. The Fund may invest up to 20% of its total assets in Brady Bonds. The Fund may invest up to 20% of its total assets in bank loans.
The Fund may, with up to 20% of its total assets, enter into repurchase agreements on instruments other than Fixed Income Instruments. Repurchase agreements maturing in more than seven days and which may not be terminated within seven days at approximately the amount at which the Fund has valued the agreements will be considered illiquid securities. The Fund may also, with up to 20% of its total assets, enter into reverse repurchase agreements on instruments other than Fixed Income Instruments, subject to the Fund's limitations on borrowings. The Fund will segregate or “earmark” assets determined to be liquid by PIMCO in accordance with procedures established by the Board to cover its obligations under reverse repurchase agreements.
The Fund may invest up to 20% of its total assets in “high yield securities” rated B or higher by Moody's, or equivalently rated by S&P or Fitch, or, if unrated, determined by PIMCO to be of comparable quality (except that within such limitation, the Fund may invest in mortgage-related securities rated below B).
The Fund may invest up to 20% of its assets in mortgage-related and other asset-backed securities, although this 20% limitation does not apply to securities issued or guaranteed by Federal agencies and/or U.S. government sponsored instrumentalities.
According to the Registration Statement, the Fund will seek total return
The Fund will use RAFI Large Company Index derivatives in addition to, or in place of, RAFI Large Company Index component securities, in an attempt to equal or exceed the daily performance of the S&P 500. The value of RAFI Large Company Index derivatives should closely track changes in the value of the RAFI Large Company Index. Though the Fund will not normally invest directly in RAFI Large Company Index stocks, when RAFI Large Company Index derivatives appear to be overvalued relative to RAFI Large Company Index stocks, the Fund may invest all of its assets in a “basket” of RAFI Large Company Index stocks. The Fund may also invest in exchange-traded funds. The Fund will seek to remain invested in RAFI Large Company Index derivatives or RAFI Large Company Index stocks even when the RAFI Large Company Index is declining.
The Sub-Adviser will provide investment advisory services in connection with the Fund's use of the RAFI Large Company Index by, among other things, providing PIMCO (or counterparties designated by PIMCO) with a model portfolio reflecting the composition of the RAFI Large Company Index for purposes of developing RAFI Large Company Index derivatives. The Fund will typically seek to gain exposure to the RAFI Large Company Index by investing in total return swap agreements. In a typical swap agreement, the Fund will receive the price appreciation (or depreciation) on the RAFI Large Company Index from the counterparty to the swap agreement in exchange for paying the counterparty an agreed upon fee. Research Affiliates will facilitate the Fund's use of RAFI Large Company Index derivatives by providing model portfolios of RAFI Large Company Index securities to the Fund's swap counterparties, so that the counterparties can provide total return swaps based on the RAFI Large Company Index to the Fund. If such swap agreements are not available, the Fund may invest in other derivative instruments, “baskets” of stocks, or RAFI Large Company Index component securities to replicate the performance of the RAFI Large Company Index.
The RAFI Large Company Index derivatives may be purchased with a small fraction of the assets that would be needed to purchase the equity securities directly, so that the remainder of the Fund's assets may be invested in Fixed Income Instruments. PIMCO will actively manage the Fixed Income Instruments held by the Fund with a view toward enhancing the Fund's total return utilizing an absolute return approach, which applies to the portion of the portfolio not invested in RAFI Large Company Index derivatives or RAFI Large Company Index stocks, subject to an overall portfolio duration which will normally vary from (negative) 3 years to positive 8 years based on PIMCO's forecast for interest rates.
The Fund may invest in securities and instruments that are economically tied to foreign (non-U.S.) countries.
The Fund may engage in foreign currency transactions on a spot (cash) basis and forward basis
The Fund may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts. The Fund may purchase or sell securities on a when-issued, delayed delivery or forward
With respect to the Fund's absolute return investments, the Fund may invest up to 10% of its total assets in preferred stocks, convertible securities and other equity-related securities.
The Fund may invest up to 20% of its total assets in: (i) Variable and floating rate securities that are not Fixed Income Instruments and (ii) floaters and inverse floaters that are not Fixed Income Instruments.
The Fund may also invest up to 20% of its total assets in trade claims, privately placed and unregistered securities, and exchange-traded and OTC-traded structured products, including credit-linked securities and commodity-linked notes. The Fund may invest up to 20% of its total assets in Brady Bonds. The Fund may invest up to 20% of its total assets in bank loans.
The Fund may, with up to 20% of its total assets, enter into repurchase agreements on instruments other than Fixed Income Instruments. Repurchase agreements maturing in more than seven days and which may not be terminated within seven days at approximately the amount at which the Fund has valued the agreements will be considered illiquid securities. The Fund may also, with up to 20% of its total assets, enter into reverse repurchase agreements on instruments other than Fixed Income Instruments, subject to the Fund's limitations on borrowings. The Fund will segregate or “earmark” assets determined to be liquid by PIMCO in accordance with procedures established by the Board to cover its obligations under reverse repurchase agreements.
The Fund may invest up to 20% of its total assets in “high yield securities” rated B or higher by Moody's, or equivalently rated by S&P or Fitch, or, if unrated, determined by PIMCO to be of comparable quality (except that within such limitation, the Fund may invest in mortgage-related securities rated below B).
The Fund may invest up to 20% of its assets in mortgage-related and other asset-backed securities, although this 20% limitation does not apply to securities issued or guaranteed by Federal agencies and/or U.S. government sponsored instrumentalities.
According to the Registration Statement, the Fund will seek total return which exceeds the total return of its benchmark, the Russell 2000®. The Fund will seek to achieve its investment objective by investing, under normal circumstances, in derivatives based on the Enhanced RAFI® US Small (“RAFI Small Company Index”)
The Fund will use RAFI Small Company Index derivatives in addition to, or in place of, RAFI Small Company Index stocks, in an attempt to equal or exceed the daily performance of the Russell 2000. The values of RAFI Small Company Index derivatives should closely track changes in the value of the RAFI Small Company Index. Though the Fund will not normally invest directly in RAFI Small Company Index stocks, when RAFI Small Company Index derivatives appear to be overvalued relative to RAFI Small Company Index stocks, the Fund may invest all of its assets in a “basket” of RAFI Small Company Index stocks. The Fund may also invest in exchange-traded funds. The Fund will seek to remain invested in RAFI Small Company Index derivatives or RAFI Small Company Index stocks even when the RAFI Small Company Index is declining.
Research Affiliates will provide investment advisory services in connection with the Fund's use of the RAFI Small Company Index by, among other things, providing PIMCO (or counterparties designated by PIMCO), with a model portfolio reflecting the composition of the RAFI Small Company Index for purposes of developing RAFI Small Company Index derivatives. The Fund will typically seek to gain exposure to the RAFI Small Company Index by investing in total return swap agreements. In a typical swap agreement, the Fund will receive the price appreciation (or depreciation) on the RAFI Small Company Index from the counterparty to the swap agreement in exchange for paying the counterparty an agreed upon fee. Research Affiliates will facilitate the Fund's use of RAFI Small Company Index derivatives by providing a model portfolio of the RAFI Small Company Index to the Fund's swap counterparties, who in turn are able to provide total return swaps based on the RAFI Small Company Index to the Fund. If such swap agreements are not available, the Fund may invest in other derivative instruments, “baskets” of stocks, or individual securities to replicate the performance of the RAFI Small Company Index.
According to the Registration Statement, the Fund may purchase RAFI Small Company Index derivatives with a fraction of the assets that would be needed to purchase the equity securities directly, so that the remainder of the Fund's assets may be invested in Fixed Income Instruments. PIMCO will actively manage the Fixed Income Instruments held by the Fund with a view toward enhancing the Fund's total return utilizing an absolute return approach, which applies to the portion of the portfolio not invested in Russell 2000 derivatives or Russell 2000 stocks, subject to an overall portfolio duration which will normally vary from (negative) 3 years to positive 8 years based on PIMCO's forecast for interest rates.
The Fund may invest in securities and instruments that are economically tied to foreign (non-U.S.) countries.
The Fund may engage in foreign currency transactions on a spot (cash) basis and forward basis and invest in foreign currency futures contracts and options contracts. The Fund may enter into these contracts to hedge against foreign exchange risk, to increase exposure to a foreign currency or to shift exposure to foreign currency
The Fund may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts.
With respect to the Fund's absolute return investments, the Fund may invest up to 10% of its total assets in preferred stocks, convertible securities and other equity-related securities.
The Fund may invest up to 20% of its total assets in: (i) variable and floating rate securities that are not Fixed Income Instruments and (ii) floaters and inverse floaters that are not Fixed Income Instruments. The Fund may also invest up to 20% of its total assets in trade claims, privately placed and unregistered securities, and exchange-traded and OTC-traded structured products, including credit-linked securities and commodity-linked notes. The Fund may invest up to 20% of its total assets in Brady Bonds. The Fund may invest up to 20% of its total assets in bank loans.
The Fund may, with up to 20% of its total assets, enter into repurchase agreements on instruments other than Fixed Income Instruments. Repurchase agreements maturing in more than seven days and which may not be terminated within seven days at approximately the amount at which the Fund has valued the agreements will be considered illiquid securities. The Fund may also, with up to 20% of its total assets, enter into reverse repurchase agreements on instruments other than Fixed Income Instruments, subject to the Fund's limitations on borrowings. The Fund will segregate or “earmark” assets determined to be liquid by PIMCO in accordance with procedures established by the Board to cover its obligations under reverse repurchase agreements.
The Fund may invest up to 20% of its total assets in “high yield securities” rated B or higher by Moody's, or equivalently rated by S&P or Fitch, or, if unrated, determined by PIMCO to be of comparable quality (except that within such limitation, the Fund may invest in mortgage-related securities rated below B).
The Fund may invest up to 20% of its assets in mortgage-related and other asset-backed securities, although this 20% limitation does not apply to securities issued or guaranteed by Federal agencies and/or U.S. government sponsored instrumentalities.
According to the Registration Statement, the Fund will seek total return which exceeds the total return of its benchmark, the Morgan Stanley Capital International Emerging Markets Index (Net Dividends in USD) (“MSCI EM Index”).
The Fund will seek to achieve its investment objective by investing, under normal circumstances, in derivatives based on the Enhanced RAFI® Emerging Markets (“RAFI EM Index”)
The Fund will normally be expected to primarily use RAFI EM Index derivatives, in place of, or in addition to, RAFI EM Index stocks, in an attempt to equal or exceed the daily performance of the MSCI EM Index. The value of RAFI EM Index derivatives should closely track changes in the value of the RAFI EM Index. In addition to or instead of RAFI EM Index swaps, the Fund may invest in other derivative instruments, “baskets” of stocks, individual securities, and exchange-traded funds to maintain emerging markets equity exposure. The Fund may also invest in exchange-traded funds. The Fund will seek to remain invested in RAFI EM Index derivatives or RAFI EM Index stocks even when the RAFI EM Index is declining.
Research Affiliates will provide investment advisory services in connection with the Fund's use of the RAFI EM Index by, among other things, providing PIMCO (or counterparties designated by PIMCO) with a model portfolio reflecting the composition of RAFI EM Index for purposes of developing RAFI EM Index derivatives. The Fund will typically seek to gain exposure to the RAFI EM Index by investing in total return swap agreements. In a typical swap agreement, the Fund will receive the price appreciation (or depreciation) on the RAFI EM Index from the counterparty to the swap agreement in exchange for paying the counterparty an agreed upon fee. Research Affiliates will facilitate the Fund's use of RAFI EM Index derivatives by providing model portfolios of RAFI EM Index securities to the Fund's swap counterparties, so that the counterparties can provide total return swaps based on the RAFI EM Index to the Fund.
RAFI EM Index derivatives may be purchased with a fraction of the assets that would be needed to purchase RAFI EM Index equity securities directly, so that the remainder of the assets may be invested in Fixed Income Instruments. PIMCO will actively manage the Fixed Income Instruments held by the Fund with a view toward enhancing the Fund's total return by using an absolute return approach, which applies to the portion of the portfolio not invested in RAFI EM Index derivatives or RAFI EM Index stocks, subject to an overall portfolio duration which will normally vary from (negative) 3 years to positive 8 years based on PIMCO's forecast for interest rates.
The Fund may invest in securities and instruments that are economically tied to foreign (non-U.S.) countries.
The Fund may engage in foreign currency transactions on a spot (cash) basis and forward basis and invest in foreign currency futures contracts and exchange traded and OTC options contracts. The Fund may enter into these contracts to hedge against foreign exchange risk, to increase exposure to a foreign currency or to shift exposure to
The Fund may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts. The Fund may purchase or sell securities on a when-issued, delayed delivery or forward commitment basis and may engage in short sales.
With respect to the Fund's absolute return investments, the Fund may invest up to 10% of its total assets in preferred stocks, convertible securities and other equity-related securities.
The Fund may invest up to 20% of its total assets in: (i) variable and floating rate securities that are not Fixed Income Instruments and (ii) floaters and inverse floaters that are not Fixed Income Instruments.
The Fund may also invest up to 20% of its total assets in trade claims, privately placed and unregistered securities, and exchange-traded and OTC-traded structured products, including credit-linked securities and commodity-linked notes. The Fund may invest up to 20% of its total assets in Brady Bonds. The Fund may invest up to 20% of its total assets in bank loans.
The Fund may, with up to 20% of its total assets, enter into repurchase agreements on instruments other than Fixed Income Instruments. Repurchase agreements maturing in more than seven days and which may not be terminated within seven days at approximately the amount at which the Fund has valued the agreements will be considered illiquid securities. The Fund may also, with up to 20% of its total assets, enter into reverse repurchase agreements on instruments other than Fixed Income Instruments, subject to the Fund's limitations on borrowings. The Fund will segregate or “earmark” assets determined to be liquid by PIMCO in accordance with procedures established by the Board to cover its obligations under reverse repurchase agreements.
The Fund may invest up to 20% of its total assets in “high yield securities” rated B or higher by Moody's, or equivalently rated by S&P or Fitch, or, if unrated, determined by PIMCO to be of comparable quality (except that within such limitation, the Fund may invest in mortgage-related securities rated below B).
The Fund may invest up to 20% of its assets in mortgage-related and other asset-backed securities, although this 20% limitation does not apply to securities issued or guaranteed by Federal agencies and/or U.S. government sponsored instrumentalities.
According to the Registration Statement, the International Fundamental IndexPLUS Fund will seek total return which exceeds the total return of its benchmark, the Morgan Stanley Capital International Europe, Australasia, Far East Index (“MSCI EAFE Index”).
The Fund will seek to achieve its investment objective by investing, under normal circumstances, in derivatives based on the Enhanced RAFI® International Large (“RAFI Developed Index”)
The Fund will use RAFI Developed Index derivatives to attempt to equal or exceed the daily performance of the MSCI EAFE Index. The values of RAFI Developed Index derivatives should closely track changes in the value of the RAFI Developed Index. Though the Fund will not normally invest directly in RAFI Developed Index stocks, when RAFI Developed Index derivatives appear to be overvalued relative to the RAFI Developed Index, the Fund may invest all of its assets in a “basket” of RAFI Developed Index stocks. The Fund may also invest in exchange-traded funds. The Fund will seek to remain invested in RAFI Developed Index derivatives even when the RAFI Developed Index is declining.
Research Affiliates will provide investment advisory services in connection with the Fund's use of the RAFI Developed Index by, among other things, providing PIMCO (or counterparties designated by PIMCO) with a model portfolio reflecting the composition of the RAFI Developed Index for purposes of developing RAFI Developed Index derivatives. The Fund will typically seek to gain exposure to the RAFI Developed Index by investing in total return swap agreements. In a typical swap agreement, the Fund will receive the price appreciation (or depreciation) on the RAFI Developed Index from the counterparty to the swap agreement in exchange for paying the counterparty an agreed upon fee. Research Affiliates will facilitate the Fund's use of RAFI Developed Index derivatives by providing model portfolios of RAFI Developed Index securities to the Fund's swap counterparties, so that the counterparties can provide total return swaps based on the RAFI Developed Index to the Fund. If such swap agreements are not available, the Fund may invest in other derivative instruments, “baskets” of stocks, or individual securities to replicate the performance of the RAFI Developed Index.
According to the Registration Statement, RAFI Developed Index derivatives may be purchased with a fraction of the assets that would be needed to purchase the RAFI Developed Index equity securities directly, so that the remainder of the assets may be invested in Fixed Income Instruments. PIMCO will actively manage the Fixed Income Instruments held by the Fund with a view toward enhancing the Fund's total return by using an absolute return approach, which applies to the portion of the portfolio not invested in RAFI Developed Index derivatives or RAFI Developed Index stocks, subject to an overall portfolio duration which will normally vary from (negative) 3 years to positive 8 years based on PIMCO's forecast for interest rates.
The Fund may invest in securities and instruments that are economically tied to foreign (non-U.S.) countries.
The Fund may engage in foreign currency transactions on a spot (cash) basis and forward basis and invest in foreign currency futures contracts and options contracts. The Fund may enter into these contracts to hedge against foreign exchange risk, to increase exposure to a foreign currency or to shift exposure to foreign currency fluctuations from one currency to another. Suitable hedging transactions may not be available in all circumstances and there can be no assurance that the Fund will engage in such transactions at any given time or from time to time.
The Fund may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts. The Fund may purchase or sell securities on a when-issued, delayed delivery or forward commitment basis and may engage in short sales.
With respect to the Fund's absolute return investments, the Fund may invest up to 10% of its total assets in preferred stocks, convertible securities and other equity-related securities.
The Fund may invest up to 20% of its total assets in: (i) Variable and floating rate securities that are not Fixed Income Instruments and (ii) floaters and inverse floaters that are not Fixed Income Instruments.
The Fund may also invest up to 20% of its total assets in trade claims, privately placed and unregistered securities, and exchange-traded and OTC-traded structured products, including credit-linked securities and commodity-linked notes. The Fund may invest up to 20% of its total assets in Brady Bonds. The Fund may invest up to 20% of its total assets in bank loans.
The Fund may, with up to 20% of its total assets, enter into repurchase agreements on instruments other than Fixed Income Instruments. Repurchase agreements maturing in more than seven days and which may not be terminated within seven days at approximately the amount at which the Fund has valued the agreements will be considered illiquid securities. The Fund may also, with up to 20% of its total assets, enter into reverse repurchase agreements on instruments other than Fixed Income Instruments, subject to the Fund's limitations on borrowings. The Fund will segregate or “earmark” assets determined to be liquid by PIMCO in accordance with procedures established by the Board to cover its obligations under reverse repurchase agreements.
The Fund may invest up to 20% of its total assets in “high yield securities” rated B or higher by Moody's, or equivalently rated by S&P or Fitch, or, if unrated, determined by PIMCO to be of comparable quality (except that within such limitation, the Fund may invest in mortgage-related securities rated below B).
The Fund may invest up to 20% of its assets in mortgage-related and other asset-backed securities, although this 20% limitation does not apply to securities issued or guaranteed by Federal agencies and/or U.S. government sponsored instrumentalities.
According to the Registration Statement, the Fund will seek total return which exceeds the total return of its benchmark, the MSCI EM Index.
The Fund will seek to achieve its investment objective by investing, under normal circumstances, in MSCI EM Index derivatives, backed by a portfolio of Fixed Income Instruments that are managed using an absolute return approach. In seeking total return exceeding that of the MSCI EM Index, or as part of the Fund's absolute return strategy relative to fixed income investing, the Fund may invest in derivative instruments, subject to applicable law and any other restrictions described herein.
The Fund will typically seek to gain long exposure to the MSCI EM Index in an amount, under normal circumstances, approximately equal to the Fund's net assets, by investing in MSCI EM Index derivatives. The value of the MSCI EM Index derivatives should closely track changes in the value of the MSCI EM Index. The Fund will normally use MSCI EM Index derivatives, instead of MSCI EM Index stocks, to attempt to equal or exceed the daily performance of the MSCI EM Index. Though the Fund will not normally invest directly in MSCI EM Index stocks, when MSCI EM Index derivatives appear to be overvalued relative to the MSCI EM Index, the Fund may invest all of its assets in a “basket” of MSCI EM Index stocks. The Fund may also invest in exchange-traded funds based on the MSCI EM Index. The Fund will seek to remain invested in MSCI EM Index derivatives or MSCI EM Index stocks even when the MSCI EM Index is declining.
According to the Registration Statement, MSCI EM Index derivatives may be purchased with a small fraction of the assets that would be needed to purchase the MSCI EM Index equity securities directly, so that the remainder of the assets may be invested in Fixed Income Instruments. PIMCO will actively manage the Fixed Income Instruments held by the Fund with a view toward enhancing the Fund's total return by using an absolute return approach, which applies to the portion of the portfolio not invested in MSCI EM Index derivatives or MSCI EM Index stocks, subject to an overall portfolio duration which will normally vary from (negative) 3 years to positive 8 years based on PIMCO's forecast for interest rates.
The Fund may invest in securities and instruments that are economically tied to foreign (non-U.S.) countries.
The Fund may engage in foreign currency transactions on a spot (cash) basis and forward basis and invest in foreign currency futures contracts and options contracts. The Fund may enter into these contracts to hedge against foreign exchange risk, to increase exposure to a foreign currency or to shift exposure to foreign currency fluctuations from one currency to another. Suitable hedging transactions may not be available in all circumstances and there can be no assurance that the Fund will engage in such transactions at any given time or from time to time.
The Fund may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts. The Fund may purchase or sell securities on a when-issued, delayed delivery or forward
With respect to the Fund's absolute return investments, the Fund may invest up to 10% of its total assets in preferred stocks, convertible securities and other equity-related securities.
The Fund may invest up to 20% of its total assets in: (i) Variable and floating rate securities that are not Fixed Income Instruments and (ii) floaters and inverse floaters that are not Fixed Income Instruments.
The Fund may also invest up to 20% of its total assets in trade claims, privately placed and unregistered securities, and exchange-traded and OTC-traded structured products, including credit-linked securities and commodity-linked notes. The Fund may invest up to 20% of its total assets in Brady Bonds. The Fund may invest up to 20% of its total assets in bank loans.
The Fund may, with up to 20% of its total assets, enter into repurchase agreements on instruments other than Fixed Income Instruments. Repurchase agreements maturing in more than seven days and which may not be terminated within seven days at approximately the amount at which the Fund has valued the agreements will be considered illiquid securities. The Fund may also, with up to 20% of its total assets, enter into reverse repurchase agreements on instruments other than Fixed Income Instruments, subject to the Fund's limitations on borrowings. The Fund will segregate or “earmark” assets determined to be liquid by PIMCO in accordance with procedures established by the Board to cover its obligations under reverse repurchase agreements.
The Fund may invest up to 20% of its total assets in “high yield securities” rated B or higher by Moody's, or equivalently rated by S&P or Fitch, or, if unrated, determined by PIMCO to be of comparable quality (except that within such limitation, the Fund may invest in mortgage-related securities rated below B).
The Fund may invest up to 20% of its assets in mortgage-related and other asset-backed securities, although this 20% limitation does not apply to securities issued or guaranteed by Federal agencies and/or U.S. government sponsored instrumentalities.
According to the Registration Statement, the International StocksPLUS Fund will seek total return which exceeds the total return of its benchmark, the MSCI EAFE Net Dividend Index, consistent with prudent investment management.
The Fund will seek to achieve its investment objective by investing, under normal circumstances, in non-U.S. equity derivatives, backed by a portfolio of Fixed Income Instruments that are managed using an absolute return approach. In seeking total return exceeding that of the MSCI EAFE Net Dividend Index, or as part of the Fund's absolute return strategy relative to fixed income investing, the Fund may invest in derivative instruments, subject to applicable law and any other restrictions described herein.
The Fund typically will seek to gain long exposure to the MSCI EAFE Net Dividend Index in an amount, under normal circumstances, approximately equal to the Fund's net assets, by investing in non-U.S. equity derivatives. The value of the equity derivatives should closely track changes in the value of underlying securities or indices. The Fund will normally use equity derivatives, instead of stocks, to attempt to equal or exceed the daily performance of the MSCI EAFE Net Dividend Index. Though the Fund will not normally invest directly in stocks, when equity derivatives appear to be overvalued, the Fund may invest some or all of its assets in stocks. The Fund may also invest in exchange-traded funds. The Fund's equity exposure will not be hedged into U.S. dollars. The Fund will seek to remain invested in equity derivatives and/or stocks even when the MSCI EAFE Net Dividend Index is declining. The Fund may invest in non-U.S. equities or non-U.S. equity derivatives that do not comprise the MSCI EAFE Net Dividend Index.
According to the Registration Statement, derivatives may be purchased with a small fraction of the assets that would be needed to purchase the equity securities directly, so that the remainder of the assets may be invested in Fixed Income Instruments. PIMCO will actively manage the Fixed Income Instruments held by the Fund with a view toward enhancing the Fund's total return by using an absolute return approach, which applies to the portion of the portfolio not invested in MSCI EAFE Net Dividend Index derivatives or MSCI EAFE Net Dividend Index stocks, subject to an overall portfolio duration which will normally vary from (negative) 3 years to positive 8 years based on PIMCO's forecast for interest rates.
The Fund may invest in securities and instruments that are economically tied to foreign (non-U.S.) countries.
The Fund may engage in foreign currency transactions on a spot (cash) basis and forward basis and invest in foreign currency futures contracts and options contracts. The Fund may enter into these contracts to hedge against foreign exchange risk, to increase exposure to a foreign currency or to shift exposure to foreign currency fluctuations from one currency to another. Suitable hedging transactions may not be available in all circumstances and there can be no assurance that the Fund will engage in such transactions at any given time or from time to time.
The Fund may, without limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts. The Fund may purchase or sell securities on a when-issued, delayed delivery or forward commitment basis and may engage in short sales.
With respect to the Fund's absolute return investments, the Fund may invest up to 10% of its total assets in preferred stocks, convertible securities and other equity-related securities.
The Fund may invest up to 20% of its total assets in: (i) Variable and floating rate securities that are not Fixed Income Instruments and (ii) floaters and inverse floaters that are not Fixed Income Instruments.
The Fund may also invest up to 20% of its total assets in trade claims,
The Fund may, with up to 20% of its total assets, enter into repurchase agreements on instruments other than Fixed Income Instruments. Repurchase agreements maturing in more than seven days and which may not be terminated within seven days at approximately the amount at which the Fund has valued the agreements will be considered illiquid securities. The Fund may also, with up to 20% of its total assets, enter into reverse repurchase agreements on instruments other than Fixed Income Instruments, subject to the Fund's limitations on borrowings. The Fund will segregate or “earmark” assets determined to be liquid by PIMCO in accordance with procedures established by the Board to cover its obligations under reverse repurchase agreements.
The Fund may invest up to 20% of its total assets in “high yield securities” rated B or higher by Moody's, or equivalently rated by S&P or Fitch, or, if unrated, determined by PIMCO to be of comparable quality (except that within such limitation, the Fund may invest in mortgage-related securities rated below B).
The Fund may invest up to 20% of its assets in mortgage-related and other asset-backed securities, although this 20% limitation does not apply to securities issued or guaranteed by Federal agencies and/or U.S. government sponsored instrumentalities.
According to the Registration Statement, each Fund may invest without limit, for temporary or defensive purposes, in U.S. debt securities, including taxable securities and short-term money market securities, if PIMCO deems it appropriate to do so. If PIMCO believes that economic or market conditions are unfavorable to investors, PIMCO may temporarily invest up to 100% of a Fund's assets in certain defensive strategies, including holding a substantial portion of a Fund's assets in cash, cash equivalents or other highly rated short-term securities, including securities issued or guaranteed by the U.S. government, its agencies or instrumentalities.
Not more than 10% of the net assets of a Fund in the aggregate invested in exchange-traded equity securities shall consist of equity securities, including stocks into which a convertible security is converted, whose principal market is not a member of the ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement. Furthermore, not more than 10% of the net assets of a Fund in the aggregate invested in futures contracts or exchange-traded options contracts shall consist of futures contracts or exchange-traded options contracts whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
For the purpose of achieving income, each Fund may lend its portfolio securities to brokers, dealers, and other financial institutions, provided that a number of conditions are satisfied, including that the loan is fully collateralized. When a Fund lends portfolio securities, its investment performance will continue to reflect changes in the value of the securities loaned, and a Fund will also receive a fee or interest on the collateral. Cash collateral received by a Fund in securities lending transactions may be invested in short-term liquid Fixed Income Instruments or in money market or short-term mutual funds or similar investment vehicles, including affiliated money market or short-term mutual funds.
According to the Registration Statement, the Funds may invest in, to the extent permitted by Section 12(d)(1)(A) of the 1940 Act, other affiliated and unaffiliated funds, such as open-end or closed-end management investment companies, including other exchange-traded funds, provided that each of a Fund's investment in units or shares of investment companies and other open-end collective investment vehicles will not exceed 10% of that Fund's total assets. Each Fund may invest its securities lending collateral in one or more money market funds to the extent permitted by Rule 12d1–1 under the 1940 Act, including series of PIMCO Funds, an affiliated open-end management investment company managed by PIMCO.
Each Fund's investments, including investments in derivative instruments, will be subject to all of the restrictions under the 1940 Act, including restrictions with respect to investments in illiquid securities, that is, the limitation that a fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Adviser.
Each Fund will be diversified within the meaning of the 1940 Act.
Each Fund intends to qualify annually and elect to be treated as a regulated investment company under Subchapter M of the Internal Revenue Code.
No Fund will concentrate its investments in a particular industry, as that term is used in the 1940 Act, and as interpreted, modified, or otherwise permitted by regulatory authority having jurisdiction from time to time.
Each of the Funds' investments, including derivatives, will be consistent
The NAV of each Fund's Shares will be determined by dividing the total value of the Fund's portfolio investments and other assets, less any liabilities, by the total number of Shares outstanding.
Each Fund's Shares will be valued as of the close of regular trading on the New York Stock Exchange (“NYSE”) normally 4:00 p.m. Eastern time (“E.T.”) (the “NYSE Close”) on each day NYSE Arca is open (“Business Day”). Information that becomes known to each of the Funds or its agents after the NAV has been calculated on a particular day will not generally be used to retroactively adjust the price of a portfolio asset or the NAV determined earlier that day.
For purposes of calculating NAV, portfolio securities and other assets for which market quotes are readily available will be valued at market value. Market value will generally be determined on the basis of last reported sales prices, or if no sales are reported, based on quotes obtained from a quotation reporting system, established market makers, or pricing services.
Fixed Income Instruments, including those to be purchased under firm commitment agreements/delayed delivery basis, will generally be valued on the basis of quotes obtained from brokers and dealers or independent pricing services. Foreign fixed income securities will generally be valued on the basis of quotes obtained from brokers and dealers or pricing services using data reflecting the earlier closing of the principal markets for those assets. Short-term debt instruments having a remaining maturity of 60 days or less are generally valued at amortized cost, which approximates market value.
As discussed in more detail below, derivatives will generally be valued on the basis of quotes obtained from brokers and dealers or pricing services using data reflecting the earlier closing of the principal markets for those assets. Local closing prices will be used for all instrument valuation purposes. Foreign currency-denominated derivatives are generally valued using market inputs as of the respective local region's market close.
With respect to specific derivatives:
• Currency spot and forward rates from major market data vendors
• Exchange traded futures will generally be valued at the settlement price of the exchange.
• A total return swap on an index will be valued at the publicly available index price. The index price, in turn, is determined by the applicable index calculation agent, which generally values the securities underlying the index at the last reported sale price.
• Equity total return swaps will generally be valued using the actual underlying equity at local market closing, while bank loan total return swaps are generally valued using the evaluated underlying bank loan price minus the strike price of the loan.
• Exchange traded non-equity options, index options, and options on futures will generally be valued at the official settlement price determined by the relevant exchange, if available.
• OTC and exchange traded equity options will generally be valued on a basis of quotes obtained from a quotation reporting system, established market makers, or pricing services.
• OTC FX options will generally be valued by pricing vendors.
• All other swaps such as interest rate swaps, inflation swaps, swaptions, credit default swaps, CDX/CDS will generally be valued by pricing services.
• Forwards will generally be valued in the same manner as the underlying securities. Forward settling positions for which market quotes are readily available will generally be valued at market value. Typically, forwards on Fixed Income Instruments will be marked to market daily.
Exchange-traded equity securities will be valued at the official closing price or the last trading price on the exchange or market on which the security is primarily traded at the time of valuation. If no sales or closing prices are reported during the day, equity securities are generally valued at the mean of the last available bid and ask quotation on the exchange or market on which the security is primarily traded, or using other market information obtained from quotation reporting systems, established market makers, or pricing services. Investment company securities that are not exchange-traded will be valued at NAV. Money market instruments, trade claims, privately placed and unregistered securities, structured products and other types of debt securities will generally be valued on the basis of independent pricing services or quotes obtained from brokers and dealers.
If a foreign security's value has materially changed after the close of the security's primary exchange or principal market but before the NYSE Close, the security will be valued at fair value based on procedures established and approved by the Board. Foreign securities that do not trade when the NYSE is open are also valued at fair value.
Securities and other assets for which market quotes are not readily available are valued at fair value as determined in good faith by the Board or persons acting at their direction. The Board has adopted methods for valuing securities and other assets in circumstances where market quotes are not readily available, and has delegated to PIMCO the responsibility for applying the valuation methods. In the event that market quotes are not readily available, and the security or asset cannot be valued pursuant to one of the valuation methods, the value of the security or asset will be determined in good faith by the Valuation Committee of the Board, generally based upon recommendations provided by PIMCO.
Market quotes are considered not readily available in circumstances where there is an absence of current or reliable market-based data (
When a Fund uses fair value pricing to determine its NAV, securities will not be priced on the basis of quotes from the
For a Fund's 4:00 p.m. E.T. futures holdings, estimated prices from Reuters will be used if any cumulative futures margin impact is greater than $0.005 to the NAV due to futures movement after the fixed income futures market closes (3:00 p.m. E.T.) and up to the NYSE Close (generally 4:00 p.m. E.T.). Swaps traded on exchanges such as the Chicago Mercantile Exchange (“CME”) or the Intercontinental Exchange (“ICE–US”) will use the applicable exchange closing price where available.
Investments initially valued in currencies other than the U.S. dollar are converted to the U.S. dollar using exchange rates obtained from pricing services. As a result, the NAV of a Fund's Shares may be affected by changes in the value of currencies in relation to the U.S. dollar. The value of securities traded in markets outside the United States or denominated in currencies other than the U.S. dollar may be affected significantly on a day that the NYSE is closed. As a result, to the extent that a Fund holds foreign (non-U.S.) securities, the NAV of a Fund's shares may change when an investor cannot purchase, redeem or exchange Shares.
On each Business Day, before commencement of trading in Fund Shares on NYSE Arca, each Fund will disclose on its Web site the identities and quantities of the portfolio instruments and other assets held by the Fund that will form the basis for the Fund's calculation of NAV at the end of the Business Day.
In order to provide additional information regarding the intra-day value of shares of the Fund, the NYSE Arca or a market data vendor will disseminate every 15 seconds through the facilities of the Consolidated Tape Association or other widely disseminated means an updated Portfolio Indicative Value (“PIV”) for each Fund as calculated by an information provider or market data vendor.
A third party market data provider will calculate the PIV for each Fund. For the purposes of determining the PIV, the third party market data provider's valuation of derivatives is expected to be similar to their valuation of all securities. The third party market data provider may use market quotes if available or may fair value securities against proxies (such as swap or yield curves).
With respect to specific derivatives:
• Foreign currency derivatives may be valued intraday using market quotes, or another proxy as determined to be appropriate by the third party market data provider.
• Futures may be valued intraday using the relevant futures exchange data, or another proxy as determined to be appropriate by the third party market data provider.
• Interest rate swaps may be mapped to a swap curve and valued intraday based on the swap curve, or another proxy as determined to be appropriate by the third party market data provider.
• CDX/CDS may be valued using intraday data from market vendors, or based on underlying asset price, or another proxy as determined to be appropriate by the third party market data provider.
• Total return swaps may be valued intraday using the underlying asset price, or another proxy as determined to be appropriate by the third party market data provider.
• Exchange listed options may be valued intraday using the relevant exchange data, or another proxy as determined to be appropriate by the third party market data provider.
• OTC options may be valued intraday through option valuation models (
• A third party market data provider's valuation of forwards will be similar to their valuation of the underlying securities, or another proxy as determined to be appropriate by the third party market data provider. The third party market data provider will generally use market quotes if available. Where market quotes are not available, they may fair value securities against proxies (such as swap or yield curves). Each Fund's disclosure of forward positions will include information that market participants can use to value these positions intraday.
Each Fund's disclosure of derivative positions in the applicable Disclosed Portfolio will include information that market participants can use to value these positions intraday. On a daily basis, the Funds will disclose on the Funds' Web site the following information regarding each portfolio holding, as applicable to the type of holding: Ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding, such as the type of swap); the identity of the security, commodity, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in a Fund's portfolio.
For each Fund, the Adviser believes there will be minimal, if any, impact to the arbitrage mechanism as a result of the use of derivatives. Market makers and participants should be able to value derivatives as long as the positions are disclosed with relevant information. The Adviser believes that the price at which Shares trade will continue to be disciplined by arbitrage opportunities created by the ability to purchase or redeem creation Shares at their NAV, which should ensure that Shares will not trade at a material discount or premium in relation to their NAV.
The Adviser does not believe there will be any significant impacts to the settlement or operational aspects of a Fund's arbitrage mechanism due to the use of derivatives. Because derivatives generally are not eligible for in-kind transfer, they will be substituted with a “cash in lieu” amount (as described below) when each Fund processes purchases or redemptions of creation units in-kind.
According to the Registration Statement, Shares of each of the Funds that trade in the secondary market will be “created” at NAV
On any given Business Day, purchases and redemptions of Creation Units will be made in whole or in part on a cash basis if an Authorized Participant deposits or receives (as applicable) cash in lieu of some or all of the Fund Deposit or Redemption Instruments, respectively, solely because such instruments are, in the case of the Fund Deposit, not available in sufficient quantity.
Except when aggregated in Creation Units, Shares will not be redeemable by the Funds. The prices at which creations and redemptions occur are based on the next calculation of NAV after an order is received. Requirements as to the timing and form of orders are described in the Authorized Participant agreement. PIMCO will make available on each Business Day via the National Securities Clearing Corporation (“NSCC”), prior to the opening of business (subject to amendments) on the Exchange (currently 9:30 a.m., E.T.), the identity and the required amount of each Deposit Security and the amount of the Cash Component (or Cash Deposit) to be included in the current “Fund Deposit”
Additional information regarding the Trust, the Funds and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings, disclosure policies, distributions and taxes is included in the Registration Statement. All terms relating to the Funds that are referred to but not defined in this proposed rule change are defined in the Registration Statement.
The Trust's Web site (
On a daily basis, the Funds will disclose on the Funds' Web site the following information regarding each portfolio holding, as applicable to the type of holding: Ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding, such as the type of swap); the identity of the security, commodity, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in a Fund's portfolio. The Web site information will be publicly available at no charge.
In addition, a basket composition file, which includes the security names and share quantities, if applicable, required to be delivered in exchange for each of the Funds' Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the Exchange via the NSCC. The basket represents one Creation Unit of each of the Funds. The NAV of each of the Funds will normally be determined as of the close of the regular trading session on the Exchange (ordinarily 4:00 p.m. E.T.) on each Business Day. Authorized participants may refer to the basket composition file for information regarding Fixed Income Instruments, and any other instrument that may comprise a Fund's basket on a given day.
Investors can also obtain the Trust's SAI, the Funds' Shareholder Reports, and the Funds' Forms N–CSR and Forms N–SAR, filed twice a year. The Trust's SAI and Shareholder Reports are available free upon request from the Trust, and those documents and the Form N–CSR, Form N–PX and Form N–SAR may be viewed on-screen or downloaded from the Commission's Web site at
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of any of the Funds.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m. E.T. in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Shares of each Fund will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. Consistent with NYSE Arca Equities Rule 8.600(d)(2)(B)(ii), the Funds' Reporting Authority will implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of each Fund's portfolio. The Exchange represents that, for initial and/or continued listing, each Fund will be in compliance with Rule 10A–3
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, exchange-traded options, equities, futures and options on futures with other markets or other entities that are members of the ISG and FINRA may obtain trading information regarding trading in the Shares, exchange-trade options, equities, futures and options on futures from such markets or entities. In addition, the Exchange may obtain information regarding trading in the Shares, exchange-traded options, equities, futures and options on futures from markets or other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
Not more than 10% of the net assets of a Fund in the aggregate invested in exchange-traded equity securities shall consist of equity securities, including stocks into which a convertible security is converted, whose principal market is not a member of the ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement. Furthermore, not more than 10% of the net assets of a Fund in the aggregate invested in futures contracts or exchange-traded options contracts shall consist of futures contracts or exchange-traded options contracts whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (4) how information regarding the PIV and the Disclosed Portfolio is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that each of the Funds is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m. E.T. each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, exchange-traded options, equities, futures and options on futures with other markets or other entities that are members of the ISG and FINRA may obtain trading information regarding trading in the Shares, exchange-trade options, equities, futures and options on futures from such markets or entities. In addition, the Exchange may obtain information regarding trading in the Shares, exchange-traded options, equities, futures and options on futures from markets or other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain fixed income securities held by the Funds reported to FINRA's TRACE. FINRA also can access data obtained from the Municipal Securities Rulemaking Board relating to municipal bond trading activity for surveillance purposes in connection with trading in the Shares. Not more than 10% of the net assets of a Fund in the aggregate invested in exchange-traded equity securities shall consist of equity securities, including stocks into which a convertible security is converted, whose principal market is not a member of the ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement. Furthermore, not more than 10% of the net assets of a Fund in the aggregate invested in futures contracts or exchange-traded options contracts shall consist of futures contracts or exchange-traded options contracts whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
With respect to each Fund's absolute return investments, each Fund will limit its investment in securities and instruments economically tied to emerging market countries to 25% of its total assets. With respect to each Fund's absolute return investments, each Fund will limit its investment in “high yield” securities rated B or higher by Moody's, or equivalently rated by S&P or Fitch, or if unrated, determined by PIMCO to be of comparable quality to 20% of its total assets (except that within such limitation, each Fund may invest in mortgage-related securities rated below B). With respect to each Fund's absolute return investments, each Fund will normally limit its foreign currency exposure (from non-U.S. dollar-denominated securities or currencies) to 20% of its total assets. Each Fund may invest up to 20% of its total assets in “high yield securities” rated B or higher by Moody's, or equivalently rated by S&P or Fitch, or, if unrated, determined by PIMCO to be of comparable quality (except that within such limitation, the Fund may invest in mortgage-related securities rated below B). Each Fund may invest up to 20% of its assets in mortgage-related and other asset-backed securities, although this 20% limitation does not apply to securities issued or guaranteed by Federal agencies and/or U.S. government sponsored instrumentalities. Each Fund may invest up to 20% of its total assets in bank loans. Each Fund's investment in units or shares of investment companies and other open-end collective investment vehicles will not exceed 10% of that Fund's total assets. Each Fund's investment in illiquid securities will not exceed 15% of its net assets. None of the Funds will concentrate its investments in a particular industry.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share for each Fund will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of additional types of actively-managed exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. The Adviser is not a broker-dealer but is affiliated with a broker-dealer and has implemented a “fire wall” with respect to such broker-dealer regarding access to information concerning the composition and/or changes to each Fund's portfolio. In addition, the Funds' Reporting Authority will implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of each Fund's portfolio.
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 purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of additional types of actively-managed exchange-traded products that, under normal circumstances, will invest principally in fixed income securities and that will enhance competition with respect to such products among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the 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 Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–NYSEArca–2014–89. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval for to renew an information collection. The information collected is used by the FAA to register aircraft or hold an aircraft in trust. The information required to register and prove ownership of an aircraft is required by any person wishing to register an aircraft.
Written comments should be submitted by November 3, 2014.
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, ASP–110, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Kathy DePaepe at (405) 954–9362, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. Part A of Subtitle VII of the Revised Title 49 U.S.C. authorizes the issuance of regulations governing the use of navigable airspace. Information is collected to determine compliance with Federal regulations. Respondents are individual airmen, state or local governments, and businesses.
Written comments should be submitted by November 3, 2014.
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, ASP–110, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Kathy DePaepe at (405) 954–9362, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our
Written comments should be submitted by November 3, 2014.
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, ASP–110, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Kathy DePaepe at (405) 954–9362, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The collection is used to nominate private citizens for recognition of their significant voluntary contribution to aviation education and flight safety.
Written comments should be submitted by November 3, 2014.
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, ASP–110, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Kathy DePaepe at (405) 954–9362, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information will determine if applicant proposals for conducting commercial space launches can be accomplished according to regulations issued by the Office of the Associate Administrator for Commercial Space Transportation.
Written comments should be submitted by November 3, 2014.
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, ASP–110, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Kathy DePaepe at (405) 954–9362, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. Information required from the public by 14 CFR Part 133 is used by the FAA to process the operating certificate as a record of aircraft authorized for use, and to monitor Rotorcraft External-Load Operations.
Written comments should be submitted by November 3, 2014.
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, ASP–110, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Kathy DePaepe at (405) 954–9362, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval for to renew an information collection. The information collected allows the FAA to evaluate its certification standards, maintenance programs, and regulatory requirements. It is also the basis for issuance of Airworthiness Directives designed to prevent unsafe conditions and accidents.
Written comments should be submitted by November 3, 2014.
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, ASP–110, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Kathy DePaepe at (405) 954–9362, or by email at:
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under
Please submit comments by November 3, 2014.
You may submit comments identified by DOT Docket ID Number 2014–0034 by any of the following methods:
Jim Sinnette, Office of Innovative Program Delivery, 202–366–1561,
The preparation of the project management plan, as required by 23 U.S.C. 106(h)(2), ensures that clearly defined roles, responsibilities, procedures and processes are in effect to provide timely information to the project decisionmakers to effectively manage the scope, costs, schedules, quality of, and the Federal requirements applicable to, the project. The project management plan serves as a guide for implementing the major project and documents assumptions and decisions regarding communication, management processes, execution and overall project control.
The preparation of the annual financial plan, as required by 23 U.S.C. 106(h)(3), ensures that the necessary financial resources are identified, available, and monitored throughout the life of the project. An annual financial plan is a comprehensive document that reflects the project's scope, schedule, cost estimate, and funding structure to provide reasonable assurance that there will be sufficient funding available to implement and complete the entire project, or a fundable phase of the project, as planned.
The project management plan is first submitted prior to the start of construction and then updated as significant changes to the project occur during construction.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice of limitations on Claims for Judicial Review of Actions by FHWA and Other Federal Agencies.
This notice announces actions taken by the FHWA and other Federal Agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project, US 220 NHS Corridor between Interstate 68 (I–68) and Corridor H in Allegany County, Maryland and Grant, Hardy, Hampshire and Mineral Counties, West Virginia. The Federal actions, taken as a result of a tiered environmental review process under the National Environmental Policy Act, 42 U.S.C. 4321–4351 (NEPA), and implementing regulations on tiering, 40 CFR 1502.20, 40 CFR 1508.28, and 23 CFR Part 771, determined certain issues relating to the proposed projects. Those Tier 1 decisions will be used by Federal agencies in subsequent proceedings, including decisions whether to grant licenses, permits, and approvals for highway and transit projects. Tier 1 decisions also may be relied upon by State and local agencies in proceedings on the proposed projects.
By this notice, the FHWA is advising the public that it has made decisions that are subject to 23 U.S.C. 139(l)(1) and are final within the meaning of that law. A claim seeking judicial review of the Tier 1 Federal agency decisions on the proposed highway will be barred unless the claim is filed on or before February 2, 2015. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
Jason Workman, Director, Office of Program Development, Federal Highway Administration, 700 Washington Street E., Charleston, WV 25301; telephone: (304) 347–5928; email:
Notice is hereby given that the FHWA has approved a Tier 1 Final Environmental Impact Statement (FEIS) and issued a Record of Decision (ROD) in connection with a proposed highway project in Maryland and West Virginia: US 220 NHS Corridor between I–68 and Corridor H in Allegany County, Maryland and Grant, Hardy, Hampshire and Mineral Counties, West Virginia. The project will provide a four-lane, partially controlled highway that begins south of I–68 near LaVale, Maryland and extends southwest to connect with Corridor H near Scherr, West Virginia. It would connect the communities of LaVale, Cresaptown and McCoole in Maryland and Keyser and New Creek in West Virginia. The proposed highway will be on both new and existing alignment.
Decisions in the FHWA Tier 1 ROD that have final approval include, but are not limited to, the following:
a. Project Purpose and Need—Discussed in FEIS Chapter 1.0, Sections 1.3 and 1.4.
b. Range of Alternatives for Analysis—Discussed in FEIS Chapter 2.0, Section 2.2.
c. Selection of the Preferred Corridor to be Carried Forward into Tier 2—Corridor B with the possibility of using the northern spur of Corridor D that connects I–68 in Maryland has been identified as the Preferred Corridor that will be carried forward into Tier 2. The northern spur of Corridor D begins on US 220 just south of Maryland State Route 53 (MD 53) and terminates at I–68. Both these termini will be carried forward into Tier 2 to determine which would best meet the project's purpose and need, be the least environmentally damaging and operate most efficiently. Advancing the northern spur of Corridor D in Maryland as part of the Preferred Corridor's possible connection to I–68 will allow flexibility in developing a new I–68 Interchange while providing additional opportunities for avoiding socioeconomic, natural and cultural resources and minimizing the potential impacts of future alignments (see FEIS Chapter 2.0, Section 2.11; FEIS Chapter 6.0, Section 6.1; and ROD Sections 1.0, 1.3, and 2.7).
d. Alternatives Eliminated from Further Study—The alternatives that will not be considered any further include, but are not limited to, those identified in the Tier 1 FEIS as Corridors A, C, D, E and the Crossover Corridors which combined portions of Corridors B, C and D (see FEIS Chapter 2.0, Sections 2.9 and 2.10; and ROD Section 2.0).
e. The project may result in a program of individual transportation improvement projects throughout the US 220 Preferred Corridor, with several projects having independent utility and serving different logical termini. However, the design criteria to be carried forward into Tier 2 will be based on a four-lane, partially controlled highway. The WVDOH and Maryland State Highway Administration (MDSHA) will independently advance Tier 2 NEPA within their respective states. In West Virginia, a typical section will require a minimum width of 136 feet and, in Maryland, the typical section will require a minimum width of 140.5 feet. The highway width may increase to approximately 300 feet to accommodate construction of the four-lane facility in mountainous terrain (see ROD Section 1.3).
Interested parties may consult the ROD and FEIS for further information on each of the decisions described above.
The Tier 1 actions by the Federal agencies, and the laws under which such actions were taken, are described in the FEIS approved April 2, 2014, the ROD approved July 21, 2014, and in other documents in the FHWA project records. The scope and purpose of the Tier 1 FEIS are described in Chapter 1.0 of the FEIS. The FEIS, ROD, and other documents in the FHWA project file are available by contacting the FHWA or the WVDOH at the addresses provided above. The FEIS and ROD also are available online at
This notice applies to all Federal agency Tier 1 decisions that are final within the meaning of 23 U.S.C. 139(l)(1) as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1. National Environmental Policy Act (NEPA) [42 U.S.C. 4321–4351].
2. Federal-Aid Highway Act [23 U.S.C. 109 and 23 U.S.C. 128].
3. Endangered Species Act [16 U.S.C. 1531–1544].
4. National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) et seq].
5. Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303 and 23 U.S.C. 138].
6. Clean Air Act [42 U.S.C. 7401–7671(q)].
23 U.S.C. 139(l)(1), as amended by Moving Ahead for Progress in the 21st Century Act (MAP–21), Public Law 112–141, § 1308, 126 Stat. 405 (2012).
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice.
In accordance with the Paperwork Reduction Act of 1995 and its implementing regulations, the Federal Railroad Administration (FRA) hereby announces that it is seeking renewal of the following currently approved information collection activities. Before submitting the information collection requests (ICRs) below for clearance by the Office of Management and Budget (OMB), FRA is soliciting public comment on specific aspects of the activities identified below.
Comments must be received no later than November 3, 2014.
Submit written comments on any or all of the following proposed activities by mail to either: Mr. Robert Brogan, Office of Safety, Planning and Evaluation Division, RRS–21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 17, Washington, DC 20590, or Ms. Kimberly Toone, Office of Information Technology, RAD–20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB control number 2130–_____.” Alternatively, comments may be transmitted via facsimile to (202) 493–6216 or (202) 493–6497, or via email to Mr. Brogan at
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS–21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 17, Washington, DC 20590 (telephone: (202) 493–6292) or Ms. Kimberly Toone, Office of Information Technology, RAD–20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590 (telephone: (202) 493–6132). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Public Law 104–13, sec. 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501–3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60-days notice to the public for comment on information collection activities before seeking approval for reinstatement or renewal by OMB. 44 U.S.C. 3506(c)(2)(A); 5 CFR 1320.8(d)(1), 1320.10(e)(1), 1320.12(a). Specifically, FRA invites interested respondents to comment on the following summary of proposed information collection activities regarding (i) whether the information collection activities are necessary for FRA to properly execute its functions, including whether the activities will have practical utility; (ii) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (iii) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (iv) ways for FRA to minimize the burden of information collection activities on the public by automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submission of responses).
Below is a brief summary of currently approved information collection activities that FRA will submit for clearance by OMB as required under the PRA:
Pursuant to 44 U.S.C. 3507(a) and 5 CFR 1320.5(b), 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501–3520.
Department of the Treasury.
Notice of meeting.
The President's Advisory Council on Financial Capability for
The meeting will be held on October 2, 2014 at 9:00 a.m. Eastern Time.
Email:
Send paper statements to the Department of the Treasury, Office of Consumer Policy, Main Treasury Building, 1500 Pennsylvania Avenue NW., Washington, DC 20220; Attention: Luisa Quittman.
In general, the Department will make all statements available in their original format, including any business or personal information provided such as names, addresses, email addresses, or telephone numbers, for public inspection and photocopying in the Department's library located at Treasury Department Annex, 1500 Pennsylvania Avenue NW., Washington, DC 20220. The library is open on official business days between the hours of 10:00 a.m. and 5:00 p.m. You can make an appointment to inspect statements by calling (202) 622–0990. All statements received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. You should only submit information that you wish to make publicly available.
Louisa Quittman, Director, Financial Education, Office of Consumer Policy, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220, at (202) 622–5770 or
On June 25, 2013, the President signed Executive Order 13646, creating the Council to help build the financial capability of young people from an early age, in schools, communities, and the workplace. Understanding financial matters and making informed financial decisions help contribute to financial stability. The Council is composed of two
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (“OFAC”) is publishing the name of one individual whose property and interests in property has been blocked pursuant to the Foreign Narcotics Kingpin Designation Act (“Kingpin Act”) (21 U.S.C. 1901–1908, 8 U.S.C. 1182).
The designation by the Director of OFAC of the one individual identified in this notice pursuant to section 805(b) of the Kingpin Act is effective on August 27, 2014.
Assistant Director, Sanctions Compliance & Evaluation, Office of Foreign Assets Control, U.S. Department of the Treasury, Washington, DC 20220, Tel: (202) 622–2490.
This document and additional information concerning OFAC are available on OFAC's Web site at
The Kingpin Act became law on December 3, 1999. The Kingpin Act establishes a program targeting the activities of significant foreign narcotics traffickers and their organizations on a worldwide basis. It provides a statutory framework for the imposition of sanctions against significant foreign narcotics traffickers and their organizations on a worldwide basis, with the objective of denying their businesses and agents access to the U.S. financial system and the benefits of trade and transactions involving U.S. companies and individuals.
The Kingpin Act blocks all property and interests in property, subject to U.S. jurisdiction, owned or controlled by significant foreign narcotics traffickers as identified by the President. In addition, the Secretary of the Treasury, in consultation with the Attorney General, the Director of the Central Intelligence Agency, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security may designate and block the property and interests in property, subject to U.S. jurisdiction, of persons who are found to be: (1) Materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of a person designated pursuant to the Kingpin Act; (2) owned, controlled, or directed by, or acting for or on behalf of, a person designated pursuant to the Kingpin Act; or (3) playing a significant role in international narcotics trafficking.
On August 27, 2014, the Director of OFAC designated the following individual whose property and interests in property are blocked pursuant to section 805(b) of the Kingpin Act.
1. QUINTERO NAVIDAD, Sajid Emilio (a.k.a. QUINTERO NAVIDAD, Sagid; a.k.a. “EL CADETE”); DOB 22 Nov 1980; POB Zapopan, Jalisco, Mexico; nationality Mexico; citizen Mexico; C.U.R.P. QUNS801122HJCNVJ00 (Mexico) (individual) [SDNTK].
United States Mint, Department of the Treasury.
Notice.
The United States Mint is announcing a price of $24.95 for the 2014 United States Mint Discovery Set.
Marc Landry, Acting Associate Director for Sales and Marketing; United States Mint; 801 9th Street NW., Washington, DC 20220; or call 202–354–7500.
31 U.S.C. 5111, 5112 & 9701.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before October 3, 2014.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632–7492 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before October 3, 2014.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632–7492 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before October 3, 2014.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632–7492 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before October 3, 2014.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632–7492 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Environmental Protection Agency (EPA).
Final rule.
This final action promulgates a Federal Implementation Plan (FIP) addressing the requirements of the Regional Haze Rule (RHR) and interstate visibility transport for the disapproved portions of Arizona's Regional Haze (RH) State Implementation Plan (SIP) as described in a final rule published in the
EPA has established docket number EPA–R09–OAR–2013–0588 for this action. Generally, documents in the docket are available electronically at
Thomas Webb, U.S. EPA, Region 9, Planning Office, Air Division, Air-2, 75 Hawthorne Street, San Francisco, CA 94105. Thomas Webb may be reached at telephone number (415) 947–4139 and via electronic mail at
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The purpose of the Federal and state regional haze plans is to achieve a national goal, declared by Congress, of restoring and protecting visibility at 156 Federal class I areas across the United States, most of which are national parks and wilderness areas with scenic vistas enjoyed by the American public. The national goal as described in CAA Section 169A is “the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from man-made air pollution.” Arizona has 12 Class I areas, including some of the most magnificent natural areas in our country. Five other Class I areas are close by in neighboring states. Please refer to our previous rulemaking on the Arizona RH SIP for additional background information regarding the CAA, regional haze and EPA's RHR.
EPA has previously acted to approve a number of elements of the Arizona RH SIP, and to disapprove others. In today's final action, EPA is reducing harmful emissions from six facilities that contribute to visibility impairment in 17 protected national parks and wilderness areas in Arizona and neighboring states. Four of the facilities are subject to Best Available Retrofit Technology (BART) controls for emissions of nitrogen oxides (NO
EPA has worked with the owners and operators of the facilities regulated by today's rule to ensure we have the most up-to-date information for making decisions on BART, RP, and the Long-Term Strategy (LTS), the three major requirements of the RHR. In today's notice, we respond to comments on our proposed rule, present our analysis, and indicate where we have made adjustments based on the comments and additional information. The required emission limits, compliance methods, and deadlines for compliance in our final rule are compatible with each facility's operations, and provide sufficient flexibility for achieving compliance in a reasonable period of time. In several instances we have adjusted the emission limits, averaging times and/or compliance deadlines in response to additional information supplied by the facilities' owners or operators. Further, in the case of TEP Sundt Unit 4, we have included an alternative to BART controls suggested by the facility's owner, which provides better emission reductions to improve visibility.
Given the combination of State and Federal plans to implement the regional haze program in Arizona, EPA and the Arizona Department of Environmental Quality (ADEQ) must continue to rely on their historically strong partnership under the CAA to protect the environment and human health. We would welcome a State plan to replace some or all of the Federal plan. Moreover, we commit our resources to ensuring a successful regional haze program for Arizona. EPA estimates today's action will result in annual emission reductions of about 2,900 tons/year of NO
EPA made a finding on January 15, 2009, that 37 states, including Arizona, had failed to make all or part of the required SIP submissions to address regional haze.
As shown in Table 1, the first phase of EPA's action on the 2011 RH SIP addressed three BART sources. The final rule for the first phase (a partial approval and partial disapproval of the State's plan and a partial FIP) was published in the
Under CAA section 110(c), EPA is required to promulgate a FIP at any time within 2 years of the effective date of a finding that a state has failed to make a required SIP submission or has made an incomplete submission, or of the date that EPA disapproves a SIP. The FIP requirement is terminated only if a state submits a SIP, and EPA approves that SIP as meeting applicable CAA requirements before promulgating a FIP. Specifically, CAA section 110(c) provides that EPA “shall promulgate” a FIP “at any time within 2 years” after finding that “a State has failed to make a required submission” or that the SIP or SIP revision submitted by the State does not satisfy the minimum criteria established under CAA section 110(k)(1)(A), or after disapproving a SIP in whole or in part “unless the State corrects the deficiency” EPA approves the plan or plan revision before promulgating a FIP.
Section 302(y) defines the term “Federal implementation plan” in pertinent part, as a plan (or portion thereof) promulgated EPA “to fill all or a portion of a gap or otherwise correct all or a portion of an inadequacy” in a SIP, and which includes enforceable emission limitations or other control measures, means or techniques (including economic incentives, such as marketable permits or auctions or emissions allowances).
In the case of the Arizona RH SIP, two different triggering events have occurred under section 110(c). EPA has made a finding that the State failed to make a required submission,
In this section, we provide a summary of the proposed rule that was published in the
Our proposed rule included proposed BART determinations for four sources and proposed RP determinations for nine sources. These determinations resulted in proposed emission limits, compliance schedules, and other requirements for four BART sources and two of the RP sources. The proposed regulatory language was included under Part 52 at the end of that document. We also addressed the reasonable progress goals (RPGs), as well as the requirements of the LTS. Lastly, we proposed that the approved measures in the Arizona RH SIP, and measures in our previously promulgated FIP and proposed FIP, would adequately address the interstate transport of pollutants that affect visibility.
EPA proposed to find that provisions in the Arizona RH SIP and FIP fulfill the requirements of 40 CFR 51.308(d)(3)(ii), (v)(C) and (v)(F). These requirements are to include in the LTS measures needed to achieve emission reductions for out-of-state Class I areas, emission limitations and schedules for compliance to achieve the RPGs, and enforceability provisions for emission limitations and control measures.
We have proposed that a combination of SIP and FIP measures will satisfy the FIP obligation for the visibility requirement of CAA section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone, 1997 PM
We are promulgating a FIP to address the remaining disapproved portions of the Arizona RH SIP.
EPA conducted BART analyses and determinations for four sources: Sundt Generating Station Unit 4, Nelson Lime Plant Kilns 1 and 2, the Hayden Smelter, and the Miami Smelter. The final BART determinations are listed in Table 2, comparing the final limits to the proposed limits with short descriptions of changes in the footnotes. The exact compliance deadlines will be calculated based upon the date that this document is published in the
Regarding BART, we are finalizing our determination that Sundt Unit 4 is BART-eligible and subject to BART for SO
Regarding the better-than-BART alternative to switch to natural gas, we are finalizing the proposed emission limit for NO
We are making the following revisions to the NO
We are making the following revisions to the SO
We are making a number of revisions to the proposed SO
The final compliance deadline for the primary capture and control system to meet the SO
For SO
The final compliance deadlines for SO
EPA is finalizing its determination that provisions in this final rule in combination with provisions in the approved Arizona RH SIP and the Phase 1 Arizona RH FIP
EPA is finalizing its determination that the control measures in the Arizona RH SIP and FIP are adequate to prevent Arizona's emissions from interfering with other states' required measures to protect visibility. Thus, the combined measures from both plans satisfy the interstate transport visibility requirement of CAA section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone, 1997 PM
Our proposed regulatory text incorporated by reference certain provisions of the Arizona Administrative Code that establish an affirmative defense for excess emissions due to malfunctions. We did not receive any comments on this aspect of our proposal. Following the close of the public comment period, the United States Court of Appeals for the D.C. Circuit issued a decision concerning various aspects of the NESHAP for Portland cement plants issued by EPA in 2013, including the affirmative defense provision of that rule.
We note that, if a source is unable to comply with emission standards as a result of a malfunction, EPA may use case-by-case enforcement discretion, as appropriate. Further, as the D.C. Circuit recognized in an EPA or citizen enforcement action, the court has the discretion to consider any defense raised and determine whether penalties are appropriate.
EPA provided 60 days for the public to submit comments on the proposed rule, with the comment period concluding on March 31, 2014. We held two public hearings in Arizona, one on February 25, 2014, in Phoenix and another on February 26, 2014, in Tucson. The deadline for public comments was March 31, 2014. Certified records of the public hearings, written comments (excluding any confidential business information (CBI) materials), a summary of comments, and a list of commenters are available in the docket for this final action. We received a total of 24 written comments from industry or industrial associations (13), environmental groups (6), citizens (3), a state agency (1), and a federal agency (1). In addition, 14 individuals presented oral testimony at the two hearings. Summaries of significant comments and EPA's responses, organized by subject matter, are provided in the following sections. Because we received no comments regarding the LTS or interstate transport provisions of the FIP, there is no section in this notice addressing comments on these topics.
We are using the following acronyms to refer to representatives of the following entities who submitted comments to us:
ADEQ noted that the RHR is not intended to protect public health, but to address visibility problems. In the commenter's opinion, EPA should have given the State of Arizona the
EPA found that Arizona had failed to submit a comprehensive regional haze SIP in January 2009, which triggered an obligation for EPA to promulgate a FIP within two years, unless the State first submitted and EPA approved a regional haze SIP.
In Phase 1, EPA approved in part and disapproved in part Arizona's BART determinations for Apache Generating Station, Cholla Power Plant, and Coronado Generating Station, and promulgated a FIP addressing the disapproved portions of the SIP.
ADEQ further noted that the BART Guidelines provide that “any emissions unit for which a reconstruction `commenced' after August 7, 1977, is not BART-eligible” and argued that ADEQ's determination that Sundt Unit 4 is not BART-eligible was consistent with EPA's regulations. ADEQ asserted that EPA rejected the determination on the basis that EPA is not bound by its own guidelines and argued that that it was inappropriate for EPA to fault ADEQ for following guidance that EPA maintains is “persuasive” evidence of the requirements of the CAA. The commenter further argued that the BART Guidelines are clear that any unit that was reconstructed after 1977 is not BART-eligible, but that despite this, EPA has indicated that it does not interpret the BART Guidelines to apply to Sundt Unit 4 because the unit never went through prevention of significant deterioration (PSD) permitting. ADEQ argued that “EPA is not authorized, in the guise of `interpreting' its BART Guidelines, to engage in what amounts to post-hoc rulemaking, by amending its BART Guidelines to make units that are reconstructed after 1977, but which did not obtain PSD permits BART-eligible.”
ADEQ also commented that EPA has ignored the policy reasons that Congress had for excluding reconstructed units such as Sundt Unit 4 from PSD and other requirements. The commenter noted that the Power Plant and Industrial Fuel Use Act of 1978 (FUA), which amended the Energy Supply and Environmental Coordination Act of 1974 (ESECA), authorized the Department of Energy (DOE) to require electric utilities to convert generating stations using oil and natural gas to using coal to reduce the Unites States' dependency on foreign oil and increase its use of indigenous energy resources. ADEQ stated that because Congress wished to ensure the conversion took place, these units were exempted from “environmental requirements.” Therefore, BART should not be required for Sundt Unit 4.
TEP, the owner of the Sundt facility, incorporated by reference the comments it submitted on EPA's proposed partial disapproval of the Arizona RH SIP, in which the commenter opposed EPA's position that Sundt Unit 4 is BART-eligible, and reiterated its position that Sundt Unit 4 is not BART-eligible. Similarly, ACCCE asserted that, “ADEQ's determination that Sundt Unit 4 was reconstructed in the 1980s, and therefore is not BART-eligible was reasonable and should not have been disapproved by EPA.” In contrast, Earthjustice and NPS expressed support for EPA's finding that Sundt Unit 4 is BART-eligible because it did not go through PSD review when it was reconstructed in 1987. Earthjustice asserted that a source reconstructed after 1977 must install either BART controls under the regional haze program or Best Available Control Technology (BACT) controls under the PSD program.
Contrary to ADEQ's assertion, the RHR does not indicate that “reconstructed” units are to be treated as “new” units for all purposes. In particular, the RHR does not indicate that a source that is reconstructed after 1977 is considered BART-ineligible. Likewise, nothing in the preamble to the 1980 rule regarding Reasonably Attributable Visibility Impairment (RAVI), in which EPA promulgated the definition of “BART-eligible,” or the preamble to the 1999 RHR itself suggests that a post-1977 reconstruction would exempt a source from BART.
We also do not agree that Congress intended to provide a general exemption from all “environmental requirements” for units that were converted to coal under the FUA and ESECA. The relevant section of FUA, codified in CAA section 111(a)(8), provides that “[a] conversion to coal . . . by reason of an order under section 2(a) of the [ESECA] or any amendment thereto, or any subsequent enactment which supersedes such Act . . . shall not be deemed to be a modification
In our visibility improvement analysis, we have not considered perceptibility as a threshold criterion for considering improvements in visibility. Rather, we have considered visibility improvement in a holistic manner, taking into account all reasonably anticipated improvements in visibility expected to result at all Class I areas within 300 kilometers of each source. Improvements smaller than 0.5 dv may be warranted considering the number of Class I areas involved and the baseline contribution to impairment of the source in question. For example, a source with a 0.5 dv impact at a Class I area “contributes” to visibility impairment and must be analyzed for BART controls. Controlling such a source will not result in perceptible improvement in visibility, but Congress nevertheless determined that such contributing sources should nevertheless be subject to the BART requirement. In the aggregate, small improvements from controls on multiple BART sources and other sources will lead to visibility progress. As a result, although we described the anticipated visibility benefits from the installation of SNCR as “modest,” we still consider those benefits sufficient to justify SNCR as BART in light of the fact that SNCR will be highly cost-effective and has no substantial adverse energy or non-air quality environmental impacts. This has been EPA's consistent interpretation in many regional haze determinations.
The information provided by Earthjustice regarding the range of $/ton values considered cost-effective is derived from other regulatory programs such as Best Available Control Technology (BACT) determinations for construction of new sources in attainment areas, and Lowest Achievable Emission Rate determinations for construction of new sources in nonattainment areas. The statutory requirements, calculation methodology, and regulatory drivers that may inform a determination of emission reductions appropriate for these programs are not necessarily comparable to those of the Regional Haze program, which is a retrofit program where older sources are required to add pollution controls. We therefore do not consider it appropriate simply to conclude that costs found to be acceptable in other programs are necessarily appropriate in a BART determination.
We also disagree with Earthjustice's assertion that our cost analysis for SCR is based on faulty assumptions. We recognize that a higher capacity factor would result in an increase in the calculated amount of NO
Moreover, we disagree with the Earthjustice's assertion that our use of a 1.5 retrofit factor is unsupported in the record. Although the factors contributing to retrofit difficulty were summarized as “certain difficulties” in our TSD, this information is described in detail in the modeling and cost information provided by TEP on May 10, 2013.
With regard to our upward revision to the annual emission rate to develop a rolling 30 day emission limit, we acknowledge that observed variability without SNCR might not be the same as variability with SNCR. We note, however, that even emission units with well-operated controls will experience some degree of emissions variability. As noted in our proposed rule, we developed this upward revision based on site-specific emission data reported to the CAMD for Sundt Unit 4. Given the site-specific basis for our upward revision, we consider it a reasonable estimate of emission variability. We acknowledge that there might be other methods of accounting for this variability. However, we did not receive any comments that described or proposed any such alternate methodology. Accordingly, we are finalizing the emission limit as proposed.
NPS also stated that instead of relying only on the Integrated Planning Model (IPM) to estimate the costs of SCR, NPS used a method similar to what EPA Region 8 used for Colstrip in Montana. In NPS's opinion, using IPM to calculate capital costs and EPA's Control Cost Manual (CCM) to calculate operating costs provides more flexibility, provides greater transparency and is more in line with the BART Guidelines that recommend following EPA's CCM as much as possible.
[B]oth dry and wet FGD have very high incremental cost-effectiveness values, indicating that while they are more effective than the preceding control, this additional degree of effectiveness comes at a substantial cost.
The incremental cost-effectiveness of dry FGD, in relation to DSI, is approximately $17,000/ton. Assuming a more stringent dry or wet FGD emission rate of 0.04 lb/MMBtu, the incremental cost-effectiveness of FGD, relative to DSI, is approximately $13,000/ton, which is still not within a range that EPA or states have considered cost-effective, especially given that FGD (dry or wet) is expected to result in less visibility improvement than DSI.
MATS establishes an emission limit of 0.030 lb/MMBtu for filterable PM (as a surrogate for toxic non-mercury metals) as representing MACT for coal-fired electric generating units (EGUs). The BART Guidelines provide that “unless there are new technologies subsequent to the MACT standards which would lead to cost-effective increases in the level of control, you may rely on the MACT standards for purposes of BART.”
TEP noted that a fuel change to natural gas meets the RHR's requirements for alternative measures in lieu of BART in that it will achieve greater reasonable progress than the implementation of BART. TEP added that because emissions under BART or the alternative would emanate from the same stack (and therefore the distribution of emissions is not significantly different), the alternative achieves greater reasonable progress simply because it will result in greater emissions reductions. In addition, TEP noted that EPA's finding that “natural gas provides better visibility improvement than the proposed BART determination” is consistent with the results of modeling performed by a contractor (AECOM) for TEP. Several other commenters (ADEQ, ANGA, Earthjustice, NPS, TPMEC, Friends of Saguaro National Park and a private individual) expressed general support for the better-than-BART alternative.
TEP further stated that its current tariff agreement with El Paso Natural Gas Company for natural gas deliveries to Sundt Unit 4 does not meet the fuel-sulfur specification in the definition of “pipeline natural gas” in 40 CFR 72.2, but the tariff agreement does meet the sulfur specifications in the definition of “natural gas” in 40 CFR 72.2. TEP indicated that it has no direct control over the sulfur content of the natural gas delivered to Sundt, and limiting the fuel burned at Sundt Unit 4 to “pipeline
TEP asserted that it will need until December 31, 2017, to burn the existing fuel on site, ensure an adequate natural gas supply, and make the operational and mechanical changes necessary to achieve the proposed NO
We also do not agree with ADEQ that a three-year average approach “appropriately recognizes the highly variable visibility conditions that prevail in western states due to periodic wildfires that can result in short-term spikes in visibility impairment.” The visibility impacts of individual sources, including the Nelson Lime Plant, are determined by calculating the change in deciviews caused by the source compared to natural visibility conditions.
With regard to the modeling performed for the Nelson Lime Plant, ADEQ's comments refer to three different modeling analyses: (1) The initial modeling performed by LNA; (2) the refined modeling analysis performed by LNA using the revised IMPROVE equation; and (3) an additional analysis referred to by LNA in its comments on the Phase 2 proposal. ADEQ included the results of the first two analyses in the Arizona RH SIP. Both sets of results showed that for a single year, 2003, the Nelson plant's 8th high visibility impact exceeded 0.5 dv.
LNA has provided a summary of CEMS emission data, but considers it CBI since it also includes lime production data. We have included a summary of the lb/ton values from the testing period in our docket for the final rule because the BART limit is established in terms of lb/ton.
By contrast, NPS said that it supports EPA's conclusion, noting that it is most important to reduce process emissions before adding expensive emissions controls. NPS indicated support for EPA's decision because it generally favors moving toward cleaner fuels. After changing the fuel at the plant, however, NPS noted that it may be appropriate to revisit requiring emissions controls at that time.
Furthermore, as explained in more detail in a response to a comment from LNA below, the total cost figures in our proposed rule inadvertently omitted annual indirect costs. Correcting this error results in approximate average and incremental cost-effectiveness values of $4,800/ton and $10,200/ton for Kiln 1 and $4,500/ton and $9,500/ton for Kiln 2.
LNA provided EPA with a detailed version of DSI cost calculations that was designated as CBI along with a public version with most of the calculations redacted. Because we are generally prohibited from disclosing CBI, we relied on the publicly available information to develop a separate set of calculations for the proposed rule. While there are several elements of our cost estimates that differ from LNA's CBI-protected cost calculations, these differences are immaterial in light of our finding that DSI is not a cost-effective control option relative to the fuel
Based on our evaluation of the additional information provided by LNA, we are making the following revisions to the proposed emission limits. First, we are revising the lb/ton limits from a rolling 30-day basis to a rolling 12-month basis. As described in LNA's comments, periods of startup can exhibit substantial emissions, but with little to no lime production. While these startup emissions are not higher than those observed during normal operation on a simple mass basis (e.g., lb/hour, or ton/day), the fact that there is no production associated with these emissions complicates their inclusion when determining compliance with a lb/ton limit. As a result, the particular day(s) during which a startup event occurs will appear as a short-term spike in the kiln's emission rate (lb/ton). When combined with the preceding 29 days of emission data, this emission spike has the effect of driving the rolling 30-day emission rate (lb/ton) upwards. It may then be necessary for the unit to operate at a much lower rate of emissions over the next 29 days in order to ensure compliance with the 30-day limit, which may not be technically feasible. By establishing the limit on a rolling 12-month basis, such short-term spikes are averaged with data values from over an entire year, making its impact on the rolling emission rate less pronounced.
Second, in order to ensure that performance of the SNCR system installed at the Nelson Lime Plant is optimized, we are including in the final rule a series of control technology demonstration requirements. In particular, LNA is required to prepare and submit to EPA: (1) A design report describing the design of the ammonia injection system to be installed as part of the SNCR system; (2) data collected during a baseline period; (3) an optimization protocol; (4) data collected during an optimization period; (5) an optimization report establishing optimized operating parameters; and (6) a demonstration report including data collected during a demonstration period. While this type of control technology demonstration is not typically required as part of a regional haze plan, we consider it to be appropriate here, given the minimal data available about the performance of SNCR at lime kilns. Based upon the data collected during this process, EPA may revise the rolling 12-month average for the NO
Third, we are establishing short-term 24-hour average emission limits (ton/day) consistent with the emission rate used in the visibility modeling for each respective control option. As noted above, revising the averaging period to an annual basis minimizes the effect of short-term spikes in emissions over a greater data set. In effect, this allows the Nelson Plant greater short-term emissions variability while still demonstrating compliance with the BART limit. To ensure that this variability does not interfere with the modeled visibility benefit, which is based upon reductions from the highest 24-hour average emission rate, we are establishing short-term ton/day emission limits. These limits are combined limits that apply across both Kiln 1 and 2, on a rolling 30-kiln operating day basis. We are finalizing a combined Kilns 1 and 2 NO
In particular, while the secondary gas stream has a lower SO
Second, ASARCO stated that supplemental heating of the acid plant influent gas is required, but there is no supplemental heat available to reduce heat load requirements as suggested by EPA. ASARCO noted that GCT evaluated the potential for using existing sources for heat and concluded that it “does not expect any available heat source to be able to provide more than a small percentage of the heat required.” ASARCO added that EPA does not appear to have accounted for the additional heat required after the interpass absorption process, nor the additional electrical energy associated with handling this larger volume of secondary ventilation gases.
Third, ASARCO stated that EPA failed to account for other costs including dehumidification, which is expensive due to equipment installation and maintenance costs as well as the energy required to run the refrigeration system. ASARCO also stated that the incoming gas stream will require added compensatory preheating of the gas stream, which is an additional energy requirement that EPA does not appear to have addressed. Finally, ASARCO stated that EPA cannot reduce the cost to control secondary ventilation gas by shifting additional gas to the primary acid plant because the existing plant does not have the capacity to take any secondary gases without converter retrofit.
Based on the foregoing, ASARCO and ADEQ asserted that EPA had underestimated the cost of a new acid plant by at least a factor of two.
For example, consider a situation where 1,000 pounds of SO
The control efficiency is calculated using the following equation:
If the inlet CEMS provides a true measurement, the control efficiency would be:
If the inlet CEMS reads 100 pounds low, the control efficiency would be:
If the inlet CEMS reads 100 pounds high, the control efficiency would be:
Therefore, even if the inlet measurement varied by 100 pounds (10 percent), it would not affect the control efficiency. Thus, the difference in scale between the acid plant inlet CEMS and tailstack CEMS is not relevant. Finally, we note that, while the FIP provides for an alternative compliance demonstration using acid production rates, we are not requiring the use of this method. Therefore, ASARCO may use the CEMS rather than acid production rates to demonstrate compliance.
The report on the Cansolv system provided by Earthjustice is a presentation given by Cansolv representatives at a trade show for fertilizer manufacturers. The figure of 0.15 lbs SO
Anode furnaces #1 and #2 shall only be charged with blister copper or higher purity copper. This charging limitation does not extend to the use or addition of poling or fluxing agents necessary to achieve final casting chemistry.
(1) EPA's regulations provide that a facility whose potential to emit (PTE) a particular pollutant is below a certain “significance” threshold—40 tpy for NO
(2) the units' NO
ADEQ said that EPA argued that the PTE for the smelters should be calculated assuming continuous operation at maximum capacity. In ADEQ's opinion, this was inconsistent with EPA's acknowledgement of the smelters' batch process which precludes continuous operation. ADEQ further reasoned that even if the NO
Once a source is determined to be subject to BART, the RHR allows for the exemption of a specific pollutant from a BART analysis only if the PTE for that pollutant is below a specified
We also do not agree that our proposed limit of 40 tpy effectively imposes controls. As explained in our proposal, the baseline emission rate of 50 tpy used for purposes of our BART analysis “assumes that all of the converters are all operating simultaneously, which is not how they typically operate. Therefore, we expect actual emissions to be well below 40 tpy, which is consistent with ASARCO's own estimate.”
Earthjustice added that even if EPA maintains the proposed 12-month rolling cap of 40 tpy as BART in the final rule, it should require testing to demonstrate compliance with the BART limit. Earthjustice believes that such testing should not only ensure that the
Finally, Earthjustice stated that in order to more accurately determine the Hayden Smelter's NO
Further, we do not consider an evaluation of NO
AMA expressed similar opinions and asserted that the Arizona RH SIP was not based on 40 CFR part 63, subpart QQQ, but rather on the determination that there was no significant visibility impact from PM emissions. AMA asserted that for this reason, existing emission limits are all that are appropriate for the Hayden Smelter.
In making this determination, EPA considered ASARCO's own BART demonstration, which explicitly relies on the emission limits and compliance requirements in Subpart QQQ. In particular, for both the primary and secondary off-gas streams, ASARCO stated that, “[c]onsistent with the
Given that ASARCO relied on the Subpart QQQ requirements as the basis for its own streamlined BART analysis for PM
Second, contrary to ASARCO's suggestion, the Hayden Smelter is included in the Arizona RH SIP. In particular, while the State erroneously found that the Hayden Smelter was not “subject-to-BART” for PM
Finally, we do not agree that the promulgation of enforceable emission limits where no new controls are required is “novel.” As explained above, inclusion of such limits is a requirement of the RHR, and EPA has previously promulgated such limits, even where no additional controls were required for BART.
ASARCO explained that the estimated annual SO
ASARCO stated that it also considered deployment of a SO
AMA added that if nothing else, considering the projects the two smelters are undertaking, the EPA should consult with ASARCO and FMMI to ensure that the final rule does not interfere with plans the smelters have to reduce SO
Furthermore, based on additional information received during the comment period, we have decided to extend the compliance deadline for the secondary control system at the Hayden Smelter by an additional year (i.e., to about July 2018). As explained elsewhere in response to comments and in our revised BART analysis for the Hayden Smelter, our BART determination for the secondary stream now reflects the use of an amine scrubber rather than acid plant. We are not aware of any instances of an amine scrubber being used at any similar facility in the United States. Therefore, we no longer consider three years to be sufficient time for design, construction, and a shakedown period. Accordingly, we are finalizing a compliance deadline of four years from publication of the final rule for the requirements applicable to the secondary stream. We are retaining the proposed compliance deadline of three years from publication of the final rule for the requirements applicable to the primary stream.
Finally, we also note that, during the development of our proposed FIP, we requested and received information from ASARCO and FMMI regarding control upgrades planned for purposes of attaining the 1-hour SO
For example, consider a situation where 100,000 pounds of SO
Thus, FMMI can meet this overall control efficiency by improving the efficiency of the primary capture system, improving the efficiency of the primary control system (e.g., increasing the use of cesium promoted catalyst, increasing operation of the tailstack scrubber, or converting the tailstack scrubber from a magnesium oxide scrubber to a caustic or amine scrubber),
With regard to the Roofline Study, while we encourage ongoing efforts by FMMI to increase understanding of emissions that bypass the existing capture systems, we do not agree that the results of the Roofline Study are more accurate than the values that we used in our emission calculations. The Roofline Study measured emissions at four points along the open roof.
Furthermore, even assuming for the sake of argument that FMMI's revised emission estimates based on the Roofline Study are correct, uncaptured baseline emissions from the converters would be 547 tpy.
Nonetheless, in order to further evaluate the cost-effectiveness of SO
In addition, the compliance method in the proposed regulatory text makes no assumptions about residence time in any control device because it does not rely on instantaneous control efficiencies. Instead, it compares uncontrolled and controlled total masses over a 30-day period. Since the control efficiency data provided by FMMI were based on annual data, however, we have modified the final determination to be a rolling 365-day average rather than a rolling 30-day average.
Finally, in response to a request from FMMI,
Second, FMMI's proposal would have to include a schedule for implementation, enforceable emission limitations, and monitoring, recordkeeping and reporting requirements.
FMMI and NMA also stated that EPA's partial disapproval of the Arizona RH SIP does not affirmatively demonstrate that the smelter is subject-to-BART for NO
Once a source is determined to be subject to BART, the RHR allows for the exemption of a specific pollutant from a BART analysis only if the PTE for that pollutant is below a specified
The preamble to the 2005 revisions to the RHR and BART Guidelines cited by FMMI does not conflict with this interpretation. When EPA revised the RHR, we proposed to interpret CAA section 169A(b)(2)(A) to require a BART analysis for all visibility-impairing pollutants emitted by a source, regardless of amount. However, in the final rule, we explained that there were two reasonable interpretations of the statutory text:
Section 169A(b)(2)(A) of the Act can be read to require the States to make a determination as to the appropriate level of BART controls, if any, for emissions of any visibility impairing pollutant from a source. Given the overall context of this provision, however, and that the purpose of the BART provision is to eliminate or reduce visibility impairment,
FMMI cites the emphasized language, but omits the surrounding discussion, which explains that section 169A(b)(2)(A) could reasonably be read either to require a BART analysis for emissions of any visibility impairing pollutant from a source or to require an analysis only for emissions first determined to contribute to visibility impairment. The preamble does not state which of these two interpretations EPA was adopting. However, in the RHR, EPA retained the requirement that States make a BART determination for each “BART-eligible source in the State that emits
Moreover, the
Based on our five-factor BART analysis for NO
However, in response to concerns raised by Earthjustice and in order to ensure that performance of the SNCR system installed at the Clarkdale Plant is optimized, we are including in the final rule a series of control technology demonstration requirements.
PCC also stated that EPA's CALPUFF modeling is based on a NO
Regarding the use of the Schenk feeder's capacity in emission calculations rather than the primary feeder's capacity, we note that the primary feeder's capacity is specified as simply “NA” in the Clarkdale Plant's Title V permit. Furthermore, this information was not provided by ADEQ or PCC in their comments or any other communication with EPA over the last 18 months.
In particular, we acknowledge that CALPUFF's assumption that NO is totally converted to NO
We
In the case of reagent cost, PCC used a reagent cost of $0.59/lb (i.e., $1,180/ton), citing the cost-effectiveness analysis performed for the BACT analysis of the Drake Cement Plant's PSD construction permit in 2005. Based
In the case of cost contingency, we consider the 40 percent contingency suggested by PCC, without additional site-specific information to support it, to be excessive. The CCM uses contingency values ranging from five to 15 percent, depending upon the control device in question and the precise nature of the factors requiring contingency. We have used the upper end of this estimate in our cost calculation. In no instance does the CCM provide for a generic contingency value as high as 40 percent. We recognize, however, that retrofit installations may pose additional cost estimate uncertainty (i.e., cost contingency). Consequently, we have incorporated estimates of such additional costs at other facilities affected by our regional haze FIP actions.
Given that there is no statute or regulation plainly requiring EPA to consider source-specific BART determinations in the context of a state's overall “reasonable progress,” the State must demonstrate that EPA's approach was an unreasonable interpretation of EPA's own regulations.
Whether EPA is correct with respect to BART determinations, CPC asserted that 40 CFR 51.308(d)(l) and (d)(l)(A) plainly require EPA to consider source-specific reasonable progress factors in the context of establishing RPGs. CPC concluded that EPA should not, and cannot, take a position in this matter
With respect to two other control options, Mid Kiln Firing (MKF) and Mixing Air Technology (MAT), Earthjustice noted similar concerns in that EPA simply accepted the 20 percent reduction from CPC's observed range of 11 to 55 percent NO
NPS agreed with EPA that it is not reasonable to require controls at the kilns that will not operate again, but noted that it does not agree with how EPA conducted the analysis to arrive at the decision not to require controls, particularly with regard to control efficiency assumptions, and emphasized that before the kilns begin operating, they should be reevaluated.
Reemphasizing the fact that the control efficiency of SNCR is variable and dependent on installation-specific variables, Earthjustice argued that it is possible to achieve NO
However, in response to concerns raised by Earthjustice and in order to ensure that performance of the SNCR system installed at Kiln 4 is optimized, we are including in the final rule a series of control technology demonstration requirements. In particular, CPC is required to prepare and submit to EPA: (1) A design report describing the design of the ammonia injection system to be installed as part of the SNCR system; (2) data collected during a baseline period; (3) an optimization protocol; (4) data collected during an optimization period; (5) an optimization report establishing optimized operating parameters; and (6) a demonstration report including data collected during a demonstration period. While this type of control technology demonstration is not typically required as part of a regional haze plan, we consider it to be appropriate here, given the significant variability in control efficiencies achievable with SNCR at cement kilns. Based upon the data collected, EPA may revise the lb/ton emission limit in a future notice and comment rulemaking action.
CPC added that, while initially estimating 30 percent control effectiveness for SNCR at Kiln 4, it had refined its analysis and determined that 35 percent control efficiency may be achievable, based on the data observed at Mojave and CPC's engineering judgment that accounts for the site-specific differences between the two kilns.
CPC stated that a critical difference between Kiln 4 and Mojave is that potential ammonia injection points at Kiln 4 are not within the optimum temperature range of 1,600 °F to l,900 °F. Moreover, CPC continued, because potential injection points at Kiln 4 are below the optimum temperature range, NO
As part of its comments on the proposed FIP, CPC submitted to EPA a
CPC stated that because of these differences, the SNCR NO
In our proposed rule, we proposed a 50 percent NO
CPC also stated that emission limits must account for changes in production rates that are a function of market forces beyond the company's control. CPC said that, to be achievable, any emission limit imposed must account for the inherently higher emission rates that occur during periods of reduced production. CPC stated that if an emission limit is based on 50 percent control efficiency and that level of control is not achievable, then the company will be at risk of an enforcement action, third party claim, and/or plant shutdown for failing to meet an unachievable standard.
We do not agree that the lb/ton emission limit should be based solely on periods of reduced production. Such an approach does not ensure that the facility would achieve fully effective emission control during periods of full production, which exhibit lower lb/ton values. Conversely, a lb/ton limit based solely upon periods of full production would result in a low lb/ton value that may not be achievable during periods of reduced production. Although our baseline period did not include the most recent two years of data, it did incorporate emission data from periods of both full operation and reduced operation. As a result, we consider it to be a reasonable representation of baseline emissions. Therefore, we are not revising this value.
As discussed in our proposed rule, the 30 percent upward revision was based upon an examination of daily emissions (lbs) and production (tons clinker) data over a multi-year period for cement kilns (operating without SNCR) in which we identified the highest rolling 30-day emission rate and the highest annual average emission rate, and examined the difference between these values. A similar approach was used to develop the rolling 30-day emission limits for TEP Sundt Unit 4, and a copy of the emission data was included in the docket.
CPC also expressed opposition to the annual emission cap. CPC stated that the proposed alternative NO
CPC also asserted that EPA's visibility modeling for Kiln 4 contains the following errors:
(1) The stack parameters in the worksheet labeled “Stack Parameters” are the parameters for Kiln 6 that was proposed for construction at the Rillito Cement Plant to replace Kilns I–4, but has not been constructed.
(2) EPA's contractor assumed a geometric mean diameter for coarse particulate matter of 0.48 microns in its CALPUFF modeling. Because coarse particles are larger than 2.5 microns in diameter, CPC's technical consultant, AECOM, assumed a geometric mean diameter of 6 microns.
(3) EPA's subcontractor used non-default minimum turbulence velocities sigma-v (SVMIN) and sigma-w (SWMIN) for each stability class over land and over water of 0.5 meter/second (m/s). According to comments in the subcontractor's CALPUFF modeling files, using the default values produced an error message. The only way to bypass the error and run the model to completion was to set SVMIN and SWMIN to 0.5 m/s. AECOM used the default values without encountering errors from CALPUFF.
Finally, CPC stated that AECOM reran the visibility modeling analysis using corrected and supportable inputs, demonstrating that the maximum visibility benefit from installing SNCR on Kiln 4 would be 0.15 dv, approximately seven times less than the human eye can detect. Citing the DC Circuit's decision in
We agree that we used the incorrect stack parameters. However, because these parameters have varying impacts on visibility benefits, this error had little effect overall. In particular, the lower stack height and smaller stack diameter tend to increase baseline visibility impacts and the visibility improvements due to controls, whereas the higher stack exit velocity and higher exit temperature tend to decrease visibility impacts and control benefits.
Similarly, the changes related to particle diameters have little effect on the modeling results because PM contributes only a few percent to the modeled visibility impacts. The changes related to default minimum turbulence velocities would tend to increase slightly atmospheric mixing and thus to reduce slightly pollution impacts and the benefit of controls. Overall, the effect of the changes to the modeling input parameter is much smaller than the change in SNCR control efficiency, and does not affect our control determination.
While CPC's comment cites the results of AECOM's modeling using variable ammonia background, AECOM also conducted modeling using constant 1.0 ppb ammonia background. As explained above, we consider use of constant 1.0 ppb ammonia background to be the most appropriate approach and we agree with CPC's other corrections to our contractor's modeling. Therefore, we accept the results of CPC's modeling using 1.0 ppb ammonia background as a generally reasonable estimate of visibility benefits expected from SNCR on Kiln 4. These results indicate that the benefit of SNCR at Kiln 4 would be somewhat less than EPA's modeling showed. In particular, EPA's modeling showed a benefit of 0.24 dv at Saguaro National Park, the area with the highest impact from Kiln 4, and a cumulative benefit over the 12 nearby Class I areas of 0.78 dv. By contrast, CPC's modeling showed a benefit of 0.18 dv at Saguaro National Park and a cumulative improvement of 0.59 dv.
Despite these decreased visibility benefits, EPA still considers SNCR to be reasonable for Kiln 4 for several reasons. First, as explained above, even with the revisions suggested by CPC in its comments, SNCR remains highly cost-effective at $1,850/ton. Second, even though the visibility benefits from SNCR at Kiln 4 at the Rillito Plant are lower than those expected to result from controls on other sources addressed in this FIP, they are not negligible, and together with controls on other sources now and in the future will achieve progress in improving visibility at multiple Class I areas. In particular, we note that, according to CPC's modeling, 12 different Class I areas will be improved, including Galiuro WA, for which the expected improvement is 0.16 dv, only slightly less than expected improvement of 0.18 dv at Saguaro National Park. Third, due to the close proximity of the Rillito Plant to the western unit of Saguaro National Park, there is significant uncertainty regarding the benefits of controls. In particular, EPA's modeling indicated that the benefit of SNCR at the western unit of Saguaro National Park (0.30 dv) is greater than the benefit at the eastern unit (0.24 dv), if 100 percent conversion of NO to NO
Finally, we disagree with CPC's suggestion that human perceptibility of visibility improvement is a criterion for imposing controls for purposes of selecting source-specific controls for reasonable progress under the CAA and the RHR. No one control will be sufficient to achieve the visibility goals of the RHR. The effect of reasonable controls on the many contributing sources will cumulatively enable progress toward those goals.
Concerning the reasonable progress analysis for El Paso's facilities and Pima County's Ina Road sewage plant, CPC included a table comparing the four-factor analyses for those facilities and Kiln 4. CPC asserted that there is no explanation or justification to support the proposed decision to require controls on Kiln 4, but not on these other sources. CPC noted that the cost of compliance is higher for Kiln 4 than the other sources, the time needed to comply is longer, energy and non-air quality impacts are equivalent, and the remaining useful life is assumed to be identical. CPC asserted that because the four factors set forth in 40 CFR
With regard to El Paso's Compressor Station and Pima County's Ina Road sewage plant, we agree with the commenter that controls on these units would be more cost-effective than SNCR at Kiln 4, and that the results for the other three statutory factors are similar. However, we note that El Paso Natural Gas Company (EPNG) has asserted that EPA has underestimated the costs of compliance and time necessary for compliance.
NPS also made similar comments about TEP Springerville Units 1 and 2. NPS asserted that EPA's estimates of SCR cost-effectiveness of $6,829/ton for Unit 1 and $6,085/ton for Unit 2 are erroneously high, and therefore the incremental cost-effectiveness of SCR over SNCR of $8,606/ton and $7,416/ton, respectively, are also too high. After applying the corrections discussed by NPS, average cost-effectiveness of $5,700 to $6,400/ton is obtained, which NPS considers to be reasonable. In addition, NPS provided its own cost calculations for Springerville Units 1 and 2, relying primarily upon the cost equations contained in EPA's CCM. NPS estimated that the average cost-effectiveness of SCR is $5,688 to $6,377/ton, which is less than the values established by several states and EPA for EGUs. Detailed calculations and analysis for Cholla Unit 1 and Springerville Units 1 and 2 are documented in Appendix C and E of NPS's submittal.
Regarding NPS's cost calculations that use the cost equations from the CCM (as opposed to using the information contained in IPM), we note that nothing in the RHR requires use of the CCM for calculating the cost of compliance for RP sources. Moreover, while EPA's RP Guidance recommends use of the CCM, it also allows for divergence from the CCM, provided that any difference from the CCM is documented.
Regarding the use of cost-effectiveness thresholds, we note that the examples cited by NPS consist of BART determinations and not RP determinations.
Earthjustice highlighted the Visibility Restoration Plan that was submitted with the Earthjustice's public comments as a tool to help EPA in identifying other sources that impact visibility, and should be evaluated for reasonable progress controls. According to Earthjustice, the Visibility Restoration Plan could also be a helpful tool to the Agency by illustrating how a long-term strategy based on existing data can be developed to restore visibility by 2064. In Earthjustice's opinion, if the plan is adopted, this would assist states and EPA to implement the goals of the haze program's reasonable progress mandate.
The NPCA Report suggests that the contribution of Arizona's area sources to haze at the Grand Canyon may be greater than indicated by our analysis. However, as acknowledged in the NPCA Report's Visibility Restoration Plan (VRP), there are significant limitations in the data on which the VRP is based.
CPC also stated that there is no statutory or regulatory support for EPA's assertion that emission limitations are more critical components of an RH plan than RPGs. CPC stated that establishing RPGs, not emission limits, is the first “core requirement” listed in 51.308(d), and that other components, including emission limits established as part of an LTS, must be developed in consideration of RPGs.
CPC stated that future RH plans will be unable to comply with 40 CFR 51.308(f), (g), and (h) unless numerical RPGs are established now. Citing 40 CFR 51.308(f)(2) and (3), CPC noted that Arizona must evaluate the effectiveness of its LTS for achieving RPGs and affirm or revise its RPGs as part of the next 10-year RH SIP. CPC also noted that Arizona must submit a report to the Administrator every five years evaluating progress toward RPGs. CPC stated that such provisions are predicated on the establishment of numerical RPGs and that without this, the proposed FIP does not comply with the RHR today and prevents Arizona from complying with the RHR in the future.
Earthjustice also asserted that EPA should quantify its RPGs. Earthjustice stated that EPA's contention that it has limited time and resources to conduct this task is not justified because Arizona completed its analysis within months of EPA's request. Earthjustice further pointed out that EPA did analysis to determine RPGs in other haze FIPs, such as Hawaii and Montana. Earthjustice also found EPA's claim of insufficient time and resources weak considering the multiple extensions it has received on the consent decree deadlines to complete the FIP. Therefore, Earthjustice asserted that EPA's claim is not warranted and the Agency should have conducted this critical analysis. Earthjustice strongly urged EPA to conduct this analysis during this rulemaking to meet the RHR requirements and for the purpose of identifying emission reductions needed for future planning periods. Earthjustice contended that EPA and the public must have this information available in order to determine how progress will be made and how reasonable EPA's plan is.
Development of more refined numerical RPGs for each of Arizona's 12 Class 1 would require photochemical grid modeling of a multistate area, involving thousands of emission sources, unlike the comparatively simple single-source CALPUFF modeling used for individual BART assessments. In order to accurately reflect all emissions reductions expected to occur during this planning period, the new modeling would require an update of the emissions inventory for Arizona and the surrounding states to include not just the actions under this FIP, but all EPA and state regulatory actions on point, area, and mobile sources. After the inventory is developed and reviewed by the affected states for accuracy, it must be converted to a model-ready format before air quality modeling can be used to estimate the future visibility levels at the Class I areas.
Nonetheless, in order to provide RPGs that account for emission reductions from the FIP controls, we have used a method similar to the one that we used in our FIP for Hawaii, which is based on a scaling of visibility extinction components in proportion to emission changes. To determine the RPGs, we started with the 2018 projection of extinction components from the WRAP's CMAQ photochemical modeling of WRAP emissions scenario PRP18b (“Preliminary Reasonable Progress for 2018, version b”). This
Although we recognize that this method is not refined, it allows us to translate the emission reductions achieved through the FIP into quantitative RPGs, based on modeling previously performed by the WRAP. These RPGs reflect rates of progress that are faster than the rates projected by the State, but are still slower than the URP for each Class I areas. Nonetheless, we consider these rates to be reasonable for the reasons set forth in our proposal and in this final rule. We also note that RPGs, unlike the emission limits that apply to specific RP sources, are not directly enforceable.
CPC further stated that once EPA establishes RPGs based on the controls proposed for BART sources, it may learn that 40 CFR 51.308(d)(l)(ii) is not even applicable. CPC asserted that given the significant additional controls proposed for BART sources, it is likely that several Class I Areas will be on pace to meet or exceed URPs, eliminating the need to provide the assessment required here. For example, CPC stated that at Saguaro National Park, EPA has estimated that its proposed BART controls on the Hayden Smelter, Miami Smelter, and Apache Power Plant will have a collective visibility benefit of 2.68 dv, more than enough to meet the URP with no additional controls. CPC added that if Saguaro National Park is already on pace to meet the URP, then
Using existing conditions as the baseline for single source visibility impact determinations would create the following paradox: the dirtier the existing air, the less likely it would be that any control is required. This is true because of the nonlinear nature of visibility impairment. In other words, as a Class I area becomes more polluted, any individual source's contribution to changes in impairment becomes geometrically less. Therefore the more polluted the Class I area would become, the less control would seem to be needed from an individual source. . . . Such a reading would render the visibility provisions meaningless, as EPA and the States would be prevented from assuring “reasonable progress” and fulfilling the statutorily-defined goals of the visibility program.
Thus, EPA has determined that it is appropriate to use natural background conditions in order to gauge the impacts of an individual source and the expected benefits of controls on an individual source.
By contrast, RPGs are intended to reflect actual conditions at a future date. Accordingly, they are typically set using regional-scale photochemical grid modeling that accounts for the visibility impacts of numerous sources over a large geographic area. Under this approach, the impact attributable to any one source (and the benefits available from controls on any one source) are quite small. Therefore, the expected degree of visibility improvement (in dv) from controls on individual sources does not translate directly into the same degree of improvement in RPGs.
Earthjustice stated that EPA should have determined the necessary emissions reductions needed to remain on the 2064 glide path and whether those reductions would be reasonable based on the four reasonable progress factors. According to Earthjustice, instead of doing this EPA promptly determined that the 2064 glide path was unachievable because the individual source-by-source reasonable progress determinations would not be enough to meet the glide path. Earthjustice acknowledged and appreciates the work EPA has done in place of Arizona's inadequate haze plan. However, Earthjustice thought that the approach EPA has followed is inadequate because it is not bound to the overarching 2064 natural visibility goal. Specifically, it is not known what level of emissions reductions (1,000, 100,000 or 1,000,000 tpy) will ensure that the State of Arizona will meet the glide path for each Class I area. Nor is it known how those reductions could be achieved and if those reductions would be reasonable. Because these analyses have not been conducted, Earthjustice argued that EPA has not shown that it would be unreasonable for Arizona's Class I areas to achieve the glide path.
Earthjustice pointed to a brief filed by EPA in
Certainly the courts would not find it difficult to affirm an EPA decision finding a State plan “unreasonable” if a State proposes to improve visibility so slowly that the national visibility goal would not be achieved for 200 or 300 years despite the availability of more stringent, cost-effective measures.
Earthjustice stated, however, that under EPA's proposal it is very likely that it would take even longer to restore Class I areas to their natural visibility. In spite of recent EPA actions and the proposed pollution controls, the FIP does not, in Earthjustice's opinion, have sufficient emissions reductions to bring Arizona's Class I areas back on track to the glide path. Earthjustice asserted that additional controls are needed, and without further controls, it could still take centuries or millennia to restore natural visibility.
Similarly, CPC stated that because the proposed FIP contains no discussion of what measures would be required to meet a uniform rate of improvement in Arizona's Class 1 areas, the proposed rule does not comply with 40 CFR 51.308(d)(1)(i)(B).
EPA disagrees with Earthjustice's assertion that we have not demonstrated that it is unreasonable to attain the URP. The commenter correctly notes that the
We previously
While acknowledging that EPA's proposal is an improvement over the State's plan, Earthjustice questioned whether it represents all measures that should be taken to reduce SO
Executive Order 13563, Improving Regulation and Regulatory Review, is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in EO 12866. In general, the Order seeks to ensure the regulatory process is based on the best available science; allows for public participation and an open exchange of ideas; promotes predictability and reduces uncertainty; identifies and uses the best, most innovative, and least burdensome tools for achieving regulatory ends; and takes into account benefits and costs, both quantitative and qualitative. However, nothing in the Order shall be construed to impair or otherwise affect the authority granted by law to the Agency. As explained in our proposal, this action is not an action subject to review under Executive Orders 12866 and 13563. In particular, as explained above, this action is not a “regulatory action” as defined under E.O. 12866. Nonetheless, we have followed the principles of E.O. 13563 in developing this action. We have applied the best available science, sought information and feedback from potentially affected sources, carefully considered costs and benefits, provided a public comment period and two public hearings, and offered flexibility on compliance mechanisms (e.g., a BART alternative for TEP Sundt, performance standards rather than emissions standards for the copper smelters, adjusted averaging times for the Nelson Lime Plant, and the option of annual emission limits for the cement plants).
Under section 202 of UMRA, before promulgating any final rule for which a general notice of proposed rulemaking was published, EPA must prepare a written statement, including a cost-benefit analysis, if that rule includes any “Federal mandates” that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any one year. As of 2013, the inflation-adjusted threshold was $150 million.
• NO
• NO
• SO
• PM can penetrate deep into the lungs and cause a host of health problems, such as aggravated asthma and heart attacks.
Earthjustice believes that Arizona's regional haze program will reduce the serious public health toll imposed on Arizonans by the State's power plants, copper smelters, and other sources of pollution.
A private citizen expressed concerns specifically about the health effects that are a result of burning coal, which the commenter said is a form of energy that leads to some of the worst air pollution compared to renewable energy sources such as wind, solar and geothermal power. The commenter said that 87 percent of NO
• NO
• Nitrogen deposition, caused by wet and dry deposition of nitrates derived from NO
• NO
EPA's is promulgating a FIP to address the remaining portions of the Arizona RH SIP that we disapproved on July 30, 2013. This final rule establishes limits on NO
The estimated costs associated with the NO
Based on air quality modeling, the emission reductions should result in improved visibility at 17 Class I areas in four states, including Arizona. The maximum and cumulative visibility benefits (i.e., the sum of benefits over affected areas) are shown in Table 15 for each source and type of control.
This final rule, along with the previously approved portions of the Arizona RH SIP and a previously finalized FIP, constitute Arizona's regional haze implementation plan for the first planning period that ends in 2018.
We also are finalizing our determination that the interstate transport visibility requirement of section 110(a)(2)(D)(i)(II) for the 1997 8-hour ozone, 1997 PM
This action finalizes a Regional Haze FIP for six individually named facilities in Arizona. This action is not a rule of general applicability and therefore not a “regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993). This type of action is exempt from review under EO 12866 and is therefore not subject to review under Executive Order 13563 (76 FR 3821, January 21, 2011).
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). Because this action will finalize a Regional Haze FIP for only six facilities in Arizona, the Paperwork Reduction Act does not apply. See 5 CFR 1320.3(c). An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers for our regulations in 40 CFR are listed in 40 CFR part 9.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies
After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. None of the facilities subject to this rule is owned by a small entity.
Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and to adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 of UMRA do not apply when they are inconsistent with applicable law. Moreover, section 205 of UMRA allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
Under Title II of UMRA, EPA has determined that this rule does not contain a Federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million (in 1996 dollars) by State, local, or Tribal governments or the private sector in any 1 year. In addition, this rule does not contain a significant Federal intergovernmental mandate as described by section 203 of UMRA nor does it contain any regulatory requirements that might significantly or uniquely affect small governments.
This rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. In this action, EPA is fulfilling our statutory duty under CAA Section 110(c) to promulgate a partial Regional Haze FIP. Thus, Executive Order 13132 does not apply to this action.
Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000) EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement.
EPA has concluded that this action will have tribal implications, because it will impose substantial direct compliance costs on tribal governments and the Federal government will not provide the funds necessary to pay those costs. PCC is a division of Salt River Pima Maricopa Indian Community (SRPMIC or the Community) and profits from the Phoenix Cement Clarkdale Plant are used to provide government services to SRPMIC's members. Therefore, EPA is providing the following tribal summary impact statement as required by section 5(b).
EPA consulted with tribal officials early in the process of developing this regulation so that they could have meaningful and timely input into its development. In November 2012, we shared our initial analyses with SRPMIC and PCC to ensure that the tribe had an early opportunity to provide feedback on potential controls at the Clarkdale Plant. PCC submitted comments on this initial analysis as part of the rulemaking on the Arizona Regional Haze SIP and we revised our initial analysis based on these comments. On November 6, 2013, the EPA Region 9 Regional Administrator met with the President and other representatives of SRPMIC to discuss the potential impacts of the FIP on SRPMIC. Following this meeting, staff from EPA, SPRMIC and PCC shared further information regarding the Plant and potential impacts of the FIP on SRPMIC.
In our February 18, 2014 proposal, EPA proposed to require installation of SNCR at Kiln 4 at the Clarkdale Plant by December 31, 2018 and sought comment on the possibility of establishing an annual cap on NO
In its comments on the proposal, PCC expressed support for the cap “as long as the final FIP expressly provides that it would be at PCC's election whether to meet this cap effective December 31, 2018 or instead meet the applicable lbs/ton limit effective December 31, 2018.”
Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. EPA interprets EO 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it implements specific standards established by Congress in statutes. Also, because this action only applies to six sources and is not a rule of general applicability, it is not economically significant as defined under Executive Order 12866, and the rule also does not have a disproportionate effect on children. However, to the extent this action will limit emissions of NO
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, 12(10) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by the VCS bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when the Agency decides not to use available and applicable VCS. This action does not require the public to perform activities conducive to the use of VCS.
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
We have determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This rule limits emissions of NO
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability that only applies to six named facilities.
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 November 3, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Sulfur dioxide, Particulate matter, Reporting and recordkeeping requirements, Visibility, Volatile organic compounds.
For the reasons stated in the preamble, part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(i)
(2)
(3)
(ii) The owner/operator of the kilns identified in paragraph (i)(1) of this section shall not emit or cause to be emitted pollutants in excess of 3.27 tons of NO
(iii) In addition, if the owner/operator installs an ammonia injection system to comply with the limits specified in paragraph (i)(3) of this section, the owner/operator shall also comply with the control technology demonstration requirements set forth in paragraph (i)(5) of this section.
(4)
(ii) The owner/operator of each kiln shall comply with the SO
(5)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(6)
(ii)
(iii)
(iv)
(v)
(vi)
(7)
(i) All CEMS data, including the date, place, and time of sampling or measurement; parameters sampled or measured; and results.
(ii) All records of lime production.
(iii) Monthly rolling 12-month emission rates of NO
(iv) Daily rolling 30-kiln operating day emission rates of NO
(v) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records specified by 40 CFR part 60, appendix F, Procedure 1, as well as the following:
(A) The occurrence and duration of any startup, shutdown, or malfunction, performance testing, evaluations, calibrations, checks, adjustments maintenance, duration of any periods during which a CEMS or COMS is inoperative, and corresponding emission measurements.
(B) Date, place, and time of measurement or monitoring equipment maintenance activity;
(C) Operating conditions at the time of measurement or monitoring equipment maintenance activity;
(D) Date, place, name of company or entity that performed the measurement or monitoring equipment maintenance activity and the methods used; and
(E) Results of the measurement or monitoring equipment maintenance.
(vi) Records of ammonia consumption, as recorded by the instrumentation required in paragraph (i)(6)(ii) of this section.
(vii) Records of all major maintenance activities conducted on emission units, air pollution control equipment, CEMS, and lime production measurement devices.
(viii) All other records specified by 40 CFR part 60, appendix F, Procedure 1.
(8)
(i) The owner/operator shall submit a report that lists the daily rolling 30-kiln operating day emission rates for NO
(ii) The owner/operator shall submit a report that lists the monthly rolling 12-month emission rates for NO
(iii) The owner/operator shall submit excess emissions reports for NO
(iv) The owner/operator shall submit a summary of CEMS operation, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, and any CEMS repairs or adjustments.
(v) The owner/operator shall submit results of all CEMS performance tests required by 40 CFR part 60, appendix F, Procedure 1 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).
(vi) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, the owner/operator shall state such information in the semiannual report.
(9)
(i) The owner/operator shall submit notification of commencement of construction of any equipment which is being constructed to comply with the NO
(ii) The owner/operator shall submit semiannual progress reports on construction of any such equipment.
(iii) The owner/operator shall submit notification of initial startup of any such equipment.
(10)
(ii) After completion of installation of ammonia injection on a kiln, the owner/operator shall inject sufficient ammonia to achieve compliance with the NO
(11)
(j)
(2)
(3)
(4)
(i) The owner/operator of the unit shall combust only natural gas or natural gas combined with landfill gas in the subject unit.
(ii) The owner/operator of the unit shall not emit or cause to be emitted pollutants in excess of the following limitations, in pounds of pollutant per million British thermal units (lb/MMBtu), from the subject unit.
(iii) If the results of the initial performance test conducted in accordance with paragraph (j)(8)(iv) of this section show PM
(5)
(ii) The owner/operator of the unit subject to this paragraph (j)(5) shall comply with the PM emission limitation of paragraph (j)(3) of this section no later than April 16, 2015.
(6)
(7)
(B) The owner/operator of the unit shall comply with the quality assurance procedures for CEMS found in 40 CFR part 75. In addition to the requirements in part 75 of this chapter, relative accuracy test audits shall be calculated for both the NO
(ii)
(iii)
(iv)
(v)
(8)
(i)
(B) The owner/operator of the unit shall comply with the quality assurance procedures for CEMS found in 40 CFR part 75. In addition to these part 75 requirements, relative accuracy test audits shall be calculated for both the NO
(ii)
(iii)
(iv)
(9)
(i) CEMS data measuring NO
(ii) Daily rolling 30-boiler operating day emission rates of NO
(iii) Records of the relative accuracy test for NO
(iv) Records of quality assurance and quality control activities for emissions systems including, but not limited to, any records required by 40 CFR part 75.
(v) Records of all major maintenance activities conducted on emission units, air pollution control equipment, and CEMS.
(vi) Any other records required by 40 CFR part 75.
(vii) Records of ammonia consumption for the unit, as recorded by the instrumentation required in paragraph (j)(7)(ii) of this section.
(viii) All PM stack test results.
(10)
(i) CEMS data measuring NO
(ii) Daily rolling 30-boiler operating day emission rates of NO
(iii) Records of the relative accuracy test for NO
(iv) Records of quality assurance and quality control activities for emissions systems including, but not limited to, any records required by 40 CFR part 75.
(v) Records of all major maintenance activities conducted on emission units, air pollution control equipment, and CEMS.
(vi) Any other records required by 40 CFR part 75.
(vii) Records sufficient to demonstrate that the fuel for the unit is natural gas or natural gas combined with landfill gas.
(viii) All PM
(11)
(i) By March 31, 2017, the owner/operator shall submit notification by letter whether it will comply with the emission limits in paragraph (j)(3) of this section or whether it will comply with the emission limits in paragraph (j)(4) of this section. In the event that the owner/operator does not submit timely and proper notification by March 31, 2017, the owner/operator may not choose to comply with the alternative emission limits in paragraph (j)(4) of this section and shall comply with the emission limits in paragraph (j)(3) of this section.
(ii) The owner/operator shall submit notification of commencement of construction of any equipment which is being constructed to comply with either the NO
(iii) The owner/operator shall submit semiannual progress reports on construction of any such equipment.
(iv) The owner/operator shall submit notification of initial startup of any such equipment.
(v) The owner/operator shall submit notification of its intent to comply with the PM
(12)
(i) The owner/operator shall submit a report that lists the daily rolling 30-boiler operating day emission rates for NO
(ii) The owner/operator shall submit excess emission reports for NO
(iii) The owner/operator shall submit a summary of CEMS operation, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, and any CEMS repairs or adjustments.
(iv) The owner/operator shall submit the results of any relative accuracy test audits performed during the two preceding calendar quarters.
(v) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, the owner/operator shall state such information in the semiannual report.
(vi) The owner/operator shall submit results of any PM stack tests conducted for demonstrating compliance with the PM limit specified in paragraph (j)(3) of this section.
(13)
(i) The owner/operator shall submit a report that lists the daily rolling 30-boiler operating day emission rates for NO
(ii) The owner/operator shall submit excess emissions reports for NO
(iii) The owner/operator shall submit CEMS performance reports, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, and any CEMS repairs or adjustments.
(iv) The owner/operator shall submit the results of any relative accuracy test audits performed during the two preceding calendar quarters.
(v) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, the owner/operator shall state such information in the semiannual report.
(vi) The owner/operator shall submit results of any PM
(14)
(ii) After completion of installation of ammonia injection on a unit, the owner/operator shall inject sufficient ammonia to achieve compliance with the NO
(15)
(k)
(2)
(3)
(ii) The owner/operator of kiln 4 of the Rillito Plant, as identified in paragraph (k)(1) of this section, shall not emit or cause to be emitted from kiln 4 NO
(4)
(5)
(ii) If the owner/operator of the Clarkdale Plant chooses to comply with the emission limit of paragraph (k)(4) of this section in lieu of paragraph (k)(3)(i) of this section, the owner/operator shall comply with the NO
(6)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(7)
(B) At all times after the compliance date specified in paragraph (k)(5) of this section, the owner/operator of the unit at the Rillito Plant shall maintain, calibrate, and operate a CEMS, in full compliance with the requirements found at 40 CFR 60.63(f) and (g), to accurately measure concentration by volume of NO
(ii)
(B)(
(
(C) At the end of each kiln operating day, the owner/operator shall calculate and record a new 30-day rolling average emission rate in lb/ton clinker from the arithmetic average of all valid hourly emission rates for the current kiln operating day and the previous 29 successive kiln operating days.
(D) Upon and after the completion of installation of ammonia injection on a unit, the owner/operator shall install, and thereafter maintain and operate, instrumentation to continuously monitor and record levels of ammonia consumption that unit.
(8)
(i)
(ii)
(iii) Upon and after the completion of installation of ammonia injection on the unit, the owner/operator shall install, and thereafter maintain and operate, instrumentation to continuously monitor and record levels of ammonia consumption for that unit.
(9)
(i) All CEMS data, including the date, place, and time of sampling or measurement; emissions and parameters sampled or measured; and results.
(ii) All records of clinker production.
(iii) Daily 30-day rolling emission rates of NO
(iv) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records specified by 40 CFR part 60, appendix F, Procedure 1.
(v) Records of ammonia consumption, as recorded by the instrumentation required in paragraph (k)(7)(ii)(D) of this section.
(vi) Records of all major maintenance activities conducted on emission units, air pollution control equipment, CEMS and clinker production measurement devices.
(vii) Any other records specified by 40 CFR part 60, subpart F, or 40 CFR part 60, appendix F, Procedure 1.
(10)
(i) All CEMS data, including the date, place, and time of sampling or measurement; emissions and parameters sampled or measured; and results.
(ii) Monthly rolling 12-month emission rates of NO
(iii) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records specified by 40 CFR part 60, appendix F, Procedure 1.
(iv) Records of ammonia consumption, as recorded by the instrumentation required in paragraph (k)(8)(iii) of this section.
(v) Records of all major maintenance activities conducted on emission units, air pollution control equipment, and CEMS measurement devices.
(vi) Any other records specified by 40 CFR part 60, subpart F, or 40 CFR part 60, appendix F, Procedure 1.
(11)
(i) The owner/operator shall submit a report that lists the daily 30-day rolling emission rates for NO
(ii) The owner/operator shall submit excess emissions reports for NO
(iii) The owner/operator shall submit CEMS performance reports, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, and any CEMS repairs or adjustments.
(iv) The owner/operator shall also submit results of any CEMS performance tests specified by 40 CFR part 60, appendix F, Procedure 1 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).
(v) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, the owner/operator shall state such information in the reports required by paragraph (k)(9)(ii) of this section.
(12)
(i) The owner/operator shall submit a report that lists the monthly rolling 12-month emission rates for NO
(ii) The owner/operator shall submit excess emissions reports for NO
(iii) The owner/operator shall submit CEMS performance reports, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, and any CEMS repairs or adjustments.
(iv) The owner/operator shall also submit results of any CEMS performance tests specified by 40 CFR part 60, appendix F, Procedure 1 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).
(v) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, the owner/operator shall state such information in the reports required by paragraph (k)(9)(ii) of this section.
(13)
(ii) The owner/operator shall submit semiannual progress reports on construction of any such equipment.
(iii) The owner/operator shall submit notification of initial startup of any such equipment.
(iv) By June 30, 2018, the owner/operator of the Clarkdale Plant shall notify the Regional Administrator by letter whether it will comply with the emission limits in paragraph (k)(3)(i) of this section or whether it will comply with the emission limits in paragraph (k)(4) of this section. In the event that the owner/operator does not submit timely and proper notification by June 30, 2018, the owner/operator of the Clarkdale Plant may not choose to comply with the alternative emission limits in paragraph (k)(4) of this section and shall comply with the emission limits in paragraph (k)(3)(i) of this section.
(14)
(ii) After completion of installation of ammonia injection on a unit, the owner or operator shall inject sufficient ammonia to achieve compliance with NO
(15)
(l)
(2)
(3)
(ii) The operation of the batch copper converters, primary capture system, and secondary capture system shall be optimized to capture the maximum amount of process off gases vented from each converter at all times.
(iii) The owner/operator shall prepare a written operation and maintenance plan according to the requirements in paragraph (l)(3)(iv) of this section and submit this plan to the Regional Administrator 180 days prior to the compliance date in paragraph (l)(5)(ii) of this section. The Regional Administrator shall approve or disapprove the plan within 180 days of submittal. At all times when one or more converters are blowing, the owner/operator must operate the capture system consistent with this plan.
(iv) The written operations and maintenance plan must address the following requirements as applicable to the capture system or control device.
(A)
(B)
(C)
(4)
(ii) SO
(iii) The owner/operator must not cause or allow to be discharged to the atmosphere from any primary capture system required by paragraph (l)(3) of this section off-gas that contains nonsulfuric acid particulate matter in excess of 6.2 mg/dscm as measured using the test methods specified in 40 CFR 63.1450(b).
(iv) The owner/operator must not cause or allow to be discharged to the atmosphere from any secondary capture system required by paragraph (l)(3) of this section off-gas that contains particulate matter in excess of 23 mg/dscm as measured using the test methods specified in 40 CFR 63.1450(a).
(v) Total NO
(vi) Anode furnaces #1 and #2 shall only be charged with blister copper or higher purity copper. This charging
(5)
(ii) The owner/operator of each batch copper converter identified in paragraph (l)(1) of this section shall comply with the emissions limitations in paragraphs (l)(4)(i), (l)(4)(iii), (l)(4)(v), and (l)(4)(vi) of this section and other requirements of this section, except those requirements related to the secondary capture system, no later than September 4, 2017.
(6)
(ii)
(iii)
(iv)
(v)
(7)
(i)
(ii)
(8)
(9)
(i) All CEMS data, including the date, place, and time of sampling or measurement; parameters sampled or measured; and results.
(ii) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records required by 40 CFR part 60, appendix F, Procedure 1.
(iii) Records of all major maintenance activities conducted on emission units, air pollution control equipment, and CEMS.
(iv) Any other records required by 40 CFR part 60, subpart F, or 40 CFR part 60, appendix F, Procedure 1.
(v) Records of all monitoring required by paragraph (l)(8) of this section.
(vi) Records of daily sulfuric acid production in tons per day of pure,
(vii) Records of planned and unplanned bypass events and calculations used to determine emissions from bypass events if the owner/operator chooses to use the alternative compliance determination method in paragraph (l)(7)(ii) of this section.
(viii) Records of daily natural gas consumption in each units identified in paragraph (l)(1) of this section and all calculations performed to demonstrate compliance with the limit in paragraph (l)(4)(vi) of this section.
(10)
(i) The owner/operator shall promptly submit excess emissions reports for the SO
(ii) The owner/operator shall submit CEMS performance reports, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, and any CEMS repairs or adjustments. The owner/operator shall submit reports semiannually.
(iii) The owner/operator shall also submit results of any CEMS performance tests required by 40 CFR part 60, appendix F, Procedure 1 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).
(iv) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, the owner/operator shall state such information in the semiannual report.
(v) When performance testing is required to determine compliance with an emission limit in paragraph (l)(4) of this section, the owner/operator shall submit test reports as specified in 40 CFR part 63, subpart A.
(11)
(ii) The owner/operator shall submit semiannual progress reports on construction of any such equipment.
(iii) The owner/operator shall submit notification of initial startup of any such equipment.
(12)
(13)
(m)
(2)
(3)
(ii) The operation of the batch copper converters, primary capture system, and secondary capture system shall be optimized to capture the maximum amount of process off gases vented from each converter at all times.
(iii) The owner/operator shall prepare a written operation and maintenance plan according to the requirements in paragraph (m)(3)(iv) of this section and submit this plan to the Regional Administrator 180 days prior to the compliance date in paragraph (m)(5) of this section. The Regional Administrator shall approve or disapprove the plan within 180 days of submittal. At all times when one or more converters are blowing, the owner/operator must operate the capture system consistent with this plan.
(iv) The written operations and maintenance plan must address the following requirements as applicable to the capture system or control device.
(A)
(B)
(C)
(4)
(ii) The owner/operator must not cause or allow to be discharged to the atmosphere from any primary capture system required by paragraph (m)(3) of this section off-gas that contains nonsulfuric acid particulate matter in excess of 6.2 mg/dscm as measured using the test methods specified in 40 CFR 63.1450(b).
(iii) Total NO
(iv) The owner/operator shall not actively aerate the electric furnace.
(5)
(ii) The owner/operator of each batch copper converter and the electric furnace identified in paragraph (m)(1) of this section shall comply with all requirements of this paragraph (m) except those listed in paragraph (m)(5)(i) of this section no later than September 2, 2016.
(6)
(ii)
(iii)
(iv)
(7)
(i)
(ii)
(iii)
(8)
(9)
(i) All CEMS data, including the date, place, and time of sampling or measurement; parameters sampled or measured; and results.
(ii) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records required by 40 CFR part 60, appendix F, Procedure 1.
(iii) Records of all major maintenance activities conducted on emission units, air pollution control equipment, and CEMS.
(iv) Any other records required by 40 CFR part 60, subpart F, or 40 CFR part 60, appendix F, Procedure 1.
(v) Records of all monitoring required by paragraph (m)(8) of this section.
(vi) Records of daily sulfuric acid production in tons per day of pure, anhydrous sulfuric acid if the owner/operator chooses to use the alternative compliance determination method in paragraph (m)(7)(i) of this section.
(vii) Records of daily alkali consumption in tons per day of pure, anhydrous alkali if the owner/operator chooses to use the alternative compliance determination method in paragraph (m)(7)(ii) of this section.
(viii) Records of planned and unplanned bypass events and calculations used to determine emissions from bypass events if the owner/operator chooses to use the alternative compliance determination method in paragraph (m)(7)(iii) of this section.
(ix) Records of daily natural gas consumption in each units identified in paragraph (m)(1) of this section and all calculations performed to demonstrate compliance with the limit in paragraph (m)(4)(iv) of this section.
(10)
(i) The owner/operator shall promptly submit excess emissions reports for the SO
(ii) The owner/operator shall submit CEMS performance reports, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, and any CEMS repairs or adjustments. The owner/operator shall submit reports semiannually.
(iii) The owner/operator shall also submit results of any CEMS performance tests required by 40 CFR part 60, appendix F, Procedure 1 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).
(iv) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, the owner/operator shall state such information in the semiannual report.
(v) When performance testing is required to determine compliance with an emission limit in paragraph (m)(4) of this section, the owner/operator shall submit test reports as specified in 40 CFR part 63, subpart A.
(11)
(i) The owner/operator shall notify EPA of commencement of construction of any equipment which is being constructed to comply with the capture or emission limits in paragraph (m)(3) or (4) of this section.
(ii) The owner/operator shall submit semiannual progress reports on construction of any such equipment.
(iii) The owner/operator shall submit notification of initial startup of any such equipment.
(12)
(13)
1. The owner/operator shall comply with the requirements contained in this appendix for implementing combustion and process optimization measures and in proposing and establishing rolling 30-kiln operating day limits for nitrogen oxide (NO
2. The owner/operator shall take the following steps to establish rolling 30-kiln operating day limits for NO
a. Design Report: At least 6 months prior to commencing construction of an ammonia injection system, the owner/operator shall prepare and submit to EPA for review a Design Report for the ammonia injection system.
b. Baseline Data Collection: Prior to initiating operation of an ammonia injection system, the owner/operator shall either: (i) Collect new baseline emissions and operational data for a 180-day period; or (ii) submit for EPA review baseline emissions and operational data from a period prior to the date of any baseline data collection period. Such baseline emissions and operational data shall be representative of the full range of normal kiln operations, including regular operating changes in raw mix chemistry due to different clinker manufacture, changes in production levels, and operation of the oxygen plants.
c. Optimization Protocol: Prior to commencement of the Optimization Period, the owner/operator shall submit for EPA review an Optimization Protocol which shall include the procedures to be used for the purpose of adjusting operating parameters and minimizing emissions.
d. Optimization Period: Following completion of installation of an ammonia injection system, the owner/operator shall undertake a startup and optimization period for the ammonia injection system.
e. Optimization Report: Within 60 calendar days following the conclusion of the Optimization Program, the owner/operator shall submit to EPA an Optimization Report demonstrating conformance with the Optimization Protocol, and establishing optimized operating parameters for the ammonia injection system as well as other facility processes.
f. Demonstration Period: Upon completion of the optimization period specified above, the owner/operator shall operate the ammonia injection system in a manner consistent with the optimization period for a period of 270 kiln operating days (subject to being shortened or lengthened as provided for in Items 17 and 18 of this appendix) for the purpose of establishing a rolling 30-kiln operating day limit.
g. Demonstration Report: The owner/operator shall prepare and submit to EPA for review, a report following completion of the demonstration period for the ammonia injection system.
3. Prior to commencing construction of the ammonia injection system, the owner/operator shall submit to EPA for review a Design Report for the ammonia injection system. The owner/operator shall design the ammonia injection system to deliver the proposed reagent to the exhaust gases at the rate of at least 1.2 mols of reagent to 1.0 mols of NO
4. Any permit application which may be required under state or federal law for the ammonia injection system shall be consistent with the Design Report.
5. Prior to commencement of continuous operation of the ammonia injection system, the owner/operator shall either: (a) Collect new baseline emissions and operational data for a 180-day period; or (b) submit for EPA review existing baseline emissions and operational data collected from a period of time prior to the initiation of a baseline collection period. Such baseline emissions and operational data shall include the data required by Item 8 below for periods of time representing the full range of normal kiln operations including changes in raw mix chemistry due to differing clinker manufacture, changes in production levels and operation of the oxygen plants. Within 45 Days following the completion of the baseline data collection period, the owner/operator shall submit to EPA the baseline data collected during the Baseline Data Collection Period.
6. The owner/operator shall install, operate, and collect NO
7. During the Baseline Data Collection Period (if the owner/operator elects to collect new data) and the Optimization Period, the owner/operator shall operate the Kiln in a manner necessary to produce a quality cement clinker product. The owner/operator shall not be expected to operate the Kiln within normal operating parameters during periods of Kiln Malfunction, Startup and Shutdown. The owner/operator shall not intentionally adjust kiln operating parameters to increase the rate of emission (expressed as lb/ton of clinker produced) for NO
8. The data to be collected during the Baseline Data Collection Period (if the owner/operator elects to collect baseline data) and the Optimization Period will include the following information either derived from available direct monitoring or as estimated from monitored or measured data:
a. Kiln flue gas temperature at the inlet to the fabric filter or at the Kiln stack (daily average);
b. Kiln production rate in tons of clinker (daily total) by type;
c. Raw material feed rate in tons (daily total) by type;
d. Type and percentage of each raw material used and the total feed rate (daily);
e. NO
f. Flue gas volumetric flow rate (daily average in dry acfm);
g. Sulfate in feed (calculated to a daily average percentage);
h. Feed burnability (C3S) (at least daily). In the event that more than one type of clinker is produced, the feed burnability for each clinker type will be included;
i. Temperatures in or near the burning zone (by infrared or optical pyrometer);
j. Kiln system fuel feed rate and type of fuel by weight or heat input rate (calculated to a daily average);
k. Fuel distribution, an estimate of how much is injected at each location (daily average);
l. Kiln amps (daily average);
m. Kiln system draft fan settings and primary air blower flow rates;
n. Documentation of any Startup, Shutdown, or Malfunction events;
o. An explanation of any gaps in the data or missing data; and
p. Amount of oxygen generated and introduced into the Kiln (lb/day).
9. The owner/operator shall submit the data to EPA in an electronic format and shall explain the reasons for any data not collected for each of the parameters. The owner/operator shall report all data in a format consistent with and able to be manipulated by Microsoft Excel.
10. Prior to commencement of the Optimization Period, the owner/operator shall submit to EPA for review a protocol (“Optimization Protocol”) for optimizing the ammonia injection system, including optimization of the operational parameters resulting in the minimization of emissions of NO
a. The following measures to optimize the facility's processes to reduce NOx emissions in conjunction with the ammonia injection system:
i. Adjustment of the balance between fuel supplied to the existing riser duct burner and the existing calciner burners to improve overall combustion within the calciner while maintaining product quality;
ii. Adjustments to the calciner combustion to ensure complete fuel burning, which will help to both reduce CO and improve NOx levels by, at a minimum:
1. Adjusting fuel fineness to improve the degree of combustion completed in the calciner; and
2. Adjusting the proportions of primary, secondary and tertiary air supplied to the kiln system while maintaining product quality; and
iii. Adjustments to the raw mix chemical and physical properties using onsite raw materials to improve kiln stability and maintain product quality, including but not limited to, fineness of the raw mix. As part of this optimization measure, the owner/operator shall take additional measurements using existing monitoring equipment at relevant process locations to evaluate the impact of raw mix refinements.
b. The range of reagent injection rates (as a molar ratio of the average pollutant concentration);
c. Sampling and testing programs that will be undertaken during the initial reagent injection rate period;
d. A plan to increase the reagent injection rate to identify the injection rates with the maximum emission reduction effectiveness and associated sampling and testing programs for each increase in the reagent rate. The owner/operator shall test, at a minimum, for the ammonia injection system at molar ratios of 0.75, 1.0, and 1.20. If data collected at the highest molar ratio indicates decreasing lb/ton emissions, the owner/operator shall continue to test the ammonia injection system by increasing the molar ratio by increments of 0.10 until either the lb/ton emission data indicates no significant decrease from the previous increment, or adverse effects are observed (e.g., ammonia slip emissions above 10 ppm, presence of a secondary particulate plume, impaired product, impaired kiln operations).
e. The factors that will determine the optimum reagent injection rates and pollutant emission reductions (including maintenance of Kiln, productivity, and product quality); and
f. Evaluation of any observed synergistic effects on Kiln emissions, Kiln operation, reagent slippage, or product quality from the ammonia injection system.
11. As part of the Optimization Protocol, the owner/operator shall submit to EPA a schedule for optimizing each the ammonia injection system parameters identified in Item 10 of this appendix. The schedule shall indicate the total duration of the Optimization period, and must optimize each identified parameter for the following minimum amounts of time:
12. Within 60 days following the termination of the Optimization Period(s), the owner/operator shall submit to EPA for review an Optimization Report demonstrating conformance with the Optimization Protocol for the ammonia injection system and establishing the optimized operating parameters for the facility processes and the ammonia injection system determined under the Optimization Protocol, including optimized injection rates for all reagents. The owner/operator may take into account energy, environmental, and economic impacts and other costs in proposing the optimized state of the ammonia injection system, including the injection rates of reagents, and the operating parameters for the facility processes. The owner/operator may also include in the Optimization Report a discussion of any problems encountered during the Optimization Period, and how that problem may impact the potential emission reductions (e.g. the quantity of reagent slip at varying injection rates and/or the possible observance of a detached plume above the Stack).
13. Optimization Targets: Except as otherwise provided in this Item and in Item 14 of this appendix, the ammonia injection system shall be deemed to be optimized if the Optimization Report demonstrates that the ammonia injection system during periods of normal operation has achieved emission reductions consistent with its maximum design stoichiometric rate identified in the Design Report.
14. Notwithstanding the provisions of Item 13 of this appendix, the ammonia injection system may be deemed to be optimized at a lower rate of emission reductions than that identified in Item 13 of this appendix if the Optimization Report demonstrates that, during periods of normal operation, a lower rate of emission reductions cannot be sustained after all parameters and injection rates are optimized during the Optimization Period without creating a meaningful risk of impairing product quality, impairing Kiln system reliability, impairing compliance with a maximum ammonia slip emissions limit of 10 ppm or other permitted levels, or forming a detached plume.
15. During the Optimization Period, the owner/operator, to the extent practicable and applicable, shall operate the ammonia injection system in a manner consistent with good air pollution control practice consistent with 40 CFR 60.11(d). The owner/operator will adjust its optimization of the ammonia injection system as may be necessary to avoid, mitigate or abate an identifiable non-compliance with an emission limitation or standard for pollutants other than NOx. In the event the owner/operator determines, prior to the expiration of the Optimization Period, that its ability to optimize the ammonia injection system will be affected by potential impairments to product quality, kiln system reliability or increased emissions of other pollutants, then the owner/operator shall promptly advise EPA of this determination, and include these considerations as part of its recommendation in its Optimization Report.
16. The Demonstration Period shall commence within 7 days after the owner/operator's receipt of final comments from EPA on the Optimization Report. During the Demonstration Period, the owner/operator shall operate the ammonia injection system for a period of 270 Operating Days consistent with the optimized operations of the Facility and the ammonia injection system as contained in the Optimization Report. This 270 Operating Day Demonstration Period may be shortened or lengthened as provided for in Items 17 and 18 of this appendix.
17. If Kiln Operation is disrupted by excessive unplanned outages, or excessive Startups and Shutdowns during the Demonstration Period, or if the Kiln temporarily ceases operation for business or technical reasons, the owner/operator may advise EPA that it is necessary to temporarily extend the Demonstration Period. Data gathered during periods of disruption may not be used to determine an emission limitation.
18. If evidence arises during the Demonstration Period that product quality, kiln system reliability, or emission compliance with an emission limitation or standard is impaired by reason of longer term operation of the ammonia injection system in a manner consistent with the parameters identified in the Optimization Report, then the owner/operator may, upon notice to EPA, temporarily modify the manner of operation of the facility process or the ammonia injection system to mitigate the effects and, if necessary, notify EPA that the owner/operator will suspend or extend the
19. During the Demonstration Period, the owner/operator shall collect the same data as required in Item 8 of this appendix. The Demonstration Report shall include the data collected as required in this Item.
20. Within 60 Days following completion of the Demonstration Period for the ammonia injection system, the owner/operator shall submit a Demonstration Report to EPA, based upon and including all of the data collected during the Demonstration Period including data from Startup, Shutdown and Malfunction events, that identifies a proposed 30-kiln operating day emission limit for NO
21. The owner/operator shall propose a 30-kiln operating day emission limit for NOx in the Demonstration Report(s) as provided in Item 20 of this appendix. This 30-kiln operating day emission limit shall be calculated in accordance with the following formula:
22. Supporting data required to be submitted under this appendix may contain information relative to kiln operation and production that the owner/operator may consider to be proprietary. In such a situation, the owner/operator may submit the information to EPA as CBI, subject to the provisions of 40 CFR part 2.
1. The owner/operator shall comply with the requirements contained in this appendix for implementing combustion and process optimization measures and in proposing and establishing rolling 12-month limits for nitrogen oxide (NO
2. The owner/operator shall take the following steps to establish rolling 12-month limits for NOx.
a. Design Report: At least 6 months prior to commencing construction of an ammonia injection system, the owner/operator shall prepare and submit to EPA for review a Design Report for the ammonia injection system;
b. Baseline Data Collection: Prior to initiating operation of an ammonia injection system, the owner/operator shall either: (i) Collect new baseline emissions and operational data for a 180-day period; or (ii) submit for EPA review baseline emissions and operational data from a period prior to the date of any baseline data collection period. Such baseline emissions and operational data shall be representative of the full range of normal kiln operations.
c. Optimization Protocol: Prior to commencement of the Optimization Period, the owner/operator shall submit for EPA review an Optimization Protocol which shall include the procedures to be used for the purpose of adjusting operating parameters and minimizing emissions.
d. Optimization Period: Following completion of installation of an ammonia injection system, the owner/operator shall undertake a startup and optimization period for the ammonia injection system;
e. Optimization Report: Within 60 calendar days following the conclusion of the Optimization Program, the owner/operator shall submit to EPA an Optimization Report demonstrating conformance with the Optimization Protocol, and establishing optimized operating parameters for the ammonia injection system as well as other facility processes.
f. Demonstration Period: Upon completion of the optimization period specified above, the owner/operator shall operate the ammonia injection system in a manner consistent with the optimization period for a period of 360 kiln operating days (subject to being shortened or lengthened as provided for in Items 17 and 18 of this appendix) for the purpose of establishing a rolling 30-kiln operating day limit; and
g. Demonstration Report: The owner/operator shall prepare and submit to EPA for review, a report following completion of the demonstration period for the ammonia injection system.
3. Prior to commencing construction of the ammonia injection system, the owner/operator shall submit to EPA for review a Design Report for the ammonia injection system. The owner/operator shall design the ammonia injection system to deliver the proposed reagent to the exhaust gases at the rate of at least 1.2 mols of reagent to 1.0 mols of NOx (1.2:1 molar ratio). The system shall be designed to inject Ammonia into the kiln exhaust gas stream. The owner/operator shall specify in the Design Report the reagent(s) selected, the locations selected for reagent injection, and other design parameters based on maximum emission reduction effectiveness, good engineering judgment, vendor standards, available data, kiln operability, and regulatory restrictions on reagent storage and use.
4. Any permit application which may be required under state or federal law for the ammonia injection system shall be consistent with the Design Report.
5. Prior to commencement of continuous operation of the ammonia injection system, the owner/operator shall either: (a) Collect new baseline emissions and operational data for a 180-day period; or (b) submit for EPA review existing baseline emissions and operational data collected from a period of time prior to the initiation of a baseline collection period. Such baseline emissions and operational data shall include the data required by Item 8 of this appendix for periods of time representing the full range of normal kiln operations. Within 45 Days following the completion of the baseline data collection period, the owner/operator shall submit to EPA the baseline data collected during the Baseline Data Collection Period.
6. The owner/operator shall install, operate, and collect NO
7. During the Baseline Data Collection Period (if the owner/operator elects to collect new data) and the Optimization Period, the owner/operator shall operate the Kiln in a manner necessary to produce a quality lime product. The owner/operator shall not be expected to operate the Kiln within normal operating parameters during periods of Kiln Malfunction, Startup and Shutdown. The owner/operator shall not intentionally adjust kiln operating parameters to increase the rate of emission (expressed as lb/ton of lime product produced) for NO
8. The data to be collected during the Baseline Data Collection Period (if the owner/operator elects to collect baseline data) and the Optimization Period will include the following information either derived from available direct monitoring or as estimated from monitored or measured data:
a. Kiln flue gas temperature at the inlet to the fabric filter or at the Kiln stack (daily average);
b. Kiln production rate in tons of lime product (daily total) by type;
c. NO
d. Flue gas volumetric flow rate (daily average in dry acfm);
e. Sulfate in feed (calculated to a daily average percentage);
f. Feed burnability (C3S) (at least daily). In the event that more than one type of lime product is produced, the feed burnability for each type of lime product will be included;
g. Temperatures in or near the burning zone (by infrared or optical pyrometer);
h. Kiln system fuel feed rate and type of fuel by weight or heat input rate (calculated to a daily average);
i. Fuel distribution, an estimate of how much is injected at each location (daily average);
j. Kiln amps (daily average);
k. Kiln system draft fan settings and primary air blower flow rates;
l. Documentation of any Startup, Shutdown, or Malfunction events;
m. An explanation of any gaps in the data or missing data; and
n. Amount of oxygen generated and introduced into the Kiln (lb/day).
9. The owner/operator shall submit the data to EPA in an electronic format and shall explain the reasons for any data not collected for each of the parameters. The owner/operator shall report all data in a format consistent with and able to be manipulated by Microsoft Excel.
10. Prior to commencement of the Optimization Period, the owner/operator shall submit to EPA for review a protocol (“Optimization Protocol”) for optimizing the ammonia injection system, including optimization of the operational parameters resulting in the minimization of emissions of NO
a. The range of reagent injection rates (as a molar ratio of the average pollutant concentration);
b. Sampling and testing programs that will be undertaken during the initial reagent injection rate period;
c. A plan to increase the reagent injection rate to identify the injection rates with the maximum emission reduction effectiveness and associated sampling and testing programs for each increase in the reagent rate. The owner/operator shall test, at a minimum, for the ammonia injection system at three molar ratios of 0.75, 1.0, and 1.20;
d. The factors that will determine the optimum reagent injection rates and pollutant emission reductions (including maintenance of Kiln, productivity, and product quality); and
e. Evaluation of any observed synergistic effects on Kiln emissions, Kiln operation, reagent slippage, or product quality from the ammonia injection system.
f. Any additional facility processes that the owner/operator determines may reduce NO
11. As part of the Optimization Protocol, the owner/operator shall submit to EPA a schedule for optimizing each of the ammonia injection system parameters identified in Item 10 of this appendix. The schedule shall indicate the total duration of the Optimization period, and must optimize each identified parameter for the following minimum amounts of time:
12. Within 60 Days following the termination of the Optimization Period(s), the owner/operator shall submit to EPA for review an Optimization Report demonstrating conformance with the Optimization Protocol for the ammonia injection system and establishing the optimized operating parameters for the facility processes and the ammonia injection system determined under the Optimization Protocol, including optimized injection rates for all reagents. The owner/operator may take into account energy, environmental, and economic impacts and other costs in proposing the optimized state of the ammonia injection system, including the injection rates of reagents, and the operating parameters for the facility processes. The owner/operator may also include in the Optimization Report a discussion of any problems encountered during the Optimization Period, and how that problem may impact the potential emission reductions (e.g. the quantity of reagent slip at varying injection rates and/or the possible observance of a detached plume above the Stack).
13. Optimization Targets: Except as otherwise provided in this Item and in Item 14 of this appendix, the ammonia injection system shall be deemed to be optimized if the Optimization Report demonstrates that the ammonia injection system during periods of normal operation has achieved emission reductions consistent with its maximum design stoichiometric rate identified in the Design Report approved pursuant to Item 3 of this appendix.
14. Notwithstanding the provisions of Item 13 of this appendix, the ammonia injection system may be deemed to be optimized at a lower rate of emission reductions than that identified in Item 13 of this appendix if the Optimization Report demonstrates that, during periods of normal operation, a lower rate of emission reductions cannot be sustained after all parameters and injection rates are optimized during the Optimization Period without creating a meaningful risk of impairing product quality, impairing Kiln system reliability, impairing compliance with a maximum ammonia slip emissions limit of 10 ppm or other permitted levels, or forming a detached plume.
15. During the Optimization Period, the owner/operator, to the extent practicable and applicable, shall operate the ammonia injection system in a manner consistent with good air pollution control practice consistent with 40 CFR 60.11(d). The owner/operator will adjust its optimization of the ammonia injection system as may be necessary to avoid, mitigate or abate an identifiable non-compliance with an emission limitation or standard for pollutants other than NO
16. The Demonstration Period shall commence within 7 days after the owner/operator's receipt of the final comments from EPA on the Optimization Report. During the Demonstration Period, the owner/operator shall operate the ammonia injection system for a period of 360 Operating Days consistent with the optimized operations of the Facility and the ammonia injection system as contained in the Optimization Report. This 360 Operating Day Demonstration Period may be shortened or lengthened as provided for in Items 17 and 18 of this appendix.
17. If Kiln Operation is disrupted by excessive unplanned outages, or excessive Startups and Shutdowns during the Demonstration Period, or if the Kiln temporarily ceases operation for business or technical reasons, the owner/operator may advise EPA that it is necessary to temporarily extend the Demonstration Period. Data gathered during periods of disruption may not be used to determine an emission limitation.
18. If evidence arises during the Demonstration Period that product quality, kiln system reliability, or emission compliance with an emission limitation or standard is impaired by reason of longer term operation of the ammonia injection system in a manner consistent with the parameters identified in the Optimization Report, then the owner/operator may, upon notice to EPA, temporarily modify the manner of operation of the facility process or the ammonia injection system to mitigate the effects and, if necessary, notify EPA that the owner/operator will suspend or extend the Demonstration Period for further technical evaluation of the effects of a process optimization or permanently modify the manner of operation of the ammonia injection system to mitigate the effects.
19. During the Demonstration Period, the owner/operator shall collect the same data as required in Item 8 of this appendix. The Demonstration Report shall include the data collected as required in this Item.
20. Within 60 Days following completion of the Demonstration Period for the ammonia injection system, the owner/operator shall submit a Demonstration Report to EPA, based upon and including all of the data collected during the Demonstration Period including data from Startup, Shutdown and Malfunction events, that identifies a proposed rolling 12-month emission limit for NO
21. The owner/operator shall propose a rolling 12-month emission limit for NO
22. Supporting data required to be submitted under this Appendix may contain information relative to kiln operation and production that the owner/operator may consider to be proprietary. In such a situation, the owner/operator may submit the information to EPA as CBI, subject to the provisions of 40 CFR part 2.
Department of Defense.
Proposed rule.
The rule updates DoD policy and procedures that implement the Freedom of Information Act (FOIA) and incorporate the provisions of the executive order directing agencies to improve the disclosure of information. This part promotes uniformity in the DoD FOIA Program. It takes precedence over all DoD Component publications that supplement and implement the DoD FOIA Program.
Comments must be received by November 3, 2014.
James Hogan, 571–372–0463.
This rule is part of DoD's retrospective plan, completed in August 2011, under Executive Order 13563, “Improving Regulation and Regulatory Review.” DoD's full plan and updates can be accessed at:
a. This rule revises 32 CFR part 286 in accordance with the authority in 32 CFR part 285 to implement 5 U.S.C. 552 and incorporate the provisions of Executive Order 13392. This part promotes uniformity in the DoD FOIA Program.
b. Authority: The Freedom of Information Act (FOIA) (5 U.S.C. 552), as amended, provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. Furthermore, the FOIA requires agency to promulgate regulations to carry out some of its provisions.
This rule implements changes to conform to the requirements of the Electronic Freedom of Information Act Amendments of 1996, Public Law 104–231, and the OPEN Government Act of 2007, Public Law 110–175.
This regulatory action imposes no monetary costs to the Agency or public. The benefit to the public is the accurate reflection of the Agency's FOIA Program to ensure that policies and procedures are known to the public.
We have consulted with the Office of Management and Budget (OMB) and determined this NPRM meets the criteria for a significant regulatory action under Executive Order 12866, as supplemented by
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. This document will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.
It has been certified that 32 CFR part 286 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. The rule implements the procedures for processing FOIA requests within the Department of Defense. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.
This proposed rule do not create any new or affect any existing collections, and therefore, do not require OMB approval under the Paperwork Reduction Act
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This document will not have a substantial effect on State and local governments.
Freedom of information.
Accordingly, 32 CFR part 286 is proposed to be revised to read as follows:
5 U.S.C. 552.
This part is in accordance with the authority in DoD Directive 5105.53, “Director of Administration and Management (DA&M)” (available from
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (referred to collectively in this part as the “DoD Components”).
Unless otherwise noted, these terms and their definitions are for this part.
(i) The intent of the creator of the document to retain control over the record;
(ii) The ability of the agency to use and dispose of the record as it sees fit;
(iii) The extent to which agency personnel have read or relied upon the document;
(iv) The degree to which the document was integrated into the agency's record systems or files. Information maintained by an entity pursuant to government contract for a DoD Component for records management is considered in the DoD Component's possession. Records created by an agency employee during employment, including emails, may be either agency records or personal files.
(A) Examples include:
(
(
(B) Examples do not include:
(
(
(
(2) The definition of an agency record under the FOIA is more expansive than the definition of a federal record. Documents such as drafts and working files need not be official records as defined as official records, but are still agency records responsive to FOIA requests.
(1) A commercial requester asking for contract-related documents must indicate a willingness to pay fees equal to or greater than the minimum fees established by the DoD Component for commercial requesters.
(2) Written FOIA requests may be submitted by U.S. Postal Service or other commercial delivery means, by facsimile, or electronically, to an address provided for submission of FOIA requests and must include the FOIA requester's postal mailing address. Commercial delivery is acceptable; however, due to security concerns, the DoD Components may refuse to accept commercial delivery of FOIA requests.
(1) Business or professional files created before entering government service; files created during or relating to previously held positions, political materials, and reference files.
(2) Private files brought into, created, or received in the office; family and personal correspondence and materials documenting professional activities and outside business or political pursuits, including manuscripts and drafts for articles and books and volunteer and community service records that are considered personal, even if created or received while in office, because they do not relate to agency business.
(3) Work-related personal files including emails, diaries, journals, notes, and personal calendars and appointment schedules. Though work-related, these files may be personal if they are used only as reminders and personal observations on work-related topics, not for the transaction of government business.
It is DoD policy, pursuant to 32 CFR part 285, to promote government transparency and accountability by adopting a presumption in favor of disclosure in all decisions involving the FOIA and responding promptly to FOIA requests in a spirit of cooperation.
The OSD and DoD Component heads implement the procedures prescribed in this part and ensure that supplemental guidance and procedures are in accordance with 32 CFR part 285 and this part.
(a) The public has a right to information concerning U.S. Government activities.
(1) A DoD record (referred to in this part as “record”) requested by a member of the public who follows rules established by this part must not be withheld in whole or in part unless the record is exempt from partial or total disclosure by the FOIA.
(2) The applicability of a FOIA exemption to withhold information does not preclude the DoD Component from making a discretionary release in accordance with § 286.24(b).
(b) Executive Order 13392 directs agencies to emphasize a new citizen-centered approach to the FOIA with a results-oriented focus. Because FOIA requesters are seeking a service from the government, the DoD Components must respond courteously and appropriately to FOIA requesters. Additionally, the DoD Components must provide the public with citizen-centered ways to learn about the FOIA process, information about agency records that are publicly available, and information about the status of a person's FOIA request and appropriate information about the agency's response.
(c) The Defense Freedom of Information Policy Office (DFOIPO) maintains a handbook for the public to use in obtaining information from the Department of Defense as required by section (g)(3) of the FOIA and section 2(b)(v) of Executive Order 13392. This handbook is a short, simple explanation of what the FOIA is designed to do and how the public can use it to access DoD records. This handbook will be posted on the DFOIPO Web site and the FOIA Web site of each DoD FOIA Component listed in Appendix A to this part must have a link to it.
(d) Individuals seeking DoD information should address their FOIA requests to one of the FOIA Requester Service Center addresses listed in Appendix A to this part. If a FOIA requester is uncertain where to send a FOIA request for DoD information, the FOIA requester can call 1–866–574–4970 (toll-free) for assistance.
(a) Each DoD FOIA Program Component listed in Appendix A to this part must establish one or more FOIA Requester Service Centers.
(b) Each FOIA Requester Service Center will have a Web site that serves to educate the public on the FOIA process. These Web sites will comply with DoD Instruction 8550.01. At a minimum, each Web site will have:
(1) The address, telephone number, facsimile number, and organizational email address to which FOIA requests can be sent.
(2) A link to the DoD FOIA handbook.
(3) A description of the types of records that can be requested.
(4) The name and contact information of the DoD Component's FOIA public liaison.
(5) Information on how a FOIA requester can obtain the status of a FOIA request (either by telephone or through the FOIA Requester Service Center Web site).
(6) A FOIA library as described in § 286.20(b) or a link to the DoD Component's FOIA library if the library is centralized.
(c) The Web sites of DoD Component Headquarters FOIA Requester Service Centers will link to the Web sites of the other FOIA Requester Service Centers within their Components.
(d) The Internet home page of every DoD Component will link to the FOIA Requester Service Center for that DoD Component.
The DoD Components listed in Appendix A to the part will submit to the Director of Administration and Management (DA&M) the names of personnel to serve as DoD Component FOIA Public Liaisons. Each DoD Component will have at least one FOIA Public Liaison. Intermediate level public liaisons may be named by those DoD Components that have a large number of FOIA Requester Service Centers.
(a) The FOIA Public Liaisons are responsible for:
(1) Ensuring that the FOIA Requester Service Centers' Web sites comply with the requirements in § 286.7(b) through (d).
(2) Assisting in the reduction of any delays in responding to FOIA requests.
(3) Increasing transparency and understanding of request's statuses.
(4) Assisting in dispute resolution.
(b) The FOIA Public Liaison for the DoD Components listed in Appendix A to this part will be appointed from DFOIPO.
Records released by the authority of this part or under circumstances in which a DoD official with the appropriate authority has authorized the release of the information to the public are considered to be in the public domain. The disclosure of exempt records, without authorization by the appropriate DoD official, is not an official release of information; accordingly, it is not a FOIA release. Such a release does not waive the authority of the Department of Defense to assert FOIA exemptions to withhold the same records in response to a FOIA request. Also, while the authority may exist to disclose records to individuals in their official capacity, the provisions of this part apply if the same individual seeks the records in a private or personal capacity.
The requester is responsible for providing a description of the desired record that enables the DoD Component to locate the record with a reasonable amount of effort. A reasonable description contains sufficient information to permit an organized, non-random search for the record based on the DoD Component's filing arrangements and existing retrieval systems. The DoD Component's decision on the reasonableness of the description must be based on knowledge of its files, and not on the potential volume of records that may be located and the concurrent review effort to determine releasability. The fact that a FOIA request appears broad or burdensome (e.g. a large volume of potentially responsive information) does not necessarily entitle the DoD Component to deny the FOIA request on the grounds that it does not reasonably describe the record sought.
The Combatant Commands FOIA programs are placed under OSD jurisdiction instead of the administering Military Department or the Chairman of the Joint Chiefs of Staff. This is an exception to DoD Directive 5100.03 (available at
(a) The appellate authority for the Combatant Commands is the DA&M in accordance with 32 CFR part 285. When requested, the Combatant Commands will forward directly to DFOIPO the administrative record associated with the appeal of an initial denial for records pursuant to the FOIA. The Combatant Commands will advise FOIA requesters that they have the right to appeal any adverse determinations to the DA&M.
(b) Documents originated by the Military Service components of the Combatant Commands, while performing joint exercises or operations under Combatant Command authority, are joint in nature and are under the cognizance of the Combatant Commands.
(1) Each Combatant Command will establish processing procedures that address coordinating FOIA requests for these joint documents between the Combatant Command and the Military Service component.
(2) These procedures should include the determination as to whether the IDA responsibility would be at the Combatant Command or decentralized to the Military Service component; however, appellate authority remains with the DA&M for these documents.
(3) As an exception, if the responsive documents are located within a Defense Criminal Investigative Organization (such as the Air Force Office of Special Investigations) or accident investigation file at the Military Service component, then the release, initial denial, and appellate authorities may remain with the Service or the appropriate Defense Criminal Investigative Organization. However, the Military Service Component will consult with the responsible Combatant Command during the review process before release.
(c) The FOIA Public Liaison for the Combatant Commands will be assigned from DFOIPO.
FOIA personnel require access to all records requested through their respective activities, regardless of the sensitivity or classification of the information due to the nature of their duties and responsibilities. The DoD Components must ensure that FOIA personnel have the appropriate clearances and accesses to perform their duties.
Pursuant to DoD Instruction 1100.22 (Available at
(a) Inherently governmental FOIA functions include:
(1) Formulating or approving FOIA policies and procedures.
(2) Making final determinations regarding whether to treat incoming correspondence as a FOIA or Privacy Act request.
(3) Making denial or release determinations of information requested pursuant to the FOIA.
(4) Deciding any issues regarding the scope or interpretation of a FOIA request.
(5) Determining the appropriateness of claimed exemptions.
(6) Approving the approach taken in negotiations or discussions with the FOIA requester.
(7) Deciding administrative appeals.
(8) Conducting final review of all outgoing correspondence, memorandums, and release packages.
(9) Making final determinations of requests for expedited processing, fee category, and fee waivers.
(10) Executing documents for filing in litigation pursuant to the FOIA if the documents assert an official position of the Department of Defense, any DoD Components, or any other federal agencies. Contractors may prepare and execute documents describing their own actions while processing FOIA requests.
(b) Examples of FOIA functions and duties that contractors may perform (this list is not all inclusive):
(1) Redact documents.
(2) Prepare correspondence for signature by a government official.
(3) Communicate with a FOIA requester concerning the status of the FOIA request.
(4) Make recommended redactions.
(5) Enter relevant information into the DoD Component's FOIA tracking system.
FOIA records, including all correspondence and responsive records, must be maintained and disposed of in accordance with the National Archives and Records Administration, General Records Schedule 14 and DoD Component records schedules.
(a) Requesters seeking records about themselves contained only in a Privacy Act system of records will have their requests processed pursuant to the 5 U.S.C. 552a (also known as the “Privacy Act of 1974,” as amended, and referred to in this part as the “Privacy Act” implemented within the DoD by 32 CFR part 310).
(1) If the Privacy Act system of records is exempt from the provisions of section (d)(1) of the Privacy Act, and if the records, or any portion thereof, are exempt pursuant to FOIA, the requester will be so advised with the appropriate Privacy Act and FOIA exemption(s). Appeals must be processed pursuant to both the FOIA and the Privacy Act.
(2) If the Privacy Act system of records is not an exempt system, a FOIA exemption cannot be claimed on the information and all information will be released to the requester. However, privacy-related information about a third party within the requester's Privacy Act file may be withheld from the requester. Case law supports the DoD Components advising the requester that information was withheld that is “not about you.”
(b) Requesters seeking records about themselves not in a Privacy Act system of records and who cite or imply the Privacy Act will have their requests processed pursuant to the FOIA, since the Privacy Act does not apply to these records. Appeals must be processed pursuant to the FOIA.
(c) Requesters who seek both records about themselves in a Privacy Act system of records and records contained outside a Privacy Act system of records will have their requests processed pursuant to both the Privacy Act and the FOIA.
(d) Requesters will be advised in the final response letter which statutory authorities were used, inclusive of appeal rights.
(a) The DoD Components will interpret FOIA requests liberally when determining which records are responsive, and may release non-responsive information. Responsive multiple-subject documents may contain a significant amount of non-responsive information, the review of which may cause delays in responding to the FOIA requester. A determination that information is non-responsive should be made only when the DoD Component has a firm basis for concluding that the information is clearly beyond the scope of the requester's evident interest in the request. In cases where it appears highly likely that the non-responsive information may be exempt from release (e.g. the document is classified), these procedures apply.
(1) The DoD Component must contact the FOIA requester, explain that the responsive documents are multi-subject and contain a significant amount of non-responsive information, and seek the FOIA requester's concurrence to the deletion of the non-responsive information without a FOIA exemption. If the FOIA requester concurs, these redactions will be annotated on the provided document as non-responsive, and the concurrence will be reflected in the response letter.
(2) If the FOIA requester does not agree to deletion of non-responsive information without a FOIA exemption, the DoD Component will process all non-responsive and responsive information for release.
(b) The DoD Components will not apply the procedures in paragraph (a)(1) of this section to documents that have a relatively small percentage of non-responsive information. Additionally, non-responsive information will not be redacted on less than a page-by-page basis. That is, a non-responsive paragraph within an otherwise responsive page will not be redacted as non-responsive.
(a) The DoD Components will make reasonable efforts to:
(1) Provide the record in any form or format requested if the record is readily reproducible in that form or format in the Component's automated system.
(2) Provide records in a form that is reasonably usable.
(3) Maintain records in forms and formats that are reproducible.
(4) Use available office equipment to digitally reproduce hard copy records onto digital media.
(b) The readily reproducible criterion is not met if a DoD Component must outsource or expend significant resources to reproduce a record into the requested format. In responding to FOIA requests for records, the DoD Components will make reasonable efforts to search for records in electronic form or format if maintained in automated systems, except when such efforts would significantly interfere with the operation of the automated systems. Such determinations will be made on a case-by-case basis.
The DoD Annual FOIA Report to the Attorney General is mandated by section (e)(1) of the FOIA and completed on a fiscal-year basis. Because of the magnitude of the requested statistics and the need for accuracy, the DoD Components will track the annual report data as FOIA requests are processed. This facilitates accurate compilation of the statistics in completing the report. Each September, DFOIPO provides instructions to the DoD Components concerning Component input for the Annual FOIA Report. Using the current edition of DD Form 2564, “Annual Freedom of Information Act Report” (available at
DoD FOIA Public Liaisons will work to resolve disputes with FOIA requesters. When a FOIA requester seeks OGIS assistance in resolving any disputes, DoD FOIA Public Liaisons will work with OGIS to resolve the dispute. If during this informal dispute resolution process it is determined that the disputed issue is a candidate for mediation, this process will proceed as follows:
(a) OGIS will advise DFOIPO of the possibility of mediation.
(b) The applicable DoD Component will accept or reject the offer of mediation services in accordance with the component's Alternate Dispute Resolution (ADR) policy and issuances after consulting with DFOIPO.
(c) DFOIPO will contact the DoD ADR Liaison to identify a shared neutral for the mediation process.
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(c)
The DoD Components should consider enhancing their FOIA libraries with search engines and document categories to provide the public easier access.
Sections 552(g)(1) and (2) of the FOIA require agencies to make publicly available an index of all major information systems and a description of major information and record locator systems.
(a)
(b)
(a) Although (a)(1) records are not required to be made available in response to FOIA requests or in FOIA libraries, they must be made available when feasible. Examples of (a)(1) records are descriptions of an agency's central and field organization and, to the extent they affect the public, rules of procedures; descriptions of forms available; instructions as to the scope and contents of papers, reports, or examinations; and any amendments, revisions, or reports of the aforementioned records.
(b) In accordance with section (a)(1) of the FOIA, each DoD Component will disclose, through publication in the
(a) This section is not a thorough or exhaustive explanation of the applicability of the FOIA exemptions. The DoD Components may consult the Department of Justice Guide to the Freedom of Information Act (Available at
(b) The DoD Components will make discretionary disclosures of exempt information, if appropriate. A discretionary release is not appropriate for information determined to be exempt pursuant to Exemptions 1, 3, 4, 6, 7(C), and 7(F) of the FOIA as set out in § 286.25(a), (c), (d), (f), and (g)(1)(iii) and (vi). As for the other exemptions, which primarily protect governmental interests, a discretionary release is appropriate unless the DoD Component can reasonably identify a foreseeable harm that would result from release of the information. In making this determination, the DoD Components will consider the sensitivity of the document's content and its age.
(c) As described in this section, nine types of exempt information in records may be withheld, in whole or in part, from public disclosure unless otherwise prescribed by law. In general, a discretionary release of a record to one FOIA requester prevents the withholding of the same record pursuant to a FOIA exemption if the record is later requested by someone else. However, a FOIA exemption may be invoked to withhold information that is similar or related to information that has been the subject of a discretionary release.
(d) In applying exemptions, the identity of the FOIA requester and the purpose for the FOIA request are irrelevant; however, an exemption may not be invoked when the particular interest to be protected is the FOIA requester's interest.
(e) If a FOIA requester requests information that is about that FOIA requester, Exemption 6 as set out in § 286.25(f) should not be used to deny the information. However, if another FOIA requester requests the same information, it should be denied under Exemption 6.
(f) If admitting the fact of the existence or nonexistence of a record responsive to a FOIA request would itself reveal information protected from release by one of the nine exemptions, the DoD Components must neither confirm nor deny the existence or nonexistence of the requested record.
(1) This is commonly called a “Glomar” response (for detailed guidance on using this type of response, see Volume VII, Number I of the U.S. Department of Justice, “FOIA Update,” (available at:
(2) A “refusal to confirm or deny” response must be used consistently by the DoD Components, not only when a record exists, but also when a record does not exist. If not used consistently, the pattern of a “no record” response when a record does not exist, and a “refusal to confirm or deny” when a record does exist, risks disclosing exempt information.
This section describes the nine types of exempt information in records and procedures for applying them.
(a)
(1) Individual items of unclassified information, when compiled, reveal additional associations or relationships that meet the standard for classification pursuant to an existing Executive Order and DoD Manual 5200.01 Volume 1, and are not otherwise revealed in the individual items of information. This is known as the “mosaic” or “compilation” approach.
(2) The fact of the existence or nonexistence of a record would itself reveal classified information.
(b)
(c)
(1)
(i)
(ii)
(2)
(i) The information was provided to the Department of Defense by (or produced in cooperation with) a foreign government or international organization.
(ii) The information is withheld from public disclosure by the foreign government or international organization (the foreign government or international organization should make this representation in writing).
(iii) Any of these three conditions are met:
(A) The foreign government or international organization requests in writing that the information be withheld.
(B) The foreign government or international organization provides the information to the Department of Defense on the condition that it is not released to the public.
(C) DoD regulations specify the release of the requested information would have an adverse effect on the ability of the Department of Defense to obtain the same or similar information in the future.
(3)
(4)
(d)
(1) This exemption protects:
(i) Trade secrets; or
(ii) Information that is:
(A) Commercial or financial.
(B) Obtained from a person or entity outside of the Federal Government.
(C) Privileged or confidential.
(2) Commercial or financial information that is voluntarily submitted to the U.S. government, absent any exercised authority prescribing criteria for submission, may be categorically protected provided it is not customarily disclosed to the public by the submitter. Examples of exercised authorities prescribing criteria for submission are statutes, Executive orders, regulations, invitations for bids, requests for proposals, and contracts. Submission of information pursuant to these authorities should be analyzed in accordance with paragraph (d)(3) of this section and § 286.28(f)(1).
(3) Commercial or financial information that is not voluntarily provided to the government is considered “confidential” for Exemption 4 under this paragraph (d) if its disclosure is likely to:
(i) Impair the government's ability to obtain necessary information in the future (known as the “impairment prong”);
(ii) Harm an identifiable private or governmental interest; or
(iii) Cause substantial harm to the competitive position of the person providing the information.
(4) Examples of information that may be protected by Exemption 4 under this paragraph (d) include:
(i) Commercial or financial information received in connection with loans, bids, contracts, or proposals.
(ii) Statistical data and commercial or financial information concerning contract performance, income, profits, losses, and expenditures.
(iii) Personal statements given during inspections, investigations, or audits.
(iv) Financial data provided by private employers in connection with locality wage surveys that are used to fix and adjust pay schedules applicable to the prevailing wage rate of employees within the Department of Defense.
(v) Scientific and manufacturing processes or developments concerning technical or scientific data or other information submitted with an application for a research grant, or with a report while research is in progress.
(vi) Technical or scientific data developed by a contractor or subcontractor exclusively at private expense, or developed in part with federal funds and in part at private expense. The contractor or subcontractor must retain legitimate proprietary interests in such data in accordance with 10 U.S.C. 2320–2321 and 48 CFR 227.71 and 227.72. Technical data developed exclusively with federal funds may be withheld pursuant to Exemption 3 as set out in paragraph (c) of this section if it meets the criteria of 10 U.S.C. 130 and 48 CFR 227.71 and 227.72.
(vii) Information copyrighted pursuant to 17 U.S.C. 106 if release of copyrighted material otherwise meets the standards of Exemption 4 under this paragraph (d).
(5) When the DoD Components receive FOIA requests for information that could be protected by this exemption, they will notify the submitter of the information (see § 286.28(f)(1) for notification procedures). Submitters having any objections to disclosure must submit a detailed written statement that specifies all grounds for withholding any portion of the information pursuant to Exemption 4 under this paragraph (d). This statement must explain why the information is a trade secret or commercial or financial information that is privileged or confidential (e.g., how release would cause substantial competitive harm).
(e)
(1)
(2)
(i)
(
(
(B) A direction or order from a superior to a subordinate usually does not qualify as a deliberative process document if it constitutes policy guidance or a decision. However, correspondence from a superior to a subordinate may qualify if it discusses preliminary matters or requests information or advice relied upon in the decision-making process.
(C) An agency's final decision and post-decisional documents related to the decision cannot be withheld pursuant to the deliberative process privilege.
(D) Examples of deliberative process documents include:
(
(
(
(
(
(ii)
(iii)
(iv)
(v)
(vi)
(f)
(1) When considering applying this exemption, an agency must balance the public interest in disclosure and the individual's privacy interest. When there is no public interest in the requested information, the information can be withheld even if there is only a negligible privacy interest. The public interest to be considered when applying this exemption is whether the information sheds light on the operations or activities of the government. The FOIA requester has the burden to show that there is a public interest in disclosure.
(2) A privacy interest may exist in personal information even though the information has been disclosed at some place and time. This is known as the concept of practical obscurity. For example, information that was once publicly known (e.g. a court-martial trial 40 years ago) may no longer be in the public's eye and has faded from memory. In this case, the privacy interest in this type of situation may have increased over time, the public interest may have decreased over time, and therefore an agency should now withhold the once-public information, since the balance of interests has now shifted in favor of privacy.
(3) Examples of other files containing personal information similar to that in personnel and medical files include:
(i) Files compiled to evaluate or adjudicate the suitability of candidates for civilian employment or membership in the Military Services, and the eligibility of individuals (civilian, military, or contractor employees) for security clearances or for access to particularly sensitive classified information.
(ii) Files containing reports, records, and other material pertaining to personnel matters where administrative action, including disciplinary action, may be taken.
(4) Because of the national emergency declared by the President on September 14, 2001, the DoD Components are authorized to withhold lists of personally identifying information of DoD personnel, including active duty military personnel, civilian employees, contractors, members of the Reserve Components, and military dependents under Exemption 6 under this paragraph (f). Additionally, personally identifying information of DoD military and civilian personnel who are assigned to overseas, sensitive, or routinely deployable units is exempt from release pursuant to Exemption 3 as set out in paragraph (c) of this section, with 10 U.S.C. 130b as the withholding statute. Names and duty addresses (postal and email) published in telephone directories, organizational charts, rosters, and similar materials for personnel are considered “lists of personally identifying information,” and therefore qualify for withholding pursuant to Exemption 6 (and Exemption 3 as set out in paragraph (c) of this section if applicable).
(5) Home addresses, telephone numbers, and private email addresses are usually protected by this exemption. This includes home addresses and military quarters addresses not associated with the occupants' names.
(6) This exemption must not be used in an attempt to protect the privacy of a deceased person. It may be used to protect the privacy of the deceased person's surviving family members if disclosure would rekindle grief, anguish, pain, embarrassment, or result in a disruption of their peace of mind. In such situations, the DoD Components must balance the surviving family members' privacy interests and the public's interest to determine its releasability.
(7) This exemption also applies when the fact of the existence or nonexistence of a responsive record would itself reveal information containing a privacy interest, and the public interest in disclosure does not outweigh the privacy interest. In this situation, the DoD Components must neither confirm nor deny the existence or nonexistence of the record being requested (Glomar response) and Exemption 6 under this paragraph (f) must be cited.
(g)
(1)
(ii)
(iii)
(iv)
(v)
(vi)
(2)
(ii) The identity of firms or individuals being investigated for alleged irregularities involving contracting with the Department of Defense when no indictment has been obtained nor any civil action filed against them by the United States may be exempt from disclosure pursuant to Exemptions 7(A) and 7(C) as set out in paragraphs (g)(1)(i) and (iii) of this section.
(iii) Information obtained in confidence, expressed or implied, during a criminal investigation by a criminal law enforcement agency or a lawful national security intelligence investigation may be exempt from disclosure pursuant to Exemptions 7(A), 7(C), and 7(D) as set out in paragraphs (g)(1)(i), (iii), and (iv) of this section. National security intelligence investigations include background security investigations and those investigations conducted to obtain affirmative or counterintelligence information.
(iv) Emergency action plans, guidelines for response to terrorist attacks, analyses of security procedures, and other sensitive information that could prove deadly if obtained by those seeking to do harm to the public on a large scale may be exempt from disclosure pursuant to Exemptions 7(E) and 7(F) as set out in paragraphs (g)(1)(v) and (vi) of this section.
(h)
(i)
Section (c) of the FOIA contains three special protection provisions referred to as record exclusions. Of these exclusions, only two are applicable to the Department of Defense. These exclusions expressly authorize DoD law enforcement components to treat especially sensitive records under certain specified circumstances as not subject to the requirements of the FOIA. The DoD Component considering invoking one of these exclusions must first consult with legal counsel and with DFOIPO. In turn, DFOIPO will consult with the Office of Information Policy, Department of Justice. Because of the possibility of the existence of excluded records, DoD law enforcement components will respond to all FOIA requests when no records are located or when located records fall within an exclusion by stating that no records responsive to the FOIA were found. The instances where a FOIA request involves excluded records are:
(a) The records or information are described in section (b)(7)(A) of the FOIA and the following two conditions are met:
(1) The investigation or proceeding involves a possible violation of criminal law, and
(2) There is reason to believe that the subject of the investigation or proceeding is unaware of the pending investigation or proceeding and the disclosure of the existence of the records could reasonably be expected to interfere with law enforcement proceedings.
(b) Informant records maintained by a DoD law enforcement component under an informant's name or personal identifier are requested by a third party using the informant's name or personal identifier unless the informant's status as an informant has been officially confirmed.
(a)
(2) When personally identifying information in a record is requested by the subject of the record or the subject's representative, and the information is contained within a Privacy Act system of records, it is processed pursuant to the Privacy Act. If a Privacy Act exemption applies to the system of records, then the request is processed pursuant to the FOIA. The DoD Components must comply with 32 CFR part 310 to confirm the identity of the requester.
(b)
(2) The FOIA does not apply to the records of a DoD Component that is an element of the Intelligence Community as defined in 50 U.S.C. 401a(4) if the FOIA request is from a non-U.S. government entity or representative.
(3) Requests from members of Congress who are not seeking records on behalf of a congressional committee or subcommittee, or on behalf of the House of Representatives or the Senate sitting as a whole, should not be processed through FOIA channels; however, any release of information will be consistent with a release to any individual pursuant to the FOIA and its withholding exemptions. In these cases, the member will not be provided with FOIA appeal rights.
(4) Requests submitted by members of Congress on behalf of a congressional committee or subcommittee or on behalf of the House of Representatives or the Senate sitting as a whole that are received by the DoD Component's FOIA Requester Service Center are referred to the appropriate office that handles legislative inquiries for processing pursuant to DoD Instruction 5400.04 (available at
(5) If a member of Congress chooses to request DoD records pursuant to the FOIA, then the provisions of this part apply.
(6) Constituent requests for DoD records that are forwarded by members of Congress are processed as FOIA or Privacy Act requests, as applicable. The member forwarding the request will be advised of these circumstances.
(7) The Office of the Assistant Secretary of Defense for Legislative Affairs will be notified of every instance when a member of Congress objects that the DoD has not responded to a congressional request for information in the form it was originally requested, whether that request is made by an individual member or a congressional committee.
(8) Requests from officials of foreign governments that do not invoke the FOIA are referred to the appropriate office authorized to disclose official DoD information to foreign governments, and the requester is so notified.
(c)
(2) The DoD Components will inform officials receiving records in accordance with the provisions of this paragraph that those records are exempt from public release pursuant to the FOIA. The DoD Components also will advise officials of any special handling instructions. Classified information is subject to the provisions of Volumes 2 and 3 of DoD Manual 5200.01. Information contained in a Privacy Act system of records is subject to 32 CFR part 310.
(a)
(b)
(i) Unusual circumstances are:
(A) The responsive documents are located at a facility geographically separated from the FOIA Requester Service Center processing the FOIA request.
(B) The responsive documents are voluminous.
(C) One or more other agencies or DoD Components have a substantial interest in either the determination or the subject matter of the FOIA request, requiring the FOIA Requester Service Center processing the FOIA request to consult with the other agencies or DoD Components.
(ii) Exceptional circumstances are not affirmatively defined in the FOIA; however, a predictable agency workload of requests may be considered an exceptional circumstance if the DoD Component can demonstrate reasonable progress in reducing its backlog of pending requests.
(2) DoD Components receiving a misdirected FOIA request for records originating with another DoD Component will refer the FOIA request to the correct DoD Component and inform the receiving DoD Component of the date the FOIA request was originally received. Additionally, it will advise the FOIA requester of this transfer. This routing requirement only applies to those FOIA requests directed to a DoD Component that seek documents for which the DoD is responsible. If responsibility for the requested records rests with a non-DoD agency (e.g., Department of State), then the DoD Component need only advise the FOIA requester to submit the FOIA request to the proper agency. Misdirected FOIA requests will not be transferred to a law enforcement or Intelligence Community agency or DoD Component. Instead, the FOIA Requester Service Center receiving the request will contact the for guidance if there is reason to believe that the law enforcement or Intelligence Community agency or DoD Component would have responsive records.
(3) DoD Components will provide interim responses when they are unable to make a final determination within 20 working days and are encouraged to further communicate with the FOIA requester before the final response, if appropriate. These communications may include acknowledging receipt of the FOIA request and negotiating with the FOIA requester concerning the scope of the FOIA request, the response timeframe, and fee agreement. However, such communications do not constitute a final response determination. The initial interim response will include as a minimum:
(i) The date the 20-day statutory time period started for the FOIA request.
(ii) The tracking number for the FOIA request.
(iii) Contact information on how the FOIA requester can obtain information about the processing of the FOIA request.
(4) The statutory time period to make a release determination on a FOIA request usually begins on the date when the FOIA Requester Service Center responsible for the requested records receives the FOIA request. However, if the FOIA request was originally misdirected to another FOIA Requester Service Center within the same Component, the statutory time period begins on the day the appropriate DoD Component FOIA Requester Service Center receives the FOIA request, or 10 working days after it was received by the FOIA Requester Service Center
(5) The 20-working-day statutory period for responding to a FOIA request begins only when a perfected FOIA request (see § 286.3) is received. After this time, a DoD Component FOIA Requester Service Center may toll the statutory time period for only two reasons. In both situations, the FOIA requester's response to the agency's request ends the tolling period.
(i) The time period may be tolled one time when the FOIA Requester Service Center goes back to the FOIA requester and reasonably asks for additional information (not connected to the assessment of fees).
(ii) The time period may be tolled if it is necessary for the FOIA Requester Service Center to clarify issues regarding fee assessment with the FOIA requester. There is no limit given for the number of times an agency may go back to a FOIA requester to clarify fee assessment issues, which sometimes may need to be done in stages as the records are located and processed.
(c)
(d)
(2) FOIA Requester Service Centers will place received referrals and consultations in processing tracks based on the date that the FOIA request was received by the agency that received the initial FOIA request. Separate processing queues dedicated only to consultations may be established FOIA Requester Service Centers.
(e)
(1)
(i) It is the responsibility of the FOIA requester to demonstrate that the requested information is urgently needed.
(ii) The requester must include with the request a demonstration of a compelling need that the FOIA requester must certify as true and correct to the best of the FOIA requester's knowledge and belief.
(2)
(3)
(f)
(i) The submitter of the confidential commercial information must be notified promptly of a FOIA request for this information and afforded reasonable time to present any objections concerning release. If the submitter does not respond by the specified time, he or she will be considered to have no objection to the disclosure of the information. The submitter notice letter should include, as an attachment, a copy of the requested information. If notification of a voluminous number of submitters is required, such notification may be done by posting or publishing the notice in a place that would reasonably fulfill the notification requirement.
(ii) If the submitter objects to disclosure, he or she must submit a detailed written statement that specifies all grounds for withholding any portion of the information pursuant to Exemption 4 of the FOIA as set out in § 286.25(d). This statement must show why the information is a trade secret or commercial or financial information that is privileged or confidential (i.e., release would cause substantial competitive harm). Submitter objections are evaluated by the DoD Component and the final decision to disclose information claimed to be exempt pursuant to Exemption 4 will be made by an appropriate official.
(iii) When a substantial issue has been raised by the submitter, the DoD Component may seek additional information and afford the submitter a reasonable opportunity to present arguments on the legal and substantive issues involved prior to making an agency determination.
(iv) If a DoD Component decides to disclose commercial business information over the objection of a submitter, the Component must provide the submitter written notice, which includes:
(A) A statement of the reasons why each of the submitter's disclosure objections were not sustained;
(B) A copy of the information to be disclosed;
(C) A specified disclosure date, which must be a reasonable time after the notice.
(v) The FOIA requester is notified when:
(A) The DoD Component notifies the submitter of the FOIA request and asks for comments.
(B) The DoD Component advises the submitter that the requested information will be released over the submitter's objections.
(vi) The submitter is notified immediately if the FOIA requester brings suit seeking to compel disclosure of the submitter's information.
(vii) If the submitted information is a proposal provided in response to a solicitation for a competitive proposal, and the proposal is in DoD possession and control and meets the requirements of 10 U.S.C. 2305(g), the proposal will not be disclosed, and no submitter notification or analysis are required. The proposal must be withheld from public disclosure pursuant to 10 U.S.C. 2305(g) and Exemption 3 of the FOIA as set out in § 286.25(c). This statute does not apply to bids, unsolicited proposals, or any proposal that is set forth or incorporated by reference in a contract between the DoD Component and the submitter of the proposal. In these situations, paragraphs (f)(1)(i) through (vi) of this section are followed except for sealed bids that are opened and read to the public.
(viii) If the record or information was submitted on a strictly voluntary basis, absent any exercised authority that prescribes criteria for submission, and the record or information would customarily not be released to the public, the submitter need not be notified. The DoD Component withholds this information pursuant to Exemption 4 of the FOIA as set out in § 286.25(d).
(ix) In anticipation of future FOIA requests, the DoD Components may establish procedures whereby submitters are asked to provide their written comments on the releasability of the submitted information at the time the information is submitted. However, this procedure does not alleviate the DoD Components of the responsibility of evaluating the submitter's response before the information is released or denied pursuant to the FOIA.
(2)
(i) DoD Components should coordinate directly with their foreign government counterparts when processing foreign government information responsive to a FOIA request. Coordination also may be made through the Department of State or the specific foreign embassy.
(ii) The Office of Freedom of Information (OFOI), which is also the OSD/Joint Staff FOIA Requester Service Center, has a coordination channel with the United Kingdom Ministry of Defence (UK MOD). (See the Appendix A to this part for the OSD/Joint Staff FOIA Requester Service Center address.) When a DoD Component locates UK MOD-originated information responsive to a FOIA request and it is unable to coordinate with a UK MOD counterpart it may forward the information to OFOI for consultation, which will coordinate with the UK MOD for release. The UK MOD release recommendation will be forwarded by OFOI back to the DoD Component for direct response to the FOIA requester.
(iii) When the DoD Components locate NORAD documents in their files responsive to a FOIA request, they will refer the documents to the United States Northern Command FOIA Requester Service Center, which will consult with NORAD.
(iv) Coordination with most international organizations may be made directly with those organizations.
(v) When a foreign government or international organization asks the Department of Defense to withhold classified information originated by that foreign government or international organization, it is withheld pursuant to Exemption 1 of the FOIA as set out in § 286.25(a).
(vi) If the DoD Component is asked to withhold sensitive unclassified information originated by a multinational organization or foreign government, then the DoD Component withholds it pursuant to Exemption 3 of the FOIA as set out in § 286.25(c) and references the relevant statute as 10 U.S.C. 130c. To qualify for withholding, the information must meet these limitations.
(A) If the information came into possession or control of the Department of Defense prior to October 30, 2000, and more than 25 years prior to receipt of the FOIA request, the DoD Component notifies the foreign government or international organization of the request for disclosure. The information then qualifies for withholding only if the foreign government or international organization requests in writing that the information not be disclosed for a specific period of time. This date can be extended with a later request by the foreign government or international organization.
(B) If the information came into possession or control of the Department of Defense on or after October 30, 2000, the information cannot be withheld after the release date specified by the foreign government or international organization. When one or more foreign governments or international organizations provided the information, the latest date specified by any of them will be used. If no release date was specified, and the information came into the possession of the DoD Component more than 10 years prior to receipt of the FOIA request, the procedures set forth in paragraph (f)(2)(vi)(A) of this section apply.
(g)
(h)
(i)
(j)
(2)
(i) Creating computer programs or purchasing additional hardware to extract email that has been archived for emergency retrieval usually are not considered business as usual if extensive monetary or personnel resources are needed to complete the project.
(ii) Creating a computer program that produces specific requested fields or records contained within a well-defined database structure usually is considered business as usual. The time to create this program is considered as programmer or operator search time for fee assessment purposes and the FOIA requester may be assessed fees in accordance with subpart F of this part. However, creating a computer program to merge files with disparate data formats and extract specific elements from the resultant file is not considered business as usual, but a special service.
(3)
(k)
(1) When DoD Components have reason to believe that information responsive to a FOIA request is CISI or MFOQA system data file information, they will submit a package to the DA&M, through DFOIPO, recommending exemption of the requested information. The package will contain, at a minimum:
(i) A copy of the initial FOIA request.
(ii) A copy of the documents in electronic format, with only the CISI or MFOQA system data file information marked. Do not indicate information that will be denied under any other exemption.
(iii) Details on how the information recommended for exemption meets the threshold of qualifying as CISI or as MFOQA system data file.
(iv) A thorough explanation of the harm that could reasonably be expected to result if the information is released. This explanation must be as specific as possible to allow the DA&M to make a fully informed determination; however, it should contain only publicly releasable information since the DA&M's determination, accompanied by a statement of the basis for determination, will be made available on the DFOIPO Web site. An explanation could be an attachment from a subject matter expert;
(v) Any documentation of the public interest in the release of the information. This could be provided to the DoD Component by the FOIA requester or other interested parties supporting the FOIA request.
(2) Upon receipt of the package, DFOIPO will:
(i) Review it to determine whether the DoD Component's recommendations meet the requirements of the FOIA and the applicable Exemption 3 of the FOIA as set out in § 286.25(c) statute(s).
(ii) Contact the FOIA requester advising him or her that the Component is asking the DA&M to exempt information responsive to his or her FOIA request. The FOIA requester will be provided with an opportunity to provide a statement to the DA&M detailing the public interest in the release of the information. The FOIA requester also will be advised that this statement will be made available to the public (without personally identifying information such as a home mailing address) as part of the requirement to make publicly available the statement of the basis for the determination.
(iii) Prepare all documentation for review by selected OSD Components and the Office of the General Counsel of the Department of Defense (OGC, DoD). The package will be returned to the Component for further processing and resubmission should any deficiencies be identified.
(iv) Upon complete review, forward the package to the DA&M for determination.
(3) After the DA&M determination is made, DFOIPO will provide it to the DoD Component and post it, along with a statement of the basis for determination, on its Web site. The DoD Component will then deny the information determined to be exempt by the DA&M by providing a copy of the determination to the FOIA requester, advising the FOIA requester of the DoD Component's IDA (the DA&M should not be indicated as the IDA), and advising the FOIA requester of the right to appeal to the DoD Component's appellate authority.
(a)
(2) IDAs and review officials will not use the existence of classification markings or distribution limiting statements, such as “For Official Use Only” markings, as justification to withhold information. Information so marked must be reviewed after the receipt of a FOIA request to determine if a FOIA exemption allows the withholding of the information.
(3) To deny information in a requested record that is in the possession and control of the DoD Component, the IDA must determine that one or more of the FOIA exemptions justify withholding all or part of the record.
(4) The IDA should consult with PAOs to become familiar with subject matter that is considered to be newsworthy, and advise PAOs of FOIA requests from news media representatives. The IDA also should inform PAOs in advance when they intend to withhold or partially withhold a record if it appears the withholding action may be a media issue.
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(i) Misdirected request.
(ii)
(iii)
(iv)
(c)
(1) When a decision is made to release a record, a copy should be made available promptly to the FOIA requester.
(2) When a FOIA request for a record is denied in whole or in part, the official designated to respond will provide the FOIA requester in writing an explanation of the substantive basis for denial, including specific citation of the statutory exemption applied (e.g., section (b)(1) of the FOIA), a brief explanation of the exemption, why it is being used to withhold information, and the address where the appeal should be mailed. The basis for the determination will be in sufficient detail to permit the FOIA requester to make a decision concerning an appeal. If the IDA does not sign the response letter, the name and duty title of the IDA must be specified in the letter. The official also will advise the FOIA requester that any appeal to the adverse determination must be postmarked no later than 30 calendar days after the date of the initial denial letter.
(3) The DoD Component will make a reasonable effort to estimate the volume of the records denied in their entirety and provide this estimate to the FOIA requester, unless providing such an estimate would harm an interest protected by a FOIA exemption. This estimate should be in number of pages or in some other reasonable form of estimation.
(4) When a denial is based on a statute qualifying as a FOIA Exemption 3 of the FOIA as set out in § 286.25(c) statute, the DoD Components must state the particular statute relied upon to deny the information along with a short description of the statute.
(5) When a FOIA requester is assessed fees for processing a FOIA request, the FOIA requester's fee category will be specified in the final response letter. The DoD Components also will provide the FOIA requester with a complete cost breakdown (e.g., 15 pages of office reproduction at $0.15 per page; 3 hours of professional level search at $56.00 per hour) in the response letter.
(d)
(1) Although portions of some records may be denied, the remaining reasonably segregable non-exempt portions must be released to the FOIA requester. The DoD Components are encouraged to use onscreen electronic redaction capabilities when redacting documents. If a DoD Component does not have this capability, it must not use black magic markers for document redaction because their use does not adequately block the exempt information. Acceptable manual methods of redaction include black or white tape that completely blocks out the information below it or manually cutting the exempt information out of a copy of the responsive document. The last step when using a manual redaction method is making a photocopy of the final product to verify that all exempt information is deleted.
(2) The amount of deleted information must be indicated on the released portion of paper records, or electronic copies of paper records, by use of brackets or darkened areas. In no case will the deleted areas be left “white” without the use of brackets to show the bounds of deleted information. In the case of electronic deletion or deletion in audiovisual or microfiche records, if technically feasible, the amount of redacted information will be indicated at the place in the record such deletion was made.
(3) When a DoD Component withholds information within a partially releasable document, the exemption pursuant to which a withholding is made must be indicated on the document. This marking of the exemption will be located within the redacted portion or next to it. Figures 1, 2, and 3 of this section demonstrate several possible approaches to marking documents to specify the exemption being asserted.
(4) An exception to this requirement to indicate the amount and location of redacted information pertains to those instances when revealing the amount and location of the redacted information would harm an interest protected by the asserted exemption(s). This exception includes the situation in which revealing the exemption itself on the face of the released-in-part document would harm an interest protected by the exemption. In such rare circumstances, the DoD Components need not indicate the exemption used on the released document.
(e)
Referral and consultation procedures are based upon the concept that the originators of information within a record must make release determinations on that information.
(a)
(2) If the DoD Component locating the record has an equity interest in the document, it will provide an opinion on its releasability with the referral. The name and duty title of the IDA responsible for the decision to withhold the information will be provided.
(3) Referrals of records will not be made to non-federal agency entities (e.g., a city government). In these cases, the non-federal agency entity may be consulted for a release recommendation (e.g., a foreign government or international organization (see paragraph § 286.28 (e)(2)); however, response to the FOIA requester remains the responsibility of the DoD Component locating the record.
(4) The standard referral procedure is not appropriate where disclosure of the identity of the DoD Component or agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy and national security interests. For example, if a non-law enforcement DoD Component responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if a DoD Component locates material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In all instances when records originating with a law enforcement or Intelligence Community agency are located, in order to avoid harm to an interest protected by an applicable exemption, the DoD Component locating the records should contact the originating DoD component or agency to seek its views on the disclosability of the records. The originating DoD Component or agency will then direct the DoD Component locating the records on the procedures that should be followed. These procedures may involve referring the records or conveying the release determination of the originating entity without attribution.
(5) DoD Components will inform FOIA requesters of all referrals except in the instances described in § 286.30(a)(3). DoD Components receiving referrals will advise FOIA requesters of the date of receipt, the tracking number for the FOIA request, and contact information on how the FOIA requester can obtain information about the processing of the FOIA request.
(6) An exception to this process is when a DoD Component locates responsive records that it created solely for the use of another DoD Component or agency, and it has no objections to their release. The originating DoD Component will refer the record to the other DoD Component or agency for a release determination and direct response to the FOIA requester, who will be notified of the referral. An common example of this exception is contract audits created by the Defense Contract Audit Agency for another DoD Component.
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(2) Final determinations on appeals should be made within 20 working days after receipt. When the DoD Component has a significant number of appeals preventing a response determination within 20 working days, the appeals must be processed in a multi-track system based at a minimum on the three processing tracks established for initial FOIA requests according to § 286.29.
(e)
(f)
(2) Final denial of an appeal must be made in writing and signed by the appellate authority. The response must include:
(i) The basis for the denial, to include an explanation of the applicable statutory exemption or exemptions invoked pursuant to the FOIA, and of
(ii) A determination that the denied information meets the cited criteria and rationale of the governing Executive order if the final refusal is based in whole or in part on Exemption 1 of the FOIA as set out in § 286.25(a).
(iii) A statement that the information being denied does not contain meaningful portions that are reasonably segregable in the case of appeals for total denial of records.
(iv) The FOIA requester's right to judicial review.
(3) The appeal is closed with the final appellate response.
(g)
(2) Tentative decisions to deny records that raise new or significant legal issues of potential significance to other government agencies must be discussed with OGC, DoD.
(a)
(1) If a DoD Component is served a complaint for a FOIA request that is still open, the DoD Component will administratively close the FOIA request.
(2) FOIA officers should confer with legal counsel or Department of Justice attorneys on whether administrative processing should continue and whether it is appropriate to communicate directly with the FOIA requester or requester's counsel.
(b)
(c)
(a)
(2) The fees are not meant to substitute for any other charges established by the Department of Defense, such as Volume 11a of DoD 7000.14–R (available at
(3) This section does not supersede fees chargeable pursuant to a statute specifically providing for setting the level of fees for particular types of records, such as the Government Printing Office, the National Technical Information Service, or the Defense Logistics Information Service. The DoD Components will inform FOIA requesters of the steps necessary to obtain records from those sources if they are requested.
(b)
(2) Fees are assessed based on the category determined to be appropriate for the FOIA requester's status. The fee status of a FOIA requester who is an attorney representing a client is determined by the fee status of the attorney's client. If the fee status of the client is not clear, then the DoD Components should ask the FOIA requester for clarification. The attorney does not need to reveal the identity of the client, only the client's fee status. If the attorney does not provide enough information to determine the fee status, then the DoD Component may assign commercial fee status to the FOIA requester.
(3) FOIA requests should contain a willingness to pay fees appropriate to that category. The DoD Components will not require a willingness to pay fees if it is determined before processing, based on what is requested and the FOIA requester's fee category, that fees will not be assessed. In those instances where a FOIA requester asks for a fee waiver, in order to facilitate the processing of the request FOIA requesters are encouraged to provide a willingness to pay fees in the event the fee waiver is denied. This commitment does not impact the FOIA requester's right to file an appeal concerning the fee waiver denial. The categories are:
(i)
(A) In determining whether a FOIA requester properly belongs in this category, the DoD Components must determine how a FOIA requester will use the documents requested. When a DoD Component has reasonable cause to doubt the use of the records sought, or when that use is not clear from the FOIA request itself, the Component should seek additional clarification from the FOIA requester before assigning the FOIA request to a specific category.
(B) Commercial requesters are not entitled to a waiver or reduction of fees based on an assertion that disclosure would be in the public interest. However, because use is the exclusive determining criterion, it is possible that a commercial enterprise may make a FOIA request that is not for commercial use. It is also possible that a non-profit organization or a representative of the news media could make a FOIA request that is for commercial use (e.g., a magazine publisher asking for duty addresses of DoD personnel to solicit them to buy subscriptions to the magazine). Such situations must be addressed on a case-by-case basis.
(ii)
(A)
(B)
(C)
(
(
(
(
(iii)
(4) The fee provisions of 32 CFR part 310 apply when FOIA requesters ask for information about themselves pursuant to the Privacy Act. In these cases, the only assessable processing fees are for duplication.
(5) In order to be as responsive as possible to FOIA requests while minimizing unwarranted costs to the taxpayer, the DoD Components will analyze each FOIA request to determine the category of the FOIA requester. If the DoD Component determination regarding the category of the FOIA requester is different than that claimed, the Component must:
(i) Notify the FOIA requester to provide additional justification to warrant the category claimed, and that a search for responsive records will not begin until an agreement has been attained relative to the category of the FOIA requester and the FOIA requester indicates a willingness to pay assessable costs appropriate for the category determined by the DoD Component. The statutory time limit will be tolled with this notification and will not continue until the DoD Component receives a response from the FOIA requester.
(ii) Absent further category justification from the FOIA requester and within a reasonable period of time, render a final category determination and notify the FOIA requester of such determination, to include administrative appeal rights of the determination.
(6) The DoD Components must be prepared to provide an estimate of assessable fees if desired by the FOIA requester. While it is recognized that search situations will vary among the DoD Components and that an estimate is often difficult to obtain prior to an actual search, FOIA requesters who desire estimates are entitled to such before committing to a willingness to pay.
(i) If determining a fee estimate involves searching for responsive documents, the time to conduct the search is considered “search” time for fee assessment purposes.
(ii) Should the DoD Components' actual costs exceed the amount of the estimate or the amount agreed to by the FOIA requester, the amount in excess of the estimate or the requester's agreed amount will not be charged without the FOIA requester's agreement.
(7) The DoD Components usually will not require advance payment of any fee (i.e., payment before work is started or continued on a FOIA request). The DoD Components may require advance payment if:
(i) The FOIA requester has a history of failing to pay fees in a timely fashion (within 30 days of the billing date) on a previous FOIA request; or
(ii) The DoD Component determines that the fee will exceed $250.
(8) When the DoD Component estimates that allowable charges for a FOIA request may exceed $250, the DoD Component will notify the FOIA requester of the likely cost and obtain a satisfactory assurance of full payment. The DoD Component may ask for an advance payment of an amount up to the full estimated charges for FOIA requesters with no history of payment or a history of late payments.
(9) When a FOIA requester has an outstanding overdue debt with any DoD Component or federal agency, the DoD Component may administratively close all the FOIA requester's requests after giving notice to the FOIA requester. The FOIA requester will be advised that any administratively closed requests may be resubmitted once the full amount owed, plus any applicable interest, is paid. Interest will be at the rate prescribed in 31 U.S.C. 3717 (also known and referred to in this part as the “Debt Collection Act of 1982”), and confirmed with the applicable finance and accounting offices.
(10) When the DoD Components dispute a requester's fee category assertion, the administrative time limits of the FOIA will begin only after the DoD Component has received a confirmation of willingness to pay fees and satisfaction as to category determination, or fee payments (if appropriate).
(11) The DoD Components may charge for time spent searching for records, even if that search fails to locate records responsive to the FOIA request. The DoD Components may also charge search and review time (in the case of commercial requesters) even if the records located are determined to be exempt from disclosure.
(12) If the DoD Component estimates that processing charges are likely to exceed what the FOIA requester is willing to pay, it will notify the FOIA requester of the estimate of fees broken down by search, review, and duplication. This notice will offer the FOIA requester the opportunity to confer with DoD Component personnel with the object of reformulating the FOIA request to meet his or her needs at a lower cost. The FOIA request is not perfected until a confirmation of willingness to pay all assessable fees is received.
(13) The DoD Components may establish a minimum willingness to pay fee estimates for commercial requesters seeking contract-related documents. Such estimates will be the average of the previous three fiscal years of actual fees charged to commercial requesters seeking contract-related documents for the DoD Component, and will be revised annually. The DoD Components will notify the public of the minimum fee estimate by publishing it within its FOIA issuances or on DoD Component FOIA Requester Service Center Internet Web sites. FOIA requests from commercial requesters seeking contract-related documents not containing a willingness to pay fee agreement equal to or greater than the minimum estimated amount will not be considered perfected for fee-related reasons.
(14) DoD FOIA Components will track and assess, if appropriate, hourly processing fees for human activity involving search, review, and other activity, in accordance with the rates in Table 1 of this section.
(15) Search fee assessments would include manual and electronic searches. Electronic searches, which include any time spent on a computer to conduct a search (including electronic files of documents and database files) would include:
(i) Time spent by a person to create a query or program to conduct an electronic search, including the extraction of specific fields out of a database.
(ii) Time spent by a person to search servers or hard drives using a keyword or other search method.
(iii) Time spent by a person to review documents located during an electronic search to determine if they are responsive.
(16) A DoD Component will not pass on to FOIA requesters any costs of purchasing or maintaining information technology computers if these computers are used in the normal operation of the DoD Component.
(17) The DoD assessable fee for document reproduction is $0.15 per page. This fee applies only to paper copies of documents provided to FOIA requesters. DoD Components will not assess a document reproduction fee when providing electronic copies of responsive documents to FOIA requesters unless the creation of the electronic copies requires unique security procedures incurring considerable operator time, costing more than printing paper copies. In these cases, assessable fees are computed by taking the operator time to create the product times the rate in Table 1 of this section.
(18) When the duplication of responsive documents involves duplicating audiovisual materials (e.g., creating a digital video disk (DVD)), assessable fees are computed by taking the operator time to duplicate the product times the rate in Table 1 of this section. Audiovisual materials provided to a FOIA requester need not be in reproducible format or quality. Since the cost of audiovisual materials such as DVDs are small, the DoD Components will not charge for the use of this media, except as provided in Table 2 of this section for technical data.
(c)
(2) When the DoD Components fails to comply with the 20-day statutory time limit and no unusual or exceptional circumstances apply, they may not assess search and duplication fees for “all other” requesters or duplications fees for FOIA requests from educational, noncommercial scientific institutions or representatives of the news media. (See § 286.3 for an explanation of unusual and exceptional circumstances.) When the DoD Components determine a FOIA requester must still pay all assessable fees because unusual or exceptional
(3) The DoD Components will not charge more than one FOIA requester for the search and review of the same documents. When two or more requesters ask for the same documents, only the FOIA requester whose FOIA request was first received by the DoD Component can be assessed for search or review fees. All FOIA requesters can be assessed duplication fees. If the first FOIA requester is not assessed search or review fees due to fee status, those fees cannot be passed on to any later FOIA requesters.
(4) FOIA requesters receiving the first 2 hours of search and the first 100 pages of duplication without charge are entitled to this only once per FOIA request.
(5) When duplication involves the creation of audiovisual material or considerable operator time in the creation of CDs, in the case of non-commercial requesters the monetary equivalent of the first 100 free pages is subtracted from the actual computed cost of duplication (see Table 2 of this section). For example, if the total actual duplication cost of a DVD is $75, the FOIA requester is charged only the amount above $15 (the first 100 free pages times the paper duplication rate of $0.15 in Table 2). In this case, that would be $60.
(d)
(i) Disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government. The factors identified in paragraphs (d)(1)(i)(A) through (D) of this section must be met to some degree to warrant waiving or reducing assessable fees in the public interest.
(A)
(
(
(B)
(
(
(C)
(D)
(ii) Disclosure of the information is not primarily in the commercial interest of the FOIA requester. Determining commercial interest requires consideration of two basic issues:
(A)
(B)
(
(
(
(2) The factors and examples used in paragraph (d)(1) of this section are not all inclusive. Each fee decision must be considered on a case-by-case basis and upon the merits of the information provided in each FOIA request. When there is an element of doubt as to whether to charge or waive the fee, the DoD Components should rule in favor of the FOIA requester.
(3) The DoD Components will consider these additional circumstances where waiver or reduction of fees are most likely to be warranted:
(i) A record is voluntarily created to prevent an otherwise burdensome effort to provide voluminous amounts of available records, including additional information not requested.
(ii) A previous denial of records is reversed in total, or in part, and the assessable costs are not substantial (e.g., $25 to $50).
(e)
(1) One element to be considered in determining whether this belief would be reasonable is the time period when the FOIA requests are made. For example, it would be reasonable to presume that multiple FOIA requests of this type made within a 30-day period are made to avoid fees. For FOIA requests made over a longer period, however, such a presumption becomes harder to sustain and the DoD Components must have a solid basis for determining that aggregation is warranted in such cases.
(2) Before aggregating FOIA requests from more than one FOIA requester, the DoD Components must have a basis to conclude that the FOIA requesters are acting in concert and are acting specifically to avoid payment of fees.
(3) The DoD Components will not aggregate multiple FOIA requests on unrelated subjects from one FOIA requester.
(f)
(g)
(1) The DoD Components will track processing costs for each FOIA request on DD Form 2086, “Record of Freedom of Information (FOI) Processing Cost,” or by using DD Form 2086–2, “Freedom of Information (FOI) Consultation and Request Summary” (available at
(2) DD Form 2086–2 is designed to capture additional data to facilitate the production of the Annual FOIA Report. It is best suited for FOIA Requester Service Centers without an automated accounting system.
(h)
(i)
(j)
(k)
(1) Certifying that records are true copies.
(2) Sending records by special methods such as express mail.
(3) Creating a computer program to merge files with disparate data formats and extract specific elements from the resultant file.
(a) Technical data may be graphic or pictorial delineations in media, such as drawings or photographs, text in specification or related performance or design-type documents, or computer printouts. Examples of technical data include research and engineering data, engineering drawings, and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identification, and related information and computer software documentation.
(b) Unless technical data qualifies for withholding from public release pursuant to one or more of the FOIA exemptions, it will be released to the FOIA requester after all reasonable costs are paid as authorized by 10 U.S.C. 2328.
(1) All reasonable costs are the full costs to the government for rendering the service, as reflected on DD Form 2086–1, “Record of Freedom of Information (FOI) Processing Cost for Technical Data” (available at
(2) The DoD Components will retain the amounts received by such a release, and will merge it with and make it available for the same purpose and the same time period as the appropriation from which the costs were incurred in complying with the FOIA request.
(3) For personnel rates, see Table 1 of § 286.33.
(4) For document production fees, see Table 2 of § 286.33.
(c) The DoD Components will waive the payment of costs required in paragraph (b) of this section that are greater than the costs that would be required for release of this same information consistent with paragraph (b) of this section if:
(1) The FOIA request is made by a U.S. citizen or a U.S. corporation, and such citizen or corporation certifies that the technical data requested is required to enable it to submit an offer, or to determine whether it is capable of submitting an offer, to provide the product to which the technical data relates to the United States or a U.S. contractor. However, the DoD Components may require the citizen or corporation to pay a deposit in an amount equal to not more than the cost of complying with the FOIA request, which will be refunded upon submission of an offer by the citizen or corporation;
(2) The release of technical data is requested in order to comply with the terms of an international agreement; or
(3) The DoD Component determines, in accordance with paragraph (c) of this section that such a waiver is in the interest of the United States.
Research data that is obtained by the DoD Component from a grant recipient solely in response to a FOIA request may charge the FOIA requester a reasonable fee equaling the full incremental cost of obtaining the research data. The fee should reflect costs incurred by the DoD Component, grant recipient, and sub-recipients. This fee is in addition to any fees the DoD Component may assess pursuant to the FOIA.
The purpose of the DoD FOIA educational and training programs is to promote a positive attitude among DoD personnel and raise the level of understanding and appreciation of the DoD FOIA Program. Fulfilling this purpose will improve customer service to members of the public and improve the public trust in the Department of Defense.
Each DoD Component establishes educational and training programs on the provisions and requirements of this part. These programs will develop a general understanding and appreciation of the DoD FOIA Program in all DoD Component personnel. The training programs will provide personnel involved in the day-to-day processing of FOIA requests with a thorough understanding of the procedures outlined in this part.
Each DoD Component designs its FOIA educational and training programs to fit the particular requirements of its personnel, dependent upon their degree of involvement in implementing this part. These programs will reach for two target audiences: those personnel who are involved in the day-to-day processing of FOIA requests, and those staff personnel who provide search or review staff-support to the DoD Component FOIA process. The programs will:
(a) Familiarize personnel with the requirements of the FOIA and its implementation by this part and respective DoD Component issuances.
(b) Instruct personnel who act in FOIA matters on the provisions of this part; advise them of the legal hazards involved and the strict prohibition against arbitrary and capricious withholding of information.
(c) Provide procedural and legal guidance and instruction to initial denial and appellate authorities concerning the discharge of their responsibilities.
(d) Emphasize that the processing of FOIA requests must be citizen-centered and results-oriented.
(e) Advise personnel of the penalties for noncompliance with the FOIA.
To ensure uniformity of interpretation, the DoD Components will coordinate their educational and training programs with DFOIPO.
(a)
(2) If uncertain as to the ownership of the record, FOIA Requesters Service Centers should contact the OSD/JS FOIA Requester Service Center at 1–866–574–4970, to seek assistance on its ownership. If it still is undetermined, then the FOIA Requester Service Center receiving the request will advise the FOIA requester that they do not have cognizance over the record, and will administratively close the FOIA request.
(b)
(1)
(ii) The OSD/Joint Staff FOIA Requester Service Center processes FOIA requests for offices, agencies, and activities not listed in this Appendix. Table 1 of this appendix lists other organizations, activities, or offices serviced by the OSD/Joint Staff FOIA Requester Service Center.
(2)
(3)
(i) For Secretary of the Navy and Chief of Naval Operations, or if there is uncertainty as to which Navy activity may have the records, send FOIA requests to: Department of the Navy, Chief of Naval Operations (DNS–36), 2000 Navy Pentagon, Washington, DC 20350–2000.
(ii) For Headquarters, USMC Department/Division records, or if there is uncertainty as to which USMC unit may have the records, send FOIA requests to: Commandant of the Marine Corps, 3000 Marine Corps Pentagon, Washington, DC 20380–0001.
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
U.S. Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is approving the portions of a State implementation plan (SIP) revision submitted by the State of California on February 13, 2013 that relate to attainment of the 1-hour and 1997 8-hour ozone national ambient air quality standards in the Los Angeles-South Coast area. Specifically, the EPA is approving the portions of the South Coast Air Quality Management District's
This rule is effective on October 3, 2014.
You may inspect the supporting information for this action, identified by docket number EPA–R09–OAR–2014–0185, by one of the following methods:
1. Federal eRulemaking portal,
2. Visit our regional office at, U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105–3901.
Wienke Tax, Air Planning Office (AIR–2), U.S. Environmental Protection Agency, Region IX, (415) 947–4192,
Throughout this document, “we,” “us” and “our” refer to the EPA.
On February 13, 2013, the California Air Resources Board (CARB) submitted the
In addition to the 2012 AQMP, CARB's February 13, 2013 SIP revision submittal includes the relevant CARB and SCAQMD board resolutions and other supporting material. The 2012 AQMP updates the approved 1997 8-hour ozone control strategy,
• CARB's resolution of adoption (Resolution 13–3);
• SCAQMD's resolution of adoption (Resolution 12–19);
• The ozone-related portions of chapter 4 of the 2012 AQMP (“Control Strategy and Implementation”);
• Appendices IV–A (“District's Stationary Source Control Measures”),
• Appendix VII (“South Coast 2012 1-hour ozone attainment demonstration”), which includes 4 attachments, one of which includes a demonstration of reasonably available control measures (RACM).
In addition, EPA requested clarification of the commitments made by SCAQMD and CARB in connection with the 1-hour ozone attainment demonstration in the 2012 AQMP, and the two agencies responded with the following letters clarifying their respective commitments:
• Letter from Barry R. Wallerstein, D.Env, SCAQMD Executive Officer, to Jared Blumenfeld, Regional Administrator, EPA Region IX, May 1, 2014 (“Wallerstein Letter”); and
• Letter from Richard W. Corey, Executive Officer, CARB, to Jared Blumenfeld, Regional Administrator, EPA Region IX, May 2, 2014 (“Corey Letter”).
For simplicity, in referring to the elements on which we are acting, we are using the term “2012 AQMP” even though we recognize that the 2012 AQMP includes other elements in addition to those covered in this final action.
On May 23, 2014 (79 FR 29712), the EPA proposed approval of the updated control strategy for the 1997 8-hour ozone standard and the 1-hour ozone attainment demonstration, including the related emissions inventories, control strategy, and photochemical modeling. In proposing approval of the 2012 AQMP, we agreed with the State that an attainment date of December 31, 2022 for the 1-hour ozone standard in the South Coast is appropriate in light of the severity of nonattainment and the extent to which emissions sources have already been controlled in the South Coast. References herein to “the proposed rule” or “our proposed rule” refer to our proposal published on May 23, 2014.
In connection with future baseline emissions in the South Coast as presented in the 2012 AQMP, we noted in our proposed rule that the baseline reflects regulations adopted by SCAQMD as of June 2012 and regulations adopted by CARB by August 2011.
The control strategy for the 1-hour ozone standard includes adopted measures (i.e., baseline measures that are reflected in the future baseline emissions inventories), committal measures, and new technology measures.
With respect to the ozone control strategy, we proposed that the 2012 AQMP provides for implementation of all RACM and that the committal measures and new technology measures relied upon to achieve necessary emissions reductions were approvable. Specifically, we proposed to approve the new commitments by the SCAQMD to develop, adopt, submit and implement 15 new measures as expeditiously as possible to achieve, in the aggregate, emissions reductions of 6 tons per day (tpd) of VOC and 11 tpd of NO
We noted in our proposed rule that CARB did not make a new aggregate emissions reduction commitment for the purposes of demonstrating attainment of the 1-hour ozone standard by December 31, 2022 in the South Coast, but instead relies on the EPA-approved aggregate emissions reduction commitment under the 2007 AQMP, which will provide 7 tpd of VOC and 24 tpd of NO
We also proposed to approve, as authorized under section 182(e)(5) of the CAA, provisions that anticipate development of new control techniques or improvement of existing control technologies. The 2012 AQMP relies on such provisions to achieve emissions reductions of 17 tpd of VOC and 150 tpd of NO
A more detailed discussion of the ozone NAAQS, ozone SIP plans for the South Coast, EPA's SIP call for a new 1-hour ozone attainment demonstration as well as the 2012 AQMP and our evaluation of how it meets the requirements of the CAA can be found in our proposed rule. The EPA is approving the 2012 AQMP based on our determination that it complies with applicable CAA requirements and provides for expeditious attainment of the 1-hour ozone standard in the South Coast.
Our proposed rule provided a 30-day comment period. During this period, we received a comment letter from Earthjustice on behalf of a number of community and environmental groups, including Communities for a Better Environment, Natural Resources Defense Council, Physicians for Social Responsibility—Los Angeles, and Sierra Club (herein, referred to collectively as “Earthjustice”); and a number of emails and attachments from a member of the public representing the Public Solar Power Coalition (“PSPC” herein). The attachments from PSPC included a copy of the clerk's transcript of case documents from the Superior Court, Los Angeles County, to the Second District Court of Appeal upon appeal of
The 2012 AQMP provides a demonstration of attainment by December 31, 2022 and our proposed rule finds that an attainment date of December 31, 2022 is appropriate in light of the severity of the 1-hour ozone problem in the South Coast and the extent to which emission sources in the South Coast have already been controlled. See 79 FR 29712, at 29724 (May 23, 2014).
Given the extent to which emissions sources in the South Coast are already controlled, development of section 182(e)(5) contingency measures will present a significant regulatory challenge to CARB that can only be avoided or reduced if the new technology measures achieve a significant portion, if not all, of the emissions reductions expected from them in the 2012 AQMP. Further, upon the effective date of today's action, the commitment submitted by CARB to submit such contingency measures will be part of the California SIP and thus enforceable by EPA or private citizens.
Earthjustice contends that emissions reductions must be in place by January 1, 2020 to provide the three years of clean data prior to an attainment date of December 31, 2022, which means that the contingency measures under CAA section 182(e)(5)(B) must be submitted by January 1, 2017, less than three years from the present. Given the contrast between the planning horizon for the 1-hour ozone standard in the 2012 AQMP and the longer (20-year) planning horizon for the initial South Coast AQMP established under the CAA Amendments of 1990, Earthjustice concludes that section 182(e)(5) measures cannot be relied upon for the 1-hour ozone attainment demonstration in the 2012 AQMP.
Second, with respect to the practical consideration of whether sufficient time is available to develop new technology measures to provide emissions reductions by January 1, 2022 to provide for attainment of the 1-hour ozone standard by December 31, 2022, we note that the processes used by the relevant air agencies to develop and implement the new technology measures are not new to the 2012 AQMP, but represent a continuation of the effort initiated in the wake of development of the 2007 AQMP for attainment of the 1997 8-hour ozone NAAQS and that is unfolding over a longer planning period, similar to that for the 1-hour ozone plan developed pursuant to the CAA Amendments of 1990. Third, with respect to the timeline for emissions reductions and submittal of contingency measures under the 2012 AQMP, we note that the deadline for emissions reductions necessary for attainment of the 1-hour ozone standard by December 31, 2022 is January 1, 2022, not January 1, 2020 as asserted by Earthjustice. We explain the basis for this timeframe in our response to comment #13. Given that all emission reductions necessary for attainment of the standard must be achieved by January 1, 2022, the contingency measures under CAA section 182(e)(5)(B) are due to EPA no later than January 1, 2019, not January 1, 2017.
Thus, CARB had about six years from adoption of the 2012 AQMP, and has about four years remaining from the date of this final action, to determine whether it will be able to achieve 17 tpd of VOC and 150 tpd of NO
The fact that the specific emissions reduction estimates for the individual new technology measures in the 2012 AQMP are not available, however, is immaterial. Section 182(e)(5) requires, as relevant here, that the State submit “enforceable commitments to develop and adopt contingency measures” to be implemented if the new technologies do not achieve the planned reductions. In this case, the 2012 AQMP is relying on 17 tpd of VOC and 150 tpd of NO
Although section 182(e)(5) does not require an enforceable commitment with respect to the new technology measures, we note that the State has identified the specific agencies that will be responsible for developing and implementing the controls or techniques anticipated under the individual new technology measures, and for the 2012 AQMP, the SCAQMD has identified such agencies for each of the new technology measures. In addition, as noted in connection with the 2007 AQMP, EPA, CARB, the SCAQMD and the San Joaquin Valley Unified Air Pollution Control District (SJVUACPD) have signed a memorandum of agreement committing the agencies to coordinate efforts to develop and test new sustainable technologies to accelerate progress in meeting air quality goals. See 76 FR 57872, at 57882 (September 16, 2011).
The one-year condition on the RACM requirement, Earthjustice asserts, is exacerbated by EPA taking this position for extreme ozone nonattainment areas that may rely on new technology measures under CAA section 182(e)(5), as well as areas that have missed their attainment dates “because the region has not even identified enough control measures to attain in the first place.” Earthjustice claims that the availability of CAA section 182(e)(5) in extreme areas means that measures can be rejected arbitrarily as not meeting RACM.
Lastly, Earthjustice suggests that EPA should instead change its interpretation of RACM in extreme nonattainment areas that rely on new technology measures to require a demonstration that all feasible control measures have been adopted, regardless of whether those control measures can be demonstrated to advance attainment by a year. It also requests clarification that RACM represents the minimum level of control states are required to demonstrate in nonattainment plans and that other measures are also required, as necessary or appropriate, to attain the NAAQS as expeditiously as practicable, regardless of whether the measures are considered RACM.
Second, we disagree that the one-year condition for consideration of RACM in areas that rely on CAA section 182(e)(5) new technology measures to demonstrate attainment (and thus have not identified the specific measures needed to attain the standard) allows for arbitrary rejection of measures as not meeting RACM. So long as attainment plans developed for such areas identify base year emissions, an attainment date, and attainment-year emission targets, the emissions reductions associated with advancement of the attainment
In the case of the 1-hour ozone standard and the 2012 AQMP, the emissions reductions associated with advancement of the attainment date by one year are roughly 14 tpd of VOC and 46 tpd of NO
Also, we disagree with the contention that EPA's one-year condition for consideration of RACM is absurd as applied to areas that have failed to attain the standard “because the region has not even identified enough control measures to attain in the first place.” RACM demonstrations and the attainment demonstrations upon which they rely are prepared, submitted and approved years before the applicable attainment date and are based on the best information available at the time. Notwithstanding approval of well-conceived and well-grounded RACM and attainment demonstrations that meet all CAA requirements, the area to which the demonstrations apply may still fail to attain the standard by the applicable attainment date for any number of reasons, such as assumptions regarding atmospheric chemistry or population forecasts that ultimately prove to be inaccurate when viewed in retrospect. Thus, the failure of an area to attain the standard by the applicable attainment date sheds no light on the appropriateness of the state's RACM demonstration or EPA approval of it years before but sets the stage for a new attainment date, and the type of RACM reevaluation and new attainment demonstration that is included in the 2012 AQMP.
Lastly, the EPA confirms that implementation of RACM as expeditiously as practicable represents the minimum level of control states are required to demonstrate in nonattainment plans. See CAA section 172(c)(1). We clarify that, in such plans, other measures are also required, as may be necessary or appropriate, to provide for attainment of the NAAQS “by the applicable attainment date specified in this part.” See CAA section 172(c)(6).
RACM identifies a certain level of control of existing emissions sources that must be adopted in legally enforceable form. Incentive programs by their nature are voluntary, i.e., not enforceable, and thus are not the types of programs that a State must consider in its RACM evaluation. Moreover, the types of sources to which the incentive programs in Rule 317 apply are mobile sources, and as explained in our proposed rule, 79 FR at 29720 (May 23, 2014), we have found that CARB's mobile source program continues to meet the RACM requirement for such sources. CARB's mobile source program includes regulations for many types of existing (i.e, in-use) vehicles and equipment, including the types of vehicles and equipment to which the Rule 317 incentive programs apply.
We note that EPA regulations exempt methane from the definition of VOC, 40 CFR 51.100(s), and the South Coast regulations are consistent with the EPA regulation. The EPA regulation exempting methane from the definition of “VOC” stems from the Agency's determination that methane is an organic compound that has negligible photochemical reactivity and thus need not be controlled for the purposes of reducing ground-level ozone concentrations. Independent of that, however, we recognize methane as a potent greenhouse gas and we note that many control measures that reduce VOC emissions have the co-benefit of reducing methane. Because EPA regulations exempt methane from the definition of VOC for the purpose of reduce ground-level ozone concentrations, it would not be appropriate for the State to rely on methane reductions as part of its plan to attain the 1-hour ozone NAAQS.
The language in CARB's and the District's commitments . . . is specific; the intent of the commitments is clear; and the strategy of adopting measures to achieve the required reductions is completely within CARB's and the District's control. Furthermore . . . CARB and the District identify specific emission reductions that they will achieve, how they could be achieved and the time by which these reductions will be achieved, i.e., by the 2023 attainment year. 77 FR 12674, at 12676–12677 (March 1, 2012).
As to commitments related to expanding passenger vehicle retirement, promoting cleaner ship engines and fuel, and adopting off-road recreational vehicle expanded emissions standards, we disagree that the CARB has failed to include schedules for implementation and that, therefore, the commitments are unenforceable. We discuss the commitments related to these three control strategies and the current status of implementation in the following paragraphs.
First, with respect to expanding passenger vehicle retirement, CARB's 2007 State Strategy calls for expanding the existing vehicle retirement program to vehicles that are off-cycle from their Smog Check inspections over an implementation period of 2008–2014.
Second, as to promoting cleaner ship engines and fuel, CARB committed to adopting regulations to require use of cleaner, low-sulfur fuel by ocean-going vessels (OGV) in transit within 24 miles of the California coast with implementation expected from 2007–2010.
Third, as to adopting off-road recreational vehicle expanded emissions standards, CARB committed to bringing the emissions standards to its Board for consideration in 2013, with implementation schedules to be determined in the rulemaking process.
As to the enforceability of SCAQMD's commitments in the 2012 AQMP, Earthjustice is correct that, in committing to develop, adopt, implement and submit the 15 measures listed in table 5 of the proposed rule, SCAQMD reserved the right to substitute measures where a listed measure is found to be infeasible and to otherwise substitute measures that can achieve equivalent reductions in the same adoption or implementation timeframes. See 2012 AQMP, pages 4–42 and 4–43. However, SCAQMD's commitment to the 15 defined measures is supported by the related, but independently enforceable, commitment to achieve aggregate emission reductions of 6 tpd of VOC and 11 tpd of NO
Moreover, the SCAQMD has committed to be bound by a process with significant safeguards to ensure the integrity of the regulatory commitment. For instance, as described in more detail on pages 4–43 and 4–44 of the 2012 AQMP, the SCAQMD has defined “infeasibility” for the purposes of measure substitution, set cost-benefit thresholds triggering refined analysis, and established a public review and decision process. With such safeguards, we expect SCAQMD to make few substitutions, leaving most of the individual measures fully enforceable as part of the SIP.
Earthjustice is correct that SCAQMD does not provide emissions reduction estimates for six of the 15 measures that the District has committed to develop, adopt, submit and implement. However, as further explained in the proposed rule, 79 FR 29712, at 29721 (May 23, 2014), SCAQMD is relying on emissions reductions from the SOON program as well as the emissions reductions from the 15 individual measures to meet its aggregate emissions reduction commitment. The emissions reductions estimated from the SOON program plus those from the measures for which SCAQMD has provided emissions reduction estimates is equal to the aggregate commitment. See table 5 from the proposed rule and pages IV–B–30 through IV–B–32 from appendix IV–B of the 2012 AQMP. Thus, we continue to believe that SCAQMD is capable of fulfilling its aggregate emission reduction commitment to achieve necessary emissions reductions by January 1, 2022.
Second, SCAQMD and CARB commitments to achieve emissions reductions by January 1, 2022 is consistent with the requirement to ensure that necessary emissions reductions are in place by the beginning of the ozone season immediately preceding the attainment deadline. Since the attainment deadline is December 31, 2022, the ozone season immediately preceding that deadline begins on January 1, 2022 for the South Coast.
Reductions necessary to demonstrate attainment by December 31, 2022 need not be in place three years before the deadline. The three-year record of clean data applies to an attainment
For the 1-hour ozone standard, an attainment determination is based on monitored air quality levels in the three years preceding the attainment date. See 57 FR 13498, at 13506 (April 16, 1992). In contrast, an attainment demonstration is based on air quality modeling showing that projected emissions in the attainment year will be at or below the level needed to prevent violations of the relevant ambient air quality standard. For ozone, the attainment year is defined as the calendar year that includes the last full ozone season prior to the statutory attainment date. See 75 FR 10420, at 10431 (March 8, 2010) (Final approval of San Joaquin Valley 1-hour ozone attainment demonstration; later withdrawn at 77 FR 70376 (November 26, 2012) on other grounds). EPA has consistently interpreted the Act to require that the attainment demonstration show that air quality levels will be at or below the level of the standard in the attainment year and not for each of the three ozone seasons prior to the attainment date.
We believe this position is consistent with the ozone attainment provisions in subpart 2 of title 1, part D of the CAA. The program Congress crafted for ozone attainment does not require that all measures needed to attain the standard be implemented three years prior to the area's attainment date. For example, moderate areas were required by section 182(b)(1) to provide for VOC emissions reductions of 15 percent reduction by November 15, 1996 which was also the attainment date for these areas. For areas classified serious and above, CAA section 182(c)(2)(B) requires that ROP of 3 percent per year averaged over 3 years “until the attainment date” (a total of 9 percent reduction in emissions in the 3 years leading up to an area's attainment date). EPA does not believe that Congress intended these mandatory reductions to be in excess of what is needed to attain.
This position is also consistent with the attainment date extension provisions in CAA section 181(a)(5). Under this section, an area that does not have three years of data meeting the ozone standard by its attainment date, but has complied with all requirements and commitments pertaining to the area in the applicable implementation plan and has no more than one exceedance of the standard in the attainment year, may receive a one-year extension of its attainment date. Assuming these conditions are again met the following year, the area may receive an additional one-year extension. If the area has no more than one exceedance in this final extension year, then it will have three years of data indicating that it has attained the ozone standard.
EPA has consistently taken this position in guidance and in our approval of 1-hour ozone attainment demonstrations. Our ozone modeling guidance, which was issued less than a year after the 1990 CAA Amendments were enacted, requires States to model the ozone season before the attainment date and not the third ozone season before the attainment date.
We took the same position on attainment demonstrations for the 8-hour ozone standard promulgated in 1997 when we promulgated regulations specifying the deadline for implementing emissions reductions for purposes of attainment of that standard. Specifically, 40 CFR 51.908(d) provides: “For each nonattainment area, the State must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season.” “Attainment year ozone season” is defined as “the ozone season immediately preceding a nonattainment area's attainment date.” 40 CFR 51.900(g).
Third, we do not find that CARB's and SCAQMD's commitments to be for a reasonable and appropriate period of time simply because the aggregate emissions reductions will be in place at the beginning of ozone season prior to the attainment date, but also because the agencies have committed to take certain near-term regulatory actions in support of those emissions reductions commitments. More specifically, SCAQMD has committed to develop, adopt, and submit, and implement specific control measures as expeditiously as possible. SCAQMD's commitment includes adoption dates for the specific measures (the latest of which calls for adoption in 2016) and implementation dates. Likewise, CARB has committed to bring certain regulatory measures to its Board for action on a certain schedule.
Therefore, we continue to find the reliance of the 2012 AQMP on these commitments to be acceptable because, among other reasons, we find the commitments to be for a reasonable and appropriate period of time.
SCAG's most recent adopted RTP, the 2012–2035 Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS), reflects SCS principles to achieve per capita emission reduction targets. Earthjustice is correct that the baseline inventory for the South Coast 2012 AQMP includes emissions reductions from the RTP/SCS to the extent that it reflects the same population, employment, economic activity, vehicle and transit activity forecasts and transportation control measures as the RTP/SCS and those forecasts and measures are projected to result in lower transportation-related emissions than would have occurred under the RTP baseline case. However, because SCS strategies are fully
In addition, to the extent that the RTP/SCS reflects land use policies, we note that we have historically allowed States to take into account land use policies in their baseline (as opposed to being specifically approved into the SIP) if those policies are not being relied on as part of the control strategy. Specifically, we state: “EPA believes that it would be appropriate to include a specific land use policy in the land use assumptions made for the initial forecast [of future emissions] only if:
A. The policy meets one of the following conditions:
• It has already been adopted by an appropriate jurisdiction, or
• the policy is planned and there is an enforcing mechanism to ensure it will happen; and
B. The effects of the policy haven't already been accounted for in the land use assumptions—that is, you are not double counting.”
In this instance, to the extent that the RTP/SCS embodies certain land use policies, those policies are not being relied upon as part of the control strategy to demonstrate attainment of the 1-hour ozone standard in the South Coast by the applicable attainment date and are enforceable through mechanisms provided in SB 375, and the effects of the policies have not already been accounted for in the land use assumptions.
Though not relevant to this rulemaking, we note that we are currently unaware of any sources that use solar power to control or limit VOC or NO
Lastly, our role in reviewing SIP revisions is to ensure that they meet the applicable requirements of federal law, not state law, and thus, the issue of whether state law, in this case, CH&SC section 40404.5, mandates a solar conversion plan within the South Coast and whether the 2012 AQMP complies with the provisions of CH&SC section 40404.5 is not relevant for the purposes of our review of the 2012 AQMP under CAA section 110(k).
Under section 110(k) of the CAA, and for the reasons discussed above and in our May 23, 2014 proposal (see 79 FR 29712), the EPA is approving certain ozone-related portions of the 2012 South Coast AQMP as a revision to the California SIP. The relevant portions of the 2012 AQMP that are being approved include the updated control strategy for the 1997 8-hour ozone standard and the demonstration of attainment of the 1-hour ozone standard in the South Coast by December 31, 2022. In so doing, we are approving the following commitments and measures upon which the 1-hour ozone attainment demonstration relies as well as the State's reliance on the approved control strategy for the 1997 8-hour ozone standard:
• SCAQMD's commitments to develop, adopt, submit and implement the measures as summarized in table 5 of the proposed rule, subject to findings of infeasibility and measure substitution, and a commitment to meet aggregate emissions reductions targets of 6 tpd of VOC and 11 tpd of NO
• The new technology provisions (summarized in table 6 of the proposed rule) through which the 2012 AQMP expects to achieve emissions reductions of 17 tpd of VOC and 150 tpd of NO
• CARB's commitment to submit contingency measures by January 1, 2019 as necessary to ensure that the emissions reductions from new technology measures are achieved.
In approving this SIP revision, EPA finds that an attainment date of
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 a state plan 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 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this 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 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 action 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
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 3, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen Oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(439) The following plan was submitted on February 13, 2013, by the Governor's designee.
(i) [Reserved]
(ii) Additional material.
(A) California Air Resources Board.
(
(
(B) South Coast Air Quality Management District.
(
(
(
U.S. Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve a state implementation plan revision submitted by the State of California to meet the vehicle miles traveled emissions offset requirement under the Clean Air Act for the 1-hour ozone and 1997 8-hour ozone national ambient air quality standards in the Los Angeles-South Coast Air Basin (“South Coast”). The EPA is approving this revision because it demonstrates that California has put in place specific enforceable transportation control strategies and transportation control measures to offset the growth in emissions from the growth in vehicle miles traveled and vehicle trips in the South Coast, and thereby meets the applicable requirements of the Clean Air Act.
This final rule is effective on October 3, 2014.
The EPA has established a docket for this action: Docket ID No. EPA–R09–OAR–2013–0823. Generally, documents in the docket for this action are available electronically at
John Ungvarsky, Air Planning Office (AIR–2), U.S. Environmental Protection Agency, Region IX, (415) 972–3963,
Throughout this document, “we,” “us” and “our” refer to the EPA.
On May 23, 2014 (79 FR 29705), under section 110(k) of the Clean Air Act (Act or CAA), the EPA proposed approval of a submittal dated February 13, 2013 from the California Air Resources Board (CARB) of a revision to the California state implementation plan (SIP) for the South Coast. The SIP revision includes demonstrations intended to show compliance with the vehicle-miles-traveled emissions offset element of CAA section 182(d)(1)(A). The following paragraphs summarize the regulatory background, CARB's submittal, and the EPA's rationale for proposing approval. For additional details concerning these topics, please see our May 23, 2014 proposed rule.
The specific CAA requirement that is relevant for the purposes of this action is section 182(d)(1)(A), which applies in ozone nonattainment areas classified as “Severe” or “Extreme,” and, in relevant part, requires the state, if subject to its requirements, to “submit a [SIP] revision that identifies and adopts specific enforceable transportation control strategies and transportation control measures to offset any growth in emissions from growth in vehicle miles traveled or numbers of vehicle trips in such area.”
The South Coast
In 2008, to comply with the VMT emissions offset requirement for the 1-hour ozone standard, the South Coast Air Quality Management District (SCAQMD) submitted a demonstration showing decreases in aggregate year-over-year motor vehicle emissions in the South Coast from a base year (1990) through the applicable attainment year (2010). The following year, the EPA approved the South Coast 1-hour ozone VMT emissions offset demonstration as meeting the VMT emissions offset requirement of CAA section 182(d)(1)(A). See 74 FR 10176 (March 10, 2009). The EPA also approved the South Coast VMT emissions offset demonstration submitted in connection with the area's “Extreme” classification for the 1997 8-hour ozone standard. See 77 FR 12674 (March 1, 2012). Once again, the approved demonstration showed decreases in aggregate year-over-year motor vehicle emissions in the South Coast from a base year through the applicable attainment year.
In approving the South Coast VMT emissions offset demonstrations in 2009 and 2012, the EPA applied its then-longstanding interpretation of the VMT emissions offset requirement, first explained in guidance in the General Preamble to Title I of the Clean Air Act (see 57 FR 13498, at 13521–13523, April 16, 1992), that no transportation control measures are necessary if aggregate motor vehicle emissions are projected to decline each year from the base year of the plan to the attainment year. See 74 FR 10176, at 10179–10180 (March 10, 2009); 76 FR 57872, at 57889 (September 16, 2011). However, in response to a legal challenge brought in the U.S. Court of Appeals for the Ninth Circuit, the Court ruled against the EPA's approval of the South Coast VMT emissions offset demonstration for the 1-hour ozone standard, determining that the EPA incorrectly interpreted the statutory phrase “growth in emissions” in section 182(d)(1)(A) as meaning a growth in “aggregate motor vehicle emissions” versus a growth solely from VMT. Essentially, the Court ruled that additional transportation control measures are required whenever vehicle emissions are projected to be higher than they would have been had VMT not increased, even when aggregate vehicle emissions are actually decreasing. However, the Court acknowledged that “clean car technology” advances could result in
Based on this reasoning, the Court remanded the approval of the South Coast VMT emissions offset demonstration for the 1-hour ozone standard back to the EPA for further proceedings consistent with the opinion. In response, we withdrew our approval of the South Coast VMT emissions offset demonstration for the 1-hour ozone standard and disapproved it. See 78 FR 18849 (March 28, 2013). Furthermore, because our approval of the South Coast VMT emissions offset demonstration for the 1997 8-hour ozone standard was predicated on the same rationale as the corresponding South Coast demonstration for the 1-hour ozone standard that was rejected by the Ninth Circuit, we withdrew our approval of the South Coast VMT emissions offset demonstration for the 1997 8-hour ozone standard and disapproved it as well.
In the wake of the decision in the
The August 2012 guidance explains how states may demonstrate that the VMT emissions offset requirement is satisfied in conformance with the Court's ruling. States are recommended to estimate emissions for the nonattainment area's base year and the attainment year. One emission inventory is developed for the base year, and three different emissions inventory scenarios are developed for the attainment year. For the attainment year, the state would present three emissions estimates, two of which would represent hypothetical emissions scenarios that would provide the basis to identify the “growth in emissions” due solely to the growth in VMT, and one that would represent projected actual motor vehicle emissions after fully accounting for projected VMT growth and offsetting emissions reductions obtained by all creditable TCSs and TCMs. See the August 2012 guidance for specific details on how states might conduct the calculations.
On February 13, 2013, in response to the EPA's final disapproval of the previous South Coast VMT emissions offset demonstrations, CARB submitted revised South Coast VMT emissions offset demonstrations for the 1-hour ozone and 1997 8-hour ozone standards. CARB then provided supplemental information and analysis on April 3, 2014.
As noted above, on May 23, 2014 (79 FR 29705), the EPA proposed approval of the revised South Coast VMT emissions offset demonstrations submitted by CARB to meet the CAA section 182(d)(1)(A) VMT emissions offset requirement for the 1-hour ozone and 1997 8-hour ozone standards in the South Coast. The EPA proposed to approve the revision because it demonstrated that California had put in place specific enforceable TCSs and TCMs to offset the growth in emissions from the growth in VMT and vehicle trips in the South Coast, and thereby met the applicable requirements in CAA section 182(d)(1)(A). In addition, based on our proposed approval of the VMT emissions offset demonstrations, we issued an interim final determination that deferred the imposition of sanctions triggered by our March 28, 2013 disapproval of previous versions of the South Coast VMT emissions offset demonstrations. See 79 FR 29680 (May 23, 2014).
Our full evaluation of the revised South Coast VMT emissions offset demonstrations for the 1-hour ozone and 1997 8-hour ozone standards can be found in our May 23, 2014 proposed rule. In summary, the results from the State's VMT emissions offset calculations establish projected actual attainment-year VOC emissions of 65 tons per day (tpd) for the 1-hour standard demonstration and 62 tpd for the 1997 8-hour standard demonstration. The State then compared these projected actual emissions values against the attainment year scenario for no growth in VMT and trips and no additional TCMs or TCSs. This calculation is also referred to as the “VMT offset ceiling.” By comparing the projected actual attainment year emissions against the VMT offset ceiling, the State (along with the EPA and the public) can determine whether additional TCMs or TCSs would need to be adopted and implemented in order to offset any increase in emissions due solely to VMT. Because the projected actual emissions in both the 1-hour standard demonstration and the 1997 8-hour standard demonstration are less than the corresponding VMT offset ceiling emissions, the State concluded that the demonstration shows compliance with the VMT emissions offset requirement and that there are sufficient adopted TCSs and TCMs to offset the growth in emissions from the growth in VMT in the South Coast for
Based on our review of the State's submittal, including the technical supplement, we found the State's analysis to be acceptable and agreed that the State had adopted sufficient TCSs and TCMs to offset the growth in emissions from growth in VMT and vehicle trips in the South Coast for the purposes of the 1-hour ozone and 1997 8-hour ozone standard. As such, we found that the revised South Coast VMT emissions offset demonstrations complied with the VMT emissions offset requirement in CAA section 182(d)(1)(A), and therefore, we proposed approval of the revised South Coast VMT emissions offset demonstrations for the 1-hour ozone and 1997 8-hour ozone standards as a revision to the California SIP.
Our May 23, 2014 proposed rule provided for a 30-day comment period. During this period, we received one comment: an email from a private citizen representing the Public Solar Power Coalition (PSPC). We provide our response to this comment below.
In our proposed rule, we concluded that, with the TCSs and TCMs put in place by the various relevant state and regional agencies, the required demonstrations have been made. PSPC does not challenge our conclusion but rather seeks to compel the state to adopt a specific additional control measure referred to by PSPC as the Immediate Solar Conversion Plan. However, the EPA's role in reviewing SIPs and SIP revisions is to ensure that the states meet the requirements of the CAA, and California has demonstrated how it meets the requirement without adoption and implementation of the Immediate Solar Power Conversion Plan. Therefore, we have no authority to require California to adopt and implement such a plan to comply with CAA section 182(d)(1)(A). Furthermore, because we have concluded that California has met the applicable requirements, sanctions would not be authorized under the CAA.
Lastly, we have decided not to extend the comment period because further information concerning the Immediate Solar Power Conversion Plan would not change our conclusion that California has submitted a SIP revision that meets the requirements of CAA section 182(d)(1)(A) for the South Coast and would not, therefore, provide a basis for us to reconsider our approval of the SIP revision under CAA section 110(k).
Under CAA section 110(k)(3), for the reasons set forth above and in greater detail in the proposed rule, the EPA is approving CARB's submittal dated February 13, 2013 of the revised South Coast VMT emissions offset demonstrations
Upon the effective date of today's final approval, all sanctions and sanctions clocks that were triggered upon our final disapproval at 78 FR 18849 (March 28, 2013) of previous versions of the South Coast VMT emissions offset demonstrations, and deferred upon our interim final rule at 79 FR 29680 (May 23, 2014), are permanently terminated.
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, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves a state plan revision as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For these reasons, this final action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the EPA with the discretionary authority to address
In addition, this final 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 the 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 3, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental regulations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401 et seq.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
2. Section 52.220 is amended by adding paragraphs (c)(439)(ii)(A)(
(c) * * *
(439) * * *
(ii) * * *
(A) * * *
(
(B) * * *
(