Agricultural Marketing Service
Food and Nutrition Service
Forest Service
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Western Area Power Administration
Trade Representative, Office of United States
Children and Families Administration
National Institutes of Health
Coast Guard
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
Fish and Wildlife Service
Copyright Royalty Board
Trade Representative, Office of United States
Federal Aviation Administration
Federal Highway Administration
Federal Transit Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone closing Pea Patch Island Anchorage No. 5 and the upper portion of Reedy Point South Anchorage No. 3 to anchoring operations in order to facilitate dredging in New Castle Range in the Delaware River. This regulation is necessary to provide for the safety of life on the navigable waters of Pea Patch Island and Reedy Point South Anchorages. These closures are intended to restrict vessel anchoring to protect mariners from the hazards associated with ongoing pipe-laying and dredging operations.
This rule is effective without actual notice from October 6, 2014 until November 15, 2014, unless cancelled earlier by the Captain of the Port. For the purposes of enforcement, actual notice will be used from October 1, 2014, until October 6, 2014.
Documents mentioned in this preamble are part of docket [USCG–2014–0883]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email. If you have questions on this temporary rule, call or email Lieutenant Brennan Dougherty, U.S. Coast Guard, Sector Delaware Bay, Chief Waterways Management Division, Coast Guard; telephone (215) 271–4851, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable because immediate action is necessary to protect the maritime public. Publishing an NPRM is impracticable given that the final details for the dredging operation were not received by the Coast Guard until September 17, 2014. Vessels attempting to anchor in either Pea Patch Island or the upper portion of Reedy Point South Anchorages during pipe-laying or dredging operations may be at risk. Delaying this rule to wait for a notice and comment period to run would be contrary to the public interest as it would inhibit the Coast Guard's ability to protect the public from the hazards associated with pipe-laying and dredging operations.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Public Law 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
Norfolk Dredging Company has been contracted by the Army Corps of Engineers (ACOE) to conduct maintenance dredging in the Delaware River within New Castle Range in order to maintain channel depth. This project requires the placement of floating and submerged pipeline, along with placement of an anchor barge, within Pea Patch Island Anchorage No. 5. Due to the presence of the pipeline, vessels are not permitted to anchor within Pea Patch Island Anchorage for the duration of the dredging project. In addition, as the dredging project proceeds south and approaches the entrance of the Chesapeake and Delaware (C & D) Canal, vessels heading north through the Delaware River with intent to transit the Canal will be re-directed through the upper portion of Reedy Point South Anchorage No. 3. As a result this upper portion of Anchorage No. 3 will be closed for anchoring purposes during this time. Notice of the closure will be broadcast by a Local Notice to Mariners and a Broadcast Notice to Mariners at the appropriate time. The Captain of the Port will reopen both anchorages once all submerged pipeline has been recovered and dredging operations are complete. At such time, notice that the temporary closure of the anchorages is no longer in effect will be broadcast to mariners on VHF channel 16. The Captain of the Port is establishing this safety zone to ensure the safety of life and property of all mariners and vessels transiting the local area.
The Coast Guard Captain of the Port is temporarily establishing a safety zone
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation will restrict access to the regulated area, the effect of this rule will not be significant because: (i) The Coast Guard will make extensive notification of the Safety Zone to the maritime public via maritime advisories so mariners can alter their plans accordingly; (ii) vessels may still be permitted to transit through the safety zone with the permission of the Captain of the Port on a case-by-case basis; and (iii) this rule will be enforced until pipe-laying and dredging operations have been completed.
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. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to anchor in Pea Patch Island Anchorage No. 5 and the upper portion of Reedy Point South Anchorage No. 3, from October 1, 2014 to November 15, 2014, unless cancelled earlier by the Captain of the Port once all operations are completed.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reason: Vessel traffic will be allowed to pass through the safety zone with permission of the Captain of the Port or her designated representative, and the safety zone is limited in size. Sector Delaware Bay will issue maritime advisories widely available to users of the Delaware River.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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 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,
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR Part 165, applicable to safety zones on the navigable waterways. This safety zone will temporarily restrict vessel traffic from anchoring in Pea Patch Island Anchorage No. 5 and Reedy Point South Anchorage No. 3. 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, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1
(a)
(b)
(c)
(1) All persons or vessels wishing to transit through the Safety Zone must request authorization to do so from the Captain of the Port or her designated representative one hour prior to the intended time of transit.
(2) Vessels granted permission to transit must do so in accordance with the directions provided by the Captain of the Port or her designated representative to the vessel.
(3) To seek permission to transit the Safety Zone, the Captain of the Port's representative can be contacted via marine radio VHF Channel 16.
(4) This section applies to all vessels wishing to transit through the Safety Zone except vessels that are engaged in the following operations:
(i) Enforcing laws;
(ii) Servicing aids to navigation, and
(iii) Emergency response vessels.
(5) No person or vessel may enter or remain in a safety zone without the permission of the Captain of the Port;
(6) Each person and vessel in a safety zone shall obey any direction or order of the Captain of the Port;
(7) No person may board, or take or place any article or thing on board, any vessel in a safety zone without the permission of the Captain of the Port; and
(8) No person may take or place any article or thing upon any waterfront facility in a safety zone without the permission of the Captain of the Port.
(d)
(e)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania. This SIP revision includes amendments to the Allegheny County Health Department (ACHD) Rules and Regulations, Article XXI, Air Pollution Control, and meets the requirement to adopt Reasonably Available Control Technology (RACT) for sources covered by EPA's Control Techniques Guidelines (CTG) standards for the following categories: Offset lithographic printing and letterpress printing, flexible package printing, and industrial solvent cleaning operations. EPA is approving the revision to the Pennsylvania SIP in accordance with the requirements of the Clean Air Act (CAA).
This final rule is effective on November 5, 2014.
EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2014–0476. All documents in the docket are listed in the
Irene Shandruk, (215) 814–2166, or by email at
Section 172(c)(1) of the CAA provides that SIPs for nonattainment areas must include reasonably available control measures (RACM), including RACT, for sources of emissions. Section 182(b)(2)(A) provides that for certain nonattainment areas, states must revise their SIP to include RACT for sources of volatile organic compound (VOC) emissions covered by a CTG document issued after November 15, 1990 and prior to the area's date of attainment. In 2006, EPA developed new CTGs for offset lithographic printing and letterpress printing, flexible package printing, and industrial solvent cleaning operations. A formal SIP submission was submitted by Pennsylvania to EPA on November 15, 2013 and on August 1, 2014 (79 FR 44728), EPA published a notice of proposed rulemaking (NPR) proposing approval of Pennsylvania's SIP revision for adoption of the CTG standards for offset lithographic printing and letterpress printing, flexible package printing, and industrial solvent cleaning operations in Allegheny County.
On November 15, 2013, Pennsylvania Department of Environmental Protection (PADEP) submitted to EPA a SIP revision concerning the adoption of the EPA CTGs for offset lithographic printing and letterpress printing, flexible package printing, and industrial cleaning solvent operations in Allegheny County. These regulations are contained in the ACHD Rules and Regulations, Article XXI, Air Pollution Control sections 2105.80, 2105.81, and 2105.82 in order to: (1) Establish applicability for offset lithographic printing and letterpress printing, flexible package printing, and industrial cleaning solvent operations at facilities; (2) establish exemptions; (3) establish record-keeping and work practice requirements; and (4) establish emission limitations. Other specific requirements and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.
EPA is approving the Commonwealth of Pennsylvania SIP revision submitted on November 15, 2013, which consists of amendments to the ACHD Rules and Regulations, Article XXI, Air Pollution Control, and meets the requirement to adopt RACT for sources located in Allegheny County covered by EPA's CTG standards for the following categories: Offset lithographic printing and letterpress printing, flexible package printing, and industrial solvent cleaning operations.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 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 pertaining to ACHD's adoption of CTG standards for offset lithographic printing
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Therefore, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
(2) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve a revision to the Lake County Air Quality Management District (LCAQMD) portion of the California State Implementation Plan (SIP). This revision concerns particulate matter (PM) emissions from agricultural compression engines and the definition of hazardous air pollutants (HAP). We are approving local rules under the Clean Air Act (CAA or the Act).
This rule is effective on December 5, 2014 without further notice, unless EPA receives adverse comments by November 5, 2014. If we receive such comments, we will publish a timely withdrawal in the
Submit comments, identified by docket number EPA–R09–OAR–2014–0412, by one of the following methods:
1. Federal eRulemaking Portal:
2. Email:
3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105–3901.
Idalia Pérez, EPA Region IX, (415) 972–3248,
Throughout this document, “we,” “us,” and “our” refer to EPA.
Table 1 lists the rules we are approving with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board.
On June 23, 1999, the submittal for LCAQMD Rule 228 was deemed by operation of law to meet the completeness criteria in 40 CFR Part 51 Appendix V. On May 6, 2011, EPA determined that the submittal for LCAQMD Rule 470 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.
There are no previous versions of Rules 228 or 470 approved into the SIP.
Section 110(a) of the CAA requires States to submit regulations that control volatile organic compounds, oxides of nitrogen, PM, and other air pollutants which harm human health and the environment. Rule 228 was developed as part of the local agency's program to control these pollutants. It defines HAPs as “Those pollutants that are listed in the Federal Clean Air Act's Section 112(b) List of Hazardous Air Pollutants.”
PM contributes to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires States to submit regulations that control PM emissions. Section 470 provides a local administrative program for registering compression ignition (CI) stationary engines used in agricultural operations and controlling air emissions from these sources by setting engine tier requirements for certain replacement units. EPA's technical support document (TSD) has more information about rule 470.
Generally, SIP rules must be enforceable (see section 110(a) of the Act) and must not relax existing requirements (see sections 110(l) and 193). Rule 228 does not set emissions standards thus it does not have to meet a specific stringency requirement for emissions. Additionally, LCAQMD regulates an area that is classified as attainment for all National Ambient Air Quality Standards (NAAQS) (see 40 CFR Part 81.305), so Rule 470 does not have to meet a specific stringency requirement for emissions from this source category.
Guidance and policy documents that we use to evaluate enforceability requirements consistently include the following:
We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The Technical Support Document (TSD) has more information on our evaluation.
The TSD describes additional rule revisions that we recommend for the next time the local agency modifies Rule 470.
As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
Please note that if EPA receives adverse comment on an amendment, paragraph, or section of either of these rules and if that provision may be severed from the remainder of the rules, EPA may adopt as final those provisions of the rules that are not the subject of an adverse comment.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 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 (Public Law 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).
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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(388) * * *
(i) * * *
(G) Lake County Air Quality Management District.
(
(443) New and amended regulations for the following APCDs were submitted on December 23, 1998 by the Governor's Designee.
(i) Incorporation by Reference.
(A) Lake County Air Quality Management District.
(
Environmental Protection Agency (EPA).
Final rule.
Pursuant to its authority under the Clean Air Act (CAA or Act), the Environmental Protection Agency (EPA) is approving a revision to the Wisconsin State Implementation Plan (SIP) for the Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) programs.
This final rule is effective on November 5, 2014.
EPA has established a docket for this action under Docket ID No. EPA–R05–OAR–2014–0242. All documents in the docket are listed on the
Anthony Maietta, Life Scientist, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–8777,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On March 12, 2014, the Wisconsin Department of Natural Resources (WDNR) submitted a request to EPA to revise portions of its PSD and NNSR programs. The submittal requested that EPA approve the following revised rules into Wisconsin's SIP: (1) NR 400.02(123m) and (124); (2) NR 405.02(21)(b)5.a. and b. and 6; (3) NR 405.02(25i)(a); (4) NR 405.02(25i)(ag) and (ar)1–3; and (5) NR 408.02(20)(e) 5.a and b. and 6. On May 2, 2014, EPA published in the
Because the SIP revision was not effective at the state level at the time of the March 12, 2014, submittal, Wisconsin requested that EPA parallel process the SIP revision. EPA's May 2, 2014, proposal was contingent upon both the effectiveness of amended rules at the state level and a formal, fully adopted SIP revision request.
On June 30, 2014, revisions to Wisconsin's PSD and NNSR rules, as submitted in draft to EPA on March 12, 2014, were published in the Wisconsin Administrative Register, and became effective on July, 1, 2014. On August 11, 2014, Wisconsin formally submitted its request for EPA to take final action on our May 2, 2014 proposal.
EPA is approving revisions to Wisconsin rules NR 405.02(21)(b)5.a. and b. and 6; NR 405.02(25i)(a); NR 405.02(25i)(ar)(intro) and 1.; and NR 408.02(20)(e) 5.a and b. and 6., as submitted by WDNR on August 11, 2014, into the Wisconsin SIP.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 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. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Sulfur oxides.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
(131) On August 11, 2014, the Wisconsin Department of Natural Resources submitted a request to revise Wisconsin's Prevention of Significant Deterioration and Nonattainment New Source Review rules.
(i) Incorporation by reference.
(A) Wisconsin Administrative Code, NR 405.02(21)(b)5.a. and b. and 6; NR 405.02(25i)(a); NR 405.02(25i)(ar)(intro) and 1., as published in the Wisconsin Administrative Register July 2014, No. 703, effective August 1, 2014.
(B) Wisconsin Administrative Code, NR 408.02(20)(e) 5.a and b. and 6., as published in the Wisconsin Administrative Register July 2014, No. 703, effective August 1, 2014.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving state implementation plan (SIP) revisions submitted by the Illinois Environmental Protection Agency (IEPA) on March 19, 2013, concerning the state's gasoline volatility standards. The SIP revisions also include amendments to the state's motor vehicle refinishing regulations to allow for the alternative use of a high volume, low pressure (HVLP) equivalent coating applicator in motor vehicle refinishing operations, and repeal a registration program under these regulations that overlaps with Federal registration requirements.
This direct final rule is effective December 5, 2014, unless EPA receives adverse comments by November 5, 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 No. EPA–R05–OAR–2013–0273, by one of the following methods:
1.
2.
3.
4.
5.
Francisco J. Acevedo, Mobile Source Program Manager, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6061,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
Under section 211(c) of the Clean Air Act (CAA), EPA promulgated regulations on March 22, 1989 (54 FR 11868) that set maximum limits for the Reid vapor pressure (RVP) of gasoline sold during the regulatory control periods that were established on a state-by-state basis in the final rule. The regulatory control periods addressed the portion of the year when peak ozone concentrations were expected. Peak ozone concentrations are expected during the summertime. These regulations constituted Phase I of a two phase nationwide program, which was designed to reduce the volatility of commercial gasoline during the high ozone season. Depending on the state and month, gasoline RVP was not to exceed 10.5 pounds per square inch (psi), 9.5 psi, or 9.0 psi. Phase I was applicable to calendar years 1989 through 1991. On June 11, 1990 (55 FR 23658), EPA promulgated more stringent volatility controls as Phase II of the volatility control program. These requirements established maximum RVP standards of 9.0 psi or 7.8 psi (depending on the state, the month, and the area's initial ozone attainment designation with respect to the 1-hour ozone national ambient air quality standards (NAAQS)). Phase II is applicable to 1992 and subsequent years.
The 1990 CAA Amendments established a new section, 211(h), to address fuel volatility. Section 211(h)(1) requires EPA to promulgate regulations making it unlawful to sell, offer for sale, dispense, supply, offer for supply, transport, or introduce into commerce gasoline with an RVP level in excess of 9.0 psi during the high ozone season. Section 211(h)(2) prohibits EPA from establishing a volatility standard more stringent than 9.0 psi in an attainment area, except that the Agency may impose a lower (more stringent) standard in any former ozone nonattainment area (NAA) redesignated to attainment.
On December 12, 1991 (56 FR 64704), EPA modified the Phase II volatility regulations to be consistent with section 211(h) of the CAA. The modified regulations prohibited the sale of gasoline with an RVP above 9.0 psi in all areas designated attainment for ozone, beginning in 1992. For areas designated as nonattainment, the regulations retained the original Phase II standards published on June 11, 1990 (55 FR 23658), which included the 7.8 psi ozone season limitation for certain areas.
Section 211(k) of the CAA requires the use of reformulated gasoline (RFG) in the nine ozone NAAs having a 1980 population in excess of 250,000 and having the highest ozone design value during the period 1987 through 1989. The Chicago ozone NAA was designated as one of these areas. See 40 CFR 80.70(f). The use of RFG was required in the Chicago ozone NAA beginning in 1995 when Phase I of the RFG program went into effect. Phase II of the RFG program went into effect in 2000. In addition to these areas which are required to market RFG, state Governors can petition EPA for the inclusion of other NAAs in the RFG program. Accordingly, the State of Illinois requested EPA to extend the requirement for the sale of RFG for the Illinois portion of the Metro-East St. Louis ozone NAA in July 2006 with the program becoming effective in July 2007.
Illinois enacted state specific limits to address the summertime volatility of gasoline through regulations at 35 Ill. Adm. Code Section 215.585 for the Illinois ozone attainment area, Section 218.585 for the Chicago ozone NAA, and Section 219.585 for the Metro-East St. Louis ozone NAA.
On April 6, 1990, and May 4, 1990, Illinois submitted to EPA a regulation which reduced the maximum allowable volatility for gasoline sold in Illinois during July and August 1990 to 9.5 psi RVP. EPA approved this regulation on July 18, 1990 (55 FR 29200). On January 10, 1991, the state adopted amendments further limiting the maximum allowable volatility for gasoline sold in Illinois during June 1 through September 15, 1991 to 9.0 psi RVP.
The State of Illinois has repealed its gasoline volatility standards at 35 Ill. Adm. Code Section 215.585 for the state's ozone attainment area, Section 218.585 for the Chicago ozone NAA, and Section 219.585 for the Metro-East St. Louis ozone NAA. The state gasoline volatility regulations have essentially been superseded by Federal regulations promulgated under Section 211(c) and later under Sections 211(h) and 211(k) of the CAA. For this reason and to relieve the administrative burden associated with the development of waivers during periods of fuel supply shortages, the Illinois Pollution Control
35 Ill. Adm. Code Section 215.585 applied only to the year 1991 in the state's ozone attainment area and limited the RVP of gasoline sold, offered for sale, dispensed, supplied, offered for supply or transported for use in Illinois between June 1 and September 15 to 9.0 psi. Ethanol blend gasoline containing 9 to 10 percent ethanol by volume were allowed to have an RVP up to 10.0 psi.
Pursuant to Section 211(c) of the CAA, EPA adopted national gasoline volatility standards which set maximum RVP limits for gasoline sold during the May 1 to September 15 control period. See 40 CFR 80.27. Beginning in 1992, these regulations limited the RVP of gasoline sold in Illinois to 9.0 psi. These regulations also allowed an additional 1.0 psi for ethanol blend gasoline containing 9 to 10 percent ethanol by volume.
Since Section 215.585 was only in force in 1991, and the Federal RVP standards now apply to the attainment areas of the state, IEPA believes that there is no longer any need in maintaining the state gasoline volatility standard and the Illinois Pollution Control Board repealed this section.
The state gasoline volatility standards affecting the Chicago ozone NAA are found at 35 Ill. Adm. Code 218.585. The Illinois portion of the Chicago ozone NAA includes Cook, DuPage, Kane, Lake, McHenry, and Will Counties and Aux Sable and Goose Lake Townships in Grundy County and Oswego Township in Kendall County. This regulation limits the RVP of gasoline sold, offered for sale, dispensed, supplied, offered for supply or transported for use in the Chicago ozone NAA area during May 1 through the September 15 control period to 9.0 psi. A 1.0 psi allowance is granted for ethanol blend gasoline containing 9 to 10 percent ethanol by volume. On September 9, 1994, EPA approved this regulation as part of the Illinois SIP. 59 FR 46562 (September 9, 1994).
As stated above, Section 211(k) of the CAA requires the use of RFG in the nine ozone NAAs having a 1980 population in excess of 250,000 and having the highest ozone design value during the period 1987 through 1989. The Chicago ozone NAA was designated as one of these areas. See 40 CFR 80.70(f). The use of RFG was required in the Chicago ozone NAA beginning in 1995 when Phase I of the RFG program went into effect. Phase II of the RFG program went into effect in 2000 and requires a 27.4 percent (averaging) reduction in summertime (May 1 through September 15) VOC emissions from RFG in VOC control region 2 areas (northern areas), which includes Chicago. Compliance with the RFG standards is measured by inputting specific gasoline characteristic parameters into a performance standards model known as the “complex model”. The fuel parameters used in the complex model include RVP, oxygen, sulfur, aromatics, olefins, benzene, and a percent of fuel evaporated at 200 and 300 degrees Fahrenheit (E200 and E300, respectively). The model evaluates the emissions from the RFG blend compared to the 27.4 percent reduction baseline. Although the RVP of the fuel is an important characteristic in determining the emissions from the fuel blend, the RFG standards do not establish a maximum volatility. Rather, a refiner or blender can vary the specific parameters as long as the resultant blend meets the overall emission reduction specification provided by the complex model. The result is an equivalent percentage reduction in VOC emissions as would be achieved if a fuel RVP of 6.7 psi was utilized. Even though the RFG requirements do not specifically establish an RVP limit, historical data indicates that RVP of RFG sold during the summertime (high ozone season) in the Chicago ozone NAA is considerably less than the RVP limits established in the Federal and state gasoline volatility standards, and has a range of averages from 6.7 to 7.2 psi, well below the maximum limits established in Section 218.585. Therefore, since the Federal RFG requirements are more stringent than the Chicago ozone NAA gasoline volatility regulations in Section 218.585, these regulations are no longer necessary.
The existence of the Chicago NAA gasoline volatility standards can also become an obstacle in times of emergency fuel shortages. In the event of a regional fuel shortage, Section 211(c)(4)(C) of the CAA allows EPA, with the concurrence of the Department of Energy, to temporarily waive fuel requirements in order that other fuel can be brought into the area and sold. EPA has issued two such emergency fuel waivers since 2005, one due to the impact of Hurricane Katrina, and a second due to damage caused by a severe storm at a Metro-East St. Louis area refinery. In these instances, EPA granted a short-term waiver from the RFG regulations, but due to the existence of the state Chicago NAA gasoline volatility standards, Illinois had to issue a provisional variance to the regulation in order for the EPA waiver to achieve its intended effect. Repealing the existing Chicago NAA gasoline volatility standards, which are less stringent than the RFG standards, would result in no loss of emissions reductions benefits, and in times of regional fuel supply shortages, would eliminate the RVP SIP waiver and provisional variance processes, allowing other fuel to be marketed in the affected region in a more efficient manner.
The state gasoline volatility regulation affecting the Metro-East St. Louis ozone NAA is found at 35 Ill. Adm. Code Section 219.585. The Illinois portion of the Metro-East St. Louis ozone NAA includes Madison, Monroe, St. Clair and Jersey Counties. Section 182(b)(1) of the CAA requires all moderate and above ozone NAAs to achieve a 15 percent reduction of 1990 emissions of VOC by 1996. The Metro-East St. Louis area ozone NAA was subject to this requirement and in order to meet the CAA 15 percent Rate of Progress emissions requirement and to strive for consistency in the fuel across the St. Louis metropolitan area, IEPA proposed, and the Illinois Pollution Control Board adopted, a more stringent gasoline volatility regulation in 1994. This regulation limits the RVP of gasoline sold, offered for sale, dispensed, supplied, offered for supply or transported for use in the Metro-East St. Louis ozone NAA during May 1 through the September 15 control period to 7.2 psi. A 1.0 psi allowance is granted for ethanol blend gasoline having at least 9 percent but not more than 10 percent ethyl alcohol by volume. The Illinois Pollution Control Board adopted an amendment to this regulation which changed the start of regulatory control period from May 1 to June 1 to be consistent with the Federal compliance dates. On March 23, 1995, EPA approved the regulation with the May 1 date as part of the Illinois SIP. 60 FR 15233 (March 23, 1995). On August 12, 1997, EPA approved the revision relating to the change in the regulatory control period to June 1 as part of the Illinois SIP. 62 FR 43100 (August 12, 1997).
As stated above, Section 211(k) of the CAA requires the use of RFG in the nine ozone NAAs having a 1980 population
Similar to the situation in Chicago, when regional fuel supply shortages occurred and EPA issued a waiver from the RFG requirements to allow the flow of other fuels into the regions, the state had to issue a provisional variance to the volatility regulations for the Metro-East St. Louis ozone NAA in order for the EPA waiver to achieve its intended effect. Repealing the existing gasoline volatility standards for the Metro-East St. Louis ozone NAA, which are less stringent than the RFG standards, results in no loss of emissions reductions benefits, and, in times of regional fuel shortage, would eliminate the RVP SIP waiver and provisional variance processes, allowing other fuels to be marketed in the affected area in a more efficient manner.
IEPA has also submitted clean-up amendments to 35 Ill. Adm. Code Parts 211, 215, 218 and 219 to update references and to be consistent with the repeal of the state's gasoline volatility standards. IEPA updated the reference to ASTM D 323 to its current version, ASTM D 323–08, in Section 211.101, and also in the definitions of Heavy Liquid, Section 211.2870, and RVP, Section 211.5510. In addition, IEPA removed the reference to Section 215.105 in the definition of Heavy Liquid, Section 211.2870, because IEPA removed ASTM D 323–82 from Part 215 with this revision.
IEPA also removed the definition of RVP contained in Section 215.104 because this term is only used in Section 215.585, which has been repealed, and is also defined in 35 Ill. Adm. Code Part 211. IEPA also removed ASTM D 323–82, ASTM D 4057, ASTM D 4177, and 40 CFR 80, appendices D, E, and F contained in Section 215.105 because these incorporations by reference are only found in Section 215.585, are outdated, and are no longer necessary with a repeal of the state's gasoline volatility standards.
Further, Illinois removed 40 CFR 80 and 40 CFR 80, appendices D, E, and F contained in Sections 218.112 and 219.112 (Incorporations by Reference) because this Part is no longer necessary with a repeal of Sections 218.585 and 219.585, and the appendices have already been repealed. Also, IEPA has updated the reference to ASTM D–323 in Sections 218.112, 218.128, 219.112, and 219.128 to its current version, ASTM D–323–08, for measuring vapor pressure.
In 1993, the Chicago and Metro-East St. Louis areas were classified as Severe and Moderate nonattainment, respectively, and as such were subject to the requirement under Section 182(b)(1) of the CAA to reduce VOC emissions within six years after November 15, 1990 by at least 15 percent from baseline emissions. Illinois reviewed available control measures that could provide reductions by 1996 and included motor vehicle refinishing operations in the 15 percent rate of progress plan for both areas.
Illinois' motor vehicle refinishing regulations are found at Subpart HH of 35 Ill. Adm. Code Parts 218 and 219. The regulations require the use of either an electrostatic spray gun or a HVLP spray gun. In addition, these regulations require affected sources to register with the state. Registration includes providing source contact information, descriptions of coating operations, and certain certifications. Irrespective of the registration program, motor vehicle refinishing operations are required to meet the substantive provisions of Subpart HH, which include, among other things, VOC content limitations, coating preparation and applicator requirements, and work practices. EPA approved the motor vehicle refinishing regulations at Subpart HH of 35 Ill. Adm. Code Parts 218 and 219 as part of the Illinois SIP on July 25, 1996. 61 FR 38577 (July 25, 1996).
In 2008, EPA promulgated National Emission Standards for Hazardous Air Pollutants (NESHAP) for Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources (January 9, 2008, 73 FR 1738). These standards are found at 40 CFR 63, subpart HHHHHH. As it relates to surface coating of motor vehicles and mobile equipment, this NESHAP requires that all subject surface coating operations apply coatings with a HVLP spray gun, electrostatic spray gun, airless spray gun, air-assisted airless spray gun, or an equivalent technology demonstrated to be equal in transfer efficiency to one of these spray guns. 40 CFR 63.11173(e)(3). In addition, this NESHAP requires these operations to submit an initial registration notification, an annual notification of changes, and also contains recordkeeping requirements. 40 CFR 63.11175, 63.11176, 63.11177. Proper registration includes providing source contact information, a description of coating operations, and certain certifications. 40 CFR 63.11175.
In Illinois, these registration notifications are submitted to IEPA because it has been delegated authority to implement and enforce this NESHAP. This NESHAP targets sources that the state's motor vehicle refinishing rules target. Irrespective of the NESHAP's registration requirements, subject sources must comply with the substantive portion of this NESHAP, which include, among other things, extensive training, coating preparation and application requirements, coating applicator requirements, management practices, maintenance of equipment requirements and recordkeeping.
The State of Illinois submitted amendments to Subpart HH, Motor Vehicle Refinishing, at 35 Ill. Adm. Code Sections 218.784 and 219.784 to allow the use of a new spray gun that is demonstrated to achieve transfer efficiency comparable to a HVLP spray gun. The regulations in Sections 218.784 and 219.784 require the equivalent coating applicator technology to be approved by EPA and documentation of EPA's approval to be maintained at the motor vehicle refinishing operation. This will provide flexibility to affected sources by allowing them to choose an alternate means of compliance that is approved by EPA. Illinois also repealed the registration program at 35 Ill. Adm. Code Sections 218.792 and 219.792 due to the corresponding, overlapping Federal NESHAP registration program already in place. This will streamline the registration of motor vehicle refinishing operations and eliminate source confusion over multiple registrations.
The NESHAP at 40 CFR part 63, subpart HHHHHH targets the sources that Illinois' motor vehicle registration program targets and the registration programs are very similar in what they require. The NESHAP's registration program is more stringent than Illinois' registration program in that it requires an annual notification of any change from the initial registration, which the state's registration program does not require. 40 CFR 63.11176 (2010). Moreover, irrespective of the existence of either registration program, subject motor vehicle refinishing operations must comply with the substantive provisions of both the NESHAP and Illinois' motor vehicle refinishing requirements which contain the applicable control requirements that limit emissions from such operations. Repealing Illinois' registration program and the continued applicability of the NESHAP registration program will streamline registration for motor vehicle refinishing sources and avoid confusion over two separate registration requirements.
Our primary consideration for determining the approvability of the Illinois revisions to remove gasoline volatility standards from the SIP is whether these revisions comply with section 110(l) of the CAA. Section 110(l) of the CAA provides that EPA cannot approve a SIP revision if that revision interferes with any applicable requirement regarding attainment and reasonable further progress or any other requirement established in the CAA. The EPA can, however, approve a SIP revision that removes or modifies control measures in the SIP once the state makes a “noninterference” demonstration that such removal or modification will not interfere with attainment of the NAAQS, or any other CAA requirement. Illinois has evaluated the impacts of approving these revisions. The repeal of the ozone attainment area gasoline volatility standards in Section 215.585 would result in no loss of emissions reductions since this section applied to 1991 only. The intent of the rule has been fulfilled through EPA's volatility standards adopted pursuant to section 211(k) of the CAA. The repeal of the Chicago and Metro-East St. Louis gasoline volatility standards under Sections 218.585 and 219.585, respectively, would result in no loss of emissions reductions as the current Federal RFG standards in place in both areas achieve additional emissions reductions benefits beyond the state standards. The equipment specification changes to Illinois' motor vehicle refinishing requirements under Sections 218.784 and 219.784 provide flexibility to affected sources while not increasing emissions by allowing the use of new spray guns that have been demonstrated to achieve transfer efficiency comparable to HVLP spray guns and that have been approved by EPA. Finally, the removal of the state's registration requirements for motor vehicle refinishing operations is not a relaxation, since the Federal NESHAP includes a registration provision requesting similar and additional information than what was required in Illinois' rules. The deletion of the state requirement basically removes a duplicative regulation and decreases the administrative burden on such sources while still providing all the necessary information to IEPA. As noted above, all registration notifications under the NESHAP are submitted to IEPA because it has been delegated authority to implement and enforce the NESHAP.
EPA is approving the revisions to the Illinois ozone SIP submitted on March 19, 2013, concerning the state's gasoline volatility standards at Section 218.585 for the Chicago ozone NAA and Section 219.585 for the Metro-East St. Louis ozone NAA. Since EPA did not approve the gas volatility standard for 1991 in Section 215.585 as part of the Federally enforceable SIP, EPA cannot approve a SIP revision that repeals this section. Thus, EPA is taking no action on the gas volatility standard for 1991. EPA is also approving amendments to 35 Ill. Adm. Code Parts 211, 215, 218, and 219 to make necessary updates. EPA is also approving amendments to Subpart HH, Motor Vehicle Refinishing, at 35 Ill. Adm. Code Sections 218.784 and 219.784 to allow for the use of HVLP-equivalent spray guns in motor vehicle refinishing operations, and the repeal of the registration program at 35 Ill. Adm. Code Sections 218.792 and 219.792 due to overlapping Federal registration requirements. EPA finds that the revisions will not interfere with any applicable requirement concerning attainment, reasonable further progress or any other applicable CAA requirement.
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 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, Incorporation by reference, Oxides of Nitrogen, Ozone, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
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(D) Section 219.585 was repealed in 2013 and is removed without replacement; see paragraph (c)(201) of this section.
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(D) Sections 218.792 and 219.792 were repealed in 2013 and are removed without replacement; see paragraph (c)(201) of this section.
(201) On March 19, 2013, the Illinois Environmental Protection Agency submitted a request to repeal the gasoline volatility standards at 35 Ill. Adm. Code 215.585, 218.585, and 219.585, including other related revisions to 35 Ill. Adm. Code Parts 211, 215, 218, and 219, to revise the motor vehicle refinishing equipment specifications at 35 Ill. Adm. Code 218.784 and 219.784, and to repeal the motor vehicle refinishing registration requirements at 35 Ill. Adm. Code 218.792 and 219.792.
(i) Incorporation by reference.
(A) Illinois Administrative Code, Title 35: Environmental Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control Board, Subchapter c: Emission Standards and Limitations for Stationary Sources, Part 211, Definitions and General Provisions, Sections 211.101 Incorporations by Reference, 211.2870 Heavy Liquid, and 211.5510 Reid Vapor Pressure. Effective January 28, 2013.
(B) Illinois Administrative Code, Title 35: Environmental Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control Board, Subchapter c: Emission Standards and Limitations for Stationary Sources, Part 215, Organic Material Emission Standards and Limitations, Sections 215.104 Definitions, and 215.105 Incorporation by Reference. Effective January 28, 2013.
(C) Illinois Administrative Code, Title 35: Environmental Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control Board, Subchapter c: Emission Standards and Limitations for Stationary Sources, Part 218, Organic Material Emission Standards and Limitations for the Chicago Area, Sections 218.112 Incorporations by Reference, 218.128 Monitoring VOL Operations, and 218.784 Equipment Specifications. Effective January 28, 2013.
(D) Illinois Administrative Code, Title 35: Environmental Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control Board, Subchapter c: Emission Standards and Limitations for Stationary Sources, Part 219, Organic Material Emission Standards and Limitations for the Metro East Area, Sections 219.112 Incorporations by Reference, 219.128 Monitoring VOL Operations, and 219.784 Equipment Specifications. Effective January 28, 2013.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Imperial County Air Pollution Control District (ICAPCD) portion of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NO
This rule is effective on December 5, 2014 without further notice, unless EPA receives adverse comments by November 5, 2014. If we receive such comments, we will publish a timely withdrawal in the
Submit comments, identified by docket number EPA–R09–OAR–2014–0592, by one of the following methods:
1.
2.
3.
Idalia Perez, EPA Region IX, (415) 972–3248,
Throughout this document, “we,” “us,” and “our” refer to EPA.
Table 1 lists the rules we are approving with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).
On April 9, 2014, EPA determined that the submittal for ICAPCD Rules 400.3 and 400.4 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.
There are no previous versions of Rules 400.3 and 400.4.
NO
Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each NO
Guidance and policy documents that we use to evaluate enforceability and RACT requirements consistently include the following:
1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
2. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO
3. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).
4. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
5. “Alternative Control Techniques Document—NO
6. “Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Stationary Spark-Ignited Internal Combustion Engines,” CARB, November 2001.
We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. Since there are no major sources subject to Rule 400.3 that are required to meet RACT, Rule 400.3 is not required to implement RACT requirements and at this time we are not making a determination of its ability to implement RACT. The TSDs have more information on our evaluation. Rule 400.4 implements RACT.
The TSDs describe additional rule revisions that we recommend for the next time the local agency modifies the rules.
As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
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 Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 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).
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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 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 this
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
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(
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is approving the State of Illinois' March 28, 2014, revision to the state implementation plan (SIP) for the 1997 8-hour ozone maintenance plan for the Illinois portion of the Chicago-Gary-Lake County, Illinois-Indiana area (the Greater Chicago Area). This SIP revision establishes new Motor Vehicle Emissions Budgets (MVEB) for volatile organic compounds (VOC) and oxides of nitrogen (NO
This final rule is effective on November 5, 2014.
EPA has established a docket for this action under Docket ID No. EPA–R05–OAR–2014–0274. All documents in the docket are listed on the
Michael Leslie, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–6680,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This
On August 13, 2012 (77 FR 48062), EPA approved a request from the State of Illinois to redesignate the Illinois portion of the Greater Chicago Area to attainment of the 1997 8-hour ozone national ambient air quality standard (NAAQS). In addition to approving the ozone redesignation request, EPA approved the State's plan for maintaining the 1997 8-hour ozone NAAQS in the Illinois portion of the Greater Chicago Area through 2025. The ozone maintenance plan established MVEBs for VOC and NO
MVEBs are the projected levels of controlled emissions from the transportation sector (mobile sources) that are estimated in the SIP to provide for maintenance of the ozone NAAQS. The transportation conformity rule allows the MVEB to be changed as long as the total level of emissions from all sources remains below the attainment levels.
On March 28, 2014, Illinois submitted a SIP revision to the 1997 8-hour ozone maintenance plan for the Illinois portion of the Greater Chicago Area. This SIP revision establishes new MVEBs for VOC and NO
On May 22, 2014, EPA published proposed (79 FR 29395) and direct final (79 FR 29324) rules approving a revision to the 1997 8-hour ozone maintenance plan for the Illinois portion of the Greater Chicago Area. EPA subsequently received adverse comments on the direct final rule and withdrew it on June 26, 2014 (79 FR 36220). The proposal was not withdrawn.
EPA received one supportive and one adverse comment on the May 22, 2014 (79 FR 29324) proposed approval of the Illinois SIP revision. The adverse comment was submitted by Robert Ukeiley.
At this time, the Greater Chicago Area is marginal nonattainment for the 2008 ozone NAAQS. Marginal areas have an
The Illinois maintenance plan update for the 1997 8-hour ozone NAAQS does not revise or remove any existing emissions limit for any source. The transportation conformity process, found at 40 CFR part 93 subpart A, allows areas to modify existing MVEBs by adding a “safety margin” to the budgets provided that, in this case, the maintenance plan for the area demonstrates that a “safety margin” exists. A safety margin, as defined in the transportation conformity rule, is the amount by which the total projected emissions from all sources of a given pollutant are less than the total emissions that would satisfy the applicable requirement for reasonable further progress, attainment, or maintenance. (40 CFR 93.101) This concept is further described in 40 CFR 93.124(a). The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. This maintenance plan update establishes new MVEBs for VOC and NO
Illinois has requested the allocation of 12 tons/day of the VOC and 25 tons/day of NO
Tables 1 and 2 show that the total year 2025 emissions of VOC and NO
The commenter does not provide any information to demonstrate that approval of this maintenance plan update would have any impact on the area's ability to comply with the 2008 ozone NAAQS. In fact, the maintenance plan update provided with the State's submission demonstrates a decline in ozone precursor emissions over the timeframe of the initial maintenance period. The maintenance plan update will not relax the currently applicable MVEB that is used for any analysis year prior to 2025, nor will the maintenance plan update alter the status quo of the air quality, at least through 2025. As stated above, this area's attainment date for the 2008 ozone NAAQS is December 31, 2015. We believe they will attain (or adopt a strategy to attain) the ozone NAAQS well before 2025, so the change to the 2025 budget should not interfere with the attainment of the 2008 ozone NAAQS as expeditiously as practicable. Accordingly, EPA finds no basis under section 110(l) for EPA to disapprove the SIP revision.
EPA is approving a revision to the 1997 8-hour ozone maintenance plan for the Illinois portion of the Greater Chicago Area. The revision will change the MVEBs for VOC and NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 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. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Oxides of Nitrogen, Ozone, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(oo) Approval—On March 28, 2014, the State of Illinois submitted a revision to its State Implementation Plan for the Illinois portion of the Chicago-Gary-Lake County, Illinois-Indiana area (the Greater Chicago Area). The submittal established new Motor Vehicle Emissions Budgets (MVEB) for Volatile Organic Compounds (VOC) and Oxides of Nitrogen (NO
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve elements of state implementation plan (SIP) submissions from Ohio regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 lead (Pb) and 2010 nitrogen dioxide (NO
This final rule is effective on November 5, 2014.
EPA has established dockets for this action under Docket ID No. EPA–R05–OAR–2011–0888 (2008 Pb infrastructure SIP elements) and Docket ID No. EPA–R05–OAR–2012–0991 (2010 NO
Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–9401,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This
This rulemaking addresses submissions from the Ohio Environmental Protection Agency. The state submitted the infrastructure SIP for the 2008 Pb NAAQS on October 12, 2011, supplemented on June 7, 2013; and submitted the infrastructure SIP for the 2010 NO
Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2008 Pb and 2010 NO
EPA has highlighted this statutory requirement in multiple guidances, the most recent guidance document entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)” on September 13, 2013.
EPA is acting upon the SIP submission from Ohio that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 Pb and 2010 NO
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D.
A detailed rationale, history, and interpretation related to infrastructure SIP requirements can be found in our May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” (
This rulemaking will not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (collectively referred to as “director's discretion”); and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas in separate rulemaking.
In addition, EPA is not acting on portions of section 110(a)(2)(J)—visibility protection for 2010 NO
The proposed rulemaking associated with this final action was published on July 25, 2014 (79 FR 43338), and EPA received no comments pertaining to infrastructure for 2008 Pb or 2010 NO
For the reasons discussed in our proposed rulemaking and since no public comments were received, EPA is taking final action to approve, as proposed, Ohio's infrastructure SIPs for the 2008 Pb and 2010 NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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 December 5, 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. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) Approval—In a October 12, 2011, submittal, supplemented on June 7, 2013, Ohio certified that the State has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2008 Lead NAAQS. We are not finalizing action on submissions addressing the prevention of significant deterioration requirements in sections 110(a)(2)(C), (D)(i)(II), (D)(ii), and the prevention of significant deterioration (PSD) portion of (J).
(f) Approval—In a February 8, 2013 submittal, supplemented on February 25, 2013, and June 7, 2013, Ohio certified that the State has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2010 NO
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve a revision to the Nevada state implementation plan that provides for the maintenance of the national ambient air quality standard for particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers (PM
This rule is effective on November 5, 2014.
EPA has established a docket for this action under Docket ID Number EPA–R09–OAR–2013–0735. Generally, documents in the docket for this action are available electronically at
Karina O'Connor, Air Planning Office (AIR–2), U.S. Environmental Protection Agency, Region IX, (775) 434–8176,
Throughout this document, “we,” “us,” or “our” refer to EPA. This
On July 21, 2014 (79 FR 42258), under Clean Air Act (CAA or “Act”) section 110(k)(3), EPA proposed to approve a submittal from the Nevada Division of Environmental Protection (NDEP) dated September 7, 2012 of the
In our July 21, 2014 proposed rule, under CAA section 107(d)(3)(D), we proposed to grant NDEP's request to redesignate the Las Vegas Valley PM
Next, we proposed to approve certain fugitive dust rules (i.e., Clark County Air Quality Regulations sections 41, and 90 through 93) that Clark County has amended to ensure their continued applicability after the area is redesignated to attainment and that NDEP submitted to us (on May 27, 2014) as a revision to the Nevada SIP.
Lastly, we proposed to delete the area designation for Las Vegas Valley for the revoked NAAQS for total suspended particulate.
Please see our July 21, 2014 proposed rule for a detailed discussion of the background for these actions, and the rationale for approval of the Las Vegas Valley PM
Our July 21, 2014 proposed rule provided a 30-day public comment period, which closed on August 20, 2014. We received no comments on our proposal during this period.
Under CAA section 110(k)(3), and for the reasons set forth in our July 21, 2014 proposed rule, EPA is taking final action to approve NDEP's submittal dated September 7, 2012 of the
Second, under CAA section 107(d)(3)(D), we are taking final action to grant NDEP's request, which accompanied the submittal of the maintenance plan, to redesignate the Las Vegas Valley PM
Third, EPA is taking final action to approve revisions to Clark County fugitive dust rules sections 41, and 90 through 93 that were submitted on May 27, 2014 as a revision to the Nevada SIP because we find that they ensure continued implementation of the rules after redesignation of Las Vegas Valley to attainment and because they meet all other applicable requirements.
Lastly, EPA is taking final action to delete the area designation for Las Vegas Valley for the revoked national standard for total suspended particulate because the designation is no longer necessary.
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by State law. Redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, these actions merely approve a State plan and redesignation request as meeting Federal requirements and do not impose additional requirements beyond those by State law. For these reasons, these actions:
• Are 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) and Executive Order 13563 (76 FR 3821, January 21, 2011);
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Do not provide EPA with the discretionary authority to address 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. Nonetheless, EPA has discussed the action with the one Tribe, the Las Vegas Paiute Tribe, located within the Las Vegas Valley PM
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 December 5, 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. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide.
Environmental protection, Air pollution control, National parks, Wilderness areas.
Chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
(e) * * *
42 U.S.C. 7401
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is approving the requests from the District of Columbia (the District), the State of Maryland (Maryland), and the Commonwealth of Virginia (Virginia) (collectively “the States”) to redesignate to attainment their respective portions of the Washington, DC–MD–VA nonattainment area (hereafter “the Washington Area” or “the Area”) for the 1997 annual fine particulate matter (PM
This final rule is effective on November 5, 2014.
EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2014–0148. All documents in the docket are listed in the
Emlyn Vélez-Rosa, (215) 814–2038, or by email at
The District of Columbia Department of the Environment (DDOE), the Maryland Department of the Environment (MDE), and the Virginia Department of Environmental Quality (VADEQ) worked together in developing a combined document to address the requirements for the redesignation to attainment of the Washington Area for the 1997 annual PM
On August 8, 2014 (79 FR 45735), EPA published a notice of proposed rulemaking (NPR), proposing to take several rulemaking actions related to the redesignation of the Washington Area to
In the August 8, 2014 NPR, EPA considered the effects of three legal decisions on the approval of the redesignation requests and maintenance plan: (1) Collectively, the decisions in
Specific details of the States' submittals and the rationale for EPA's proposed actions are explained in the NPR and will not be restated here. No adverse public comments were received on the NPR.
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1–1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1–1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1–1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1–1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
EPA is approving the requests submitted by the District of Columbia, the Commonwealth of Virginia, and the State of Maryland to redesignate from nonattainment to attainment their respective portions of the Washington Area for the 1997 annual PM
Under the CAA, redesignation of an area to attainment and the accompanying approval of the
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 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, in which EPA is approving the redesignation requests and maintenance plan submitted by the District of Columbia, the Commonwealth of Virginia, and the State of Maryland for the 1997 annual PM
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Air pollution control, National parks, Wilderness areas.
40 CFR parts 52 and 81 are amended as follows:
42 U.S.C. 7401
(e) * * *
(a)
(b)
(e) * * *
(d)
(e) * * *
The addition reads as follows:
(b)
42 U.S.C. 7401
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is amending the standards and practices for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to remove the reference to ASTM International's E1527–05 standard practice. This 2005 standard practice was replaced with an updated standard, the E1527–13, by ASTM International, a widely recognized standards development organization. Specifically, EPA is amending the “All Appropriate Inquiries Rule” to remove the reference to ASTM International's E1527–05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.”
The effective date for this action is October 6, 2015.
Publicly available docket materials are available either electronically in
For general information, contact the CERCLA Call Center at 800–424–9346 or TDD 800–553–7672 (hearing impaired). In the Washington, DC metropolitan area, call 703–412–9810 or TDD 703–412–3323. For more detailed information on specific aspects of this rule, contact Patricia Overmeyer, Office of Brownfields and Land Revitalization (5105T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460–0002, 202–566–2774,
The EPA is removing the reference to the 2005 ASTM standard in the All Appropriate Inquiries Rule at 40 CFR part 312 (70 FR 66070, as amended). In November 2013, ASTM International replaced its 2005 standard (ASTM E1527–05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process”) with an updated standard, ASTM E1527–13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The updated 2013 standard is a currently recognized industry consensus-based standard to conduct all appropriate inquiries as provided under CERCLA. In December 2013, EPA published a final rule indicating that parties who acquire potentially contaminated properties and brownfields grantees using EPA brownfield grant funding to conduct site characterizations and assessments may use the ASTM E1527–13 standard practice when conducting all appropriate inquiries pursuant to CERCLA (78 FR 79319). Today's rule does not include any changes to the standards and practices included in the All Appropriate Inquiries Rule (AAI Rule). Any party who wants to meet the provisions under CERCLA to conduct all appropriate inquiries may follow the standards and procedures set forth in the AAI Rule at 40 CFR part 312 or use the new ASTM E1527–13 standard, as provided in the AAI Rule.
Persons potentially affected by this action are those who perform all appropriate inquiries, including public and private entities who intend to claim protection from CERCLA liability as bona fide prospective purchasers, contiguous property owners, or innocent landowners. In addition, any person conducting a site characterization or assessment on a property with a brownfields grant awarded under CERCLA section 104(k)(2)(B)(ii) may be affected by today's action. This includes state, local and tribal governments that receive brownfields site assessment grants. A summary of the potentially affected industry sectors (by North American Industry Classification System (NAICS) codes) is displayed in the table below.
The list of potentially affected persons in the above table may not be exhaustive. Our aim is to provide a guide for readers regarding those entities that EPA is aware potentially could be affected by this action.
Today's action, which amends the AAI Rule at 40 CFR part 312 setting Federal standards for the conduct of “all appropriate inquiries,” is authorized under section 101(35)(B) of CERCLA (42 U.S.C. 9601), as amended by the Small Business Liability Relief and Brownfields Revitalization Act of 2002.
On January 11, 2002, President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act, Public Law 107–118 (“the Brownfields Amendments”), which amended CERCLA. In general, the Brownfields Amendments provide funds to assess and clean up brownfields sites; clarify CERCLA liability provisions related to certain purchasers of contaminated properties; and provide funding to enhance state and tribal cleanup programs. Subtitle B of the Brownfields Amendments added new limitations on CERCLA liability under section 107 for bona fide prospective purchasers and contiguous property owners and clarified the requirements necessary to establish the innocent landowner defense under CERCLA. The Brownfields Amendments also revised section 101(35) of CERCLA to provide that parties acquiring contaminated or potentially contaminated property must undertake “all appropriate inquiries” into prior ownership and use of the property prior
The Brownfields Amendments further directed EPA to develop regulations establishing standards and practices for conducting all appropriate inquiries. On November 1, 2005, EPA promulgated regulations that established standards and practices for all appropriate inquiries (70 FR 66070). In the AAI Rule, EPA referenced the existing ASTM E1527–05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” and authorized its use to comply with the rule. On December 23, 2008, EPA revised the AAI Rule to recognize another ASTM International standard as compliant with the standards and practices set forth in the AAI Rule, ASTM E2247–08 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property” (73 FR 78716).
In November 2013, ASTM International published ASTM E1527–13, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” In early 2013, at ASTM International's request, EPA reviewed this standard and determined that a person's use of the standard would be compliant with the AAI Rule.
On December 30, 2013, EPA published a final rule which provided that persons conducting all appropriate inquiries may use the procedures included in ASTM E1527–13 to comply with the AAI Rule (78 FR 79319). On June 17, 2014, EPA published a proposed rule (79 FR 34480) proposing to amend the AAI Rule to remove the reference to ASTM E1527–05 Phase I Environmental Site Assessment Standard.
In response to the June 17, 2014 proposed rule (79 FR 34480), EPA received five comments. Four of the comments were supportive of the proposed rule. The sole negative comment asserted that the principal difference between the E1527–05 standard and the E1527–13 standard is the inclusion of a requirement to evaluate the potential presence of vapor releases under the E1527–13 standard. The commenter further stated that because vapor releases are not by themselves a CERCLA concern, EPA should continue to allow for the use of the E1527–05 standard. EPA disagrees with this comment. The scope of the AAI Rule and the ASTM E1527–05 standard always included the requirement to identify all indications of releases and threatened releases of hazardous substances, or “recognized environmental conditions (RECs),” including indications of vapor migration or vapor releases. With the updates included in the 2013 version of the ASTM E1527 standard, ASTM modified the definition of migration to specifically include vapor migration and remove any confusion regarding the need to identify all RECs, or all indications of releases or threatened releases of hazardous substances, when conducting an AAI investigation.
Two of the commenters who supported EPA's proposed rule recommended in their comments that EPA delay the effective date of the final rule until six months after the publication date, rather than the one year delay proposed by EPA. Although EPA agrees with the commenters' statements that most environmental professionals are likely already using the updated E1527–13 standard, the Agency believes it is prudent to provide for the one year delay in the effective date. The AAI Rule requires that AAI investigations be conducted within one year prior to the date of acquisition of the subject property (see 40 CFR 312.20(a)). In addition, the AAI Rule requires that certain aspects of the AAI investigation be conducted or updated within 180 days prior to the date of acquisition of the subject property (40 CFR 312.20(b)). Given these requirements, EPA determined that delaying the effective date for the final rule by only six months may be burdensome for some parties. Therefore, the effective date for this final rule, which removes the reference to the ASTM E1527–05 standard, will be October 6, 2015 allowing sufficient time for AAI investigations initiated or on-going at the time of publication of today's rule to be completed or updated prior to the effective date.
EPA is amending the AAI Rule at 40 CFR 312 to remove the reference to ASTM International's E1527–05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” In November 2013, ASTM International designated this standard a “historical standard” and replaced it with the updated ASTM E1527–13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.”
Today's action does not prevent parties from continuing to use other standards, methods, or customary business practices for conducting all appropriate inquiries, so long as they comply with the standards and practices set forth in the AAI Rule. Instead, today's proposed action removes the reference to a standard that ASTM International no longer recognizes as current since it no longer represents the most recent consensus-based standard.
EPA is taking this action because the Agency wants to reduce any confusion associated with the regulatory reference to a historical standard that is no longer recognized by its originating organization as meeting its standards for good customary business practice. In addition, we believe that today's final rule will promote the use of the 2013 standard currently recognized by ASTM International as the consensus-based, good customary business standard.
Today's action includes no further changes to the AAI Rule other than to remove the reference to the historical ASTM E1527–05 standard. It does not impact the reference to the recently revised ASTM standard, E1527–13 in the AAI Rule. It also does not impact parties who acquired properties between November 1, 2005 and the effective date of this final rule and used the 2005 ASTM standard (ASTM E1527–05) to comply with the AAI Rule, as it was in effect at the time the property was acquired.
Today's action is a final rule. The EPA anticipates that some parties, at this time may still be using the historical standard (ASTM E1527–05) to comply with the provisions of the AAI Rule. Therefore, the Agency is delaying the effective date of today's final action for one year to provide parties with an adequate opportunity to complete AAI investigations that may be ongoing and to become familiar with the updated industry standard (ASTM E1527–13). The effective date of today's final rule, which will remove the reference to ASTM E1527–05 in the AAI rule, is October 6, 2015.
This action is not a “significant regulatory action” under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This action will not impose an information collection burden under the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis for any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute; unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small business, small organizations, and small governmental jurisdictions.
Today's action does not change the current regulatory status quo and does not impose any regulatory requirements. After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for state, local, or tribal governments or the private sector. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action merely removes a reference to a historical voluntary consensus standard. The final rule imposes no new regulatory requirements and will result in no additional burden to any entity. Therefore, this action is not subject to the requirements of sections 202 or 205 of UMRA.
As stated above, this final rule also is not subject to the requirements of section 203 of UMRA because it contains no new regulatory requirements that might significantly or uniquely affect small governments.
This action does not have federalism implications. Today's final rule will not substantially change the current regulation; it merely removes a reference to a historical voluntary consensus standard. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in EO 13132. Thus, EO 13132 does not apply to this rule.
This action does not have tribal implications, as specified in EO 13175 (65 FR 67249, November 9, 2000). This action merely removes a reference to a historical voluntary consensus standard. Today's final rule does not change any current regulatory requirements and therefore will not impose any impacts upon tribal entities. Thus, EO 13175 does not apply to this action.
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
Today's final rule is not subject to EO 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under EO 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This action involves technical standards. Therefore, the requirements of section 12(d) of the NTTAA (15 U.S.C. 272) apply. The NTTAA was signed into law on March 7, 1996 and, among other things, directs the National Institute of Standards and Technology (NIST) to bring together federal agencies as well as state and local governments to achieve greater reliance on voluntary standards and decreased dependence on in-house standards. It states that use of such standards, whenever practicable and appropriate, is intended to achieve the following goals: (a) Eliminate the cost to the government of developing its own standards and decrease the cost of goods procured and the burden of complying with agency regulation; (b) provide incentives and opportunities to establish standards that serve national needs; (c) encourage long-term growth for U.S. enterprises and promote efficiency and economic competition through harmonization of standards; and (d) further the policy of reliance upon the private sector to supply Government needs for goods and services. The Act requires that federal agencies adopt private sector standards, particularly those developed by standards developing organizations (SDOs), wherever possible in lieu of creating proprietary, non-consensus standards.
Today's final rule complies with the NTTAA as it allows persons conducting all appropriate inquiries to use the procedures included in the updated ASTM International standard known as Standard E1527–13 and entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” to comply with the AAI Rule. The rule also deletes reference to a standard that is no longer recognized as current by the standards developing organization responsible for its development.
Executive Order 12898 (59 FR 7629, Feb. 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this final rule will not have disproportionately high and adverse human health or
The Congressional Review Act, as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Environmental protection, Administrative practice and procedure, Hazardous substances.
For the reasons set out in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as follows:
Section 101(35)(B) of CERCLA, as amended, 42 U.S.C. 9601(35)(B).
Federal Communications Commission.
Final rule, correction.
This document corrects errors in the supplementary information portion of a
Effective October 6, 2014.
Alexander Minard, Wireline Competition Bureau, (202) 418–7400.
This summary contains corrections to the supplementary information portion of a
In Final rule FR Doc. 2014–18328, published August 6, 2014 (79 FR 45705), make the following corrections.
1. On page 45711, in the first column, in paragraph 44, third and fourth lines, replace “eligible locations determined by the model” with “funded locations and extremely high-cost locations.”
2. On page 45726, in the first column, in paragraph 155, eleventh and twelfth lines, replace “eligible locations determined by the model” with “funded locations and extremely high-cost locations.”
Federal Communications Commission.
Final rule.
The Audio Division amends the FM Table of Allotments, to remove certain vacant FM allotments that were auctioned in FM Auction 91 that are currently considered authorized stations. FM assignments for authorized stations and reserved facilities will be reflected solely in Media Bureau's Consolidated Database System (CDBS).
Effective October 6, 2014.
Rolanda F. Smith, Media Bureau, (202) 418–2700.
This is a summary of the
Radio, Radio broadcasting.
Federal Communications Commission.
For the reasons discussed in the preamble, the Federal Communications
47 U.S.C. 154, 303, 334, 336 and 339.
Federal Communications Commission.
Final rule.
The Audio Division is reinstating Channel 233A in Bruce, Mississippi, and dismissing the Petition for Rule Making (“Petition”) filed by Telesouth Communications, Inc., proposing the substitution of Channel 284A for vacant Channel 233A for failure to comply with the Commission's rules, and the associated “hybrid” application (“Application”) for Station WTNM (FM) to operate on Channel 234A rather than Channel 288A at Water Valley, Mississippi. We also dismiss the Counterproposal filed by Elijah Mondy, proposing the allotment of Channel 284A at New Houlka, Mississippi, as the community's first local service, for failure to comply with the Commission's rules.
Effective October 6, 2014.
Secretary, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Rolanda F. Smith, Media Bureau, (202) 418–2700.
This is a synopsis of the Commission's
The Petition requested the substitution of Channel 284A for vacant Channel 233A at Bruce, Mississippi. Channel 233A at Bruce, Mississippi, a vacant allotment resulting from the cancellation of the license for Station WCMR–FM, is not currently listed in the FM Table of Allotment. Accordingly, we reinstate Channel 233A at Bruce, Mississippi in the FM Table of the Allotments. This action constitutes an editorial change in the FM Table of Allotments. The reference coordinates for Channel 233A at Bruce, Mississippi are 34–01–17 NL and 89–20–06 WL.
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications
47 U.S.C. 154, 303, 334, 336.
Federal Communications Commission.
Final rule.
This document addresses an Order on Reconsideration and Second Report and Order in which the Commission takes further actions to foster the development and deployment of new and innovative Medical Body Area Network (MBAN) devices. In addressing petitions for reconsideration of the First Report and Order in this proceeding, the Commission provides MBAN users with additional flexibility to enable the implementation of technical standards being developed for MBAN devices, and clarify and modify portions of its rules to facilitate the coordination, deployment, and use of MBAN systems. In the Second Report and Order portion in this proceeding, the Commission finalizes the process for selecting a MBAN Coordinator. This coordinator will facilitate use of the MBAN frequencies, which operate in shared-use bands. Collectively, our actions will allow the development of new and innovative health care applications.
Effective November 5, 2014, except for § 95.1225(c), which contains information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Commission will publish a document in the
Jamison Prime, (202) 418–7474,
This is a summary of the Commission's Order on Reconsideration and Second Report and Order, ET Docket No. 08–59, FCC 14–124, adopted August 20, 2014 and released August 21, 2014. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY–A257), 445 12th Street SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room, CY–B402, Washington, DC 20554. The full text may also be downloaded at:
1. In the Order on Reconsideration and Second Report and Order, the Commission took further actions to foster the development and deployment of new and innovative Medical Body Area Network (MBAN) devices. MBAN technology provides a platform for the wireless networking of multiple body-worn sensors used for measuring and recording physiological parameters and other patient information or for performing diagnostic or therapeutic functions, primarily in health care facilities. By addressing petitions for reconsideration of the First Report and Order in this proceeding, we provided MBAN users with additional flexibility to enable the implementation of technical standards being developed for MBAN devices, and clarified and modified portions of our rules to facilitate the coordination, deployment, and use of MBAN systems.
2.
3. Although GE Healthcare, Phillips Healthcare, and the Aerospace and Flight Test Radio Coordinating Council (AFTRCC) (the” Joint Parties”) had suggested this approach as part of their comprehensive set of proposed rules, they had not discussed the rationale for this limitation until the filing of their Petition for Reconsideration. Because the Petition for Reconsideration stated with particularity the reasons why the Commission should adopt their proposed authorized locations definition, it found that the public interest would be it served by taking the Joint Parties' facts and arguments into consideration.
4. As part of this decision, the Commission determined that, because the existing MBAN standard will support numerous patients in the 2390–2400 MHz band, and because frequency reuse techniques can augment that capacity in many situations, no health care facilities—including those that do not qualify for use of the 2360–2390 MHz band—will be precluded from operating MBAN systems. For this reason, the Commission disagreed with SmartEdgeNet that health care providers will be “denied the benefits of MBAN” if the Commission limited the authorized locations as requested.
5.
6. The Commission concluded that, based on the permissible outdoor use in this band and the relatively low power operations of MBAN transmitters (which effectively limits any gain in
7.
8.
9.
10. The Commission modified existing rule § 95.1209(g) to provide an exception to permit communications between programmer/control transmitters of different MBAN systems for the sole purpose of avoiding interference to each other, based on the text of the existing MedRadio rules for Medical Micropower Networks. It recognized that allowing MBAN systems in the 2360–2390 MHz band (as well as the 2390–2400 MHz band) to coordinate use among themselves of the available MBAN frequencies could promote efficient spectrum use. The Commission emphasized that it considered the modified requirement to be a limited exception to the general rule and, in agreement with the Joint Parties, noted that programmer/control transmitters would continue to be barred from relaying the control message to each other. It retained the prohibition on programmer/control transmitters relaying other information (such as medical data) to each other.
11. The Commission amended § 95.1209 of the rules to eliminate the language that precludes body-worn devices from communicating with other body-worn devices in the 2360–2400 MHz band. It recognized that doing so could potentially enhance patient welfare by preserving battery life and enhancing signal strength in situations that may adversely affect the reception of data. Further, the Commission noted that the adoption of industry standards, it may have made it both feasible and practical to produce such equipment.
12. Additionally, the Joint Parties asked that the Commission allow either a programmer/control transmitter or a body-worn device to perform as a “coordinator node” in an MBAN system. According to the Joint Parties, coordinator node is the “. . . term used in IEEE 802.15.6 for the node responsible for coordinating the MAC function (
13.
14. In the
Additionally, with regard to programmer/control transmitters, § 95.628(c) states that a MedRadio programmer/control transmitter shall not commence operating and shall automatically cease operating in the 2360–2390 MHz band if it does not receive, in accordance with the
15. The Joint Parties asserted that § 95.1209 as adopted in the
16. The Commission modified § 95.628(c) of the rules, as shown below, to clearly state that body-worn transmitters must be capable of ceasing transmissions when necessary to avoid interference in the 2360–2390 MHz band. It agreed that it is “critical that all MBAN devices . . . cease operation in 2360–2390 MHz in the absence of a control message,” and noted that, because the rules adopted in the
17.
18.
19. Finally, the Commission clarified that replacement of programmer/control transmitters having the same technical characteristics as those reported on the health care facility's registration (
20.
21. The Commission determined that it would be beneficial to further clarify the procedures for how the AMT coordinator is consulted before an MBAN location or operation is changed. Specifically, the Commission found the need to provide clarification as to whether coordination with or notification to the AMT coordinator would be required if the modified
22.
23.
24.
25.
This device may not interfere with stations authorized to operate on a primary basis in the 2360–2400 MHz band, and must accept any interference received, including interference that may cause undesired operation.
26. The Commission denied the Joint Parties' request that, in the event that the warning is not included on the device label, the Commission should require that the warning be placed on the front page of the instruction manual in capital letters. On reconsideration, the Commission found that the Joint Parties had not offered any reason for it to question this analysis the Commission undertook in the
27.
28. The Commission's rules require that MBAN operations in the 2360–2390 MHz be registered and coordinated to ensure that AMT operations in this band are protected from harmful interference.
29. In the
30.
31.
32. Because the role of the MBAN coordinator is essential to prevent harmful interference to a primary service, the Commission indicated that it is important to allow the MBAN coordinator to be replaced by the Commission if necessary. Consistent with the existing procedures for the WMTS coordinator, the Commission delegated to the Bureau the authority to remove the MBAN coordinator after giving adequate notice if it determines that such an action would serve the public interest. The Bureau can include specific provisions in the MOU, including the notice it will give the coordinator.
33.
• Ability to register and maintain a database of MBAN transmitter locations and operational parameters;
• Knowledge of or experience with medical wireless systems in health care facilities (
• Knowledge of or experience with AMT operations;
• Ability to calculate and measure interference potential between MBAN and AMT operations and to enter into mutually satisfactory coordination agreements with the AMT coordinator based on the requirements in § 95.1223(c);
• Ability to develop procedures to ensure that registered health care facilities operate an MBAN consistent with the requirements in § 95.1223.
34. In the
35. The Commission also found that the MBAN coordinator should be able to rely on a contract with a third party for
36. The Commission found that MBAN coordinator candidates that rely on third party contracts to demonstrate compliance with the core qualifying criteria will need to disclose certain information about such contracts. The Commission found that demonstration of the core qualifying criteria will require the disclosure of more detailed information because the relationship between the MBAN coordinator and a third-party technical expert will affect both the coordinator's ability to carry out its responsibilities and the program's ability to continue if either the coordinator or the third-party expert must relinquish its role. The Commission therefore directed the Bureau to require that applicants for the MBAN coordinator role relying on a third party consultant make a number of attestations regarding the consultant and the contract between the consultant and the applicant, and to take this information into account when judging the suitability of applicants for the MBAN coordinator position. This information must include the identity and qualifications of any third-party technical consultant the MBAN coordinator will rely on, the length of time that the contract between the MBAN coordinator and the third-party consultant would be in effect, and under what circumstances that contract could terminate.
37. The Commission also indicated that the MOU should also recognize the possibility that the technical consultant would stop providing service to the MBAN coordinator. Upon such an occurrence, the MBAN coordinator would need time to employ a replacement consultant who meets the Commission's high standards and, if such a coordinator is not found, the Commission needs time to replace the MBAN coordinator. The Commission provided the Bureau with the discretion to include such requirements in the MOU it executes with the MBAN coordinator.
38.
39. The Commission concluded that the MBAN coordinator should establish MBAN user fees that include all costs associated with MBAN registration and coordination, including the cost of any third-party technical consultant employed by the MBAN coordinator and the fees of the AMT coordinator. This approach establishes a single pay point for MBAN users and will simplify the registration and coordination process for them, and is supported by the record. As with the other costs for which the MBAN user is responsible, the cost of any third-party technical consultant must be reasonable. This cost can include only the MBAN coordinator's actual costs for such consultation services. The amount of the payment to the AMT coordinator should be determined by agreement between the AMT and MBAN coordinators, and would be incorporated into the overall coordination fee that an MBAN user incurs. The Commission indicated that it expects the AMT coordinator to pass on only its actual coordination costs, on a not-for-profit basis, to the MBAN coordinator. This cost may include the actual cost to the AMT coordinator of coordinating Federal AMT operations, but may not include charges for work performed by Federal employees such as the Federal Government Area Frequency Coordinators. Because the costs incurred by the AMT coordinator will be charged to the MBAN user as part of the registration and coordination fees paid to the MBAN coordinator, the Commission found that there is no need to place a requirement in our rules that the MBAN user bear direct responsibility for the AMT coordinator's cost.
40. On the matter of how reasonable costs should be evaluated and what oversight the Commission should exercise over AMT–MBAN coordination fees, the Commission observed that the Bureau has the authority to investigate the reasonableness of the MBAN registration and coordination fees, and it will do so as appropriate, either in response to complaints or on its own motion. The MBAN coordinator will be required to provide the Bureau with any information it requests in the course of conducting such an investigation. In judging the reasonableness of MBAN registration and coordination fees the Bureau should consider the customary practices in other bands where registration or coordination is required under the Commission's rules. The Commission also required the MBAN coordinator to provide the Bureau with its fee schedule upon request. This fee notification requirement coupled with the ability to investigate the reasonableness of fees will provide a necessary incentive for the MBAN and AMT coordinators to maintain the fee structure for MBAN registration and coordination at a reasonable level.
41.
42. The Commission agreed with Philips/GE that the MBAN coordinator and AMT coordinator should quickly reach agreement on mutually agreeable procedures to create coordination agreements. Until such procedures are in place, no registered MBAN system can be deployed. Hence, the Commission required the selected MBAN coordinator to report to the Commission when it has procedures in place with the AMT coordinator allowing coordination agreements for MBAN systems to be made. If no such report is made within six months of selection of the MBAN coordinator, the Commission directed the Bureau to take all necessary action to promote such an agreement.
43. The Commission declined to adopt AFTRCC's suggestion that selection of the MBAN coordinator be contingent on executing a coordination agreement with AFTRCC. The Commission emphasized that it is the responsibility of both the selected MBAN coordinator and AFTRCC to cooperate in good faith in developing procedures for MBAN coordination.
44.
45. The Commission concluded that the petition does not warrant further consideration at this time and dismissed it without prejudice. First, the Commission pointed out that MBAN systems are designed to provide wireless monitoring of patients over short distances to provide patients with mobility in hospitals and other health care facilities. In the
46.
47. In the
48. The Commission also addresses several issues related to MBAN users. First, the revisions to the authorized location rule will not increase the number of health care facilities that can use the 2360–2390 MHz band, and therefore will not impose regulatory burdens on any new small entities. Second, in the Report and Order, the Commission originally declined to require registration for the 2390–2400 MHz band users because it concluded that such a requirement “would unnecessarily burden hospitals that do not need assistance from the MBAN coordination.” Under the revised registration requirement we are adopting, the scope is narrower and it targets only those hospitals that may eventually need to interact with MBAN coordinator. We find that the benefit of providing the MBAN coordinator with this additional information outweighs the slight increase in registration costs for this limited number of MBAN
49. Therefore, the Commission certifies that the requirements of this
50.
51.
52. Pursuant to the authority contained in sections 4(i), 301, 302, 303(e), 303(f), 303(r), and 307(e) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302a, 303(e), 303(f), 303(r), and 307(e), this Order on Reconsideration and Second Report and Order
53. The rules and requirements adopted herein will become effective November 5, 2014, except for 47 CFR 95.1225(c), which includes new or modified information collection requirements that require approval by Office of Management and Budget under the PRA and
54. Pursuant to the authority of section 5(c) of the Communications Act of 1934, as amended, 47 U.S.C. 155(c), the Commission delegate authority to the Wireless Telecommunications Bureau as set forth in this Second Report and Order.
55. The Petition for Rulemaking filed by Ben Bartlett in ET Docket Nos. 08–59 and 04–186 is
56. The Joint Petition for Reconsideration of GE Healthcare, Phillips Healthcare, and the Aerospace and the Flight Test Radio Coordinating Council is
57. The Petition for Reconsideration of The American Society for Healthcare Engineering of the American Hospital Association is
58. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,
Communications equipment, Medical devices, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 95 as follows:
47 U.S.C. 154, 301, 302(a), 303, and 307(e).
(c)
MedRadio operation is authorized anywhere CB station operation is authorized under § 95.405, except that use of Medical Body Area Network devices in the 2360–2390 MHz band is restricted to indoor operation within a health care facility registered with the MBAN coordinator under § 95.1225. For the purposes of this subpart, health care facilities are limited to hospitals and
(g) Medical body-worn transmitters may relay only information in the 2360–2400 MHz band to a MedRadio programmer/control transmitter or another medical body-worn transmitter device that is part of the same Medical Body Area Network (MBAN). A MedRadio programmer/control transmitter may not be used to relay information in the 2360–2400 MHz band to other MedRadio programmer/controller transmitters. Wireless retransmission of all other information from an MBAN transmitter to a receiver that is not part of the same MBAN shall be performed using other radio services that operate in spectrum outside of the 2360–2400 MHz band. Notwithstanding the above restriction, a MedRadio programmer/control transmitter in the 2360–2400 MHz band may communicate with another MedRadio programmer/control transmitter in the 2360–2400 MHz band to coordinate transmissions so as to avoid interference between the two Medical Body Area Networks.
(a) An antenna for a MedRadio transmitter shall not be configured for permanent outdoor use.
(b) Any MedRadio antenna used outdoors shall not be affixed to any structure for which the height to the tip of the antenna will exceed three (3) meters (9.8 feet) above ground.
(c) Paragraphs (a) and (b) of this section do not apply to MedRadio operations in the 2390–2400 MHz band.
(a)
(3) Number of MedRadio programmer/control transmitters in use at the health care facility as of the date of registration including manufacturer name(s) and model numbers and FCC identification number;
(5) Location of MedRadio programmer/control transmitters (
(b)
(a) The Commission will designate a frequency coordinator(s) to manage the operation of medical body area networks by eligible health care facilities.
(b) * * *
(1) Register health care facilities that operate MBAN transmitters, maintain a database of these MBAN transmitter locations and operational parameters, and provide the Commission with information contained in the database upon request;
(c) The frequency coordinator shall:
(1) Provide registration and coordination of MBAN operations to all eligible health care facilities on a non-discriminatory basis;
(2) Provide MBAN registration and coordination services on a not-for-profit basis;
(3) Notify the Commission of its intent to no longer serve as frequency coordinator six months prior to ceasing to perform these functions; and
(4) Transfer the MBAN registration data in usable form to a frequency coordinator designated by the Commission if it ceases to be the frequency coordinator.
Federal Highway Administration (FHWA), Federal Transit Administration (FTA), Department of Transportation (DOT).
Final rule.
This final rule amends the FHWA and FTA joint procedures that implement the National Environmental Policy Act (NEPA) by adding new categorical exclusions (CE) for FHWA and FTA; allowing State departments of transportation (State DOT) to process certain CEs without FHWA's detailed project-by-project review and approval as long as the action meets specific constraints; and adding a new section on programmatic agreements between FHWA and State DOTs that allow State DOTs to apply FHWA CEs on FHWA's behalf, as described in section 1318 of the Moving Ahead for Progress in the 21st Century Act (MAP–21).
Effective on November 5, 2014.
For the FHWA: Owen Lindauer, Ph.D., Office of Project Delivery and Environmental Review (HEPE), (202) 366–2655, or Jomar Maldonado, Office of the Chief Counsel (HCC), (202) 366–1373, Federal Highway Administration,
On July 6, 2012, President Obama signed into law MAP–21 (Pub. L. 112–141, 126 Stat. 405), which contains new requirements that the FHWA and the FTA, hereafter referred to as the “Agencies,” must meet related to the NEPA (42 U.S.C. 4321 et seq.). The Agencies' joint procedures at 23 CFR part 771 describe how the Agencies comply with NEPA and the Council on Environmental Quality (CEQ) regulations implementing NEPA; and include CEs that identify actions the Agencies have determined do not normally have the potential for significant environmental impacts and therefore do not require the preparation of an environmental assessment (EA) or environmental impact statement (EIS), pursuant to 40 CFR 1508.4. Section 771.117 establishes CEs for FHWA actions and § 771.118 establishes CEs for FTA actions. Sections 771.117(c) and 771.118(c) establish specific lists of categories of actions, or “(c)-list” CEs, that the Agencies have determined normally do not individually or cumulatively have a significant effect on the human environment and do not require an EA or EIS. Sections 771.117(d) and 771.118(d) list examples of actions that may be categorically excluded from further NEPA review but require additional documentation demonstrating that the specific criteria for a CE are satisfied and that no significant environmental impacts will result from the action. The list of examples of actions that may be excluded as “(d)-list” CEs is not exclusive and the authority may be used for actions that are not included in the list of examples. Additionally, §§ 771.117 and 771.118 include the requirement for considering unusual circumstances, which is how the Agencies consider extraordinary circumstances, in accordance with the CEQ regulations. The presence of “unusual circumstances” requires that the Agencies “conduct appropriate environmental studies to determine if the CE classification is proper” pursuant to §§ 771.117(b) or 771.118(b). The potential for unusual circumstances for a project does not automatically trigger an EA or EIS. The FTA requires Agency approval for all CEs. The FHWA requires detailed project-by-project review and approval only for (d)-list CEs.
Section 1318 of MAP–21 requires the Secretary of Transportation to: (1) survey and publish the results of the use of CEs for transportation projects since 2005 and solicit requests for new CEs; (2) publish a notice of proposed rulemaking (NPRM) to propose new CEs received by the Secretary to the extent that the CEs meet the criteria for a CE under 40 CFR 1508.4 and 23 CFR part 771; and (3) issue an NPRM to move three actions found in 23 CFR 771.117(d)(1) through (3) to paragraph (c) to the extent that such movement complies with the criteria for a CE under 40 CFR 1508.4. In addition, section 1318(d) directs the Secretary to seek opportunities to enter into programmatic agreements, including agreements that would allow a State to determine, on behalf of FHWA, whether a project is categorically excluded. The Agencies are carrying out this rulemaking on behalf of the Secretary.
This final rule contains a description of the notice of NPRM issued on September 19, 2013 (78 FR 57587), a summary of public comments received on that NPRM and responses to those comments, and a description of the final regulatory text at the end of this rule. Changes to the regulatory text not described in the summary and response to comments are described in the Section-by-Section Analysis. Following the Section-by-Section Analysis, this rule explains the various rulemaking requirements that apply and how they have been met.
On September 19, 2013, the Agencies published an NPRM proposing amendments to 23 CFR 771.117 and 771.118 as mandated by sections 1318 of MAP–21. The Agencies proposed to: (1) add four new CEs for FHWA and five new CEs for FTA, (2) allow FHWA to process CEs in § 771.117(d)(1) through (3) as (c)-list CEs when the action meets specified constraints, and (3) add a new section allowing programmatic agreements between FHWA and State DOTs to permit State DOTs to apply FHWA CEs on the Agency's behalf. The NPRM sought comments on how the Agencies proposed to interpret and implement the provision.
The public comment period closed on November 18, 2013. The Agencies considered all comments received when developing this final rule.
The Agencies received comments from a total of 30 entities, which included 12 State DOTs (Alaska, California, Colorado, Florida, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Virginia, Wyoming, and Washington), 6 transit and rail agencies (Los Angeles County Metropolitan Transportation Authority, Metropolitan Transportation Authority of New York, New Jersey Transit, San Francisco Bay Area Rapid Transit District, Southern California Regional Rail Authority, and Utah Transit Authority), 4 public interest groups (National Trust for Historic Preservation, Natural Resources Defense Council, Southern Environmental Law Center, and Transportation Transformation Group), 3 professional associations (American Association of State Highway and Transportation Officials, American Public Transportation Association, and American Road and Transportation Builders Association), 2 Federal agencies (U.S. Army Corps of Engineers and U.S. Department of the Interior), 1 Indian tribe (Osage Nation Historic Preservation Office), 1 regional transportation consortium (Alameda Corridor-East Construction Authority, Orange County Transportation Authority, San Bernardino Associated Governments, and Southern California Regional Rail Authority) and 1 anonymous comment. The majority of commenters suggested additional clarifications on the use of CEs, including expanding or limiting their scope. The comments submitted have been organized by theme or topic.
The FTA received 11 comments generally in support of the proposed rule change. Six of the comments provided overall support for all changes, while one comment specifically supported the new CEs added at § 771.118(c)(14), (15), and (16). Four comments supported the changes made to § 771.118(d), one of which offered additional supporting information.
The FHWA received two comments that supported the consideration of programmatic CE agreements in § 771.117(g). Two comments supported the statement in the preamble that early acquisitions of rights-of-way under Section 108(d) may be approved as (d) list CEs. One comment supported the six conditional constraints in 771.117(e) to condition the move of (d)-listed CE actions to the (c)-list. The FHWA reviewed 109 comments on the new CEs, including the former (d)-list CEs
The FTA and FHWA appreciate the comments received on the proposed rule.
The FTA received a comment that suggested the numbering of the new CEs was incorrect. The numbering presented in the NPRM (i.e., the new CEs begin with § 771.118(c)(14)) is correct as FTA recently added two new CEs at § 771.118(12) and (13) through a separate rulemaking (see 79 FR 2107).
Five State DOTs and two professional associations noted that only a handful of the new CEs proposed by transportation agencies were considered appropriate to include and additional effort should have been expended to identify more.
The Agencies are guided by their experience with CEs and considered the current administrative process for CE NEPA compliance. The Agencies also considered the survey results made public in the U.S. Department of Transportation National Environmental Policy Act Categorical Exclusion Survey Review (
One professional association asked the Agencies to involve the regulated community as new CEs are developed. The commenter requested the Agencies to use stakeholder meetings as a forum to discuss the creation and implementation of CEs.
The Agencies have involved State DOTs, transit authorities, metropolitan planning organizations, and other governmental agencies in the development of the new CEs in this rule. For example, the Agencies' new CEs created in this final rule are a direct response to the requests received for new CEs under the section 1318(a) survey process. The Agencies also relied on the public notification and comment process required in the rulemaking process, 40 CFR 1507.3, and the CEQ's guidance “Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act” (75 FR 75628). The Agencies will provide outreach and training to their stakeholders such as State DOTs and transit agencies to ensure the appropriate implementation of the CEs. The FHWA is not planning to provide training to the public but FTA will be hosting a public Webinar that focuses on FTA's portion of the rule.
Three State DOTs and one professional association expressed concern that the NPRM proposed little to help expedite project delivery and did not fully embrace flexibilities emphasized in MAP–21. Two State DOTs and one professional association indicated that the proposed rule was overly prescriptive and could limit States' flexibility. Two transit agencies and one professional association indicated that the rule will save time and costs and streamline the environmental review process. One State DOT and one professional association suggested re-writing the rule in a manner that is consistent with congressional intent to streamline process and reduce cost, and remove language that is not specifically required for compliance with the statute. One professional association stated that all newly created CEs must be implemented in a programmatic fashion, with no further agency review. A federally recognized Tribe indicated that a shortened review period for evaluation of highway projects may cause tribal governments hardship.
The Agencies have undertaken various initiatives that are consistent with the mandates in MAP–21 to expedite project delivery and reduce project costs. These include flexibilities developed through FHWA's Every Day Counts initiative (
The U.S. Army Corps of Engineers (USACE) noted that Nationwide Permit 23 (NWP 23)—the Clean Water Act (CWA) section 404 Nationwide Permit for actions that qualify for CEs approved by the USACE—is an example of efficient regulatory review consistent with the goals of MAP–21. The USACE noted that it had previously approved FHWA CEs for this purpose but has not approved the new FHWA CEs or any of the FTA's CEs for use with NWP 23. As a result, those FHWA CEs moved from the (d)-list to the (c)-list would continue to require submittal of a pre-construction notification. Lastly, USACE noted that if FTA would like their CEs to be covered under the permit, FTA would need to request USACE review and receive approval prior to using any of its CEs with NWP 23.
The Agencies agree that until the USACE approves the new CEs for use under NWP 23, the CEs could not be used to meet NWP 23 and a pre-construction notification would be needed. The FTA understands that its categorically excluded actions under § 771.118 are not currently covered under the USACE NWP 23. The FTA has formally requested that USACE review FTA's CEs in order to utilize NWP 23 and FTA will communicate with the USACE further concerning the application of NWP 23 to FTA actions.
One federally recognized Tribe indicated that the exemption from further review and permit requirements for a project did not eliminate the need for establishing the area of potential effect for that project under section 106 of the National Historic Preservation Act (NHPA), particularly for projects in areas that have not been previously surveyed. The Tribe indicated that historic preservation requirements under section 106 of NHPA are considered satisfied if treatment has been agreed upon in a memorandum of agreement but there was no provision to ensure that federally recognized tribes are included in the development of the agreement. The Tribe commented that the new rulemaking may authorize a State to use State review and approval laws and procedures in lieu of Federal laws and regulations, which has the potential to significantly worsen consistency issues.
Requirements under other Federal and State laws and regulations still apply, such as the CWA, Clean Air Act, NHPA, General Bridge Act of 1946, and Endangered Species Act (ESA). In the case of projects affecting historic properties (which includes properties of religious and cultural significance for Tribes that are listed on or eligible for the National Register), the Agencies must follow the section 106 procedures outlined in 36 CFR part 800. This includes the initiation of the section 106 process (identifying the parties such as federally recognized Tribes), identification of historic properties (including defining the area of potential effect), evaluation of effects, and resolution of adverse effects. The final rule does not authorize a State to use or rely on State environmental review and approval laws in lieu of the Federal environmental requirements.
The U.S. Department of the Interior (DOI) indicated that it transfers surplus Federal lands and buildings to State and local agencies for parks and recreation use in perpetuity, and these transfers include deeds with perpetual use requirements and perpetual Federal agency oversight. The DOI expressed concern that with the rulemaking the States might overlook consultation with DOI in situations where property at issue was acquired through DOI and the deed contained perpetual use requirements.
The Agencies emphasize that the rule does not exempt a project that qualifies for a CE from compliance with all other requirements applicable to the action. The CE determination does not exempt a State from consultation requirements with the appropriate Federal land management agency if the project involves a property that has perpetual use requirements imposed by the Federal land management agency.
Five State DOTs, one regional transportation consortium, one professional association, one Federal agency, and one public interest group requested clarification in the final rule of the documentation necessary to ensure that the criteria for the CEs are satisfied. One professional association expressed concern that additional documentation beyond a project description is unnecessary. Two State DOTs expressed the opinion that some aspects of the NPRM will actually increase CE analysis and documentation. Two public interest groups appreciated the Agencies' reassertion that application of the new CEs must still take into account unusual circumstances. One public interest group suggested that any reduction in the documentation requirements, as advocated by a number of the State DOTs, would increase the potential for inconsistent and erroneous application of the new CEs. The public interest group urged the Agencies to actively monitor and audit the use of the CEs for the first few years to evaluate whether additional guidance is necessary.
The final rule does not prescribe the specific amount of documentation needed to determine if a project qualifies for a CE or whether unusual circumstances exist such that additional environmental studies are needed to determine if the CE classification is proper. It is important to note that all projects that qualify for CE determinations require the consideration of unusual circumstances. Unusual circumstances include substantial controversy on environmental grounds or significant impacts on properties protected by section 4(f) of the Department of Transportation Act (23 U.S.C. 138 and 49 U.S.C. 303) or section 106 of the NHPA, or inconsistencies with any Federal, State, or local law, requirement or administrative determination relating to the environmental aspects of the action (23 CFR 771.117(b); 23 CFR 771.118(b)). This list of unusual circumstances is not all-inclusive and the finding that there are unusual circumstances will depend on the context of the project. For example, the presence of listed species or critical habitat designated under ESA within the project area could signal unusual circumstances that require the Agencies and the applicant to conduct appropriate studies to determine if the CE classification is proper. In the Federal endangered species, threatened species or critical habitat context, early coordination with the appropriate agency (U.S. Fish and Wildlife Service or National Marine Fisheries Service) and the results of the consultation process under section 7 of ESA would be critical in the final assessment of whether the CE classification is proper.
The amount of documentation needed for a project depends on the context in which the project takes place. Some actions may carry little risk of triggering unusual circumstances such that there is no practical need for or benefit from obtaining and preparing documentation other than the project's description. Other actions may have the potential to raise unusual circumstances or may raise questions about a potential CE determination due to their more environmentally invasive nature and would, therefore, warrant sufficient documentation (like information on studies, analyses, or surveys conducted) to prove that the CE classification is appropriate. The Agencies' regulations establish a presumption that the types of actions that qualify for a (c)-list CE typically do not require much more than the project description to make a determination that the CE covers the proposed project and that there are no unusual circumstances that require additional environmental studies to determine if the CE determination is proper. The presumption for actions that qualify for (d)-list CEs is that they require additional information to make an appropriate CE determination because they are types of actions that are more environmentally invasive and have a higher potential to trigger one or more unusual circumstances.
In section 1318(c) of MAP–21, Congress required the Agencies treat actions that the Agencies have determined have a higher potential of triggering unusual circumstances as actions that do not have that higher potential to the extent that such movement complies with the criteria for a CE under 40 CFR 1508.4. The final
The Agencies received an anonymous comment that suggested CEs should be made available to the public and CEQ if they contain mitigation measures or if there are unresolved issues. The anonymous commenter, cited a court case (
The Agencies typically do not post CEs publicly as they issue a very large number each year and the process is designed to be expeditious and simple. In accordance with the CEQ NEPA implementing regulations, a categorical exclusion is a “category of actions which do not individually or cumulatively have a significant effect on the human environment
The FTA received a comment that requested clarification on the documentation requirements for § 771.118(c) CEs and § 771.118(d) CEs. The commenter further suggested that the following language from the preamble of the NRPM be included in the regulatory text of the final rule: “The project description [for a (c)-list CE] typically contains all of the information necessary to determine if the action fits the description of the CE and that no unusual circumstances exist that would require further environmental studies.”
The FTA does not believe clarifying documentation requirements for the (c)-list CEs (§ 771.118(c)) versus the (d)-list examples (§ 771.118(d)) in the regulatory text is necessary because it is more appropriate to provide clarity in FTA's “Guidance for Implementation of FTA's Categorical Exclusions” (23 CFR 771.118). In general, grant applicants should include sufficient information for FTA to make a CE determination. Generally, a description of the project in the grant application, as well as any maps or figures typically included with the application or as requested by the FTA Regional Office is sufficient for FTA. Submission of this information through the FTA grant application process or through other means does not mean an action that otherwise meets the conditions for a CE under § 771.118(c) needs to be converted to a § 771.118(d) action. Given the nature of the CEs listed under § 771.118(c), documentation demonstrating compliance with environmental requirements other than NEPA, such as section 106 of the NHPA, or section 7 of ESA, may be necessary for the processing of the grant. That supporting documentation can be included in FTA's grant management system or kept in the FTA Regional Office's project files, and applicants should consult with their FTA Regional Office to determine which is preferred. Other applicable environmental requirements must be met regardless of the applicability of the CE under NEPA, but compliance with and documentation of other environmental requirements do not necessarily elevate an action that otherwise is categorically excluded under § 771.118(c) to § 771.118(d).
Section 771.118(d), which is an open-ended categorical exclusion authority, lists example actions and requires documentation to verify the application of a CE is appropriate (i.e., the action meets the criteria established in § 771.118(a) and (b)).
Two professional associations recommended FHWA develop centralized training for CE determinations and processing or promote the new CEs that are now available. One of the professional associations suggested FHWA develop a centralized data base for guidance and frequently asked questions (FAQ) to increase consistency in the application of these new rules. The commenter urged that the new CEs be implemented in a uniform manner, without differences among offices. The commenter also opposed the issuance of regional guidance. One federally recognized Tribe commented that the new rulemaking has the potential to significantly worsen consistency issues. The FTA received three comments that provided suggestions how to best engage in outreach and communicate with the public on the new rule. The comments specifically suggested training for Federal staff and State DOTs and a centralized resource that includes guidance and FAQs.
The Agencies provide consistency through national training and guidance. The Agencies support the National Highway Institute and the National Transit Institute, which conduct NEPA courses across the nation for employees of the Agencies, State DOTs, transit agencies, consultants, and other Federal, State, and local entities involved in transportation NEPA processes. The Agencies and their training institute partners update the NEPA-related courses to address new regulations,
The Agencies received an anonymous comment suggesting that because the FHWA and FTA have their own missions, programs, and unique experiences, each agency should have its own separate NEPA procedures, not limited to just the CEs.
The Agencies are more similar than they are dissimilar with respect to the environmental review process and are therefore not pursuing separate procedures at this time. The Agencies have, however, separated their procedures where appropriate due to their individual programs. For example, each Agency has separate public involvement procedures identified in § 771.111 based on each Agency's experience.
Six State DOTs and one professional association asked FHWA to add or adopt the FTA CEs for bridge removal and for preventative maintenance because those CEs would be beneficial to provide coverage for bridge removal projects in situations where the bridge replacement CE does not apply. Four of the State DOTs and the professional association suggested that bridge removal activities do not depend on whether they are being carried out as part of a highway project or a transit project. Four State DOTs and one professional association said that it would be beneficial to provide a CE specifically for preventative maintenance activities in culverts and channels because it would eliminate uncertainty about whether these types of activities are covered by other CEs. One State DOT expressed concern with a FHWA bridge removal CE due to the amount of impacts that could occur in a typically sensitive habitat area. This same commenter asked whether a road realignment would be covered under the bridge removal CE if the removal requires a road realignment to the new bridge or whether the bridge construction CE would cover this action. One State DOT indicated that it has a PCE agreement that identifies bridge removal as a CE action.
The FHWA carefully considered whether to propose new CEs for bridge removal and for preventative maintenance activities and decided against it at this time. The FHWA was not able to identify projects that were limited to the act of removing the bridge with no additional action being taken (e.g., construction of a new water crossing). One possible scenario could be the removal of a bridge for safety purposes, but this action would qualify for the new CE in paragraph (c)(27) (highway safety or traffic operation improvements) if the constraints can be met, or the CE under paragraph (d)(13) if the constraints cannot be met.
The FHWA does not believe that a preventative maintenance CE is needed at this time. In FHWA's experience preventative maintenance actions typically take place within the operational right-of-way and would qualify for the recently created CE under existing paragraph (c)(22) (79 FR 2107).
Two State DOTs, one transit agency, and one professional association urged FHWA to move expeditiously to adopt a CE that specifically covers early right-of-way acquisitions under 23 U.S.C. 108(d), in order to clarify that these types of activities, like hardship and protective acquisitions (23 CFR 771.117(d)(12)), are covered by a CE. The professional association commented that the mere acquisition of property does not impact the environment.
The FHWA elected not to propose the requested CE because the Agency has not completed procedures to implement the amendments to 23 U.S.C. 108 introduced by section 1302 of MAP–21. Early acquisition projects for hardship and protective purposes that meet the statutory conditions in 23 U.S.C. 108(d) may be processed as CEs under § 771.117(d)(12), so long as no unusual circumstances exist that would lead FHWA to require the preparation of an EA or EIS. Early acquisition projects, depending on total estimated cost, also may meet the conditions specified by the CE for actions receiving limited Federal assistance in § 771.117(c)(23).
Three State DOTs, one transit agency, one professional association, and one public interest group supported the addition of the new CE in § 771.117(c)(24) for geotechnical studies and investigations for preliminary design. Three State DOTs and one professional association commented that this new CE could cause confusion by implying that these activities would trigger NEPA when there is no Federal action involved. Four State DOTs questioned the need for the CE because it implies that two NEPA approvals are needed (one for the preliminary investigation and one for the project itself) increasing documentation requirements and requiring reviewers to engage in environmental review for activities typically associated with the review itself. Some of the comments also applied to the FTA CE proposed for § 771.118(c)(16).
The Agencies' intent is to create new CEs for geotechnical and other investigations for preliminary design that involve ground disturbance. This can occur, for example, when these investigations or studies are undertaken to determine the suitability of a location for a project but the project itself is not ripe for analysis. The CEs apply when there is a Federal action involved, such as when FHWA undertakes the investigations (Federal Lands Highway programs) or when Federal-aid is used for these preliminary study actions. It is not intended to federalize actions taken by the applicants in furtherance of their applications without the use of Federal funds (see 40 CFR 1506.1(d) stating that the procedural requirements in NEPA are not intended to preclude the development by applicants of plans, designs, or performance of other work necessary to support an application for Federal, State, or local permits or assistance).
Two State DOTs asked for clarification on the breadth of the new CEs in §§ 771.117(c)(24) and 771.118(c)(16). One of the State DOTs requested the inclusion of paleontological studies as one of the activities covered by the CEs. Another State DOT asked the Agencies to limit the use of the CEs to stand-alone surveys that involve ground disturbing activities only or specify that the CEs are not needed if the area has no previously identified archeological resources. The State DOT also requested the Agencies to establish a scale to the CEs so that they apply for more than a few hand-dug shovel probes.
The CEs cover geotechnical and other investigations for preliminary design that involve ground disturbance. The actions listed in the NPRM for these CEs were examples and are not an inclusive list. Paleontological studies would be covered by the CEs. The Agencies decided not to establish a scale for the CEs' applicability to provide for maximum flexibility for their use.
Three State DOTs and one professional association requested the Agencies to allow the use of the CE in § 771.117(c)(24) for all activities associated with preliminary investigations of a project instead of requiring the application of the CE for each individual investigation required for the project.
The Agencies believe that the CE in § 771.117(c)(24), as well as the CE in § 771.118(c)(16), should be used for all activities associated with preliminary investigation that involve ground disturbance when there is a Federal action involved such as when FHWA undertakes the investigations (Federal Lands Highway programs) or when Federal-aid is used for these preliminary study actions.
Three State DOTs, two public interest groups, and one transit agency expressed support for the new CE in § 771.117(c)(25) for environmental restoration and pollution abatement actions. One State DOT indicated that it interprets this CE as covering projects that exclusively install, repair, or replace culverts designed to allow fish passage. One State DOT requested the addition of “overall watershed management” to the language of the CE. One Federal agency asked that the constraint found in § 771.117(e)(3) be applied to this proposed CE. One State DOT commented that it would gain little value from the CE because it normally designs projects to minimize and/or mitigate impacts to waterways and ecosystems.
The new CE in § 771.117(c)(25) is intended to cover actions that involve returning a habitat, ecosystem, or landscape to a productive condition that supports natural ecological functions. Restoration actions serve to re-establish the basic structure and function associated with natural, productive conditions. This may include culverts designed for fish passage. The CE in § 771.117(c)(25) also covers both pollution abatement practices and control measures designed to retrofit existing facilities or minimize stormwater quality impacts from highway projects and watershed management actions that fit these groups and are eligible for Federal-aid highways. The actions listed in the NPRM for this CE were examples and are not an inclusive list. The FHWA does not believe that the CE needs a restriction similar to § 771.117(e)(3) because in the FHWA's experience the typical highway actions associated with this CE do not result in adverse effects to historic properties, a use of a section 4(f) property other than a
Three State DOTs and one professional association suggested that the CE in § 771.117(c)(26) be divided into two parts: one for highway resurfacing, restoration, rehabilitation, and reconstruction (4R) projects without the constraints applied, and the other for all other projects with constraints applied. The commenters indicated that 4R projects often have no environmental impacts or have
The FHWA agrees with the commenters that a wholesale transfer without qualifications would be inconsistent with 40 CFR 1508.4. However, FHWA found that, based on its experience, a transfer with qualifications (i.e., the constraints in paragraph (e)) would be consistent with 40 CFR 1508.4. (See NPRM preamble, 47 FR 57587, 57590–91). The FHWA's proposed approach to moving the first three actions on the (d)-list to the (c)-list preserves the original (d)-listed CE actions through § 771.117(d)(13) and acknowledges that the actions in § 771.117(c)(26), (27), and (28) are identical except that those actions processed under § 771.117(d)(13) do not meet the constraints in § 771.117(e). The FHWA believes this approach meets the statutory requirements for the move and will result in greater consistency in application and fewer errors than further dividing the actions. Highway modernization actions, § 771.117(c)(26), would not include actions that add capacity because in FHWA's experience such actions require a review of the context in which the project takes place, which means a detailed project-by-project review. The addition of auxiliary lanes such as climbing, turning, passing lanes, and other purposes supplementary to through-traffic movement (see definition in
Two public interest groups opposed the shift of the new CE in § 771.117(c)(27) for highway safety projects from the (d)-list to the (c)-list even with the constraints proposed because (1) the CE requires a case-by-case analysis to take into account the surrounding environment and particular context, (2) the constraints miss other environmental resources, and (3) adding more constraints would confuse the
The FHWA's proposed approach to moving the first three actions on the (d)-list to the (c)-list preserves the original (d)-listed actions in § 771.117(d)(13) and acknowledges that the actions in section 771.117(c)(26), (27), and (28) are identical except that those actions processed under § 771.117(d)(13) do not meet the constraints in the new § 771.117(e). The FHWA believes this approach meets the statutory requirements for the move and will result in greater consistency in application and fewer errors than further dividing the actions. The constraints in § 771.117(e) are intended to take into account considerations with regards to the surrounding environment and particular context that would necessitate additional documentation and oversight or approval by FHWA. The FHWA did not intend to cover all potential scenarios and issues that could raise these concerns, rather the decision to limit the constraints to those resource areas addressed was based on FHWA past experience in implementing these types of projects and the areas of concern that most frequently come up with these types of projects.
Two public interest groups opposed the shift of the new CE in § 771.117(c)(28) for bridge rehabilitation, reconstruction, and replacement activities from the (d)-list to the (c)-list even with the constraints proposed because: (1) The CE requires a case-by-case analysis to take into account the surrounding environment and particular context; (2) the constraints miss other environmental resources; and (3) adding more constraints would confuse the purpose of the (c)-list. One public interest group indicated that, in the absence of adequate constraints or conditions, these projects could include destruction and replacement of historic bridges, or the construction of massive new elevated bridge structures for grade-separated railroad crossings within historic districts. The commenter indicated that strong safeguards are needed to ensure that these CEs are not applied when the projects involve potentially significant impacts. The commenter also suggested that a more refined approach of separating out the activities that are truly unlikely to cause any sort of significant impact, such as a bridge rehabilitation and repair projects, and shifting those to the (c)-list and keeping in the (d)-list the more destructive projects like those that would require destroying an existing bridge structure or constructing a new one where none currently exists. One State DOT requested the addition of a qualification to cover “design modification to meet current design standards.”
The FHWA believes this approach meets the statutory requirements for the move and will result in greater consistency in application and fewer errors than further dividing the actions. The constraints in § 771.117(e) are intended to take into account those considerations with regards to the surrounding environment and particular context that experience has shown necessitate additional documentation and oversight or approval by FHWA. The FHWA did not intend to cover all potential scenarios and issues that could raise these concerns, rather the decision to limit the constraints to those resource areas addressed was based on FHWA past experience in implementing these types of projects and the areas of concern that most frequently come up with these types of projects. In addition to these constraints, the CE for bridge-related actions is subject to an evaluation of unusual circumstances that would take into account the potential for the action to result in significant environmental impacts. The FHWA considered the refined approach of segregating the activities covered in the CEs as suggested by the public interest group and decided against it because in the Agency's experience all activities mentioned can be classified as a CE as long as the constraints in § 771.117(e) are met. Removing and disposing of a bridge or the construction of a new bridge at a new location (to replace an old bridge) would not typically result in significant impacts and there would not be a need for additional documentation and project-by-project approval by FHWA for the CE determination if the constraints are met. Finally, the FHWA notes that a rehabilitation, reconstruction, or replacement of a bridge would take into account current codes and design standards. However, the FHWA recognizes there may be situations where the modification of the bridge to accommodate current codes and design standards could result the failure to meet a constraint under § 771.117(e). In these situations other CEs may be available for the project, such as the new CE in § 771.117(d)(13).
Two State DOTs, one public interest group, and one transit agency supported the addition of the new CE in § 771.117(c)(29) (ferry vessels).
The Agencies will adopt this CE as proposed.
Two State DOTs, one public interest group, and one transit agency supported the addition of the new CE in § 771.117(c)(30) for rehabilitation or reconstruction of ferry facilities. One State DOT asked that the phrase “substantial increase in users” be replaced with “substantial increase in that facility's capacity” as a constraint for the ferry facilities rehabilitation and reconstruction. The State DOT indicated that the constraint that facilities “do not result in a substantial increase in users” would be difficult to predict because of year-to-year fluctuation in ferry users. In the State DOT's experience it is nearly impossible to predict whether a particular ferry terminal project will result in an increase in users. The State DOT indicated that the term “users” is imprecise and can be interpreted in many ways. The commenter suggests using a more precise phrase, such as “substantial increase in that facility's capacity.”
The FHWA agrees with the commenter stating that an increase of users is not as accurate as capacity to apply in the rehabilitation or reconstruction of existing ferry facilities CE. The intent of this constraint in applying this CE is to ensure that project impacts undergo an appropriate level of review and capacity reflects this distinction better than users. The FHWA considered this comment and modified the constraint to state: “does not result in a substantial increase in the existing facility's capacity.”
Three State DOTs and one professional association supported the retention of the three (d)-listed CEs in the proposed rule as possible documented CE actions to retain flexibility.
The FHWA will retain all of the actions formerly listed in § 771.117(d)(1), (2), and (3) via paragraph (d)(13). This will provide notice that such actions may be processed as (d)-list CEs if any of the constraints in § 771.117(e) cannot be met for those actions, and it is determined with additional documentation that a CE classification is proper. It is also possible for those actions to be processed under
Five State DOTs and one professional association commented that the constraints for the three moved (d)-list CEs were unnecessary and would preclude the use of CEs for projects with minor impacts. Two State DOTs and one professional association expressed concern with the constraints because they reflect a one-size-fits-all approach: all States would be subject to the same list of constraints, regardless of the unique circumstances in each State. These same commenters proposed that FHWA could alternatively issue guidance for determining whether additional documentation needs to be prepared to assess the potential for “unusual circumstances.” This approach would build on the existing requirement in 23 CFR 771.117(b), which requires “appropriate environmental studies to determine if the CE classification is proper” for any action that “could involve unusual circumstances.” Two State DOT commenters stated that moving the first three actions from the (d)-list to the (c)-list need not include the six constraints because of consideration of extraordinary circumstances was sufficient. One public interest group agreed with the Agencies that an “unconditional” move to the (c)-list was not warranted and that it supported, at the very least, the six “constraints” that were proposed for the move. One Federal agency supported the Agencies' efforts to condition the move of the three (d)-list CEs to the (c)-list and indicated that in their experience these types of projects could have greater than minimal impacts on aquatic resources.
The FHWA believes the final regulation strikes a reasonable balance between taking into account the environmental context in which a project takes place with reducing documentation and promoting administrative expediency. The list of constraints was derived from a list originally established in a 1989 FHWA memorandum (FHWA Memorandum—Categorical Exclusion (CE) Documentation and Approval, Mar. 30, 1989,
The constraints in § 771.117(e) are different than the unusual circumstances specified in § 771.117(b). Per § 771.117(b), “any action which normally would be classified as a CE but could involve unusual circumstances will require the FHWA, in cooperation with the applicant, to conduct appropriate environmental studies to determine if the CE classification is proper.” This means that when unusual circumstances may be present, documentation is expected to demonstrate there are no unusual circumstances that warrant a higher level of NEPA review even when the project does not require detailed documentation and Agency review. However, the potential for unusual circumstances for a project does not automatically trigger an EA or EIS. The constraints are not another articulation of the unusual circumstances; rather they are conditions that, if followed, would eliminate the need for detailed project-by-project review from FHWA. Failure to meet one or more of the constraints would mean that the project could not be processed with a (c)-list CE. The action may be approved as a (d)-list CE after detailed review of the project and appropriate documentation. However, failure to meet one or more of the constraints does not mean that the project has unusual circumstances that warrant the start of an EA or EIS process. The FHWA defined all the constraints in § 771.117(e) in such a way that it is possible to assess whether the constraints can be met by considering the available information about a project's context and location. Preferably, available information could be assessed through a review of existing maps and databases without having to conduct field reviews or studies. For many CE actions, it should be similarly possible to consider unusual circumstances by reviewing maps and databases, but some projects may require field review or environmental analysis.
Two public interest groups indicated that the decision to place conditions on the transfer of the CEs was appropriate but insufficient to properly protect environmental resources and to fully account for the nature of the (c)-list. The commenters indicated that the six constraints provided safeguards for impacts to species, wetlands, floodplains, historic places, and resources protected by section 4(f), but not others such as impacts to streams, air quality, non-endangered or threatened species, and light and noise pollution. The commenters and one other public interest group urged the DOT to conclude that the wholesale transfer to the (c)-list CEs from the (d)-list was simply not consistent with the CEQ regulations (40 CFR 1508.4), and therefore should be rejected. One of the public interest groups commented that the transfer of these three categories of actions to the (c)-list with the proposed six constraints would undoubtedly lead to violations of 40 CFR 1508.4, as projects with significant impacts would be processed as a CE without any analysis. The commenter also stated that to safeguard against this concern, additional constraints would need to be placed in § 771.117(e) to ensure that environmental resources will be sufficiently protected, but this would confuse the purpose of the (c)-list, which has in the past been purely a list of activities that do not require case-by-case review. One State DOT suggested that these constraints “encourage minimizing certain environmental impacts” rather than avoiding detailed project-by-project FHWA review.
The FHWA believes the constraints listed in § 771.117(e) are appropriate for ensuring consideration of certain impacts occurs given a project's context and location. The FHWA's experience with the three (d)-list CE actions is very broad and includes projects that involve potentially significant effects. The FHWA's experience with State DOTs that use PCE agreements indicates that these constraints are appropriate for determining when a CE determination may be processed without detailed project-by-project review by FHWA. The FHWA disagrees that the six constraints are insufficient to appropriately consider project impacts for purposes of (c)-list classification. The constraints in § 771.117(e) are intended to take into account considerations with regards to the surrounding environment and particular context that would otherwise necessitate additional documentation and detailed project-by-project review by FHWA. The FHWA did not intend to cover all potential scenarios and issues that could raise these concerns; the decision to limit the constraints to the listed resource areas was based on FHWA past experience in implementing
Two State DOTs requested more explanation on the purpose of the constraints for actions listed in § 771.117(c)(26), (27), and (28). They asked whether the constraints were motivated to ensure that regulatory obligations were met (for example, section 404 of the CWA or section 106 of the NHPA compliance) rather than ensuring that project classification (significance of impacts) is correct and whether a project that does not meet the constraints could be processed as a CE, although it would be subject to a higher level of review. They noted that as long as all appropriate permits are obtained, and impacts are not found to be significant, then there is no need for this constraint.
The FHWA list of constraints to actions listed in § 771.117(c)(26), (27), and (28) is meant to distinguish actions that normally would require a higher level of documentation and detailed project-by-project review by FHWA through a (d)-list CE compared to actions that should be processed as (c)-listed CEs. Some of the constraints exclude projects from a (c)-list CE for FHWA when they trigger a permit because the information needed for the permit requires additional environmental studies, documentation, and review. Such studies, review, and documentation are expected for FHWA (d)-list CEs to assist in the detailed project-by-project review. The constraints in § 771.117(e) were based on FHWA past experience in implementing these types of projects and the areas of concern frequently associated with these types of projects. Projects that satisfy all constraints may be processed as (c)-list CEs. If one or more of the constraints cannot be met, the action could still be processed as a (d)-list CE under § 771.117(d)(13).
Two State DOTs and one professional association remarked that some of the constraints involve subjective determinations (e.g., “more than a minor amount of right-of-way” and “major traffic disruptions or substantial environmental impacts”). One State DOT and one professional association remarked on the level of specificity of the constraints. Another State DOT suggested that FHWA should establish standard definitions, such as for a minor amount of right-of-way, for use by Division Offices and States for greater consistency of application. In contrast, one professional association recommended clarifying in the final rule that Division Offices and States may adopt specific thresholds for determining whether an action meets these criteria. Adopting specific thresholds, on a State-by-State basis, the commenter indicates, will help to simplify the process for determining that the criteria are met.
The list of constraints was derived from a list originally established in the FHWA's 1989 PCE Memorandum. This list has been refined by experience over time and in most State DOTs' PCE agreements with FHWA. The FHWA recognizes for three of the constraints that each State's unique environmental context should be considered in determining whether an action meets these criteria. For constraints in § 771.117(e)(1), (4), and (5), State DOTs and Division Offices may adopt specific thresholds for determining what is more than a minor amount of right-of-way (§ 771.117(e)(1)), what defines major traffic disruption or substantial environmental impacts from an existing road, bridge, or ramp closure or the construction of a temporary access (§ 771.117(e)(4)), and how to distinguish changes in access control that deserve further evaluation from ones that do not (§ 771.117(e)(5)), as appropriate.
The FHWA has substituted the term “non-residential” for “commercial” in this constraint to be consistent with terminology in the Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-assisted Programs regulations (49 CFR part 24). Any displacement of persons within the meaning of the Uniform Act must be taken into account in determining whether the action meets the constraint. The text now reads “[a]n acquisition of more than a minor amount of right-of-way or that would result in any residential or non-residential displacement.”
One State DOT recommended that flexibility be provided with the constraint in § 771.117(e)(2) for a situation where a State DOT and FHWA Division Office enter into an agreement with the U.S. Coast Guard (USCG) and/or USACE that programmatically merges their respective permitting processes with actions on the (c)-list. Another State DOT suggested that the constraint in subparagraph (e)(2) is tied to regulatory compliance with other laws and would be satisfied independent of the CE classification and indicates it is unnecessary. Another State DOT said that forcing a State DOT to come up with documentation and a review process for each project that requires a CWA section 404 permit is burdensome and time consuming.
Sufficient information about a project's proposed scope, location, and context should be available during planning and initial project scoping to indicate whether an individual section 404 permit by the USACE or a USCG permit would be needed. It is not necessary to fully develop information or documentation for such permits to determine whether this condition is met. An FHWA detailed project-by-project review is needed if, based on preliminary project information, a CWA section 404 individual permit is likely going to be required. If agencies can collaborate to develop programmatic approaches that more efficiently satisfy the requirements instead of completing individual permits, such approaches should also satisfy this constraint.
The USACE stated that correlating the use of the three (c)-list CEs with activities that would generally comply with the terms and conditions of a nationwide or regional general permit (i.e., paragraph (e)(2)) would indirectly encourage transportation agencies to minimize impacts to aquatic resources while protecting the integrity of the CE). The USACE was supportive of the message that USACE would make the ultimate determination whether an action complies with the terms and conditions of a nationwide or regional general permit, as well as the appropriate NEPA class of action to qualify for NWP 23. The USACE suggested that the final rule recommend transportation agencies contact them when conducting re-evaluations or providing supplemental documentation in support of review under a (d)-list CE to properly address those issues which triggered an Individual Permit review process.
The FHWA concurs with the USACE that correlating the use of the CEs with activities that comply with the terms and conditions of a nationwide or regional general permit would encourage transportation agencies to minimize impacts to aquatic resources. The USACE is in the best position to
One State DOT suggested providing additional flexibility to satisfy the constraint in § 771.117(e)(3) by allowing for “programmatic” agreements to address section 4(f), Land and Water Conservation Fund section 6(f), NHPA section 106, and the ESA. Another State DOT suggested that this constraint is tied to regulatory compliance of other laws and would be satisfied independently of the CE classification, making it unnecessary. A Federal agency asked that this constraint include compliance with the Bald and Golden Eagle Protection Act (BGEPA) and the Migratory Bird Treaty Act (MBTA).
Section 4(f) programmatic evaluations include an alternatives analysis to avoid the use of a section 4(f) resource, which necessitates additional documentation and an FHWA finding, and often requires a detailed FHWA review. The FHWA has limited experience with programmatic agreements under section 6(f) of the Land and Water Conservation Fund Act and as a result, the FHWA decided not to develop a constraint around that threshold at this time. Programmatic approaches for section 106 of NHPA and section 7 of ESA may be considered in the evaluation of the constraints as long as the programmatic approaches meet the specified constraint thresholds. An example is when a State DOT relies on an existing section 106 programmatic agreement that establishes conditions to prevent an undertaking from resulting in adverse effects to historic properties. The State DOT may not rely on a section 106 programmatic agreement that establishes treatment measures for adverse effects. Another example would be reliance on a programmatic approach under section 7 of the ESA that would allow projects to be determined to “not likely to adversely affect” threatened or endangered species or critical habitat. The FHWA considered the request to include compliance with other wildlife laws, such as the BGEPA and MBTA, and decided that consideration of the ESA was adequate based on past experience with PCE agreements. A factor in making this determination was that the BGEPA and MBTA do not have similar review thresholds as ESA (i.e., “no effect,” “may affect/not likely to adversely affect,” or “may affect/likely to adversely affect”). All other requirements applicable to the activity under other Federal and State statutes and regulations still apply regardless of the § 771.117(e) constraints, and must be met before the action proceeds, regardless of the availability of a CE for the transportation project under part 771.
One State DOT asked for clarification of the word “substantial” in the § 771.117(e)(4) constraint especially as it relates to the overall improvements that the project would allow and as those impacts are mitigated during construction (such as providing public information that would help mitigate traffic disruption during construction). One State DOT noted that the constraint meant that the action could not be processed as a CE if road closures or the construction of temporary access to existing roads would result in major traffic disruptions. The commenter indicated that this would severely limit the application of these CEs, especially in heavily urbanized areas where traffic congestion is usually high and the transportation improvement project is more than likely needed to relieve existing congestion. The commenter disagreed that temporary access could result in major traffic disruptions. The commenter indicated that the construction of temporary access is typically used to provide temporary relief from traffic disruptions and are temporary in nature; therefore, it should not be equated with road closures or considered an exception to the use of a CE. Another commenter stated that this constraint was unnecessary as traffic disruption would be considered as part of unusual circumstances.
In FHWA's experience, temporary road, bridge, detour, or ramp closures deserve a higher level of scrutiny and detailed project-by-project review because they are the types of activities that have merited additional review given their potential to have substantial adverse impacts. The FHWA sees the value in allowing Division Offices and State DOTs to adopt specific criteria for the “substantial” threshold. The FHWA has revised the constraint to focus on the activity involved (i.e., the closure or construction) and further change is not warranted. This constraint would not automatically eliminate the use of the (d)-list CE.
Two State DOTs and one professional association recommended revising the constraint in § 771.117(e)(5) to be limited to changes in access control “that raise major concerns regarding environmental effects.” They also asked that the final rule clarify that the Division Office and State DOTs can adopt specific criteria for determining if this constraint is met. Two State DOTs asked that the constraint for changes in access control mirror the language in § 771.117(e)(1) so it would read “more than minor changes in access control.” One State DOT and one professional association suggested that some access changes were sufficiently “minor” (e.g., closing just one access) to allow a project to be processed as a (c)-list CE. Some examples include the installation of medians or a C-curb break in access control for maintenance or emergency access, minimal alterations, or adjustments to driveways. One State DOT asked that the constraint be clarified to say the changes in access control would need to affect traffic patterns for more documentation to be required.
Changing the text of the constraint to “more than minor changes in access control” or “that raise major concerns regarding environmental effects” would put this language at odds with the (d)-list CE for approvals of changes in access control (§ 771.117(d)(7)), which FHWA is not modifying at this time. The FHWA recognizes that some changes may raise minor concerns and result in no significant environmental impacts or no safety and operational performance issues, while others may raise concerns regarding their environmental effects and deserve a careful consideration of their safety and operational performance through further evaluation, but these decisions depend on the environmental context and regulatory framework of each State. The FHWA sees the value in allowing FHWA Division Offices and States to adopt specific criteria for the “change in access control” threshold. In establishing this threshold, State DOTs and FHWA Division Offices would focus on their experience with changes and access control and the range of impacts that result from the various changes in access that may occur in the
Two State DOTs asked that the constraint in § 771.117(e)(6) regarding floodplains and wild and scenic rivers be removed because it may limit enhancement actions, or that it be revised to allow for some actions within the floodway. Two other State DOTs recommended revising this constraint to refer to projects with floodplain encroachment “that adversely affect the function of the floodplain.” One State DOT and one professional association asked that the final rule clarify that the State DOTs and Division Offices may adopt specific criteria for determining if this constraint is met. One State DOT suggested the constraint be limited to a floodplain encroachment that requires a “Letter of Map Revision” which they believe is alluded to in the discussion, but not in the proposed regulatory language. Another State DOT asked that FHWA consider replacing the text with a restriction against projects that “result in an increase in the designated regulatory floodway, or may result in an increase of more than 1 foot of surface water elevation in the base floodplain when no regulatory floodway is designated, or may increase the risk of damage to property and loss of human life, or may result in modification of a watercourse.” One State DOT suggested that the constraint be limited to “a significant floodplain encroachment” because if a simple auxiliary lane project pushes the roadway shoulder 1 foot into the floodplain for even just a few feet, the project could not be processed as a (c)-list CE. One State DOT indicated that floodplain encroachments and involvement of a wild and scenic river entail separate processing requirements, regardless of a CE class of action and therefore did not think this constraint was necessary.
The FHWA believes the § 771.117(e)(6) constraint is necessary to assess the level of documentation detail necessary for a CE classification when a project involves a floodplain encroachment or a wild and scenic river. After considering the suggestions from commenters on how to revise this constraint, the FHWA decided to retain the constraint language as proposed in the NPRM. A floodplain encroachment would trigger consideration of practicable alternatives under Executive Order 11988 and the FHWA implementing regulations at 23 CFR part 650, subpart A. It also indicates a higher risk of environmental impacts that deserve careful evaluation and consideration. This means that additional documentation, analysis, and detailed review is needed to meet the floodplain management requirements and, therefore, a (d)-list CE is more appropriate. The action could proceed as a (c)-list CE if it encroaches on floodplains but the action is for a functionally dependent use or an action that facilitates open space use. Functionally dependent uses are actions that must occur in close proximity to water (e.g., bridges).
Three State DOTs and one professional association stated the statute included no rulemaking requirements for PCE agreements. Four State DOTs indicated that imposing these requirements through rulemaking was inconsistent with the intent of the statute. The commenters recommended that FHWA release non-binding guidance, including a template agreement, rather than issue regulations on PCE agreements. Two State DOTs objected to the proposal to establish new requirements for all PCE agreements and the requirement for all existing agreements to be amended for consistency with the new requirements. One State DOT said existing agreements should be “grandfathered” and thus exempt from any new requirements and expressed concern that existing PCE agreements may be overturned.
The FHWA considers this rulemaking to be appropriate in light of the statutory change that allows for State DOTs to enter into agreements with FHWA to make CE determinations on FHWA's behalf. The FHWA has taken a careful look at the requirements that were proposed in the NPRM in light of the comments submitted to determine which were necessary in the regulatory text and which could be implemented administratively. The Agency decided that those requirements that were substantive (i.e., elements that the agreement must have) should be established through rulemaking and those that were either procedural (i.e., steps that must be met) or administrative (i.e., how FHWA processes the agreement internally) could be removed from the regulatory text and established through other means. As a result, the Agency decided to retain requirements in subparagraphs (g)(1) (State DOT's responsibilities), (g)(2) (five year term), (g)(3) (monitoring requirements), and (g)(4) (stipulations for amendments, termination, and public availability), but remove from the regulatory text the legal sufficiency and FHWA Headquarters review in subparagraph (g)(5) of the NPRM. The FHWA believes that its Headquarters program office and legal office should engage in review of these agreements, but establishing this requirement in the regulatory text is unnecessary because it is an internal process that is better established through internal administrative protocols.
Although FHWA disagrees with commenters expressing preference for guidance instead of rulemaking on this subject, the Agency is receptive to the suggestion of developing guidance including a template agreement on this topic. The FHWA disagrees with the commenters' proposal to exempt renewal of existing or certain future agreements from this rule because this would result in inconsistent development of PCE agreements. Finally, in an effort to provide more clarity to the regulatory text the FHWA has deleted the phrase “[n]otwithstanding paragraph (d) of this section” as proposed in the NPRM because it was unnecessary since the introductory paragraph of 771.117(d) now contemplates the use of programmatic agreements as an alternate method for approvals.
Five State DOTs and one professional association expressed concern that the proposed rule did not allow PCE agreements to include CEs that were not specifically listed in the regulations. The commenters also noted that State DOTs should be allowed to approve CEs that are not listed in FHWA's regulations, as long as those CEs are “consistent with” the criteria in the CEQ regulations.
The FHWA evaluated these comments and determined that new CEs not specifically listed in the regulations would not be allowed in the PCE agreements unless they are established in accordance with CEQ regulations and guidance (40 CFR 1507.3 and 1508.4, and Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act (75 FR 75628, Dec. 6, 2010)). To make this clear, the FHWA has added additional language in the text of the rule specifying that this authority is limited to CEs specifically listed in 771.117(c) and the activities identified in (d).
One State DOT compared and contrasted the CE processing flexibilities for States under a PCE agreement with 23 U.S.C. 326 where the State has assumed responsibility and liability for FHWA decisions. The commenter suggested that a 23 U.S.C.
The Agencies considered this comment and found it not to directly relate to the MAP–21 section 1318 provisions. The provisions of paragraph (g) in § 771.117 do not apply to the section 326 program.
One State DOT was concerned that PCE agreement monitoring and reporting requirements will increase the States' workload and may result in State DOTs requiring additional staff to ensure PCE compliance. The proposed oversight and quality control/quality assurance requirements are similar to those mandated by a CE Assumption MOU under 23 U.S.C. 326 (State assumption of responsibility for categorical exclusions). Under that program, the State DOT had to hire additional staff to successfully assume CE responsibilities. The State DOT also said it is foreseeable that States will be required to hire additional staff and revise procedures in order to comply with the proposed PCE requirements where the intent of MAP–21 was not to add additional staffing and workload requirements to CE approvals.
The comment expressing concern about the burden to State DOTs tied to monitoring PCE agreements did not distinguish between monitoring of PCE agreements or monitoring of MOUs executed pursuant to 23 U.S.C. 326 where a State is responsible and legally liable for the CE determinations it makes. The commenter's concern is based on its experience with the monitoring process under a section 326 MOU and not a PCE agreement. It may have been appropriate for the commenting State DOT to hire additional staff to assume CE responsibilities because they were not only making CE determinations, but also were assuming responsibilities for compliance with all associated environmental laws and regulations associated with that CE determination. The quality control and quality assurance requirement in § 771.117(g) for State DOTs may already be incorporated in existing CE processing procedures. This monitoring requirement should be comparable to the manner of monitoring existing PCE agreements.
Two public interest groups and one State DOT suggested that § 771.117(g)(3) be expanded to explain further what “monitoring” of PCE agreements should entail. The State DOT suggested that in the alternative the provision be removed. One public interest group requested a clarification of public disclosure requirements of PCE documents and suggested that citizens be allowed to monitor any PCE agreement.
The FHWA will retain the requirement for monitoring for all PCE agreements. The purpose of monitoring comes from FHWA's oversight obligation of the Federal-aid program to ensure that CE determinations are appropriate and that State DOTs comply with all environmental requirements. The approach for conducting monitoring should be determined between each State DOT and FHWA Division Office. Division Office staff should determine the frequency and level of detail for monitoring events as well as the composition of the monitoring team. This monitoring also should identify best practices and lead to the implementation of corrective actions based on report findings and observations. The State DOT and the FHWA Division Office will determine the extent to which monitoring information will be made available through posting on the Web.
The FTA received two comments that expressed concern over the potential impacts of the actions included in the new CEs on sensitive habitats and protected resources.
Sections 771.118(a) and (b) include the requirement for considering unusual circumstances, which is how the Agencies consider extraordinary circumstances in accordance with the CEQ regulations. These refer to circumstances in which a normally excluded action could have a significant environmental impact and, therefore, requires appropriate environmental studies to determine if the CE classification is proper. Examples of unusual circumstances include substantial controversy on environmental grounds, significant impacts on properties protected by section 4(f) of the DOT Act or section 106 of the NHPA, or inconsistencies with any Federal, State, or local law, requirement, or administrative determination relating to the environmental aspects of the action (23 CFR 771.118(b)). The unusual circumstances provisions contained in § 771.118(a) and (b) apply to all existing and newly proposed CEs, and serve as a safeguard to prevent significant impacts to sensitive habitats and protection resources, among other concerns. An example of this practice would be if sizeable swaths of habitat are impacted for an action, then that unusual circumstance would likely require FTA and the grant applicant to conduct appropriate environmental studies under § 771.118(b)(1) to determine whether the CE classification is proper.
The FTA received two comments requesting clarification on how § 771.118(c)(14) differs from the existing CEs. Specifically, one comment requested clarification on the types of repair and replacement work applicable to this new CE versus those in § 771.118(c)(8) (maintenance, reconstruction, and rehabilitation of facilities). The second comment asks whether the necessary realignment of a road following a bridge removal would be covered under the new CE or another CE.
The new CE expands upon existing CEs to include permanent bridge removal and the resulting change to the associated transportation network. The CE further addresses the potential need to realign the transportation network connected to the bridge and any activities associated with the work not included in previously established CEs. These activities could include in-channel work, pier removal or reduction, and materials disposal. Section 771.118(c)(8) specifically focuses on the repair of existing facilities that do not change the facility's use, while this new CE includes permanent bridge removal that changes the end use.
The FTA received a comment requesting clarification on the circumstances where reducing pier height would serve to make in-water navigation safer when conducting a complete bridge removal.
In some instances, when removing a bridge, it is decided to leave piers in place, rather than remove them. The considerations in this decision are varied, but include cost considerations as well as environmental considerations (e.g., avoidance of exposure in cases of contaminated sediments and other CWA considerations, as well as cost considerations). In cases where piers are left in place, they are reduced in height to be below water level, but above sediment levels, to allow for water craft to safely traverse over the piers. The decision to leave piers in place is also based on coordination with stakeholders, permitting agencies, and project engineers, and depends on the project context (e.g., location, conditions, etc.).
The FTA received three comments recommending the text of the CE be amended to include “and drainage pipes” at the end of the last sentence. The commenters noted that expanding existing culverts and existing drainage pipes would likely result in similar impacts, and since culverts often are used as drainage pipes, the language should be clarified by including drainage pipes so to avoid confusion and an unintended distinction.
The FTA agrees with the comment, and will amend § 771.118(c)(15) to read “Preventative maintenance, including safety treatments, to culverts and channels within and adjacent to transportation right-of-way to prevent damage to the transportation facility and adjoining property, plus any necessary channel work, such as restoring, replacing, reconstructing, and rehabilitating culverts and drainage pipes; and, expanding existing culverts and drainage pipes.” At times, this preventative maintenance may require expanding existing culverts or drainage pipes in order to properly manage the stormwater flow. The FTA reassessed its supporting documentation and found the addition of expanding existing “drainage pipes” is supported by FTA's record (see “FTA Section 1318 Substantiation” document). In practice, culverts and drainage pipes both provide or maintain stormwater drainage, with culverts typically being larger in diameter than drainage pipes. Due to their functional similarity and anticipated similar impacts, as well as the limitation to expanding only existing culverts or pipes, FTA listed both examples in the CE language in order to avoid confusion for practitioners, as suggested by the comments received.
The FTA received a comment that suggested the text of the new CE be broadened to read “Preventative maintenance, including safety treatments, to drainage facilities, including culverts and channels . . .”
The intent of this CE is to focus on rainwater conveyance methods that can be useful in preventing future flooding at transit facilities. The FTA considered the suggestion to include drainage facilities, but FTA interprets drainage facilities to be a broad term that includes rainwater conveyance and treatment; therefore, if the CE language includes “drainage facilities,” the CE would cover a broader range of activities than proposed in the NPRM. Furthermore, FTA re-reviewed the benchmarking examples in the “FTA Section 1318 Substantiation” document, considered past experience and reviewed past EAs and findings of no significant impact in hopes of being able to support the broader language. The FTA does not have sufficient substantiation to cover the broader range of activities and, therefore, is not able to proceed with the proposed change (i.e., adding “to drainage facilities, including”) at this time. If grantees would like to pursue stormwater management activities unconnected to a broader proposal and outside the scope of this CE, FTA recommends considering the use of the CEs at § 771.118(c)(3) or (d).
The summary of comments on § 771.118(c)(16), and how they are addressed, is included in the discussion above on the FHWA § 771.117(c)(24) CE.
The Agencies considered all comments received before the close of business on the comment closing date indicated above, and the comments are available for examination in the docket (FHWA–2013–0049) at Regulations.gov. The Agencies also considered comments received after the comment closing date and filed in the docket prior to this final rule.
Executive Orders 12866 and 13563 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). The Agencies determined that this action is not a significant regulatory action under section 3(f) of Executive Order 12866 nor is it significant within the meaning of Department of Transportation regulatory policies and procedures (44 FR 11032). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It is anticipated that the economic impacts of this rulemaking are minimal. The changes to this rule are requirements mandated by MAP–21 to increase efficiencies in environmental review by making changes in the Agencies' environmental review procedures.
The activities in this final rule add § 771.117(c)(24), (c)(25), (c)(26), (c)(27), (c)(28), (c)(29), and (c)(30) and § 771.118(c)(14), (c)(15), (c)(16), (d)(7), and (d)(8), pursuant to section 1318 of MAP–21, and are inherently limited in their potential to cause significant environmental impacts because the use of the CEs is subject to the unusual circumstances provision in 23 CFR 771.117(b) and 23 CFR 771.118(b), respectively. The CE provisions require appropriate environmental studies, and may result in the reclassification of the NEPA evaluation of the project to an EA or EIS, if the Agencies determine that the proposal involves potentially significant or significant environmental impacts. The program changes in this final rule establish criteria for PCE agreements between State DOTs and FHWA. These agreements further expedite NEPA environmental review for highway projects and enable projects to move more expeditiously through the Federal environmental review process. The PCE changes will reduce the preparation of extraneous environmental documentation and analysis not needed for compliance with NEPA, and will ensure that projects are built in an environmentally responsible manner. The changes contained within this rule will not adversely affect, in any material way, any sector of the economy. In addition, these changes will not interfere with any action taken or planned by another agency, and will not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.), the Agencies must consider whether this final rule would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. The Agencies do not believe this final rule will have a significant economic impact on entities of any size, and the Agencies received no comment in response to our request for any such information in the NPRM. These revisions could expedite environmental review and thus would be less of an impact on small business entities than any current impact on small business entities. Thus, the Agencies determined that this final rule will not have a significant economic impact on a substantial number of small entities.
This final rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4, 109 Stat. 48). This final rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $148.8 million or more in any one year (2 U.S.C. 1532).
Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. The Agencies analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132 and determined that this action will not have a substantial direct effect on the States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications. The Agencies also determined that this action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions. The NPRM invited State and local governments with an interest in this rulemaking to comment on the effect that adoption of specific proposals may have on State or local governments. No State or local governments provided comments on this issue.
Executive Order 13175 requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that “significantly or uniquely affect” Indian communities and that impose “substantial and direct compliance costs” on such communities. The Agencies analyzed this action under Executive Order 13175, and determined that it will not have substantial direct effects on one or more Indian Tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law.
The Agencies received one comment in response to their request in the NPRM for comments from Indian tribal governments on the effect that adoption of specific proposals might have on Indian communities. One federally recognized Indian Tribe commented that a tribal summary impact statement was in order. The Indian tribe indicated that it was concerned that a shortened review period for evaluation of highway projects may cause tribal governments hardship. The Indian Tribe also expressed concerns with exempting the highway projects from other laws and allowing states to use State reviews and approval laws and procedures in lieu of Federal laws and regulations.
In their response to the comments, the FHWA reiterated that the rule does not exempt a project that qualifies for a CE from compliance with all other requirements applicable to the action. The Agencies determined that the language adopted in this final rule appropriately balanced the goal of providing flexibility with the need to satisfy the Agencies' environmental review requirements and responsibilities. The Agencies must continue to meet their legal obligations for a project even if the project qualifies for a CE, which includes the Agencies' responsibilities to consult with Tribes. The final rule does not authorize a State to use or rely on State environmental review and approval laws in lieu of the Federal environmental requirements.
The rule does not preempt tribal law. Projects that qualify for CEs must meet the compliance requirements under other laws, including tribal laws if the project will take place within tribal lands. The rule would not impose substantial direct compliance costs on Indian tribal governments. The rule affects the environmental review process of projects that will receive Federal-aid from FHWA or FTA, or that would require an approval from those Agencies. It does not impose requirements on Indian tribal governments other than those that are typical for any other Federal agency grantee. Finally, the rule would not have substantial direct effects on one or more Indian Tribes. The final rule does not increase the burden of review more than what is already expected for these types of projects. Therefore, a tribal summary impact statement is not required.
The Agencies analyzed this action under Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” dated May 18, 2001. The Agencies determined that this action is not a significant energy action under the order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to these programs and were carried out in the development of this rule.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), no Federal agency shall conduct or sponsor a collection of information unless in advance the agency has obtained approval by and a control number from the Office of Management and Budget (OMB), and no person is required to respond to a collection of information unless it displays a valid OMB control number. The Agencies determined that this final rule does not contain collection of information requirements for the purposes of the PRA.
This action 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.
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a) (77 FR 27534) require DOT agencies to achieve environmental justice (EJ) as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations in the United States. The DOT Order requires DOT agencies to address compliance with the Executive Order and the DOT Order in all rulemaking activities. In addition, both Agencies have issued additional documents relating to administration of the Executive Order and the DOT Order. On June 14, 2012, the FHWA issued an
The Agencies evaluated this final rule under the Executive Order, the DOT Order, the FHWA Order, and the FTA Circular. The Agencies determined that designation of the new CEs and establishing procedures for PCE agreements through this rulemaking will not cause disproportionately high and adverse human health and environmental effects on minority or low income populations. This rule simply adds a provision to the Agencies' NEPA procedures under which they may decide in the future that a project or program does not require the preparation of an EA or EIS. The rule itself has no potential for effects until it is applied to a proposed action requiring approval by the FHWA or FTA.
At the time the Agencies apply a CE established by this rulemaking, the Agencies have an independent obligation to conduct an evaluation of the proposed action under the applicable EJ orders and guidance. The adoption of this rule does not affect the scope or outcome of that EJ evaluation nor does the new rule affect the ability of affected populations to raise any concerns about potential EJ effects at the time the Agencies consider applying a new CE. Indeed, outreach to ensure the effective involvement of minority and low income populations where there is potential for EJ effects is a core aspect of the EJ orders and guidance. For these reasons, the Agencies also determined that no further EJ analysis is needed and no mitigation is required in connection with the designation of the CEs and procedures for PCE agreements.
The Agencies analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agencies certify that this action will not cause an environmental risk to health or safety that may disproportionately affect children.
The Agencies analyzed this final rule under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights and determined the rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630.
This action will not have any effect on the quality of the human environment and does not require analysis under NEPA. Agencies are required to adopt implementing procedures for NEPA that establish specific criteria for, and identification of, three classes of actions: those that normally require preparation of an EIS; those that normally require preparation of an EA; and those that are categorically excluded from further NEPA review. The CEQ's requirements for establishing Agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The CEQ regulations do not direct agencies to prepare a NEPA analysis or document before establishing Agency procedures (such as this regulation) that supplement the CEQ NEPA regulations. The CEs are one part of those agency procedures (40 CFR 1507.3(b)), and therefore establishing CEs or allowing for programmatic approaches to processing CEs does not require preparation of a NEPA analysis or document. Agency NEPA procedures are generally 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 determination that establishing CEs does not require NEPA analysis and documentation was upheld in
A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.
Environmental protection, Grant programs—transportation, Highways and roads, Historic preservation, Public lands, Recreation areas, Reporting and record keeping requirements.
Environmental impact statements, Grant programs—transportation, Public transit, Public transportation, Recreation areas, Reporting and record keeping requirements.
In consideration of the foregoing, the Agencies are amending title 23, Code of Federal Regulations part 771, and title 49, Code of Federal Regulations part 622, as follows:
42 U.S.C. 4321
The additions and revisions read as follows:
(c) * * *
(24) Localized geotechnical and other investigation to provide information for preliminary design and for environmental analyses and permitting purposes, such as drilling test bores for soil sampling; archeological investigations for archeology resources assessment or similar survey; and wetland surveys.
(25) Environmental restoration and pollution abatement actions to minimize or mitigate the impacts of any existing transportation facility (including retrofitting and construction of stormwater treatment systems to meet Federal and State requirements under sections 401 and 402 of the Federal Water Pollution Control Act (33 U.S.C. 1341; 1342)) carried out to address water pollution or environmental degradation.
(26) Modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes (including
(27) Highway safety or traffic operations improvement projects, including the installation of ramp metering control devices and lighting, if the project meets the constraints in paragraph (e) of this section.
(28) Bridge rehabilitation, reconstruction, or replacement or the construction of grade separation to replace existing at-grade railroad crossings, if the actions meet the constraints in paragraph (e) of this section.
(29) Purchase, construction, replacement, or rehabilitation of ferry vessels (including improvements to ferry vessel safety, navigation, and security systems) that would not require a change in the function of the ferry terminals and can be accommodated by existing facilities or by new facilities which themselves are within a CE.
(30) Rehabilitation or reconstruction of existing ferry facilities that occupy substantially the same geographic footprint, do not result in a change in their functional use, and do not result in a substantial increase in the existing facility's capacity. Example actions include work on pedestrian and vehicle transfer structures and associated utilities, buildings, and terminals.
(d) Additional actions which meet the criteria for a CE in the CEQ regulations (40 CFR 1508.4) and paragraph (a) of this section may be designated as CEs only after Administration approval unless otherwise authorized under an executed agreement pursuant to paragraph (g) of this section. The applicant shall submit documentation which demonstrates that the specific conditions or criteria for these CEs are satisfied and that significant environmental effects will not result. Examples of such actions include but are not limited to:
(13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) of this section that do not meet the constraints in paragraph (e) of this section.
(e) Actions described in (c)(26), (c)(27), and (c)(28) of this section may not be processed as CEs under paragraph (c) if they involve:
(1) An acquisition of more than a minor amount of right-of-way or that would result in any residential or non-residential displacements;
(2) An action that needs a bridge permit from the U.S. Coast Guard, or an action that does not meet the terms and conditions of a U.S. Army Corps of Engineers nationwide or general permit under section 404 of the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899;
(3) A finding of “adverse effect” to historic properties under the National Historic Preservation Act, the use of a resource protected under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions resulting in
(4) Construction of temporary access, or the closure of existing road, bridge, or ramps, that would result in major traffic disruptions;
(5) Changes in access control;
(6) A floodplain encroachment other than functionally dependent uses (
(g) FHWA may enter into programmatic agreements with a State to allow a State DOT to make a NEPA CE certification or determination and approval on FHWA's behalf, for CEs specifically listed in paragraphs (c) and (d) of this section. Such agreements must be subject to the following conditions:
(1) The agreement must set forth the State DOT's responsibilities for making CE determinations, documenting the determinations, and achieving acceptable quality control and quality assurance;
(2) The agreement may not have a term of more than five years, but may be renewed;
(3) The agreement must provide for FHWA's monitoring of the State DOT's compliance with the terms of the agreement and for the State DOT's execution of any needed corrective action. FHWA must take into account the State DOT's performance when considering renewal of the programmatic CE agreement; and
(4) The agreement must include stipulations for amendment, termination, and public availability of the agreement once it has been executed.
(c) * * *
(14) Bridge removal and bridge removal related activities, such as in-channel work, disposal of materials and debris in accordance with applicable regulations, and transportation facility realignment.
(15) Preventative maintenance, including safety treatments, to culverts and channels within and adjacent to transportation right-of-way to prevent damage to the transportation facility and adjoining property, plus any necessary channel work, such as restoring, replacing, reconstructing, and rehabilitating culverts and drainage pipes; and, expanding existing culverts and drainage pipes.
(16) Localized geotechnical and other investigations to provide information for preliminary design and for environmental analyses and permitting purposes, such as drilling test bores for soil sampling; archeological investigations for archeology resources assessment or similar survey; and wetland surveys.
(d) * * *
(7) Minor transportation facility realignment for rail safety reasons, such as improving vertical and horizontal alignment of railroad crossings, and improving sight distance at railroad crossings.
(8) Modernization or minor expansions of transit structures and facilities outside existing right-of-way, such as bridges, stations, or rail yards.
42 U.S.C. 4321
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule invites comments on a revision to the minimum quantity exception for potatoes handled under the Colorado potato marketing order, Area No. 2 (order). The order regulates the handling of Irish potatoes grown in Colorado and is administered locally by the Colorado Potato Administrative Committee, Area No. 2 (Committee). This action would increase the quantity of potatoes that may be handled under the order without regard to the order's handling regulation requirements from 1,000 to 2,000 pounds. The change in the import regulation is required under section 8e of the Agricultural Marketing Agreement Act of 1937. This action would allow the importation which, in the aggregate, does not exceed 2,000 pounds for all other round type potatoes, except red skinned, round type or long type potatoes that continue to remain at a 500 pound limit, to be imported without regard to the import regulations. This action is expected to benefit producers, handlers, and importers.
Comments must be received by December 5, 2014.
Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Fax: (202) 720–8938; or Internet:
Sue Coleman, Marketing Specialist, or Gary D. Olson, Regional Director, Northwest Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (503) 326–2724, Fax: (503) 326–7440, or Email:
Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Telephone: (202) 720–2491, Fax: (202) 720–8938, or Email:
This proposed rule is issued under Marketing Agreement No. 97 and Order No. 948, both as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674), hereinafter referred to as the “Act.”
This proposed rule is also issued under section 8e of the Act, which provides that whenever certain specified commodities, including Irish potatoes, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities.
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.
This proposal invites comments on a revision to the minimum quantity exception currently prescribed in the handling regulation for potatoes handled under the order. This proposal would increase the quantity of potatoes that may be handled without regard to the order's handling regulation from 1,000 to 2,000 pounds. Relaxing the minimum quantity exception is expected to benefit producers, handlers, and importers. The rule was unanimously recommended by the Committee at a meeting on July 18, 2013.
Section 948.4 of the order divides the State of Colorado into three areas of regulation for marketing order purposes. These areas include: Area No. 1, commonly known as the Western Slope; Area No. 2, commonly known as San Luis Valley; and, Area No. 3, which consists of the remaining producing areas within the State of Colorado not included in the definition of Area No. 1 or Area No. 2. Currently, the order only regulates the handling of potatoes
Section 948.50 of the order establishes committees as administrative agencies for each of the areas set forth under § 948.4. Section 948.22(a) of the order authorizes the issuance of grade, size, quality, maturity, pack, and container regulations for potatoes grown in the order's production area. Further, section 948.22(b)(2) of the order provides authority for each area committee to recommend modification of regulations to provide for minimum quantities that should be relieved of regulatory or administrative obligations.
Section 948.386 of the order's administrative rules prescribes grade, size, maturity, and inspection requirements for Colorado Area No. 2 potatoes. Paragraph (f) of that section prescribes the minimum quantity of potatoes that are exempt from regulation. Currently, each person may handle up to 1,000 pounds of potatoes without regard to the order's grade, size, maturity, and inspection requirements.
At its meeting on July 18, 2013, the Committee unanimously recommended increasing the order's minimum quantity exception from 1,000 to 2,000 pounds. The recommendation was made at the request of producers and handlers who wanted greater flexibility in distributing smaller quantities of potatoes. In its deliberations, the Committee commented that 2,000 pounds is consistent with the current weight of a pallet of potatoes. One pallet is typically the smallest lot of potatoes distributed, since most delivery vehicles are now capable of transporting at least 2,000 pounds.
Handlers also feel that the value of one pallet of potatoes does not warrant the cost of complying with the order's regulations. Based on an estimated average f.o.b. price of $12.60, the value of one pallet of potatoes is approximately $225.00. Increasing the minimum quantity exception from 1,000 to 2,000 pounds of potatoes would allow a handler to ship one pallet of potatoes without regard to the order's grade, size, maturity, and inspection requirements. Relaxing the minimum quantity is expected to benefit producers, handlers, and importers.
Section 8e of the Act provides that when certain domestically produced commodities, including Irish potatoes, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Whenever two or more marketing orders regulating the same commodity produced in different areas of the United States are concurrently in effect, the importation into the United States of any such commodity shall be prohibited unless it complies with the grade, size, quality and maturity provisions of the order which, as determined by the Secretary of Agriculture, regulates the commodity produced in the area with which the imported commodity is in most direct competition (7 U.S.C. 608e–(a)). Section 980.1(b)(2) of the Vegetable Import Regulations specifies that potatoes imported into the United States are in most direct competition with potatoes of the same type produced in the area covered by this order. Since this action would increase the minimum quantity exemption under the domestic handling regulations, a corresponding change to the import regulations must also be considered.
Minimum grade, size, quality, and maturity requirements for Irish potatoes imported into the United States are currently in effect under § 980.1 (7 CFR 980.1). The minimum quantity exemption is specified in § 980.1(c). The exemption for red skinned, round type or long type potatoes would remain at a 500 pound limit. This proposal would increase the quantity for all other round type potatoes that may be imported without regard to the import regulation requirements from 1,000 to 2,000 pounds. The metric equivalent for 1,000 pounds is 453.592 kilograms and 2,000 pounds is 907.185 kilograms. The increase in the minimum quantity exemption for imports of potatoes would have a beneficial impact on importers. This proposed rule would provide flexibility in the importation and distribution of smaller quantities of potatoes.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Import regulations issued under the Act are based on those established under Federal marketing orders.
There are approximately 80 handlers of Colorado Area No. 2 potatoes subject to regulation under the order and approximately 180 producers in the regulated production area. There are approximately 240 importers of potatoes. Small agricultural service firms (handlers and importers) are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).
During the 2011–2012 fiscal period, the most recent for which statistics are available, 15,072,963 hundredweight of Colorado Area No. 2 potatoes were inspected under the order and sold into the fresh market. Based on an estimated average f.o.b. price of $12.60 per hundredweight, the Committee estimates that 66 Area No. 2 handlers, or about 83 percent, had annual receipts of less than $7,000,000. In view of the foregoing, the majority of Colorado Area No. 2 potato handlers may be classified as small entities.
In addition, based on information provided by the National Agricultural Statistics Service, the average producer price for the 2011 Colorado fall potato crop was $10.70 per hundredweight. Multiplying $10.70 by the shipment quantity of 15,072,963 hundredweight yields an annual crop revenue estimate of $161,280,704. The average annual fresh potato revenue for each of the 180 Colorado Area No. 2 potato producers is therefore calculated to be approximately $896,000 ($161,280,704 divided by 180), which is greater than the SBA threshold of $750,000. Consequently, on average, many of the Colorado Area No. 2 potato producers may not be classified as small entities.
Information from the Foreign Agricultural Service, USDA, indicates that the dollar value of imports of the type of potatoes affected by this rule ranged from approximately $55.8 million in 2009 to $ 56.5 million in 2013. Using these values, the majority of importers of the type of potatoes affected by this rule would have annual receipts of less than $7,000,000 and may be classified as small entities.
Canada is the major potato-producing country exporting potatoes to the United States. In 2013, affected shipments of potatoes imported into the United States totaled around 3,479,468 hundredweight. Of that amount, 3,479,383 hundredweight were imported from Canada, 59 hundredweight were imported from Ecuador, and 26 hundredweight were imported from Peru.
This proposal would revise the quantity of potatoes that may be handled without regard to the
This action is not expected to increase the costs associated with the order's requirements or the potato import regulation. Rather, it is anticipated that this proposed change will have a beneficial impact. The Committee believes it would provide greater flexibility in the distribution of small quantities of potatoes. Currently, the distribution of potatoes between 1,000 and 2,000 pounds requires an inspection and certification that the product conforms to the grade, size, and maturity requirements of the order. This translates into a cost for handlers and importers of both time and inspection fees, which is high in relation to the small value (approximately $225.00 per pallet) of these transactions. This action would allow shipments up to 2,000 pounds of potatoes without regard to the order's grade, size, maturity, and inspection requirements and the related costs. The benefits for this proposed rule are expected to be equally available to all fresh potato producers, handlers, and importers, regardless of their size.
As an alternative to the proposal, the Committee discussed leaving the handling regulation unchanged. The Committee rejected this idea because a pallet of potatoes weighs approximately 2,000 pounds and the 1,000 pound minimum quantity exception did not accommodate this size shipment. No other alternatives were discussed.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581–0178 (Generic Vegetable and Specialty Crops). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
This proposed rule would relax the minimum quantity exception under the order from 1,000 to 2,000 pounds. Accordingly, this action would not impose any additional reporting or recordkeeping requirements on either small or large Colorado Area No. 2 potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS 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.
USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule.
In addition, the Committee's meeting was widely publicized throughout the Colorado Area No. 2 potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the July 18, 2013, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this proposed rule.
A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.
Marketing agreements, Potatoes, Reporting and recordkeeping requirements.
Food grades and standards, Imports, Marketing agreements, Onions, Potatoes, Tomatoes.
For the reasons set forth above, 7 CFR parts 948 and 980 are proposed to be amended as follows:
7 U.S.C. 601–674.
(f) Minimum quantity. For purposes of regulation under this part, each person may handle up to but not to exceed 2,000 pounds of potatoes without regard to the requirements of paragraphs (a), (b), and (c) of this section, but this exception shall not apply to any shipment which exceeds 2,000 pounds of potatoes.
(c) Minimum quantities. Any importation which, in the aggregate, does not exceed 500 pounds of red skinned, round type or long type potatoes, or 2,000 pounds for all other round type potatoes, may be imported without regard to the provisions of this section.
National Aeronautics and Space Administration.
Proposed rule.
NASA is proposing to amend its patent waivers regulations to update citations and the patent waiver policy, and to clarify and update the patent waiver procedures, so they are more in line with the National Aeronautics and
Submit comments on or before November 5, 2014.
Comments must be identified with RIN 2700–AE02 and may be sent to NASA via the Federal E-Rulemaking Portal:
Helen M. Galus, Office of the General Counsel, NASA Headquarters, telephone (202) 358–3437.
The National Aeronautics and Space Act (the Space Act), at 51 U.S.C. 20135(b) states that an invention made in the performance of any work under any contract of the National Aeronautics and Space Administration (NASA) shall be the exclusive property of the United States if the person who made the invention was (A) employed or assigned to perform research, development, or exploration work and the invention is related to the work or was within the scope of that person's employment duties; or (B) was not employed to perform research, development, or exploration work but the invention is nevertheless related to the contract, or to the work or duties the person was employed or assigned to perform, and was made during working hours, or with a contribution from the Government. 51 U.S.C. 20135(g), authorizes the Administrator of the National Aeronautics and Space Administration (NASA) to waive all or any part of the rights of the United States, under section 20135 of the Space Act, with respect to any invention or class of inventions made or which may be made by any person or class of persons in the performance of any work required by any contract of the Administration, if the Administrator determines that the interests of the U.S. will be served thereby. Any such waiver may be made upon such terms and conditions as the Administrator determines necessary for the protection of U.S. interests. The enabling regulations, setting forth these terms and conditions are set forth in Title 14 of the Code of Federal Regulations, Part 1245, Subpart 1.
NASA is revising its regulations at 14 CFR sections 1245.100 through 1245.104, 1245.106, 1245.107, 1245.110, 1245.112, 1245.116 and 1245.117 to update citations to the United States Code; to clarify the requirements and procedures for petitioning for a patent waiver, so they follow more closely the terms of the Space Act; and to add grounds for denial of a petition for waiver of foreign rights. The revisions include (1) clarification that NASA only has authority under the Space Act to waive rights in “inventions or classes of inventions;” (2) a definition for what a “class of invention” includes; and (3) a requirement that petitions for advance waiver of rights to identify what inventions or classes of inventions the Contractor believes will be made under the contract and for which waiver of rights is being requested.
The current language of 14 CFR 1245.100 to 1245.103, and 1245.116, is amended to update the citations to the National Aeronautics and Space Act, which now is codified in Title 51 of the United States Code. Also, the current definition of “invention” in § 1245.102 is amended to better conform with the definition of invention set forth in 35 U.S.C. 101 (“Inventions Patentable”), and to add language defining the term “class of Inventions” so that the regulations better define and implement the Space Act (51 U.S.C. 20135(g)) which permits NASA to “waive all or any part of the rights of the United States under this section with respect to any
The current language of 14 CFR 1245.103 is revised in several places to set forth the “invention or class of invention” limitation on NASA's waiver authority. Also, paragraph (a) is revised to expand upon the objectives and policies upon which NASA will be guided in the implementation of the provisions of section 20135(g) of the National Aeronautics and Space Act (51 U.S.C. Chapter 201), and in determining when the interests of the United States would be served by waiver of all or any part of the rights of the United States in an invention or class of inventions (see paragraph immediately above). Additionally, the language “Any such waiver may be made upon such terms and under such conditions as the Administrator shall determine to be required for the protection of the interests of the United States” has been added, this language is taken directly from the Space Act (51 U.S.C. 20135(g)).
The current language in 14 CFR 1245.104 is also amended to include the “invention or class of invention” limitation on NASA's waiver authority, and additionally to make more accurate the terminology being used (e.g., replacing the phrase “elimination of right to retain title” with “denial of the requested rights”). Also, a new paragraph (c)(2) is added to require an advance waiver petition content meet the National Aeronautics and Space Act requirement of waiving rights to “any invention or class of inventions,” by identifying the invention(s) and/or class(es) of inventions that the Contractor believes will be made under the contract and for which waiver of rights is being requested. Additionally, paragraph (d) has been clarified and original paragraph (e) has been deleted so that the petitioners' reconsideration rights will now solely be found in section 1245.112, rather than in two potentially conflicting sections.
As to 14 CFR 1245.106, the language has been revised to permit the Board to review and recommend a partial grant or denial on the same grounds as are currently used for the partial granting or denial of domestic waiver petitions. Additionally, a clarification was made to make clear that the Board
Only minor clarifying revisions were made to the current language in 14 CFR 1245.107 and 14 CFR 1245.117.
As to the current language of 14 CFR 1245.110, it is revised to add the requirement that “Advance waiver petitions shall also identify the invention(s) and/or class(es) of inventions that the Contractor believes will be made under the contract and for which waiver of rights is being requested, in accordance with § 1245.104(c)(2) above.”
Finally, as to 14 CFR 1245.112, the language has been revised such that the petitioner will be given notice only of proposed Board actions that are adverse or different from the waiver of rights requested, as it is these types of actions that trigger the right to request reconsideration and an oral hearing, as set forth in this section.
The regulations have been modified in multiple places to make them conform more closely with the specific waiver authority NASA has under the National Aeronautics and Space Act (51 U.S.C. 20135(g)), which states “the Administrator may waive
The National Aeronautics and Space Act (the Space Act), 51 U.S.C. 20113(a), authorizes the Administrator of the National Aeronautics and Space Administration (NASA) to make, promulgate, issue, rescind, and amend rules and regulations governing the manner of its operations and the exercise of the powers vested in it by law.
This rule does not contain an information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866.
It has been certified that this rule 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 sets forth policies and procedures for submitting and reviewing petitions for waiver of the Government's rights to certain inventions made under government funded contracts, pursuant to section 20135(b)(1) of the National Aeronautics and Space Act, 51 U.S.C. 20135(b)(1). The provisions do not apply to inventions made under any contract, grant, or cooperative agreement with a nonprofit organization or small business firm that are afforded the disposition of rights as provided in 35 U.S.C. 200–204 (Pub. L. 96–517, 94 Stat. 3019, 3020, 3022 and 3023; and Pub. L. 98–620, 98 Stat. 3364–3367). Therefore, the rule will not have a significant economic impact on a substantial number of small entities.
Inventions, patents and waivers.
Accordingly, 14 CFR Part 1245 is proposed to be amended as follows:
51 U.S.C. 20135, 35 U.S.C. 200
This subpart prescribes regulations for the waiver of rights of the Government of the United States to inventions made under NASA contract in conformity with section 20135 of the National Aeronautics and Space Act (51 U.S.C. Chapter 201).
The provisions of the subpart apply to all inventions made or which may be made under conditions enabling the Administrator to determine that the rights therein reside in the Government of the United States under section 20135(b)(1) of the National Aeronautics and Space Act, 51 U.S.C. 20135(b)(1). The provisions do not apply to inventions made under any contract, grant, or cooperative agreement with a nonprofit organization or small business firm that are afforded the disposition of rights as provided in 35 U.S.C. 200–204 (Pub. L. 96–517, 94 Stat. 3019, 3020, 3022 and 3023; and Pub. L. 98–620, 98 Stat. 3364–3367).
(c) Invention means any, new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, or any variety of plant, which is or may be patentable under the Patent Laws of the United States of America or any foreign country.
(d) Class of inventions means inventions directed to a particular process, machine, manufacture, or composition of matter, or to a narrowly-drawn, focused area of technology.
(e) Made, when used in relation to any invention, means the conception or first actual reduction to practice of such invention.
(f) Practical application means to manufacture in the case of a composition or product, to practice in the case of a process or method, or to operate in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is being utilized and that its benefits are to the extent permitted by law or Government regulations available to the public on reasonable terms.
(g) Board means the NASA Inventions and Contributions Board established by the Administrator of NASA within the Administration under section 20135(g) of the National Aeronautics and Space Act (51 U.S.C. 20135(g)).
(h) Chairperson means Chairperson of the NASA Inventions and Contributions Board.
(i) Petitioner means a contractor or prospective contractor who requests that the Administrator waive rights in an invention or class of inventions made or which may be made under a NASA contract. In the case of an identified invention, the petitioner may be the inventor(s).
(j) Government agency includes any executive department, independent commission, board, office, agency, administration, authority, Government corporation, or other Government establishment of the executive branch of the Government of the United States of America.
(k) Administrator means the Administrator of the National Aeronautics and Space Administration or the Administrator's duly authorized representative.
(a) In implementing the provisions of section 20135(g) of the National Aeronautics and Space Act (51 U.S.C. Chapter 201), and in determining when the interests of the United States would be served by waiver of all or any part of the rights of the United States in an invention or class of inventions made in the performance of work under NASA contracts, the Administrator will be guided by the objectives set forth in the National Aeronautics and Space Act, by the basic policy of the Presidential Memorandum and Statement of
(b) Several different situations arise when waiver of all or any part of the rights of the United States with respect to an invention or class of invention may be requested and are prescribed in §§ 1245.104–1245.106. Under § 1245.104, advance waiver of any or all of the rights of the United States with respect to any invention or class of inventions which may be made under a contract may be requested prior to the execution of the contract, or within 30 days after execution of the contract. Waiver of rights to an identified invention made and reported under a contract are to be requested under § 1245.105, and may be requested under this provision even though a request under § 1245.104 was not made, or if made, was not granted. Waiver of foreign rights under § 1245.106 may be requested concurrently with domestic rights under § 1245.104 or § 1245.105, or may be made independently.
(a) The provisions of this section apply to petitions for waiver of domestic rights of the United States with respect to any invention or class of inventions which may be made under a contract.
(b) The NASA Inventions and Contributions Board normally will recommend grant of a request for advance waiver of domestic rights submitted prior to execution of contract or within 30 days after execution of the contract unless the Board finds that the interests of the United States will be better served by restricting or denying all or part of the requested rights in one or more of the following situations:
(1) * * *
(2) When a determination has been made by Government authority which is authorized by statute or Executive order to conduct foreign intelligence or counter-intelligence activities that the restriction or denial of the requested rights to any inventions made in the performance of work under the contract is necessary to protect the security of such activities; or
(3) Where the Board finds that exceptional circumstances exist, such that restriction or denial of the requested rights will better promote one or more of the following objectives:
(i) * * *
(ii) * * *
(iii) * * *
(iv) * * *
(v) Ensuring that the Government retains sufficient rights in federally-supported inventions to meet the needs of the Government and protect the public against nonuse or unreasonable use of inventions.
(c)(1) An advance waiver, when granted, will be subject to the reservations set forth in § 1245.107. Normally, the reservations of § 1245.107(a), License to the Government, and § 1245.107(b), March-in rights, will apply. However, should one or more of the situations set forth in paragraphs (b)(1) through (b)(3), of this section exist, rather than denying the advance waiver request, the Board may recommend granting to the contractor only part of the requested rights, to the extent necessary to address the particular situation, consistent with the policy and goals of § 1245.103. In that event, the waiver grant will be subject to additional reservations as provided for in § 1245.107(c).
(2) To meet the National Aeronautics and Space Act standard of “any invention or class of inventions,” for advance waivers, the petition shall identify the invention(s) and/or class(es) of inventions that the Contractor believes will be made under the contract and for which waiver of rights is being requested. Therefore, the petition must be directed to a specific invention(s) or to inventions directed to a particular process, machine, manufacture, or composition of matter, or to a narrowly-drawn, focused area(s) of technology.
(3) An advance waiver, when granted, will apply only to inventions reported to NASA under the applicable terms of the contract and a designation made within 6 months of the time of reporting (or a reasonable time thereafter permitted for good cause shown) that the contractor elects title to the invention and intends to file or has filed a U.S. patent application. Such election will be made by notification in writing to the patent representative designated in the contract. Title to all other inventions made under the contract are subject to section 20135(b)(1) of the National Aeronautics and Space Act, 51 U.S.C. 20135(b)(1). The granting of the advance waiver does not otherwise relieve a contractor of any of the invention identification or reporting requirements set forth in the applicable patent rights clause in the contract.
(4) The advance waiver shall extend to the invention claimed in any patent application filed on the reported invention, including any subsequent divisional or continuation application thereof, provided the claims of the subsequent application do not substantially change the scope of the reported invention.
(d) When a petition for waiver is submitted under paragraph (b) of this section, prior to contract execution, it will be processed expeditiously so that a decision on the petition may be reached prior to execution of the contract. However, if there is insufficient time or insufficient information is presented, or for other reasons which do not permit a recommendation to be made without unduly delaying execution of the contract, the Board will inform the contracting officer that no recommendation can be made prior to contract execution and the reasons therefor. The contracting officer will then notify the petitioner of the Board's action.
(e) A waiver granted pursuant to a petition submitted under this section shall extend to any contract changes, modifications, or supplemental agreements, so long as the purpose of the contract or the scope of work to be performed is not substantially changed.
(c) The Board will normally recommend the waiver of foreign rights be granted under paragraph (a) or paragraph (b) of this section in any designated country unless: (1) The Board finds that exceptional circumstances exist, such that restriction or denial of the requested
(d) If, subsequent to the granting of the petition for foreign rights, the petitioner requests and designates additional countries in which it wishes to secure patents, the Chairperson may recommend such request, in whole or in part, without further action by the Board.
(b)
(b) Advance waiver petitions shall also identify the invention(s) and/or class(es) of inventions that the Contractor believes will be made under the contract and for which waiver of rights is being requested, in accordance with § 1245.104(c)(2) above.
(c) No specific forms need be used. Requests for advanced waiver should, preferably, be included with the proposal, but in any event in advance of negotiations.
(d) Petitions for waiver under contracts funded by another agency. The content of the petitions for waiver of title to inventions made under contracts awarded by NASA on behalf of the Department of Energy under § 1245.103(c) shall follow the procedures and form prescribed by and shall be acted on by that agency. Petitions under contracts awarded by NASA on behalf of other agencies will be coordinated with the agency before action is taken by the Board.
(a) Notice. Except as provided by § 1245.104(d), the Board will notify the petitioner, through the contracting officer, with respect to petitions for advance waiver prior to contract execution, and directly to the petitioner for all other petitions:
(1) When it proposes to recommend to the Administrator that the petition be:
(i) Granted in an extent different from that requested; or
(ii) Denied.
(2) Of the reasons for the recommended action adverse to or different from the waiver of rights requested by the petitioner.
(b)
The invention described herein was made in the performance of work under NASA Contract No. ___, and is subject to the provisions of Section 20135 of the National Aeronautics and Space Act (51 U.S.C. Chapter 201).
(a) The exercise of march-in procedures shall be in conformance with 35 U.S.C. 203 and the applicable provisions of 37 CFR 401.6, entitled “Exercise of march-in rights for inventions made by nonprofit organizations and small business firms.”
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Imperial County Air Pollution Control District (ICAPCD) portion of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NO
Any comments on this proposal must arrive by November 5, 2014.
Submit comments, identified by docket number EPA–R09–OAR–2014–0592, by one of the following methods:
1.
2.
3.
Idalia Perez, EPA Region IX, (415) 972–3248,
This proposal addresses the following local rules: Rule 400.3, Internal Combustion Engine(s), and Rule 400.4, Emissions of Oxides of Nitrogen from Wallboard Kilns. In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the Lake County Air Quality Management District (LCAQMD) portion of the California State Implementation Plan (SIP). This revision concerns the definition of hazardous air pollutants and particulate matter emissions from agricultural compression ignition engines. We are proposing to approve local rules under the Clean Air Act (CAA or the Act).
Any comments on this proposal must arrive by November 5, 2014.
Submit comments, identified by docket number EPA–R09–OAR–2014–0412, by one of the following methods:
1.
2.
3.
Idalia Pérez, EPA Region IX, (415) 972–3248,
This proposal addresses the following local rules: LCAQMD Section 228, Hazardous Air Pollutants (HAP), and LCAQMD Section 470, Air Toxics Control Measure for Emissions of Toxic Particulate Matter from In-Use Agricultural Compression Ignition Engines. In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is approving state implementation plan (SIP) revisions submitted by the Illinois Environmental Protection Agency on March 19, 2013, concerning the state's gasoline volatility standards. The SIP revisions also include amendments to the state's motor vehicle refinishing regulations to allow for the alternative use of a high volume, low pressure equivalent coating applicator in motor vehicle refinishing operations, and repeal a registration program under these regulations that overlaps with Federal registration requirements.
Comments must be received on or before November 5, 2014.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2013–0273, by one of the following methods:
1.
2.
3.
4.
5.
Please see the direct final rule which is located in the Rules section of this
Francisco J. Acevedo, Mobile Source Program Manager, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6061,
In the Final Rules section of this
Administrative Conference of the United States.
Notice.
The Administrative Conference of the United States (the Conference) is providing notice to all its employees, former employees, and applicants for employment about the rights and remedies available to them under the Federal antidiscrimination, whistleblower protection, and retaliation laws. This notice fulfills the Conference's notification obligations under 5 CFR 724.202.
Shawne McGibbon, General Counsel, Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW., Washington, DC 20036; Telephone 202–480–2088; email
On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002” (No FEAR Act), 116 Stat. 566, Public Law 107–174 (5 U.S.C. 2301 note). The Act is intended to hold Federal agencies accountable for violations of antidiscrimination and whistleblower protection laws. In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination.” Sec. 101(1), Public Law 107–174. The Conference provides this No FEAR Act notice to inform its current employees, former employees, and applicants for employment of the rights and protections available under Federal antidiscrimination, whistleblower protection, and retaliation laws, as required by the Office of Personnel Management, 5 CFR 724.202.
A Federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions or privileges of employment on the basis of race, color, religion, sex, national origin, age, disability, marital status or political affiliation. Discrimination on these bases is prohibited by one or more of the following statutes: 5 U.S.C. 2302(b)(1), 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791, and 42 U.S.C. 2000e–16.
If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, national origin or disability, you must contact an Equal Employment Opportunity (EEO) counselor within 45 calendar days of the alleged discriminatory action, or, in the case of a personnel action, within 45 calendar days of the effective date of the action, before you can file a formal complaint of discrimination with your agency. See, e.g., 29 CFR part 1614. If you believe that you have been the victim of unlawful discrimination on the basis of age, you must either contact an EEO counselor as noted above or give notice of intent to sue to the Equal Employment Opportunity Commission (EEOC) within 180 calendar days of the alleged discriminatory action.
Because the Conference is a very small agency, it has entered into a contractual arrangement with the General Services Administration (GSA) for EEO services, including, but not limited to, counseling and Alternative Dispute Resolution (ADR) services. EEO counselors are available at GSA's Regional Office of Civil Rights, located at 7th and D Streets SW., Room 7048, Washington, DC 20407. Telephone: (202) 708–8588. You may also file a written complaint of discrimination with that office.
If you are alleging discrimination based on marital status or political affiliation, you may file a written complaint with the U.S. Office of Special Counsel (OSC) (see contact information below). In the alternative (or in some cases, in addition), you may pursue a discrimination complaint by filing a grievance through the agency's administrative or negotiated grievance procedures, if such procedures apply and are available.
A Federal employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of disclosure of information by that individual that is reasonably believed to evidence violations of law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless disclosure of such information is specifically prohibited by law and such information is specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.
Retaliation against an employee or applicant for making a protected disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you believe that you have been the victim of whistleblower retaliation, you may file a written complaint (Form OSC–11) with the U.S. Office of Special Counsel at 1730 M Street NW., Suite 218, Washington, DC 20036–4505 or online through the OSC Web site:
A Federal agency cannot retaliate against an employee or applicant because that individual exercises his or her rights under any of the Federal antidiscrimination or whistleblower protection laws listed above. If you believe that you are the victim of retaliation for engaging in protected activity, you must follow, as appropriate, the procedures described in the Antidiscrimination Laws and Whistleblower Protection Laws sections or, if applicable, the administrative or negotiated grievance procedures in order to pursue any legal remedy.
Under the existing laws, each agency retains the right, where appropriate, to discipline a Federal employee for conduct that is inconsistent with Federal antidiscrimination and whistleblower protection laws, up to and including removal. If OSC has initiated an investigation under 5 U.S.C. 1214, however, according to 5 U.S.C. 1214(f), agencies must seek approval
For information regarding the No FEAR Act regulations, refer to 5 CFR part 724, or contact the General Counsel's Office at the Conference, 1120 20th Street NW., Suite 706 South, Washington, DC 20036, (202) 480–2080. Additional information regarding Federal antidiscrimination, whistleblower protection, and retaliation laws can be found at
Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands or reduces any rights otherwise available to any employee, former employee or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d).
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 November 5, 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.
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 November 5, 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
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.
Research, Education, and Economics, USDA.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, 5 U.S.C. App 2, Section 1408 of the
The National Agricultural Research, Extension, Education, and Economics Advisory Board will meet October 21–23, 2014: October 21, 2014, 1:00 p.m.–5:30 p.m. October 22, 2014, 8:00 a.m.–5:00 p.m. October 23, 2014, 8:00 a.m.–12:00 p.m.
Loew's Madison Hotel, 1177 Fifteenth Street NW., Washington, DC 20005.
Michele Esch, Designated Federal Officer and Executive Director, National Agricultural Research, Extension, Education, and Economics Advisory Board, U.S. Department of Agriculture, 1400 Independence Avenue SW., STOP 0321, Washington, DC 20250–0321; telephone: (202) 720–3684; fax: (202) 720–6199; or email:
• Update on Research, Education, and Economics mission area activities.
• Roundtable discussion on the process for completing the mandatory annual relevancy and adequacy review.
• Updates from the subcommittees of the NAREEE Advisory Board, including the National Genetic Resources Advisory Council, the Specialty Crop Committee, and the Citrus Disease Subcommittee.
• Updates from the working groups of the NAREEE Advisory Board, including deliberation of reports and recommendations on the Balance of Crop Research and the Review of the Agricultural Experiment Station System.
Food and Nutrition Service, United States Department of Agriculture (USDA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the public and other public agencies to comment on this proposed information collection. This collection is a revision of the currently approved WIC Infant and Toddler Feeding Practices 2 Study (ITFPS–2). The revision is to amend the 24-month data collection instrument and extend the data collection on the cohort of infants by one year, to their 3rd birthday. The data will be used to estimate the type and prevalence of various feeding practices in the WIC population and assess whether the new WIC food packages (instituted in 2009) have influenced feeding practices. This study will also examine the circumstances and influences that shape mothers' feeding decisions for their children, and will describe the impact of these decisions throughout early child development.
Written comments must be received on or before December 5, 2014.
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 on the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the information collection on respondents, including use of appropriate automated, electronic, mechanical, or other technological methods of data collection.
Written comments may be sent to: Allison Magness, Ph.D., R.D., Social Science Research Analyst, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Allison Magness at 703–305–2576 or via email to
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
To request more information on the proposed project, contact Allison Magness, Ph.D., R.D., Social Science Research Analyst, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302.
The study activities subject to this notice include: informing State WIC office and local WIC sites that the study has been extended and their role in the extension study; collecting contact information on 2,716 mothers/caregivers in the base study during the 24-month telephone interview; administering two additional telephone interviews to up to 3,277 mothers/caregivers of children in the base study when their child is 30- and 36-months old; and obtaining their child's height and weight measurements at 36-months from WIC administrative records, health care provider records, or direct measurements at WIC sites.
The State WIC office and local WIC site staff will receive an email about the study extension and they will participate in a conference call to discuss the follow-up activities. Additionally, each study participant will receive a study flyer when their child is 21 months of age, and they will be asked to provide updated contact information to ensure ongoing participation at the time of the 24-month interview. Prior to the telephone interview, the mother/caregiver for each child in the cohort will be mailed an invitation to continue in the study that includes a toll-free number to call-in for questions. They will also be re-contacted throughout this study. Participants will receive periodic cards, calls, and text messages to remind them of upcoming data collection interviews and height and weight (H/W) measurements. State agency staff will extract H/W data of participating children from WIC administrative records; health care providers will provide H/W measurements for the majority of non-participating children (i.e., who have dropped out of WIC); and WIC site staff will weigh and measure the remaining non-participating children. WIC site staff will also provide updated contact information when requested.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Forest Service will prepare an Environmental Impact Statement (EIS) to disclose the environmental effects of commercial and non-commercial vegetation management activities, prescribed burning, watershed and recreation improvement activities, and granting road access to private timber lands. Access management changes and other design features are included to protect resources and facilitate management activities. The project is located in the Lower Yaak, O'Brien, and Sheep planning subunits on the Three Rivers Ranger District, Kootenai National Forest, Lincoln County, Montana, near Troy, Montana.
Comments concerning the scope of the analysis must be received by November 5, 2014. The draft environmental impact statement is expected June 2015 and the final environmental impact statement is expected August 2015.
Send written comments to Kirsten Kaiser, District Ranger, Three Rivers Ranger District, 12858 US Highway 2, Troy, MT 59935. Comments may also be sent via email to
Leslie McDougall, Project Team Leader, Three Rivers Ranger District, 12858 US Highway 2, Troy, MT 59935. Phone: (406) 295–4693. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The Lower Yaak, O'Brien, Sheep project area is approximately 67,500 acres in size and is located adjacent to and east of Troy, Montana along the Kootenai River. O'Brien, Lynx, Rabbit, Hummingbird, Kilbrennan, and Arbo Creeks are the main watersheds in the project area. The legal description includes Townships 31, 32, 33, and 34 North, Ranges 32, 33, and 34 West, PMM, Lincoln County, Montana.
The purpose and need for this project is to: (1) Promote resilient vegetation by managing towards Forest Plan desired conditions for landscape-level vegetation patterns, structure, patch size, fuel loading, and species composition; (2) maintain or improve water quality and native aquatic species habitat; (3) provide forage opportunities while maintaining wildlife security; (4) provide wood products that are in demand by the American public, contribute to the local economy by generating jobs and income, and provide a safe and efficient transportation system; and (5) treat hazardous fuels to reduce crown fire potential and stand replacing wildfire within the wildland urban interface (WUI) and other areas while promoting fire behavior characteristics and fuel conditions that allow for safe and effective fire management.
The proposed action includes timber harvest and associated fuels treatments, prescribed burning, and watershed work to address the purpose and need. The proposed action includes:
(1) Approximately 2,202 acres of regeneration harvest and 1,149 acres of intermediate harvest are being proposed. These treatments would be accomplished through 2,500 acres of tractor harvest and 851 acres of skyline yarding. There are 40 units proposed that would create or contribute to 24 different openings larger than 40 acres. This action requires a 60-day public review and Regional Forester approval (FSM 2471.1). This document serves as the beginning of the 60-day comment period. The largest of these treatment units would be approximately 190 acres in size. Approximately 769 acres of the total 2,080 proposed prescribed burning and fuel reduction treatments are within the WUI, while 2,894 of the total 3,351 acre proposed timber harvest treatment is within the WUI. Total WUI treatment is approximately 3,663 acres.
(2) In an effort to return fire to the landscape and to promote wildlife foraging opportunities approximately 1,508 acres of prescribed burning (1,482 acres of broadcast burning and 26 acres of maintenance underburning) is being proposed. Approximately 727 acres in the WUI are proposed for burning. Approximately 660 acres acres of this burning will occur in the Inventoried Roadless Areas.
(3) It is estimated that two temporary roads, totaling approximately 0.4 mile would be constructed to accomplish the timber harvest and associated fuel reduction work. These roads would be decommissioned following activities. Two segments of road would be rerouted for resource protection (approximately 0.5 mile on near Kilbrennan Lake and 0.3 mile near the Troy shooting range).
(4) Implementation of best management practice (BMP) work and road maintenance work would be implemented on Forest Service haul roads. Approximately 45 miles of National Forest System road (NFSR) would be reconstructed to meet State BMPs for water quality.
(5) Implementation of BMPs on roads
(6) Approximately 10.7 miles of active road storage, 6.3 miles of passive road storage, 1.3 miles of active decommissioning, and 7.0 miles of passive decommissioning would be done on roads not currently open for public motorized travel. Roads identified in the Travel Analysis as needed for long-term management of NFS lands would be put into intermittent stored service (storage). Roads identified as not needed for future management would be decommissioned. Both storage and decommissioning could have a range of treatments including simple barrier installation (passive treatment) where watershed impacts are not likely, to active treatments ranging from removing culverts to full recontouring where risks to watersheds are high. Non-motorized access would be facilitated with improved tread on road segments identified by the public as important for use.
In addition, five sites are proposed for road stream crossing restoration where abandoned road stream crossing structures are failing and delivering sediment to the streams. Streams where work is proposed include North Fork O'Brien, Rabbit Creek, and Prospect Creek.
(7) An estimated 650 acres of grizzly bear Core habitat would be impacted by proposed harvest and/or road use activities occurring within or adjacent to existing Core. To compensate for this potential loss of Core acres, roads open or restricted (gated) to motorized use elsewhere within the bear management unit (BMU) would be effectively barriered to motorized traffic occuring during the active bear year. This compensation work would occur prior to or concurrently with the proposed harvest or road use to be in compliance with design features of the Access Amendment. Similarly, to offset potential increases in open motorized route densities incurred during roadwork and harvest activities in the BMU, a road(s) currently open to motorized use would be temporarily gated during the implementation period of these activities.
(8) Construction of approximately 0.14 mile of new road on NFS lands on Yaak Mountain to allow access to Stimson Lumber Company lands for land management purposes. This new road construction would access Stimson land in T32N R34W, Section 3.
(9) Recreation improvement projects.
The Forest Service will consider a range of alternatives. One of these will be the “no action” alternative in which none of the proposed action would be implemented. Additional alternatives may be included in response to issues raised by the public during the scoping process or due to additional concerns for resource values identified by the interdisciplinary team.
The Forest Supervisor of the Kootenai National Forest, 31374 US Highway 2, Libby, MT 59923–3022, is the Responsible Official. As the Responsible Official, I will decide if the proposed action will be implemented. I will document the decision and rationale for the decision in the Record of Decision. I have delegated the responsibility for preparing the draft environmental impact statement (DEIS) and final environmental impact statement (FEIS) to the District Ranger, Three Rivers Ranger District.
Based on the purpose and need, the Responsible Official reviews the proposed action, the other alternatives, the environmental consequences, and public comments on the analysis in order to make the following decisions:
(1) Whether to implement timber harvest and associated fuel reduction treatments, prescribed burning, watershed work, recreation improvements, and private property access, including the design features and potential mitigation measures to protect resources; and if so, how much, and at what specific locations.
(2) What, if any, specific project monitoring requirements are needed to assure design features and potential mitigation measures are implemented and effective, and to evaluate the success of the project objectives. Preliminary project monitoring needs identified include effectiveness of BMP work, and retention of coarse woody debris. A project-specific monitorng plan will be developed.
Initial analysis by the interdisciplinary team has brought forward several issues that may affect the design of the project.
(1) There are 40 harvest units that would contribute to 24 openings larger than 40 acres. This action requires a 60-day public review and Regional Forester approval (FSM 2471.1). This document serves as the beginning of the 60-day public review period.
(2) Because four of the proposed units would combine to create three openings larger than 40 acres in MA 12 (big game summer range), a site-specific Forest Plan amendment for MA 12 may be required for Wildlife Standard 7, Forest Plan page III–49, which states that generally harvest unit size should not exceed 40 acres in elk and mule deer habitat or 20 acres in moose and whitetail deer habitat. An amendment to allow timber harvest in MA 2 (semi-primitive non-motorized recreation/unsuitable) Timber Standards 1, which states that this MA is unsuitable for timber production, and 2, which states the timber harvest will not occur, may be necessary. An amendment to allow timber harvest MA 13 (old growth/unsuitable) for Timber Standard 1, which states that this MA is not suitable for timber production, and Timber Standard 3 which states that timber harvest will not occur, may also be required.
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. The interdisciplinary team will continue to seek information, comments, and assistance from Federal, State, and local agencies, tribal governments, and other individuals or organizations that may be interested in, or affected by, the proposed action. There are several collaborative groups in the area that the interdisciplinary team will interact with during the analysis.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions. A more detailed scoping letter is available on request as well as on the Kootenai National Forest projects page located here:
Comments received in response to this solicitation, including names and addresses of those who comment, will become part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however they will not grant standing to the commenter during the objection period.
Forest Service, USDA.
Notice of meeting.
The National Urban and Community Forestry Advisory Council (Council) will meet on November 5 and 7, 2014. The Council is authorized under Section 9 of the Cooperative Forestry Assistance Act, as amended by Title XII, Section 1219 of Public Law 101–624 (the Act) (16 U.S.C. 2105g) and the Federal Advisory Committee Act of 1972 (5 U.S.C. App. II). The purpose of the Committee is to: (a) Develop a national urban and community forestry action plan in accordance with Section 9(g)(3)(A–F) of the Act; (b) evaluate the implementation of that plan; and (c) develop criteria for, and submit reccomendations with respect to the urban and community forestry challenge cost-share program as required by Section 9(f)(1–2) of the Act. The meeting is open to the public.
Additional information concerning the Council, can be found by visiting the Council's Web site at:
The meeting will be held Wednesday, November 5, 2014 at 1:00 p.m.–5:00 p.m., and Friday, November 7, 2014 at 9:00 a.m.–12:00 p.m., or until Council business is completed. All Council meetings are subject to cancellation. For status of the meetings prior to attendance, please contact the person listed under
The meeting will be held at The Westin Charlotte Hotel, Harris Room—Second Floor, 601 S. College Street, Charlotte, North Carolina 28202 on November 5, 2014 and the Providence Ballroom I—First Floor on November 7, 2014. Written comments may be submitted as described under
Nancy Stremple, Executive Staff to the National Urban and Community Forestry Advisory Council, Yates Building (3NW), 201 14th Street SW., Washington, DC 20250; or by phone at 202–205–7829, or by cell phone at 202–309–9873. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
(1) Provide orientation for new members,
(2) Introduce the facilitator for the development of the next National Urban Forestry Ten Year Action Plan,
(3) Finalize the work plan action items,
(4) Discuss and approve the 2016 grant categories,
(5) Receive information from members of the urban forestry community of practice,
(6) Receive Forest Service updates on program activities, partnerships, and budgets, and
(7) Approve the annual accomplishments and recommendations report.
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. Council discussion is limited to Forest Service staff and Council members; however, persons who wish to bring urban and community forestry matters to the attention of the Council may file written statements with the Council staff before or after the meeting. Written comments and time request for oral comments must be sent to Nancy Stremple, Executive Staff to the National Urban and Community Forestry Advisory Council, Yates Building (3NW), 201 14th Street SW., Washington, DC 20250, or by email to
United States Commission on Civil Rights.
Notice of period during which individuals may apply to be appointed to the Colorado Advisory Committee, Louisiana Advisory Committee, Ohio Advisory Committee, and South Carolina Advisory Committee; request for applications.
Because the terms of the members of the Colorado Advisory Committee are expiring on February 7, 2015, the United States Commission on Civil Rights hereby invites any individual who is eligible to be appointed to apply. The memberships are exclusively for the Colorado Advisory Committee, and applicants must be residents of Colorado to be considered. Letters of interest must be received by the Rocky Mountain Regional Office of the U.S. Commission on Civil Rights no later than November 1, 2014. Letters of interest must be sent to the address listed below.
Because the terms of the members of the Louisiana Advisory Committee are expiring on February 7, 2015, the United States Commission on Civil Rights hereby invites any individual who is eligible to be appointed to apply. The memberships are exclusively for the Louisiana Advisory Committee, and applicants must be residents of Louisiana to be considered. Letters of interest must be received by the Central Regional Office of the U.S. Commission on Civil Rights no later than November 1, 2014. Letters of interest must be sent to the address listed below.
Because the terms of the members of the Ohio Advisory Committee are expiring on February 7, 2015, the United States Commission on Civil Rights hereby invites any individual who is eligible to be appointed to apply. The memberships are exclusively for the Ohio Advisory Committee, and applicants must be residents of Ohio to be considered. Letters of interest must be received by the Midwestern Regional Office of the U.S. Commission on Civil
Because the terms of the members of the South Carolina Advisory Committee are expiring on February 7, 2015, the United States Commission on Civil Rights hereby invites any individual who is eligible to be appointed to apply. The memberships are exclusively for the South Carolina Advisory Committee, and applicants must be residents of South Carolina to be considered. Letters of interest must be received by the Southern Regional Office of the U.S. Commission on Civil Rights no later than November 1, 2014. Letters of interest must be sent to the address listed below.
Letters of interest for membership on the Colorado Advisory Committee should be received no later than November 1, 2014.
Letters of interest for membership on the Louisiana Advisory Committee should be received no later than November 1, 2014.
Letters of interest for membership on the Ohio Advisory Committee should be received no later than November 1, 2014.
Letters of interest for membership on the South Carolina Advisory Committee should be received no later than November 1, 2014.
Send letters of interest for the Colorado Advisory Committee to: U.S. Commission on Civil Rights, Rocky Mountain Regional Office, 999 18th Street NW., Suite 1380 South, Denver, CO 80294. Letter can also be sent via email to
Send letters of interest for the Louisiana Advisory Committee to: U.S. Commission on Civil Rights, Central Regional Office, 400 State Avenue, Suite 908, Kansas City, KS 66101. Letter can also be sent via email to
Send letters of interest for the Ohio Advisory Committee to: U.S. Commission on Civil Rights, Midwestern Regional Office, 55 W. Monroe St., Suite 410, Chicago, IL 60603. Letter can also be sent via email to
Send letters of interest for the South Carolina Advisory Committee to: U.S. Commission on Civil Rights, Southern Regional Office, 61 Forsyth St. SW., Suite 16T126, Atlanta, GA 30303. Letters can also be sent via email to
David Mussatt, Chief, Regional Programs Unit, 55 W. Monroe St., Suite 410, Chicago, IL 60603, (312) 353–8311. Questions can also be directed via email to
The Colorado, Louisiana, Ohio, and South Carolina Advisory Committees (SACs) are statutorily mandated federal advisory committees of the U.S. Commission on Civil Rights pursuant to 42 U.S.C. 1975a. Under the charter for the SACs, the purpose is to provide advice and recommendations to the U.S. Commission on Civil Rights (Commission) on a broad range of civil rights matters in its respective state that pertain to alleged deprivations of voting rights or discrimination or denials of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or the administration of justice. SACs also provide assistance to the Commission in its statutory obligation to serve as a national clearinghouse for civil rights information.
The SAC consists of not more than 19 members, each of whom will serve a two-year term. Members serve as unpaid Special Government Employees who are reimbursed for travel and expenses. To be eligible to be on a SAC, applicants must be residents of the respective state and have demonstrated expertise or interest in civil rights issues.
The Commission is an independent, bipartisan agency established by Congress in 1957 to focus on matters of race, color, religion, sex, age, disability, or national origin. Its mandate is to:
• Investigate complaints from citizens that their voting rights are being deprived,
• Study and collect information about discrimination or denials of equal protection under the law,
• Appraise federal civil rights laws and policies,
• Serve as a national clearinghouse on discrimination laws,
• Submit reports and findings and recommendations to the President and the Congress, and
• Issue public service announcements to discourage discrimination.
The Commission invites any individual who is eligible to be appointed a member of the Colorado, Louisiana, Ohio, or South Carolina Advisory Committee covered by this notice to send a letter of interest and a resumé to the respective address above.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review and new shipper review of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China (PRC). The period of review (POR) for the administrative review and new shipper review is September 1, 2012, through August 31, 2013. The Department preliminarily determines that Hubei Nature Agriculture Industry Co., Ltd. (Hubei Nature, the new shipper), and Xiping Opeck Food Co., Ltd. (Xiping Opeck) have not made sales of subject merchandise in the United States at prices below normal value.
Bryan Hansen or Hermes Pinilla, AD/CVD Operations, Office 1, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3683, and (202) 482–3477, respectively.
The merchandise subject to the antidumping duty order is freshwater crawfish tail meat, which is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers 1605.40.10.10, 1605.40.10.90, 0306.19.00.10, and 0306.29.00.00. On February 10, 2012, the Department added HTSUS classification number 0306.29.01.00 to the scope description pursuant to a request by U.S. Customs and Border Protection (CBP). While the HTSUS numbers are provided for convenience and customs purposes, the written description is dispositive. A full description of the scope of the order is contained in the Preliminary Decision Memorandum.
The Department conducted these reviews in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Export Price is calculated in accordance with section 772(c) of the Act. Because the PRC is a non-market economy (NME) within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c) of the Act.
For a full description of the methodology underlying our conclusions,
The Department determines that the following preliminary dumping margins exist for the administrative review covering the period September 1, 2012, through August 31, 2013:
As a result of the new shipper review, the Department preliminarily determines that a dumping margin of 0.00 percent exists for merchandise produced and exported by Hubei Nature Agriculture Industry Co., Ltd. covering the period September 1, 2012, through August 31, 2013.
The Department will disclose calculations performed in these preliminary results to the parties within five days after the date of publication of this notice.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically using IA ACCESS. An electronically filed document must be received successfully in its entirety by the Department's IA ACCESS by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice.
Unless the deadline is extended pursuant to section 751(a)(2)(B)(iv) of the Act, the Department will issue the final results of these reviews, including the results of its analysis of issues raised by parties in their comments, within 120 days after the publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h).
Upon issuing the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by these reviews.
Pursuant to a refinement in the Department's assessment practice in NME cases,
The following cash deposit requirements will be effective upon publication of the final results of these reviews for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For the companies listed above that have a separate rate, with the exception of Hubei Nature (
With respect to Hubei Nature, the new shipper respondent, the Department established a combination cash deposit rate for this company consistent with its practice as follows: (1) For subject merchandise produced and exported by Hubei Nature, the cash deposit rate will be the rate established for Hubei Nature in the final results of the NSR; (2) for subject merchandise exported by Hubei Nature, but not produced by Hubei Nature, the cash deposit rate will be the rate for the PRC-wide entity; and (3) for subject merchandise produced by Hubei Nature but not exported by Hubei Nature, the cash deposit rate will be the rate applicable to the exporter.
These deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during these PORs. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing the preliminary results of these reviews in accordance with sections 751(a)(1), 751(a)(2)(B)(iv), 751(a)(3), 777(i) of the Act and 19 CFR 351.213(h), 351.214 and 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On July 22, 2014, the United States Court of International Trade (“CIT”) sustained the Department of Commerce's (“the Department”) results of redetermination, pursuant to the CIT's remand order, in
Consistent with the decision of the United States Court of Appeals for the Federal Circuit (“CAFC”) in
Thomas Martin, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3936.
On March 12, 2012, the Department published the
Pursuant to the CIT's remand instructions, the Department, under protest, selected South Africa as the primary surrogate country for calculating normal value.
In its decision in
Because there is now a final court decision with respect to the
Because no party appealed the CIT's decision before the period of appeal expired on September 22, 2014, the CIT's decision is now final and conclusive. Accordingly, the Department will instruct U.S. Customs and Border Protection to assess antidumping duties on entries during the POR of the subject merchandise exported by the Respondents using the revised assessment rates calculated by the Department in the
Since the
This notice is issued and published in accordance with sections 516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89–651, as amended by Pub. L. 106–36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States.
Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be postmarked on or before October 27, 2014. Address written comments to Statutory Import Programs Staff, Room 3720, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5:00 p.m. at the U.S. Department of Commerce in Room 3720.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Stephanie Moore, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave. NW., Washington, DC 20230, telephone: (202) 482–3692.
Section 702 of the Trade Agreements Act of 1979 (as amended) (the Act) requires the Department of Commerce (the Department) to determine, in consultation with the Secretary of Agriculture, whether any foreign government is providing a subsidy with respect to any article of cheese subject to an in-quota rate of duty, as defined in section 702(h) of the Act, and to publish quarterly updates to the type and amount of those subsidies. We hereby provide the Department's quarterly update of subsidies on articles of cheese that were imported during the periods April 1, 2014, through June 30, 2014.
The Department has developed, in consultation with the Secretary of Agriculture, information on subsidies,
The Department encourages any person having information on foreign government subsidy programs which benefit articles of cheese subject to an in-quota rate of duty to submit such information in writing to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Ave. NW., Washington, DC 20230.
This determination and notice are in accordance with section 702(a) of the Act.
National Oceanic and Atmospheric Administration, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before December 5, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Adam Bailey, (727) 209–5968 or
This request is for a regular submission (extension of a currently approved information collection).
The National Marine Fisheries Service (NMFS) Southeast Region manages the U.S. fisheries in the exclusive economic zone (EEZ) of the South Atlantic, Caribbean, and Gulf of Mexico regions under various Fishery Management Plans (FMPs). The Regional Fishery Management Councils prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. The regulations implementing the FMPs are located at 50 CFR part 622.
The recordkeeping and reporting requirements at 50 CFR part 622 form the basis for this collection of information. The NMFS Southeast Region requests information from the shrimp fishery participants to certify individual Bycatch Reduction Devices (BRDs). This information, upon receipt, results in an increasingly more efficient and accurate database for management and permitting of the fisheries in the EEZ off the South Atlantic, Caribbean, and Gulf of Mexico.
Paper applications, electronic reports, and telephone calls are required from participants, and methods of submittal include internet, electronic forms, and facsimile transmission of paper forms.
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
Comments submitted in response to this notice will be summarized and/or included in the request for approval by the Office of Management and Budget for this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before December 5, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Eric Orbesen, (305) 361–4253 or
This request is for extension of a current information collection.
The Cooperative Game Fish Tagging Program was initiated in 1971 as part of a comprehensive research program resulting from passage of Public Law 86–359, Study of Migratory Game Fish, and other legislative acts under which the National Marine Fisheries Service (NMFS) operates. The Cooperative Tagging Center attempts to determine the migration patterns of, and other biological information for, billfish, tunas, and swordfish. The fish tagging report is provided to the angler with the tags, and he/she fills out the card with the information when a fish is tagged and mails it to NMFS. Information on each species is used by NMFS to determine migratory patterns, distance traveled, stock boundaries, age, and growth. These data are necessary input for developing management criteria by regional fishery management councils, states, and NMFS.
Information is submitted by mail.
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 (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before December 5, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to John Childers, SWFSC, 8901 La Jolla Shores Drive, La Jolla, CA 92037, 858–546–7192,
This request is for extension of a currently approved collection. U.S. fishermen, participating in the Pacific albacore tuna fishery, are required to obtain a Highly Migratory Species Fishery Management Plan and/or a High-Seas Fishery Compliance Act permit. A requirement for the permits is to complete and submit logbooks documenting their daily fishing activities, including catch and effort for each fishing trip. Submissions must be made within 30 days of the completion of a trip. The information obtained is used by the agency to assess the status of Pacific albacore stocks and to monitor the fishery.
Respondents have a choice of either electronic data submission or paper forms. Methods of submittal include email of electronic data submissions, and mailing of paper forms.
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 (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration, Commmerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the 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.
Written comments must be submitted on or before December 5, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Adam Bailey, (727) 209–5968 or
This request is for a regular submission (extension of a currently approved information collection).
The National Marine Fisheries Service (NMFS) Southeast Region manages the U.S. fisheries in the exclusive economic zone (EEZ) of the South Atlantic, Caribbean, and Gulf of Mexico regions under various Fishery Management Plans (FMPs). The Regional Fishery Management Councils prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The regulations implementing the FMPs are located at 50 CFR part 622.
The recordkeeping and reporting requirements in 50 CFR part 622 form the basis for this collection of information. Requirements that fishing gear be marked are essential to facilitate enforcement. The ability to link fishing gear to the vessel owner is crucial to enforcement of regulations issued under the authority of the Magnuson-Stevens Act. The marking of fishing gear is also valuable in actions concerning damage, loss, and civil proceedings. The requirements imposed in the Southeast Region are for coral aquacultured live rock; golden crab traps; mackerel gillnet floats; spiny lobster traps; black sea bass pots; and buoy gear.
The markings will be placed directly on the gear.
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 (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for approval by the Office of Management and Budget for this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and
Written comments must be submitted on or before December 5, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Adam Bailey, (727) 209–5968 or
This request is for a regular submission (extension of a currently approved information collection).
The National Marine Fisheries Service (NMFS) Southeast Region manages the U.S. fisheries in the exclusive economic zone (EEZ) of the South Atlantic, Caribbean, and Gulf of Mexico regions under various Fishery Management Plans (FMPs). The Regional Fishery Management Councils prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. The regulations implementing the FMPs are located at 50 CFR part 622.
The recordkeeping and reporting requirements at 50 CFR part 622 form the basis for this collection of information. NMFS Southeast Region requires that all permitted fishing vessels must mark their vessel with the official identification number or some form of identification. A vessel's official number, under most regulations, is required to be displayed on the port and starboard sides of the deckhouse or hull, and weather deck. The official number and color code identifies each vessel and should be visible at distances from the sea and in the air. These markings provide law enforcement personnel with a means to monitor fishing, at-sea processing, and other related activities, to ascertain whether the vessel's observed activities are in accordance with those authorized for that vessel. The identifying number is used by NMFS, the United States Coast Guard (USCG) and other marine agencies in issuing violations, prosecutions, and other enforcement actions. Vessels that qualify for particular fisheries are readily identified, gear violations are more readily prosecuted, and this allows for more cost-effective enforcement.
Numbers are painted directly on the vessels.
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 (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for approval by the Office of Management and Budget for this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting of its Snapper Grouper Advisory Panel (AP) in North Charleston, SC. The meeting is open to the public.
The meeting will be held from 9 a.m. until 5 p.m. on Tuesday, October 21, 2014 and from 9 a.m. until 5 p.m. on Wednesday, October 22, 2014.
Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC 29405; telephone: (843) 571–4366 or toll free: (866) SAFMC–10; fax: (843) 769–4520; email:
The Snapper Grouper Advisory Panel will receive an update on the status of various amendments to the Snapper Grouper Fishery Management Plan (FMP) and other amendments affecting the snapper grouper fishery. AP members will receive overviews and provide recommendations on the following amendments to the Snapper Grouper FMP: Regulatory Amendment 16 with options to remove the current seasonal closure for the commercial black sea bass pot fishery; Regulatory Amendment 22 addressing management measures for gag grouper and wreckfish; the development of a Joint South Atlantic and Gulf of Mexico Amendment on South Florida Issues; Amendment 36 to establish Spawning Special Management Zones (SMZs); and Amendment 35 that would remove some species from the snapper grouper management complex.
The AP will also receive updates on the development of a recreational tag
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during the meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; revised proposed incidental harassment authorization; request for comments.
NMFS received a revised application from Excelerate Energy, L.P. (Excelerate) and Tetra Tech, Inc. (Tetra Tech), on behalf of the Northeast Gateway® Energy Bridge
Comments and information must be received no later than November 5, 2014.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments on this action is
The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) Final Environmental Impact Statement (Final EIS) on the Northeast Gateway Energy Bridge LNG Deepwater Port license application is available for viewing at
Shane Guan, Office of Protected Resources, NMFS, (301) 427–8401.
Sections 101(a)(5)(A) (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for a one-year authorization to incidentally take small numbers of marine mammals by harassment, provided that there is no potential for serious injury or mortality to result from the activity. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.
On January 18, 2013, NMFS received an application from Excelerate and Tetra Tech, on behalf of Northeast Gateway and Algonquin, for an authorization to take 14 species of marine mammals by Level B harassment incidental to operations, maintenance, and repair of an LNG port and the Pipeline Lateral facilities in Massachusetts Bay. They are: North Atlantic right whale, humpback whale, fin whale, sei whale, minke whale, long-finned pilot whale, Atlantic white-sided dolphin, bottlenose dolphin, short-beaked common dolphin, killer whale, Risso's dolphin, harbor porpoise, harbor
In response to the IHA application, NMFS published a
Following discussions with NMFS' Office of Protected Resources, the NMFS Greater Atlantic Regional Fisheries Office (GARFO), and National Ocean Service's Stellwagen Bank National Marine Sanctuary, on June 20, 2014, Excelerate and Tetra Tech submitted a revised IHA application with tiered PAM measures corresponding to different levels of LNG Port and Pipeline Lateral operation, maintenance, and repair activities. Details of the revised PAM are discussed in this notice.
This
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.
Our November 18, 2013, initial
MARUs—Background: Beginning in April 2007, Northeast Gateway monitored the noise environment in Massachusetts Bay in the vicinity of the NEG Port and Algonquin Pipeline Lateral using an array of 19 MARUs to collect data during the preconstruction and active construction phases of the NEG Port and Algonquin Pipeline Lateral. As a condition of the Deepwater Port License, the MARU array remained in place for a period of five years following the commissioning of the NEG Port. Previous IHAs for the NE Gateway Port and Pipeline Lateral operations included the MARUs as a monitoring requirement, as did the proposed IHA noticed in the November 18, 2013,
The MARUs collected archived noise data and were not designed to provide real-time or near-real-time information about vocalizing whales. The acoustic data collected by the MARUs were analyzed by the Bioacoustics Research Program (BRP) at Cornell University to document the seasonal occurrences and overall distributions of whales (primarily fin, humpback, and right whales) within approximately 10 nautical miles of the NEG Port, and to measure and document the noise “budget” of Massachusetts Bay so as to eventually assist in determining whether an overall increase in noise in the Bay associated with the NEG Port and Algonquin Pipeline Lateral might be having a potentially negative impact on marine mammals.
Northeast Gateway and Algonquin state that continued monitoring utilizing the MARU array is no longer warranted for a number of reasons:
1. The MARU array system was designed for monitoring for the maximum operational scenario with the NEG Port receiving 65 cargo deliveries per year. Anticipated deliveries to the Port during the next IHA period will be significantly smaller scale and, though dependent on market rates, will likely be confined to the winter heating season.
2. The purpose of the MARU data was principally intended to determine the daily occurrence of acoustically active fin whales, humpback whales, and right whales with nineteen MARUs deployed. A secondary purpose was to evaluate the extent to which operations sounds were evident throughout the region and the relative contribution of those sounds to the acoustic environment in the region. The majority of the MARUs were positioned at separation distances too large to meet this secondary objective. In comparison, the revised passive acoustic monitoring program described below is intended to provide empirical measurements of specific operational and maintenance events and “ground-truth” the acoustic model algorithms employed. By targeting these specific events, and positioning sensors within the water column in proximity to the Port, the resultant dataset should provide a clearer picture of the actual acoustic footprint of the Port.
3. The static recorders and real-time hydrophone arrays that will be employed in the revised proposed passive acoustic monitoring program (see below) are designed specifically for empirical measurement and recording of underwater sound. With National Institute of Standards and Technologies (NIST) traceable calibration certificates for the entire measurement chain, the data will provide an absolute measurement of received sound levels, ensuring the highest degree of accuracy possible for an offshore measurement program.
Revised Proposed PAM: In place of the MARUs, Northeast Gateway developed a proposed field program to measure underwater sound during the initial Energy Bridge Regasification Vessel (EBRV) delivery for the 2014 winter season, during certain maintenance and repair, and additional long-term PAM in the vicinity of the LNG Port using devices such as MARUs if the anticipated LNG deliveries exceed 5 shipments in a 30-day period or 20 shipments in a six-month period.
The intent of the proposed PAM program is to provide better information about the acoustic footprint associated with operation of the NEG Port in Massachusetts Bay. The modeled underwater acoustic impacts presented in the IHA application relied primarily on estimated source levels derived from the similar vessels and operations. This proposed monitoring plan will measure the actual sound levels that are introduced into the underwater environment, reducing uncertainty associated with source levels used as modeling inputs for the analysis presented in this and any future IHAs.
Underwater noise monitoring will be conducted to obtain a representative acoustic signature of vessel transit, docking, maintenance, onboard regasification operational scenarios, and maintenance activities. NEG will conduct the short-term hydroacoustic monitoring to document sound levels during the initial operational event for the 2014–2015 heating season. In addition, the short-term hydroacoustic monitoring will be utilized for any maintenance or repair activities with the potential to result in significant noise levels (i.e. DP thrusters) or for any delivery that may occur outside the identified winter heating season.
Autonomous Marine Recording (AMAR) units will be deployed one day prior to the identified monitoring events and retrieved one day after these events, utilizing a vessel similar to that described for MARU deployment and retrieval. Information pertaining to forecasted delivery levels at or above the stated trigger will be provided to NEG in advance, giving adequate time for monitoring systems to be put in place prior to the first forecasted delivery event. The field monitoring program will be used to verify actual distances to thresholds and these values will be compared to the impact distances predicted from modeling.
To reiterate, the remaining proposed monitoring measures, including vessel-based visual monitoring and the real-time autonomous buoys (ABs), are the same as described in the initial
As indicated above, no changes are proposed to the reporting measures described in the initial
Our November 18, 2013,
Our November 18, 2013,
Our November 18, 2013,
(1) This Authorization is valid from November 1, 2014, through October 31, 2015.
(2) This Authorization is valid only for activities associated with Northeast Gateway's LNG Port and Algonquin's Pipeline Lateral operations and maintenance and repair activities in the Massachusetts Bay. The specific area of the activities is shown in Figure 2–1 of the Excelerate Energy, L.P. and Tetra Tech, Inc.'s IHA application.
(3)(a) The species authorized for incidental harassment takings, Level B harassment only, are: right whales (
(3)(b) The authorization for taking by harassment is limited to the following acoustic sources and from the following activities:
(i) NEG Port operations;
(ii) NEG Port maintenance and repair; and
(iii) Algonquin Pipeline Lateral operations and maintenance.
(3)(c) The taking of any marine mammal in a manner prohibited under this Authorization must be reported within 24 hours of the taking to the National Marine Fisheries Service (NMFS) Northeast Regional Administrator (978–281–9300) or his designee (978–282–8468), NMFS Headquarter Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301–427–8401), or his designee (301–427–8418).
(a) The taking, by incidental harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed in Table 3. The taking by Level A harassment, injury or death of these species or the taking by harassment, injury or death of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this Authorization.
(b) The taking of any marine mammal is prohibited whenever the required mitigation measures under (5) of this authorization are not implemented.
(i) All vessels shall utilize the International Maritime Organization (IMO)-approved Boston Traffic Separation Scheme (TSS) on their approach to and departure from the NEG Port and/or the repair/maintenance area at the earliest practicable point of transit in order to avoid the risk of whale strikes.
(ii) Upon entering the TSS and areas where North Atlantic right whales are known to occur, including the Great South Channel Seasonal Management Area (GSC–SMA) and the SBNMS, the EBRV shall go into “Heightened Awareness” as described below.
(A) Prior to entering and navigating the modified TSS the Master of the vessel shall:
(I) Consult Navigational Telex (NAVTEX), NOAA Weather Radio, the NOAA Right Whale Sighting Advisory System (SAS) or other means to obtain current right whale sighting information as well as the most recent Cornell acoustic monitoring buoy data for the potential presence of marine mammals;
(II) Post a look-out to visually monitor for the presence of marine mammals;
(III) Provide the U.S. Coast Guard (USCG) required 96-hour notification of an arriving EBRV to allow the NEG Port Manager to notify Cornell of vessel arrival.
(B) The look-out shall concentrate his/her observation efforts within the 2-mile radius zone of influence (ZOI) from the maneuvering EBRV.
(C) If marine mammal detection was reported by NAVTEX, NOAA Weather Radio, SAS and/or an acoustic monitoring buoy, the look-out shall concentrate visual monitoring efforts towards the areas of the most recent detection.
(D) If the look-out (or any other member of the crew) visually detects a marine mammal within the 2-mile radius ZOI of a maneuvering EBRV, he/she will take the following actions:
(I) The Officer-of-the-Watch shall be notified immediately; who shall then relay the sighting information to the Master of the vessel to ensure action(s) can be taken to avoid physical contact with marine mammals.
(II) The sighting shall be recorded in the sighting log by the designated look-out.
(iii) In accordance with 50 CFR 224.103(c), all vessels associated with NEG Port and Pipeline Lateral activities shall not approach closer than 500 yards (460 m) to a North Atlantic right whale and 100 yards (91 m) to other whales to the extent physically feasible given navigational constraints. In addition, when approaching and departing the project area, vessels shall be operated so as to remain at least 1 km away from any visually-detected North Atlantic right whales.
(iv) In response to active right whale sightings and active acoustic detections, and taking into account exceptional circumstances, EBRVs, repair and maintenance vessels shall take appropriate actions to minimize the risk of striking whales. Specifically vessels shall:
(A) Respond to active right whale sightings and/or DMAs reported on the Mandatory Ship Reporting (MSR) or SAS by concentrating monitoring efforts towards the area of most recent detection and reducing speed to 10 knots or less if the vessel is within the boundaries of a DMA (50 CFR 224.105) or within the circular area centered on an area 8 nm in radius from a sighting location;
(B) Respond to active acoustic detections by concentrating monitoring efforts towards the area of most recent detection and reducing speed to 10 knots or less within an area 5 nm in radius centered on the detecting AB; and
(C) Respond to additional sightings made by the designated look-outs within a 2-mile radius of the vessel by slowing the vessel to 10 knots or less and concentrating monitoring efforts towards the area of most recent sighting.
(v) All vessels operated under NEG and Algonquin must follow the established specific speed restrictions when calling at the NEG Port. The specific speed restrictions required for all vessels (i.e., EBRVs and vessels associated with maintenance and repair) consist of the following:
(A) Vessels shall reduce their maximum transit speed while in the TSS from 12 knots or less to 10 knots or less from March 1 to April 30 in all waters bounded by straight lines connecting the following points in the order stated below unless an emergency situation dictates for an alternate speed. This area shall hereafter be referred to as the Off Race Point Seasonal Management Area (ORP–SMA) and tracks NMFS regulations at 50 CFR 224.105: 42°30′ N 70°30′ W, 41°40′ N 69°57′ W, 42°30′ N 69°45′ W, 42°12′ N 70°15′ W, 41°40′ N 69°45′ W, 42°12′ N 70°30′ W, 42°04.8′ N 70°10′ W, 42°30′ N 70°30′ W.
(B) Vessels shall reduce their maximum transit speed while in the TSS to 10 knots or less unless an emergency situation dictates for an alternate speed from April 1 to July 31 in all waters bounded by straight lines connecting the following points in the order stated below. This area shall hereafter be referred to as the GSC–SMA and tracks NMFS regulations at 50 CFR 224.105: 42°30′ N 69°45′ W, 41°40′ N 69°45′ W, 42°30′ N 67°27′ W, 42°30′ N 69°45′ W, 42°09′ N 67°08.4′ W, 41°00′ N 69°05′ W.
(C) Vessels are not expected to transit the Cape Cod Bay or the Cape Cod Canal; however, in the event that transit through the Cape Cod Bay or the Cape Cod Canal is required, vessels shall reduce maximum transit speed to 10 knots or less from January 1 to May 15 in all waters in Cape Cod Bay, extending to all shorelines of Cape Cod Bay, with a northern boundary of 42°12′ N latitude and the Cape Cod Canal. This area shall hereafter be referred to as the Cape Cod Bay Seasonal Management Area (CCB–SMA).
(D) All Vessels transiting to and from the project area shall report their activities to the mandatory reporting Section of the USCG to remain apprised of North Atlantic right whale movements within the area. All vessels entering and exiting the MSRA shall report their activities to WHALESNORTH. Vessel operators shall contact the USCG by standard procedures promulgated through the Notice to Mariner system.
(E) All Vessels greater than or equal to 300 gross tons (GT) shall maintain a speed of 10 knots or less, unless an emergency situation requires speeds greater than 10 knots.
(F) All Vessels less than 300 GT traveling between the shore and the project area that are not generally restricted to 10 knots will contact the Mandatory Ship Reporting (MSR) system, the USCG, or the project site before leaving shore for reports of active DMAs and/or recent right whale sightings and, consistent with navigation safety, restrict speeds to 10 knots or less within 5 miles (8 kilometers) of any sighting location,
(i) In addition to the general marine mammal avoidance requirements identified in (5)(a) above, vessels calling on the NEG Port must comply with the following additional requirements:
(A) EBRVs shall travel at 10 knots maximum speed when transiting to/from the TSS or to/from the NEG Port/Pipeline Lateral area. For EBRVs, at 1.86 miles (3 km) from the NEG Port, speed will be reduced to 3 knots and to less than 1 knot at 1,640 ft (500 m) from the NEG buoys, unless an emergency situation dictates the need for an alternate speed.
(B) EBRVs that are approaching or departing from the NEG Port and are within the ATBA5 surrounding the NEG Port, shall remain at least 1 km away from any visually-detected North Atlantic right whale and at least 100 yards (91 m) away from all other visually-detected whales unless an emergency situation requires that the vessel stay its course. During EBRV maneuvering, the Vessel Master shall designate at least one look-out to be exclusively and continuously monitoring for the presence of marine mammals at all times while the EBRV is approaching or departing from the NEG Port.
(C) During NEG Port operations, in the event that a whale is visually observed within 1 km of the NEG Port or a confirmed acoustic detection is reported on either of the two ABs closest to the NEG Port (western-most in the TSS array), departing EBRVs shall delay their departure from the NEG Port, unless an emergency situation requires that departure is not delayed. This departure delay shall continue until either the observed whale has been visually (during daylight hours) confirmed as more than 1 km from the NEG Port or 30 minutes have passed without another confirmed detection either acoustically within the acoustic detection range of the two ABs closest to the NEG Port, or visually within 1 km from the NEG Port.
(ii) Vessel captains shall focus on reducing dynamic positioning (DP) thruster power to the maximum extent practicable, taking into account vessel and Port safety, during the operation activities. Vessel captains will shut down thrusters whenever they are not needed.
(A) The Northeast Gateway shall conduct empirical source level measurements on all noise emitting construction equipment and all vessels that are involved in maintenance/repair work.
(B) If dynamic positioning (DP) systems are to be employed and/or activities will emit noise with a source level of 139 dB re 1 μPa at 1 m, activities shall be conducted in accordance with the requirements for DP systems listed in (5)(b)(ii).
(C) Northeast Gateway shall provide the NMFS Headquarters Office of the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, and SBNMS with a minimum of 30 days notice prior to any planned repair and/or maintenance activity. For any unplanned/emergency repair/maintenance activity, Northeast Gateway shall notify the agencies as soon as it determines that repair work must be conducted. Northeast Gateway shall continue to keep the agencies apprised of repair work plans as further details (e.g., the time, location, and nature of the repair) become available. A final notification shall be provided to agencies 72 hours prior to crews being deployed into the field.
(A) Pipeline maintenance/repair vessels less than 300 GT traveling between the shore and the maintenance/repair area that are not generally restricted to 10 knots shall contact the MSR system, the USCG, or the project site before leaving shore for reports of active DMAs and/or recent right whale sightings and, consistent with navigation safety, restrict speeds to 10 knots or less within 5 miles (8 km) of any sighting location, when travelling in any of the seasonal management areas (SMAs) as defined above.
(B) Maintenance/repair vessels greater than 300 GT shall not exceed 10 knots, unless an emergency situation that requires speeds greater than 10 knots.
(C) Planned maintenance and repair activities shall be restricted to the period between May 1 and November 30.
(D) Unplanned/emergency maintenance and repair activities shall be conducted utilizing anchor-moored dive vessel whenever operationally possible.
(E) Algonquin shall also provide the NMFS Office of the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, and Stellwagen Bank National Marine Sanctuary (SBNMS) with a minimum of 30-day notice prior to any planned repair and/or maintenance activity. For any unplanned/emergency repair/maintenance activity, Northeast Gateway shall notify the agencies as soon as it determines that repair work must be conducted. Algonquin shall continue to keep the agencies apprised of repair work plans as further details (e.g., the time, location, and nature of the repair) become available. A final notification shall be provided to agencies 72 hours prior to crews being deployed into the field.
(F) If dynamic positioning (DP) systems are to be employed and/or activities will emit noise with a source level of 139 dB re 1 μPa at 1 m, activities shall be conducted in accordance with the requirements for DP systems listed in (5)(b)(ii).
(G) In the event that a whale is visually observed within 0.5 mile (0.8 kilometers) of a repair or maintenance vessel, the vessel superintendent or on-deck supervisor shall be notified immediately. The vessel's crew shall be put on a heightened state of alert and the marine mammal shall be monitored constantly to determine if it is moving toward the repair or maintenance area.
(H) Repair/maintenance vessel(s) must cease any movement and/or cease all activities that emit noises with source level of 139 dB re 1 μPa @ 1 m or higher when a right whale is sighted within or approaching at 500 yd (457 m) from the vessel. Repair and maintenance work may resume after the marine mammal is positively reconfirmed outside the established zones (500 yd [457 m]) or 30 minutes have passed without a redetection. Any vessels transiting the maintenance area, such as barges or tugs, must also maintain these separation distances.
(I) Repair/maintenance vessel(s) must cease any movement and/or cease all activities that emit noises with source level of 139 dB re 1 μPa @ 1 m or higher when a marine mammal other than a right whale is sighted within or approaching at 100 yd (91 m) from the vessel. Repair and maintenance work may resume after the marine mammal is positively reconfirmed outside the established zones (100 yd [91 m]) or 30 minutes have passed without a redetection. Any vessels transiting the maintenance area, such as barges or tugs, must also maintain these separation distances.
(J) Algonquin and associated contractors shall also comply with the following:
(I) Operations involving excessively noisy equipment (source level
(II) Any material that has the potential to entangle marine mammals (e.g., anchor lines, cables, rope or other construction debris) shall only be deployed as needed and measures shall be taken to minimize the chance of entanglement.
(III) For any material that has the potential to entangle marine mammals, such material shall be removed from the water immediately unless such action jeopardizes the safety of the vessel and crew as determined by the Captain of the vessel.
(IV) In the event that a marine mammal becomes entangled, the marine mammal coordinator and/or PSO will notify NMFS (if outside the SBNMS), and SBNMS staff (if inside the SBNMS) immediately so that a rescue effort may be initiated.
(K) All maintenance/repair activities shall be scheduled to occur between May 1 and November 30; however, in the event of unplanned/emergency repair work that cannot be scheduled during the preferred May through November work window, the following additional measures shall be followed for Pipeline Lateral maintenance and repair related activities between December and April:
(I) Between December 1 and April 30, if on-board PSOs do not have at least 0.5-mile visibility, they shall call for a shutdown. At the time of shutdown, the use of thrusters must be minimized. If there are potential safety problems due to the shutdown, the captain will decide what operations can safely be shut down.
(II) Prior to leaving the dock to begin transit, the barge shall contact one of the PSOs on watch to receive an update of sightings within the visual observation area. If the PSO has observed a North Atlantic right whale within 30 minutes of the transit start, the vessel shall hold for 30 minutes and again get a clearance to leave from the PSOs on board. PSOs shall assess whale activity and visual observation ability at the time of the transit request to clear the barge for release.
(III) Transit route, destination, sea conditions and any marine mammal sightings/mitigation actions during watch shall be recorded in the log book. Any whale sightings within 1,000 m of the vessel shall result in a high alert and slow speed of 4 knots or less and a sighting within 750 m shall result in idle speed and/or ceasing all movement.
(IV) The material barges and tugs used in repair and maintenance shall transit from the operations dock to the work sites during daylight hours when possible provided the safety of the vessels is not compromised. Should transit at night be required, the maximum speed of the tug shall be 5 knots.
(V) All repair vessels must maintain a speed of 10 knots or less during daylight hours. All vessels shall operate at 5 knots or less at all times within 5 km of the repair area.
(i) Vessels associated with maintaining the AB network operating as part of the mitigation/monitoring protocols shall adhere to the following speed restrictions and marine mammal monitoring requirements.
(A) In accordance with NOAA Regulation 50 CFR 224.103 (c), all vessels associated with NEG Port activities shall not approach closer than 500 yards (460 meters) to a North Atlantic right whale.
(B) All vessels shall obtain the latest DMA or right whale sighting information via the NAVTEX, MSR, SAS, NOAA Weather Radio, or other available means prior to operations to determine if there are right whales present in the operational area.
(i) Vessel-based monitoring for marine mammals shall be done by trained look-outs during NEG LNG Port and Pipeline Lateral operations and maintenance and repair activities. The observers shall monitor the occurrence of marine mammals near the vessels during LNG Port and Pipeline Lateral related activities. Lookout duties include watching for and identifying marine mammals; recording their numbers, distances, and reactions to the activities; and documenting “take by harassment”.
(ii) The vessel look-outs assigned to visually monitor for the presence of marine mammals and shall be provided with the following:
(A) Recent NAVTEX, NOAA Weather Radio, SAS and/or acoustic monitoring buoy detection data;
(B) Binoculars to support observations;
(C) Marine mammal detection guide sheets; and
(D) Sighting log.
(i) All individuals onboard the EBRVs responsible for the navigation duties and any other personnel that could be assigned to monitor for marine mammals shall receive training on marine mammal sighting/reporting and vessel strike avoidance measures.
(ii) While an EBRV is navigating within the designated TSS, there shall be three people with look-out duties on or near the bridge of the ship including the Master, the Officer-of-the-Watch and the Helmsman-on-watch. In addition to the standard watch procedures, while the EBRV is transiting within the designated TSS, maneuvering within the Area to be Avoided (ATBA), and/or while actively engaging in the use of thrusters, an additional look-out shall be designated to exclusively and continuously monitor for marine mammals.
(iii) All sightings of marine mammals by the designated look-out, individuals posted to navigational look-out duties and/or any other crew member while the EBRV is transiting within the TSS, maneuvering within the ATBA and/or when actively engaging in the use of thrusters, shall be immediately reported to the Officer-of-the-Watch who shall then alert the Master. The Master or Officer-of-the-Watch shall ensure the required reporting procedures are followed and the designated marine mammal look-out records all pertinent information relevant to the sighting.
(iv) Visual sightings made by look-outs from the EBRVs shall be recorded using a standard sighting log form. Estimated locations shall be reported for each individual and/or group of individuals categorized by species when known. This data shall be entered into a database and a summary of monthly sighting activity shall be provided to NMFS. Estimates of take and copies of these log sheets shall also be included in the reports to NMFS.
(i) Two (2) qualified and NMFS-approved protected species observers (PSOs) shall be assigned to each vessel that will use dynamic positioning (DP) systems during maintenance and repair related activities. PSOs shall operate individually in designated shifts to accommodate adequate rest schedules. Additional PSOs shall be assigned to additional vessels if auto-detection buoy
(ii) All PSOs shall receive NMFS-approved marine mammal observer training and be approved in advance by NMFS after review of their resume. All PSOs shall have direct field experience on marine mammal vessels and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico.
(iii) PSOs (one primary and one secondary) shall be responsible for visually locating marine mammals at the ocean's surface and, to the extent possible, identifying the species. The primary PSO shall act as the identification specialist and the secondary PSO will serve as data recorder and also assist with identification. Both PSOs shall have responsibility for monitoring for the presence of marine mammals and sea turtles. Specifically PSO's shall:
(A) Monitor at all hours of the day, scanning the ocean surface by eye for a minimum of 40 minutes every hour.
(B) Monitor the area where maintenance and repair work is conducted beginning at daybreak using 25x power binoculars and/or hand-held binoculars. Night vision devices must be provided as standard equipment for monitoring during low-light hours and at night.
(C) Conduct general 360° visual monitoring during any given watch period and target scanning by the observer shall occur when alerted of a whale presence.
(D) Alert the vessel superintendent or construction crew supervisor of visual detections within 2 miles (3.31 kilometers) immediately.
(E) Record all sightings on marine mammal field sighting logs. Specifically, all data shall be entered at the time of observation, notes of activities will be kept, and a daily report prepared and attached to the daily field sighting log form. The basic reporting requirements include the following:
• Beaufort sea state;
• Wind speed;
• Wind direction;
• Temperature;
• Precipitation;
• Glare;
• Percent cloud cover;
• Number of animals;
• Species;
• Position;
• Distance;
• Behavior;
• Direction of movement; and
• Apparent reaction to construction activity.
(iv) In the event that a whale is visually observed within the 2-mile (3.31-kilometers) zone of influence (ZOI) of a DP vessel or other construction vessel that has shown to emit noise with source level in excess of 139 dB re 1 µPa @1 m, the PSO will notify the repair/maintenance construction crew to minimize the use of thrusters until the animal has moved away, unless there are divers in the water or an ROV is deployed.
(i) Northeast Gateway shall deploy 10 ABs within the Separation Zone of the TSS for the operational life of the Project.
(ii) The ABs shall be used to detect a calling North Atlantic right whale an average of 5 nm from each AB. The AB system shall be the primary detection mechanism that alerts the EBRV Master to the occurrence of right whales, heightens EBRV awareness, and triggers necessary mitigation actions as described in section (5) above.
(iii) Northeast Gateway shall conduct short-term passive acoustic monitoring to document sound levels during the initial operational events in the 2014–2015 winter heating season, and during both regular deliveries outside the winter heating season should such deliveries occur, and during scheduled and unscheduled maintenance and repair activities.
(iv) Northeast Gateway shall conduct long-term monitoring of the noise environment in Massachusetts Bay in the vicinity of the NEG Port and Pipeline Lateral using marine autonomous recording units (MARUs) when there is anticipated to be more than 5 LNG shipments in a 30-day period or over 20 shipments in a six-month period.
(v) The acoustic data collected in 6(d)(ii) shall be analyzed to document the seasonal occurrences and overall distributions of whales (primarily fin, humpback and right whales) within approximately 10 nm of the NEG Port and shall measure and document the noise “budget” of Massachusetts Bay so as to eventually assist in determining whether or not an overall increase in noise in the Bay associated with the Project might be having a potentially negative impact on marine mammals.
(vi) Northeast Gateway shall make all acoustic data, including data previously collected by the MARUs during prior construction, operations, and maintenance and repair activities, available to NOAA. Data storage will be the responsibility of NOAA.
(A) Ten (10) ABs that have been deployed since 2007 shall be used to continuously screen the low-frequency acoustic environment (less than 1,000 Hertz) for right whale contact calls occurring within an approximately 5-nm radius from each buoy (the AB's detection range).
(B) Once a confirmed detection is made, the Master of any EBRVs operating in the area will be alerted immediately.
(ii) NEG Port and Pipeline Lateral Planned and Unplanned/Emergency Repair and Maintenance Activities.
(A) If the repair/maintenance work is located outside of the detectible range of the 10 project area ABs, Northeast Gateway and Algonquin shall consult with NOAA (NMFS and SBNMS) to determine if the work to be conducted warrants the temporary installation of an additional AB(s) to help detect and provide early warnings for potential occurrence of right whales in the vicinity of the repair area.
(B) The number of ABs installed around the activity site shall be commensurate with the type and spatial extent of maintenance/repair work required, but must be sufficient to detect vocalizing right whales within the 120-dB impact zone.
(C) Should acoustic monitoring be deemed necessary during a planned or unplanned/emergency repair and/or maintenance event, active monitoring for right whale calls shall begin 24 hours prior to the start of activities.
(D) Revised noise level data from the acoustic recording units deployed in the NEG Port and/or Pipeline Lateral maintenance and repair area shall be provided to NMFS.
(a) Throughout NEG Port and Pipeline Lateral operations, Northeast Gateway and Algonquin shall provide a monthly Monitoring Report. The Monitoring Report shall include:
(i) Both copies of the raw visual EBRV lookout sighting information of marine mammals that occurred within 2 miles of the EBRV while the vessel transits within the TSS, maneuvers within the ATBA, and/or when actively engaging in the use of thrusters, and a summary of the data collected by the look-outs over each reporting period.
(ii) Copies of the raw PSO sightings information on marine mammals gathered during pipeline repair or maintenance activities. This visual sighting data shall then be correlated to
(iii) Conclusion of any planned or unplanned/emergency repair and/or maintenance period, a report shall be submitted to NMFS summarizing the repair/maintenance activities, marine mammal sightings (both visual and acoustic), empirical source-level measurements taken during the repair work, and any mitigation measures taken.
(b) During the maintenance and repair of NEG Port components, weekly status reports shall be provided to NOAA (both NMFS and SBNMS) using standardized reporting forms. The weekly reports shall include data collected for each distinct marine mammal species observed in the repair/maintenance area during the period that maintenance and repair activities were taking place. The weekly reports shall include the following information:
(i) Location (in longitude and latitude coordinates), time, and the nature of the maintenance and repair activities;
(ii) Indication of whether a DP system was operated, and if so, the number of thrusters being used and the time and duration of DP operation;
(iii) Marine mammals observed in the area (number, species, age group, and initial behavior);
(iv) The distance of observed marine mammals from the maintenance and repair activities;
(v) Changes, if any, in marine mammal behaviors during the observation;
(vi) A description of any mitigation measures (power-down, shutdown, etc.) implemented;
(vii) Weather condition (Beaufort sea state, wind speed, wind direction, ambient temperature, precipitation, and percent cloud cover etc.);
(viii) Condition of the observation (visibility and glare); and
(ix) Details of passive acoustic detections and any action taken in response to those detections.
(i) In the unanticipated event that survey operations clearly cause the take of a marine mammal in a manner prohibited by the proposed IHA, such as an injury (Level A harassment), serious injury or mortality (e.g., ship-strike, gear interaction, and/or entanglement), NEG and/or Algonquin shall immediately cease activities and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301–427–8401 and/or by email to
(A) Time, date, and location (latitude/longitude) of the incident;
(B) The name and type of vessel involved;
(C) The vessel's speed during and leading up to the incident;
(D) Description of the incident;
(E) Status of all sound source use in the 24 hours preceding the incident;
(F) Water depth;
(G) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);
(H) Description of marine mammal observations in the 24 hours preceding the incident;
(I) Species identification or description of the animal(s) involved;
(J) The fate of the animal(s); and
(K) Photographs or video footage of the animal (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with NEG and/or Algonquin to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. NEG and/or Algonquin may not resume their activities until notified by NMFS via letter, email, or telephone.
(ii) In the event that NEG and/or Algonquin discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), NEG and/or Algonquin will immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301–427–8401, and/or by email to
(iii) In the event that NEG or Algonquin discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized (if the IHA is issued) (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), NEG and/or Algonquin shall report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301–427–8401, and/or by email to
NMFS requests comment on the revised proposed PAM monitoring for NMFS proposed IHA for Northeast Gateway's LNG Port and Pipeline Lateral operations and maintenance and repair activities, as described in this notice and in Tetratech's June 20, 2014, application (see
Office of Management (OM), 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 Regina Miles, 202–260–3887.
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.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following qualifying facility 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
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding, of Roundtop 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 October 20, 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 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
This is a supplemental notice in the above-referenced proceeding, of Skylar Resources, LP's application for market-based rate authority, with an accompanying rate schedule, noting that
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 October 20, 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 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
This is a supplemental notice in the above-referenced proceeding, of White Pine Electric Power, L.L.C.'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 October 20, 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 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
This is a supplemental notice in the above-referenced proceeding, of UP Power Marketing, 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 October 20, 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 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
This is a supplemental notice in the above-referenced proceeding, of Hoopeston Wind, 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 October 20, 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 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
Western Area Power Administration, DOE.
Notice of Proposed Extension for the Provo River Project Power Rate Formula.
This action is a proposal to extend the existing Provo River Project firm power rate formula through March 31, 2020. The existing rate formula will expire on March 31, 2015.
Thirty days after this notice is published, Western Area Power Administration (Western) will take further action on the proposed formula rate extension consistent with 10 CFR 903.
Ms. Lynn C. Jeka, CRSP Manager, Colorado River Storage Project Management Center, 150 East Social Hall Avenue, Suite 300, Salt Lake City, UT 84111–1580, telephone (801) 524–6372, email:
By Delegation Order No. 00–037.00A, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to Western's Administrator; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, to remand or to disapprove such rates to the Federal Energy Regulatory Commission (FERC). This extension is issued pursuant to the Delegation Order and Department of Energy (DOE) rate extension procedures at 10 CFR 903.23(a).
Under Delegation Order No. 0204–108 and existing DOE procedures for public participation in rate adjustments at 10 CFR part 903, Western's Provo River Power Rate formula was submitted to FERC for confirmation and approval on February 2, 2010. The Provo River Power Rate formula, Rate Order No. WAPA–149, was approved for 5 years beginning April 1, 2010, and ending March 31, 2015.
The Provo River Project, which includes Deer Creek Dam on the Provo River in Utah, was authorized in 1935. Construction of the dam began in 1938 and was completed in 1951. The Deer Creek Powerplant was authorized on August 20, 1951; construction began in 1956 and was completed in 1958; generation began that same year. Its maximum operating capacity is 5,200 kilowatts.
The Provo River Project's power is sold according to a marketing plan that was published in the
Contract Nos. 94–SLC–0253, 94–SLC–0254, and 07–SLC–0601 between the United States and Customers require that each fiscal year (FY) a new annual installment be calculated in advance by Western and submitted to the Customers on or before August 31 of the year preceding the appropriate FY. Each FY, Western prepares a power repayment study, which includes estimates of operation, maintenance, and replacement costs for the Deer Creek Powerplant. The annual installment is adjusted on or before August 31 of the year preceding the FY to which it pertains, and Western identifies this
Thirty days after this notice is published, Western will take further action on the proposed formula rate extension for the Provo River Project, pursuant to the Delegation Order and DOE rate extension procedures at 10 CFR 903.23(a).
Environmental Protection Agency (EPA).
Notice.
EPA is required under the Toxic Substances Control Act (TSCA) to publish in the
Comments identified by the specific PMN number or TME number, must be received on or before November 5, 2014.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2014–0706, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the PMNs addressed in this action.
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
This document provides receipt and status reports, which cover the period from August 25, 2014 to September 15, 2014, and consists of the PMNs pending and/or expired, and the NOCs to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
Section 5 of TSCA requires that EPA periodical publish in the
EPA classifies a chemical substance as either an “existing” chemical or a “new” chemical. Any chemical substance that is not on EPA's TSCA Inventory is classified as a “new chemical,” while those that are on the TSCA Inventory are classified as an “existing chemical.” For more information about the TSCA Inventory go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
In Table I. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: The EPA case number assigned to the PMN, the date the PMN was received by EPA, the projected end date for EPA's review of the PMN, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the PMN, and the chemical identity.
In Table II. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs received by EPA during this period: The EPA case number assigned to the NOC, the date the NOC was received by EPA, the projected end date for EPA's review of the NOC, and chemical identity.
If you are interested in information that is not included in these tables, you may contact EPA as described in Unit III. to access additional non-CBI information that may be available.
15 U.S.C. 2601
Environmental Protection Agency.
Notice; request for comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement with two parties for recovery of response costs concerning the Strategic Sciences Superfund Site in Sylmar, California. The settlement is entered into pursuant to Section 122(h)(1) of CERCLA, 42 U.S.C. 9622(h)(1), and it requires the settling party to pay $40,000 to the United States Environmental Protection Agency (Agency). The settlement includes a covenant not to sue the settling party pursuant to Sections 106 or 107(a) of CERCLA, 42 U.S.C. 9606 or 9607(a). For thirty (30) days following the date of publication of this Notice in the
Comments must be submitted on or before November 5, 2014.
The proposed settlement is available for public inspection at EPA Region IX, 75 Hawthorne Street, San Francisco, California. A copy of the proposed settlement may be obtained from J. Andrew Helmlinger, EPA Region IX, 75 Hawthorne Street, ORC–3, San Francisco, CA 94105, telephone number 415–972–3904. Comments should reference the Strategic Sciences Superfund Site, Sylmar, California, and should be addressed to J. Andrew Helmlinger at the above address.
J. Andrew Helmlinger, Assistant Regional Counsel (ORC–3), Office of Regional Counsel, U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105; phone: (415) 972–3904; fax: (417) 947–3570; email:
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)
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 comments should be submitted on or before November 5, 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 contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418–2991.
To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
This information collection is being revised to require online electronic filing for FCC Forms 499–A and 499–Q (currently, the forms may be filed either electronically or on paper). Also, the third-party disclosure requirement is being eliminated.
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 the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. 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 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 Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before December 5, 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
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418–2918.
Upon the OMB's approval of the proposed changes in this information collection, the Commission plans to eliminate two existing information collections from the Commission's inventory, OMB Control Number 3060–0106 (47 CFR 43.61 annual traffic and revenue reports) and OMB Control Number 3060–0572 (47 CFR 43.82 annual circuit-status reports).
In order for carriers to comply with annual reporting requirements stipulated in 47 CFR 43.62, the Commission is developing a web-based system for filers to submit their reports. Filers will access the filing system via a portal on the FCC Web site,
Without this collection of information, the Commission would not be able to ensure compliance with its international rules and policies. Furthermore, the Commission would not have sufficient information to take measures to prevent anticompetitive conduct in the provision of international communications services. The Commission would not have adequate information to respond to failures in the U.S.-international market. The Commission would not be able to promote effective competition in the global market for communications services. The lack of effective competition would adversely affect the U.S. revenues in the telecommunications industry. The agency would not be able to comply with the international regulations stated in the World Trade Organization (WTO) Basic Telecom Agreement. Carriers and other entities outside the Commission, such as other government agencies, international organizations, and academia, use the information to analyze industry trends. Other government agencies use the information in merger analyses and negotiations with foreign countries. If the information collection was not conducted, carriers, government agencies and other entities would not have accurate industry data available in order to conduct analyses.
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 the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. 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 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 Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before December 5, 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.
Submit your PRA comments to Benish Shah, Federal Communications Commission, via the Internet at
Benish Shah, Office of Managing Director, (202) 418–7866.
MHz or at 764–776/794–806 MHz.
Any method can be used to ensure this compliance with the “one business day requirement” and must provide, at a minimum, the name of the applicant; frequency or frequencies recommended; antenna locations and heights; and effective radiated power; the type(s) of emissions; the description of the service area; and the date and time of the recommendation. If a conflict in recommendations arises, the effected coordinators are jointly responsible for taking action to resolve the conflict, up to and including notifying the Commission that an application may have to be returned.
This requirement seeks to avoid situations where harmful interference is created because two or more coordinators recommend the same frequency in the same area at approximately the same time to different applicants.
Federal Communications Commission.
Notice.
The following applicants filed AM or FM proposals to change the community of license: Birach Broadcasting Corporation, Station WMFN, Facility ID 55089, BP–20140715AAF, From Zeeland, MI, To Peotone, IL; Isleta Radio Company, Station KQNM, Facility ID 22391, BP–20140715ABR, From Milan, NM, To Sandia, NM; Max Henry & Associates, Station NEW, Facility ID 191528, BMPH–20140715AAT, From Harrison, MI, To Big Rapids, MI; Radio Fargo-Moorhead, Inc., Station KSKK, Facility ID 49094, BPH–20140917ABQ, From Staples, MN, To Frazee, MN; Results Radio of Redding Licensee, LLC, Station KNCQ, Facility ID 40828, BPH–20140828ACE, From Redding, CA, To Weaverville, CA; Results Radio of Redding Licensee, LLC, Station KHRD, Facility ID 82720, BPH–20140828ACG, From Weaverville, CA, To Redding, CA; Sacred Heart University, Inc., Station WSHU, Facility ID 43126, BP–20140821AFR, From Westport, CT, To Seymour, CT; SSR Communications, Inc., Station WYAB, Facility ID 77646, BPH–20140826ACE, From Flora, MS, To Pocahontas, MS; Sunnylands Broadcasting LLC, Station NEW, Facility ID 189496, BNPH–20110630AGJ, From Ilwaco, WA, To Central Park, WA.
The agency must receive comments on or before December 5, 2014.
Federal Communications Commission, 445 Twelfth Street SW., Washington, DC 20554.
Tung Bui, 202–418–2700.
The full text of these applications is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street SW., Washington, DC 20554 or electronically via the Media Bureau's Consolidated Data Base System,
Federal Election Commission.
Thursday, October 9, 2014 at 10 a.m.
999 E Street NW., Washington, DC (ninth floor).
This meeting will be open to the public.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shawn Woodhead Werth, Secretary and Clerk, at (202)694–1040, at least 72 hours prior to the meeting date.
Judith Ingram, Press Officer, Telephone: (202) 694–1220.
The Federal Maritime Commission (Commission) deems it appropriate and in the public interest that a proceeding be, and hereby is, instituted pursuant to section 11 of the Shipping Act of 1984 (Shipping Act), 46 U.S.C. 41302, against respondent Metro Freight Services, Inc., a licensed and bonded ocean freight forwarder and non-vessel-operating common carrier (NVOCC), for possible violations of the Commission's regulations at 46 CFR 515.18(c) and 515.42(i) and section 19(e)(3) of the Shipping Act, 46 U.S.C. 40904(c).
Based on information provided to it, the Commission's Bureau of Enforcement makes the following allegations:
1. Metro Freight Services, Inc. dba Maritime Express Lines (M.E.L.) (Metro Freight) is a licensed, tariffed and bonded ocean transportation intermediary (OTI), providing service as a freight forwarder and NVOCC (Org. No. 006490).
2. Metro Freight's offices are located at 1225 West St. George Avenue, Linden, New Jersey 07036.
3. Metro Freight was incorporated in the State of New York in 1985, and is registered with the State of New Jersey as a foreign corporation doing business in that state.
4. Metro Freight holds itself out to do OTI business through its Internet Web site,
5. Metro Freight holds itself out as an NVOCC through its automated tariff (#006490–001) published by Distribution Publications, Inc at
6. Metro Freight maintains an NVOCC bond, No. 570364, in the amount of $75,000 and a freight forwarder bond, No. W6009, in the amount of $50,000 with American Alternative Insurance Corporation in Princeton, New Jersey.
7. Through April 2010, OTI licensing records maintained by the Commission's Bureau of Certification and Licensing (BCL) identify Georges T. Samaha as the sole Qualifying Individual (QI) for Metro Freight.
8. On or about February 29, 2012, Metro Freight submitted to the Commission's Bureau of Enforcement (BOE) written responses to an OTI compliance questionnaire, dated February 2, 2012.
9. Metro Freight's February 29, 2012 response identified its QI, Georges Samaha, as deceased.
10. On information and belief, the former QI and owner of Metro Freight, Georges Samaha, passed away on August 6, 2011.
11. Metro Freight's February 29, 2012 response identified Metro Freight as having handled 634 export ocean shipments as an OTI ocean freight forwarder in the 12 months immediately prior.
12. Metro Freight's February 29, 2012 response identified G&M Export Corporation as a shipper of cargo affiliated with Metro Freight.
13. Metro Freight's February 29, 2012 response identified G&M Export's address as 1225 West St. George Avenue, Linden, New Jersey 07036.
14. Metro Freight's February 29, 2012 response identified G&M Export as sharing office space, expenses and/or personnel with Metro Freight.
15. Metro Freight's February 29, 2012 response identified Paola C. Samaha as the 100% owner of G&M Export.
16. By letter dated March 6, 2012, BOE advised Metro Freight of its obligation to submit an application for a proposed replacement QI. 46 CFR 515.18(c).
17. By follow-up letter to BOE dated March 16, 2012, Metro Freight advised that it had collected freight forwarder compensation on 28 shipments in which G&M Export was the shipper named on the bill of lading issued by the ocean common carrier, United Arab Shipping Company (UASC).
18. On or about May 11, 2012, Metro Freight submitted an application designating Paola C. Samaha as the proposed QI for Metro Freight, replacing Georges Samaha. Mrs. Samaha was identified therein as the President and 100% owner of Metro Freight.
19. In support of its application, Metro Freight submitted a copy of a corporate resolution dated January 3, 2012, designating Paola Samaha as President of Metro Freight to replace the “decedent President, Mr. Georges T. Samaha.”
20. On June 26, 2012, Metro Freight was notified by letter that the Commission's Bureau of Certification and Licensing (BCL) closed its application for failure to demonstrate that the proposed QI, Paola Samaha, met the requirements to demonstrate prior OTI-related work experience.
21. BCL's June 26, 2012 letter notified Metro Freight that it was required to promptly submit another application to replace the QI, and that continued operation could result in civil penalties.
22. BCL receive no response from Metro Freight regarding the letter issued June 26, 2012.
23. Through September 1, 2014, the Commission's Bureau of Certification and Licensing has not approved a replacement QI for Metro Freight.
24. According to records of the New York State Division of Corporations, G&M Export was incorporated in the State of New York in 1990.
25. According to records of the New York State Division of Corporations, G&M Export's address is 1225 West St. George Avenue, Linden, New Jersey 07036.
26. According to records of the New York State Division of Corporations, Paola C. Samaha is currently the Chairman and CEO of G&M Export.
27. According to records in the Commission's SERVCON database, G&M Export is identified as the shipper party named in service contracts with United Arab Shipping Company (UASC), an ocean common carrier.
28. UASC service contract No. 2009–130 was first executed on or about February 20, 2009 and signed by Georges T. Samaha as President and CEO of G&M Export.
29. In entering into UASC service contract No. 2009–130, G&M Export certified that its shipper status was cargo owner.
30. The term of UASC service contract No. 2009–130 was February 20, 2009 through February 19, 2010. UASC service contract No. 2009–130 was extended by contract amendments through March 31, 2011.
31. UASC service contract No. 124288 was first executed on or about April 1, 2011 and signed by Paola C. Kamel as President and CEO of G&M Export.
32. In entering into UASC service contract No. 124288, G&M Export certified that its shipper status was cargo owner.
33. The term of UASC service contract No. 124288 was April 1, 2011 through March 31, 2012.
34. UASC service contract No. 187966 was first executed on or about April 17, 2012 and signed by Paola Samaha on behalf of G&M Export.
35. On information and belief, Paola C. Kamel and Paola C. Samaha are the same person.
36. In entering into UASC service contract No. 187996, G&M Export certified that its shipper status was cargo owner.
37. The term of UASC service contract No. 187966 was April 1, 2012 through April 30, 2013. UASC service contract No. 187966 was terminated by
38. With respect to the 25 shipments identified in Attachment A, G&M Export was identified as the shipper on the UASC ocean bill of lading.
39. With respect to the 25 shipments identified in Attachment A, Metro Freight invoiced or collected freight forwarder compensation for shipments in which G&M Exports was the shipper.
40. On May 28, 2014, the Commission's New York Area Representative Ron Podlaskowich visited Metro Freight's offices and interviewed staff at the offices of Metro Freight, and confirmed that Metro Freight was still operating as an OTI in the absence of an approved QI.
41. Each OTI licensee must have and continuously maintain an approved Qualifying Individual having the necessary experience in OTI activities and the necessary character to render OTI services. The Commission's regulations at 46 CFR 515.18(a)(6) and (c) require that when a corporation has been licensed on the basis of the qualifications of an officer of the company and that individual no longer serves in a full time and active capacity, the licensee must report such change to the Commission within 30 days and within that time period furnish to the Commission the names and detailed intermediary experience of any other active officer who may qualify the licensee.
42. Section 19(e) of the Shipping Act, 46 U.S.C. 40904 states that an ocean freight forwarder may not “receive compensation from a common carrier for a shipment in which the ocean freight forwarder has a direct or indirect beneficial interest.” The Commission regulations further specify that a freight forwarder “may not receive compensation from a common carrier with respect to any shipment in which the forwarder has a beneficial interest or with respect to any shipment in which the holding company, subsidiary, affiliate, officer, director, agent or executive of such forwarder has a beneficial interest.” 46 CFR 515.42(i).
43. The activities of Metro Freight, identified above, were provided as part of and in connection with transportation by water of cargo between the United States and a foreign country for compensation over which the Commission has jurisdiction.
44. Under 46 U.S.C. 41302(a), the Commission is empowered to investigate any conduct or agreement that the Commission believes may be in violation of the Shipping Act.
45. The Commission may, after notice and opportunity for hearing, issue an order relating to any violation of the Shipping Act, including assessment of a civil penalty. 46 U.S.C. 41304.
46. The Commission may suspend or revoke an OTI license if the Commission finds that the OTI willfully failed to comply with an order or regulation of the Commission. 46 U.S.C. 40903(a).
47. It is alleged that Metro Freight violated the Commission's regulations at 46 CFR 515.18(a)(6) and (c) by failing to promptly notify the Commission of the death of its QI and failing to timely seek and obtain approval of a replacement Qualifying Individual.
48. It is alleged that, with respect to the 25 shipments identified in Attachment A, Metro Freight violated section 19(e)(3) of the Shipping Act and the Commission's regulations at 46 CFR 515.42(i), by receiving freight forwarder compensation from a common carrier for shipments in which Metro Freight had a direct or indirect beneficial interest.
By the Commission.
The Commission gives notice that the following applicants have filed an application for an Ocean Transportation Intermediary (OTI) license as a Non-Vessel-Operating Common Carrier (NVO) and/or Ocean Freight Forwarder (OFF) pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. 40101). Notice is also given of the filing of applications to amend an existing OTI license or the Qualifying Individual (QI) for a licensee.
Interested persons may contact the Office of Ocean Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573, by telephone at (202) 523–5843 or by email at
Pursuant To The Commission's Direct Final Rule (79 FR 56522), Beginning October 20, 2014, These Notices Will No Longer Be Posted In The
By the Commission.
The Commission gives notice that the following Ocean Transportation Intermediary license has been reissued pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. 40101).
Pursuant to the Commission's direct final rule (79 FR 56522), beginning October 20, 2014, these notices will no longer be posted in the
The Commission gives notice that the Order revoking the following Ocean Transportation Intermediary license has been rescinded pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. 40101).
Pursuant to the Commission's direct final rule (79 FR 56522), beginning October 20, 2014, these notices will no longer be posted in the
The Commission gives notice that the following Ocean Transportation Intermediary licenses have been revoked or terminated for the reason indicated pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. 40101) effective on the date shown.
Pursuant to the Commission's direct final rule (79 FR 56522), beginning October 20, 2014, these notices will no longer be posted in the
Federal Trade Commission (“FTC” or “Commission”).
Notice.
The FTC intends to ask the Office of Management and Budget (“OMB”) to extend for an additional three years the current Paperwork Reduction Act (“PRA”) clearance for information collection requirements contained in its rule on Use of Prenotification Negative Option Plans (“Negative Option Rule” or “Rule”). That clearance expires on December 31, 2014.
Comments must be submitted by November 5, 2014.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Requests for additional information should be addressed to Robert M. Frisby, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Mailstop-CC–9528, Washington, DC 20580, (202) 326–2098.
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online, or to send them to the Commission by courier or overnight service. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Negative Option Rule: FTC File No. P064202” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC–5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
Comments on the information collection requirements subject to review under the PRA should additionally be submitted to OMB. If sent by U.S. mail, they should be addressed to Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission, New Executive Office Building, Docket Library, Room 10102, 725 17th Street NW., Washington, DC 20503. Comments sent to OMB by U.S. postal mail, however, are subject to delays due to heightened security precautions. Thus, comments instead should be sent by facsimile to (202) 395–5806.
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before October 29, 2014.
Interested parties may file a comment at
David Newman, Western Region—San Francisco, (415) 848–5123, 901 Market Street, Suite 570, San Francisco, CA 94103.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for September 29, 2014), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 29, 2014. Write “In the Matter of Norm Thompson Outfitters, Inc.—Consent Agreement; File No. 132 3094” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “In the Matter of Norm Thompson Outfitters, Inc.—Consent Agreement; File No. 132 3094” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC–5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission (“FTC” or “Commission”) has accepted, subject to final approval, an Agreement Containing Consent Order from Norm Thompson Outfitters, Inc. (“respondent”). The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement's proposed order.
This matter involves the advertising, marketing, and sale by respondent of women's undergarments that are infused with microencapsulated caffeine and other ingredients. Respondent has marketed the garments through its mail order catalogs and through Web sites under the names Norm Thompson Outfitters, Sahalie, Solutions, Body Essentials and Body*Belle. According to the FTC complaint, respondent claimed the garments would slim and reshape the body and reduce cellulite.
Specifically, the FTC complaint alleges that respondent represented that wearing the garments eight hours a day for 30 days eliminates or substantially reduces cellulite; causes a reduction of up to two inches in the wearer's hip measurements and up to one inch in the wearer's thigh measurements in one month or less; and that the reduction in thigh and hip measurements can be achieved without effort. The complaint alleges that these claims are unsubstantiated and thus violate the FTC Act. The complaint also alleges that respondent represented that scientific tests prove that wearing the garments results in a substantial reduction in hip and thigh measurement and that scientific tests prove that wearing the garments five days a week, for eight hours a day, for 28 days will reduce a wearer's hip measurement by two inches and a wearer's thigh measurement by one inch. The complaint alleges that these claims are false and thus violate the FTC Act.
The proposed consent order contains provisions designed to prevent respondent from engaging in similar acts or practices in the future. Specifically, Parts I–III address the unsubstantiated claims alleged in the complaint. Part I prohibits respondent from claiming that any Covered Product—
Part II covers any representation, other than representations covered under Part I, that any Covered Product or any drug or cosmetic causes weight or fat loss or a reduction in body size. Part II prohibits respondent from making such representations unless the representation is non-misleading, and, at the time of making such representation, respondent possesses and relies upon competent and reliable scientific evidence that substantiates that the representation is true. For purposes of Part II, the proposed order defines “competent and reliable scientific evidence” as at least two randomized, double-blind, placebo-controlled human clinical studies that are conducted by independent, qualified researchers and that conform to acceptable designs and protocols, and whose results, when considered in light of the entire body of relevant and reliable scientific evidence, are sufficient to substantiate that the representation is true.
Part III of the proposed order prohibits respondent from making any representation, other than representations covered under Parts I or II, that use of a Covered Product or a drug or cosmetic reduces or eliminates cellulite, unless the representation is non-misleading, and, at the time of making such representation, respondent possesses and relies upon competent and reliable scientific evidence that is sufficient in quality and quantity based on standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that the representation is true. For purposes of Part III, the proposed order defines “competent and reliable scientific evidence” as tests, analyses, research, or studies that have been conducted and evaluated in an objective manner by qualified persons, and that are generally accepted in the profession to yield accurate and reliable results.
Part IV of the proposed order addresses the allegedly false claims that scientific tests prove that wearing the advertised garments results in the reduction in the wearer's body size. Part IV prohibits respondent, when
Part V of the proposed order provides a safe harbor for representations that are permitted in labeling for that drug under any tentative or final standard promulgated by the Food and Drug Administration (“FDA”), any new drug application approved by the FDA, or FDA regulations pursuant to the Nutrition Labeling and Education Act of 1990 or the FDA Modernization Act of 1997.
Part VII of the proposed order requires respondent to pay two hundred thirty thousand dollars ($230,000) to the Commission to be used for equitable relief, including restitution. The order also requires respondent to administer and bear the costs of the redress program. To facilitate the payment of redress, Part VI of the proposed order requires respondent to provide to the Commission a searchable electronic file containing the name and contact information of all consumers who purchased the garments from respondent from March 20, 2011, through the date of entry of the order.
Part VIII of the proposed order is triggered whenever the human clinical testing requirement in either Part II or Part III applies. Part VIII of the proposed order requires the company to secure and preserve all underlying or supporting data and documents generally accepted by experts in the field as relevant to an assessment of the test. There is an exception for a “Reliably Reported” test defined as a test published in a peer-reviewed journal that was not conducted, controlled, or sponsored by any proposed respondent or supplier. Also, the published report must provide sufficient information about the test for experts in the relevant field to assess the reliability of the results.
Part IX of the proposed order contains recordkeeping requirements for advertisements and substantiation relevant to any representation covered by the proposed order. Parts X, XI and XII of the proposed order require respondent to provide copies of the order to its personnel; to notify the Commission of changes in corporate structure that might affect compliance obligations under the order; and to file compliance reports with the Commission. Part XIII provides that the order will terminate after twenty (20) years, with certain exceptions.
The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of the complaint and proposed order or to modify the proposed order's terms in any way.
By direction of the Commission.
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before October 29, 2014.
Interested parties may file a comment at
David Newman, Western Region—San Francisco, (415) 848–5123, 901 Market Street, Suite 570, San Francisco, CA 94103.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for September 29, 2014), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 29, 2014. Write “In the Matter of Wacoal America, Inc.—Consent Agreement; File No. 132 3095” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “In the Matter of Wacoal America, Inc.—Consent Agreement; File No. 132 3095” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC–5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission (“FTC” or “Commission”) has accepted, subject to final approval, an Agreement Containing Consent Order from Wacoal America, Inc. (“respondent”). The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement's proposed order.
This matter involves the advertising, marketing, and sale by respondent of iPants, women's undergarments that are infused with microencapsulated caffeine and other ingredients. Respondent has marketed the iPants garments to consumers through third-party retailers and through its Web site. According to the FTC complaint, respondent claimed the iPants garments would slim and reshape the body and reduce cellulite.
Specifically, the FTC complaint alleges that respondent represented that wearing iPants garments eliminates or substantially reduces cellulite; causes a substantial reduction in the wearer's thigh measurements; and that iPants garments contain caffeine that causes the destruction of fat cells and results in substantial slimming. The complaint alleges that these claims are unsubstantiated and thus violate the FTC Act. The complaint also alleges that respondent represented that scientific tests prove that most iPant wearers achieve a substantial reduction in thigh measurement and that scientific tests prove that wearing the iPants garments for eight hours a day for 28 days will substantially reduce a wearer's thigh measurement. The complaint alleges that these claims are false and thus violate the FTC Act.
The proposed consent order contains provisions designed to prevent respondent from engaging in similar acts or practices in the future. Specifically, Parts I–III address the unsubstantiated claims alleged in the complaint. Part I prohibits respondent from claiming that any Covered Product—i.e., a garment that contains any drug or cosmetic—causes substantial weight or fat loss or a substantial reduction in unclad body size. The Commission has publicly advised that any claim that a product worn on the body causes substantial weight loss is always false.
Part II covers any representation, other than representations covered under Part I, that any Covered Product or any drug or cosmetic causes weight or fat loss or a reduction in unclad body size. Part II prohibits respondent from making such representations unless the representation is non-misleading, and, at the time of making such representation, respondent possesses and relies upon competent and reliable scientific evidence that substantiates that the representation is true. For purposes of Part II, the proposed order defines “competent and reliable scientific evidence” as at least two randomized, double-blind, placebo-controlled human clinical studies that are conducted by independent, qualified researchers and that conform to acceptable designs and protocols, and whose results, when considered in light of the entire body of relevant and reliable scientific evidence, are sufficient to substantiate that the representation is true.
Part III of the proposed order prohibits respondent from making any representation, other than representations covered under Parts I or II, that use of a Covered Product or a drug or cosmetic reduces or eliminates cellulite, unless the representation is non-misleading, and, at the time of making such representation, respondent possesses and relies upon competent and reliable scientific evidence that is sufficient in quality and quantity based on standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that the representation is true. For purposes of Part III, the proposed order defines “competent and reliable scientific evidence” as tests, analyses, research, or studies that have been conducted and evaluated in an objective manner by qualified persons, and that are generally accepted in the profession to yield accurate and reliable results.
Part IV of the proposed order addresses the allegedly false claims that scientific tests prove that wearing iPants garments result in reduction of the wearer's thigh measurement. Part IV prohibits respondent, when advertising any product, from misrepresenting the existence, contents, validity, results, conclusions, or interpretations of any test, study, or research, or misrepresenting that the benefits of the product are scientifically proven.
Part V of the proposed order provides a safe harbor for representations that are permitted in labeling for that drug under any tentative or final standard promulgated by the Food and Drug Administration (“FDA”), any new drug application approved by the FDA, or FDA regulations pursuant to the Nutrition Labeling and Education Act of 1990 or the FDA Modernization Act of 1997.
Part VII of the proposed order requires respondent to pay one million three
Part IX of the proposed order is triggered whenever the human clinical testing requirement in either Part II or Part III applies. Part IX of the proposed order requires the company to secure and preserve all underlying or supporting data and documents generally accepted by experts in the field as relevant to an assessment of the test. There is an exception for a “Reliably Reported” test defined as a test published in a peer-reviewed journal that was not conducted, controlled, or sponsored by any proposed respondent or supplier. Also, the published report must provide sufficient information about the test for experts in the relevant field to assess the reliability of the results.
Part X of the proposed order contains recordkeeping requirements for advertisements and substantiation relevant to any representation covered by the proposed order. Parts XI, XII and XIII of the proposed order require respondent to provide copies of the order to its personnel; to notify the Commission of changes in corporate structure that might affect compliance obligations under the order; and to file compliance reports with the Commission. Part XIV provides that the order will terminate after twenty (20) years, with certain exceptions.
The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of the complaint or and proposed order or to modify the proposed order's terms in any way.
By direction of the Commission.
National Toxicology Program (NTP), National Institute of Environmental Health Sciences (NIEHS); National Institutes of Health (NIH).
Availability of the Report on Carcinogens, Thirteenth Edition (13th RoC).
The Department of Health and Human Services released the 13th RoC to the public on October 2, 2014. The report is available on the RoC Web site at:
The 13th RoC is available to the public on October 2, 2014.
Dr. Ruth Lunn, Director, Office of the RoC, NTP, NIEHS, P.O. Box 12233, MD K2–14, Research Triangle Park, NC 27709; telephone: (919) 316–4637; FAX: (301) 480–2970;
Questions or comments concerning the 13th RoC should be directed to Dr. Ruth Lunn (telephone: (919) 316–4637 or
The RoC is a congressionally mandated document that identifies and discusses agents, substances, mixtures, or exposure circumstances (collectively referred to as “substances”) that may pose a hazard to human health by virtue of their carcinogenicity. Substances are listed in the report as either
The NTP prepares the RoC on behalf of the Secretary of Health and Human Services. For the 13th RoC, the NTP followed an established, multi-step process with multiple opportunities for public input, and used established criteria to evaluate the scientific evidence on each candidate substance under review (
The 13th RoC contains 243 listings, some of which consist of a class of structurally related chemicals or agents. There are three new listings and one revised listing in this edition. The revised listing is for
Description: The ORR–1, Cash and Medical Assistance (CMA) Program Estimates, is the application for grants under the CMA program. The application is required by the Office of Refugee Resettlement (ORR) program regulations at 45 CFR 400.11(b). The regulation specifies that States must submit, as their application for this program, estimates of the projected costs they anticipate incurring in providing cash and medical assistance for eligible recipients and the costs of administering the program. Under the CMA program, States are reimbursed for the costs of providing these services and benefits for eight months after an eligible recipient arrives in this country. The eligible recipients for these services and benefits are refugees, Amerasians, Cuban and Haitian Entrants, asylees, Afghans and Iraqi with Special Immigrant Visas, and victims of a severe form of trafficking. States that provide services for unaccompanied refugee minors also provide an estimate for the cost of these services for the year for which they are applying for grants.
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection. Email address:
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
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 materials,
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 meetings of the Board of Scientific Counselors for Clinical Sciences and Epidemiology, National Cancer Institute and the Board of Scientific Counselors for Basic Sciences, National Cancer Institute.
The meetings will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Cancer Institute, including consideration of personnel qualifications and performance, and the competence of individual investigators, 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 meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of 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 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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and contract proposals, 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 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(a) of the Federal Advisory Committee Act, as
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the OAR'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.
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 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 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 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 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.
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.
Information is also available on the Institute's/Center's home page:
Office of Chief Procurement Officer, Acquisition Policy and Legislation Office, DHS.
60-day notice and request for comments; extension without change, 1600–0004.
The Department of Homeland Security, Office of Chief Procurement Officer, Acquisition Policy and Legislation Office, will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. Chapter 35).
Comments are encouraged and will be accepted until December 5, 2014. This process is conducted in accordance with 5 CFR 1320.1.
You may submit comments, identified by docket number DHS–2014–0050, by one of the following methods:
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The Federal Acquisition Regulation (FAR); 48 CFR Chapter 1 provides general procedures on handling protests submitted by contractors to federal agencies. This regulation provides detailed guidance for contractors doing business with acquisition offices within the Department of Homeland Security (DHS) to implement the FAR. FAR Part 33.103, Protests, Disputes, and Appeals prescribe policies and procedures for filing protests and for processing contract disputes and appeals.
DHS will not be asking for anything outside of what is already required in the FAR. Should anything outside the FAR arise, DHS will submit a request for Office of Management and Budget (OMB) approval. The prior information collection request for OMB No. 1600–004 was approved through May 31, 2014 by OMB in a Notice of OMB Action.
The information being collected will be obtained from contractors as part of their submissions whenever they file a bid protest with the Department's Components. The information will be used by DHS officials in deciding how the protest should be resolved. Failure to collect this information would result in delayed resolution of agency protests.
According to Federal Procurement Data System (FPDS), the number of protest has increased each year over the past two years in annual respondent and burden hours. This increase in current protest activity is not the result of a deliberate program change, but from a new estimate of actions that are not controllable by the Federal government. Although, the number of protests has increased, there has not been any change in the information being collected.
The Office of Management and Budget is particularly interested in comments which:
1. 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;
2. 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;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Office of Chief Procurement Officer, Acquisition Policy and Legislation Office, DHS.
60-Day Notice and request for comments; Extension without Change, 1600–0002.
The Department of Homeland Security, Office of Chief Procurement Officer, Acquisition Policy and Legislation Office, will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. Chapter 35).
Comments are encouraged and will be accepted until December 5, 2014. This process is conducted in accordance with 5 CFR 1320.1.
You may submit comments, identified by docket number DHS–2014–0049, by one of the following methods:
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This information collection under the HSAR is necessary in order to implement applicable parts of the FAR (48 CFR). The four forms under this collection of information request are used by offerors, contractors, and the general public to comply with requirements in contracts awarded by the Department of Homeland Security (DHS). The four forms are DHS Form 0700–01, Cumulative Claim and Reconciliation Statement; DHS Form 0700–02, Contractor's Assignment of Refund, Rebates, Credits and Other Amounts; DHS Form 0700–03, Contractor's Release; and DHS Form 0700–04, Employee Claim for Wage Restitution. These four forms will be used by contractors and/or contract employees during contract administration.
The information will be used by DHS contracting officers to ensure compliance with terms and conditions
There has been an increase in the estimated annual burden hours previously reported for this collection. An adjustment in annual burden is necessary at this time in the amount of 902 actions and hours. The initial annual burden was based on a lower number of contract actions which related to the fact that DHS was a new agency with consolidated acquisition procedures, processes, and policies. Although, there is an increase in the estimated burdened hours, there is no change in the information being collected.
The Office of Management and Budget is particularly interested in comments which:
1. 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;
2. 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;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Department of Homeland Security.
The Homeland Security Academic Advisory Council will meet on October 22, 2014 in Washington, DC. The meeting will be open to the public.
The Homeland Security Academic Advisory Council will meet Wednesday, October 22, 2014, from 10:00 a.m. to 3:30 p.m. Please note that the meeting may close early if the Council has completed its business.
The meeting will be held at the Ronald Reagan International Trade Center, 1300 Pennsylvania Avenue NW., Floor B, Room B1.5–10, Washington, DC 20004. All visitors to the Ronald Reagan International Trade Center must bring a Government-issued photo ID. Please use the main entrance on 14th Street NW.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, send an email to
To facilitate public participation, we are inviting public comment on the issues to be considered by the Council prior to the adoption of the recommendations as listed in the
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One thirty-minute public comment period will be held during the meeting on October 22, 2014 after the conclusion of the presentation of draft recommendations, but before the Council deliberates. Speakers will be requested to limit their comments to three minutes. Contact the Office of Academic Engagement as indicated below to register as a speaker.
Lindsay Burton, Office of Academic Engagement/Mailstop 0440, Department of Homeland Security; 245 Murray Lane SW., Washington, DC 20528–0440, email:
Notice of this meeting is given under the
The meeting materials will be posted to the Council Web site at:
Responsible DHS Official: Lauren Kielsmeier,
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until November 5, 2014. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) 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;
(2) 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;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including 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.
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If you need a copy of the information collection instrument with supplementary documents, or need additional information, please visit
U.S. Customs and Border Protection, Department of Homeland Security (DHS).
Committee Management; Notice of Federal Advisory Public Committee Meeting.
The U.S. Customs and Border Protection Airport and Seaport Inspections User Fee Advisory Committee (UFAC) will meet on Wednesday, October 22, 2014, in Washington, DC. The meeting will be open to the public.
The UFAC will meet on Wednesday, October 22, 2014, from 1:00 p.m. to 3:00 p.m. EST. Please note that the meeting is scheduled for two hours and that the meeting may close early if the committee completes its business.
Members of the public who are pre-registered and later require cancellation, please do so in advance of the meeting by accessing one (1) of the following links:
The meeting will be held at the U.S. International Trade Commission, 500 E Street SW., Courtroom B, Washington, DC 20436. All visitors to the International Trade Commission should proceed through the main lobby to Courtroom B.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Ms. Wanda Tate, Office of Trade Relations, U.S. Customs and Border Protection at 202–344–1661 as soon as possible.
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee prior to the formulation of recommendations as listed in the “Agenda” section below.
Comments must be submitted in writing no later than October 15, 2014, and must be identified by Docket No. USCBP–2014–0026, and may be submitted by one of the following methods:
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There will be two (2) public comment periods held during the meeting on October 22, 2014. Speakers are requested to limit their comments to two (2) minutes or less to facilitate greater participation. Contact the individual listed below to register as a speaker. Please note that the public comment periods for speakers may end before the times indicated on the schedule that is posted on the CBP Web page,
Ms. Wanda Tate, Office of Trade Relations, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Room 3.5A, Washington, DC 20229; telephone 202–344–1440; facsimile 202–325–4290.
Pursuant to the Federal Advisory Committee Act (5 U.S.C. Appendix), DHS hereby announces the meeting of the U.S. Customs and Border Protection Airport and Seaport Inspections User Fee Advisory Committee (UFAC). The UFAC is tasked with providing advice to the Secretary of Homeland Security (DHS) through the Commissioner of U.S. Customs and Border Protection (CBP) on matters related to the performance of airport and seaport inspections coinciding with the assessment of an agriculture, customs, or immigration user fee. The UFAC meeting will be held on the date and time specified above.
The UFAC will meet to discuss and report the work completed by the Financial Assessment and Options Subcommittee and the Processes Subcommittee:
1. The Financial Assessment and Options Subcommittee will be responsible for providing Customs and Border Protection an overview of current worldwide user fees being paid by industry, mapping how industry collects and transmits user fees to Customs and Border Protection, and discussing the option of having a third party study that would improve the committee and Customs and Border Protection's understanding of the universe of Customs and Border Protection's budget, costs, and funding sources.
2. The Processes Subcommittee will be responsible for developing advice that would enhance CBP operational efficiencies.
Fish and Wildlife Service, Interior.
Notice of issuance of permits.
We, the U.S. Fish and Wildlife Service (Service), have issued the following permits to conduct certain activities with endangered species, marine mammals, or both. We issue these permits under the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA).
Brenda Tapia, U.S. Fish and Wildlife Service, Division of Management Authority, Branch of Permits, MS: IA, 5275 Leesburg Pike, Falls Church, VA 22041; fax (703) 358–2281; or email
Brenda Tapia, (703) 358–2104 (telephone); (703) 358–2281 (fax);
On the dates below, as authorized by the provisions of the ESA (16 U.S.C. 1531
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, Branch of Permits, MS: IA, 5275 Leesburg Pike, Falls Church, VA 22041; fax (703) 358–2281.
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before November 5, 2014.
Brenda Tapia, U.S. Fish and Wildlife Service, Division of Management Authority, Branch of Permits, MS: IA, 5275 Leesburg Pike, Falls Church, VA 22041; fax (703) 358–2281; or email
Brenda Tapia, (703) 358–2104 (telephone); (703) 358–2281 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import biological specimens taken worldwide from dead wild and captive-held threatened and endangered species of Canidae (wolves, foxes, dholes and wild dogs), Hyaenidae (hyaenas), Felidae (cats), and Mustelidae (otters, not including marine and sea otters) for the purpose of enhancement of the survival of the species through disease and death investigations. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a permit to import four 6-mm green sea turtle (
The applicant requests a permit to import one, captive-bred, Amur leopard (
The applicant requests amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) to add Cuvier's gazelle (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for radiated tortoise (
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
On the basis of the record
The Commission instituted this review on February 3, 2014 (79 FR 6225) and determined on May 9, 2014 that it would conduct an expedited review (79 FR 48248, August 15, 2014).
The Commission completed and filed its determination in this review on October 1, 2014. The views of the Commission are contained in USITC Publication 4492 (October 2014), entitled
By order of the Commission.
United States International Trade Commission.
Schedule for 2015 report and opportunity to submit information.
The Commission has prepared and published annual reports in this series under investigation No. 332–345, Recent Trends in U.S. Services Trade, since 1996. The 2015 report, which the Commission plans to publish in April 2015, will provide aggregate data on cross-border trade in services for the period ending in 2013, and transactions by affiliates based outside the country of their parent firm for the period ending in 2012. The report's analysis will focus on distribution services (logistics, maritime transport, and retail services). The Commission is inviting interested members of the public to furnish information and views in connection with the 2015 report.
November 6, 2014: Deadline for filing written submissions.
April 30, 2015: Anticipated date for publishing the report.
All Commission offices are located in the United States International Trade Commission Building, 500 E St. SW., Washington, DC. All written submissions should be addressed to the Secretary, United States International Trade Commission, 500 E St. SW., Washington, DC 20436. The public record for this investigation may be viewed on the Commission's electronic docket information system (EDIS) at
Project Leader Erick Oh (202–205–3033 or
The initial notice of institution of this investigation was published in the
The Commission intends to publish summaries of the positions of interested persons in this report. If you wish to have a summary of your position included in an appendix of the report, please include a summary with your written submission. The summary may not exceed 500 words, should be in MSWord format or a format that can be easily converted to MSWord, and should not include any confidential business information. The summary will be published as provided if it meets these requirements and is germane to the subject matter of the investigation. In the report the Commission will identify the name of the organization furnishing the summary, and will include a link to the Commission's Electronic Document Information System (EDIS) where the full written submission can be found.
Any submissions that contain confidential business information (CBI) must also conform with the requirements in section 201.6 of the Commission's Rules of Practice and Procedure (19 CFR 201.6). Section 201.6 of the rules requires that the cover of the document and the individual pages be clearly marked as to whether they are the “confidential” or “non-confidential” version, and that the confidential business information is clearly identified by means of brackets. All written submissions, except for confidential business information, will be made available for inspection by interested parties.
The Commission intends to prepare only a public report in this investigation. The report that the Commission makes available to the public will not contain confidential business information. Any confidential business information received by the Commission in this investigation and used in preparing the report will not be published in a manner that would reveal the operations of the firm supplying the information.
By order of the Commission.
Notice is hereby given that, for a period of 30 days, the United States will receive public comments on a proposed Consent Decree in
The Complaint in this Clean Air Act case was filed against Delek Refining, Ltd. (“Delek”) concurrently with the lodging of the proposed Consent Decree. This is a civil action brought pursuant to Section 113(b)(2) of the Clean Air Act (“CAA”), 42 U.S.C. 7413(b)(2), against Delek for alleged violations of Sections 112(r)(1) and 112(r)(7)(E) of the CAA, 42 U.S.C. 7412(r)(1) and 7412(r)(7)(E), and the Chemical Accident Prevention Provisions promulgated at 40 CFR Part 68 (the “Risk Management Program” regulations) at Delek's petroleum refinery located at 1702 East Commerce Street in Tyler, Texas (“Refinery”). Delek's alleged violations relate to acts and omissions leading up to and following a pipe rupture and fire that occurred at the Refinery on November 20, 2008. Pursuant to Section 113(b)(2) of the CAA, 42 U.S.C. 7413(b)(2), the United States seeks the assessment of civil penalties and injunctive relief based on Delek's violations of Section 112(r) of the Act and the Risk Management Program regulations. The Consent Decree proposes to resolve the civil action by requiring Delek to perform corrective measures and pay a penalty of $475,000.
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $3.75 (25 cents per page reproduction cost) payable to the United States Treasury.
On September 25, 2014, the Department of Justice lodged with the United States District Court for the Southern District of Iowa a proposed Consent Decree in
This civil action asserts claims for civil penalties and other appropriate relief against Griffin Pipe Products Co., LLC for alleged violations of the Clean Air Act, 42 U.S.C. 7410, and the Iowa State Implementation Plan adopted thereunder, and the Clean Water Act, 33 U.S.C. 1311, 1317, 1318, and 1342, at the Defendant's facility located in Council Bluffs, Iowa. To resolve the United States' claims Defendant will pay a civil penalty of $950,000 and implement other appropriate mitigation measures.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
All comments must be submitted no later than thirty (30) days after the publication date of this notice. Comments may be submitted either by email or by mail:
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 $ 5.50 (25 cents per page reproduction cost) payable to the United States Treasury.
On September 29, 2014, a proposed Consent Decree was lodged with the United States District Court for the Western District of Oklahoma in the case entitled
The Consent Decree resolves claims in a Complaint filed the same day under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed 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.
Copyright Royalty Board, Library of Congress.
Notice soliciting comments on motion for partial distribution.
The Copyright Royalty Judges solicit comments on a motion for partial distribution in connection with 2013 DART Sound Recordings Fund royalties.
Comments are due on or before November 5, 2014.
The Notice and Request is posted on the agency's Web site (
LaKeshia Keys, Program Specialist, by telephone at (202) 707–7658 or email at
On August 19, 2014, the Alliance of Artists and Recording Companies (“AARC”), on behalf of itself and claimants with which it has reached settlements (the “Settling Claimants”) filed with the Copyright Royalty Judges (Judges) a
AARC requests a partial distribution of 98% from each of the subfunds pursuant to Section 801(b)(3)(C) of the Copyright Act. Under that section of the Copyright Act, before ruling on a partial distribution motion the Judges must publish a notice in the
The Judges have received notice of apparent objections from non-settling claimants George Clinton and Ronald Ford (by email, which is not an acceptable method of filing), and Eugene Curry/Tajai Music Inc., all appearing
The Judges will also accept comments addressing the three claimants' informal objections by the end of the comment period.
Interested claimants must submit comments to only one of the following addresses. Unless responding by email, claimants must submit an original, five paper copies, and an electronic version on a CD.
Nuclear Regulatory Commission.
Notice of the OMB review of information collection and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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The public may examine and have copied for a fee publicly-available documents, including the final supporting statement, at the NRC's Public Document Room, Room O–1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. The OMB clearance requests are available at the NRC's Web site:
Comments and questions should be directed to the OMB reviewer listed below by November 5, 2014. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Comments can also be emailed to
The NRC Clearance Officer is Tremaine Donnell, telephone: 301–415–6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of the OMB review of information collection and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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The public may examine and have copied for a fee publicly-available documents, including the final supporting statement, at the NRC's Public Document Room, Room O–1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. The OMB clearance requests are available at the NRC's Web site:
Comments and questions should be directed to the OMB reviewer listed below by November 5, 2014. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Comments can also be emailed to
The NRC Clearance Officer is Tremaine Donnell, telephone: 301–415–6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of pending NRC action to submit an information collection request to the Office of Management and Budget (OMB) and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment about our intention to request the OMB's approval for renewal of an existing information collection that is summarized below. We are required to publish this notice in the
Information pertaining to the requirement to be submitted:
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Submit, by December 5, 2014, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
The public may examine and have copied for a fee publicly-available documents, including the draft supporting statement, at the NRC's Public Document Room, Room O–1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. The OMB clearance requests are available at the NRC's Web site:
Comments submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. Comments submitted should reference Docket No. NRC–2014–0215. You may submit your comments by any of the following methods: Electronic comments go to
Questions about the information collection requirements may be directed to the NRC Clearance Officer, Tremaine Donnell (T–5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, by telephone at 301–415–6258, or by email to
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Draft regulatory guide; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment draft regulatory guide (DG), DG–1312, “Nonmetallic Thermal Insulation for Austenitic Stainless Steel,” also known as Regulatory Guide (RG) 1.36. The NRC is proposing to revise the guidance toreflect the most current versions of voluntary consensus standards since the initial publication of RG 1.36 in February 1973. The guide describes methods and procedures that the staff of the NRC considers acceptable when selecting and using nonmetallic thermal insulation in the stainless steel portions of the reactor coolant pressure boundary and other systems, in order to minimize any contamination that could promote stress-corrosion cracking. This RG applies to light-water-cooled reactors.
Submit comments by November 5, 2014. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
You may submit comments by any of the following methods (unless this document describes a different
• Federal Rulemaking Web site: Go to
• Mail comments to: Cindy Bladey, Office of Administration, Mail Stop: 3WFN–06–A44M, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001.
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David W. Alley, Office of Nuclear Reactor Regulation, telephone: 301–415–2178, email:
Please refer to Docket ID NRC–2014–0209 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–2014–0209 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.
The NRC is issuing for public comment a draft guide in the NRC's “Regulatory Guide” series. This series was developed to describe and make available to the public such information as methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
The DG, entitled, “Nonmetallic Thermal Insulation for Austenitic Stainless Steel,” is temporarily identified by its task number, DG–1312. This DG is a proposed revision 1 of RG 1.36. The RG describes methods and procedures that the staff of the NRC considers acceptable when selecting and using nonmetallic thermal insulation in the stainless steel portions of the reactor coolant pressure boundary and other systems, to minimize any contamination that could promote stress-corrosion cracking. This guide applies to light-water-cooled reactors. This guidance has been revised to update to the current industry standards which have changed since the initial publication of RG 1.36 in February 1973. The changes update the related standards to those currently available for use. Each type of insulating material should meet the requirements of American Society for Testing and Materials (ASTM) C795, “Standard Specification for Thermal Insulation for Use in Contact with Austenitic Stainless Steel,” including, but not limited to, a preproduction corrosion test in accordance with ASTM C692, “Test Method for Evaluating the Influence of Thermal Insulation on External Stress Corrosion Cracking Tendency of Austenitic Stainless Steel,” and a chemical analysis acceptance test for each lot of material in accordance with ASTM C871, “Test Method for Chemical Analysis of Thermal Insulation Materials for Leachable Chloride, Fluoride, Silicate and Sodium Ions.”
Draft regulatory guide-1312/Regulatory Guide 1.36, Revision 1, if finalized, would provide guidance on one acceptable way of meeting the requirements in GDC 1 and GDC 14 with respect to stress-corrosion cracking in austenic steel portions of the reactor coolant pressure boundary which are caused in part by contact with nonmetallic thermal insulation. This DG, if finalized, would not constitute backfitting as defined in § 50.109 of Title 10 of the
Existing licensees, part 50 construction permit holders and part 50 operating license holders, and applicants of final design certification rules would not be required to comply with the positions set forth in DG–1312/RG 1.36, Revision 1, if finalized, unless the construction permit or an operating license holder makes a voluntary change to its licensing basis with respect to non-metallic thermal insulation in contact with austenitic stainless steel, and the NRC determines that the safety review must include consideration of the matters addressed in this draft regulatory guide.
Existing design certification rules would not be required to be amended to comply with the positions set forth in DG–1312 unless the NRC addresses the issue finality provisions in 10 CFR 52.63(a).
Existing combined license holders (referencing the AP1000 design certification rule in 10 CFR part 52, Appendix D) would not be required to comply with the positions set forth in DG–1312 unless the NRC addresses the issue finality provisions in 10 CFR 52.63(a).
Draft Regulatory Guide-1312 may be applied to current applications for operating licenses, combined licenses, and certified design rules docketed by the NRC as of the date of issuance of the revision to the regulatory guide, as well as future applications submitted after the issuance of the revised regulatory guide. Such action would not constitute backfitting as defined in § 50.109(a)(1) or be otherwise inconsistent with the applicable issue finality provision in 10 CFR part 52. Neither the Backfit Rule nor the issue finality provisions under part 52—with certain exclusions discussed below—were intended to every NRC action which substantially changes the expectations of current and future applicants.
The exceptions to the general principle are applicable whenever a combined license applicant references a part 52 license (e.g., an early site permit) and/or NRC regulatory approval (e.g., a design certification rule) with specified issue finality provisions. The NRC does not, at this time, intend to impose the positions represented in the DG, if finalized, on combined license applicants in a manner that is inconsistent with any issue finality provisions. If, in the future, the NRC seeks to impose a position in the DG, if finalized, in a manner which does not provide issue finality as described in the applicable issue finality provision, then the NRC must address the criteria for avoiding issue finality as described applicable issue finality provision.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Draft regulatory guide; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is issuing for public comment draft regulatory guide (DG), DG–8054, “Applications of Bioassay for Uranium.” This guidance provides acceptable guidance for NRC licensees, for the development and implementation of a bioassay program that will monitor the intake of mixtures of the naturally occurring isotopes of uranium (U–234, U–235, and U–238) by occupational workers. A bioassay is a determination of the kind, quantity, location, or retention of radionuclides in the body by direct (in vivo) measurement or by indirect (in vitro) analysis of material excreted or removed from the body.
Submit comments by December 5, 2014. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. Although a time limit is given, comments and suggestions in connection with items for inclusion in NRC regulatory guides currently being developed or improvements in all published NRC regulatory guides are encouraged at any time.
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, Office of Administration, Mail Stop: 3WFN–06–A44M, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001.
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Harriet Karagiannis, telephone: 301–251–7477; email:
Please refer to Docket ID NRC–2014–0210 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document by any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may access publicly available documents online in the NRC Library 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, MD 20852.
Please include Docket ID NRC–2014–0210 in the subject line of your comment submission to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC 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
The NRC is issuing for public comment a DG in the NRC's “Regulatory Guide” series. This series was developed to describe and make available to the public and the regulated community such information as methods that are acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
This DG, entitled, “Applications of Bioassay for Uranium,” is temporarily identified by its task number, DG–8054. Draft regulatory guide, DG–8054 is a proposed revision to the NRC Regulatory Guide (RG) 8.11, “Applications of Bioassay for Uranium,” (Revision 1 of RG 8.11).
The NRC issued RG 8.11 in June 1974 to provide guidance to NRC licensees on methods of uranium bioassay that the NRC staff found acceptable to demonstrate compliance with the then-current version of NRC's radiation protection regulations in part 20 of Title 10 of the
This DG, if finalized, would apply to current and future holders of special nuclear material licenses under 10 CFR part 70 and certificates of compliance or approvals of a compliance plan for gaseous diffusion plants under 10 CFR part 76 if they are also applicants for or holders of special nuclear materials licenses under 10 CFR part 70. If DG–8054 is finalized and issued as a revision to RG 8.11, such issuance would not constitute backfitting under 10 CFR parts 70 or 76. As stated in the “Implementation” section of DG–8054, the NRC has no current intention to impose this regulatory guide on current holders of part 70 licenses or part 76 certificates of compliance.
This DG, if finalized as a revision to RG 8.11, could be applied to applications for part 70 licenses and part 76 certificates of compliance docketed by the NRC as of the date of issuance of the revised RG 8.11, as well as future such applications submitted after the issuance of the revised RG 8.11. Such action would not constitute backfitting as defined in 10 CFR 70.76 and 76.76 inasmuch as such applicants or potential applicants are not within the scope of entities protected by 10 CFR 70.76 and 76.76.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Regulatory guide; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing a revision to Regulatory Guide (RG) 3.50, “Standard Format and Content for a License Application for an Independent Spent Fuel Storage Installation or a Monitored Retrievable Storage Facility.” This guide provides a format that the NRC staff considers acceptable for submitting the information for license applications to store spent nuclear fuel, high-level radioactive waste, and reactor-related Greater than Class C (GTCC) waste.
Please refer to Docket ID NRC–2013–0264 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:
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Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
Bernie White, Office of Nuclear Material Safety and Safeguards, telephone: 301–287–0810; email
The NRC is issuing a revision to an existing guide in the NRC's “Regulatory Guide” series. This series was developed to describe and make available to the public information such as methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
Revision 2 of RG 3.50 provides a format that the NRC considers acceptable for submitting the information for license applications to store spent nuclear fuel, high-level radioactive waste, and/or reactor-related GTCC waste. Part 72 of Title 10 of the
The NRC issued the draft version of Revision 2 of RG 3.50 with a temporary identification as draft regulatory guide (DG), DG–3042, and published notice of its issuance in the
This RG 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.
This RG provides guidance on one possible means for meeting the NRC's regulatory requirements in 10 CFR part 72 regarding the format and content for license applications for an ISFSI or MRS. This regulatory guide may be applied to license applications for ISFSIs and MRSs docketed by the NRC as of the date of issuance of the final regulatory guide, as well as future applications for such licenses submitted after the issuance of the regulatory guide.
This regulatory guide does not constitute backfitting as defined in 10 CFR 72.62(a). The subject matter of this regulatory guide does not concern matters dealing with either the structures, systems, or components of an ISFSI or MRS, or the procedures or organization for operating an ISFSI or MRS. Therefore, the matters addressed in this draft regulatory guide are not within the scope of the backfitting provisions in § 72.62(a)(1) or (2).
This regulatory guide does not apply to entities protected by issue finality provisions in 10 CFR part 52 with respect to the matters addressed in this regulatory guide. Although part 52 combined license applicants and holders may apply for specific ISFSI licenses, the guidance in this regulatory guide is directed to ISFSI applicants and does not make a distinction between ISFSI applicants who are also combined license applicants or holders and ISFSI applicants who are not combined license applicants and holders, and presents no more onerous guidance for ISFSI applicants who are also combined license applicants or holders versus ISFSI applicants who are not combined license applicants and holders. Accordingly, the NRC concludes that this regulatory guide is not inconsistent with any part 52 issue finality provisions.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Application for indirect transfer of license; opportunity to comment, request a hearing, and petition for leave to intervene; order.
The U.S. Nuclear Regulatory Commission (NRC) received and is considering approval of an application filed by PPL Susquehanna, LLC (PPL Susquehanna) on July 11, 2014. The application seeks NRC approval of the indirect transfer of NPF–14 and NPF–22 for Susquehanna Steam Electric Station, Units 1 and 2 (SSES), as well as the general license for the SSES Independent Spent Fuel Storage Installation, from the current holder, PPL Corporation to Talen Energy Corporation. The NRC is also considering amending the combined licenses for administrative purposes to reflect the proposed transfer.
Comments must be filed by November 5, 2014. A request for a hearing must be filed by October 27, 2014. Any potential party as defined in Title 10 of the
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on accessing information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Jeffrey A. Whited, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–415–4090; email:
Please refer to Docket ID NRC–2014–0211 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by any of the following methods:
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Please include Docket ID NRC–2014–0211 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC 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 submissions. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC is considering the issuance of an order under 10 CFR 50.80 approving the indirect transfer of control of the Renewed Facility Operating Licenses NPF–14 and NPF–22 for the Susquehanna Steam Electric Station, Units 1 and 2, to the extent currently held by PPL Corporation, as owner. The transfer would be to Talen Energy Corporation. The NRC is also considering amending the combined licenses for administrative purposes to reflect the proposed transfer.
According to an application for approval filed by PPL Susquehanna, the indirect transfer of control results from a series of transactions in which PPL Corporation, PPL Susquehanna's ultimate parent, will spin off PPL Energy Supply, LLC, which holds domestic competitive generation and ancillary assets including PPL Susquehanna. The transactions will involve creation of and changes to intermediate holding companies with PPL Energy Supply eventually becoming a direct subsidiary of a new intermediate parent named Talen Energy Holdings, Inc., which in turn will be a direct subsidiary of a new, publicly-owned ultimate parent, named Talen Energy Corporation. Talen Energy Corporation would acquire ownership of PPL Corporation's 90 percent interest in the Susquehanna Steam Electric Station, Units 1 and 2. PPL Susquehanna will continue to operate the facility and hold the license.
No physical changes to the Susquehanna Steam Electric Station, Units 1 and 2, or operational changes are being proposed in the application.
The NRC's regulations at 10 CFR 50.80 state that no license, or any right thereunder, shall be transferred, directly or indirectly, through transfer of control of the license, unless the Commission shall give its consent in writing. The Commission will approve an application for the indirect transfer of a license, if the Commission determines that the proposed transaction, described above, will not affect the qualifications of the licensee to hold the license, and that the transfer is otherwise consistent with applicable provisions of law, regulations, and orders issued by the Commission.
Before issuance of the proposed conforming license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations.
As provided in 10 CFR 2.1315, unless otherwise determined by the Commission with regard to a specific application, the Commission has determined that any amendment to the license of a utilization facility, or to the license of an Independent Spent Fuel Storage Installation, which does no more than conform the license to reflect the transfer action, involves no significant hazards consideration and no genuine issue as to whether the health and safety of the public will be significantly affected. No contrary determination has been made with respect to this specific license amendment application. In light of the generic determination reflected in 10 CFR 2.1315, no public comments with respect to significant hazards considerations are being solicited, notwithstanding the general comment procedures contained in 10 CFR 50.91.
Within 30 days from the date of publication of this notice, persons may submit written comments regarding the license transfer application, as provided for in 10 CFR 2.1305. The Commission will consider and, if appropriate, respond to these comments, but such comments will not otherwise constitute part of the decisional record. Comments should be submitted as described in the
Within 20 days from the date of publication of this notice, any person(s) whose interest may be affected by the Commission's action on the application may request a hearing and intervention via electronic submission through the NRC's E-filing system. Requests for a hearing and petitions for leave to intervene should be filed in accordance with the Commission's rules of practice set forth in Subpart C “Rules of General Applicability: Hearing Requests, Petitions to Intervene, Availability of Documents, Selection of Specific Hearing Procedures, Presiding Officer Powers, and General Hearing Management for NRC Adjudicatory Hearings,” of 10 CFR part 2. In particular, such requests and petitions
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 must provide the name, address, and telephone number of the petitioner and specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order that may be entered in the proceeding on the petitioner's interest.
A petition for leave to intervene must also include a specification of the contentions that the petitioner seeks to have litigated in the hearing. For each contention, the petitioner must provide a specific statement of the issue of law or fact to be raised or controverted, as well as a brief explanation of the basis for the contention. Additionally, the petitioner must demonstrate that the issue raised by each contention is within the scope of the proceeding and is material to the findings that the NRC must make to support the granting of a license amendment in response to the application. The petition must also include a concise statement of the alleged facts or expert opinions which support the position of the petitioner and on which the petitioner intends to rely at the hearing, together with references to the specific sources and documents on which the petitioner intends to rely. Finally, the petition must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact, including references to specific portions of the application for amendment that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application for amendment fails to contain information on a relevant matter as required by law, the identification of each failure, and the supporting reasons for the petitioner's belief. Each contention must be one that, if proven, would entitle the petitioner to relief.
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.
Requests for hearing, petitions for leave to intervene, and motions for leave to file contentions after the deadline in 10 CFR 2.309(b) will not be entertained absent a determination by the presiding officer that the new or amended filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1).
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 October 27, 2014. The petition must be filed in accordance with the filing instructions in Section IV of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that under § 2.309(h)(2) 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 December 5, 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 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
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with the NRC's 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, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
The Commission will issue a notice or order granting or denying a hearing request or intervention petition, designating the issues for any hearing that will be held and designating the Presiding Officer. A notice granting a hearing will be published in the
For further details with respect to this application, see the application dated July 11, 2014.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requestor shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555–0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requestor's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly available
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 20 days after the requestor is granted access to that information. However, if more than 20 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline. This provision does not extend the time for filing a request for a hearing and petition to intervene, which must comply with the requirements of 10 CFR 2.309.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff either after a determination on standing and need for access, or after a determination on trustworthiness and reliability, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requestor may challenge the NRC staff's adverse determination by filing a challenge within five days of receipt of that determination with: (a) the presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) officer if that officer has been designated to rule on information access issues.
H. Review of Grants of Access. A party other than the requestor may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within five days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
10 CFR 2.206 request; receipt.
The U.S. Nuclear Regulatory Commission (NRC) is giving notice that by petition dated March 5, 2014, as supplemented by email dated May 21, 2014, Michael Mulligan (the petitioner) has requested that the NRC take enforcement action against Entergy Nuclear Operations, Inc., due to recent plant events and equipment failures at Palisades Nuclear Plant (PNP). The petitioner's requests are included in the
Please refer to Docket ID NRC–2014–0216 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:
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Notice is hereby given that by petition dated March 5, 2014 (ADAMS Accession No. ML14071A006), as supplemented by email dated May 21, 2014 (ADAMS Accession No. ML14142A101), and the petitioner's addresses to the Petition Review Board dated April 8 and September 3, 2014 (ADAMS Accession Nos. ML14143A212 and ML14259A135, respectively), the petitioner, has asked the NRC to take enforcement action against Entergy Nuclear Operations, Inc., due to recent plant events and equipment failures at PNP. The petitioner was particularly concerned with primary coolant pump (PCP) impeller pieces breaking off and lodging in the reactor vessel.
The petitioner requests the following actions:
• Require PNP to open every PCP for inspection and clear up all flaws.
• Require PNP to replace the PCPs with a design for their intended duty.
• An Office of Inspector General (OIG) inspection on why there are different analysis criteria for similar PCP events between the NRC regions.
• A ten million dollar fine for these events.
• Intensify NRC monitoring of PNP, and return them to yellow or red status.
As the basis for the request, the petitioner stated, in part, the following:
• The petitioner cited other recent plant events and equipment failures, such as leakage from the safety injection refueling water tank, and flaws in the control rod drive mechanisms.
• The petitioner asserted the licensee and the NRC staff used non-conservative engineering judgment during the evaluation of the lodged PCP impeller piece and during the operability evaluation of the existing PCP impellers.
• The petitioner asserts that the NRC staff was not being aggressive in resolving plant equipment issues, not resolving PCP equipment issues uniformly across the NRC regions, and accommodating the nuclear industry.
The request is being treated pursuant to § 2.206 of Title 10 of the
For The Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Regulatory guide; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing revision 4 to Regulatory Guide (RG) 1.134, “Medical Assessment of Licensed
Please refer to Docket ID NRC–2014–0093 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:
•
•
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Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
Lawrence Vick, Office of Nuclear Reactor Regulation, telephone: 301–415–3181, email:
The NRC is issuing a revision to an existing guide in the NRC's “Regulatory Guide” series. This series was developed to describe and make available to the public information such as methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
Revision 4 of RG 1.134 was issued with a temporary identification as draft regulatory guide (DG), DG–1310. The guidance is intended for use by nuclear power plant license holders under part 50 of Title 10 of the
Regulatory Guide 1.134, Revision 3, “Medical Evaluation of Licensed Personnel for Nuclear Power Plants,” was issued in 1998 to identify that consensus standard ANSI/ANS 3.4 (1996), “Medical Certification and Monitoring of Personnel Requiring Operator Licenses for Nuclear Power Plants,” was a method acceptable to the staff for complying with those portions of the NRC's regulations associated with approval or acceptance of medical examination certifications at nuclear power plants.
The consensus standard ANSI/ANS 3.4 was issued in 2013 to provide clarification and comprehensive medical guidance to improve industry's consistent implementation of the standard. This included clarification of specific minimum requirements, disqualifying conditions, conditional restrictions, examination methods, and monitoring methods for each medical area. The 2013 issue also included consideration of other industry medical standards, including those of the U.S. Department of Transportation and Federal Aviation Administration as well as medical criteria that reflected progressions in medical science including updated terminology, current medical practices, criteria for normality, and risk assessments.
Regulatory Guide 1.134 was revised to identify to licensees that ANSI/ANS 3.4–2013 is acceptable for their use. The guide helps to ensure that medical certifications (and related medical evidence) used to meet the operator licensing requirements of 10 CFR part 55 are sufficient with respect to (1) an applicant's or operator licensee's medical examination, as described in 10 CFR 55.21, “Medical Examination”; (2) a facility licensee's medical certification, as described in 10 CFR 55.23, “Certification”; (3) an operator licensee's incapacitation because of disability or illness, as described in 10 CFR 55.25, “Incapacitation Because of Disability or Illness”; and (4) a facility licensee's medical documentation, as described in 10 CFR 55.27, “Documentation.”
The DG–1310 was published in the
This RG 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.
Regulatory Guide 1.134, Revision 4, provides updated guidance on the methods acceptable to the NRC staff for complying with the NRC's regulations associated with approval or acceptance of the medical assessment of an applicant for, or holder of, an operator or senior operator license at a nuclear power plant. The guide applies to current and future applicants for, and holders of, power reactor licenses under 10 CFR parts 50 and 52 and power reactor operating licenses under 10 CFR part 55. Issuance of RG 1.134, revision 4, does not constitute backfitting under 10 CFR part 50 and is not otherwise inconsistent with the issue finality provisions in 10 CFR Part 52. As discussed in the “Implementation” section of RG 1.134, revision 4, the NRC has no current intention to impose the RG on current holders of 10 CFR part 50 operating licenses or 10 CFR part 52 combined licenses. Part 55 does not
This RG could be applied to applications for 10 CFR part 50 operating licenses, 10 CFR part 52 combined licenses, or 10 CFR part 55 operator licenses. Such action would not constitute backfitting as defined in 10 CFR 50.109 or be otherwise inconsistent with the applicable issue finality provision in 10 CFR part 52, inasmuch as such applicants are not within the scope of entities protected by 10 CFR 50.109 or the relevant issue finality provisions in 10 CFR part 52.
Dated at Rockville, Maryland, this 30th day of September, 2014.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an addition of Priority Mail Contract 94 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2014–48 and CP2014–84 to consider the Request pertaining to the proposed Priority Mail Contract 94 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than October 7, 2014. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints James F. Callow to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2014–48 and CP2014–84 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, James F. Callow is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than October 7, 2014.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an addition of Priority Mail Contract 95 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of
The Commission establishes Docket Nos. MC2014–49 and CP2014–85 to consider the Request pertaining to the proposed Priority Mail Contract 95 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than October 7, 2014. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Cassie D'Souza to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2014–49 and CP2014–85 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Cassie D'Souza is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than October 7, 2014.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an amendment to Priority Mail Contract 33 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
On September 29, 2014, the Postal Service filed notice that it has agreed to an Amendment to the existing Priority Mail Contract 33 negotiated service agreement approved in this docket.
The Postal Service also filed the unredacted Amendment and supporting financial information under seal. The Postal Service seeks to incorporate by reference the Application for Non-Public Treatment originally filed in this docket for the protection of information that it has filed under seal. Notice at 1.
The Amendment changes contract prices.
The Postal Service intends for the Amendment to become effective one business day after the date that the Commission completes its review of the Notice.
The Commission invites comments on whether the changes presented in the Postal Service's Notice are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than October 7, 2014. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints John P. Klingenberg to represent the interests of the general public (Public Representative) in this docket.
1. The Commission reopens Docket No. CP2011–49 for consideration of matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, the Commission appoints John P. Klingenberg to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments are due no later than October 7, 2014.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202–268–3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on September 29, 2014, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202–268–3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on September 29, 2014, it filed with the Postal Regulatory Commission a
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form N–17f–1 (17 CFR 274.219) is entitled “Certificate of Accounting of Securities and Similar Investments of a Management Investment Company in the Custody of Members of National Securities Exchanges.” The form serves as a cover sheet to the accountant's certificate that is required to be filed periodically with the Commission pursuant to rule 17f–1 (17 CFR 270.17f–1) under the Act, entitled “Custody of Securities with Members of National Securities Exchanges,” which sets forth the conditions under which a fund may place its assets in the custody of a member of a national securities exchange. Rule 17f–1 requires, among other things, that an independent public accountant verify the fund's assets at the end of every annual and semi-annual fiscal period, and at least one other time during the fiscal year as chosen by the independent accountant. Requiring an independent accountant to examine the fund's assets in the custody of a member of a national securities exchange assists Commission staff in its inspection program and helps to ensure that the fund assets are subject to proper auditing procedures. The accountant's certificate stating that it has made an examination, and describing the nature and the extent of the examination, must be attached to Form N–17f–1 and filed with the Commission promptly after each examination. The form facilitates the filing of the accountant's certificates, and increases the accessibility of the certificates to both Commission staff and interested investors.
Commission staff estimates that it takes: (i) 1 hour of clerical time to prepare and file Form N–17f–1; and (ii) 0.5 hour for the fund's chief compliance officer to review Form N–17f–1 prior to filing with the Commission, for a total of 1.5 hours. Each fund is required to make 3 filings annually, for a total annual burden per fund of approximately 4.5 hours.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Compliance with the collections of information required by Form N–17f–1 is mandatory for funds that place their assets in the custody of a national securities exchange member. Responses will not be kept confidential. 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 control number.
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 350l
Form N–17f–2 (17 CFR 274.220) under the Investment Company Act is entitled “Certificate of Accounting of Securities and Similar Investments in the Custody of Management Investment Companies.” Form N–17f–2 is the cover sheet for the accountant examination certificates filed under rule 17f–2 (17 CFR 270.17f–2) by registered management investment companies (“funds”) maintaining custody of securities or other investments. Form N–17f–2 facilitates the filing of the accountant's examination certificates prepared under rule 17f–2. The use of the form allows the certificates to be filed electronically, and increases the accessibility of the examination
Commission staff estimates that it takes: (i) On average 1.25 hours of fund accounting personnel at a total cost of $247.5 to prepare each Form N–17f–2;
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms. Complying with the collections of information required by Form N–17f–2 is mandatory for those funds that maintain custody of their own assets. Responses will not be kept confidential. 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 control number.
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17f–1 (17 CFR 270.17f–1) under the Investment Company Act of 1940 (the “Act”) (15 U.S.C. 80a) is entitled: “Custody of Securities with Members of National Securities Exchanges.” Rule 17f–1 provides that any registered management investment company (“fund”) that wishes to place its assets in the custody of a national securities exchange member may do so only under a written contract that must be ratified initially and approved annually by a majority of the fund's board of directors. The written contract also must contain certain specified provisions. In addition, the rule requires an independent public accountant to examine the fund's assets in the custody of the exchange member at least three times during the fund's fiscal year. The rule requires the written contract and the certificate of each examination to be transmitted to the Commission. The purpose of the rule is to ensure the safekeeping of fund assets.
Commission staff estimates that each fund makes 1 response and spends an average of 3.5 hours annually in complying with the rule's requirements. Commission staff estimates that on an annual basis it takes: (i) 0.5 hours for the board of directors
Funds that rely on rule 17f–1 generally use outside counsel to prepare the custodial contract for the board's review and to transmit the contract to the Commission. Commission staff estimates the cost of outside counsel to perform these tasks for a fund each year is $800.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Compliance with the collections of information required by rule 17f–1 is mandatory for funds that place their assets in the custody of a national securities exchange member. Responses will not be kept confidential. An agency may not conduct or sponsor, and a person is not
The public may view the background documentation for this information collection at the following Web site,
Pursuant to Rule 608 of the Securities Exchange Act of 1934 (“Act”)
The amendment proposes to change certain of the voting requirements under the Plan. The changes seek to harmonize voting requirements under the Plan with voting requirements under the CTA Plan and the CQ Plan. The Participants understand that the Participants under the CTA Plan and the CQ Plan intend to submit certain changes to the voting requirements under those plans to cause them to harmonize with voting under the Nasdaq/UTP Plan.
The voting requirements that this amendment seeks to revise include the following:
• To change the voting requirement needed to eliminate an existing fee, or to reduce an existing fee, from unanimity to the affirmative vote of two-thirds of all Participants entitled to vote;
• to change the voting requirement needed to request system changes other than those related to the processor function from a unanimous vote to the affirmative vote of a majority of all Participants entitled to vote;
• to change the voting requirement needed to approve procedures for selecting a successor processor from unanimity to the affirmative vote of two-thirds of all Participants entitled to vote;
• to establish that selecting a new processor requires the affirmative vote of two-thirds of all Participants entitled to vote;
• to change the voting requirement needed if the Plan does not specify another voting requirement from unanimity to the affirmative vote of a majority of all Participants entitled to vote.
In the Participants' view, a two-thirds vote of the Participants, rather than unanimity, is the appropriate voting requirement for the Participants to eliminate or reduce an existing fee. The Plan currently requires a unanimous vote to eliminate a fee. The change with respect to eliminating a fee would harmonize that voting requirement with the voting requirements under the CTA and CQ Plans.
The Plan currently requires a unanimous vote to reduce a fee. The CTA and CQ Plans also require unanimity to reduce a fee. However, the Participants understand that the Participants under the CTA and CQ Plans intend to amend those plans to require a two-thirds vote to reduce a fee. In addition, subjecting fee reductions to a two-thirds vote would harmonize the Plan with the counterpart requirement under the OPRA Plan.
The Participants note that, after the amendment to the Plan and the anticipated amendments to the CTA and CQ Plans, all three plans will require a two-thirds vote to add, delete or eliminate a fee or to establish a new fee. These changes would provide the Participants with greater flexibility in respect of the plan's fee schedule.
The Plan currently requires a majority vote to approve system changes related to the processor function, but requires a unanimous vote to approve other system changes. The Participants do not believe that this anomaly is warranted. Rather, in their view, the Plan should subject all system changes to the same voting requirement. They believe that that voting requirement should be a majority vote. A majority voting requirement rather than unanimity would afford the Participants greater flexibility and make it easier for the Participants to arrive at decisions regarding necessary system upgrades and changes. The Participants note that the CTA Plan, the CQ Plan and the OPRA Plan all require a majority
Section V (E) of the Plan sets forth a series of guidelines for the Participants to follow in establishing procedures for selecting a new processor. That section currently subjects the Participants' approval of those procedures to a two-thirds majority vote. In the Participants' view, a majority vote of the Participants, rather than a two-thirds vote, is the appropriate voting requirement for approval of the procedures for selecting a new processor. This vote is only to establish the selection procedures. Because the Participants may have divergent views on the form that those procedures should take, a majority vote makes it easier for the Participants to arrive at a decision. The Participants note that the CTA Plan, the CQ Plan and the OPRA Plan all require a majority vote for decisions relating to procedures for selecting a new processor.
The Plan does not currently specify the voting requirement for selecting a new processor. Since the Plan is silent, the applicable voting requirement would be the requirement that applies to matters for which the Plan does not specify a voting requirement. That default voting requirement is currently unanimity, but, as discussed above, the amendment seeks to change that to a majority vote. The Participants believe that a unanimous vote could make it too difficult for the Participants to arrive at a decision and that a matter as significant as selecting a Plan processor should require more than a simple majority vote. In their view, a two-thirds majority vote strikes the right balance of requiring a strong consensus without allowing a single Participant or a small number of Participants to block the selection of a new processor.
The Plan currently requires a unanimous vote in respect of any matter for which the Plan does not specify a voting requirement. This requirement can make it unwieldy for the Participants to act, as all Participants do not always agree on every matter. The Participants believe that the affirmative vote of a majority of Participants provides greater flexibility and facilitates their ability to take action under the Plan. They note that the CTA Plan, the CQ Plan and the OPRA Plan all require majority votes to act on matters for which those plans do not specify a voting requirement.
Not applicable.
All of the Participants have manifested their approval of the proposed amendment by means of their execution of the amendment. The Plan amendment would become operational upon approval by the Commission.
Not applicable.
The proposed amendment does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The Participants do not believe that the proposed plan amendments introduce terms that are unreasonably discriminatory for the purposes of Section 11A(c)(1)(D) of the Exchange Act.
Not applicable.
See Item A(3) above.
Not applicable.
See Item A(1) above.
See Item A(1) above.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not Applicable.
The Commission seeks general comments on Amendment No. 32. Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal 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 Brent J. Fields, 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)
CHX proposes to amend its Schedule of Fees and Assessments (the “Fee Schedule”) to adopt and amend fees for the CHX Routing Services. The text of this proposed rule change is available on the Exchange's Web site at (
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule changes 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 CHX has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
On September 8, 2014, the Exchange filed SR–CHX–2014–15 pursuant to Section 19(b)(3)(A) of the Act
The Exchange now proposes (1) to amend Section E.6 of the Fee Schedule to adopt fees for the CHX Routing Services and (2) to amend Section E.8(c) of the Fee Schedule to clarify that the Average Daily Volume (“ADV”) exemption from the Order Cancellation Fee is based on all executions resulting from single-sided orders submitted to the CHX Matching System (“Matching System”), which includes executions within the Matching System and at away markets pursuant to the CHX Routing Services.
In sum, the CHX Routing Services will permit Routable Orders
Proposed Section E.6 of the Fee Schedule, entitled “CHX Routing Services Fees,” provides that executions that result from orders that have been routed away from the Matching System pursuant to the CHX Routing Services shall be subject to the following fees:
The proposed CHX Routing Fee for Odd Lots is identical to current Section E.4 of the Fee Schedule, which provides that $0.0040/share will be charged for all executions resulting from Odd Lot orders
Under SR–CHX–2012–15,
Given that the Exchange does not currently route orders away from the Matching System, the only executions that are currently included in the ADV calculation are single-sided order executions within the Matching System. However, in light of the CHX Routing Services, the Exchange now proposes to adopt language that clarifies that eligible executions (
The Exchange notes that current Section E.8(c) already contemplates the inclusion of away executions pursuant to the CHX Routing Services because such away executions will only result from Routable Orders submitted to the Matching System, which will always be attributed to a Trading Account. As such, the proposed amendment merely clarifies the scope of the current ADV exemption. The Exchange does not propose to otherwise amend the operation of the Order Cancellation Fee or the ADV exemption.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes that the proposed CHX Routing Services fees equitably allocate fees among Participants in a non-discriminatory manner as the fee is assessed according to a Participant's use of the CHX Routing Services. Moreover, the CHX Routing Services Fee is reasonable in light of the fact that the proposed fees are identical to the current liquidity removing fee for single-sided order executions within the Matching System detailed under Section E of the Fee Schedule and is similar to the routing fees of other exchanges, such as BATS Y-Exchange (“BYX”).
The Exchange also believes that the proposed amended ADV exemption from the Order Cancellation Fee described herein will promote the equitable allocation of the Order Cancellation Fee as it will continue to fairly allocate costs among Participants according to their respective trading activity by clarifying that executions resulting from the CHX Routing Services will be included in the ADV calculation. Similar to executions within the Matching System, a Participant that submits Routable Orders that are executed at away market(s) pursuant to the CHX Routing Services will provide additional revenue to the Exchange in the form of the proposed CHX Routing Services fees, which may be used to recoup some of the costs of administering and processing cancelled orders. Thus, the Exchange believes that Participants that meet the ADV exemption through executions within the Matching System and/or at away markets pursuant to the CHX Routing Services should not be billed Order Cancellation Fees assessed to applicable Trading Accounts for that month.
In addition, these changes to the Fee Schedule would equitably allocate reasonable fees among Participants in a non-discriminatory manner by assessing cancellation fees on all Trading Accounts that exceed a fixed Cancellation Ratio and by waiving cancellation fees on all Trading Accounts that satisfy the requirements of the amended ADV exemption. Since all Participants are subject to the Order Cancellation Fee and given that the amended ADV exemption and the CHX Routing Services will be available to all Participants, the Exchange submits that the amended Order Cancellation Fee is non-discriminatory.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed CHX Routing Services fee and the proposed amended ADV exemption from the Order Cancellation Fee will burden competition, but instead, enhance competition, as it is intended to increase the competitiveness of, and draw additional volume to, the Exchange. The Exchange operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels set by the Exchange to be excessive. The proposed CHX Routing Services fee is similar to that of other exchanges, such as BYX.
No written comments were either solicited or received.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ proposes a rule change to provide a new optional functionality to Minimum Quantity Orders. The text of the proposed rule change is available from NASDAQ's Web site at
In its filing with the Commission, NASDAQ 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. NASDAQ has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to provide a new optional functionality to Minimum Quantity Orders.
NASDAQ is proposing to add a new optional functionality to further enhance the utility of Minimum Quantity Orders to market participants.
Accordingly, to attract larger Minimum Quantity Orders to the Exchange NASDAQ is proposing new optional functionality that will allow a market participant to designate a minimum individual execution size, and thus allow users to avoid interaction with such smaller orders resting on the book. As discussed above, under the current rule a Minimum Quantity Order will execute against any number of smaller contra-side orders that, in aggregate, meet the minimum quantity set by the market participant. For example, if a market participant entered a Minimum Quantity Order to buy with a price of $10, a size of 1,000 and a minimum quantity of 500, and the order was marketable against two resting sell orders for 300 and 400 shares, the System would aggregate both orders for purposes of meeting the minimum quantity, thus resulting in executions of 300 shares and 400 shares respectively with the remaining 300 shares of the Minimum Quantity Order posting to the book with a minimum quantity restriction of 300 shares. The proposed new optional functionality will not allow aggregation of smaller executions to satisfy the minimum quantity of a Minimum Quantity Order. Using the same scenario as above, but with the proposed new functionality and a minimum execution size requirement of 400 shares selected by the market participant, the Minimum Quantity Order would not execute against the two sell orders because the order at the top of the NASDAQ order book is less than 400 shares. The new functionality will reprice the Minimum Quantity Order to the next best price and post the order to the NASDAQ order book as a Non-Displayed Order when the top of the NASDAQ order book is of insufficient size to satisfy the minimum execution size requirement. Applied to the example above, the order would post to the NASDAQ order book as a Non-Displayed Order to buy 1,000 shares at $9.99. NASDAQ notes that the market participant entering the Minimum Quantity Order has expressed its intention not to execute against liquidity below a certain minimum size, and therefore cedes execution priority when it would lock resting orders
NASDAQ believes that it is appropriate to adjust the price to the next best price prior to posting on the NASDAQ order book because, by using the minimum execution size option, the submitter of the order is choosing to reduce the number of situations in which the order could potentially execute. Thus an order without this further restriction provides greater contribution to the price discovery process of the market. All bona fide market participation that results in an execution on a data feed contributes to the price discovery process that is essential to a proper functioning market. However, there are different degrees to which activity within the market contributes to price discovery. A displayed order at the NBBO of an Exchange, and the subsequent execution thereof, contributes significantly to price discovery because both the displayed order prior to execution, and the execution itself, provide a reference price to the market. Further, a non-displayed order on an exchange contributes to price discovery as it is part of the continuous auction on a market with publicly displayed orders and quotes—albeit the contribution of a non-displayed order on an exchange is less than the contribution of a displayed order on the exchange. Furthermore, a non-displayed order on a dark pool contributes less to price discovery because it is resting in a less transparent trading venue that is not part of the continuous auction of a lit exchange. If one were to rank the contribution to price discovery that different market activity provides, it would include the following (listed from least price discovery contribution to most):
• Order resting in dark pool (no contribution)
• Non-Displayed order on exchange (no or very little contribution)
• Order execution in dark pool (some contribution, execution reported publicly via TRF)
• Non-Displayed order execution on Exchange (contribution as part of continuous auction, execution reported publicly, and priority is behind displayed—
• Displayed order on exchange (significant contribution)
• Displayed order execution on exchange (significant contribution, publicly displayed order plus execution reported publicly)
NASDAQ notes that when a non-IOC Minimum Quantity Order is partially executed and cancelled in this situation, the contra-side liquidity that is not executed may be Non-Displayed. If a Minimum Quantity Order is cancelled due to Non-Displayed contra-side liquidity, the submitter of the order will know that there may be a resting order or orders at the price of the Minimum Quantity Order and also that the resting order or orders are for fewer shares than the minimum execution size required by the order. NASDAQ believes this is acceptable because the Minimum Quantity Order has already partially executed for a size of at least one round lot and thus the order submitter has taken on risk due to the execution and therefore contributed to price discovery in the market place. Furthermore, this is not unlike the information that is obtained when a Post-Only Order
Under the proposed change, a resting MAQ order will operate the same way as it does currently. When an order with a minimum quantity is posted on the book, it will only execute against incoming orders if the individual incoming order is equal to or greater than the minimum designated on the order. The primary difference between the current functionality and the proposed new functionality is that upon receipt, an incoming order with a minimum quantity designation will only execute against individual resting orders if the order at the top of the book meets or exceeds the minimum on the order. The Exchange believes that this is no different than a recently-adopted change to the NYSE Arca MPL–IOC order type,
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
As discussed above, some market participants have requested the functionality proposed herein so they may avoid transacting with smaller orders that they believe ultimately increases the cost of the transaction. Market participants such as large institutions that transact a large number of orders on behalf of retail investors have noted that, because NASDAQ does not have this functionality, they avoid sending large orders to NASDAQ to avoid potentially more expensive transactions.
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. Specifically, the proposed change allows market participants to condition the processing of their orders based on a minimum execution size. The changes to the Minimum Quantity Order will enhance the functionality offered by NASDAQ to its members, thereby promoting its competitiveness with other exchanges and non-exchange trading venues that plan to, or already, offer similar functionality. As a consequence, the proposed change will promote competition among exchanges and their peers, which, in turn, will decrease the burden on competition rather than place an unnecessary burden thereon.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
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 (“Act”)
CME is filing proposed rules changes that are limited to its business as a derivatives clearing organization. More specifically, the proposed rule change involves CME's acceptance of a new credit default swap index product series.
In its filing with the Commission, CME 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. CME has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of these statements.
CME is registered as a DCO with the Commodity Futures Trading Commission and offers clearing services for many different futures and swaps products, including certain credit default swap index products. Currently, CME offers clearing of the Markit CDX North American Investment Grade Index Series 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22. CME also offers clearing of the Markit CDX North American High Yield Index Series 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22.
The proposed rule change would expand CME's Markit CDX North American Investment Grade (“CDX IG”) Index and Markit CDX North American High Yield (“CDX HY”) Index product offerings by incorporating the upcoming Series 23 for both sets of index products.
In addition to the changes to expand CME's CDX offering, CME also proposes to remove from the current list of accepted CDX indices certain products whose termination dates have passed. These products are set forth in the following table:
Although these changes will be effective on filing, CME plans to operationalize the proposed changes as follows: CDX IG 23 will become available for clearing on September 22, 2014 and CDX HY 23 will become available for clearing on September 29, 2014; provided that CME expects market participants to begin clearing CDX IG 23 and CDX HY beginning October 6, 2014 consistent with the ISDA protocol adopting the 2014 Credit Derivatives Definitions. The product deletions would be effective immediately.
The changes that are described in this filing are limited to CME's business as a DCO clearing products under the exclusive jurisdiction of the CFTC and do not materially impact CME's security-based swap clearing business in any way. CME notes that it has also certified the proposed rule change that is the subject of this filing to its primary regulator, the Commodity Futures Trading Commission (“CFTC”), in a separate filing, CME Submission 14–405. The text of the CME proposed rule amendments is attached, with additions underlined and deletions in brackets.
CME believes the proposed rule change is consistent with the requirements of the Exchange Act, including Section 17A of the Exchange Act.
Furthermore, the proposed changes are limited in their effect to swaps products offered under CME's authority to act as a DCO. These products are under the exclusive jurisdiction of the
Because the proposed changes are limited in their effect to swaps products offered under CME's authority to act as a DCO, the proposed changes are properly classified as effecting a change in an existing service of CME that:
(a) Primarily affects the clearing operations of CME with respect to products that are not securities, including futures that are not security futures, and swaps that are not security-based swaps or mixed swaps; and
(b) does not significantly affect any securities clearing operations of CME or any rights or obligations of CME with respect to securities clearing or persons using such securities-clearing service.
As such, the changes are therefore consistent with the requirements of Section 17A of the Exchange Act
CME does not believe that the proposed rule change will have any impact, or impose any burden, on competition. The rule change simply facilitates the offering of two new series of credit default swap index products.
CME has not solicited, and does not intend to solicit, comments regarding this proposed rule change. CME has not received any unsolicited written comments from interested parties.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–CME–2014–37 and should be submitted on or before October 27, 2014.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 6.62 (Certain Types of Orders Defined) by deleting WAIT Orders from its Rules. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received
The Exchange proposes to amend Rule 6.62 (Certain Types of Orders Defined) to delete WAIT Orders from its rules.
Per Rule 6.62(w), an order designated as a WAIT Order, “is held for one second without processing for potential display and/or execution. After one second, the order is processed for potential display and/or execution in accordance with all order entry instructions as determined by the entering party.” Due to a lack of demand for WAIT Orders, the Exchange proposes to discontinue functionality supporting the order type. Accordingly, the Exchange proposes to delete the definition of WAIT Order from Rule 6.62(w) and hold this provision as Reserved. The Exchange will announce the implementation date of this change through a Trader Update.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”), in general, and furthers the objectives of Section 6(b)(5), in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. Specifically, the Exchange believes that by eliminating a little-used order type the proposal will remove impediments to and perfect the mechanisms of a free and open market and add transparency and clarity to the Exchange's rules. The Exchange further believes that deleting an order type rarely used by investors also removes impediments to and perfects the mechanism of a free and open market by ensuring that members, regulators and the public can more easily navigate the Exchange's rulebook and better understand the orders types available for trading on the Exchange. Moreover, the Exchange believes that the elimination of WAIT Orders will simplify order processing and reduce the burden on system capacity, which the Exchange believes is consistent with promoting just and equitable principles of trade as well as protecting investors and the public interest.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that the proposed rule change will relieve a burden on competition in no longer offering a seldom used rule type. In doing so, the proposed rule change will also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–NYSEARCA–2014–111. 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 (
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Section, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing will also be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–NYSEARCA–2014–111 and should be submitted on or before October 27, 2014.
Notice is hereby given that, on September 11, 2014, The Options Clearing Corporation (“OCC”) filed an advance notice with the Securities and Exchange Commission (“Commission”) pursuant to Section 806(e) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act,
This advance notice is filed by OCC in connection with a proposed change to its operations to replace an existing credit facility OCC maintains for the purposes of meeting obligations arising out of the default or suspension of a clearing member, in anticipation of a potential default by a clearing member, or the failure of a bank or securities or commodities clearing organization to perform its obligations due to its bankruptcy, insolvency, receivership or suspension of operations.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the advance notice and discussed any comments it received on the advance notice. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections A and B below, of the most significant aspects of these statements.
Written comments were not and are not intended to be solicited with respect to the advance notice and none have been received.
This advance notice is being filed in connection with a proposed change in the form of the replacement of a credit facility that OCC maintains for the purposes of meeting obligations arising out of the default or suspension of a clearing member, in anticipation of a potential default by a clearing member, or the failure of a bank or securities or commodities clearing organization to perform its obligations due to its bankruptcy, insolvency, receivership or suspension of operations. OCC's existing credit facility (the “Existing Facility”) was implemented on October 10, 2013 through the execution of a Credit Agreement among OCC, JPMorgan Chase Bank, N.A. (“JPMorgan”), as administrative agent, and the lenders that are parties to the agreement from time to time, which provides short-term secured borrowings in an aggregate principal amount of $2 billion and may be increased to $3 billion.
The Existing Facility is set to expire on October 9, 2014 and OCC is therefore currently negotiating the terms of a new credit facility (the “New Facility”) on substantially similar terms as the Existing Facility, except that enhancements are being added for a back-up administrative agent in case the primary administrative agent is unable to perform its obligations and to allow OCC to request borrowings directly from individual lenders. A back-up administrative agent would provide OCC with additional safety and stability in the event the primary administrative agent is not able to perform its duties under the new Facility. On September 5, 2014, OCC received a Commitment Letter with regard to the New Facility from: JPMorgan, the administrative agent, collateral agent, and a lender for the New Facility; J.P. Morgan Securities LLC (“JPMorgan Securities”), the joint lead arranger for the New Facility; Merrill Lynch, Pierce, Fenner & Smith Incorporated (“MLPF&S”), the joint lead arranger for the New Facility; and Bank of America, N.A. (“BANA”), the syndication agent and a lender for the New Facility.
The terms and conditions applicable to the New Facility are set forth in the Summary of Terms and Conditions attached to this filing as Exhibit 3. The conditions to the availability of the new facility include the execution and delivery of (i) a credit agreement between OCC, JPMorgan, BANA and the various lenders under the New Facility, (ii) a pledge agreement between OCC and JPMorgan, and (iii) a custodian agreement between OCC and JPMorgan which OCC anticipates will occur on or before October 7, 2014.
Upon the successful syndication of the New Facility, a syndicate of banks, financial institutions and other entities will make loans to OCC on request. The aggregate amount of loans available under the facility, subject to the value of eligible collateral, is up to $2 billion. During the term of the New Facility, the amount of the New Facility may be increased to up to $3 billion if OCC so requests and if sufficient commitments from lenders are received and accepted.
The Existing Facility included a tranche that could be drawn on in
The New Facility is available on a revolving basis for a 364-day term. OCC may request a loan under the New Facility on any business day by providing a notice to JPMorgan, as administrative agent, which will then notify the lenders, who will be required to fund their
The amount available under the New Facility at any given point in time is equal to the lesser of (i) $2 billion, or the increased size of the facility, if applicable, and (ii) the sum of (A) 90% of the value of OCC's clearing fund that is not subject to liens or encumbrances granted by OCC other than in connection with the New Facility and (B) 90% of the value of unencumbered margin deposits of suspended clearing members that are not subject to liens or encumbrances granted by OCC other than in connection with the New Facility. If the aggregate principal amount of loans under the New Facility exceeds the amount available under this formula, OCC must prepay loans, obtain the release of liens and/or require additional margin and/or clearing fund deposits to cure the deficiency. A condition to the making of any loan under the New Facility is that, after giving effect to the loan, the dollar value of the aggregate loans under the New Facility may not exceed the “borrowing base.” The borrowing base is determined by adding the value of all collateral pledged in connection with all loans under the New Facility, after applying “haircuts” to U.S. and Canadian Government securities based on their remaining maturity. If the borrowing base is less than the sum of 100% of the outstanding loans under the New Facility, OCC must repay loans or pledge additional collateral to cure the deficiency. There are additional customary conditions to the making of any loan under the New Facility, including that OCC is not in default. Importantly, however, the absence of a material adverse change affecting OCC is not a condition to the making of a loan. Loans may be prepaid at any time without penalty.
Events of default by OCC under the New Facility include, but are not limited to, non-payment of principal, interest, fees or other amounts when due; non-compliance with a daily borrowing base when loans are outstanding; material inaccuracy of representations and warranties; bankruptcy events; fundamental changes; and failure to maintain a first priority perfected security interest in collateral. In the event of a default, the interest rate applicable to outstanding loans would increase by 2.00%. The New Facility also includes customary defaulting lender provisions, including provisions that restrict the defaulting lender's voting rights, permit set-offs of payments against the defaulting lender and suspend the defaulting lender's right to receive commitment fees.
The New Facility involves a variety of customary fees payable by OCC, including: (1) A one-time arrangement fee payable to JPMorgan Securities and MLPF&S; (2) a one-time administrative and collateral agent fee payable to JPMorgan if the New Facility closes; (3) upfront commitment fees payable to the lenders based on the amount of their commitments; and (4) an ongoing quarterly commitment fee based on the unused amount of the New Facility.
Overall, the New Facility reduces the risks to OCC, its clearing members and the options market in general because it will allow OCC to obtain short-term funds to address liquidity demands arising out of the default or suspension of a clearing member, in anticipation of a potential default or suspension of clearing members or the insolvency of a bank or another securities or commodities clearing organization. The existence of the New Facility could enable OCC to minimize losses in the event of such a default, suspension or insolvency, by allowing it to obtain funds on extremely short notice to ensure that the clearance and settlement of transactions in options and other contracts occurs without interruption. By drawing on the facility OCC would be able to avoid liquidating margin or clearing fund assets in what would likely be volatile market conditions, which would preserve funds available to cover any losses resulting from the failure of a clearing member, bank or another clearing organization. OCC's entering into the New Facility will not increase the risks associated with its clearing function because it is entered into on substantially the same terms as the Existing Facility.
Two additional features carried through from the Existing Facility to the New Facility will enhance OCC liquidity and reduce risk. The inclusion of Canadian Government securities as eligible collateral will increase the amount of OCC collateral that can be pledged to support borrowings under the New Facility, resulting in increased availability of loans. The clarification that OCC may borrow under the New Facility in anticipation of a potential default by or suspension of a clearing member may be subject to a requirement that OCC provide JPMorgan with documentation supporting its authorization to do so.
While the New Facility will, in general, reduce the risks associated with OCC's clearing function, like any lending arrangement the New Facility involves risks. One of the primary risks to OCC and its clearing function associated with the New Facility is the risk that a lender fails to fund when OCC requests a loan, because of the lender's insolvency or otherwise. This risk is mitigated through the use of a syndicated facility, which does not depend on the creditworthiness of a small number of lenders. In addition, the New Facility has lender default provisions designed to discourage lenders from failing to fund loans. Moreover, OCC has the ability under the New Facility to replace a defaulting lender. Finally, in the event a particular lender fails to fund its portion of the requested loan, the New Facility includes provisions pursuant to which OCC may request “covering” loans from non-defaulting lenders to make up the shortfall. Alternatively, OCC may simply make a second borrowing request for the shortfall amount that lenders are committed to make, subject to OCC's satisfying the borrowing conditions for the second loan, although in either case the total amount available for borrowing under the New Facility would be reduced by the unfunded commitment of the defaulting lender. The failure by one or more lenders to fund the first loan does not relieve the lenders of their commitment to fund the second loan.
A second risk associated with the New Facility is the risk that OCC is unable to repay a loan within 30 days, which would allow the lenders to seize the pledged collateral and liquidate it, potentially at depressed prices that would result in losses to OCC. OCC believes that this risk is at a manageable level, because 30 days should be an adequate period of time to allow OCC to generate funds to repay the loans under the New Facility, such as by liquidating clearing fund assets other than those pledged to secure the loans. As provided in Section 5(e) of Article VIII of its By-Laws, if the loans have not been repaid within 30 days, the amount of clearing fund assets used to secure the loans will be considered to be an actual loss to the clearing fund, which will be allocated in accordance with Section 5 of Article VIII, and the proceeds of such allocation can be used to repay the loans.
OCC believes that the proposed change is consistent with Section 805(b) of the Payment, Clearing and Settlement Supervision Act
Pursuant to Section 806(e)(1)(I) of the Payment, Clearing and Settlement Supervision Act,
The proposed change may be implemented if the Commission does not object to the proposed change within 60 days of the later of (i) the date that the proposed change was filed with the Commission or (ii) the date that any additional information requested by the Commission is received. The clearing agency shall not implement the proposed change if the Commission has any objection to the proposed change.
The Commission may extend the period for review by an additional 60 days if the proposed change raises novel or complex issues, subject to the Commission providing the clearing agency with prompt written notice of the extension. A proposed change may be implemented in less than 60 days from the date the advance notice is filed, or the date further information requested by the Commission is received, if the Commission notifies the clearing agency in writing that it does not object to the proposed change and authorizes the clearing agency to implement the proposed change on an earlier date, subject to any conditions imposed by the Commission.
The clearing agency shall post notice on its Web site of proposed changes that are implemented.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views and arguments concerning the foregoing. 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 comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–OCC–2014–806 and should be submitted on or before October 27, 2014.
Section 806(e)(1)(G) of the Payment, Clearing, and Settlement Supervision Act
In its filing with the Commission, OCC requested that the Commission notify OCC that it has no objection to the change no later than September 30, 2014, which is one week before the October 7, 2014 effective date of the New Facility. OCC requested Commission action by this date to ensure that there is no period of time that OCC operates without a credit facility, given the importance of the borrowing capacity in connection with OCC's risk-management framework.
The Commission does not object to the proposed change. Ensuring that OCC has uninterrupted access to a credit facility will promote the safety and soundness of the broader financial system by providing OCC with an additional source of liquidity to meet its clearance and settlement obligations in the event of the failure of a clearing member, bank, or clearing organization doing business with OCC. Having access to a credit facility will help OCC minimize losses in the event of such a failure by allowing it to access funds on extremely short notice, and without having to liquidate assets at a time when market prices could be falling precipitously.
Pursuant to Section 806(e)(1)(I) of the Payment, Clearing, and Settlement Supervision Act,
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 900.3NY (Orders Defined) by deleting WAIT orders from its rules. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 900.3NY (Orders Defined) to delete WAIT Orders from its rules.
Per Rule 900.3NY(t), an order designated as a WAIT Order, “is held for one second without processing for potential display and/or execution. After one second, the order is processed for potential display and/or execution in accordance with all order entry instructions as determined by the entering party.” Due to a lack of demand for WAIT Orders, the Exchange proposes to discontinue functionality supporting the order type. Accordingly, the Exchange proposes to delete the definition of WAIT Order from Rule 900.3NY(t) and hold this provision as Reserved. The Exchange will announce the implementation date of this change through a Trader Update.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”), in general, and furthers the objectives of Section 6(b)(5), in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. Specifically, the Exchange believes that by eliminating a little-used order type the proposal will remove impediments to and perfect the mechanisms of a free and open market and add transparency and clarity to the Exchange's rules. The Exchange further believes that deleting an order type rarely used by investors
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that the proposed rule change will relieve a burden on competition in no longer offering a seldom used rule type. In doing so, the proposed rule change will also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–NYSEMKT–2014–82. 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Section 102.01C of the NYSE Listed Company Manual (the “Manual”) to adopt a new initial listing standard for operating companies and to eliminate all of the current initial listing standards for operating companies with one exception. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The NYSE proposes to amend Section 102.01C of the Manual to adopt a new initial listing standard for operating companies and eliminate all of the current initial listing standards for operating companies with one exception.
The Exchange proposes to amend Section 102.01C of the Manual to adopt a new initial listing standard for operating companies (the “Global Market Capitalization Test”) consisting solely of a requirement that the listing applicant must have a minimum total global market capitalization of $200 million at the time of initial listing.
The Exchange currently has five initial listing standards for operating companies: The Earnings Test; the Valuation/Revenue with Cash Flow Test; the Pure Valuation/Revenue Test; the Affiliated Company Test; and the Assets and Equity Test. All of these initial listing standards other than the Earnings Test include a global market capitalization requirement component ($500 million for the Valuation/Revenue with Cash Flow Test; $750 million for the Pure Valuation/Revenue Test; $500 million for the Affiliated Company Test; and $150 million for the Assets and Equity Test). Because the Global Market Capitalization Test that the Exchange proposes to adopt will require only a minimum total global market capitalization of $200 million at the time of initial listing, the Exchange proposes to eliminate the Valuation/Revenue with Cash Flow Test, the Pure Valuation/Revenue Test, the Affiliated Company Test and the Assets and Equity Test as they require an issuer to demonstrate a global market capitalization of more than $200 million and would therefore no longer be relevant.
In recent times, a number of companies have successfully completed sizable initial public offerings but have not qualified for listing on the NYSE. Typically, these companies are involved solely or primarily in research and development (“r&d”) activities at the time of their IPO and are raising funds in the IPO to continue their research. As these companies are not at a stage in their development where they are generating revenue, they do not qualify to list under the current initial listing standards that include requirements that are more suitable to companies that generate revenue (i.e., the Earnings Test, the Valuation/Revenue with Cash Flow Test, and the Pure Valuation/Revenue Test). Many of these companies also do not have any appreciable amount of stockholders' equity at the time of their IPOs and they therefore are unable to meet the $50 million stockholders' equity requirement of the Assets and Equity Test. Consequently, a company of this type may be able to raise a significant amount of capital in an IPO and not meet any of the current NYSE initial listing standards. However, these companies are not precluded from listing on Nasdaq as the Nasdaq Global Market has a listing standard that permits the qualification of a company solely on the basis of a total market capitalization of $75 million
The Exchange believes that by setting its market capitalization requirement under the proposed new standard at $200 million (more than twice the $75 million required by the comparable Nasdaq Global Market standard) it will ensure that companies listed under the new standard will be of a size that
As with all other listing applicants, the Exchange reserves the right to deny listing to any company seeking to list under the Global Market Capitalization Test if the Exchange determines that the listing of any such company is inadvisable or unwarranted in the opinion of the Exchange. Similarly, as with all companies applying to list on the Exchange, in determining the suitability for listing of any company seeking to list under the Global Market Capitalization Test, the staff of NYSE Regulation will carefully review the company's financial statements and its disclosures in its public filings, as well as conducting a background review of the company's officers, directors and significant shareholders. In particular, staff will review whether any company listing under the Global Market Capitalization Test has access to sufficient funds to carry out its business strategy as disclosed. As a consequence of its ability to consider these and other factors in addition to the market capitalization and other numerical requirements, the Exchange believes that it will be able to exercise informed discretion in listing companies under the proposed standard and that the adoption of the proposed standard is therefore consistent with the protection of investors. In reaching this conclusion, the Exchange also relied on the fact that the Nasdaq Global Market has been applying initial listing standards that are less stringent than the proposed Global Market Capitalization Test for a significant period of time and there is consequently a great deal of experience that demonstrates that companies listing under these lower standards are suitable for listing on a national securities exchange.
The Exchange's listing standards after adoption of the proposed Global Market Capitalization Test will exceed those established by Exchange Act Rule 3a51–1(a)(2) (the “Penny Stock Rule”).
The Exchange believes that the proposed rule change is consistent with Section 6(b)
The Exchange does not believe that the proposed rule changes will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The proposed rule changes will expand the competition for the listing of equity securities of operating companies as they will enable the NYSE to compete for the listing of companies that are currently not qualified for listing on the NYSE but are qualified to list on other national securities exchanges.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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 (“Act”)
CME is filing proposed rule changes that are limited to its business as a derivatives clearing organization. More specifically, the proposed rule change
In its filing with the Commission, CME 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. CME has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of these statements.
CME is registered as a DCO with the Commodity Futures Trading Commission and offers clearing services for many different futures and swaps products. The proposed rule change that is the subject of this filing is limited to CME's business as a DCO offering clearing services for CFTC-regulated swaps products. CME currently offers clearing services for cleared-only OTC FX contracts on a number of different currency pairs. These CME Cleared OTC FX Spot, Forward and Swap Contracts are non-deliverable foreign currency forward contracts and, as such, are considered to be “swaps” under applicable regulatory definitions.
The proposed amendments would affect CME Rule 279H.02.A (“Day of Cash Settlement”) of Chapter 279H—Cleared OTC U.S. Dollar/Indian Rupee (USD/INR) Spot, Forwards and Swaps (Commodity Code: USDINR). More specifically, CME is proposing to update Rule 279H.02.A with this filing to reflect the amended time that the Reserve Bank of India will publish the spot exchange rate. There is currently no open interest in this contract.
The changes that are described in this filing are limited to CME's business as a DCO clearing products under the exclusive jurisdiction of the CFTC and do not materially impact CME's security-based swap clearing business in any way. The changes will be effective on filing. CME notes that it has also certified the proposed rule change that is the subject of this filing to its primary regulator, the Commodity Futures Trading Commission (“CFTC”), in a separate filing, CME Submission No. 14–388. The text of the CME proposed rule amendments is attached, with additions underlined and deletions in brackets.
CME believes the proposed rule change is consistent with the requirements of the Exchange Act including Section 17A of the Exchange Act.
Furthermore, the proposed changes are limited in their effect to products offered under CME's authority to act as a DCO. The products that are the subject of this filing are under the exclusive jurisdiction of the CFTC. As such, the proposed CME changes are limited to CME's activities as a DCO clearing swaps that are not security-based swaps, futures that are not security futures and forwards that are not security forwards. CME notes that the policies of the CFTC with respect to administering the Commodity Exchange Act are comparable to a number of the policies underlying the Exchange Act, such as promoting market transparency for over-the-counter derivatives markets, promoting the prompt and accurate clearance of transactions and protecting investors and the public interest.
Because the proposed changes are limited in their effect to OTC FX products offered under CME's authority to act as a DCO, the proposed changes are properly classified as effecting a change in an existing service of CME that:
(a) Primarily affects the clearing operations of CME with respect to products that are not securities, including futures that are not security futures, swaps that are not security-based swaps or mixed swaps, and forwards that are not security forwards; and
(b) does not significantly affect any securities clearing operations of CME or any rights or obligations of CME with respect to securities clearing or persons using such securities-clearing service.
As such, the changes are therefore consistent with the requirements of Section 17A of the Exchange Act
CME does not believe that the proposed rule change will have any impact, or impose any burden, on competition. The amendments would update CME rules to reflect the amended time when the Reserve Bank of India publishes the relevant spot exchange rate. Therefore, the changes merely conform CME's contracts and practices to relevant international standards. Further, the changes are limited to CME's derivatives clearing business and, as such, do not affect the security-based swap clearing activities of CME in any way and therefore would not impose any burden on competition that is inappropriate in furtherance of the purposes of the Act.
CME has not solicited, and does not intend to solicit, comments regarding this proposed rule change. CME has not received any unsolicited written comments from interested parties.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–CME–2014–38 and should be submitted on or before October 27, 2014.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Exchange Rule 6.1A to codify the terms Complex BBO and Complex NBBO and to amend Rule 6.62(y) to revise the definition of a PNP Plus order. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 6.1A to adopt definitions for the terms Complex BBO and Complex NBBO. Additionally, the Exchange proposes to amend Rule 6.62(y) by revising the definition of PNP Plus orders, to specify that the order type is available solely for Electronic Complex Orders,
The term BBO is defined in Exchange Rule 6.1A(a)(2) as the best bid or offer on OX,
Even though there is not a published bid or offer for every complex order strategy, there are situations where it is necessary to derive a (theoretical) bid or offer for a particular strategy.
The Exchange proposes to add definitions of the terms Complex BBO and Complex NBBO in Rule 6.1A. The term “Complex BBO” would be defined in Rule 6.1A(a)(2)(ii) as the BBO for a given complex order strategy as derived from the best bid on OX and best offer on OX for each individual component series of a Complex Order. The term “Complex NBBO” would be defined in Rule 6.1A(a)(11)(ii) as the NBBO for a given complex order strategy as derived from the national best bid and national best offer for each individual component series of a Complex Order.
An example of how the Complex BBO and Complex NBBO is derived for a given strategy is shown below;
To derive the bid side of the Complex BBO for the Jan 20/25 call spread using the markets available on the Exchange, the Exchange takes the best bid in the Jan 20 calls coupled with the best offer in the Jan 25 calls. The result is an .80 bid (2.00−1.20 = .80). To derive the offer side of the Complex BBO for the same call spread the Exchange take the best offer in the Jan 20 calls coupled with the best bid in the Jan 25 calls. The result is an offer of 1.20 (2.20–1.00 = 1.20). In this example, the resulting Complex BBO is .80−1.20.
To derive the bid side of the Complex NBBO for the Jan 20/25 call spread using the markets as disseminated by OPRA, the Exchange takes the national best bid in the Jan 20 calls coupled with the national best offer in the Jan 25 calls. This results in an .85 bid (2.05−1.20 = .85). To derive the offer side of the Complex NBBO for the same call spread the Exchange take the national best offer in the Jan 20 calls coupled with the national best bid in the Jan 25 calls. This results in an offer of 1.15 (2.20−1.05=1.15). In this example, the resulting Complex NBBO is .85−1.15.
As defined in Rule 6.62(y), an order designated as PNP Plus is a limit order that is automatically re-priced by the Exchange to a price that is one minimum price variation (“MPV”) higher (lower) than the NBBO bid (offer) if it were to lock or cross the NBBO. The re-priced order is then posted in the Consolidated Book. PNP Plus orders continue to be re-priced and re-posted in the Consolidated Book with each change in the NBBO until such time as the NBBO has moved to a price where the original limit price of the PNP Plus order no longer locks or crosses the NBBO, at which time the PNP Plus order will revert to the original limit price of such order. Orders designated as PNP Plus are ranked in the Consolidated Book pursuant to Rule 6.76 and assigned a new price time priority as of the time of each reposting. Because an order designated as PNP Plus would be posted at a price that is higher (lower) that [sic] the best contra-side market, by designating an order as PNP Plus, a market participant could guarantee that if its order were to be executed, it would be executed at a price that is better than the disseminated contra-side market. Accordingly, PNP Plus provides OTP Holders with additional processing capability to control the circumstances under which their orders are executed. The Exchange notes that the PNP Plus order type is currently not operable for single-leg orders, nor does the Exchange intend to introduce such functionality in the near future. OTP Holders are able to and do use the PNP Plus designation when submitting Electronic Complex Orders. Accordingly, the Exchange is proposing to amend the definition of the PNP Plus order type to make it applicable solely to Electronic Complex Orders.
In addition, the revised rule would explain that the net debit/credit price
Accordingly, as amended, Rule 6.62(y) would state that an Electronic Complex Order designated as PNP Plus is automatically re-priced by the Exchange to an MPV higher (for sell orders) than the Complex BBO bid for that same Complex Order strategy or at an MPV lower (for buy orders) than the Complex BBO offer for that same Complex Order strategy for any unexecuted portion of the Electronic Complex Order designated as PNP Plus that would otherwise lock or cross the Complex BBO. The Exchange notes that because bids and offers for Electronic Complex Orders are priced on a net debit/credit basis and may be expressed in any decimal price, and the legs(s) of an Electronic Complex Order may be executed in one cent increments regardless of the MPV otherwise applicable to the individual legs of the order,
Finally, the Exchange proposes to change the existing cross reference in Rule 6.62(y) from Rule 6.76 to 6.91(a)(1). This is a non-substantive change as both rules call for orders to be ranked according to price/time priority. The Exchange believes Rule 6.91(a)(1) is the more appropriate rule to reference because it is specific to Electronic Complex Orders. For the purposes of ranking in the Consolidated Book, Electronic Complex Orders designated as PNP Plus shall initially be ranked based on their original time of entry and assigned a new price/time priority as of the time of each re-posting. From there, with the exception of the use of the Complex BBO rather than the NBBO, all other PNP Plus functionality remains unchanged.
The Exchange believes that its proposal is consistent with Section 6(b)(5) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange also believes that [sic] proposed rule change would perfect the mechanism of a free and open market because by revising the PNP Plus order type to make the designation available solely for Electronic Complex Orders, and not for single leg orders, the rule would clearly describe the applicability of the PNP Plus order type and eliminate any suggestion of an order type for which there is no demonstrated demand and is not supported by Exchange systems.
The Exchange also believes that defining the terms Complex BBO and Complex NBBO will help to remove impediments to and perfect the mechanism of a free and open market and a national market system, in general because it would provide all market participants with additional clarity in how the Exchange calculates the Complex BBO and Complex NBBO in connection with the processing of Complex Orders.
In addition, the Exchange believes that the proposal would remove impediments to and perfect the mechanism of a free and open market by ensuring that members, regulators and the public can more easily navigate the Exchange's rulebook and better understand the orders types available for trading on the Exchange.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed change is not designed to address any competitive issue but rather revise an existing a [sic] rule, that can be seen as inaccurate or incomplete, by accurately describing functionality applicable to the PNP Plus order type and describing the processing of an Electronic Complex Order designated as PNP Plus, thereby reducing confusion and making the Exchange's rules easier to understand and navigate. Also, adopting Complex BBO and Complex NBBO as defined terms is intended to add clarity into Exchange rules regarding the methodology of how a Complex BBO and a Complex NBBO is derived and therefore does not raise any competitive concerns.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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 International Securities Exchange, LLC (the “Exchange” or the “ISE”) is proposing to amend its Rules 810 (Limitations on Dealings) and 717 (Limitations on Orders). The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange is proposing to amend its Rules 810 (Limitations on Dealings) and 717 (Limitations on Orders) governing information barriers. Specifically, the Exchange is proposing to amend the portion of the rules that address the limitation on the flow of information between a member's Electronic Access Member (“EAM”) unit, which handles the customer/agency side of the business, and its affiliated Primary Market Maker (“PMM”) and/or Competitive Market Maker (“CMM”) (jointly, “market makers”) unit, which handles the proprietary side of the business.
ISE adopted its Rule 810 (Limitations on Dealings) on February 24, 2000
The Exchange is now proposing to amend its Rule 810 to allow EAMs to know where and at what price its affiliated market makers are either quoting or have orders on the order book
ISE Rule 717(d) and (e) requires members to expose certain orders entered on the limit order book for at least one second before executing them as principal or against orders that were solicited from other broker-dealers. This requirement applies when the EAM is handling both sides of a trade and not when an EAM is handling a marketable order as agent and is routing that order to execute against a quote/order resting on the order book. Accordingly, when customer order(s) that an EAM is handling as agent executes against an affiliated market maker's quote or order, it appears as though the EAM was in fact handling both sides of the trade, and did not comply with the order exposure requirements of ISE Rule 717(d) and (e). However, because the Exchange does not publicly identify the member that entered an order on the limit order book, orders from the same
On September 20, 2011 the Exchange codified this longstanding policy in Supplementary Material .06 to Rule 717,
Given the proposed change to ISE Rule 810, the Exchange is also proposing to make a corresponding change to Supplementary Material .06 to Rule 717 to specify that orders from the same member's EAM unit and its affiliated PMM and/or CMM unit may interact within one second without being a violation of the order exposure requirement of paragraph (d) and (e) of Rule 717 when the firm can demonstrate that the customer order that it routed was marketable, the EAM was not handling the affiliated market maker quote/order and the affiliated market maker quote/order was in existence at the time the customer order(s) were entered into the ISE's system.
The Exchange believes that adopting these rule changes will allow for the Exchange to provide its membership with increased operational flexibility while keeping intact the original purpose of the rule, which was intended to prevent market makers from using customer order flow information to influence their quotations. The Exchange believes that allowing information to flow from the market maker to the EAM would not comprise the integrity of our market, nor would it introduce customer harm, as discussed in more detail above. Additionally, the Exchange believes that market quality will not be eroded due to these changes because the information barrier preventing the flow of information from the EAM to its' affiliated market maker remains unchanged, meaning, market makers will continue to be unable to adjust their quotes either to intercept or avoid orders since that side of the barrier remains in force.
The basis under the Act for this proposed rule change is the requirement under Section 6(b),
Additionally, the Exchange notes that the rule will still require that member organizations maintain and enforce policies and procedures reasonably designed to ensure compliance with applicable federal securities laws and regulations and with Exchange rules. Such written policies and procedures will continue to be subject to oversight by the Exchange and therefore allowing information to flow from the market makers to their affiliated EAMs should not reduce the effectiveness of the Exchange rules to protect against the misuse of material nonpublic information. Rather the Exchange believes that a member should be able to integrate its market makers' positions and quoting information with its EAM unit(s) because this proposal, in tandem with existing ISE conduct rules,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. However, the Exchange believes that Rule 810 currently imposes a burden on competition for the Exchange because it requires market makers that engage in Other Business Activities to operate in a manner that the Exchange believes is more restrictive than necessary for the protection of investors to the public interest. The Exchange believes that the proposed rule change is pro-competitive because it is consistent with how other national securities exchanges are currently interpreting their rules and should provide greater flexibility to allow member firms to make routing decisions based on the same information across multiple markets.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any
Within 45 days of the publication date of this notice in the
(a) By order approve or disapprove such 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. The Commission requests comments, in particular, on the following:
1. If the proposed rule change is approved, an EAM will be able to know where and at what price its affiliated market makers are either quoting or have orders on the order book and to use that information to influence its routing decisions. Do commenters agree with the Exchange's assertion that the proposed rule change will not introduce customer harm, as this change does not impact the order protection rules applicable to an EAM handling an order as agent? Do commenters have a view on whether permitting EAMs to make routing decisions, based on knowledge of an affiliated market maker's quotes, would impact the execution quality and handling of customer orders? Please explain.
2. Given that EAMs must maintain policies and procedures that are reasonably designed to ensure against the misuse of material, nonpublic information pursuant to ISE Rule 408, do commenters have any views regarding a proposed rule that would permit an EAM to have non-public information about where and at what price its affiliated market maker is either quoting or has orders on the order book?
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.
Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Washington dated 09/29/2014.
09/29/2014.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14136 5 and for economic injury is 14137 0.
The State which received an EIDL Declaration # is Washington.
The Office of the Assistant Legal Adviser for Private International Law, Department of State, gives notice of a public meeting to discuss a Working Paper prepared by the Secretariat of the United Nations Commission on International Trade Law (UNCITRAL). The public meeting will take place on Monday, October 27, 2014 from 9:30 a.m. until 12 p.m. EDT. This is not a meeting of the full Advisory Committee.
The UNCITRAL Secretariat has revised draft provisions on electronic transferable records, which are presented in the form of a model law to facilitate discussion during the next meeting of UNCITRAL's Working Group IV, which will meet November 10–14, 2014. The Working Paper, which is numbered WP.130 and includes WP.130/Add.1, is available at
The purpose of the public meeting is to obtain the views of concerned stakeholders on the topics addressed in the Working Paper in advance of the meeting of Working Group IV. Those who cannot attend but wish to comment are welcome to do so by email to Michael Coffee at
Data from the public is requested pursuant to Pub.L. 99–399 (Omnibus Diplomatic Security and Antiterrorism Act of 1986), as amended; Pub.L. 107–56 (USA PATRIOT Act); and Executive Order 13356. The purpose of the collection is to validate the identity of individuals who enter Department facilities.
The data will be entered into the Visitor Access Control System (VACS–D) database. Please see the Security Records System of Records Notice (State-36) at
The Department of State's Advisory Committee on Private International Law (ACPIL) will hold its annual meeting on Monday, November 3, 2014 in Washington, DC The meeting will be held at the Michael K. Young Faculty Conference Center, George Washington University Law School, 2000 H Street NW., Washington DC 20052. The program is scheduled to run from 9:00 a.m. to 5:00 p.m.
We expect that the discussion will focus on certain ongoing projects as well as the future of private international law. We encourage active participation by all those attending.
Please advise as early as possible if you plan to attend. The meeting is open to the public up to the capacity of the conference facility, and space will be reserved on a first come, first served basis. Persons who wish to have their views considered are encouraged, but not required, to submit written comments in advance. Those who are unable to attend are also encouraged to submit written views. Comments should be sent electronically to
Office of the United States Trade Representative.
Request for written comments.
In the 2014 Special 301 Report, the Office of the United States Trade Representative (USTR) announced that, in order to monitor progress on specific intellectual property rights (IPR) issues, an Out-of-Cycle Review (OCR) would be conducted for Kuwait. USTR requests written comments from the public concerning any act, policy, or practice that is relevant to the decision regarding whether Kuwait should be identified under Section 182 of the Trade Act of 1974 (Trade Act) (19 U.S.C. 2242). The 2014 Special 301 Report is available at
All written comments should be filed electronically via
Susan Wilson, Director for Intellectual Property and Innovation, Office of the United States Trade Representative, at
Section 182 of the Trade Act requires USTR to identify countries that deny adequate and effective protection of IPR or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. The provisions of Section 182 are commonly referred to as the “Special 301” provisions of the Trade Act.
Those countries that have the most onerous or egregious acts, policies, or practices and whose acts, policies, or practices have the greatest adverse impact (actual or potential) on relevant U.S. products are to be identified as Priority Foreign Countries. In addition, USTR has created a “Priority Watch List” and a “Watch List” under Special 301 provisions. Placement of a trading partner on the Priority Watch List or Watch List indicates that particular problems exist in that country with respect to IPR protection, enforcement, or market access for persons relying on intellectual property.
An OCR is a tool that USTR uses to encourage progress on IPR issues of concern. It provides an opportunity for heightened engagement with a trading partner to address and remedy such issues. Successful resolution of specific IPR issues of concern or lack of action on that concern can lead to a change in a trading partner's Special 301 status outside of the time frame for the annual Special 301 Review.
In the 2014 Special 301 Report, USTR noted that it would conduct an OCR of Kuwait focusing in particular on the Government of Kuwait's efforts to address deficiencies in both its copyright legislation and its intellectual property enforcement practices. The 2014 Special 301 Report included specific steps that Kuwait would need to take by the conclusion of the OCR to avoid being moved to the Priority Watch List: (1) Introduce amendments to the current copyright legislation that meet international standards; and (2) resume enforcement against both copyright piracy and trademark infringement.
To facilitate the review, written comments should be as detailed as possible and provide all necessary information for identifying and assessing the effect of the acts, policies, and practices of Kuwait relevant to the issues being reviewed in the OCR. Comments should include: Information relating to the status of any amendments that have been introduced to the current copyright legislation of Kuwait; the substance of the amendments, particularly their consistency with international standards; and the change, if any, of the frequency of enforcement actions against copyright and trademark infringement. USTR requests that interested parties provide specific references to laws, regulations, policy statements, executive, presidential or other orders, administrative, court or other determinations that should be factored in the review.
Comments must be in English. To ensure the timely receipt and consideration of comments, USTR strongly encourages commenters to submit comments electronically, using the
The
A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. In the document, confidential business information must clearly be designated as such; the submission must be marked “BUSINESS CONFIDENTIAL” on the cover page and each succeeding page, and the submission should clearly indicate, via brackets, highlighting, or other means, the specific information that is business confidential. Additionally, the submitter should type “Business Confidential 2014 Out-of-Cycle Review of Kuwait” in the “Type Comment” field. Anyone submitting a comment containing business confidential information must also submit, as a separate submission, a non-business confidential version of the submission, indicating where the business confidential information has been redacted. The filenames of both documents should reflect their status—“BC” for the business confidential version and “P” for the public version. The non-business confidential version will be placed in the docket at
As noted, USTR strongly urges commenters to submit comments through
Comments received will be placed in the docket and open to public inspection pursuant to 15 CFR 2006.13, except business confidential information exempt from public inspection in accordance with 15 CFR 2006.15. Comments may be viewed free of charge by visiting
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA
Written comments should be submitted by November 5, 2014.
Kathy DePaepe at (405) 954–9362, or by email at:
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
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
Written comments should be submitted by November 5, 2014.
Kathy DePaepe at (405) 954–9362, or by email at:
Federal Highway Administration (FHWA), DOT.
Notice of intent.
Pursuant to 40 CFR 1508.22 and 43 TAC § 2.5(e)(2), the Federal Highway Administration (FHWA), Texas Department of Transportation (TxDOT), and the Lone Star Rail District (LSRD) are issuing this notice to advise the public that an Environmental Impact Statement (EIS) will be prepared for a proposed transportation project to construct and operate a regional passenger rail service system along the IH–35 corridor connecting the greater Austin and San Antonio metropolitan areas. A required letter of initiation pursuant to 23 U.S.C. 139 was completed as well. As the project proponent, the LSRD intends to apply for Transportation Infrastructure Finance and Innovation Act (TIFIA) program funding and seek to retain federal funding eligibility for this proposed project. The proposed project would provide for implementation of passenger rail service within the existing Union Pacific Railroad (UPRR) corridor that extends from Williamson County to Bexar County, Texas. FHWA as the lead federal agency will coordinate closely with the Federal Railroad Administration (FRA) and the Federal Transit Administration (FTA), to perform the analyses required to evaluate reasonable alternatives for the proposed action. The EIS may include a potential alternative that would include development and operation of a new freight bypass to carry some of the existing freight rail traffic between Taylor and San Antonio to allow the addition of passenger service along the existing UPRR line.
Mr. Salvador Deocampo, District Engineer, Federal Highway Administration, Texas Division, 300 East 8th Street, Room 826, Austin, Texas 78701, Telephone 512–536–5950.
The LSRD (formed in 2003 with authorization of the State of Texas) is an independent and accountable public agency focused on providing regional passenger rail service. As the project proponent, the LSRD has conducted numerous planning, environmental, and alternatives analyses over the past 10 years to evaluate feasible options for development of passenger rail service along the IH–35 corridor between the metropolitan areas of Austin and San Antonio. Through these efforts, the LSRD has worked closely with the UPRR, as a major stakeholder, to evaluate operational scenarios for joint freight and passenger operations within UPRR's existing system. A potential alternative to be evaluated in the EIS includes development and operation of passenger rail service within the abandoned MoKan railroad right-of-way between Georgetown and Round Rock, and along the existing UPRR corridor between Round Rock and San Antonio. A branch route providing passenger rail service between Round Rock and Taylor along the existing UPRR corridor could also be evaluated.
A potential alternative could include development of a freight bypass to accommodate some existing freight rail traffic that could be displaced by the proposed passenger rail operations. The proposed freight rail bypass could extend from the UPRR Austin Subdivision near Taylor and follow a greenfield alignment (new location) to Seguin. From Seguin, the proposed freight rail bypass could follow existing UPRR right-of-way through the San Antonio area and terminate at Tower 105 near downtown San Antonio.
The need for the proposed project stems from the rapid growth occurring in Central and South Texas. Congestion within the IH–35 corridor has resulted in decreased mobility and travel time reliability for both travelers and freight transporters. The deficiencies of the existing transportation network, including lack of modal transportation options and limited roadway capacity, contribute to decreased regional air quality, increased crash rates, and diminished quality of life for residents living in close proximity to IH–35.
The Lone Star Regional Rail Project would provide regional passenger rail service connecting communities along the IH–35 corridor between the metropolitan areas of Austin and San Antonio. As currently envisioned, the project would span approximately 120 miles across Williamson, Travis, Bastrop, Hays, Caldwell, Comal, Guadalupe, and Bexar counties. Based upon previous studies, the purpose of the proposed project is to improve mobility, accessibility, transportation reliability, modal choice, safety, and facilitate economic development along the IH–35 corridor in Central and South Texas.
The EIS will be prepared in accordance with the National Environmental Policy Act of 1969 (NEPA), the Council on Environmental Quality (CEQ) regulations implementing NEPA, and FHWA regulations. The EIS will evaluate the reasonable alternatives and the No Action (the no-build alternative), Transportation System Management (TSM)/Transportation Demand Management (TDM), and other transit, rail, and roadway alternatives incorporated by reference from other applicable studies. Federal Surface Transportation Program-Metropolitan Mobility (STP–MM) funds were used to conduct the previous studies and are funding the current EIS.
The EIS will analyze potential direct, indirect, and cumulative impacts from the proposed construction and operation of the reasonable alternatives considered including, but not limited to the following: regional transportation system impacts (including all modes and effects on congestion); air quality impacts; noise and vibration impacts (in accordance with FRA/FTA guidelines); impacts to water quality and water resources including surface and groundwater, wetlands, rivers, and streams, and floodplains; impacts to historic, archaeological, and cultural resources; impacts to threatened and endangered species and protected habitats; impacts on farm and range lands; socioeconomic impacts including environmental justice communities; impacts on land use and potential displacements; hazardous materials; and impacts to aesthetic and visual resources.
Public involvement is a critical component of the NEPA process and will occur throughout this study. Scoping letters describing the proposed action and a request for comments will be sent to federal, state, and local agencies as well as stakeholders, community groups, and citizens who previously expressed an interest in the proposed project. Agency and public scoping meetings are planned for the fall of 2014. The purpose of agency and public scoping is to identify relevant and potentially significant issues related to the Lone Star Regional Rail Project as part of the NEPA process. Scoping meetings, conducted pursuant to 23 U.S.C. 139, will provide opportunities for cooperating agencies, participating agencies, and the public to be involved in review and comment on the Draft Project Coordination Plan, defining the need and purpose for the proposed action, determining the range of reasonable alternatives to be considered in the EIS and the appropriate methodologies to be used, and the level of detail required in the analysis of alternatives. Federal agencies with
To ensure that the full range of issues related to this proposed action is addressed and all significant issues are identified, comments and suggestions are invited from all interested parties. Such comments or questions concerning this proposed action should be directed to the FHWA at the address provided above.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Correction to Notice of Buy America Waiver
On September 16, 2014, NHTSA published a Notice of Buy America Waiver that provided findings to requests from the Michigan Office of Highway Safety Planning (OHSP) to waive the requirements of Buy America. The Notice stated an effective date of October 16, 2014. However, that date did not correctly reflect NHTSA's intentions for the effective date. Also, the Notice did not accurately cite the appropriate section of the United States Code for motorcyclist safety grant funds, 23 U.S.C. 405(f). This document corrects those errors.
The effective date of this correction is the date of publication October 6, 2014.
For program issues, contact Barbara Sauers, Office of Regional Operations and Program Delivery, NHTSA (phone: 202–366–0144). For legal issues, contact Andrew DiMarsico, Office of Chief Counsel, NHTSA (phone: 202–366–5263). You may send mail to these officials at National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
On September 16, 2014, NHTSA published a Notice of Buy America Waiver that provided findings in regards to five requests from the Michigan Office of Highway Safety Planning (OHSP) to waive the requirements of Buy America. In summary, NHTSA found the following:
• A waiver of the Buy America requirements, 23 U.S.C. 313, was appropriate for OHSP to purchase a portable data projector, wireless remote control presenter, DVDs, high-visibility motorcycle vests and twenty training motorcycles.
• A non-availability waiver of the Buy America requirements was inappropriate for OHSP to lease a copy/printer/fax machine.
The Notice of Buy America Waiver stated the waiver was effective on October 16, 2014. This date did not correctly state NHTSA's intentions. On September 16, 2014, at 79 FR 55529, NHTSA intended the waiver to be effective on an earlier date in order to allow the grantee an opportunity to purchase the items requested. Also, the Notice did not accurately cite the appropriate section of the United States Code for motorcyclist safety grant funds. The Notice cited to 23 U.S.C. 405(g), but NHTSA intended to cite 23 U.S.C. 405(f) for motorcyclist safety grant funds.
In FR Doc. 2014–0090 appearing on page 55529 of the
In the
“The effective date of this waiver is the date of publication.”
In the
CSX Transportation, Inc. (CSXT) and Norfolk Southern Railway Company (NSR) (collectively, applicants) have jointly filed a verified notice of exemption under 49 CFR part 1152 subpart F–
Applicants have certified that: (1) No local traffic has moved over the Line for at least two years; (2) any overhead traffic on the Line can be rerouted over other lines; (3) no formal complaint has been filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line, and no such complaint is either pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of a complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to these exemptions, any employee adversely affected by the
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, these exemptions will be effective on November 5, 2014, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to applicants' representatives: For CSXT, Louis E. Gitomer, Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301, Towson, MD 21204, and for NSR, William A. Mullins, 2401 Pennsylvania Avenue, NW., Suite 300, Washington, DC 20037.
If the verified notice contains false or misleading information, the exemptions are void
Applicants have filed environmental and historic reports that address the effects, if any, of the abandonment and discontinuance on the environment and historic resources. OEA will issue an environmental assessment (EA) by October 10, 2014. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423–0001) or by calling OEA at (202) 245–0305. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877–8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), CSXT shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by CSXT's filing of a notice of consummation by October 6, 2015, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at “
By the Board, Joseph H. Dettmar, Acting Director, Office of Proceedings.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before December 5, 2014.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 632–8924 or FAX (202) 632–8925.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501–3521), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA'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 respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Department of Veterans Affairs.
Notice.
The Department of Veterans Affairs (VA), Veterans Health Administration (VHA), is seeking nominations of qualified candidates to be considered for appointment as a member of the Research Advisory Committee on Gulf War Veterans' Illnesses (hereinafter referred to as “the Committee”). The Committee was established pursuant to Public Law 105–368, Section 104, to advise the Secretary of VA with respect to proposed research studies, plans, and strategies related to understanding and treating the health consequences of military service in the Southwest Asia theatre of operations during the 1990–1991 Gulf War. Nominations of qualified candidates are being sought to fill upcoming vacancies on the Committee.
Nominations for membership on the Committee must be received no later than 5:00 p.m. EDT on October 24, 2014.
All nominations should be mailed to Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Ave. NW., (10P), Washington, DC 20420, emailed to
Dr. Victor Kalasinsky, Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Ave. NW (10P), Washington, DC 20420, telephone (202) 443–5600. (This is not a toll free number.) A copy of the Committee charter and list of the current membership can be obtained by contacting Dr. Kalasinsky or by accessing the Web site:
The Research Advisory Committee on Gulf War Veterans' Illnesses was established pursuant to Public Law 105–368, Section 104, to advise the Secretary of VA (hereinafter referred to as “the Secretary”) with respect to proposed research studies, plans, and strategies related to understanding and treating the health consequences of military service in the Southwest Asia theatre of operations during the 1990–1991 Gulf War.
VHA is requesting nominations for upcoming vacancies on the Committee. The Committee is currently composed of 12 members. The members of the Committee are appointed by the Secretary from the general public, including but not limited to:
(1) Gulf War Veterans;
(2) Representatives of such Veterans;
(3) Members of the medical and scientific communities representing disciplines such as, but not limited to, epidemiology, immunology, environmental health, neurology, and toxicology.
To the extent possible, the Secretary seeks members who have diverse professional and personal qualifications. We ask that nominations include information of this type so that VA can ensure a balanced Committee membership.
Individuals appointed to the Committee by the Secretary shall be invited to serve a two- or three-year term. The Secretary may reappoint a member for an additional term of service. Committee members will receive travel expenses and a per diem allowance for any travel made in connection with duties as members of the Committee and within federal travel guidelines.
Requirements for Nomination Submission: Nominations should be typed (one nomination per nominator). Nomination package should include: (1) A letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (i.e., specific attributes which qualify the nominee for service in this capacity), and a statement from the nominee indicating the willingness to serve as a member of the Committee; (2) the nominee's contact information, including name, mailing address, telephone numbers, and email address; (3) the nominee's curriculum vitae; (4) a summary of the nominee's experience and qualifications relative to the membership considerations described above; and (5) a statement confirming that he/she is not a federally-registered lobbyist.
VA makes every effort to ensure that the membership of VA Federal advisory committees is fairly balanced in terms of points of view represented and the committee's function. Appointments to this Committee shall be made without discrimination based on a person's race, color, religion, sex, sexual orientation, gender identity, national origin, age, disability, or genetic information. Nominations must state that the nominee appears to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee.
Environmental Protection Agency (EPA).
Supplemental notice of proposed rulemaking.
This action supplements our proposed amendments to the national emission standards for hazardous air pollutants (NESHAP) for the Ferroalloys Production source category published in the
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For questions about this proposed action, contact Mr. Phil Mulrine, Sector Policies and Programs Division (D243–02), Office of Air Quality Planning and Standards, Environmental Protection Agency, Research Triangle Park, NC 27711; telephone (919) 541–5289; fax number: (919) 541–3207; and email address:
We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:
Table 1 of this preamble lists the industrial source category that is the subject of this supplemental proposal. Table 1 is not intended to be exhaustive but rather to provide a guide for readers regarding the entities that this proposed action is likely to affect. The proposed standards, once finalized, will be
In addition to being available in the docket, an electronic copy of this action is available on the Internet through the EPA's Technology Transfer Network (TTN) Web site, a forum for information and technology exchange in various areas of air pollution control. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at:
Section 112 of the Clean Air Act (CAA) establishes a two-stage regulatory process to address emissions of hazardous air pollutants (HAP) from stationary sources. In the first stage, after the EPA has identified categories of sources emitting one or more of the HAP listed in CAA section 112(b), CAA section 112(d) requires us to promulgate technology-based NESHAP for those sources. “Major sources” are those that emit or have the potential to emit 10 tons per year (tpy) or more of a single HAP or 25 tpy or more of any combination of HAP. For major sources, the technology-based NESHAP must reflect the maximum degree of emission reductions of HAPs achievable (after considering cost, energy requirements and non-air quality health and environmental impacts) and are commonly referred to as maximum achievable control technology (MACT) standards.
MACT standards must reflect the maximum degree of emissions reduction achievable through the application of measures, processes, methods, systems or techniques, including, but not limited to, measures that (1) reduce the volume of or eliminate pollutants through process changes, substitution of materials or other modifications; (2) enclose systems or processes to eliminate emissions; (3) capture or treat pollutants when released from a process, stack, storage or fugitive emissions point; (4) are design, equipment, work practice or operational standards (including requirements for operator training or certification); or (5) are a combination of the above. CAA section 112(d)(2)(A)–(E). The MACT standards may take the form of design, equipment, work practice or operational standards where the EPA first determines either that (1) a pollutant cannot be emitted through a conveyance designed and constructed to emit or capture the pollutant, or that any requirement for, or use of, such a conveyance would be inconsistent with law; or (2) the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations. CAA section 112(h)(1)–(2).
The MACT “floor” is the minimum control level allowed for MACT standards promulgated under CAA section 112(d)(3) and may not be based on cost considerations. For new sources, the MACT floor cannot be less stringent than the emissions control that is achieved in practice by the best-controlled similar source. The MACT floor for existing sources can be less stringent than floors for new sources, but not less stringent than the average emissions limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, the EPA must also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on considerations of the cost of achieving the emission reductions, any
The EPA is then required to review these technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every eight years. CAA section 112(d)(6). In conducting this review, the EPA is not required to recalculate the MACT floor.
The second stage in standard-setting focuses on reducing any remaining (
Section 112(f)(2) of the CAA requires the EPA to determine for source categories subject to MACT standards whether the emission standards provide an ample margin of safety to protect public health. Section 112(f)(2)(B) of the CAA expressly preserves the EPA's use of the two-step process for developing standards to address any residual risk and the agency's interpretation of “ample margin of safety” developed in the
The first step in the process of evaluating residual risk is the determination of acceptable risk. If risks are unacceptable, the EPA cannot consider cost in identifying the emissions standards necessary to bring risks to an acceptable level. The second step is the determination of whether standards must be further revised in order to provide an ample margin of safety to protect public health. The ample margin of safety is the level at which the standards must be set, unless an even more stringent standard is necessary to prevent, taking into consideration costs, energy, safety and other relevant factors, an adverse environmental effect.
The agency in the Benzene NESHAP concluded that “the acceptability of risk under section 112 is best judged on the basis of a broad set of health risk measures and information” and that the “judgment on acceptability cannot be reduced to any single factor.” Benzene NESHAP at 38046. The determination of what represents an “acceptable” risk is based on a judgment of “what risks are acceptable in the world in which we live” (
In the Benzene NESHAP, we stated that “EPA will generally presume that if the risk to [the maximum exposed] individual is no higher than approximately one in 10 thousand, that risk level is considered acceptable.” 54 FR at 38045, September 14, 1989. We discussed the maximum individual lifetime cancer risk (or maximum individual risk (MIR)) as being “the estimated risk that a person living near a plant would have if he or she were exposed to the maximum pollutant concentrations for 70 years.”
Understanding that there are both benefits and limitations to using the MIR as a metric for determining acceptability, we acknowledged in the Benzene NESHAP that “consideration of maximum individual risk * * * must take into account the strengths and weaknesses of this measure of risk.”
As noted earlier, in
CAA section 112(f)(2) requires the EPA to determine, for source categories subject to MACT standards, whether those standards provide an ample margin of safety to protect public health. As explained in the Benzene NESHAP, “the second step of the inquiry, determining an `ample margin of safety,' again includes consideration of all of the health factors, and whether to reduce the risks even further. . . . Beyond that information, additional factors relating to the appropriate level of control will also be considered, including costs and economic impacts of controls, technological feasibility, uncertainties and any other relevant factors. Considering all of these factors, the agency will establish the standard at a level that provides an ample margin of safety to protect the public health, as required by section 112.” 54 FR at 38046, September 14, 1989.
According to CAA section 112(f)(2)(A), if the MACT standards for HAP “classified as a known, probable, or possible human carcinogen do not reduce lifetime excess cancer risks to the individual most exposed to emissions from a source in the category or subcategory to less than one in one million,” the EPA must promulgate residual risk standards for the source category (or subcategory), as necessary to provide an ample margin of safety to protect public health. In doing so, the EPA may adopt standards equal to existing MACT standards if the EPA determines that the existing standards (
The CAA does not specifically define the terms “individual most exposed,” “acceptable level” and “ample margin of safety.” In the Benzene NESHAP, 54 FR at 38044–38045, September 14, 1989, we stated as an overall objective:
In protecting public health with an ample margin of safety under section 112, EPA strives to provide maximum feasible protection against risks to health from hazardous air pollutants by (1) protecting the greatest number of persons possible to an individual lifetime risk level no higher than approximately 1-in-1 million and (2) limiting to no higher than approximately 1-in-10 thousand [i.e., 100-in-1 million] the estimated risk that a person living near a plant would have if he or she were exposed to the maximum pollutant concentrations for 70 years.
In the ample margin of safety decision process, the agency again considers all of the health risks and other health information considered in the first step, including the incremental risk reduction associated with standards more stringent than the MACT standard or a more stringent standard that EPA has determined is necessary to ensure risk is acceptable. In the ample margin of safety analysis, the agency considers additional factors, including costs and economic impacts of controls, technological feasibility, uncertainties and any other relevant factors. Considering all of these factors, the agency will establish the standard at a level that provides an ample margin of safety to protect the public health, as required by CAA section 112(f). 54 FR 38046, September 14, 1989.
Ferroalloys are alloys of iron in which one or more chemical elements (such as chromium, manganese and silicon) are added into molten metal. Ferroalloys are consumed primarily in iron and steel making and are used to produce steel and cast iron products with enhanced or special properties. The ferroalloys products that are the focus of the NESHAP are ferromanganese (FeMn) and silicomanganese (SiMn), which are produced by two facilities in the United States. One facility (Eramet) is located in Marietta, Ohio and produces both FeMn and SiMn. The other plant (Felman) is located in Letart, West Virginia and produces only SiMn.
Ferroalloys within the scope of this source category are produced using submerged electric arc furnaces, which are furnaces in which the electrodes are submerged into the charge. The submerged arc process is a reduction smelting operation. The reactants consist of metallic ores (ferrous oxides, silicon oxides, manganese oxides, etc.) and a carbon-source reducing agent, usually in the form of coke, charcoal, high- and low-volatility coal, or wood chips. Raw materials are crushed and sized and then conveyed to a mix house for weighing and blending. Conveyors, buckets, skip hoists or cars transport the processed material to hoppers above the furnace. The mix is gravity-fed through a feed chute either continuously or intermittently, as needed. At high temperatures in the reaction zone, the carbon source reacts with metal oxides to form carbon monoxide and to reduce the ores to base metal.
The NESHAP for Ferroalloys Production: Ferromanganese and Silicomanganese were promulgated on May 20, 1999 (64 FR 27450) and codified at 40 CFR part 63, subpart XXX.
The existing Ferroalloys Production NESHAP rule applies to process emissions from the submerged arc furnaces, the metal oxygen refining process and the product crushing equipment; process fugitive emissions from the furnace; and outdoor fugitive dust emissions sources such as
The 1999 NESHAP established a building opacity limit of 20 percent that is measured during the required furnace control device performance test. The rule provides an excursion limit of 60 percent opacity for one 6-minute period during the performance test. The opacity observation is focused only on emissions exiting the shop due solely to operations of any affected submerged arc furnace. In addition, blowing taps, poling and oxygen lancing of the tap hole, burndowns associated with electrode measurements and maintenance activities associated with submerged arc furnaces and casting operations are exempt from the opacity standards specified in § 63.1653.
For outdoor fugitive dust sources, as defined in § 63.1652, the 1999 NESHAP requires that plants prepare and operate according to an outdoor fugitive dust control plan that describes in detail the measures that will be put in place to control outdoor fugitive dust emissions from the individual outdoor fugitive dust sources at the facility. The owner or operator must submit a copy of the outdoor fugitive dust control plan to the designated permitting authority on or before the applicable compliance date.
Pursuant to section 112(f)(2) of the CAA, we first evaluated the residual risk associated with the Ferroalloys Production NESHAP in 2011. We also conducted a technology review, as required by section 112(d)(6) of the CAA. Finally, we also reviewed the 1999 MACT rule to determine if other amendments were appropriate. Based on the results of that previous residual risk and technology review (RTR) and the MACT rule review, we proposed amendments to subpart XXX on November 23, 2011 (76 FR 72508) (referred to from here on as the 2011 proposal in the remainder of this FR notice). The proposed amendments in the 2011 proposal which we are revisiting in today's supplemental proposal include the following:
• Revisions to particulate matter (PM) standards for electric arc furnaces and local ventilation control devices;
• emission limits for mercury, polycyclic aromatic hydrocarbons (PAHs), and hydrochloric acid (HCl);
• proposed requirements to control process fugitive emissions based on full-building enclosure with negative pressure, or fenceline monitoring as an alternative;
• a provision for emissions averaging;
• amendments to the monitoring, notification, recordkeeping and testing requirements; and
• proposed provisions establishing an affirmative defense to civil penalties for violations caused by malfunctions.
The comment period for the 2011 proposal opened on November 23, 2011, and ended on January 31, 2012. We received significant comments from industry representatives, environmental organizations local community groups. We also met with stakeholders (from industry, community groups and environmental organizations) after proposal to further discuss their comments, concerns and related issues. After reviewing the comments and after consideration of additional data and information received since the 2011 proposal, we determined it is
However, we also proposed other requirements in the 2011 proposal (listed below) for which we have made no revisions to the analyses, we are not proposing any changes and are not reopening for public comment. The other requirements that we proposed in the 2011 proposal, for which we are not re-opening for comment, are the following:
• PM standards for metal oxygen refining processes and crushing and screening operations;
• emissions limits for formaldehyde;
• elimination of SSM exemptions; and
• electronic reporting.
In the 2011 proposal, we also included information about several ATSDR health consultations and a study (Kim
Commenters on the 2011 proposal expressed concern that the data set used in the risk assessment did not adequately reflect current operations at the plants. In response to these comments, we worked with the facilities to address these concerns and we obtained a significant amount of new data in order to establish a more robust dataset than the dataset we had for the 2011 proposal. Specifically, the plants provided data collected during their 2011 and 2012 compliance tests and, in response to an Information Collection Request (ICR) from the EPA in December 2012, they conducted more tests in the spring of 2013. This combined testing effort provided the following data:
• Additional stack test data for arsenic, cadmium, chromium, lead, manganese, mercury, nickel, HCl, formaldehyde, PAH, polychlorinated biphenyls (PCB) and dioxins/furans;
• Test data collected using updated, state-of-the-art test methods and procedures;
• Hazardous air pollutant (HAP) test data for all operational furnaces;
• Test data obtained during different seasonal conditions (
• Test data for both products (ferromanganese and silicomanganese) for both furnaces at Eramet (Felman only produces silicomanganese).
With the new data, we no longer have to extrapolate HAP emissions from a ratio of PM to HAP emissions from just one or two tested furnaces. We are also using test data collected using state-of-the-art test methods that provide better QA/QC of the test results. For mercury, test data were collected for the supplemental proposal using EPA Method 30B, which requires paired samples collected for each test run, in addition to a spiked sample during the 3-run test. Test data for PAH were collected using CARB 429, which provides greater sensitivity, precision and identification of individual PAH compounds as compared to Method 0010 which was used for previous tests. We also received PCB and dioxin/furan test data that were collected using CARB 428, which uses high resolution instruments and provides a specific procedure for measuring PCBs in addition to dioxin/furans.
The data described above, which we received prior to summer 2014, were incorporated into our risk assessment, technology review and other MACT analyses presented in this Notice. However, we recently received additional test reports and data for PAH, mercury and PM emissions from one of the furnaces at Eramet (Furnace #12). We also received additional data on PM emissions for Furnaces #1 and #12 at Eramet and for the tapping baghouse at Eramet. We have not yet completed our technical review of these new data and we were not able to incorporate these new data (on PAHs, PM, or Hg) into our RTR or MACT analyses in time for the publication of today's Notice.
Commenters also expressed concern that the estimated cost and operational impacts of the 2011 proposed process fugitive standards based on use of a total building enclosure requirement were significantly underestimated. In their comments both companies submitted substantial additional information and estimates regarding the elements, costs and impacts involved with constructing and operating a full building enclosure for their facilities. We also received comments saying that full-enclosure with negative pressure can lead to worker safety and health issues related to indoor air quality if the systems are not designed and operated appropriately to provide sufficient air exchanges and air conditioning in the work space. Furthermore, in their comments and in subsequent meetings and other communications, the companies also provided design and cost information for an alternative approach to substantially reduce fugitive emissions based on enhanced local capture and control of these emissions at each plant. In the summer of 2012 and fall of 2013, both plants submitted updated enhanced capture plans and cost estimates to implement those plans. We also consulted with outside ventilation experts and control equipment vendors to re-evaluate the costs of process fugitive capture as well as costs of other control measures such as activated carbon injection. We also gathered a
The EPA conducted a risk assessment that provides estimates of the MIR posed by the HAP emissions from each source in the source category, the hazard index (HI) for chronic exposures to HAP with the potential to cause noncancer health effects and the hazard quotient (HQ) for acute exposures to HAP with the potential to cause noncancer health effects. The assessment also provides estimates of the distribution of cancer risks within the exposed populations, cancer incidence and an evaluation of the potential for adverse environmental effects. The risk assessment consisted of eight primary steps, as discussed in detail in the 2011 proposal. The docket for this rulemaking contains the following document which provides more information on the risk assessment inputs and models:
As explained previously, the revised data set for the ferroalloys production source category, derived from the two existing ferromanganese and silicomanganese production facilities, constitutes the basis for the revised risk assessment. We estimated the magnitude of emissions using emissions test data collected through ICRs along with additional data submitted voluntarily by the companies. We also collected information regarding emissions release characteristics such as stack heights, stack gas exit velocities, stack temperatures and source locations. In addition to the quality assurance (QA) of the source data for the facilities contained in the data set, we also checked the coordinates of every emission source in the data set through visual observations using tools such as GoogleEarth and ArcView. Where coordinates were found to be incorrect, we identified and corrected them to the extent possible. We also performed a QA assessment of the emissions data and release characteristics to ensure the data were reliable and that there were no outliers. The emissions data and the methods used to estimate emissions from all the various emissions sources are described in more detail in the technical document:
The available emissions data in the RTR emissions dataset include estimates of the mass of HAP emitted during the specified annual time period. In some cases, these “actual” emission levels are lower than the emission levels required to comply with the MACT standards. The emissions level allowed to be emitted by the MACT standards is referred to as the “MACT-allowable” emissions level. We discussed the use of both MACT-allowable and actual emissions in the final Coke Oven Batteries residual risk rule (70 FR 19998–19999, April 15, 2005) and in the proposed and final Hazardous Organic NESHAP residual risk rules (71 FR 34428, June 14, 2006, and 71 FR 76609, December 21, 2006, respectively). In those previous actions, we noted that assessing the risks at the MACT-allowable level is inherently reasonable since these risks reflect the maximum level facilities could emit and still comply with national emission standards. We also explained that it is reasonable to consider actual emissions, where such data are available, in both steps of the risk analysis, in accordance with the Benzene NESHAP approach. (54 FR 38044, September 14, 1989.)
For this supplemental proposal, we evaluated allowable stack emissions based on the level of control required by the 1999 MACT standards. We also evaluated the level of reported actual emissions and available information on the level of control achieved by the emissions controls in use. Further explanation is provided in the technical document:
Both long-term and short-term inhalation exposure concentrations and health risks from the source category addressed in this proposal were estimated using the Human Exposure Model (Community and Sector HEM–3 version 1.1.0). The HEM–3 performs three primary risk assessment activities: (1) Conducting dispersion modeling to estimate the concentrations of HAP in ambient air, (2) estimating long-term and short-term inhalation exposures to individuals residing within 50 kilometers (km) of the modeled sources
The air dispersion model used by the HEM–3 model (AERMOD) is one of the EPA's preferred models for assessing pollutant concentrations from industrial facilities.
In developing the risk assessment for chronic exposures, we used the estimated annual average ambient air concentrations of each HAP emitted by each source for which we have emissions data in the source category. The air concentrations at each nearby census block centroid were used as a surrogate for the chronic inhalation exposure concentration for all the people who reside in that census block. We calculated the MIR for each facility as the cancer risk associated with a continuous lifetime (24 hours per day, 7 days per week, and 52 weeks per year for a 70-year period) exposure to the maximum concentration at the centroid of inhabited census blocks. Individual cancer risks were calculated by multiplying the estimated lifetime exposure to the ambient concentration of each of the HAP (in micrograms per cubic meter (μg/m
In the case of nickel compounds, to provide a conservative estimate of potential cancer risks, we used the IRIS URE value for nickel subsulfide (which is considered the most potent carcinogen among all nickel compounds) in the assessment for the 2011 proposed rule for ferroalloys production. In the 2011 proposed rule, the determination of the percent of nickel subsulfide was considered a major factor for estimating the risks of cancer due to nickel-containing emissions. Nickel speciation information for some of the largest nickel-emitting sources (including oil combustion, coal combustion and others) suggested that at least 35 percent of total nickel emissions may be soluble compounds and that the cancer risk for the mixture of inhaled nickel compounds (based on nickel subsulfide and representative of pure insoluble crystalline nickel) was derived to reflect the assumption that 65 percent of the total mass of nickel may be carcinogenic.
Based on consistent views of major scientific bodies (
In the inhalation risk assessment for the 2011 proposed rule, to take a conservative approach, we considered all nickel compounds to have the same carcinogenic potential as nickel subsulfide and used the IRIS URE for nickel subsulfide to estimate risks due to all nickel emissions from the source category. However, given that there are two additional URE values
The EPA estimated incremental individual lifetime cancer risks associated with emissions from the facilities in the source category as the sum of the risks for each of the carcinogenic HAP (including those classified as carcinogenic to humans, likely to be carcinogenic to humans, and suggestive evidence of carcinogenic potential
To assess the risk of non-cancer health effects from chronic exposures, we summed the HQ for each of the HAP that affects a common target organ system to obtain the HI for that target organ system (or target organ-specific HI, TOSHI). The HQ is the estimated exposure divided by the chronic reference value, which is a value selected from one of several sources. First, the chronic reference level can be the EPA reference concentration (RfC) (
For the ferroalloys source category, we applied this policy in our estimate of noncancer inhalation hazards and note the following related to manganese. There is an existing IRIS RfC for manganese (Mn) published in 1993.
The EPA also evaluated screening estimates of acute exposures and risks for each of the HAP at the point of highest potential off-site exposure for each facility. To do this, the EPA estimated the risks when both the peak hourly emissions rate and worst-case dispersion conditions occur. We also assume that a person is located at the point of highest impact during that same time. In accordance with our mandate in section 112 of the Clean Air Act, we use the point of highest off-site exposure to assess the potential risk to the maximally exposed individual. The acute HQ is the estimated acute exposure divided by the acute dose-response value. In each case, the EPA calculated acute HQ values using best available, short-term dose-response values. These acute dose-response values, which are described below, include the acute REL, acute exposure guideline levels (AEGL) and emergency response planning guidelines (ERPG) for 1-hour exposure durations. As discussed below, we used conservative assumptions for emissions rates, meteorology and exposure location for our acute analysis.
As described in the
As we state above, in assessing the potential risks associated with acute exposures to HAP, we do not follow a prioritization scheme and therefore we consider available dose-response values from multiple authoritative sources. In the RTR program, EPA assesses acute risk using toxicity values derived from one hour exposures. Based on an in-depth examination of the available acute value for nickel [California EPA's acute (1-hour) REL], we have concluded that this value is not appropriate to use to support EPA's risk and technology review rules. This conclusion takes into account: The effect on which the acute REL is based; aspects of the methodology used in its derivation; and how this assessment stands in comparison to the ATSDR toxicological assessment, which considered the broader nickel health effects database.
The broad nickel noncancer health effects database strongly suggests that the respiratory tract is the primary target of nickel toxicity following inhalation exposure. The available database on acute noncancer respiratory effects is limited and was considered unsuitable for quantitative analysis of nickel toxicity by both California EPA
In addition, the current California acute (1-hour) REL for Ni includes the application of methods that are different from those described in EPA guidelines. Specifically, the (1-hour) REL applies uncertainty factors that depart from the defaults in EPA guidelines and does not
Further, the ATSDR's intermediate MRL (relevant to Ni exposures for a time frame between 14 and 364 days), was established at the same concentration as the California EPA (1- hour) REL, indicating that exposure to this concentration “is likely to be without appreciable risk of adverse noncancer effects” (MRL definition)
We have high confidence in the nickel ATSDR intermediate MRL. Our analysis of the broad toxicity database for nickel indicates that this value is based on the most biologically-relevant endpoint. That is, the intermediate MRL is based on a scientifically sound study of acute respiratory toxicity. Furthermore, this value is supported by a robust subchronic nickel toxicity database and was derived following guidelines that are consistent with EPA guidelines.
AEGL values were derived in response to recommendations from the National Research Council (NRC). As described in
The document lays out the purpose and objectives of AEGL by stating that “the primary purpose of the AEGL program and the National Advisory Committee for Acute Exposure Guideline Levels for Hazardous Substances is to develop guideline levels for once-in-a-lifetime, short-term exposures to airborne concentrations of acutely toxic, high-priority chemicals.”
The AEGL–1 value is then specifically defined as “the airborne concentration (expressed as ppm (parts per million) or mg/m
ERPG values are derived for use in emergency response, as described in the American Industrial Hygiene Association's ERP Committee document entitled,
As can be seen from the definitions above, the AEGL and ERPG values include the similarly-defined severity levels 1 and 2. For many chemicals, a severity level 1 value AEGL or ERPG has not been developed because the types of effects for these chemicals are not consistent with the AEGL–1/ERPG–1 definitions; in these instances, we compare higher severity level AEGL–2 or ERPG–2 values to our modeled exposure levels to screen for potential acute concerns. When AEGL–1/ERPG–1 values are available, they are used in our acute risk assessments.
Acute REL values for 1-hour exposure durations are typically lower than their corresponding AEGL–1 and ERPG–1 values. Even though their definitions are slightly different, AEGL–1 values are often the same as the corresponding ERPG–1 values, and AEGL–2 values are often equal to ERPG–2 values. Maximum HQ values from our acute screening risk assessments typically result when basing them on the acute REL value for a particular pollutant. In cases where our maximum acute HQ value exceeds 1, we also report the HQ value based on the next highest acute dose-response value (usually the AEGL–1 and/or the ERPG–1 value).
To develop screening estimates of acute exposures in the absence of hourly emissions data, generally we first develop estimates of maximum hourly emissions rates by multiplying the average actual annual hourly emissions rates by a default factor to cover routinely variable emissions. We choose the factor to use partially based on process knowledge and engineering judgment. The factor chosen also reflects a Texas study of short-term emissions variability, which showed that most peak emission events in a
For this source category, data were available to determine process-specific factors. Some processes, for example the electric arc furnaces, operate continuously so there are no peak emissions. These processes received a factor of 1 in the acute assessment. Other processes, for example tapping and casting, have specific cycles, with peak emissions occurring for a part of that cycle (
As part of our acute risk assessment process, for cases where acute HQ values from the screening step were less than or equal to 1 (even under the conservative assumptions of the screening analysis), acute impacts were deemed negligible and no further analysis was performed. In cases where an acute HQ from the screening step was greater than 1, additional site-specific data were considered to develop a more refined estimate of the potential for acute impacts of concern. For this source category, the data refinements employed consisted of determining that the receptor with the maximum concentration was off of plant property. These refinements are discussed more fully in the
To better characterize the potential health risks associated with estimated acute exposures to HAP, and in response to a key recommendation from the SAB's peer review of the EPA's RTR risk assessment methodologies,
The EPA conducted a screening analysis examining the potential for significant human health risks due to exposures via routes other than inhalation (
For the Ferroalloys Production source category, we identified emissions of cadmium compounds, chlorinated dibenzodioxins and furans, lead compounds, mercury compounds and polycyclic organic matter. Because one or more of these PB–HAP are emitted by at least one facility in the Ferroalloys Production source category, we proceeded to the second step of the evaluation. In this step, we determined whether the facility-specific emissions rates of each of the emitted PB–HAP were large enough to create the potential for significant non-inhalation human health risks under reasonable worst-case conditions. To facilitate this step, we developed emissions rate screening levels for several PB–HAP using a hypothetical upper-end screening exposure scenario developed for use in conjunction with the EPA's Total Risk Integrated Methodology.Fate, Transport, and Ecological Exposure (TRIM.FaTE) model. The PB–HAP with emissions rate screening level values are: Lead, cadmium, chlorinated dibenzodioxins and furans, mercury compounds, and polycyclic organic matter (POM). We conducted a sensitivity analysis on the screening scenario to ensure that its key design parameters would represent the upper end of the range of possible values, such that it would represent a conservative but not impossible scenario. The facility-specific emissions rates of these PB–HAP were compared to the emission rate screening levels for these PB–HAP to assess the potential for significant human health risks via non-inhalation pathways. We call this application of the TRIM.FaTE model the Tier I TRIM-screen or Tier I screen.
For the purpose of developing emissions rates for our Tier I TRIM-screen, we derived emission levels for these PB–HAP (other than lead compounds) at which the maximum excess lifetime cancer risk would be 1-in-1 million (
In the Tier II screen, the location of each facility that exceeded the Tier I emission rate is used to refine the assumptions associated with the environmental scenario while maintaining the exposure scenario assumptions. We then adjust the risk-based Tier I screening level for each PB–HAP for each facility based on an understanding of how exposure concentrations estimated for the screening scenario change with meteorology and environmental assumptions. PB–HAP emissions that do not exceed these new Tier II screening levels are considered to pose no unacceptable risks. When facilities exceed the Tier II screening levels, it does not mean that multipathway impacts are significant, only that we cannot rule out that possibility based on the results of the screen.
If the PB–HAP emissions for a facility exceed the Tier II screening emissions rate and data are available, we may decide to conduct a more refined multipathway assessment. A refined assessment replaces some of the assumptions made in the Tier II screen, with site-specific data. The refined assessment also uses the TRIM.FaTE model and facility-specific emission rate screening levels that are created for each PB–HAP. For the ferroalloys production source category, we did conduct a refined multipathway assessment for one facility in the category. A detailed discussion of the approach for this assessment can be found in Appendix 10 (
In evaluating the potential multi-pathway risk from emissions of lead compounds, rather than developing a screening emissions rate for them, we compared maximum estimated chronic inhalation exposures with the level of the current National Ambient Air Quality Standard (NAAQS) for lead.
For further information on the multipathway analysis approach, see the
In addition to assessing baseline inhalation risks and potential multipathway risks, we also estimated risks considering the emissions reductions that would be achieved by the control options under consideration in this supplemental proposal. In these cases, the expected emissions reductions were applied to the specific HAP and emissions points in the RTR emissions dataset to develop corresponding estimates of risk that would exist after implementation of the proposed amendments in today's action.
The EPA has developed a screening approach to examine the potential for adverse environmental effects as required under section 112(f)(2)(A) of the CAA. Section 112(a)(7) of the CAA defines “adverse environmental effect” as “any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas.”
The EPA focuses on seven HAP, which we refer to as “environmental HAP,” in its screening analysis: Five persistent bioaccumulative HAP (PB–HAP) and two acid gases. The five PB–HAP are cadmium, dioxins/furans, polycyclic organic matter (POM), mercury (both inorganic mercury and methyl mercury) and lead compounds. The two acid gases are hydrogen chloride (HCl) and hydrogen fluoride (HF). The rationale for including these seven HAP in the environmental risk screening analysis is presented below.
The HAP that persist and bioaccumulate are of particular environmental concern because they accumulate in the soil, sediment and water. The PB–HAP are taken up, through sediment, soil, water, and/or ingestion of other organisms, by plants or animals (
In addition to accounting for almost all of the mass of PB–HAP emitted, we note that the TRIM.FaTE model that we use to evaluate multipathway risk allows us to estimate concentrations of cadmium compounds, dioxins/furans, POM and mercury in soil, sediment and water. For lead compounds, we currently do not have the ability to calculate these concentrations using the TRIM.FaTE model. Therefore, to evaluate the potential for adverse environmental effects from lead compounds, we compare the estimated HEM-modeled exposures from the source category emissions of lead with the level of the secondary National Ambient Air Quality Standard (NAAQS) for lead.
Due to their well-documented potential to cause direct damage to terrestrial plants, we include two acid gases, HCl and HF, in the environmental screening analysis. According to the 2005 NEI, HCl and HF account for about 99 percent (on a mass basis) of the total acid gas HAP emitted by stationary sources in the U.S. In addition to the potential to cause direct damage to plants, high concentrations of HF in the air have been linked to fluorosis in livestock. Air concentrations of these HAP are already calculated as part of the human multipathway exposure and risk screening analysis using the HEM3–AERMOD air dispersion model, and we are able to use the air dispersion modeling results to estimate the potential for an adverse environmental effect.
The EPA acknowledges that other HAP beyond the seven HAP discussed above may have the potential to cause adverse environmental effects. Therefore, the EPA may include other relevant HAP in its environmental risk
An important consideration in the development of the EPA's screening methodology is the selection of ecological assessment endpoints and benchmarks. Ecological assessment endpoints are defined by the ecological entity (
For PB–HAP (other than lead compounds), we evaluated the following community-level ecological assessment endpoints to screen for organisms directly exposed to HAP in soils, sediment and water:
• Local terrestrial communities (
• Local benthic (
• Local aquatic (water-column) communities (including fish and plankton) exposed to PB–HAP in nearby surface waters.
For PB–HAP (other than lead compounds), we also evaluated the following population-level ecological assessment endpoint to screen for indirect HAP exposures of top consumers via the bioaccumulation of HAP in food chains.
• Piscivorous (
For cadmium compounds, dioxins/furans, POM and mercury, we identified the available ecological benchmarks for each assessment endpoint. An ecological benchmark represents a concentration of HAP (
Probable effect levels (PEL): Level above which adverse effects are expected to occur frequently.
Lowest-observed-adverse-effect level (LOAEL): The lowest exposure level tested at which there are biologically significant increases in frequency or severity of adverse effects.
No-observed-adverse-effect levels (NOAEL): The highest exposure level tested at which there are no biologically significant increases in the frequency or severity of adverse effect.
We established a hierarchy of preferred benchmark sources to allow selection of benchmarks for each environmental HAP at each ecological assessment endpoint. In general, the EPA sources that are used at a programmatic level (
Benchmarks for all effect levels are not available for all PB–HAP and assessment endpoints. In cases where multiple effect levels were available for a particular PB–HAP and assessment endpoint, we use all of the available effect levels to help us to determine whether ecological risks exist and, if so, whether the risks could be considered significant and widespread.
The environmental screening analysis also evaluated potential damage and reduced productivity of plants due to direct exposure to acid gases in the air. For acid gases, we evaluated the following ecological assessment endpoint:
• Local terrestrial plant communities with foliage exposed to acidic gaseous HAP in the air.
The selection of ecological benchmarks for the effects of acid gases on plants followed the same approach as for PB–HAP (
For HF, the EPA identified chronic benchmark concentrations for plants and evaluated chronic exposures to plants in the screening analysis. High concentrations of HF in the air have also been linked to fluorosis in livestock. However, the HF concentrations at which fluorosis in livestock occur are higher than those at which plant damage begins. Therefore, the benchmarks for plants are protective of both plants and livestock.
For the environmental risk screening analysis, the EPA first determined whether any facilities in the ferroalloys production source category sources emitted any of the seven environmental HAP. For the ferroalloys production source category, we identified emissions of five of the PB HAP (cadmium, mercury, lead compounds, dioxins and polycyclic organic matter) and one acid gas (HCl).
Because one or more of the seven environmental HAP evaluated are emitted by the facilities in the source category, we proceeded to the second step of the evaluation.
For cadmium, mercury, POM and dioxins/furans, the environmental screening analysis consists of two tiers, while lead compounds are analyzed differently as discussed earlier. In the first tier, we determined whether the maximum facility-specific emission rates of each of the emitted environmental HAP were large enough to create the potential for adverse environmental effects under reasonable worst-case environmental conditions. These are the same environmental conditions used in the human multipathway exposure and risk screening analysis.
To facilitate this step, TRIM.FaTE was run for each PB–HAP under hypothetical environmental conditions designed to provide conservatively high HAP concentrations. The model was set to maximize runoff from terrestrial parcels into the modeled lake, which in turn, maximized the chemical concentrations in the water, the sediments and the fish. The resulting media concentrations were then used to back-calculate a screening level emission rate that corresponded to the
In Tier II of the environmental screening analysis, the emission rate screening levels are adjusted to account for local meteorology and the actual location of lakes in the vicinity of facilities that did not pass the Tier I screen. The modeling domain for each facility in the tier II analysis consists of eight octants. Each octant contains 5 modeled soil concentrations at various distances from the facility (5 soil concentrations × 8 octants = total of 40 soil concentrations per facility) and 1 lake with modeled concentrations for water, sediment and fish tissue. In the tier II environmental risk screening analysis, the 40 soil concentration points are averaged to obtain an average soil concentration for each facility for each PB–HAP. For the water, sediment and fish tissue concentrations, the highest value for each facility for each pollutant is used. If emission concentrations from a facility do not exceed the Tier II screening levels, the facility passes the screen and typically is not evaluated further. If emissions from a facility exceed the Tier II screening level, the facility does not pass the screen and, therefore, may have the potential to cause adverse environmental effects. Such facilities are evaluated further to investigate factors such as the magnitude and characteristics of the area of exceedance.
The environmental screening analysis evaluates the potential phytotoxicity and reduced productivity of plants due to chronic exposure to acid gases. The environmental risk screening methodology for acid gases is a single-tier screen that compares the average off-site ambient air concentration over the modeling domain to ecological benchmarks for each of the acid gases. Because air concentrations are compared directly to the ecological benchmarks, emission-based screening levels are not calculated for acid gases as they are in the ecological risk screening methodology for PB–HAPs.
For purposes of ecological risk screening, the EPA identifies a potential for adverse environmental effects to plant communities from exposure to acid gases when the average concentration of the HAP around a facility exceeds the LOAEL ecological benchmark. In such cases, we further investigate factors such as the magnitude and characteristics of the area of exceedance (
To put the source category risks in context, we typically examine the risks from the entire “facility,” where the facility includes all HAP-emitting operations within a contiguous area and under common control. In other words, we examine the HAP emissions not only from the source category of interest, but also emissions of HAP from all other emissions sources at the facility for which we have data. However, for the Ferroalloys Production source category, we did not identify other HAP emissions sources located at these facilities. Thus, we did not perform a separate facility wide risk assessment.
In the Benzene NESHAP, we concluded that risk estimation uncertainty should be considered in our decision-making under the ample margin of safety framework. Uncertainty and the potential for bias are inherent in all risk assessments, including those performed for this proposal. Although uncertainty exists, we believe that our approach, which used conservative tools and assumptions, ensures that our decisions are health protective and environmentally protective. A brief discussion of the uncertainties in the RTR emissions dataset, dispersion modeling, inhalation exposure estimates and dose-response relationships follows below. A more thorough discussion of these uncertainties is included in the
Although the development of the RTR emissions dataset involved quality assurance/quality control processes, the accuracy of emissions values will vary depending on the source of the data, the degree to which data are incomplete or missing, the degree to which assumptions made to complete the datasets are accurate, errors in emission estimates and other factors. The emission estimates considered in this analysis generally are annual totals for certain years, and they do not reflect short-term fluctuations during the course of a year or variations from year to year. The estimates of peak hourly emission rates for the acute effects screening assessment were based on an emission adjustment factor applied to the average annual hourly emission rates, which are intended to account for emission fluctuations due to normal facility operations.
As described above and in the emissions technical document, we gathered a substantial amount of emissions test data for the stack emissions from both facilities. Therefore, the level of uncertainty in the estimates of HAP emissions from the stacks is relatively low. Regarding fugitive emissions, we lack direct quantitative measurements of these emissions, therefore, we had to rely on available emissions factors and other technical information to derive the best estimates of emissions for these emissions. To estimate these fugitive emissions, we relied on information and observations gathered through several site visits by the EPA technical experts, reviewed and evaluated all available emissions factors and analyzed other relevant information such as the measured ratios of HAP metals to particulate matter, estimated capture efficiencies of the various ventilation hoods currently used to capture and control some of the fugitive emissions and the production rates for various products. Based on this information, we have derived the best estimates of fugitive emissions from these sources. Details are described in the Emissions Memo, which is available in the docket for this action. Nevertheless, there are still some uncertainties regarding the precise quantities of fugitive HAP being emitted from these plants.
We recognize there is uncertainty in ambient concentration estimates associated with any model, including the EPA's recommended regulatory dispersion model, AERMOD. In using a model to estimate ambient pollutant concentrations, the user chooses certain options to apply. For RTR assessments, we select some model options that have the potential to overestimate ambient air concentrations (
The EPA did not include the effects of human mobility on exposures in the assessment. Specifically, short-term mobility and long-term mobility between census blocks in the modeling domain were not considered.
In addition, the assessment predicted the chronic exposures at the centroid of each populated census block as surrogates for the exposure concentrations for all people living in that block. Using the census block centroid to predict chronic exposures tends to over-predict exposures for people in the census block who live farther from the facility and under-predict exposures for people in the census block who live closer to the facility. Thus, using the census block centroid to predict chronic exposures may lead to a potential understatement or overstatement of the true maximum impact, but is an unbiased estimate of average risk and incidence. We reduce this uncertainty by analyzing large census blocks near facilities using aerial imagery and adjusting the location of the block centroid to better represent the population in the block, as well as adding additional receptor locations where the block population is not well represented by a single location.
The assessment evaluates the cancer inhalation risks associated with pollutant exposures over a 70-year period, which is the assumed lifetime of an individual. In reality, both the length of time that modeled emission sources at facilities actually operate (
The exposure estimates used in these analyses assume chronic exposures to ambient (outdoor) levels of pollutants. Because most people spend the majority of their time indoors, actual exposures may not be as high, depending on the characteristics of the pollutants modeled. For many of the HAP, indoor levels are roughly equivalent to ambient levels, but for very reactive pollutants or larger particles, indoor levels are typically lower. This factor has the potential to result in an overestimate of 25 to 30 percent of exposures.
In addition to the uncertainties highlighted above, there are several factors specific to the acute exposure assessment that the EPA conducts as part of the risk review under section 112 of the CAA that should be highlighted. The accuracy of an acute inhalation exposure assessment depends on the simultaneous occurrence of independent factors that may vary greatly, such as hourly emissions rates, meteorology and the presence of humans at the location of the maximum concentration. In the acute screening assessment that we conduct under the RTR program, we assume that peak emissions from the source category and worst-case meteorological conditions co-occur, thus resulting in maximum ambient concentrations. These two events are unlikely to occur at the same time, making these assumptions conservative. We then include the additional assumption that a person is located at this point during this same time period. For this source category, these assumptions would tend to be worst-case actual exposures as it is unlikely that a person would be located at the point of maximum exposure during the time when peak emissions and worst-case meteorological conditions occur simultaneously.
There are uncertainties inherent in the development of the dose-response values used in our risk assessments for cancer effects from chronic exposures and non-cancer effects from both chronic and acute exposures. Some uncertainties may be considered quantitatively, and others generally are expressed in qualitative terms. We note as a preface to this discussion a point on dose-response uncertainty that is brought out in the EPA's
Cancer URE values used in our risk assessments are those that have been developed to generally provide an upper bound estimate of risk. That is, they represent a “plausible upper limit to the
Chronic non-cancer RfC and reference dose (RfD) values represent chronic exposure levels that are intended to be health-protective levels. Specifically, these values provide an estimate (with uncertainty spanning perhaps an order of magnitude) of a continuous inhalation exposure (RfC) or a daily oral exposure (RfD) to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious effects during a lifetime. To derive values that are intended to be “without appreciable risk,” the methodology relies upon an uncertainty factor (UF) approach (U.S. EPA, 1993, 1994) which considers uncertainty, variability and gaps in the available data. The UF are applied to derive reference values that are intended to protect against appreciable risk of deleterious effects. The UF are commonly default values,
While collectively termed “UF,” these factors account for a number of different quantitative considerations when using observed animal (usually rodent) or human toxicity data in the development of the RfC. The UF are intended to account for: (1) Variation in susceptibility among the members of the human population (
Many of the UF used to account for variability and uncertainty in the development of acute reference values are quite similar to those developed for chronic durations, but they more often use individual UF values that may be less than 10. The UF are applied based on chemical-specific or health effect-specific information (
Not all acute reference values are developed for the same purpose and care must be taken when interpreting the results of an acute assessment of human health effects relative to the reference value or values being exceeded. Where relevant to the estimated exposures, the lack of short-term dose-response values at different levels of severity should be factored into the risk characterization as potential uncertainties.
Although every effort is made to identify appropriate human health effect dose-response assessment values for all pollutants emitted by the sources in this risk assessment, some HAP emitted by this source category are lacking dose-response assessments. Accordingly, these pollutants cannot be included in the quantitative risk assessment, which could result in quantitative estimates understating HAP risk. As we state above in section III.A.3, based on a recent in-depth examination of the available acute value for nickel (California EPA's acute (1-hour) REL), we have concluded that this value is not appropriate for our regulatory needs in characterizing the potential for acute health risks. This conclusion takes into account the effect on which the acute REL is based, aspects of the methodology used in its derivation, and how this assessment stands in comparison to other comprehensive toxicological assessments which considered the broader nickel health effects database. Also, there are no AEGL–1 or -2 or ERPG–1 or -2 values available to use in this acute risk assessment. Therefore, we will not include nickel in our acute analysis for this source category or in future assessments unless and until an appropriate value becomes available.
To help to alleviate this potential underestimate, where we conclude similarity with a HAP for which a dose-response assessment value is available, we use that value as a surrogate for the assessment of the HAP for which no value is available. To the extent use of surrogates indicates appreciable risk, we may identify a need to increase priority for new IRIS assessment of that substance. We additionally note that, generally speaking, HAP of greatest concern due to environmental exposures and hazard are those for which dose-response assessments have been performed, reducing the likelihood of understating risk. Further, HAP not included in the quantitative assessment are assessed qualitatively and considered in the risk characterization that informs the risk management decisions, including with regard to consideration of HAP reductions achieved by various control options.
For a group of compounds that are unspeciated (
For each source category, we generally rely on site-specific levels of PB–HAP emissions to determine whether a refined assessment of the impacts from multipathway exposures is necessary. This determination is based on the results of a two-tiered screening analysis that relies on the outputs from models that estimate environmental pollutant concentrations and human exposures for four PB–HAP. Two important types of uncertainty associated with the use of these models in RTR risk assessments and inherent to any assessment that relies on environmental modeling are model uncertainty and input uncertainty.
Input uncertainty is concerned with how accurately the models have been configured and parameterized for the assessment at hand. For Tier I of the multipathway screen, we configured the models to avoid underestimating exposure and risk. This was accomplished by selecting upper-end values from nationally-representative data sets for the more influential parameters in the environmental model, including selection and spatial configuration of the area of interest, lake location and size, meteorology, surface water and soil characteristics and structure of the aquatic food web. We also assume an ingestion exposure scenario and values for human exposure factors that represent reasonable maximum exposures.
In Tier II of the multipathway assessment, we refine the model inputs to account for meteorological patterns in the vicinity of the facility versus using upper-end national values and we identify the actual location of lakes near the facility rather than the default lake location that we apply in Tier I. By refining the screening approach in Tier II to account for local geographical and meteorological data, we decrease the likelihood that concentrations in environmental media are overestimated, thereby increasing the usefulness of the screen. The assumptions and the associated uncertainties regarding the selected ingestion exposure scenario are the same for Tier I and Tier II.
For both Tiers I and II of the multipathway assessment, our approach to addressing model input uncertainty is generally cautious. We choose model inputs from the upper end of the range of possible values for the influential parameters used in the models, and we assume that the exposed individual exhibits ingestion behavior that would lead to a high total exposure. This approach reduces the likelihood of not identifying high risks for adverse impacts.
Despite the uncertainties, when individual pollutants or facilities do screen out, we are confident that the potential for adverse multipathway impacts on human health is very low. On the other hand, when individual pollutants or facilities do not screen out, it does not mean that multipathway impacts are significant, only that we cannot rule out that possibility and that a refined multipathway analysis for the site might be necessary to obtain a more accurate risk characterization for the source category.
For further information on uncertainties and the Tier I and II screening methods, refer to the risk document Appendix 4,
We also completed a refined multi-pathway assessment for this supplemental proposal. The refined assessment contains considerably less uncertainty compared to the Tier I and Tier II screens. Nevertheless, some uncertainties also exist with the refined assessments. The refined multi-pathway assessment and related uncertainties are described in detail in the risk document Appendix 10,
For each source category, we generally rely on site-specific levels of environmental HAP emissions to perform an environmental screening assessment. The environmental screening assessment is based on the outputs from models that estimate environmental HAP concentrations. The same models, specifically the TRIM.FaTE multipathway model and the AERMOD air dispersion model, are used to estimate environmental HAP concentrations for both the human multipathway screening analysis and for the environmental screening analysis. Therefore, both screening assessments have similar modeling uncertainties.
Two important types of uncertainty associated with the use of these models in RTR environmental screening assessments—and inherent to any assessment that relies on environmental modeling—are model uncertainty and input uncertainty.
Model uncertainty concerns whether the selected models are appropriate for the assessment being conducted and whether they adequately represent the movement and accumulation of environmental HAP emissions in the environment. For example, does the model adequately describe the movement of a pollutant through the soil? This type of uncertainty is difficult to quantify. However, based on feedback received from previous EPA Science Advisory Board reviews and other reviews, we are confident that the models used in the screen are appropriate and state-of-the-art for the environmental risk assessments conducted in support of our RTR analyses.
Input uncertainty is concerned with how accurately the models have been configured and parameterized for the assessment at hand. For Tier I of the environmental screen for PB–HAP, we configured the models to avoid underestimating exposure and risk to reduce the likelihood that the results indicate the risks are lower than they actually are. This was accomplished by
For the environmental screening assessment for acid gases, we employ a single-tiered approach. We use the modeled air concentrations and compare those with ecological benchmarks.
For both Tiers I and II of the environmental screening assessment, our approach to addressing model input uncertainty is generally cautious. We choose model inputs from the upper end of the range of possible values for the influential parameters used in the models, and we assume that the exposed individual exhibits ingestion behavior that would lead to a high total exposure. This approach reduces the likelihood of not identifying potential risks for adverse environmental impacts.
Uncertainty also exists in the ecological benchmarks for the environmental risk screening analysis. We established a hierarchy of preferred benchmark sources to allow selection of benchmarks for each environmental HAP at each ecological assessment endpoint. In general, EPA benchmarks used at a programmatic level (
In all cases (except for lead compounds, which were evaluated through a comparison to the NAAQS), we searched for benchmarks at the following three effect levels, as described in section III.A.6. of this notice:
1. A no-effect level (
2. Threshold-effect level (
3. Probable effect level (
For some ecological assessment endpoint/environmental HAP combinations, we could identify benchmarks for all three effect levels, but for most, we could not. In one case, where different agencies derived significantly different numbers to represent a threshold for effect, we included both. In several cases, only a single benchmark was available. In cases where multiple effect levels were available for a particular PB–HAP and assessment endpoint, we used all of the available effect levels to help us to determine whether risk exists and if the risks could be considered significant and widespread.
The EPA evaluates the following seven HAP in the environmental risk screening assessment: Cadmium, dioxins/furans, POM, mercury (both inorganic mercury and methyl mercury), lead compounds, HCl and HF, where applicable. These seven HAP represent pollutants that can cause adverse impacts for plants and animals either through direct exposure to HAP in the air or through exposure to HAP that is deposited from the air onto soils and surface waters. These seven HAP also represent those HAP for which we can conduct a meaningful environmental risk screening assessment. For other HAP not included in our screening assessment, the model has not been parameterized such that it can be used for that purpose. In some cases, depending on the HAP, we may not have appropriate multipathway models that allow us to predict the concentration of that pollutant. The EPA acknowledges that other HAP beyond the seven HAP that we are evaluating may have the potential to cause adverse environmental effects and, therefore, the EPA may evaluate other relevant HAP in the future, as modeling science and resources allow.
Further information on uncertainties and the Tier I and II screening methods is provided in Appendix 4 of the document “Technical Support Document for TRIM-Based Multipathway Tiered Screening Methodology for RTR: Summary of Approach and Evaluation.” Also, see the
As discussed in section II.A of this preamble, in evaluating and developing standards under section 112(f)(2), we apply a two-step process to address residual risk. In the first step, the EPA determines whether risks are acceptable. This determination “considers all health information, including risk estimation uncertainty, and includes a presumptive limit on maximum individual lifetime [cancer] risk (MIR)
In past residual risk actions, the EPA considered a number of human health risk metrics associated with emissions from the categories under review, including the MIR, the number of persons in various risk ranges, cancer incidence, the maximum non-cancer HI and the maximum acute non-cancer hazard.
The agency is considering these various measures of health information to inform our determinations of risk acceptability and ample margin of safety under CAA section 112(f). As explained in the Benzene NESHAP, “the first step judgment on acceptability cannot be reduced to any single factor” and thus “[t]he Administrator believes that the acceptability of risk under [previous] section 112 is best judged on the basis of a broad set of health risk measures and information.” 54 FR 38046, September 14, 1989. Similarly, with regard to the ample margin of safety determination, “the Agency again considers all of the health risk and other health information considered in the first step. Beyond that information, additional factors relating to the appropriate level of control will also be considered, including cost and economic impacts of controls, technological feasibility, uncertainties, and any other relevant factors.”
The Benzene NESHAP approach provides flexibility regarding factors the EPA may consider in making determinations and how the EPA may weigh those factors for each source category. In responding to comment on our policy under the Benzene NESHAP, the EPA explained that:
“[t]he policy chosen by the Administrator permits consideration of multiple measures of health risk. Not only can the MIR figure be considered, but also incidence, the presence of non-cancer health effects, and the uncertainties of the risk estimates. In this way, the effect on the most exposed individuals can be reviewed as well as the impact on the general public. These factors can then be weighed in each individual case. This approach complies with the
The EPA notes that it has not considered certain health information to date in making residual risk determinations. At this time, we do not attempt to quantify those HAP risks that may be associated with emissions from other facilities that do not include the source categories in question, mobile source emissions, natural source emissions, persistent environmental pollution or atmospheric transformation in the vicinity of the sources in these categories.
The agency understands the potential importance of considering an individual's total exposure to HAP in addition to considering exposure to HAP emissions from the source category and facility. We recognize that such consideration may be particularly important when assessing non-cancer risks, where pollutant-specific exposure health reference levels (
In response to the SAB recommendations, the EPA is incorporating cumulative risk analyses into its RTR risk assessments, including those reflected in this proposal. The agency is: (1) Conducting facility-wide assessments, which include source category emission points as well as other emission points within the facilities; (2) considering sources in the same category whose emissions result in exposures to the same individuals; and (3) for some persistent and bioaccumulative pollutants, analyzing the ingestion route of exposure. In addition, the RTR risk assessments have always considered aggregate cancer risk from all carcinogens and aggregate non-cancer hazard indices from all non-carcinogens affecting the same target organ system.
Although we are interested in placing source category and facility-wide HAP risks in the context of
Our technology review focused on the identification and evaluation of developments in practices, processes and control technologies that have occurred since the MACT standards were promulgated. Where we identified such developments, in order to inform our decision of whether it is “necessary” to revise the emissions standards, we analyzed the technical feasibility of applying these developments and the estimated costs,
Based on our analyses of the available data and information, we identified potential developments in practices, processes and control technologies. For this exercise, we considered any of the following to be a “development”:
• Any add-on control technology or other equipment that was not identified and considered during development of the original MACT standards.
• Any improvements in add-on control technology or other equipment (that were identified and considered during development of the original MACT standards) that could result in additional emissions reduction.
• Any work practice or operational procedure that was not identified or considered during development of the original MACT standards.
• Any process change or pollution prevention alternative that could be broadly applied to the industry and that was not identified or considered during development of the original MACT standards.
• Any significant changes in the cost (including cost effectiveness) of applying controls (including controls the EPA considered during the development of the original MACT standards).
We reviewed a variety of data sources in our investigation of potential practices, processes or controls to consider. Among the sources we reviewed were the NESHAP for various industries that were promulgated since the MACT standards being reviewed in this action. We reviewed the regulatory requirements and/or technical analyses associated with these regulatory actions to identify any practices, processes and control technologies considered in these efforts that could be applied to emission sources in the Ferroalloys Production source category, as well as the costs, non-air impacts and energy implications associated with the use of these technologies. Additionally, we requested information from facilities regarding developments in practices, processes or control technology. Finally, we reviewed information from other sources, such as state and/or local permitting agency databases and industry-supported databases.
For the 2011 proposal, our technology review focused on the identification and evaluation of developments in practices, processes and control technologies that have occurred since the 1999 NESHAP was promulgated. In cases where the technology review identified such developments, we conducted an analysis of the technical feasibility of applying these developments, along with the estimated impacts (costs, emissions reductions, risk reductions, etc.) of applying these developments. We then made decisions on whether it is necessary to propose amendments to the 1999 NESHAP to require any of the identified developments. Based on our analyses of the data and information collected by the 2010 ICR and our general understanding of the industry and other available information on potential controls for this industry, we identified several potential developments in practices, processes and control technologies.
Based on our technology review for the 2011 proposed rule, we determined that there had been advances in emissions control measures since the Ferroalloys Production NESHAP was originally promulgated in 1999. Based on that review, we proposed lower PM emissions limits for the process vents because we determined that the existing add-on control devices (baghouses and wet venture scrubbers) were achieving better control than that reflected by the emissions limits in the 1999 MACT rule. Furthermore, based on that previous technology review, to reduce fugitive process emissions, in 2011 we proposed a requirement for sources to enclose the furnace building, prevent the fugitive emissions from being released to the atmosphere by maintaining the furnace building under negative pressure and collect and duct those fugitive emissions to a control device. We proposed that approach in 2011, because at that time, we believed it represented a technically-feasible cost-effective advance in emissions control since the Ferroalloys Production NESHAP was originally promulgated in 1999. Additional details regarding the previously-conducted technology review can be found in the
We also gathered additional emissions data for the process vents. Therefore, we have updated and revised our technology review for the process vent emissions and fugitive emissions control options. The following paragraphs describe the up-dated and revised technology review and additional analyses that were performed for today's supplemental proposal.
The ferroalloy production facilities have add-on control devices such as venturi scrubbers or fabric filters to control emissions of metal HAP from the furnace operations. The furnace operations include charging, smelting and tapping. Other operations that take place inside the furnace buildings include casting and ladle treatment. The vast majority of emissions from the charging and smelting processes are currently vented to the add-on control devices. However, the percent of emissions currently captured and controlled from tapping, ladle treatment and casting are considerably lower and varies across furnaces. The ferroalloy production facilities also use add-on control devices to reduce emissions from the metal oxygen refining (MOR) process, local ventilation sources (
To evaluate the effectiveness of these emission control technologies currently used to reduce emissions and meet the emission limits in the 1999 MACT rule, an ICR under section 114 of the Clean Air Act was sent to each of the ferroalloy production facilities on April 28, 2010 and December 21, 2012 to gather source emissions test data and other information for the furnaces, the MOR process and the product crushing operations. The HAP source test data that were collected from the control device outlet for each furnace include: metal HAP (arsenic, cadmium, chromium (total and Cr
The test data collected from the ICR responses, the compliance reports and other testing indicate that the PM emissions from the furnace process vents (also known as process stacks) are well below the level of emissions allowed by the current emission standards in subpart XXX. In the 2011 proposal, we proposed lower PM limits to reflect the better performance of these sources. We also proposed lower limits for the MOR process and the crushing and screening process vents in the 2011 proposal. We did not receive any additional test data for the MOR process or the crushing and screening process since the 2011 proposal and have received no other information indicating that changes to the limits we proposed in 2011 for these sources are necessary, therefore we plan no changes to the proposed emission standards in this supplemental proposal for the MOR process and the crushing and screening processes.
However, for the furnace process vents, we did receive additional data and based on that data combined with the data we already had, we evaluated whether it is appropriate to propose revised emissions limits for PM from the furnace process vents. We also re-evaluated the proposed emission limits for the local ventilation system based on the new test data received. Further discussions of the re-evaluations and the proposed revised limits are presented in Section IV below.
For purposes of addressing new ferroalloy production facilities, we considered the feasibility of more stringent emission limits. Specifically, we examined what emission level could be met using available add-on control devices and the emission concentrations that could be achieved by the use of the control devices. The results of this analysis and the proposed decisions are described in Section IV below.
We re-evaluated the costs and operational feasibility associated with the option of requiring full building enclosure with negative pressure at all openings. We also consulted with ventilation experts working with hot process fugitives like those found in the ferroalloys industry (
We also reviewed other options to control process fugitive emissions. When we consider the evolution of the EPA rules on process fugitives in the metallurgical industry, we observe that the primary emphasis on quantifiable emission standards is based on controlling stack emissions with a high degree of efficiency. Standards related to emissions capture are generally related to parameter monitoring of flow rates and damper positions of capture equipment when the stack emission test is occurring. There typically has not been an independent evaluation of the effectiveness of process fugitive control through local ventilation in a quantitative, rigorous manner.
However, there is a history of addressing fugitive emissions by requiring a building opacity limit, including a 20 percent limit in the current subpart XXX (although this limit also contains a 60-percent short-term excursion and it excludes some key process fugitives events such as casting). Subpart FFFFF of Part 63, National Emission Standards for Hazardous Air Pollutants for Integrated Iron and Steel Manufacturing Facilities, contains various building opacity limits ranging from 20 percent for existing sources to 10 percent for new sources. Section 60.272a in the Subpart AAa—Standards of Performance for Steel Plants: Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels Constructed After August 17, 1983 establishes a shop building opacity limit of 6 percent, due solely to the operations of affected electric arc furnace (EAF)(s) or argon-oxygen decarburization vessel
After reviewing and evaluating available information regarding approaches to reduce process fugitive emissions, we revised our analysis of options to control these fugitive emissions. The results of the revised analyses of control options for process fugitive emissions are summarized in Section IV and also presented in the
As described previously, CAA section 112(d) requires the EPA to promulgate national technology-based emission standards for hazardous air pollutants (NESHAP) for listed source categories, including this source category. In the 2011 proposal, we proposed emissions limits for mercury, PAHs and HCl, which were previously unregulated HAP, pursuant to section 112(d)(2) and 112(d)(3). After proposal, we received a substantial amount of additional data for these HAP and re-analyzed the proposed limits for these HAP considering the additional data.
Based on those analyses we determined it is appropriate to propose revised limits for these three HAP. Therefore, in today's supplemental notice, we are proposing revised emissions limits pursuant to section 112(d)(2) and 112(d)(3) for mercury, PAHs and HCl. In this section, we describe how we developed the revised
As discussed in the 2011 proposal (76 FR 72508), the MACT floor limit for existing sources is calculated based on the average performance of the best performing units in each category or subcategory, and also on a consideration of these units' variability, and the MACT floor for new sources is based on the single best performing source, with a similar consideration of that source's variability. The MACT floor for new sources cannot be less stringent than the emissions performance that is achieved in practice by the best-controlled similar source. To account for variability in the operation and emissions, the stack test data were used to calculate the average emissions and the 99 percent upper predictive limit (UPL) to derive the MACT floor limits. For more information regarding the general use of the UPL and why it is appropriate for calculating MACT floors, see the memorandum titled
The UPL approach addresses variability of emissions data from the best performing source or sources in setting MACT standards. The UPL also accounts for uncertainty associated with emission values in a dataset, which can be influenced by components such as the number of samples available for developing MACT standards and the number of samples that will be collected to assess compliance with the emission limit. The UPL approach has been used in many environmental science applications.
With regard to the derivation of MACT limits using limited datasets, in a recent D.C. Circuit Court of Appeals decision in
For the ferroalloys source category, we have limited datasets for the following pollutants and subcategories: PAHs for existing and new furnaces producing ferromanganese (FeMn); PAHs for new furnaces producing silicon manganese (SiMn); mercury for new furnaces producing SiMn; mercury for existing and new furnaces producing FeMn; and HCl for new furnaces producing FeMn or SiMn. Therefore, we evaluated these specific datasets to determine whether it is appropriate to make any modifications to the approach used to calculate MACT floors for each of these datasets.
For each dataset, we performed the steps outlined in the Limited Dataset Memo, including: Ensuring that we selected the data distribution that best represents each dataset; ensuring that the correct equation for the distribution was then applied to the data; and comparing individual components of each small dataset to determine if the standards based on small datasets reasonably represent the performance of the units included in the dataset. The results of each analysis are described and presented below in the applicable sections for each of the three HAP (i.e., mercury, PAHs and HCl). We seek comments regarding the specific application of the limited dataset approach used to derive the proposed emissions limits for Hg, PAHs and HCl described in the sections below.
As described above, we obtained significant additional data on mercury emissions from the two ferroalloys production facilities since the 2011 proposal. In particular, we obtained data from each furnace and for each product type (ferromanganese and silicomanganese). While the mercury test data from the 2010 ICR were collected using EPA Method 29 and the mercury test data from the 2012 ICR and other submitted test reports were collected using EPA Method 30B, the mercury test results from the two test methods were considered to be comparable and were used in the MACT Floor analysis. All of the test reports provided analytical results for mercury that were above the detection limit.
The raw materials used to produce ferroalloys contain various amounts of mercury, which is emitted during the smelting process. These mercury emissions are derived primarily from
With regard to determining appropriate MACT limits for mercury, importantly, the new test data confirm that ferromanganese (FeMn) production has substantially higher mercury emissions compared to silicomanganese (SiMn) production and that emissions are considerably higher at Eramet as compared to Felman. This finding is based on an analysis of the product-specific data sets. Furthermore, we evaluated differences in the processes and input materials to try to determine the reasons for the significant difference in mercury emissions. Based on this evaluation, we have determined the input material recipes for producing the different products are quite different. In the case of FeMn production, much more of the Mn ore and high carbon coke are used to reduce the MnO
Because of the significant differences in the input material and the mercury emissions between FeMn and SiMn, we determined that subcategories should be created for ferromanganese and silicomanganese production, with separate MACT limits for mercury proposed for each ferroalloys product (FeMn and SiMn).
The MACT floor dataset for mercury from existing and new furnaces producing FeMn includes 6 test runs from a single furnace. As described above, this dataset (for the calculation of MACT limits for mercury from furnaces producing FeMn) was considered limited and therefore we followed the steps described in the Limited Dataset Memo to determine the appropriate MACT floor limits for mercury for furnaces producing FeMn. We first determined that the dataset is best represented by a normal distribution and ensured that we used the correct equation for the distribution. Because the floor for both existing and new furnaces is based on the performance of a single unit, our evaluation of the data was limited to ensuring that the emission limit is a reasonable estimate of the performance of the unit based on our knowledge about the process and controls. Accordingly, we compared the calculated emission limit to the highest measured value and the average short-term emissions from the unit, and found that the calculated emission limit is about 2.5 times the short-term average from the unit, which is within the range that we see when we evaluate larger data sets using our MACT floor calculation procedures. The fairly wide range in mercury emissions shown by the available data for this best performing unit indicate that variability is significant, and we determined that the emission limit is representative of the actual performance of the unit upon which the limit is based, considering variability. Therefore, we determined that no changes to our standard floor calculation procedure were warranted for this pollutant and subcategory, and we are proposing that the MACT floor is 170 µg/dscm for Hg from existing furnaces producing FeMn. We also note that while we calculated the same MACT floor value for new sources, we are proposing a beyond-the-floor standard for new sources, which is discussed later in this section of this preamble.
The MACT floor dataset for mercury from new furnaces producing SiMn includes 3 test runs from a single furnace (furnace #7 at Felman) that we identified as the best performing unit based on average emissions. After determining that the dataset is best represented by a normal distribution and ensuring that we used the correct equation for the distribution, we evaluated the variance of this unit (furnace #7 at Felman). Our analysis showed that this unit, identified as the best unit based on average emissions, also had the lowest variance, indicating consistent performance. Therefore, we determined that the emission limit reasonably accounts for variability and that no changes to the standard floor calculation procedure were warranted for this pollutant and subcategory, and we are proposing that the MACT floor is 4.0 μg/dscm for Hg from new furnaces producing SiMn.
With regard to mercury emissions from existing furnaces producing SiMn, we have 12 test runs in our dataset. This data set was not determined to be a limited data set. Using the 99 percent UPL method described above, we calculated the MACT floor limit (or 99 percent UPL) for exhaust mercury concentrations from existing furnaces producing SiMn to be 12 μg/dscm.
The MACT floor limits for mercury for existing furnaces are higher than the actual emissions measured during the ICR performance tests at each plant due to an allowance for variability reflected in the UPL. We anticipate that both of the existing sources would be able to meet these product-specific MACT Floor limits for existing sources without installing additional controls. Therefore, the costs and reductions for the MACT floor option were estimated to be zero because we conclude that the facilities would be able to meet the mercury limits with their current furnace controls.
The next step in establishing MACT standards is the BTF analysis. In this step, we investigate other mechanisms for further reducing HAP emissions that are more stringent than the MACT floor level of control in order to “require the maximum degree of reduction in emissions” of HAP. In setting such standards, section 112(d)(2) requires the Agency to consider the cost of achieving the additional emission reductions, any non-air quality health and environmental impacts and energy requirements. Historically, these factors have included factors such as solid waste impacts of a control, effects of emissions on bodies of water, as well as the energy impacts.
As described below, we considered BTF control options to further reduce emissions of mercury. The BTF mercury control options were developed assuming sub-categorization of furnace melting operations into ferromanganese production operations and silicomanganese production operations and installing activated carbon injection (ACI) technology with brominated carbon to control mercury emissions.
The BTF mercury limits would be based on the estimated mercury emission reduction that can be achieved through the use of ACI and brominated carbon. The bromine in the activated carbon can oxidize elemental mercury (Hg
All three furnaces at Felman and one of the two furnaces at Eramet (Furnace #1) are equipped with a fabric filter system to reduce PM. The other furnace at Eramet (Furnace #12) controls PM using a wet venturi scrubber. Limited data are available for mercury reduction using ACI with a venturi scrubber system, as described in the mercury control options memorandum.
We estimated the capital costs, annualized costs, emissions reductions and cost effectiveness for the BTF limits for FeMn and SiMn production sources. The details regarding how these limits were derived and the estimated costs and expected reductions of mercury emissions by installing ACI controls, are provided in the
Regarding the BTF control option for existing sources that produce ferromanganese, we estimated the costs and reductions based on the installation of ACI on Furnaces 1 and 12 at Eramet with operation only during the production of ferromanganese and a polishing baghouse on Furnace 1. Other costs include labor, materials and waste disposal. The emissions and annual cost for this BTF control option are based on the assumption that both furnaces at Eramet produce ferromanganese 50 percent of the time annually and produce SiMn the other 50 percent of the year. We based this reasonable assumption on available information regarding production patterns for the 2 products at Eramet. The estimated mercury reduction that would be achieved at Furnace 1 at Eramet (which is currently controlled with a baghouse) is assumed to be 90 percent based on the installation of ACI and a new polishing baghouse. Regarding Furnace 12 at Eramet (which is currently controlled with a wet venturi scrubber), the mercury reductions that would be achieved with brominated ACI are assumed to be 50 percent. For the BTF control option for existing sources that produce ferromanganese, we estimate the capital costs would be about $30 million, annualized costs of about $3.3 million and would achieve about 191 pounds per year of reductions in mercury emissions, which results in estimated cost-effectiveness of about $17,600 per pound. All the costs and reductions would be at Eramet since Eramet is the only facility in the U.S. that produces FeMn.
As stated earlier the cost-effectiveness is estimated to be $17,600/lb. However, it is important to note that cost-effectiveness is but one factor we consider in assessing the cost of the emission reduction at issue here. See
As mentioned above, we estimate the capital costs would be about $30 million, annualized costs of about $3.3 million and that all these costs would be for Eramet, which is the only facility in the United States that produces FeMn. Furthermore, we estimate the annual costs for BTF controls for mercury at Eramet (in addition to the costs for controls for fugitive HAP emissions required as part of the risk analysis explained later in this preamble) would be about 3 percent of revenues, which we believe is potentially significant given the facts at issue here. In addition, it is our understanding that for the past few years the plant has not made any profits. More details regarding the potential economic impacts of the BTF option are provided in the
We also evaluated an approach that could reduce the compliance costs of the BTF option. We considered the possibility that Eramet could potentially decide to produce FeMn in only one furnace and if so, would only need to install ACI for 1 furnace. If so, the costs for Eramet to comply with the BTF option could be significantly lower. This approach would reduce production flexibility, which could pose significant production issues for the company, but would allow Eramet to avoid some of the emissions control costs under the BTF option. However, we realize there would likely be production issues and other issues, with this approach. Furthermore, we believe it would be inappropriate for the rule to essentially restrict production flexibility. Therefore for our cost impacts analysis of the BTF option we have assumed brominated ACI would be needed for both furnaces.
Based on the available economic information, assuming market conditions remain approximately the same, we believe Eramet Marietta would not be able to sustain the costs of BTF mercury controls (in addition to the fugitive control costs required as part of the risk analysis explained later in this
We also evaluated possible BTF controls for existing SiMn production sources, which have much lower mercury emissions as compared to FeMn production. We estimated that the BTF option for SiMn would achieve an additional 60 pounds/year reductions and that the cost-effectiveness would be about $109,000 per pound of mercury reduced for SiMn production, which we conclude is not cost-effective as a BTF option. Furthermore, based on our economic analyses, we believe that the Felman facility could be at potential risk of closure under this option, especially given that these costs would be in addition to the costs for controlling fugitive HAP metals emissions (such as Mn, As, Ni and Cd). Therefore, we are not proposing BTF limits for mercury for SiMn production.
Regarding BTF controls for new or major reconstructed furnaces, we believe such sources would be constructed to include a baghouse as the primary PM control device (in order to comply with the proposed lower new source limits for PM) and then they could add ACI after the baghouse for mercury control along with a polishing baghouse and would achieve at least 90 percent reduction. Therefore, the BTF limit for new FeMn production sources is calculated to be 17 μg/dscm. Regarding SiMn, the BTF limit for new sources producing SiMn would be 1.2 μg/dscm.
The estimated costs for beyond the floor controls for mercury for new and reconstructed sources are based on the costs of installing and operating brominated ACI and a polishing baghouse. Based on this, we estimate that the cost effectiveness of BTF controls for a new and major reconstructed FeMn production source would be about $12,000/lb. Therefore, we conclude that BTF controls would be cost-effective and feasible for any new or major reconstructed furnace that produces FeMn. Therefore we are proposing a limit of 17 μg/dscm for new or major reconstructed furnaces that produce FeMn.
However, for a new SiMn production source, the cost effectiveness would be at least $51,000/lb. Therefore, we believe BTF controls for new SiMn production sources would not be cost-effective. Furthermore, for SiMn production, as described above, the new source MACT floor limit is already low (
Based on all our analyses described above, we are proposing mercury limits based on the MACT Floor (UPL) for each product type (ferromanganese, silicomanganese) for existing furnaces; BTF limits for mercury for new and reconstructed FeMn production furnaces; and mercury limits for new and reconstructed SiMn production furnaces based on the MACT Floor. These limits are summarized in Table 4.
As described above, we obtained additional data on PAH emissions from the two ferroalloys production facilities since the 2011 proposal. In particular, we obtained data from each furnace and for each product type (FeMn and SiMn). We used the resulting dataset to re-evaluate the MACT floor limits and BTF options. For more information on this analysis, see
As in the case of the mercury analysis, our results show that there is a significant difference in PAH emissions during FeMn production as compared to SiMn production. Furthermore, similar to mercury, we conclude that this difference is due to significant differences in the recipe and input materials for FeMn compared to SiMn production.
Therefore, we determined that it would be appropriate to have two subcategories for PAH emissions and establish separate MACT limits for each of these two subcategories.
The MACT floor dataset for PAHs from existing furnaces producing FeMn includes 6 test runs from 2 furnaces. As described above, this dataset (for the calculation of the MACT Floor limit for PAHs for FeMn production furnaces) was considered a limited dataset and therefore we followed the steps described in the Limited Dataset Memo to determine the appropriate MACT Floor limit for PAHs for these sources. This subcategory includes only two units, and the CAA specifies that the existing source MACT floor for subcategories with fewer than 30 sources shall not be less stringent than “the average emission limitation achieved by the best performing 5 sources.” However, since there are only 2 units in the subcategory and we have data for both units, the data from both units serve as the basis for the MACT floor. After determining that the dataset is best represented by a normal distribution and ensuring that we used
The MACT floor dataset for PAHs from new furnaces producing FeMn includes 3 test runs from a single furnace (furnace #12 at Eramet) that we identified as the best performing unit based on average emissions performance. After determining that the dataset is best represented by a normal distribution and ensuring that we used the correct equation for the distribution, we evaluated the variance of the best performing unit. Our analysis showed that this unit, which was identified as the best unit based on average emissions, also had the lowest variance. Therefore, we determined that the emission limit would reasonably account for variability and that no changes to the standard floor calculation procedure were warranted for this pollutant and subcategory, and we are proposing that the MACT floor is 880 μg/dscm for PAHs from new furnaces producing FeMn.
The MACT floor dataset for PAHs initially identified for new furnaces producing SiMn includes 6 test runs from a single furnace (furnace #2 at Felman) that we identified as the best performing unit based on average emissions. After determining that the dataset is best represented by a normal distribution and ensuring that we used the correct equation for the distribution, we evaluated the variance of this unit (furnace #2 at Felman) and concluded that further consideration of the variance was warranted. In particular, we noted that the variance of the dataset for this unit was almost twice as large as the variance of the dataset for the pool of best performing units that was used to calculate the existing source MACT floor. The high degree of variance in the dataset for the unit with the lowest average prompted us to question whether this unit was, in fact, the best performing unit and to evaluate the dataset for the unit with the next lowest average (furnace #7 at Felman). The dataset for furnace #7 includes 3 test runs, the furnaces are controlled with the same type of add-on control technology, and the average emissions from furnace #2 are only about 22 percent lower than the average emissions from furnace #7. While we find the average performance of these 2 units to be similar, the unit with the higher average has a variance more than 2 orders of magnitude lower than that of the unit with the lower average, thus indicating that the unit with the higher average has a far more consistent level of performance. The combination of components from the unit with the higher average (furnace #7) yields an emissions limit that is lower than that calculated from the dataset of the unit (furnace #2) with the lowest average (71.7 versus 132.8 μg/dscm). For these reasons, we determined that the unit with the lowest average (furnace #2) is not the best performing source for this pollutant and we are instead selecting furnace #7 as the best performing source. After selecting the source upon which the new source limit would be based, we next considered whether the selection of a different confidence level would be appropriate. In this case, we determined that a lower confidence level was not warranted given the small amount of variability in the data for the unit that we identified as the best performer. Based on the factors outlined above, we are proposing that the MACT floor is 72 μg/dscm for PAHs from new furnaces producing SiMn.
With regard to PAH emissions from existing furnaces producing SiMn, we have 18 test runs in our dataset. This dataset was not determined to be a limited data set. The UPL results for this dataset using a 99 percent confidence level was determined to be 120 μg/dscm for SiMn production and was determined to be the MACT floor limit for PAHs for existing furnaces producing SiMn.
Based on the data we received prior to summer 2014, we estimate that neither source would need to install additional controls to meet the MACT Floor emission limits described above. However, as mentioned in Section II.D of today's notice, we received additional PAH data in August 2014. We have not yet completed our review and technical analyses of those new data, and have not yet incorporated these new data into our analyses. Nevertheless, we are seeking comments regarding the new PAH data and how these data could affect our analyses.
The current PM controls on both facilities capture some of PAH emissions. Nevertheless, we also considered BTF options for control of PAH emissions based on the additional reductions that could be achieved via control with ACI. Based on information from carbon vendors, an activated carbon system that is designed to achieve up to 90 percent reduction in mercury emissions should also achieve significant reductions in PAH with no additional costs. However, significant uncertainties remain regarding the percent of reductions in PAHs that would be achieved with ACI. One study
Like mercury and PAH, we obtained additional HCl test data since proposal. However, more than half the test results (20 of the 36 test runs) were below the detection limit. This situation required the use of additional statistical analysis, as described in the
The MACT floor dataset for HCl from new furnaces producing FeMn or SiMn includes 6 test runs from a single furnace (furnace #5 at Felman) that we identified as the best performing unit based on average emissions. As described above, this dataset (for the calculation of the new source limit for HCL) was considered a limited dataset and therefore we followed the steps described in the Limited Dataset Memo to determine the appropriate MACT Floor limit for HCl for new furnaces. After determining that the dataset is best represented by a non-normal distribution and ensuring that we used the correct equation for the distribution, we evaluated the variance of this best performing unit. Our analysis showed that this unit, identified as the best unit based on average emission, also had the lowest variance, indicating consistent performance. Therefore, we determined that the emission limit reasonably accounts for variability and that no changes to the standard floor calculation procedure were warranted for this pollutant and subcategory. We also note that for this standard, the calculated new source floor level was below the level that can be accurately measured (the level that we refer to as “3 times the representative detection level” or 3xRDL). Therefore, we are proposing a new source MACT emission limit of 180 ppm for HCl, which is the 3xRDL value for HCl.
No facilities in the source category use add-on control devices or work practices to limit emissions of HCl beyond what is normally achieved as co-control of the emissions with particulate matter control device. Also, as explained above, there are a significant number of non-detects for HCl. Thus, emissions are already low. Nevertheless, we evaluated possible beyond the floor options to further reduce HCl to ensure our analyses were complete. The BTF analyses are described in the
Given the low emissions of HCl and the results of our analyses, we are not proposing beyond the floor limits for HCl. Therefore, in this supplemental proposal, we are proposing emission limits for HCl of 1,100 μg/dscm for existing furnaces and 180 μg/dscm for new or reconstructed furnaces, which are at the level of the MACT floors.
Table 7 of this preamble provides an overall summary of the results of the inhalation risk assessment.
The inhalation risk modeling performed to estimate risks based on actual and allowable emissions relied primarily on emissions data from the ICRs and calculations described in the Emissions Memo. The results of the chronic baseline inhalation cancer risk assessment indicate that, based on estimates of current actual emissions, the maximum individual lifetime cancer risk (MIR) posed by the ferroalloys production source category is 20-in-1 million, with chromium compounds, PAHs and nickel compounds from tapping fugitives, furnace fugitives and a furnace accounting for 70 percent of the MIR. The total estimated cancer incidence from ferroalloys production sources based on actual emission levels is 0.002 excess cancer cases per year or one case every 500 years, with emissions of PAH, chromium compounds and cadmium compounds contributing 42 percent, 18 percent and 15 percent, respectively, to this cancer incidence. In addition, we note that approximately 400 people are estimated to have cancer risks greater than or equal to 10-in-1 million, and approximately 31,000 people are estimated to have risks greater than or equal to 1-in-1 million as a result of actual emissions from this source category.
When considering MACT-allowable emissions, the maximum individual lifetime cancer risk is estimated to be up to 100-in-1 million, driven by emissions of arsenic compounds and cadmium compounds from the MOR process baghouse outlet. The estimated cancer incidence is estimated to be 0.005 excess cancer cases per year or one excess case in every 200 years. Approximately 2,500 people are estimated to have cancer risks greater than or equal to 10-in-1 million and approximately 94,000 people are estimated to have cancer risks greater than or equal to 1-in-1 million considering allowable emissions from ferroalloys facilities.
The risk results described in this section and shown in Table 7 are based on the emissions data received prior to summer 2014. These results do not reflect the new PAH, PM or mercury data we received in August 2014 (as described in Section II.D. in this notice). We seek comment on the new data, which are available in the docket for today's action, and how these additional data would impact the risk assessment.
The maximum modeled chronic non-cancer HI (TOSHI) value for the source category based on actual emissions is estimated to be 4, with manganese emissions from tapping fugitives accounting for 93 percent of the HI. Approximately 1,500 people are estimated to have exposure to HI levels greater than 1 as a result of actual emissions from this source category. When considering MACT-allowable emissions, the maximum chronic non-cancer TOSHI value is estimated to be 40, driven by allowable emissions of manganese from the MOR process baghouse outlet. Approximately 11,000 people are estimated to have exposure to HI levels greater than 1 considering allowable emissions from these ferroalloys facilities.
Our screening analysis for worst-case acute impacts based on actual emissions indicates the potential for three pollutants—arsenic compounds, formaldehyde, and hydrofluoric acid—to have HQ values of 1, based on their respective REL value. Both facilities have estimated HQs of 1 for these pollutants.
To better characterize the potential health risks associated with estimated worst-case acute exposures to HAP from the source category at issue and in response to a key recommendation from the SAB's peer review of the EPA's section 112(f) RTR risk assessment methodologies, we examine a wider range of available acute health metrics than we do for our chronic risk assessments. This is in acknowledgement that there are generally more data gaps and inconsistencies in acute reference values than there are in chronic reference values. By definition, the acute CalEPA REL represents a health-protective level of exposure, with no risk anticipated below those levels, even for repeated exposures; however, the health risk from higher-level exposures is unknown. Therefore, when a CalEPA REL is exceeded and an AEGL–1 or ERPG–1 level is available (
All the HAP in this analysis have worst-case acute HQ values of 1 or less, indicating that they carry no potential to pose acute concerns. In characterizing
Results of the worst-case Tier I screening analysis indicate that PB–HAP emissions (based on estimates of actual emissions) from one or both facilities in this source category exceed the screening emission rates for cadmium compounds, mercury compounds, dioxins and PAH. For the compounds and facilities that did not screen out at Tier I, we conducted a Tier II screen. The Tier II screen replaces some of the assumptions used in Tier I with site-specific data, including the land use around the facilities, the location of fishable lakes and local wind direction and speed. The Tier II screen continues to rely on high-end assumptions about consumption of local fish and locally grown or raised foods (adult female angler at 99th percentile consumption for fish
While the screening analysis is not designed to produce a quantitative risk result, the factor by which the emissions exceed the screening level serves as a rough gauge of the “upper-limit” risks we would expect from a facility. Thus, for example, if a facility emitted a PB–HAP carcinogen at a level 2 times the screening level, we can say with a high degree of confidence that the actual maximum cancer risks will be less than 2-in-1 million. Likewise, if a facility emitted a noncancer PB–HAP at a level 2 times the screening level, the maximum noncancer hazard would represent an HQ less than 2. The high degree of confidence comes from the fact that the screens are developed using the very conservative (health-protective) assumptions that we describe above.
Based on the Tier II screening analysis, no facility emits cadmium compounds above the Tier II screening levels. One facility emits mercury compounds above the Tier II screening levels and exceeds that level by a factor of 9. Both facilities emit chlorinated dibenzodioxins and furans (CDDF) as 2,3,7,8-tetrachlorodibenzo-p-dioxin toxicity equivalent (TEQ) above the Tier II screening levels and the facility with the highest emissions of dioxins exceeds its Tier II screening level by a factor of 20. Both facilities emit POM as benzo(a)pyrene TEQ above the Tier II screening levels and the facility with the highest emissions exceeds its screening level by a factor of 20.
Polychlorinated biphenyls (PCB) are PB–HAP that do not currently have multi-pathway screening values and so are not evaluated for potential non-inhalation risks. These HAP however, are not emitted in appreciable quantities (estimated to be 0.00026 tpy) from the ferroalloys source category and we do not believe they contribute to multi-pathway risks for this source category.
Results of the analysis for lead indicate that based on the baseline, actual emissions, the maximum annual off-site ambient lead concentration was only 50 percent of the NAAQS for lead and if the total annual emissions occurred during a 3-month period, the maximum 3-month rolling average concentrations would exceed the NAAQS. However, as shown later in this preamble, based on emissions estimated for the post-control scenario, the maximum annual off-site ambient lead concentration was only 3 percent of the NAAQS for lead. If the total annual emissions occurred during a 3-month period, the maximum 3-month rolling average concentrations would be about 12 percent of the NAAQS for lead, indicating that there is no concern for multi-pathway risks due to lead emissions.
A refined multipathway analysis was conducted for one facility in this source category using the TRIM.FaTE model. The facility, Eramet Marietta Incorporated, in Marietta, Ohio, was selected based upon its close proximity to nearby lakes and farms as well as having the highest potential multipathway risks for three of the four PB–HAP based on the Tier II analysis. These three PB–HAP were cadmium, mercury and PAHs. (Even though neither facility exceeded the Tier II screening levels for cadmium, Eramet had the higher value.) Eramet also emits dioxins, but the other facility had a higher exceedance of its Tier II screening level. The refined analysis was conducted on all four PB–HAP. The refined analysis for this facility showed that the Tier II screen for each pollutant over-predicted the potential risk when compared to the refined analysis results.
Overall, the refined analysis predicts a potential lifetime cancer risk of 10-in-1 million to the maximum most exposed individual due to exposure to dioxins and PAHs. The non-cancer HQ is predicted to be below 1 for cadmium compounds and 1 for mercury compounds.
Further details on the refined multipathway analysis can be found in Appendix 10 of the
As described in Section III.A, we conducted an environmental risk screening assessment for the ferroalloys source category. In the Tier I screening analysis for PB–HAP the individual modeled Tier I concentrations for one facility in the source category exceeded some sediment, fish—avian piscivorus and surface soil benchmarks for PAHs, methylmercury and mercuric chloride. Therefore, we conducted a Tier II assessment.
In the Tier II screening analysis for PAHs and methylmercury none of the individual modeled concentrations for any facility in the source category exceeded any of the ecological benchmarks (either the LOAEL or NOAEL). For mercuric chloride, soil benchmarks were exceeded for some individual modeled points that collectively accounted for 5 percent of the modeled area. However, the
For HCl, each individual concentration (
For both facilities in this source category, there are no other HAP emissions sources present beyond those included in the source category. Therefore, we conclude that the facility-wide risk is the same as the source category risk and that no separate facility-wide analysis is necessary.
To examine the potential for any environmental justice (EJ) issues that might be associated with the source category, we performed a demographic analysis, which is an assessment of risks to individual demographic groups, of the population close to the facilities. In this analysis, we evaluated the distribution of HAP-related cancer risks and non-cancer hazards from the ferroalloys production source category across different social, demographic and economic groups within the populations living near facilities identified as having the highest risks. The methodology and the results of the demographic analyses are included in a technical report,
The results of the demographic analysis are summarized in Table 8 below. These results, for various demographic groups, are based on the estimated risks from actual emissions levels for the population living within 50 km of the facilities.
The results of the ferroalloys production source category demographic analysis indicate that emissions from the source category expose approximately 31,000 people to a cancer risk at or above 1-in-1 million and approximately 1,500 people to a chronic non-cancer TOSHI greater than 1 (we note that many of those in the first risk group are the same as those in the second). The percentages of the at-risk population in each demographic group (except for White and non-Hispanic) are similar to or lower than their respective nationwide percentages. Implementation of the provisions included in this proposal is expected to significantly reduce the number of people estimated to have a cancer risk greater than 1-in-1 million due to HAP emissions from these sources from 31,000 people to about 6,600 people. Implementation of the provisions included in the proposal also is expected to reduce the number of people estimated to have a chronic non-cancer TOSHI greater than 1 from 1,500 people to no people with a TOSHI greater than 1.
As noted in Section II.A.1 of this preamble, the EPA sets standards under CAA section 112(f)(2) using “a two-step standard-setting approach, with an analytical first step to determine an `acceptable risk' that considers all health information, including risk estimation uncertainty and includes a presumptive limit on maximum individual lifetime risk (MIR) of
In this proposal, the EPA estimated risks based on both actual and allowable emissions from ferroalloy facilities. In determining acceptability, we considered risks based on both actual and allowable emissions.
The baseline inhalation cancer risk to the individual most exposed to emissions from sources in the ferroalloys source category is 20-in-1 million based on actual emissions. The estimated incidence of cancer due to inhalation exposures is 0.002 excess cancer cases per year, or 1 case every 500 years. Approximately 31,000 people face an increased cancer risk greater than 1-in-1 million due to inhalation exposure to actual HAP emissions from this source category and approximately 400 people face an increased risk greater than 10-in-1 million and up to 20-in-1 million. The agency estimates that the maximum chronic non-cancer TOSHI from inhalation exposure is 4, with manganese emissions from tapping fugitives accounting for a large portion (93 percent) of the HI.
The Tier II multipathway screening analysis of actual emissions indicated the potential for PAH emissions that are about 20 times the screening level for cancer, dioxin emissions that are about 20 times the screening level for cancer and mercury emissions that are 9 times above the screening level for non-cancer.
As noted above, the Tier II multipathway screen is conservative in that it incorporates many health-protective assumptions. For example, the EPA chooses inputs from the upper end of the range of possible values for the influential parameters used in the Tier II screen and assumes that the exposed individual exhibits ingestion behavior that would lead to a high total exposure. A Tier II exceedance cannot be equated with a risk value or a HQ or HI. Rather, it represents a high-end estimate of what the risk or hazard may be. For example, an exceedance of 2 for a non-carcinogen can be interpreted to mean that we have high confidence that the HI would be lower than 2. Similarly, an exceedance of 30 for a carcinogen means that we have high confidence that the risk is lower than 30-in-1-million. Confidence comes from the conservative, or health-protective, assumptions that are used in the Tier II screen.
The refined multipathway analysis that the EPA conducted for one specific facility showed that the Tier II screen for each pollutant over-predicted the potential risk when compared to the refined analysis results. That refined multipathway assessment showed that the Tier II screen resulted in estimated risks that are higher than the risks estimated by the refined analysis by 3 times for PAH, 2 times for dioxins, and 6 times for cadmium. The HQ for mercury went from 9 in Tier II to 1.
The screening assessment of worst-case acute inhalation impacts from baseline actual emissions indicates that all pollutants have HQ values of 1 or less, based on their respective REL values. Considering the conservative, health-protective nature of the approach that is used to develop these acute estimates, it is highly unlikely that an individual would have an acute exposure above the REL. Specifically, the analysis is based on the assumption that worst-case emissions and meteorology would coincide with a person being at the exact location of maximum impact for a period of time long enough to have an exposure level above the conservative REL value. The fact that the facilities in this source category are not located in areas that naturally lead to people being near the fence line for periods of time indicates that the exposure scenario used in the screening assessment would be unlikely to occur.
The EPA estimates that the baseline inhalation cancer risk to the individual most exposed to emissions from sources in the ferroalloys source category is up to 100-in-1 million based on allowable emissions, with arsenic and cadmium emissions driving the risks. The EPA estimates that the incidence of cancer due to inhalation exposures could be up to 0.005 excess cancer cases per year, or 1 case approximately every 200 years. About 94,000 people could face an increased cancer risk greater than 1-in-1 million due to inhalation exposure to allowable HAP emissions from these source categories and approximately 2,500 people could face an increased risk greater than 10-in-1 million and up to 100-in-1 million due to allowable emissions.
The risk assessment estimates that the maximum chronic non-cancer TOSHI from inhalation exposure values is up to 40, driven by allowable manganese emissions. Approximately 11,000 people are estimated to have exposure to HI levels greater than 1.
In determining whether risks are acceptable for this source category, the EPA considered all available health information and risk estimation uncertainty as described above.
The risk results indicate that the allowable inhalation cancer risks to the individual most exposed are up to but no greater than approximately 100–in-1 million, which is the presumptive limit of acceptability. The MIR based on actual emissions is 20-in-1 million, well below the presumptive limit. The maximum chronic exposure to manganese exceeds the human health dose-response value for manganese by a factor of approximately 4 based on actual emissions. For allowable emissions, exposures could exceed the health value up to a factor of approximately 40. The noncancer hazard is driven by manganese emissions.
Neither the acute risk nor the risks from the multipathway assessment exceeded levels of concern, however the EPA does note that the refined multipathway exposure estimate for mercury was at the level of the RfD.
The EPA proposes that the risks are unacceptable for the following reasons. First, the EPA considered the fact that the noncancer hazard quotient ranges from 4 based on actual emissions to 40 based on allowable emissions. The EPA has not established under section 112 of the CAA a numerical range for risk acceptability for noncancer effects as it has with carcinogens, nor has it determined that there is a bright line above which acceptability is denied. However, the Agency has established that, as exposure increases above a reference level (as indicated by a HQ or TOSHI greater than 1), confidence that the public will not experience adverse health effects decreases and the likelihood that an effect will occur increases. For the ferroalloys source category, the potential for members of the public to be exposed to manganese at concentrations up to 40 times the MRL reduces the Agency's confidence that the public is protected from adverse health effects and diminishes the Agency's ability to determine that such exposures are acceptable. Second, the EPA considered the fact that the cancer risk estimate for actual emissions is 20-in-1 million and up to 100-in-1 million for allowable emissions. While 20-in-1 million is well within the acceptable range, risks from allowable emissions are at the upper end of the range of acceptability. This fact, combined with
In order to address the unacceptable risk from this source category, we evaluated the potential to reduce MACT-allowable stack emissions, which resulted in a cancer MIR of 100-in-1 million, primarily due to allowable stack emissions of arsenic and cadmium and contributed significantly to the chronic noncancer TOSHI of 40, primarily due to allowable stack emissions of manganese. Our analysis determined that we could lower the existing particulate matter emission limits by approximately 50 percent for furnace stack emissions, by 80 percent for crushing and screening stack emissions and by 98 percent for the metal oxygen refining (MOR) process, which would help reduce risk to an acceptable level. As explained above, the MOR is a major driver of the allowable risks. Therefore, by lowering the MOR limit by 98 percent, this results in a large reduction in the allowable risks.
For the reasons described above, under the authority of CAA section 112(f)(2), we propose particulate matter emission limits for the stacks at the following levels: 4.0 mg/dscm for new or reconstructed electric arc furnaces and 25 mg/dscm for existing electric arc furnaces. In the 2011 proposal, we proposed a limit of 3.9 mg/dscm for any new, reconstructed or existing MOR process and 13 mg/dscm for any new, reconstructed or existing crushing and screening equipment. We believe sources can achieve the limits we are proposing today with existing controls. These emissions limits will substantially reduce potential risks due to allowable emissions from the stacks. We propose that compliance for all existing and new sources will be demonstrated by periodic stack testing, along with installation and continuous operation of bag leak detection systems for both new and existing sources that have baghouses, and continuous monitoring of liquid flow rate and pressure drop for sources controlled with wet scrubbers.
Process fugitive sources are partially controlled by the existing MACT rule via a shop building opacity standard; however, that standard was only intended to address tapping process fugitives generated under “normal” tapping process operating conditions. Casting and crushing and screening process fugitives in the furnace building were not included. Under the authority of section 112 of the Act, which allows the use of measures to enclose systems or processes to eliminate emissions and measures to collect, capture or treat such pollutants when released from a process, stack, storage, or fugitive emissions point, we evaluated options to achieve improved emissions capture. In the 2011 proposal, we proposed full-enclosure with negative pressure and viewed local capture as not being an appropriate method of risk reduction. However, based on comments and other information gathered since the 2011 proposal and after further review and analyses of available information, we reevaluated whether the necessary risk reduction could be accomplished by an alternative approach to control fugitive emissions based on enhanced local capture of emissions. This control approach would include a combination of primary and secondary hoods that effectively capture process fugitive emissions and vents those emissions to PM control devices. The secondary capture would include hooding at the roof-lines whereby remaining fugitives are collected and vented to control devices. As described further under the technology review section of this preamble, this approach (based on enhanced local capture and control of process fugitives, using primary and secondary hoods), will effectively reduce process fugitive emissions. We conclude that this approach will achieve substantial reductions of process fugitive emissions (approximately 95 percent capture and control of fugitive emissions) and will also substantially reduce the estimated risks due to these emissions. Therefore, under section 112(f) of the CAA we are proposing this control option that is based on enhanced capture of fugitive emissions using primary hoods (that capture process fugitive emissions near the source) and secondary capture of fugitives (which would capture remaining fugitive emissions near the roof-line) and includes a tight opacity limit of 8 percent to ensure fugitives are effectively captured and controlled. We are proposing that the facilities in this source category must install and maintain a process fugitives capture system that is designed to capture and control 95 percent or more of the process fugitive emissions. This is the same exact control approach described in more detail under the technology review section of today's notice and the same control approach that we are proposing under section 112(d)(6) of the Act, as described below. We estimate that this control approach will achieve about 95 percent capture of process fugitive emissions and will achieve about 77 tpy reduction in HAP metals emissions and will substantially reduce risks due to process fugitive emissions. We conclude that achieving these reductions is the level of control needed to address the unacceptable risks due to HAP emissions from the source category.
The results of the post-control chronic inhalation cancer risk assessment indicate that the maximum individual lifetime cancer risk posed by these two facilities, after the implementation of the proposed controls, could be up to 10-in-1 million, reduced from 20-in-1 million (i.e., pre-controls), with an estimated reduction in cancer incidence to 0.001 excess cancer cases per year, reduced from 0.002 excess cancer cases per year. In addition, the number of people estimated to have a cancer risk greater than or equal to 1-in-1 million would be reduced from 31,000 to 6,600. The results of the post-control assessment also indicate that the maximum chronic noncancer inhalation TOSHI value would be reduced to 1, from the baseline estimate of 4. The number of people estimated to have a TOSHI greater than 1 would be reduced from 1,500 to 0. We also estimate that after the implementation of controls, the maximum worst-case acute HQ value would be reduced from 1 to less than 1 (based on REL values).
Considering post-control emissions of multipathway HAP, mercury emissions would be reduced by approximately 3 lbs/yr, lead would be reduced by about 1,600 lbs/yr, POM emissions would be reduced by approximately 5,200 lbs/yr, cadmium would be reduced by about 150 lbs/yr and dioxins and furans would be reduced by about 0.002 lbs/yr from the baseline emission rates.
Under the ample margin of safety analysis, we again consider all of the health factors evaluated in the acceptability determination and evaluate the cost and feasibility of available control technologies and other measures (including the controls, measures and costs reviewed under the technology review) that could be applied in this source category to further reduce the risks due to
We estimate that the actions proposed under CAA section 112(f)(2), as described above to address unacceptable risks, will reduce the MIR associated with arsenic, nickel, chromium and PAHs from 20-in-1 million to 10-in-1 million for actual emissions. The cancer incidence will be reduced from 0.002 to 0.001 cases per year and the number of people estimated to have cancer risks greater than 1-in-1 million will be reduced, from 31,000 people to 6,600 people. The chronic noncancer inhalation TOSHI will be reduced from 4 to 1 and the number of people exposed to a TOSHI level greater than 1 will be reduced from 1,500 people to 0. In addition, the potential multipathway impacts will be reduced.
Based on all of the above information, we conclude that the risks after implementation of the proposed controls are acceptable. Based on our research and analysis, we did not identify any cost-effective controls beyond those proposed above that would achieve further reduction in risk. While in theory the 2011 proposed approach of total enclosure would provide some additional risk reduction, the additional risk reduction is minimal and, as noted, we have substantial doubts that it would be feasible for these facilities. Therefore we conclude that the controls to achieve acceptable risks (described above) will also provide an ample margin of safety to protect public health.
As mentioned in the previous section, the available test data from the five furnaces located at two facilities indicate that all of these furnaces have PM emission levels that are well below their respective emission limits (the emission limits are based on size and product being produced in the furnace) in the 1999 MACT rule. These findings demonstrate that the add-on emission control technologies (venturi scrubber, positive pressure fabric filter, negative pressure fabric filter) used to control emissions from the furnaces are quite effective in reducing particulate matter (used as a surrogate for metal HAP) and that all of the facilities have emissions well below the current limits.
Under section 112(d)(6) of the Clean Air Act (CAA), we are required to revise emission standards, taking into account developments in practices, processes and control technologies. The particulate matter (PM) emissions, used as a surrogate for metal HAP, that were reported by the industry in response to the 2010 ICR were far below the level specified in the current NESHAP, indicating improvements in the control of PM emissions since promulgation of the current NESHAP. We re-evaluated the data received in 2010, along with additional data received in 2012 and 2013, to determine whether it is appropriate to propose revised emissions limits for PM from the furnace process vents. The re-evaluation of the PM limits was completed using available PM emissions test data from all the furnaces and consideration of variability across those data. More details regarding the available PM data and this re-evaluation are provided in the
Based on this analysis, we determined that it is appropriate to propose revised PM limits for the furnaces and that the revised existing source furnace stack PM emissions limit should be 25 milligrams per dry standard cubic meter (mg/dscm). Therefore, we are proposing a revised emissions limit of 25 mg/dscm for existing furnace stack PM emissions in this supplemental proposal. This emission limit is slightly higher than the existing source furnace PM emission limit of 24 mg/dscm that we proposed in the 2011 proposal. The revised emissions limit is based on more data than the previous proposed limit. No additional add-on controls are expected to be required by the facilities to meet the revised existing source limit of 25 mg/dscm. However, this revised limit would result in significantly lower “allowable” PM emissions from the source category compared to the level of emissions allowed by the 1999 MACT rule and would help prevent any emissions increases. To demonstrate compliance, we propose these sources would be required to conduct periodic performance testing and develop and operate according to a baghouse operating plan or continuously monitor venturi scrubber operating parameters. We also propose that furnace baghouses would be required to be equipped with bag leak detection systems (BLDS).
The revised new source PM standard for furnaces was determined by evaluating the available data from the best performing furnace (which was determined to be furnace #2 at Felman). The new source MACT limit was determined to be 4.0 mg/dscm based on data from furnace #2 and was selected as the proposed MACT emissions limit for PM from new and reconstructed source furnace stacks.
The PM emission limit for the local ventilation control device outlet was also re-evaluated using compliance test data and test data from the 2012 ICR. A local ventilation control device is used to capture tapping, casting, or ladle treatment emissions and direct them to a control device other than one associated with the furnace. The 2011 proposal included a proposed PM limit for the local ventilation control device that was based on PM data from the furnaces. After the 2011 proposal, we received test data from 3 different emissions tests (for a total of 9 test runs) specifically for this local ventilation source. We determined these data were more appropriate for the development of a limit for this source than the furnace data we had used for the 2011 proposal. There is currently only one local ventilation control device outlet emissions source in this source category.
Using the new data for the one existing local ventilation source, we calculated a revised emissions limit of 4.0 mg/dscm and determined that this was an appropriate emissions limit for this source. Therefore we are proposing this emissions limit of 4.0 mg/dscm for existing, new and reconstructed local ventilation control device emissions sources.
In the 2011 proposal, we concluded that a proposed requirement for sources to enclose the furnace building, collect fugitive emissions such that the furnace building is maintained under negative pressure and duct those emissions to a control device represented an advance in emissions control measures since the Ferroalloys Production NESHAP was originally promulgated in 1999. Commenters on the 2011 proposal disagreed with our assessment. Based on these comments, we reassessed the proposed requirement for negative pressure ventilation and determined that the installation and operation of the proposed system may not be feasible and would likely be very costly. For example, the recent secondary lead NESHAP requires use of such a system, but we recognize that a much smaller volume of air must be evacuated at secondary lead facilities because of their
Commenters also raised concerns about worker safety and comfort in designing and operating such systems based on historical examples. We believe that such issues can be overcome with proper ventilation design and installation of air conditioning systems and other steps to ensure these issues are not a problem. However, after further review and evaluation we conclude that it would be quite costly for these facilities to become fully enclosed with negative pressure and achieve the appropriate ventilation and conditioning of indoor air.
Going back to the original goal of identifying advances in emissions control measures since the Ferroalloys Production NESHAP was promulgated in 1999, we have arrived at a different conclusion than we described in the 2011 proposal. We re-evaluated the costs and operational feasibility associated with the full building enclosure with negative pressure that we proposed in 2011. We consulted with ventilation experts who have worked with hot process fugitives similar to those found in the ferroalloys industry (
We also evaluated another option based on enhanced capture of the process fugitive emissions using a combination of effective local capture with primary hooding close to the emissions sources and secondary capture of remaining fugitives with roof-line capture hoods and control devices. These buildings are currently designed such that fugitive emissions that are not captured by the primary hoods flow upward with a natural draft to the open roof vents and are vented to the atmosphere uncontrolled. Under our enhanced control scenario, the primary capture close to the emissions sources would be significantly improved with effective local hooding and ventilation and the remaining fugitive emissions (that are not captured by the primary hoods) would be drawn up to the roof-line and captured with secondary hooding and vented to control devices.
In cases where additional collection of fugitives from the roof monitors is needed to comply with building opacity limits, fume collection areas may be isolated via baffles (so the area above the furnace where fumes collect may be kept separated from “empty” spaces in large buildings) and roof monitors over fume collection areas can be sealed and directed to control devices. The fugitive emission capture system should achieve inflow at the building floor, but outflow toward the roof where most of the remaining fugitives would be captured by the secondary hooding. We conclude that a rigorous, systematic examination of the ventilation requirements throughout the building is the key to developing a fugitive emission capture system (consisting of primary hoods, secondary hoods, enclosures and/or building ventilation ducted to particulate matter control devices) that can be designed and operated to achieve very low levels of fugitive emissions. Such an evaluation considers worker health, safety and comfort and it is designed to optimize existing ventilation options (fan capacity and hood design) and add additional capture options to meet specified design criteria determined through the evaluation process. Thus, we conclude that an enhanced capture system based on these design principles does represent an advancement in technology. We estimate that this control scenario would capture about 95 percent of the process fugitive emissions and vent those emissions to PM control devices. This enhanced local capture option is described in more detail in the Revised Technology Review document and in the
Under this control option, the cost elements vary by plant and furnace and include the following:
• Curtains or doors surrounding furnace tops to contain fugitive emissions;
• Improvements to hoods collecting tapping emissions;
• Upgrade fans to improve the airflow of fabric filters controlling fugitive emissions;
• Addition of “secondary capture” or additional hoods to capture emissions from tapping platforms or crucibles;
• Addition of fugitives capture for casting operations;
• Improvement of existing control devices or addition of fabric filters; and
• Addition of rooftop ventilation, in which fugitive emissions escaping local capture are collected in the roof canopy over process areas through addition of partitions, hoods, and then directed through ducts to control devices.
We estimate the total capital costs of installing the required ductwork, fans and control devices under the enhanced capture option (which is described above and in more detail in the Cost Impacts document) to be $37.6 million and the total annualized cost to be $7.1 million for the two plants. We estimate that this option would reduce metal HAP emissions by 75 tons per year, resulting in a cost per ton of metal HAP removed to be $94,600 per ton ($47 per pound). The total estimated HAP reduction for the enhanced capture option is 77 tons per year at a cost per ton of $91,900 ($46 per pound). We also estimate that this option would achieve PM emission reductions of 229 tons per year, resulting in cost per ton of PM removed of $30,900 per ton and achieve PM
We also re-evaluated the option based on building ventilation as described in the 2011 proposal. This control option involves installation of full building ventilation at negative pressure for furnace buildings instead of installing fugitive controls on individual tapping and casting operations. This option would require installation of ductwork
We estimate that the full building enclosure option would reduce PM emissions from the facilities by 252 tons per year (and total HAP emissions by 83 tons per year). The total estimated capital cost for these fugitive controls is $61 million. Annualized capital cost and operational and maintenance costs are estimated at $19 million per year, which results in an estimated cost per ton of metal HAP removed of $226,000 per ton. We also estimate that this option would achieve PM emission reductions of 252 tons, resulting in cost per ton of PM removed of $74,200 per ton and achieve PM
Based on these analyses, we conclude that the full-building enclosure option with negative pressure may not be feasible and would have significant economic impacts on the facilities (including potential closure for one or more facilities). However, we conclude that the enhanced local capture option is a feasible and cost-effective approach to achieve significant reductions in fugitive HAP emissions and will achieve almost as much reductions as the full-building enclosure option (229 vs 252 tons PM reductions) thus achieving most of the risk reductions. In light of the technical feasibility and cost effectiveness of the enhanced capture options, we are proposing the enhanced capture option under the authority of section 112(d)(6) of the CAA.
In the 2011 proposal, we included a requirement that emissions exiting from a shop building may not exceed more than 10 percent opacity for more than one 6-minute period, to be demonstrated every 5 years as part of the periodic required performance tests. For day-to-day continuous monitoring to demonstrate compliance with the proposed shop building requirements, the 2011 proposal relied on achieving the requirement to maintain the shop building at negative pressure to at least 0.007 inches of water. This was to be supplemented by operation and work practice standards that required preparation of a process fugitive emissions ventilation plan for each shop building, which would include schematics with design parameters (
With the move to the proposed enhanced local capture alternative, we believe that more frequent opacity monitoring based on an average of 8 percent opacity at all times, is appropriate to demonstrate compliance with the process fugitives standards. We propose that if the average opacity reading from the shop building is greater than 8 percent opacity during an observed furnace process cycle, an additional two more furnace process cycles must be observed such that the average opacity during the entire observation period is less than 7 percent opacity. A furnace process cycle means the period in which the furnace is tapped to the time in which the furnace is tapped again and includes periods of charging, smelting, tapping, casting and ladle raking. We also propose that at no time during operation may any two consecutive 6-minute block opacity readings be greater than 20 percent opacity. We believe that the longer averaging time for this new opacity limit (furnace process cycle vs. individual 6-minute averages) addresses concerns that small variations in an otherwise well-controlled furnace cycle could result in violations of the opacity standard. The proposed 20 percent ceiling ensures that there are no acute events that could adversely affect public health. Finally, the lower limit (8 vs. 10 percent opacity) also reflects that sources should achieve lower overall emissions over a longer averaging period. We propose that sources be required to conduct opacity observations at least once per week for each operating furnace and each MOR operation. Similar to the 2011 proposal, continuous monitoring of key ventilation operating system parameters and periodic inspections of the ventilation systems would ensure that the ventilation systems are operating as designed.
Also, similar to the 2011 proposal, we believe that the source should demonstrate that the overall design of the ventilation system is adequate to achieve the proposed standards. We propose that the facilities in this source category must maintain a process fugitives capture system that is designed to collect 95 percent or more of the process fugitive emissions from furnace operations, casting MOR process, ladle raking and slag skimming and crushing and screening operations and convey the collected emissions to a control device that meets specified emission limits and the proposed opacity limits. We believe that if the source designs the plan according to the most recent (at the time of construction) ventilation design principles recommended by the American Conference of Governmental Industrial Hygienists (ACHIH), includes detailed schematics of the ventilation system design, addresses variables that affect capture efficiency such as cross drafts and describes protocol or design characteristics to minimize such events and identifies monitoring and maintenance steps, the plan will be capable of ensuring the system is properly designed and continues to operate as designed. We would continue to require that this plan be submitted to the permitting authority, incorporated into the source's operating permit and updated every 5 years or when there is a significant change in variables that affect process fugitive emissions ventilation design. This list of design criteria, coupled with the requirement for frequent opacity observations and operating parameter monitoring will result in enforceable requirements. We recognize that other design requirements and/or more frequent opacity observations may yield more compliance certainty, but incur greater costs and not result in measurable decreases in emissions. However, we request comment on other measures that could be considered to demonstrate that well designed (
In addition to the proposed actions described above, we re-evaluated compliance requirements associated with the 2011 proposed amendments to
In response to public comments, we revisited the format of the stack emission limits. We concluded that a concentration-based limit is still appropriate, but we agree that the proposed CO
As described above, we have decided to retain a concentration format for the emissions limits for the stacks but we are not retaining the emissions averaging provision in this supplemental proposal that we had proposed in 2011. We believe a concentration format is the best format for this NESHAP and we have concluded that it is not the best format to use under an emissions averaging option. We are concerned that emissions from a large furnace emitting a lower than average concentration could still emit more emissions than a small furnace with a higher than average concentration. This could result in a net increase in emissions from the two furnaces compared to their emissions if they were not allowed to average emissions. For this reason, we are proposing not to include the emissions averaging provisions in the rule, which is a change from the 2011 proposal.
In the 2011 proposal, we assumed there could be control measures other than maintaining the furnace buildings under negative pressure that would achieve equivalent emissions reductions. Therefore, to provide some flexibility to facilities regarding how to achieve the reductions of fugitive emissions, in lieu of building the full enclosure and evacuation system described in the 2011 proposal, we proposed that sources could demonstrate compliance with an alternative approach by conducting fenceline monitoring and demonstrate that the ambient concentrations of manganese at their facility boundary remain at levels no more than 0.1 μg/m
In the 2011 proposal, we proposed to eliminate two provisions that exempt sources from the requirement to comply with the otherwise applicable CAA section 112(d) emission standards during periods of SSM. We also included provisions for affirmative defense to civil penalties for violations of emission standards caused by malfunctions. Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. However, by contrast, malfunction is defined as a “sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment or a process to operate in a normal or usual manner . . .” (40 CFR 63.2). As explained in the 2011 proposal, the EPA interprets CAA section 112 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 112 standards. Under section 112, emissions standards for new sources must be no less stringent than the level “achieved” by the best controlled similar source and for existing sources generally must be no less stringent than the average emission limitation “achieved” by the best performing 12 percent of sources in the category. There is nothing in section 112 that directs the Agency to consider malfunctions in determining the level “achieved” by the best performing sources when setting emission standards. As the DC Circuit has recognized, the phrase “average emissions limitation achieved by the best performing 12 percent of” sources “says nothing about how the performance of the best units is to be calculated.”
Further, accounting for malfunctions in setting emission standards would be difficult, if not impossible, given the myriad different types of malfunctions that can occur across all sources in the category and given the difficulties associated with predicting or accounting for the frequency, degree and duration of various malfunctions that might occur. As such, the performance of units that are malfunctioning is not “reasonably” foreseeable. See,
In the event that a source fails to comply with the applicable CAA section 112 standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source's failure to comply with the CAA section 112 standard was, in fact, “sudden, infrequent, not reasonably preventable” and was not instead “caused in part by poor maintenance or careless operation.” 40 CFR § 63.2 (definition of malfunction).
Further, to the extent the EPA files an enforcement action against a source for violation of an emission standard, the source can raise any and all defenses in that enforcement action and the federal district court will determine what, if any, relief is appropriate. The same is true for citizen enforcement actions. Similarly, the presiding officer in an administrative proceeding can consider any defense raised and determine whether administrative penalties are appropriate.
As noted above, the 2011 proposal included an affirmative defense to civil penalties for violations caused by malfunctions. EPA included the affirmative defense in the 2011 proposal as it had in several prior rules in an effort to create a system that incorporates some flexibility, recognizing that there is a tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission standards may be violated under circumstances entirely beyond the control of the source. Although the EPA recognized that its case-by-case enforcement discretion provides sufficient flexibility in these circumstances, it included the affirmative defense in the 2011 proposal and in several prior rules to provide a more formalized approach and more regulatory clarity. See
The proposed changes to the 2011 proposal that are set out in this supplementary proposal will not change the compliance dates proposed. We continue to propose that facilities must comply with the changes set out in this supplementary proposal (which are being proposed under CAA sections 112(d)(2), 112(d)(3), 112(d)(6) and 112(f)(2) for all affected sources), no later than 2 years after the effective date of the final rule. We find that 2 years are necessary to complete the installation of the enhanced local capture system and other controls. In the period between the effective date of this rule and the compliance date, existing sources would continue to comply with the existing requirements specified in §§ 63.1650 through 63.1661, which will protect the health of persons from imminent endangerment.
We maintain, as at the 2011 proposal, that the two manganese ferroalloys production facilities currently operating in the United States will be affected by these proposed amendments. We do not know of any new facilities that are expected to be constructed in the foreseeable future. However, there is one other facility that has a permit to produce ferromanganese or silicomanganese in an electric arc furnace, but it is not doing so at present. It is possible, however, that this facility could resume production or another non-manganese ferroalloy producer
The EPA revised the estimated emissions reductions that are expected to result from the proposed amendments to the 1999 NESHAP based on the proposed changes in this supplemental proposal. A detailed documentation of the analysis can be found in the Cost Impacts document, which is available in the docket.
As noted in the 2011 proposal, emissions of metal HAP from ferroalloys production sources have declined in recent years, primarily as the result of state actions and also due to the industry's own initiative. The proposed amendments in this supplemental proposal would cut HAP emissions (primarily particulate metal HAP such as manganese, arsenic and nickel) by about 60 percent from their current levels. Under the revised proposed emissions standards for process fugitives emissions from the furnace building, we estimate that the HAP emissions reductions would be 77 tpy, including significant reductions of manganese.
As noted in the 2011 proposal, based on the emissions data available to the EPA, we believe that both facilities will be able to comply with the proposed emissions limits for HCl without additional controls. Based on the analyses presented today, we also anticipate that both facilities will be able to comply with the proposed emission limits for mercury and PAH without additional controls.
Under the revised proposed amendments, ferroalloys production facilities are expected to incur costs for the design of a local ventilation system, resulting in a site-specific local ventilation plan and installation of custom hoods and ventilation equipment and additional control devices to manage the air flows generated by the enhanced capture systems. There would also be capital costs associated with installing new or improved continuous monitoring systems, including installation of BLDS on the furnace baghouses that are not currently equipped with these systems.
The revised capital costs for each facility were estimated based on the projected number and types of upgrades required. The specific enhancements for each facility were selected for cost estimation based on estimates directly provided by the facilities based on their engineering analyses and discussions with the EPA. The Cost Impacts document includes a complete description of the revised cost estimate methods used for this analysis and is available in the docket.
Cost elements vary by plant and furnace and include the following elements:
• Curtains or doors surrounding furnace tops to contain fugitive emissions;
• Improvements to hoods collecting tapping emissions;
• Upgraded fans to improve the airflow of fabric filters controlling fugitive emissions;
• Addition of “secondary capture” or additional hoods to capture emissions from tapping platforms or crucibles;
• Addition of fugitives capture for casting operations;
• Improvement of existing control devices or addition of fabric filters; and
• Addition of rooftop ventilation, in which fugitive emissions escaping local control are collected in the roof canopy over process areas through addition of partitions and hoods, then directed through roof vents and ducts to control devices.
For purposes of the supplemental proposal analysis, we assumed that enhanced fugitive capture and control systems and roofline ventilation will be installed for all operational furnaces at both facilities and for MOR operations at Eramet Marietta. The specific elements of the capture and control systems selected for each facility are based on information supplied by the facilities incorporating their best estimates of the improvements to fugitive emission capture and control they would implement to achieve the standards included in the supplemental proposal. We estimate the total capital costs of installing the required ductwork, fans and control devices under the enhanced capture option to be $37.6 million and the total annualized cost to be $7.1 million (2012 dollars) for the two plants. We estimate that this option would reduce metal HAP emissions by 75 tons, resulting in a cost per ton of metal HAP removed to be $94,700 per ton ($47 per pound). The total HAP reduction for the enhanced capture option is estimated to be 77 tons per year at a cost per ton of $91,900 per ton ($46 per pound). We also estimate that this option would achieve PM emission reductions of 229 tons per year, resulting in cost per ton of PM removed of $30,900 per ton and achieve PM
As a result of the requirements in this supplemental proposal, we estimate that the total capital cost for the Eramet facility will be about $25 million and the total annualized costs will be about $5.4 million (in 2012 dollars). For impacts to Felman Production LLC, this facility is estimated to incur a total capital cost of $12.4 million and a total annualized costs of just under $1.7 million (in 2012 dollars). In total, these costs could lead to an increase in annualized cost of as much as 1.8 percent of sales, which serves as an estimate for the increase in product prices, and a decrease in output of as much as 9.5 percent. For more information regarding economic impacts, please refer to the
The estimated reductions in HAP emissions (
This rulemaking is not an “economically significant regulatory action” under Executive Order 12866 because it is not likely to have an annual effect on the economy of $100 million or more. Therefore, we have not conducted a Regulatory Impact Analysis (RIA) for this rulemaking or a benefits analysis. While we expect that these avoided emissions will result in improvements in air quality and reduce health effects associated with exposure to air pollution associated with these emissions, we have not quantified or monetized the benefits of reducing these emissions for this rulemaking. This does not imply that there are no benefits associated with these emission reductions. When determining if the benefits of an action exceed its costs, Executive Orders 12866 and 13563 direct the Agency to consider qualitative benefits that are difficult to quantity but nevertheless essential to consider.
Directly emitted particles are precursors to secondary formation of fine particles (PM
The rulemaking is also anticipated to reduce emissions of other HAP, including metal HAP (arsenic, cadmium, chromium (both total and Cr
We solicit comments on the revised risk assessment and technology review and proposed changes to the previously proposed amendments. We seek comments on the additional data received in August 2014 (as described in Section II.D above) and the impacts of those new data on the analyses and results presented in this notice. We seek comments on the sufficiency of the proposed controls for process fugitive emissions, the design of such systems and how best to monitor them to ensure the systems achieve the estimated efficiency. We also seek comments on other aspects of this supplemental proposal, including, but not limited to, the proposed opacity standards.
The EPA is also soliciting comment with regard to expanding the monitoring requirements in this NESHAP for fugitive particulate matter and manganese emissions being released at the roof vents of furnace buildings using one or more of three different options. For the following three options the EPA is additionally seeking comment on the frequency of monitoring and the cost associated with installation, operation, analysis and ongoing reporting. Additional cost information of these three monitoring options is included in the Cost Impacts document, which is available in the docket.
First, the EPA is soliciting comment on the potential to require the facilities to take periodic measurements of fugitive particulate matter and manganese emissions from the roof vents using portable filter based measurement technologies. The EPA solicits comment on requiring no less than 3 filter based monitoring systems with associated anemometers with the goal of quantifying trends in the process fugitive emissions that are leaving the furnace buildings. We also solicit comment on the appropriate sampling duration and frequency of such measurements (e.g., 8-hour samples gathered at each monitor several times per week or month). This monitoring could provide useful information regarding the remaining fugitive emissions that will be escaping the buildings after the facilities install and operate the improved capture and controls systems that we expect will be installed to comply with this proposed rule. This information will also help improve our understanding of the relationship between the process fugitive emissions and the specific operations within the furnace buildings. However, the measurements would not be tied to a specific emissions limit.
Second, the EPA is soliciting comment on requiring fugitive fenceline filter based measurements of particulate matter and manganese emissions at the facilities with no less than 3 monitoring systems at the property boundaries to monitor trends in ambient concentrations at these locations and to use this information (along with meteorological data and modeling tools) to attempt to quantify trends in emissions that are leaving and entering the facility property. The EPA seeks comment on having the monitoring systems use common ambient filter based sampling techniques as well as gathering data on meteorological conditions simultaneously at each of the sampling sites. The EPA recognizes that this monitoring would be capturing both ground level and other fugitive emissions from the facilities as well as background contributions from other sources, and that this type of monitoring has limitations. Nevertheless, EPA is taking comment on the application and appropriateness of this type of monitoring as part of the requirements within this NESHAP to evaluate emissions leaving the facility property and is taking comment on where to position the monitoring systems to best evaluate the fugitive emissions.
Third, the EPA is soliciting comment regarding the use of new technologies to provide continuous or near continuous long term approaches to monitoring emissions from industrial sources such the Ferroalloys production facilities within this source category. To this end we are seeking comment on the feasibility and practice associated with the use of automated Opacity Monitoring with ASTM D7520–13, using digital camera technology (DCOT) at fixed points to interpret visible emissions from roof vents associated with the processes at each facility, and how this technology could potentially be included as part of the requirements in the NESHAP for ferroalloys production sources. Specifically we are interested in comments regarding how many fixed camera locations would be needed to provide sufficient sun-angle viewing during daylight operating hours, and the frequency of the EXIF 2.1 JPG image analysis (how often the roof vent plume should be evaluated).
The EPA is moving toward advances in information and emissions monitoring technology that is setting the stage for detection, processing and communication capabilities that can revolutionize environmental protection. The EPA calls this Next Generation Compliance. One of the advances in information sharing is increased transparency. Using transparency as a way to improve performance and increase compliance, the EPA is seeking comments on whether affected sources should be required to post Method 9 readings on their company Web sites and/or State dashboards.
Electronic reporting is another next generation tool that saves time and money while improving results. The EPA is asking for comments on whether the EPA should require affected sources to submit all compliance documents such as notice of compliance status form, deviations from the process fugitive ventilation plan and outdoor fugitive dust plan, and electronic records of the bag leak detection system output.
We are not opening comment on aspects of the 2011 proposal (76 FR 72508) that have not changed and are not addressed in this supplemental proposal. Comments received on the 2011 proposal along with comments received on this supplemental proposal will be addressed in the EPA's Response to Comment document and final rule preamble for the Ferroalloys Production source category.
The site-specific emissions profiles used in the source category risk and demographic analyses and instructions are available for download on the RTR Web page at:
If you believe that the data are not representative or are inaccurate, please identify the data in question, provide your reason for concern and provide any “improved” data that you have, if available. When you submit data, we request that you provide documentation of the basis for the revised values to support your suggested changes. To submit comments on the data downloaded from the RTR page, complete the following steps:
1. Within this downloaded file, enter suggested revisions to the data fields appropriate for that information.
2. Fill in the commenter information fields for each suggested revision (
3. Gather documentation for any suggested emissions revisions (
4. Send the entire downloaded file with suggested revisions in Microsoft® Access format and all accompanying documentation to Docket ID Number EPA–HQ–OAR–*** (through one of the methods described in the
5. If you are providing comments on a single facility or multiple facilities, you need only submit one file for all facilities. The file should contain all suggested changes for all sources at that facility. We request that all data revision comments be submitted in the form of updated Microsoft® Excel files that are generated by the Microsoft® Access file. These files are provided on the RTR Web page at:
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a significant regulatory action because it raises novel legal and policy issues. Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
The information collection requirements in this supplemental proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the
We are proposing changes to the paperwork requirements to the ferroalloys production source category that were proposed in 2011. In the 2011 proposal, we proposed paperwork requirements in the form of increased frequency and number of pollutants tested for stack testing as described in § 63.1625(c) and tighter parameter monitoring requirements to demonstrate continuous compliance as described in § 63.1625(c)(4) and § 63.1626. We are not proposing changes to these requirements. However, in this supplemental proposal we are proposing more frequent opacity monitoring requirements compared to the 2011 proposal and are removing the shop building process fugitives monitoring requirements (to demonstrate negative pressure) that we proposed in 2011.
In addition, in the 2011 proposal, we included an estimate of the burden associated with the affirmative defense in the ICR. However, as explained above, in this supplemental proposal we are withdrawing our proposal to include an affirmative defense and the burden estimate has been revised accordingly.
We estimate two regulated entities are currently subject to subpart XXX and will be subject to this action. The annual monitoring, reporting and recordkeeping burden for this collection (averaged over the first 3 years after the effective date of the standards) as a result of the supplemental proposal revised amendments to subpart XXX (Ferroalloys Production) is estimated to be $643,845 per year. This includes 496 labor hours per year at a total labor cost of $44,366 per year and total non-labor capital and operation and maintenance costs, of $599,479 per year. This estimate includes performance tests, notifications, reporting and recordkeeping associated with the new requirements for ferroalloys production operations. The total burden for the federal government (averaged over the first 3 years after the effective date of the standard) is estimated to be 48 hours per year at a total labor cost of $2,177 per year. Burden is defined at 5 CFR 1320.3(b).
An agency may not conduct or sponsor and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden, the EPA has established a public docket for this rule, which includes this ICR, under Docket ID number Docket ID Number EPA–HQ–OAR–2010–0895. Submit any comments related to the ICR to the EPA and OMB. See
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act, or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.
For purposes of assessing the impacts of this final rule on small entities, small entity is defined as: (1) a small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. For this source category, which has the NAICS code 331110 (
After considering the economic impacts of today's action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Neither of the companies affected by this rule is considered to be a small entity per the definition provided in this section.
This action does not contain a federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for state, local, or tribal governments, or the private sector. The action would not result in expenditures of $100 million or more for state, local and tribal governments, in aggregate, or the private sector in any 1 year. This final action imposes no enforceable duties on any state, local, or tribal governments, or the private sector. Thus, this action is not subject to the requirements of sections 202 or 205 of the UMRA.
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments as it contains no requirements that apply to such governments nor does it impose obligations upon them.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. None of the facilities subject to this action are owned or operated by state governments and, because no new requirements are being promulgated, nothing in this action will supersede state regulations. Thus, Executive Order 13132 does not apply to this action.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply to this action. The EPA specifically solicited comment on this action from tribal officials in the 2011 proposal and none were received during the comment period for that proposal.
This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because the Agency does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children. The report,
This rule is expected to reduce environmental impacts for everyone, including children. This action establishes emissions limits at the levels based on MACT, as required by the CAA. Based on our analysis, we believe that this rule does not have a disproportionate impact on children.
This action is not a “significant energy action” as defined under Executive Order 13211, because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This action will not create any new requirements that affect the energy supply, distribution or use sectors.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, 12(d) (15 U.S.C. 272 note) directs the 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 (
This supplemental proposal involves technical standards. The EPA has decided to use EPA Methods 1, 2, 3A, 3B, 4, 5, 5D, 9, 10, 26A, 29, 30B, 316, CARB 429, SW–846 Method 3052, SW–846 Method 7471b and EPA water Method 1631E of 40 CFR Part 60, Appendix A. No applicable VCS were identified for EPA Methods 30B, 5D, 316, 1631E and CARB 429, SW–846 Method 3052 and SW–846 Method 7471b.
Two VCS were identified acceptable alternatives to the EPA test methods for the purposes of this rule. The VCS standard ANSI/ASME PTC 19–10–1981—Part 10, “Flue and Exhaust Gas Analyses” is an acceptable alternative to Method 3B. The VCS ASTM D7520–09, “Standard Test Method for Determining the Opacity of a Plume in the Outdoor
Under §§ 63.7(f) and 63.8(f) of Subpart A of the General Provisions, a source may apply to the EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures in the proposed rule.
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.
The EPA has determined that the current health risks posed by emissions from this source category are unacceptable. There are up to 31,000 people nationwide that are currently subject to health risks which may not be considered negligible (
Air pollution control, Environmental protection, Hazardous substances, Incorporation by reference, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, part 63 of title 40, chapter I, of the Code of Federal Regulations is proposed to be amended as follows:
42 U.S.C. 7401, et seq.
(b) * * *
(84) ASTM D7520–09, “Standard Test Method for Determining the Opacity in a Plume in an Outdoor Ambient Atmosphere,” IBR approved for §§ 63.1625(b) and 63.1657(b).
(i) * * *
(1) ANSI/ASME PTC 19.10–1981, Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus], issued August 31, 1981 IBR approved for §§ 63.309(k), 63. 772(e), 63.772(h), 63.865(b), 63.1282(d) and (g), 63.1625(b), 63.3166(a), 63.3360(e), 63.3545(a), 63.3555(a), 63.4166(a), 63.4362(a), 63.4766(a), 63.4965(a), 63.5160(d), 63.9307(c), 63.9323(a), 63.11148(e), 63.11155(e), 63.11162(f), 63.11163(g), 63.11410(j), 63.11551(a), 63.11646(a), 63.11945, table 5 to subpart DDDDD of this part, table 4 to subpart JJJJJ of this part, Table 5 of subpart UUUUU of this part and table 1 to subpart ZZZZZ of this part.
(p) * * *
(6) SW–846–7471B, Mercury in Solid Or Semisolid Waste (Manual Cold-Vapor Technique), Revision 2, February 2007, in EPA Publication No. SW–846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for § 63.1625(b), table 6 to subpart DDDDD of this part and table 5 to subpart JJJJJJ of this part.
(21) SW–846–Method 3052, Microwave Assisted Acid Digestion Of Siliceous and Organically Based Matrices, Revision 0, December 1996, in EPA Publication No. SW–846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for § 63.1625(b).
(22) Method 1631, Revision E: Mercury in Water by Oxidation, Purge and Trap and Cold Vapor Atomic Fluorescence Spectrometry, August 2002 located at:
(s) The following material is available from the California Air Resources Board (CARB), 1102 Q Street, Sacramento, California 95814, (
(1) Method 429, Determination of Polycyclic Aromatic Hydrocarbon (PAH) Emissions from Stationary Sources, Adopted September 1989, Amended July 1997, IBR approved for § 63.1625(b).
(2) [Reserved]
(a) You are subject to this subpart if you own or operate a new or existing ferromanganese and/or silicomanganese production facility that is a major source or is co-located at a major source of hazardous air pollutant emissions.
(b) You are subject to this subpart if you own or operate any of the following equipment as part of a ferromanganese or silicomanganese production facility:
(1) Open, semi-sealed, or sealed submerged arc furnace,
(2) Casting operations,
(3) Metal oxygen refining (MOR) process,
(4) Crushing and screening operations,
(5) Outdoor fugitive dust sources.
(c) A new affected source is any of the sources listed in paragraph (b) of this section for which construction or reconstruction commenced after [DATE OF FINAL RULE PUBLICATION IN THE FEDERAL REGISTER].
(d) Table 1 of this subpart specifies the provisions of subpart A of this part that apply to owners and operators of ferromanganese and silicomanganese production facilities subject to this subpart.
(e) If you are subject to the provisions of this subpart, you are also subject to title V permitting requirements under 40 CFR parts 70 or 71, as applicable.
(f) Emission standards in this subpart apply at all times.
(a) Existing affected sources must be in compliance with the provisions specified in §§ 63.1620 through 63.1629 no later than [DATE 2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
(b) Affected sources in existence prior to [DATE OF FINAL RULE PUBLICATION IN THE FEDERAL REGISTER] must be in compliance with the provisions specified in §§ 63.1650 through 63.1661 by November 21, 2001 and until [DATE 2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE]. As of [DATE 2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE], the provisions of §§ 63.1650 through 63.1661 cease to apply to affected sources in existence prior to [DATE OF FINAL RULE PUBLICATION IN THE FEDERAL REGISTER]. The provisions of §§ 63.1650 through 63.1661 remain enforceable at a source for its activities prior to [DATE 2 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
(c) If you own or operate a new affected source that commences construction or reconstruction after [DATE OF FINAL RULE PUBLICATION IN THE FEDERAL REGISTER], you must comply with the requirements of this subpart by [DATE OF EFFECTIVE DATE OF FINAL RULE], or upon startup of operations, whichever is later.
Terms in this subpart are defined in the Clean Air Act (Act), in subpart A of this part, or in this section as follows:
(a)
(1)
(ii) You must not discharge exhaust gases from each electric arc furnace operation containing particulate matter in excess of 25 mg/dscm into the atmosphere from any existing electric arc furnace.
(2)
(ii) You must not discharge exhaust gases from each electric arc furnace operation containing mercury emissions in excess of 170 µg/dscm into the atmosphere from any existing electric arc furnace when producing ferromanganese.
(iii) You must not discharge exhaust gases from each electric arc furnace operation containing mercury emissions in excess of 4.0 µg/dscm into the atmosphere from any new or reconstructed electric arc furnace when producing silicomanganese.
(iv) You must not discharge exhaust gases from each electric arc furnace operation containing mercury emissions in excess of 12 µg/dscm into the atmosphere from any existing electric arc furnace when producing silicomanganese.
(3)
(ii) You must not discharge exhaust gases from each electric arc furnace operation containing polycyclic aromatic hydrocarbon emissions in excess of 880 µg/dscm into the atmosphere from any new or reconstructed electric arc furnace when producing ferromanganese.
(iii) You must not discharge exhaust gases from each electric arc furnace operation containing polycyclic aromatic hydrocarbon emissions in excess of 120 µg/dscm into the atmosphere from any existing electric arc furnace when producing silicomanganese.
(iv) You must not discharge exhaust gases from each electric arc furnace operation containing polycyclic aromatic hydrocarbon emissions in excess of 72 µg/dscm into the atmosphere from any new or reconstructed electric arc furnace when producing silicomanganese.
(4)
(ii) You must not discharge exhaust gases from each electric arc furnace operation containing hydrochloric acid emissions in excess of 1,100 µg/dscm into the atmosphere from any existing electric arc furnace.
(5)
(b)
(2) The determination of 95-percent overall capture must be demonstrated as required by § 63.1624(a).
(3) You must not cause the emissions exiting from a shop building, to exceed an average of 8 percent opacity.
(i) The opacity readings from the shop building must be taken every 15 seconds during the observed furnace process cycle and the 15 second readings averaged to determine if the 8 percent opacity requirement has been met.
(ii) If the average opacity reading from the shop building is greater than 8 percent opacity during an observed furnace process cycle, an additional two more furnace process cycles must be observed within 7 days and the average opacity during the entire observation periods must be less than 8 percent opacity.
(iii) At no time during operation may the average of any two consecutive 6-minute blocks be greater than 20 percent opacity.
(c)
(d)
(e)
(f) At all times, you must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. Determination of whether such operation and maintenance procedures are being used will be based on information available to the Administrator that may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records and inspection of the source.
(a)
(i) Documentation of engineered hoods and secondary fugitive capture systems designed according to the most recent, at the time of construction, ventilation design principles recommended by the American Conference of Governmental Industrial Hygienists (ACGIH). The process fugitive emissions capture systems must be designed to achieve sufficient air changes to evacuate the collection area frequently enough to ensure process fugitive emissions are effectively collected by the ventilation system and ducted to the control device(s). Include a schematic for each building indicating duct sizes and locations, hood sizes and locations, control device types, size and locations and exhaust locations. The design plan must address variables that affect capture efficiency such as operations that create cross-drafts and describe protocol or design characteristics to minimize such events. The design plan must identify the key operating parameters and measurement locations to ensure proper operation of the system and establish monitoring parameter values that reflect effective capture.
(ii) List of critical maintenance actions and the schedule to conduct them.
(2) You must submit a copy of the process fugitive emissions ventilation
(3) You must update the information required in paragraph (a)(1) and (a)(2) of this section every 5 years or whenever there is a significant change in variables that affect process fugitives ventilation design such as the addition of a new process.
(b)
(2) You must submit a copy of the outdoor fugitive dust control plan to the designated permitting authority on or before the applicable compliance date for the affected source as specified in § 63.1621. The requirement for you to operate the facility according to a written outdoor fugitive dust control plan must be incorporated in the operating permit for the facility that is issued by the designated permitting authority under part 70 of this chapter.
(3) You are permitted to use existing manuals that describe the measures in place to control outdoor fugitive dust sources required as part of a state implementation plan or other federally enforceable requirement for particulate matter to satisfy the requirements of paragraph (b)(1) of this section.
(a)
(2) Each performance test in paragraphs (c)(1) and (c)(2) must consist of three separate and complete runs using the applicable test methods.
(3) Each run must be conducted under conditions that are representative of normal process operations.
(4) Performance tests conducted on air pollution control devices serving electric arc furnaces must be conducted such that at least one tapping period, or at least 20 minutes of a tapping period, whichever is less, is included in at least two of the three runs. The sampling time for each run must be at least as long as three times the average tapping period of the tested furnace, but no less than 60 minutes.
(5) You must conduct the performance tests specified in paragraph (c) of this section under such conditions as the Administrator specifies based on representative performance of the affected source for the period being tested. Upon request, you must make available to the Administrator such records as may be necessary to determine the conditions of performance tests.
(b) Test methods. The following test methods in appendices of part 60 or 63 of this chapter or as specified elsewhere must be used to determine compliance with the emission standards.
(1) Method 1 of Appendix A–1 of 40 CFR part 60 to select the sampling port location and the number of traverse points.
(2) Method 2 of Appendix A–1 of 40 CFR part 60 to determine the volumetric flow rate of the stack gas.
(3)(i) Method 3A or 3B of Appendix A–2 of 40 CFR part 60 (with integrated bag sampling) to determine the outlet stack and inlet oxygen and CO
(ii) You must measure CO
(iii) As an alternative to EPA Reference Method 3B, ASME PTC–19–10–1981–Part 10, “Flue and Exhaust Gas Analyses” may be used (incorporated by reference, see 40 CFR 63.14).
(4) Method 4 of Appendix A–3 of 40 CFR part 60 to determine the moisture content of the stack gas.
(5)(i) Method 5 of Appendix A–3 of 40 CFR part 60 to determine the particulate matter concentration of the stack gas for negative pressure baghouses and positive pressure baghouses with stacks.
(ii) Method 5D of Appendix A–3 of 40 CFR part 60 to determine particulate matter concentration and volumetric flow rate of the stack gas for positive pressure baghouses without stacks.
(iii) The sample volume for each run must be a minimum of 4.0 cubic meters (141.2 cubic feet). For Method 5 testing only, you may choose to collect less than 4.0 cubic meters per run provided that the filterable mass collected (
(6) Method 30B of Appendix A–8 of 40 CFR part 60 to measure mercury. Apply the minimum sample volume determination procedures as per the method.
(7)(i) Method 26A of Appendix A–8 of 40 CFR part 60 to determine outlet stack or inlet hydrochloric acid concentration.
(ii) Collect a minimum volume of 2 cubic meters.
(8)(i) Method 316 of Appendix A of 40 CFR part 63 to determine outlet stack or inlet formaldehyde.
(ii) Collect a minimum volume of 1.0 cubic meter.
(9) Method 9 of Appendix A–4 of 40 CFR part 60 to determine opacity. ASTM D7520–09, “Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere” may be used (incorporated by reference, see 40 CFR 63.14) with the following conditions:
(i) During the digital camera opacity technique (DCOT) certification procedure outlined in Section 9.2 of ASTM D7520–09, you or the DCOT vendor must present the plumes in front of various backgrounds of color and contrast representing conditions anticipated during field use such as blue sky, trees and mixed backgrounds (clouds and/or a sparse tree stand).
(ii) You must also have standard operating procedures in place including daily or other frequency quality checks to ensure the equipment is within manufacturing specifications as outlined in Section 8.1 of ASTM D7520–09.
(iii) You must follow the recordkeeping procedures outlined in § 63.10(b)(1) for the DCOT certification, compliance report, data sheets and all raw unaltered JPEGs used for opacity and certification determination.
(iv) You or the DCOT vendor must have a minimum of four (4) independent technology users apply the software to determine the visible opacity of the 300 certification plumes. For each set of 25 plumes, the user may not exceed 20 percent opacity of any one reading and the average error must not exceed 7.5 percent opacity.
(v) Use of this approved alternative does not provide or imply a certification or validation of any vendor's hardware or software. The onus to maintain and verify the certification and/or training of the DCOT camera, software and operator in accordance with ASTM D7520–09 and these requirements is on the
(10) Methods to determine the mercury content of manganese ore including a total metals digestion technique, SW–846 Method 3052 and a mercury specific analysis method, SW–846 Method 7471b (Cold Vapor AA) or Water Method 1631E (Cold Vapor Atomic Fluorescence).
(11) California Air Resources Board (CARB) Method 429, Determination of Polycyclic Aromatic Hydrocarbon (PAH) Emissions from Stationary Sources to determine total PAH emissions. The method is available from California Resources Board, 1102 Q Street, Sacramento, California 95814, (
(12) The owner or operator may use alternative measurement methods approved by the Administrator following the procedures described in § 63.7(f) of subpart A.
(c)
(1)
(2)
(ii) You must conduct particulate matter tests every five years for fabric filter air pollution control devices subject to § 63.1623(a)(1) to demonstrate compliance with the applicable emission standards.
(iii) You must conduct annual mercury performance tests for wet scrubber and fabric filter air pollution control devices or vent stacks subject to § 63.1623 (a)(2) to demonstrate compliance with the applicable emission standards.
(iv) You must conduct ongoing performance tests every five years for air pollution control devices or vent stacks subject to § 63.1623(a)(3) through (a)(5), (b)(1) and (c) through (e) to demonstrate compliance with the applicable emission standards.
(3) Compliance is demonstrated for all sources performing emissions tests if the average concentration for the three runs comprising the performance test does not exceed the standard.
(4)
(i) For a wet particulate matter scrubber, you must establish the minimum liquid flow rate and pressure drop as your operating limits during the three-run performance test. If you use a wet particulate matter scrubber and you conduct separate performance tests for particulate matter, you must establish one set of minimum liquid flow rate and pressure drop operating limits. If you conduct multiple performance tests, you must set the minimum liquid flow rate and pressure drop operating limits at the highest minimum hourly average values established during the performance tests.
(ii) For a wet acid gas scrubber, you must establish the minimum liquid flow rate and pH, as your operating limits during the three-run performance test. If you use a wet acid gas scrubber and you conduct separate performance tests for hydrochloric acid, you must establish one set of minimum liquid flow rate and pH operating limits. If you conduct multiple performance tests, you must set the minimum liquid flow rate and pH operating limits at the highest minimum hourly average values established during the performance tests.
(iii) For emission sources with fabric filters that choose to demonstrate continuous compliance through bag leak detection systems you must install a bag leak detection system according to the requirements in § 63.1626(d) and you must set your operating limit such that the sum duration of bag leak detection system alarms does not exceed 5 percent of the process operating time during a 6-month period.
(iv) If you choose to demonstrate continuous compliance through a particulate matter CEMS, you must determine an operating limit (particulate matter concentration in mg/dscm) during performance testing for initial particulate matter compliance. The operating limit will be the average of the PM filterable results of the three Method 5 or Method 5D of Appendix A–3 of 40 CFR part 60 performance test runs. To determine continuous compliance, the hourly average PM concentrations will be averaged on a rolling 30 operating day basis. Each 30 operating day average would have to meet the PM operating limit.
(d)
(ii) You must conduct the opacity observations according to EPA Method 9 of 40 CFR part 60, Appendix A–4, for a period that includes at least one complete furnace process cycle for each furnace.
(iii) You must conduct the opacity observations at least once per week for each operating furnace.
(2) You must determine shop building opacity operating parameters based on either monitoring data collected during the compliance demonstration or established in an engineering assessment.
(i) If you choose to establish parameters based on the initial compliance demonstration, you must simultaneously monitor parameter values for one of the following: the capture system fan motor amperes and all capture system damper positions, the total volumetric flow rate to the air pollution control device and all capture system damper positions, or volumetric flow rate through each separately ducted hood that comprises the capture system. Subsequently you must monitor these parameters according to § 63.1626(h) and ensure they remain within 10 percent of the value recorded during the compliant opacity readings.
(ii) If you choose to establish parameters based on an engineering assessment, then a design analysis shall include, for example, specifications, drawings, schematics and ventilation system diagrams prepared by the owner or operator or capture or control system manufacturer or vendor that describes the shop building opacity system ventilation design based on acceptable engineering texts. The design analysis shall address vent stream characteristics and ventilation system design operating parameters such as fan amps, damper position, flow rate and/or other specified parameters.
(iii) You may petition the Administrator to reestablish these parameter ranges whenever you can demonstrate to the Administrator's satisfaction that the electric arc furnace operating conditions upon which the parameter ranges were previously established are no longer applicable. The values of these parameter ranges determined during the most recent demonstration of compliance must be maintained at the appropriate level for each applicable period.
(3) You will demonstrate continuing compliance with the opacity standards by following the monitoring requirements specified in § 63.1626(g) and the reporting and recordkeeping
(e)
(2)
(3)
(a)
(b) You must submit the standard operating procedures manual for baghouses required by paragraph (a) of this section to the Administrator or delegated authority for review and approval.
(c) Unless the baghouse is equipped with a bag leak detection system, the procedures that you specify in the standard operating procedures manual for inspections and routine maintenance must, at a minimum, include the requirements of paragraphs (c)(1) and (c)(2) of this section.
(1) You must observe the baghouse outlet on a daily basis for the presence of any visible emissions.
(2) In addition to the daily visible emissions observation, you must conduct the following activities:
(i) Weekly confirmation that dust is being removed from hoppers through visual inspection, or equivalent means of ensuring the proper functioning of removal mechanisms.
(ii) Daily check of compressed air supply for pulse-jet baghouses.
(iii) An appropriate methodology for monitoring cleaning cycles to ensure proper operation.
(iv) Monthly check of bag cleaning mechanisms for proper functioning through visual inspection or equivalent means.
(v) Quarterly visual check of bag tension on reverse air and shaker-type baghouses to ensure that the bags are not kinked (kneed or bent) or lying on their sides. Such checks are not required for shaker-type baghouses using self-tensioning (spring loaded) devices.
(vi) Quarterly confirmation of the physical integrity of the baghouse structure through visual inspection of the baghouse interior for air leaks.
(vii) Semiannual inspection of fans for wear, material buildup and corrosion through visual inspection, vibration detectors, or equivalent means.
(d)
(2) The procedures you specified in the standard operating procedures manual for baghouse maintenance must include, at a minimum, a preventative maintenance schedule that is consistent with the baghouse manufacturer's instructions for routine and long-term maintenance.
(3) Each bag leak detection system must meet the specifications and requirements in paragraphs (d)(3)(i) through (d)(3)(viii) of this section.
(i) The bag leak detection system must be certified by the manufacturer to be capable of detecting PM emissions at concentrations of 1.0 milligram per dry standard cubic meter (0.00044 grains per actual cubic foot) or less.
(ii) The bag leak detection system sensor must provide output of relative PM loadings.
(iii) The bag leak detection system must be equipped with an alarm system that will alarm when an increase in relative particulate loadings is detected over a preset level.
(iv) You must install and operate the bag leak detection system in a manner consistent with the guidance provided in “Office of Air Quality Planning and Standards (OAQPS) Fabric Filter Bag Leak Detection Guidance” EPA–454/R–98–015, September 1997 (incorporated by reference) and the manufacturer's written specifications and recommendations for installation, operation and adjustment of the system.
(v) The initial adjustment of the system must, at a minimum, consist of establishing the baseline output by adjusting the sensitivity (range) and the averaging period of the device and establishing the alarm set points and the alarm delay time.
(vi) Following initial adjustment, you must not adjust the sensitivity or range, averaging period, alarm set points, or alarm delay time, except as detailed in the approved standard operating procedures manual required under paragraph (a) of this section. You cannot increase the sensitivity by more than 100 percent or decrease the sensitivity by more than 50 percent over a 365-day period unless such adjustment follows a complete baghouse inspection that demonstrates that the baghouse is in good operating condition.
(vii) You must install the bag leak detector downstream of the baghouse.
(viii) Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.
(4) You must include in the standard operating procedures manual required by paragraph (a) of this section a corrective action plan that specifies the procedures to be followed in the case of a bag leak detection system alarm. The corrective action plan must include, at a minimum, the procedures that you will use to determine and record the time and cause of the alarm as well as the corrective actions taken to minimize emissions as specified in paragraphs (d)(4)(i) and (d)(4)(ii) of this section.
(i) The procedures used to determine the cause of the alarm must be initiated within 30 minutes of the alarm.
(ii) The cause of the alarm must be alleviated by taking the necessary corrective action(s) that may include, but not be limited to, those listed in paragraphs (d)(4)(i)(A) through (d)(4)(i)(F) of this section.
(A) Inspecting the baghouse for air leaks, torn or broken filter elements, or any other malfunction that may cause an increase in emissions.
(B) Sealing off defective bags or filter media.
(C) Replacing defective bags or filter media, or otherwise repairing the control device.
(D) Sealing off a defective baghouse compartment.
(E) Cleaning the bag leak detection system probe, or otherwise repairing the bag leak detection system.
(F) Shutting down the process producing the particulate emissions.
(e) If you use a wet particulate matter scrubber, you must collect the pressure drop and liquid flow rate monitoring system data according to § 63.1628, reduce the data to 24-hour block averages and maintain the 24-hour average pressure drop and liquid flow-rate at or above the operating limits established during the performance test according to § 63.1625(c)(4)(i).
(f) If you use curtains or partitions to prevent process fugitive emissions from escaping the area around the process fugitive emission source or other parts of the building, you must perform quarterly inspections of the physical condition of these curtains or partitions to determine if there are any tears or openings.
(g)
(1) If you choose to establish operating parameters during the compliance test as specified in § 63.1625(d)(2)(i), you must meet one of the following requirements.
(i) Check and record the control system fan motor amperes and capture system damper positions once per shift.
(ii) Install, calibrate and maintain a monitoring device that continuously records the volumetric flow rate through each separately ducted hood.
(iii) Install, calibrate and maintain a monitoring device that continuously records the volumetric flow rate at the inlet of the air pollution control device and check and record the capture system damper positions once per shift.
(2) If you choose to establish operating parameters during the compliance test as specified in § 63.1625(d)(2)(ii), you must monitor the selected parameter(s) on a frequency specified in the assessment and according to a method specified in the engineering assessment
(3) All flow rate monitoring devices must meet the following requirements:
(i) Be installed in an appropriate location in the exhaust duct such that reproducible flow rate monitoring will result.
(ii) Have an accuracy ±10 percent over its normal operating range and be calibrated according to the manufacturer's instructions.
(4) The Administrator may require you to demonstrate the accuracy of the monitoring device(s) relative to Methods 1 and 2 of Appendix A–1 of part 60 of this chapter.
(5) Failure to maintain the appropriate capture system parameters (e.g., fan motor amperes, flow rate and/or damper positions) establishes the need to initiate corrective action as soon as practicable after the monitoring excursion in order to minimize excess emissions.
(h)
(i)
(1) The performance criteria and design specifications for the monitoring system equipment, including the sample interface, detector signal analyzer and data acquisition and calculations;
(2) Sampling interface location such that the monitoring system will provide representative measurements;
(3) Equipment performance checks, system accuracy audits, or other audit procedures;
(4) Ongoing operation and maintenance procedures in accordance with the general requirements of § 63.8(c)(1) and (c)(3);
(5) Conditions that define a continuous monitoring system that is out of control consistent with § 63.8(c)(7)(i) and for responding to out of control periods consistent with § 63.8(c)(7)(ii) and (c)(8) or Appendix A to this subpart, as applicable; and
(6) Ongoing recordkeeping and reporting procedures in accordance with provisions in § 63.10(c), (e)(1) and (e)(2)(i) and Appendix A to this subpart, as applicable.
(j) If you have an operating limit that requires the use of a CPMS, you must install, operate and maintain each continuous parameter monitoring system according to the procedures in paragraphs (j)(1) through (j)(7) of this section.
(1) The continuous parameter monitoring system must complete a minimum of one cycle of operation for each successive 15-minute period. You must have a minimum of four successive cycles of operation to have a valid hour of data.
(2) Except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions and required monitoring system quality assurance or quality control activities (including, as applicable, system accuracy audits and required zero and span adjustments), you must operate the CMS at all times the affected source is operating. A monitoring system malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring system to provide valid data. Monitoring system failures that are caused in part by poor maintenance or careless operation are not malfunctions. You are required to complete monitoring system repairs in response to monitoring system malfunctions and to return the monitoring system to operation as expeditiously as practicable.
(3) You may not use data recorded during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required
(4) Except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions and required quality monitoring system quality assurance or quality control activities (including, as applicable, system accuracy audits and required zero and span adjustments), failure to collect required data is a deviation of the monitoring requirements.
(5) You must conduct other CPMS equipment performance checks, system accuracy audits, or other audit procedures specified in your site-specific monitoring plan at least once every 12 months.
(6) You must conduct a performance evaluation of each CPMS in accordance with your site-specific monitoring plan.
(7) You must record the results of each inspection, calibration and validation check.
(k)
(2) Check all mechanical connections for leakage at least every month and
(3) Perform a visual inspection at least every 3 months of all components of the flow CPMS for physical and operational integrity and all electrical connections for oxidation and galvanic corrosion if your flow CPMS is not equipped with a redundant flow sensor.
(l)
(2) Reduce swirling flow or abnormal velocity distributions due to upstream and downstream disturbances.
(m)
(2) Use a gauge with a minimum tolerance of 1.27 centimeters of water or a transducer with a minimum tolerance of 1 percent of the pressure range.
(3) Perform checks at least once each process operating day to ensure pressure measurements are not obstructed (
(n)
(2) Check the pH meter's calibration on at least two points every eight hours of process operation.
(o)
(1) You must conduct a performance evaluation of the PM CEMS according to the applicable requirements of § 60.13 and Performance Specification 11 at 40 CFR part 60, Appendix B of this chapter.
(2) During each PM correlation testing run of the CEMS required by Performance Specification 11 at 40 CFR part 60, Appendix B of this chapter, PM and oxygen (or carbon dioxide) collect data concurrently (or within a 30-to 60-minute period) by both the CEMS and by conducting performance tests using Method 5 or 5D at 40 CFR part 60, Appendix A–3 or Method 17 at 40 CFR part 60, Appendix A–6 of this chapter.
(3) Perform quarterly accuracy determinations and daily calibration drift tests in accordance with Procedure 2 at 40 CFR part 60, Appendix F of this chapter. Relative Response Audits must be performed annually and Response Correlation Audits must be performed every three years.
(4) Within 60 days after the date of completing each CEMS relative accuracy test audit or performance test conducted to demonstrate compliance with this subpart, you must submit the relative accuracy test audit data and the results of the performance test in the as specified in § 63.1628(e).
(a) You must comply with all of the notification requirements of § 63.9 of subpart A, General Provisions. Electronic notifications are encouraged when possible.
(b)(1) You must submit the process fugitives ventilation plan required under § 63.1624(a), the outdoor fugitive dust control plan required under § 63.1624(b), the site-specific monitoring plan for CMS required under § 63.1626(i) and the standard operating procedures manual for baghouses required under § 63.1626(a) to the Administrator or delegated authority along with a notification that you are seeking review and approval of these plans and procedures. You must submit this notification no later than [DATE 1 YEAR AFTER EFFECTIVE DATE OF FINAL RULE]. For sources that commenced construction or reconstruction after [DATE OF EFFECTIVE DATE OF FINAL RULE], you must submit this notification no later than 180 days before startup of the constructed or reconstructed ferromanganese or silicomanganese production facility. For an affected source that has received a construction permit from the Administrator or delegated authority on or before [DATE OF EFFECTIVE DATE OF FINAL RULE], you must submit this notification no later than [DATE 1 YEAR AFTER EFFECTIVE DATE OF FINAL RULE].
(2) The plans and procedures documents submitted as required under paragraph (b)(1) of this section must be submitted to the Administrator in electronic format for review and approval of the initial submittal and whenever an update is made to the procedure.
(a) You must comply with all of the recordkeeping and reporting requirements specified in § 63.10 of the General Provisions that are referenced in Table 1 to this subpart.
(1) Records must be maintained in a form suitable and readily available for expeditious review, according to § 63.10(b)(1). However, electronic recordkeeping and reporting is encouraged and required for some records and reports.
(2) Records must be kept on site for at least two years after the date of occurrence, measurement, maintenance, corrective action, report, or record, according to § 63.10(b)(1).
(b) You must maintain, for a period of five years, records of the information listed in paragraphs (b)(1) through (b)(13) of this section.
(1) Electronic records of the bag leak detection system output.
(2) An identification of the date and time of all bag leak detection system alarms, the time that procedures to determine the cause of the alarm were initiated, the cause of the alarm, an explanation of the corrective actions taken and the date and time the cause of the alarm was corrected.
(3) All records of inspections and maintenance activities required under § 63.1626(a) as part of the practices described in the standard operating procedures manual for baghouses required under § 63.1626(c).
(4) Electronic records of the pressure drop and water flow rate values for wet scrubbers used to control particulate
(5) Electronic records of the shop building capture system monitoring required under § 63.1626(g)(1) and (g)(2), as applicable, or identification of periods when the capture system parameters were not maintained and an explanation of the corrective actions taken.
(6) Records of the results of quarterly inspections of the furnace capture system required under § 63.1626(h).
(7) Electronic records of the continuous flow monitors or pressure monitors required under § 63.1626(j) and (k) and an identification of periods when the flow rate or pressure was not maintained as required in § 63.1626(e).
(8) Electronic records of the output of any CEMS installed to monitor particulate matter emissions meeting the requirements of § 63.1626(i)
(9) Records of the occurrence and duration of each startup and/or shutdown.
(10) Records of the occurrence and duration of each malfunction of operation (
(11) Records that explain the periods when the procedures outlined in the process fugitives ventilation plan required under § 63.1624(a), the fugitives dust control plan required under § 63.1624(b), the site-specific monitoring plan for CMS required under § 63.1626(i) and the standard operating procedures manual for baghouses required under § 63.1626(a).
(c) You must comply with all of the reporting requirements specified in § 63.10 of the General Provisions that are referenced in Table 1 to this subpart.
(1) You must submit reports no less frequently than specified under § 63.10(e)(3) of the General Provisions.
(2) Once a source reports a violation of the standard or excess emissions, you must follow the reporting format required under § 63.10(e)(3) until a request to reduce reporting frequency is approved by the Administrator.
(d) In addition to the information required under the applicable sections of § 63.10, you must include in the reports required under paragraph (c) of this section the information specified in paragraphs (d)(1) through (d)(7) of this section.
(1) Reports that explain the periods when the procedures outlined in the process fugitives ventilation plan required under § 63.1624(a), the fugitives dust control plan required under § 63.1624(b), the site-specific monitoring plan for CMS required under § 63.1626(i) and the standard operating procedures manual for baghouses required under § 63.1626(a).
(2) Reports that identify the periods when the average hourly pressure drop or flow rate of venturi scrubbers used to control particulate emissions dropped below the levels established in § 63.1626(e) and an explanation of the corrective actions taken.
(3)
(i) Records of all alarms.
(ii) Description of the actions taken following each bag leak detection system alarm.
(4) Reports of the shop building capture system monitoring required under § 63.1626(g)(1) and (g)(2), as applicable, identification of periods when the capture system parameters were not maintained and an explanation of the corrective actions taken.
(5) Reports of the results of quarterly inspections of the furnace capture system required under § 63.1626(h).
(6) Reports of the CPMS required under § 63.1626, an identification of periods when the monitored parameters were not maintained as required in § 63.1626 and corrective actions taken.
(7) If a malfunction occurred during the reporting period, the report must include the number, duration and a brief description for each type of malfunction that occurred during the reporting period and caused or may have caused any applicable emissions limitation to be exceeded. The report must also include a description of actions taken by an owner or operator during a malfunction of an affected source to minimize emissions in accordance with § 63.1623(f), including actions taken to correct a malfunction.
(e) Within 60 days after the date of completing each CEMS relative accuracy test audit or performance test conducted to demonstrate compliance with this subpart, you must submit the relative accuracy test audit data and the results of the performance test in the method specified by paragraphs (e)(1) through (e)(2) of this section. The results of the performance test must contain the information listed in paragraph (e)(2) of this section.
(1)(i) Within 60 days after the date of completing each performance test (as defined in § 63.2), you must submit the results of the performance tests, including any associated fuel analyses, required by this subpart according to the methods specified in paragraphs (e)(1)(i)(A) or (e)(1)(i)(B) of this section.
(A) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT Web site (
(B) For any performance test conducted using test methods that are not supported by the EPA's ERT as listed on the EPA's ERT Web site, the owner or operator shall submit the results of the performance test to the Administrator at the appropriate address listed in § 63.13.
(ii) Within 60 days after the date of completing each CEMS performance evaluation (as defined in § 63.2), you must submit the results of the performance evaluation according to the method specified by either paragraph (b)(1) or (b)(2) of this section.
(A) For data collection of relative accuracy test audit (RATA) pollutants that are supported by the EPA's ERT as listed on the EPA's ERT Web site, you must submit the results of the performance evaluation to the CEDRI that is accessed through the EPA's CDX, unless the Administrator approves another approach. Performance evaluation data must be submitted in a file format generated through the use of the EPA's ERT. If you claim that some of the performance evaluation information being transmitted is CBI, you must submit a complete file generated through the use of the EPA's ERT, including information claimed to be CBI, on a compact disk or other commonly used electronic storage media (including, but not limited to,
(B) For any performance evaluations with RATA pollutants that are not supported by the EPA's ERT as listed on the EPA's ERT Web site, you shall submit the results of the performance evaluation to the Administrator at the appropriate address listed in § 63.13.
(2) The results of a performance test shall include the purpose of the test; a brief process description; a complete unit description, including a description of feed streams and control devices; sampling site description; pollutants measured; description of sampling and analysis procedures and any modifications to standard procedures; quality assurance procedures; record of operating conditions, including operating parameters for which limits are being set, during the test; record of preparation of standards; record of calibrations; raw data sheets for field sampling; raw data sheets for field and laboratory analyses; chain-of-custody documentation; explanation of laboratory data qualifiers; example calculations of all applicable stack gas parameters, emission rates, percent reduction rates and analytical results, as applicable; and any other information required by the test method, a relevant standard, or the Administrator.
(a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable state, local, or tribal agency. If the U.S. EPA Administrator has delegated authority to a state, local, or tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if this subpart is delegated to a state, local, or tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a state, local, or tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the Administrator of U.S. EPA and cannot be transferred to the state, local, or tribal agency.
(c) The authorities that cannot be delegated to state, local, or tribal agencies are as specified in paragraphs (c)(1) through (c)(4) of this section.
(1) Approval of alternatives to requirements in §§ 63.1620 and 63.1621 and 63.1623 and 63.1624.
(2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90 and as required in this subpart.
(3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90 and as required in this subpart.
(4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90 and as required in this subpart.
(d) Table 1 to this subpart specifies the provisions of subpart A of this part that apply to owners and operators of ferroalloy production facilities subject to this subpart.
(e) * * *
(1) [Reserved]
(2) Each owner or operator of a new or reconstructed affected source that commences construction or reconstruction after August 4, 1998 and before October 6, 2014, must comply with the requirements of this subpart by May 20, 1999 or upon startup of operations, whichever is later.
14. Section 63.1652 is amended by adding paragraph (f) to read as follows:
(f) At all times, you must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. Determination of whether such operation and maintenance procedures are being used will be based on information available to the Administrator that may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records and inspection of the source.
(a) * * *
(6) You must conduct the performance tests specified in paragraph (c) of this section under such conditions as the Administrator specifies based on representative performance of the affected source for the period being tested. Upon request, you must make available to the Administrator such records as may be necessary to determine the conditions of performance tests.
(b) * * *
(7) Method 9 of Appendix A–4 of 40 CFR part 60 to determine opacity. ASTM D7520–09, “Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere” may be used (incorporated by reference, see 40 CFR 63.14) with the following conditions:
(i) During the digital camera opacity technique (DCOT) certification procedure outlined in Section 9.2 of ASTM D7520–09, the owner or operator or the DCOT vendor must present the plumes in front of various backgrounds of color and contrast representing conditions anticipated during field use such as blue sky, trees and mixed backgrounds (clouds and/or a sparse tree stand).
(ii) The owner or operator must also have standard operating procedures in place including daily or other frequency quality checks to ensure the equipment is within manufacturing specifications as outlined in Section 8.1 of ASTM D7520–09.
(iii) The owner or operator must follow the recordkeeping procedures outlined in § 63.10(b)(1) for the DCOT certification, compliance report, data sheets and all raw unaltered JPEGs used for opacity and certification determination.
(iv) The owner or operator or the DCOT vendor must have a minimum of four (4) independent technology users apply the software to determine the visible opacity of the 300 certification plumes. For each set of 25 plumes, the user may not exceed 15 percent opacity of any one reading and the average error must not exceed 7.5 percent opacity.
(v) Use of this approved alternative does not provide or imply a certification or validation of any vendor's hardware or software. The onus to maintain and verify the certification and/or training of the DCOT camera, software and operator in accordance with ASTM D7520–09 and these requirements is on the facility, DCOT operator and DCOT vendor.
(e) * * *
(1)
(2) * * *
(ii) [Reserved]
(a) * * *
(6) Failure to monitor or failure to take corrective action under the requirements of paragraph (a) of this section would be a violation of the general duty to operate in a manner consistent with good air pollution control practices that minimizes emissions per § 63.1652(f).
(b) * * *
(3) Failure to monitor or failure to take corrective action under the requirements of paragraph (b) of this section would be a violation of the general duty to operate in a manner consistent with good air pollution control practices that minimizes emissions per § 63.1652(f).
(c) * * *
(7) Failure to monitor or failure to take corrective action under the requirements of paragraph (c) of this section would be a violation of the general duty to operate in a manner consistent with good air pollution control practices that minimizes emissions per § 63.1652(f).
(a) * * *
(4)
(a) * * *
(2) * * *
(i) Records of the occurrence and duration of each malfunction of operation (
(ii) Records of actions taken during periods of malfunction to minimize emissions in accordance with § 63.1652(f), including corrective actions to restore malfunctioning process and air pollution control and monitoring equipment to its normal or usual manner of operation;
(iv) [Reserved]
(v) [Reserved]
Final rule with request for comment.
Department of State.
With this rulemaking, the Department of State is amending the general rules covering the Exchange Visitor Program that govern the designation of sponsors and the overall administration of the Program. This final rule encompasses technical changes to the general provisions and addresses public diplomacy and foreign policy concerns, including the Department's ability to monitor sponsors to protect the health, safety and welfare of foreign nationals who come to the United States as exchange visitors. The Department previously published a proposed rule, and, after analyzing the comments received, the Department is promulgating this final rule with request for comment and soliciting comments over a period of 60 days.
You may submit comments identified by any of the following methods:
•
• Persons with access to the Internet may also view this document and provide comments by going to the regulations.gov Web site and searching for RIN (1400–AC36, docket number DOS–2014–0018), at:
Mail (paper, disk, or CD–ROM submissions): U.S. Department of State, Office of Policy and Program Support, SA–5, Floor 5, 2200 C Street NW., Washington, DC 20522–0505.
Robin J. Lerner, Deputy Assistant Secretary for Private Sector Exchange, U.S. Department of State, SA–5, Floor 5, 2200 C Street NW., Washington, DC 20522; or email at
This first comprehensive modification to Subpart A of 22 CFR Part 62 since 1993 makes five significant changes, as well as minor, technical changes intended to clarify the existing language. Specifically, this final rule amends Subpart A to provide more specific filing requirements for entities seeking to become designated sponsors and for sponsors seeking to renew their designations, including requiring proposed and current Responsible Officers and Alternate Responsible Officers to undergo criminal background checks. The final rule adopts a requirement that private sector sponsors submit management reviews in a format and on a schedule determined by the Department. It moves certain sections from Subpart F to Subpart A and enhances provisions governing the Student and Exchange Visitor Information System (SEVIS) database that sponsors use to track the whereabouts of exchange visitors. It also removes Appendices A–D, which have been replaced by information collections through Forms DS–3036, DS–3037 and DS–3097. In recognition of the increase in health and accident insurance costs since 1993, it also updates these requirements. The final rule also adds, deletes, and modifies definitions of terms used throughout the regulations. In addition, it adds language to make explicit the discretion of the Assistant Secretary for Educational and Cultural Affairs to waive or modify provisions of 22 CFR Part 62 (the regulations governing the Exchange Visitor Program), to the extent consistent with the authorities described in 22 CFR 62.1(a) and other applicable law, with respect to programs that are established pursuant to arrangements between the United States and foreign governments. The Department must provide notice concerning any such program for which provisions of Part 62 are waived or modified. Finally, it makes technical modifications to the text of the September 2009 proposed rule to ensure that the regulatory text is clear and correct.
The Department published the proposed rule on September 22, 2009 (RIN 1400–AC36; see 74 FR 48177), soliciting comments on proposed modifications to Subpart A. This final rule does not make certain changes that the Department had proposed in the September 2009 proposed rule. Specifically, it will not require applicants or current sponsors to secure and submit Dun & Bradstreet reports on themselves; applicants for sponsor designation will have site visits only at Department discretion; and sponsors need not collect and report Employment Authorization Document information for an accompanying spouse and dependents in SEVIS.
Having thoroughly reviewed the nearly 700 comments received in response to the proposed rule published in 2009 (see citation above), the Department hereby adopts sections of the proposed rule and amends or eliminates others in response to the comments submitted.
The next version of the SEVIS database, which has been in place since 2003, will have no immediate impact on this final rule, since its implementation date remains uncertain. The next version of SEVIS will focus upon increased functionality, national security, and improved usability. Prior to its implementation, the Department anticipates that the Department of Homeland Security will introduce any new requirements or procedures to the public through a proposed rule with a comment period. The Department of State also will reexamine its regulations prior to the implementation of any future system developments.
The Department received 656 comments in response to the publication of the proposed rule. Of these, 494 comments (or 75% of the total comments received) were form letters or miscellaneous letters relating to the Camp Counselor and Summer Work Travel categories of the Exchange Visitor Program, as follows:
1. Form Letter—Camp Counselor and Camp Support 353
2. Form Letter—Summer Work Travel Employers 60
3. Form Letter—Former Summer Work Travel Participants 45
4. Miscellaneous Letters 36
The remaining 162 comments were general letters from sponsors, support groups, third parties, and concerned individuals. Based on the review of all comments, the Department has decided to adopt sections 62.2–62.16 of the proposed rule with modifications prompted by the comments received. Section 62.17—Fees and Charges, remains unchanged. Appendices A–D are removed to reflect changes in the regulations since 1993 and the implementation of information collections through Forms DS–3036, DS–3037, and DS–3097.
The proposed rule contained 45 definitions; this final rule contains 47.
A total of 26 parties filed comments about the Subpart A definitions. Comments related to the three SEVIS-related definitions that have been added to the regulations (i.e., “actual and current U.S. address,” “site of activity,” and “validation”) generally reflected appreciation for these definitions and sought guidance and information on the consequences of non-compliance. As with other regulations in Part 62, non-compliance could subject a sponsor to sanctions under 22 CFR 62.50(a). The first two definitions are critical as they relate to the physical location of a nonimmigrant participating in an exchange visitor program in the United States. Indeed, Title VI, Section 641 of Public Law 104–208, requires sponsors to ensure that the exchange visitor has arrived at his or her site of activity and to maintain current and accurate data in these SEVIS fields so that officials may locate nonimmigrants, if necessary, both during the day (i.e., at their sites of activity) and at night (i.e., at their actual and current U.S. addresses). Accordingly, correctly maintaining this information is a matter of national security. The function of validating a SEVIS record is also important, as it marks the beginning and end of a sponsor's obligation to monitor and provide other services (i.e., insurance coverage) to an exchange visitor and his or her accompanying spouse and dependents. One commenting party sought guidance and/or an explanation of the consequences of failing to validate the SEVIS record of an accompanying spouse or dependents, entering the United States on J–2 visas to accompany an exchange visitor here on a J–1 visa. In response to this comment, and because the validation of a primary J–1 visa holder's record automatically validates the associated J–2 visa holders' records, the Department is removing any reference to an accompanying spouse and dependents from this definition.
The Department received a total of 18 comments regarding the change of the term “accredited educational institution” to “accredited academic institution.” The majority of comments questioned the need for a change in terminology. The Department believes this change is necessary to reflect more accurately recent trends in the use of the term “academic.” In the proposed definition section (which also affects the definition of “student” in section 62.4), the Department clarifies that educational institutions that offer primarily vocational or technical courses of study are not considered academic. Accordingly, the Department substitutes the term “academic” for “educational.”
One party commented about the confusion associated with the definition of “country of nationality or last legal permanent residence,” stating that the conjunction “or” used to link the two alternatives takes precedence and the language does not define the meaning of the term “legal permanent residence.” The program regulations have always referred to these two terms in tandem. The Department believes that the meaning of each phrase is clear and concise, and therefore makes no changes to the definition. Three commenting parties expressed concern that the terms(s) did not clearly subject an accompanying spouse and dependents travelling to the United States on J–2 visas to the two-year home country physical presence requirement (i.e., section 212(e) of the Immigration and Nationality Act) (INA)). Because the INA applies this requirement to “person[s] admitted under section 101(a)(15)(J) . . . or acquiring such status after admission,” it applies to J–2 visa holders as well, if the exchange visitor they accompany or join is subject to the requirement (See 22 CFR 41.62(c)(4)).
The Department received one comment regarding the proposed definition of “exchange visitor” as it refers to foreign nationals who are in the United States on J–1 visas. In particular, the commenting party took issue with the language because, as written, it does not include Canadian citizens who are allowed to participate on the Exchange Visitor Program without obtaining a J–1 visa. Also, the term does not include the accompanying spouse and dependents of an exchange visitor. In reviewing the comment, the Department has decided to modify the definition to clarify that the term also includes participants in the program who are not required to obtain J–1 visas. The Department, however, has purposefully excluded an exchange visitor's accompanying immediate family (i.e., accompanying spouse and dependents) from the definition because these regulations operate primarily for the benefit, and based upon the actions, of the individual participant in the Exchange Visitor Program. When necessary (e.g., section 62.14 (insurance)), the regulations specify their applicability to an exchange visitor's immediate family.
On a related matter, two parties commented that the title of the Form DS–2019—A Certificate of Eligibility for Exchange Visitor (J–1) Status excludes any reference to an accompanying spouse and dependents, even though it is the form necessary for family members (since the inception of SEVIS in 2003) to apply for J–2 visa status. The Department agrees and will explore the opportunity of replacing “(J–1)” with “(J—Nonimmigrant)” in the Form's title at the time of the Form's scheduled revision cycle.
Two parties commented on the definition of “foreign medical graduate.” They both appreciated the Department's decision to clarify the definition and requested that the definition be revised to locate the definition within section 62.27 (the only section of 22 CFR Part 62 that uses this term) and to clarify how it applies to non-clinical exchange programs. The Department acknowledges that the definition of this category of participation does not belong in section 62.2, and will define it when section 62.27 is revised in the future.
The Department received one comment related to the definition of the terms “full course of study” and “prescribed course of study,” suggesting that language in section 62.2 may be read to contain substantive regulatory provisions that may be better located in the relevant sections in Subpart B, rather than in the definitions section of section 62.2. The Department has considered the recommendations and makes no changes to these definitions, since it is of the view that definitions that pertain only to an individual program category should be included in sections of Subpart B that pertain to that individual category.
The Department received one comment concerning the definitions for the terms “internship program” and “student internship program.” Because of the confusion experienced in the exchange community about the similarity of these two terms, it was suggested that the Department further clarify these definitions by annotating the difference between the two types of
One comment was submitted suggesting that the term “management audit” be defined. The Department agrees and adds a definition of “management review,” the Department's preferred term, to section 62.2.
Five parties commented on the definition of “third party.” Among other things, commenting parties claim that the proposed language disregarded the sub-agent network that a sponsor's foreign entities (e.g., foreign partners or agents) may use as part of the recruiting process. They added that the language is unclear about what entities are and are not third parties, given the large number of contacts upon which exchange programs rely. The Department recognizes that sponsors contract with or otherwise engage third parties to provide ordinary services in the support of their business operations (e.g., cleaning, payroll processing, and utilities). The Department excludes these types of generic service providers from the definition of “third party” and includes only those that truly relate to the conduct of a sponsor's exchange visitor program.
As the Department updates the regulations governing specific categories of the Exchange Visitor Program (included in Subpart B), it may articulate further restrictions. In the interim, the Department clarifies, first, that it considers “recruiting” to be conduct of the sponsor's exchange visitor program. It also considers the functions of the local coordinators (or other similar field staff) to be conduct of the sponsor's exchange visitor program. Ordinary services in support of sponsors' business operations (cleaning, payroll processing, and utilities) are not considered conduct. Should there be circumstances that require additional clarification on a category-specific basis prior to the incorporation of these concepts into Subpart B, the Department will issue email guidance or guidance directives. Accordingly, the Department revises the definition of “third party” to avoid the unintended consequences recognized by the commenting parties.
The Department is updating the definitions to include language that explains the purposes of Forms DS–2019, DS–3036, DS–3037, and DS–7002. As discussed above, this final rule corrects the inadvertent exclusion of “Form DS–3097,” the existing Annual Report form, from the proposed rule. Similarly, the Department inadvertently excluded a definition for the “Office of Exchange Coordination and Compliance,” a part of the Office of Private Sector Exchange (formerly known as the Exchange Visitor Program Services). In addition, the Office of Private Sector Exchange has recently added the Office of Private Sector Exchange Administration to its organization. The two new offices, in addition to the existing Office of Designation, oversee the Exchange Visitor Program. This final rule defines these new offices within the Office of Private Sector Exchange.
Finally, in the NPRM, the definition for “Citizen of the United States (entity)” with respect to nonprofit organizations included, among other things, a requirement that the entity be “qualified with the Internal Revenue Service as a tax-exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code.” In this rulemaking, this language has been removed, with the result that a nonprofit organization otherwise qualifying as a “United States Person (legal entity)” need not be a tax-exempt organization to participate in the Exchange Visitor Program. The Department realized that there might be taxable nonprofit organizations that might wish to participate in one of the Exchange Visitor Programs. Seeing no reason to retain this barrier to participation, the Department determined there was good cause to remove it in this rulemaking.
The proposed rule increased from one to three years the required minimum experience in international exchange that an entity seeking designation must show that it, or its proposed Responsible Officer, has. Five parties commented on this proposed new minimum experience requirement. One supported the increase in years of experience, three opined that the new requirement was excessive and restrictive for new programs, and one asked for clarification of whether the requirement was intended for existing exchange visitor programs as well. Recently, many entities staffed by individuals with minimal experience have applied for designation. These entities and individuals typically have worked with designated sponsors in some capacity or have conducted short-term exchanges, but lack the full scope of experience in all aspects of exchange activities, including the regulatory knowledge critical to administering a successful exchange program. Some exchange visitor categories involve more complex administration processes than others (e.g., the au pair and secondary school student categories, which require locating and screening host families and schools, hiring and managing local and regional staff, and close monitoring of placements). The Department believes that three years of experience is the minimum necessary to develop a strong foundation for the conduct of an exchange visitor program. Applicants may demonstrate their experience in international exchange by providing staff resumes, as well as information about the applicant entity's or individual's experience and involvement with other cultural exchange programs. The Department adopts the proposed regulatory change for entities applying for designation. The Department will not require sponsors who have been designated for fewer than three years to demonstrate now three years of experience.
The proposed rule included a new provision requiring that an entity applying for sponsor designation undergo a site visit as part of the designation process. Such site visits, conducted by the Department of State or a third party acting on its behalf, were intended to evaluate whether an applicant had sufficient facilities, staff, and infrastructure necessary to conduct a successful exchange visitor program. Ten parties submitted comments on this proposal. Seven parties supported these site visits and three parties opposed them. One of the opposing parties specifically stated that the site visits were unnecessary due to the potential costs. One party believed that site visits should be required of current sponsors as part of the redesignation process and in lieu of a management audit requirement. Another party opined that the requirement was burdensome and superfluous for longtime program sponsors and that site visits are too costly and disruptive of daily work schedules. Finally, one party, in response to the assertion that the cost of the site visits would be determined “by the required bi-annual user fee study,”
The Supplementary Information section of the proposed rule also mentioned the on-site reviews of existing sponsors and that the Department currently conducts on-site reviews at its discretion. In response, parties commented that such a requirement would be both burdensome and superfluous for a longtime sponsor.
Although the Department considers pre-designation site visits for new applicants to be a useful means of evaluating the ability of potential sponsors to run good exchange programs, as a matter of priority the Department has elected not to require them at this time, but to retain the discretion to conduct them. The Department will continue its practice of conducting on-site reviews of current sponsors as a part of monitoring and compliance of sponsors.
Five parties submitted comments concerning four categories of participant eligibility, namely, Teacher, Research Scholar, Intern, and Trainee. The Department has addressed the comment about evaluation of a teacher's eligibility and experience in a separate rulemaking on section 62.24, which was published May 2, 2013. (RIN 1400–AC60; see 78 FR 25669).
Three parties asked the Department to reinsert the term “teaching” into the description of a Research Scholar. The Department agrees to correct this inadvertent exclusion.
One party opposed the addition of the term “full-time” to the description of an Intern's enrollment, stating that the current regulations do not stipulate this requirement and that adding “full-time” to the category definition will complicate the process unnecessarily. The Department disagrees with the commenter that the proposed language will complicate the rules. The Department adopts the proposed language, as it is a technical modification conforming to language in this section with the specific regulations currently governing the Trainee and Intern Program. See 22 CFR § 62.22(b)(2).
In addition, one party commented on the definition of the Trainee category, arguing that the definition of “Trainee” is inapplicable to corporate program sponsors whose employees primarily administer the training of the exchange visitor. In addition, the comment states, “In such cases, the foreign national need not satisfy any educational or experience requirements to be classified as a J–1 Trainee. A corporate program sponsor `primarily administers' training while its employee(s) act as trainer(s) for a minimum of 95% of the exchange visitor's training.” In the Supplementary Information section of the Trainee and Intern Final Rule (RIN 1400–AC15; see 72 FR 33669, June 19, 2007), the Department explained that a foreign national may not participate in a trainee or intern exchange visitor program until he or she has acquired sufficient education or related work experience to benefit sufficiently from the valuable experiential learning opportunity that training programs and internships provide. The Department confirms the definition on the basis that an exchange visitor must meet the requisite education and work experience to be suitable for participation in a training program. Therefore, sponsors must make sure that the selection criteria for their exchange visitors indeed meet the regulatory requirements.
The Department has amended the definition of a teacher to reflect language in a proposed rule. (RIN 1400–AC60; see 78 FR 25669, dated May 2, 2013).
The Department received a total of 514 comments regarding the proposed collection of Business Information Reports from Dun & Bradstreet both for new applicants (proposed section 62.5(c)(6)) and for sponsors seeking redesignation (proposed sections 62.7(c)(1) and (2)). Only one commenting party supported this requirement, but, like many other parties, was concerned about the cost. Some suggested that this report requirement could cost several hundred dollars for a medium to large sponsor and would represent a significant new expense for every sponsor. Other parties noted that many camps have never registered for a Dun & Bradstreet Number because the registration has no business purpose. Accordingly, requiring camps to register and pay for credit reports would be an undue burden on the camp community. The Department reviewed the utility of the Dun & Bradstreet report for oversight purposes, and determined that it is outweighed by the potential financial and resource implications for applicants for designation or currently-designated sponsors. Hence, the Department is eliminating the Dun & Bradstreet report requirement.
The proposed rule identified as the appropriate individuals to sign certain documents (e.g., the certifications required by Forms DS–3036, as set forth in section 62.5(a)) a sponsor's “Chief Executive Officer, President, or equivalent.” One party seeks clarification as to which positions are considered “equivalent” in this respect. The Department amends the rule to reflect that an executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization's governing documents) be the signatory of such documents.
Section 62.5(c)(9) of the proposed rule requires a sponsor's Chief Executive Officer, President, or equivalent to certify that the proposed Responsible Officer and all proposed Alternate Responsible Officers are United States persons (i.e., U.S. citizens or legal permanent residents), and that the sponsor has obtained criminal background reports on all such candidates and has determined their suitability for these positions. Section 62.5(c)(9) requires that a sponsor include in its complete application both SEVIS-generated Citizenship Certifications for the proposed Responsible Officer and proposed Alternate Officers as well as separate evidence (e.g., a copy of a passport or birth certificate, or green card) that they are U.S. citizens or legal permanent residents of the United States. One commenting party supported the U.S. citizenship requirement; another recommended that it apply only to new entities seeking designation; and a third opined that the executive certification, SEVIS certification, and separate evidence requirements were redundant. The Department disagrees that the certifications are redundant. There is only one certification of U.S. citizenship or legal permanent resident status required. The executive certification is required on the SEVIS-generated form to ensure that the criminal background check has been completed on the proposed Responsible Officer and all proposed Alternate Responsible Officers. Providing documented proof is already a required practice and does not pose any additional burdens on the sponsor. Therefore, the Department adopts the language of the proposed rule.
With respect to the overall application process, one party commented that the requirements for submission of applications for designation and redesignation should be differentiated by program types, since colleges and universities already have unique requirements they must meet. Another party suggested that the required information would place an unnecessary administrative burden on established, low-risk entities. The
A single party commented on the definitions of “financed directly” and “financed indirectly,” as set forth in the proposed rule, noting that current regulations do not require certain publicly held companies to disclose the names, addresses, and citizenship or legal permanent resident status of their Boards of Directors or the percentage of stock/shares held in order to demonstrate the entity's U.S. citizenship status. The Department determined that this comment appears to have been directed to the application process requirements and not the financial support associated with an exchange visitor. The Department clarifies that the proposed rule already exempts publicly held U.S. companies whose shares are traded on a U.S. stock exchange from this requirement.
In addition, the Department deletes Appendices A and B to Part 62 in light of the collection of information through Form DS–3036 (
The Department received three comments regarding sponsor designation. Comments ranged from statements indicating that these requirements should be applicable only to new entities seeking designation to requests that the Department differentiate exchange visitor program requirements by category, because colleges and universities must meet other requirements in order to operate. Some comments also argued that the information being requested would place an unnecessary administrative burden on established, low-risk entities. The Department respectfully disagrees and finds that the requested documentation is necessary to complete a full review of all new applications for designation on a consistent basis over all categories. It would be tremendously complex to have the Designation requirements be varied over the 15 categories of the exchange visitor program.
One party commented on the proposed flexibility of the Department to redesignate a sponsor for one or two years, at its discretion, opining that all sponsors should be redesignated for two years. Four parties commented that the cycle should be set at the original five years. Under section 502(b) of Public Law 107–173, enacted May 14, 2002, the Department of State is to conduct a periodic review of sponsors of exchange visitors at least every two years. The legislation, however, does not prohibit the Department from reviewing a sponsor's qualifications more frequently. For example, experience has demonstrated that there are a number of sponsors having technical infractions that are of enough concern to cause the Department to withhold a longer period of designation until that sponsor has corrected these problems. The Department believes that it can work with such sponsors to assist them in improving their program operations in this area. The one-year redesignation informs a sponsor that it needs to correct any issues identified, but also creates a time period after which the Department will formally check the extent of the sponsor's improvement and determine whether it indeed qualifies for a two-year redesignation. Accordingly, the Department adopts the proposed one or two year redesignation cycle in order to provide it with the tools necessary to ensure that only qualified entities continue to operate as designated sponsors.
The Department received a total of 24 comments regarding various aspects of the redesignation process (in addition to the 514 comments opposed to the collection of Dun & Bradstreet numbers in connection with designation and redesignation, discussed above). Four parties recommended that the redesignation cycle be changed to a five-year rather than two-year cycle. However, as noted above, there is a statutory requirement for a minimum biannual review cycle of all sponsors designated to conduct exchange visitor programs. For this reason, the Department will adopt the language of the proposed rule.
Nine parties complained about the “excessive” amount of documentation they must provide along with an application for redesignation. In particular, post-secondary academic institutions opined that providing the Department with information about their Boards of Trustees was superfluous, as such institutions were already subject to rigorous checks and other measures to ensure accountability. Indeed, with respect to a sponsor's eligibility, the Department is concerned not only that a sponsor have financial stability and resources, but also that control of its exchange visitor program not be ceded to people who do not meet the regulation's definition of a U.S. person. Accordingly, it is incumbent upon sponsors—even large universities—to report and update the citizenship or legal U.S. permanent residence status of the members of their governing boards and provide updated copies with an application for redesignation. The Department believes that this documentation is necessary to ensure that a sponsor seeking redesignation continues to meet all requirements of designation (e.g., status as a U.S. person, financial viability). A sponsor's circumstances may change over time, therefore making it necessary for sponsors to provide complete and current information during the redesignation process in order for the Department to make a meaningful assessment of a sponsor's continued qualifications for sponsorship. Although government agencies may not have all the documentation specified in this section, they too are required to submit all relevant documents. Accordingly, the Department adopts the language in the proposed rule.
As discussed above, the Department received a total of 514 comments regarding the proposal to collect a Dun & Bradstreet Report for both new applicants and for current sponsors seeking redesignation. After consideration, the Department has decided to eliminate this requirement.
Two parties recommended that the following language be reinserted into section 62.7: “a sponsor seeking redesignation may continue to operate its program(s) until such time as the Department of State notifies it of a decision to amend or terminate its designation.” The Department inadvertently deleted this language and has therefore reinserted it into this Final Rule.
Section 62.7(c)(2) of the proposed rule required that, as part of the redesignation process, sponsors provide the Department with a list of foreign and domestic third parties with whom they have written agreements. Three parties opposed this requirement, arguing that it was an excessive paperwork requirement. Keeping in mind the modification of the definition of third party (which now requires sponsors to enter into written agreements with entities that act on behalf of the sponsor in the conduct of the sponsor's exchange visitor program), the Department has decided to require all sponsors to maintain such lists, which the Department may then request as part of the redesignation process or as circumstances require. (Note that
Finally, the Department proposed requiring sponsors to confirm or reconfirm the suitability of proposed or current Responsible Officers and Alternate Responsible Officers, by requiring them to undergo criminal background checks. One party objected to requiring current Responsible Officers and Alternate Responsible Officers to repeat the process. The Department will require designated sponsors to obtain these reports every four years; sponsors that are redesignated for a single year, however, will be required to repeat the process for their next designation application.
The Department anticipates that thorough criminal background reports will provide management decision makers with sufficient information to determine whether candidates for Responsible Officer and Alternate Responsible Officer positions—positions that work with a national security computer system—have criminal records or other blemishes on their pasts that may make them unsuitable for the proposed positions. Furthermore, the criminal background check requirement reflects the importance of such individuals in a sponsor's organization and their right of access to, and ability to manipulate data within, a controlled federal government database that tracks foreign nationals participating in the Exchange Visitor Program. In addition, protection of exchange visitor personal data is important to the health, safety, and welfare of program participants. Responsible Officers and Alternate Responsible Officers are the only individuals authorized to log onto SEVIS, issue and sign a Form DS–2019, the “Certificate of Eligibility for Exchange Visitor (J-Nonimmigrant) Status,” and otherwise update the system with timely and accurate information. Thus, it is of vital importance that all individuals with access to SEVIS be properly vetted. The Department will not require an additional background check for Responsible Officers and Alternate Responsible Officers who are working for a federal or state government entity and have already passed a government background check.
Nine out of 24 comments specifically addressed the paperwork, including proof of criminal background checks, which must be submitted as part of the redesignation application, deeming it excessive. Except on an ad hoc basis, the Department of State has decided not to require applicants or sponsors to submit the results of the criminal background checks. Rather, the Chief Executive Officer, President, or equivalent must submit a certification that the sponsor's Responsible Officer and Alternate Responsible Officer(s) have undergone criminal background checks within the last four years or when a new sponsor files a designation application. The proposed regulation did not set specific requirements for a sponsor to follow with respect to report format, screening company, or assessment of criminal background check reports. The Department does, however, require a sponsor to utilize the services of a bona fide background screener. Although the Department does not endorse any particular screener or screening organization, it identifies, for sponsors' convenience, an organization that can help identify potential background companies: The National Association of Professional Background Screeners (NAPBS). NAPBS has more than 500 members (a list of which is located at
The Department emphasizes that obtaining a criminal background report does not in and of itself confirm an individual's suitability to act as a Responsible Officer or an Alternate Responsible Officer. A sponsor should consider the results of such a report, and other factors, in making a reasoned judgment about an individual's fitness to assume either of these two roles.
Only one party commented on the general program requirements section. Specifically, the commenting party proposed that the minimum number of exchange visitors required for program designation be raised from five, as currently specified in section 62.8(a) of the proposed rule, to ten. The party also asked the Department to specify what constitutes the “good cause” that would permit an applicant to run an exchange program with fewer than five exchange visitors. The Department established a minimum number of exchange visitors based on the smallest program size it believes justifies the resources it must expend to evaluate a sponsor's redesignation application and monitor its program on an on-going basis. Increasing the minimum size would have no impact on any parties except those small programs themselves, and could potentially and unnecessarily remove niche sponsors from the program. Accordingly, the Department will not increase the minimum number. With respect to “good cause,” each situation is fact-specific, and, since the Department wishes to maintain maximum discretion, the Department has decided to delete the reference to “good cause.” With the exception of the removal of “good cause,” the Department adopts the current language of the proposed rule.
The Department received a total of 56 comments regarding various general program obligations of sponsors. Many of the comments related to the appointment of Responsible Officers and Alternate Responsible Officers.
One party commented on the payment bond requirement in section 62.9(e)(3), suggesting that the regulations should both provide objective criteria regarding when and what kind of bond may be required, and should exempt programs that have proven their financial viability from the bond requirement. The Department notes that this provision is not new. Although the Department has not required a sponsor to secure a payment bond for many years, it recognizes that there may be a number of circumstances in which it might be necessary to do so. For example, the Department could have reason to believe that a sponsor does not have either the resources to support an existing exchange visitor population or the inclination to fulfill its monitoring and support obligations. Unfortunately, such circumstances might befall even a long-standing sponsor with an historical record of financial viability and program support. To provide another example, when the Department redesignates a sponsor for a single year, it may wish to require that sponsor to obtain a bond that provides sufficient funding to cover the cost of supporting the sponsor's current year exchange visitors and/or transferring the next year's exchange visitors to other sponsors. Were the sponsor's performance not to improve and were the Department to initiate a suspension or other serious sanction against the sponsor, a payment bond could help ensure that there would be sufficient funding available to take care of potentially stranded exchange visitors. The Department, therefore, must retain the flexibility to require all sponsors to secure payment bonds at the Department's discretion.
Three parties addressed the provision in section 62.9(f)(2) that requires a sponsor to ensure that its employees, officers, agents, independent
Two other parties opined that, in order to adequately train staff and others on working in the SEVIS system, sponsors must be permitted to employ more than ten Alternate Responsible Officers. It is not clear why individuals must have access to SEVIS in order to be capable of training others on Exchange Visitor Program regulations. Regardless, as it has noted above, the Department will accept requests for additional Alternate Responsible Officers on a case-by-case basis.
Eight parties opposed the proposed criminal background check requirement for Responsible Officers and Alternate Responsible Officers in proposed section 62.9(g)(1). Fifteen parties supported it, although of those, thirteen parties recommended that the background checks not be required annually and that Responsible Officers and Alternate Responsible Officers of currently designated sponsors be “grandfathered” in. The Department considered this recommendation and has decided that current Responsible Officers and Alternate Responsible Officers will need to obtain a background check before their sponsor organization is next redesignated after the promulgation of this final rule and maintain background check paperwork on Responsible and Alternate Responsible Officers that is no older than four years at any time. New sponsors seeking designation by the Department must conduct new background checks on their proposed Responsible Officers and Alternate Responsible Officers. Thus, in accordance with section 62.5(c)(8)(iii) below, an entity seeking designation must obtain criminal background reports on all proposed Responsible and Alternate Responsible Officers, certify that it has done so, and maintain records that are no older than four years at any time. In those few instances where the Department is concerned about a sponsor's regulatory inconsistencies related to their administration of the program and redesignates it for a single year, such sponsor would be required to obtain reports for that year.
One commenting party suggested that if a sponsor were merely required to maintain records of these criminal background checks and submit them to the Department only on request, it would undermine the rationale for requesting these checks because they would not be turned in. However, the Department intends for sponsors to use their own judgment and internal standards to assess the suitability of individuals for these jobs, based on whether a report revealed any information about a candidate's past that would disqualify him or her from assuming a position of trust and responsibility.
Nine out of ten parties commented that the proposed maximum of ten Alternate Responsible Officers specified in section 62.9(g)(1) is not large enough, and that larger sponsors with more exchange visitors should be permitted to have more than ten Alternate Responsible Officers. The Department will explore the idea of expanding the maximum number of Alternate Responsible Officers for sponsor organizations that request additional officers and demonstrate a need for them.
Two parties addressed the requirement in section 62.9(g)(2) that Responsible Officers and Alternate Responsible Officers be employees of the sponsors. One comment, from a Rotary organization, explained that Rotary uses only volunteers, not employees, as Responsible Officers and Alternate Responsible Officers. The other comment, from a large corporation, raised the concern that company lawyers and paralegals would no longer be permitted to serve as Alternate Responsible Officers under the new rules. The Department has reviewed this comment and has determined that it would prefer that Responsible Officers and Alternate Responsible Officers be employees of the sponsor organization. However, an applicant entity or a sponsor that wishes to nominate an individual who is not an employee as an Alternate Responsible Officer may make a request to the Department, which the Department may approve in its discretion. One important factor that may qualify a volunteer as an Alternate Responsible Officer might be that person's longstanding, close, and continuing relationship with the sponsor organization. Another factor might be that the volunteer works for a sponsor organization that has a predominantly volunteer exchange model.
Ten parties commented on the requirement in section 62.9(g)(3) that sponsors replace outgoing Responsible Officers and Alternate Responsible Officers within ten calendar days, suggesting that this requirement was unrealistic. Comments indicated, for example, that it takes a long time to hire new staff, making it not feasible to speedily replace personnel. The Department understands these concerns, but maintains the requirement. The Department is not suggesting that the sponsor organization hire a new employee in this timeframe, but that it designate and provide documentation for an existing staff member to be placed in the position on a temporary basis until a permanent replacement is hired. Ten days is the amount of time that the Department believes that a Responsible Officer/Alternate Responsible Officer work could go uncompleted; after this time period, someone must take on the Responsible Officer/Alternate Responsible Officer monitoring workload at the sponsor organization. The Department wishes to reiterate that a sponsor must have in place and maintain a Responsible Officer and a minimum of one Alternate Responsible Officer at all times. If the Responsible Officer leaves, the sponsor may wish to designate an existing Alternate Responsible Officer to that position on a temporary basis. If the only Alternate Responsible Officer leaves, the sponsor should select another existing employee or officer to be an Alternate Responsible Officer. The potential Responsible Officer/Alternate Responsible Officer needs to undergo the criminal background check and be trained in the system, unless it is a case of an Alternate Responsible Officer becoming the Responsible Officer temporarily. In either case, and regardless of the reason, when a Responsible Officer or Alternate Responsible Officer departs the organization, the sponsor must ensure that the departing person's access to SEVIS is terminated as quickly as possible, but in no event later than ten calendar days after departure. This action serves to limit unauthorized SEVIS access by a person who is no longer involved with the administration of a sponsor's exchange visitor program and, thereby, protects all involved parties, as well as U.S. national security. The Department reminds sponsors that they must make it their highest priority
In addition, the Department deletes the second sentence of section 62.9(a); the regulations governing the imposition of sanctions are set forth in 22 CFR 62.50. The Department also deletes Appendix C to Part 62 in light of the collection of information through Form DS–3037 (
Twenty-three parties commented on the proposed requirement in section 62.10(a)(2) that exchange visitors be proficient in the English language, “as measured by an objective measurement.” All but one of these parties recommended maintaining the current language (i.e., “The exchange visitor possesses sufficient proficiency in the English language to participate in his or her program.”) One party recommended that the Department adopt the test set forth in the regulations for the Trainee and Intern categories (Section 62.22(d)(1)). The Department believes that not only is an exchange visitor's success in his or her particular program dependent upon sufficient English language capability, but good English communication skills are essential to ensure the health, safety, and welfare of exchange visitors. Moreover, the Department continues to find that too many exchange visitors lack sufficient English proficiency to perform their jobs or complete their academic programs; to navigate daily life in the United States; to read and comprehend program materials; to understand fully their responsibilities, rights, and protections; and to know how to obtain assistance, if necessary. Accordingly the Department adopts a modified version of the regulatory language governing the Trainee and Intern categories as the program-wide standard for determining the English language proficiency of exchange visitors. The Department reminds sponsors to retain evidence of how they measured applicants' English language proficiency so that it may be made available to the Department upon request.
The proposed rule moved sections 62.70(b) and (c) to sections 62.10(d)(3) and (4) and required that sponsors report in SEVIS any change in an exchange visitor's U.S. address, telephone number, email address, or primary site of activity within ten business days of being notified by the exchange visitor. Of the fifteen parties commenting on this proposed requirement, the majority opined that ten days are not sufficient time to update records, given the number of exchange visitors in programs and the other responsibilities of the Responsible Officer and Alternate Responsible Officers. Since the inception of SEVIS, sponsors were required to update SEVIS records within 21 days. Upon review of current SEVIS reporting requirements and the Department's legislative mandate to ensure that sponsors maintain SEVIS, the Department upholds the proposed language and requires sponsors to report in SEVIS within ten business days of notification by an exchange visitor of any change in address, telephone number or email address.
Thirty parties opposed the proposed requirement in section 62.10(d)(5) that sponsors report the actual and current U.S. address and email address for accompanying spouses and dependents. They argued that such a requirement would be unduly burdensome, that the information could be obtained from the Department of Homeland Security (DHS), and that the requirement should be postponed until the next version of SEVIS is operational, at which time exchange visitors can enter this information directly into SEVIS themselves. Similarly, 31 parties objected to the proposed requirement in section 62.10(d)(6) that sponsors report Employment Authorization Document (EAD) information in SEVIS for accompanying spouses and dependents. They argued that sponsors do not have this information, that this information is not part of the employment authorization process, or that, in any event, U.S. Customs and Border Protection should collect this information. To be “accompanying,” spouses and dependents—with few exceptions (e.g., dependents are in a boarding school)—should be living with the exchange visitors. The Department finds that collection of the accompanying spouse and dependents' email addresses is necessary for emergency contact information and upholds this requirement. The Department deletes proposed section 62.10(d)(6) regarding Employment Authorization Documents from this final rule; however, the Department will review the requirements of this proposed section at the time another version of SEVIS is implemented.
In order to protect the health, safety, and welfare of exchange visitors, language has been inserted into the regulation making it unlawful for sponsors or their foreign entities to retaliate against exchange visitors if they should make complaints about the program.
Proposed section 62.11(a) would require Responsible Officers and Alternate Responsible Officers to be thoroughly familiar not only with the Exchange Visitor Program regulations and Department codes required for issuing Forms DS–2019, but also with “all federal and state regulations pertaining to the administration of its exchange visitor program, including the Department of State's and Department of Homeland Security's policies, manuals, instructions, guidance and SEVIS operations relevant to the Exchange Visitor Program,” as well as federal, state and local laws pertaining to employment, including the Fair Labor Standards Act, if the exchange category overseen has an employment component. Five commenting parties encouraged the Department to develop clear, up-to-date policy and interpretive guidance on all relevant laws and regulations, and to make such guidance easily available to program sponsors. In an attempt to capture relevant Department guidance, regulations, and other information, the Department launched a new Web site design last year, and all such information can now be accessed under one section, at
One commenting party expressed concern about proposed section 62.11(d), which directs sponsors to ensure that their spam filters do not block reception of SEVIS or communications from either the Department of State or the Department of Homeland Security. The party noted that it is not always possible to know if messages are being sent in the first place and suggested that multiple messages be sent, including a paper notice if there is no response from the sponsor. The proposed regulation is consistent with the requirement set forth in 8 CFR 214.3(e)(1) that governs electronic notices sent to Student and Exchange Visitor Program (SEVP) certified schools. Paper notices will be sent at Departmental discretion in certain circumstances, such as when sponsors have notified the Department that their electronic systems will have outages within a specific timeframe. Therefore, the Department adopts the language of the proposed rule.
The proposal in section 62.12(b)(1)(i) stated that a sponsor must verify that each prospective exchange visitor is eligible, qualified and accepted into the sponsor's exchange visitor program. The parenthetical language implies that the sponsor has secured a placement, by obtaining a camp offer letter or a written secondary student school acceptance, before issuing a Form DS–2019. A total of 25 parties, mostly from the secondary school student and camp counselor communities, commented on this proposed change, only one of which supported it. A majority of those commenting expressed concern that if program pre-placement—e.g., a camp offer letter or a written secondary student school acceptance—were required for all exchange visitors, many exchange visitors would be unable to secure visas because the visa process is so slow during high volume seasons. The secondary school student regulations set forth under section 62.25, for example, permit sponsors to place students up to August 31 each academic year. Due to high volume of visas processed every summer, waiting until the end of August when a school placement is confirmed does not permit ample time for the visa to be processed and travel to the United States prior to the first day of school.
The Department believes that there are many advantages to its proposal. First, it would prevent sponsors from cancelling programs at the last minute due to their inability to secure program placements (and a prospective exchange visitor would know that there was no guarantee of a program until he or she received a Form DS–2019). It also would lessen the potential for applicants to obtain and use visas without ever intending to participate in the Exchange Visitor Program. Finally, it would require sponsors to secure placements earlier in the season than they usually do, allowing more time for planning and orientation than is now available.
Nevertheless, without further analysis, the Department cannot assess whether posts would be able to timely grant all the necessary visa interviews, in order to avoid unanticipated shrinkage in program sizes. In light of this, the Department is eliminating the proposed parenthetical language “(e.g., has an offer letter from a camp, a written acceptance from a secondary school)” from section 62.12(b)(1)(i). The Department acknowledges that, in certain categories sponsors are able to meet the regulations by accepting exchange visitors into their program without securing final placement prior to issuing a Form DS–2019. It is important to note that certain categories, such as Summer Work Travel, secondary school students, interns and trainees, have their own criteria regarding placements within the specific program provisions set forth in Subpart B.
Four parties opposed the new language in section 62.12(d)(1) regarding annual allotment of Forms DS–2019, arguing that a limited annual allotment might result in a sponsor not having enough forms to meet market demand. The Department notes that the process for submitting an annual request for the Department for allotment of Forms DS–2019 or the request for additional Forms DS–2019 (i.e., an expansion) is no different than the process that has been in place since the publication of the original 1993 regulations. The Department started “allocating” Forms DS–2019 before the advent of SEVIS. The transition to the electronic generation of such forms to be printed on a sponsor's printer, however, does not eliminate the need for the Department to determine how many forms a sponsor may have—and thus, how many exchange visitors a sponsor may bring to the United States each year. Indeed, the Department assesses each sponsor's financial and staffing resources in an effort to ensure that a sponsor does not sponsor more exchange visitors than it can adequately monitor and support. The Department, therefore, will issue Forms DS–2019 to sponsors based on the current need of the sponsor, how the Department views program expansion as a policy issue, and any upcoming expressed needs of sponsors in their implementation of the program.
The commenting parties noted that the program size expansion request procedures in section 62.12(d)(2) are unclear and require further clarification from the Department. The Department respectfully disagrees. The language in the proposed regulations parallels the language in section 2.4.2 of the
Thirteen commenting parties addressed the prohibition in section 62.12(e)(2) against forwarding, via fax or other electronic means, copies or PDFs of signed or unsigned Forms DS–2019 to any unauthorized party. The parties noted that, although they appreciate the importance of keeping copies of government documents secure, the prohibition as written in the proposed rule is too rigid. One party observed that the proposed regulation does not clearly indicate if there are any “authorized parties” other than the Department of State and the Department of Homeland Security and queried whether, for example, an exchange visitor whose DS–2019 is stolen is an “authorized party” for purposes of receiving a copy of his or her own scanned DS–2019. Another commenter noted that because the original DS–2019 must be signed by the sponsor in blue ink, a precaution that permits anyone viewing the DS–2019 to distinguish readily an original from a photocopy, there is no reason to restrict a sponsor's ability to transmit a fax or PDF to any entity other than the Department of State or the Department of Homeland Security. In light of current technologies that make it easy to create counterfeit copies of documents, the Department does not wish for there to be any electronic or paper replicas of Forms DS–2019 to be available to anyone, hence, the only authorized parties are the Departments of State and Homeland Security. It would be relatively simple to remove a black signature from a copy of a Form DS–2019 and replace it with an original blue ink signature. While sponsors are certainly authorized to maintain copies of these forms for their internal files and may be called on to provide such copies to a requesting Department, the only other “versions” of Forms DS–2019 should be the original documents maintained by the exchange visitors and their accompanying spouses and dependents. Accordingly, the Department will adopt the proposed regulation as drafted.
Three commenting parties opposed the requirement in section 62.12(e)(5) that a sponsor ask exchange visitor applicants to return unused Forms DS–2019. Two of the parties pointed out that SEVIS makes this requirement obsolete. The Department agrees—as long as sponsors promptly change the status of the SEVIS records associated with the unused Forms DS–2019 to “invalid.” Otherwise, individuals with unscrupulous intentions could use a Form DS–2019 to obtain a visa to illegally enter the United States. While the Department will withdraw the requirement set forth in section 62.12(e)(5), it reminds sponsors of the
In addition, the Department deletes section 62.12(b)(2)(iii); the regulations governing the imposition of sanctions are set forth in 22 CFR 62.50.
The Department received a total of 18 comments regarding various aspects of the notification requirements section. One party stated that the wording of section 62.13(a)(1) mistakenly implies J–2 accompanying spouses and dependents will need to be validated separately from the J–1 exchange visitors they accompany or join, even though J–2s are automatically validated in SEVIS when J–1s are validated. Under the current SEVIS, a J–2's record is automatically changed from “Initial” to “Active” status upon the validation of the associated J–1 record. Accordingly, the Department modifies the language of section 62.13(a)(1) to clarify that separate validation is not necessary.
Seven parties commented on the requirement proposed at section 62.13(a)(4) that sponsors track and report early departures of accompanying spouses and dependents, stating that they had no system to track them, and that “this requirement goes beyond regulatory requirements.” The Department disagrees. There have been 30,000 J–2 visa holders that entered the United States on the Exchange Visitor Program since the program's inception. Sponsors of exchange visitors are equally responsible for tracking the whereabouts of accompanying spouses and dependents to whom they also issued Forms DS–2019. One commenting party, however, explains that there is no regulatory requirement for the J–1 exchange visitor to report to the sponsor the travel plans of his or her accompanying spouse and dependents. The Department reminds sponsors that it is incumbent upon them to draft and implement programmatic rules that allow them to satisfy the requirements in Part 62. In other words, a sponsor can easily make it a condition of bringing an accompanying spouse and dependents that the exchange visitor must report if and when they depart the United States prior to the exchange visitor. Accordingly, the Department retains the proposed language for section 62.13(a)(4).
Four parties submitted comments about the requirement proposed in section 62.13(b)(2) that a sponsor must update SEVIS to reflect any change to an exchange visitor's site of activity. This is not a new requirement: current section 62.70(a)(5) requires a sponsor to “[u]tilize SEVIS to up-date information on any exchange visitor, spouse, or dependent child for whom a SEVIS record has been created.” The purpose of the new language in section 62.13(b)(2) is to ensure that sponsors understand that an exchange visitor's site of activity is included in the SEVIS information that they are required to update.
As “site of activity” is a newly defined term, the Department understands that additional guidance is needed to inform sponsors how to accommodate certain situations. One university expressed concern at the burden of updating the (secondary) site of activity field for an exchange visitor who goes to another site “for a few days at most” to lecture or consult. Proposed regulations at section 62.13(b)(2) require a sponsor to update an exchange visitor's site of activity within ten days. Clearly, changes in activity locations that last only a few days would not need to be captured in SEVIS. Keeping in mind that a purpose of maintaining a current site of activity in SEVIS is to enable law enforcement to locate exchange visitors, in the above example, it is likely that someone at the professor's primary site of activity could provide law enforcement with the professor's itinerary. However, if an individual had both a permanent office and a lab site, it would be appropriate to enter as the primary address, the one at which the exchange visitor was primarily located, and to enter the other as secondary. The collection of this data will remain in the final rule.
When a nonimmigrant enters the United States and reports to his or her exchange visitor program sponsor, the sponsor must note this occurrence in SEVIS through the validation process, thereby demonstrating that the exchange visitor is currently present in the United States and is participating in his or her exchange visitor program identified on the Form DS–2019 used to enter the United States. For the purpose of this rulemaking, the 30-day requirement for validation remains unchanged, with the exception of those exchange visitors participating in a program of which the maximum duration of the program is less than 30 days. Section 62.8(b), regarding minimum duration of program, requires a sponsor, other than a federal government agency, to provide each exchange visitor, with the exception of Short-term Scholar, with a minimum period of participation in the United States of no less than three weeks. When an exchange program is less than three weeks, the requirement to validate the SEVIS record within 30 days of the Program Start Date does not work. Therefore, the SEVIS record with a program duration of less than 30 days must be validated before the Program End Date listed in SEVIS. Failure to validate a nonimmigrant's SEVIS record (e.g., before the Program End Date for program durations of less than 30 days or within 30 days of the Program Start Date for programs with a program duration of 30 days or greater) will result in the automatic change of the status of a SEVIS record to “Invalid” (when no Port of Entry information is contained on the SEVIS record) or “No Show” (when Port of Entry information is present on the SEVIS record). A record in “Invalid” status indicates that a foreign national did not use the associated Form DS–2019 to enter the United States. A record in “No Show” status indicates that the nonimmigrant entered the country, but failed to commence participation in the exchange visitor program for which he or she entered the United States. It is important to recognize that a SEVIS record in “No Show” status is a negative indicator that alerts the proper authorities that the individual failed to comply with the requirements of the Exchange Visitor Program regulations by entering the United States with no intention of reporting to his or her sponsor. Sponsors must use caution and timely validate SEVIS records or they could change to “No Show” status and unintentionally create a negative nonimmigrant history for the exchange visitor, thereby impacting his or her application for visas in the future.
Sponsors should realize that Invalid and No Show records will appear on the sponsor's Form DS–3097, Annual Report, and may be of concern to the Department's Office of Designation when processing Form DS–2019 allotment requests or applications for redesignation. Failure to validate SEVIS records also may impact a sponsor's allotment of available SEVIS records and the administrative actions that are required (by both the sponsor officials and the Department of State officials) to correct the SEVIS status of the records; and is evidence of a sponsor's failure to comply with program regulations.
Three parties commented on proposed section 62.13(a)(3), which provides that a sponsor must report in SEVIS any withdrawal from or early completion of an exchange visitor's program. One party suggested changing the functionality of SEVIS to allow a sponsor to enter a retroactive date in the “Complete Program More than 30 days Before Program End Date” field. The second party urged the Department to make reference to the impending
Current section 62.13(c)(8) requires sponsors to report the loss or theft of Forms DS–2019 to the Department by telephone. Two commenting parties asked the Department to reconsider this requirement and instead permit sponsors to report this information via email or in SEVIS. The Department agrees with this suggestion and, accordingly, will change section 62.13(c)(8) to permit such information to be reported by telephone or email.
Section 62.13(d), which has been changed to require sponsors to inform the Department of any serious problem or controversy on or before the next business day, inspired two comments. One party asked the Department to keep the language “promptly” rather than change the operative language to “on or before the next business day.” The Department believes that “promptly” was too vague a standard to guide sponsors in the event of a serious problem or controversy. Thus the Department will adopt the wording “on or before the next business day.” The other party asked that the Department more explicitly define or provide examples of what might constitute a “serious problem or controversy.” Examples of such instances are death or serious injury of an exchange visitor, sexual abuse, or any other event that could bring the Department or the Exchange Visitor Program into notoriety or disrepute.
In addition, the Department deletes section 62.13(b)(1)(iii); the regulations governing the imposition of sanctions are set forth in 22 CFR 62.50.
This rule increases by $50,000 the level of insurance coverage a sponsor must require its exchange visitors (and accompanying spouses and dependents) to maintain for the duration of their exchange visitor program participation, as reflected on their Forms DS–2019 (i.e., from the “Program Begin Date” through the “Program End Date”). Many sponsors already require insurance policies for their exchange visitors at a higher level of coverage than the current regulations require. Although the regulations do not require “entry to exit” insurance coverage, the Department strongly encourages sponsors to offer this highly desirable coverage.
The Department received a total of 47 comments regarding the insurance provisions. Of those, 37 parties supported the increased amounts, nine parties opposed the proposed changes, and two parties neither agreed nor disagreed but made further inquiries about acceptable ratings. The majority of the comments recognized the need for an increase in the health insurance coverage amounts. However, some commenters indicated that the amount of coverage of $200,000 per accident or illness was too high and that $100,000 would be sufficient. The Department has further reviewed insurance levels and recommendations and agrees that $100,000 is an acceptable level of coverage per accident or illness. The Department also has adopted, as prompted by two of the comments, two additional insurance ratings: the “A-” rating by Fitch Ratings, Inc. and the “A3” rating by Moody's Investor Services. Thirteen of the commenting parties asked the Department to delay or provide a grace period for implementation of the new insurance requirements in order to give sponsors time to enter into new contracts with insurance carriers. The Department understands that current contracts must be fulfilled and that it will take some time to put new agreements in place. Therefore, the new insurance requirements will go into effect on January 1, 2015. Three comments suggested deletion of proposed section 62.14(j), which gives the Secretary of State the authority to update new mandatory minimum levels of insurance coverage. The comments argued that this power is too broad and that, in any event, changes to minimum insurance coverage requirements should go through the full regulatory review process. The Department agrees and has deleted this provision from section 62.14.
Sponsors must submit annual reports to the Department, to be generated through SEVIS. Such report must be filed on an academic (July 1–June 30), calendar (January 1–December 31), or fiscal (October 1–September 30) year basis, as directed by the Department. The annual report has recently been updated in SEVIS to reflect the changes made on the Department's Form DS–3097 (Annual Report). The statistical calculations for the number of exchange visitors each year is taken directly from SEVIS records. Sponsors may input answers to the narrative questions on Form DS–3097 in SEVIS; however, they must continue to print the form, sign the certification, and mail it to the Department until the implementation of the next version of SEVIS. In addition, the Department deletes Appendix D to Part 62 in light of the collection of information through Form DS–3097 (Annual Report Form) (OMB collection 1405–0151).
The Department received 11 comments regarding section 62.15(e)(2) of the proposed rule (now identified as section 62.15(a)(5)(ii) in this rulemaking), eight of which opposed the stipulation that only the Chief Financial Officer of an academic, medical, and private sector entity is authorized to sign its annual report. The annual report form already permits the Responsible Officer's signature; therefore, the Department revises section 62.15(a)(5)(ii) to permit an institution's Chief Executive Officer or Responsible Officer to sign the institution's annual report.
To strengthen program oversight, proposed section 62.15(e)(3) (now identified as section 62.15(b) in this rulemaking) requires management reviews, currently utilized in the Au Pair category, for Private Sector Program sponsors, which includes the categories of Trainees, Interns, Teachers, Secondary School Students, Camp Counselors, Au Pairs, Alien Physician, and Summer Work Travel. The Department received 59 comments on the proposed management audit requirement, 23 of which were in favor of the new requirement, 35 of which were opposed, and one of which requested clarification on the cost and a list of recommended auditors. Twenty-three comments recognized the value of a management audit yet still raised concerns about the financial impact of such audits on small entities, the financial impact on organizations that hold designations in multiple categories of exchange, and the requirement that audits be conducted annually.
A management review or audit, as it was previously referred to, is a review of a sponsor's internal controls. The management review identifies weaknesses in operating procedures in the conduct of an organization's business and in meeting regulatory requirements in the administration of its exchange visitor program or programs. Requiring a management review would give the Office of Exchange Coordination and Compliance an additional tool to assess the extent to which designated private sector exchange sponsors comply with the Exchange Visitor Program regulations. The Department will provide sponsors with a format and schedule of the management review timeframe. The Department intends to roll out the management reviews beginning with the secondary school student category. Initial management reviews will be due four months after the end of each category's annual cycle. Management reviews for the other categories will be implemented on different schedules in order to spread out the due dates over a two-year period. Sponsors that administer exchange programs funded fully by federal, state, or local governments (e.g., public school systems) are exempt from the management review requirement. These exchange programs are audited under other governmental requirements.
Sponsors are required to engage independent auditors to perform the management reviews, including reviewing internal operating procedures of the sponsor and the files of a statistically valid sampling of the sponsor's exchange visitors.
Three commenting parties set forth general concerns about proposed section 62.15(f) (now identified as section 62.15(a)(6) in this rulemaking), which requires sponsors to report a numerical count, by category, of all exchange visitors participating in the sponsor's program for the reporting year. Specifically, the comments called into question the accuracy of such data before any SEVIS revision were to go into effect. The Department and SEVIS have addressed these concerns since publication of the proposed rule. The new annual report form, Form DS–3097, was implemented in SEVIS in April 2011.
Five commenting parties also opposed the characterization, in the Supplementary Information section of the proposed rule, of certain exchange visitor program categories as “high risk.” These parties stated that, although the exchange community understands the special vigilance required for certain programs where the majority of exchange visitors are minors, the Department has publicly noted on several occasions that the overall number of problematic incidents is low. Using this language gives an inaccurate impression to the general public, policymakers, and U.S. embassy staff who may not be familiar with these programs. The Department agrees and eliminates from the Final Rule language describing certain Exchange Visitor Program categories as “high risk.”
As discussed above with respect to section 62.10, the Department has eliminated the requirement that sponsors collect Employment Authorization Document numbers for accompanying spouses and dependents. Accordingly, section 62.16(c) has also been amended to remove all reference to the collection of Employment Authorization Document numbers. Further, the language has been updated to reference the Department of Homeland Security and not the now defunct Immigration and Naturalization Services (INS).
The Department of State is of the opinion that the Exchange Visitor Program is a foreign affairs function of the U.S. Government and that rules implementing this function are exempt from sections 553 (Rulemaking) and 554 (Adjudications) of the Administrative Procedure Act (APA). The U.S. Government, by policy and longstanding practice, oversees foreign nationals who come to the United States as participants in exchange visitor programs, either directly or through private sector program sponsors or grantees. When problems occur, the U.S. Government is often held accountable by foreign governments for the treatment of their nationals, regardless of who is responsible for the problems. The purpose of this final rule is to amend the general administrative provisions for the Exchange Visitor Program, and associated Appendices, in accordance with the Act and to take steps to protect the health, safety and welfare of foreign nationals entering the United States (often on programs funded by the U.S. Government) for a finite period of time and with a view that they will return to their countries of nationality upon completion of their programs. The Department of State represents that failure to take steps to protect the health, safety and welfare of these foreign nationals will have direct and substantial adverse effects on the foreign affairs of the United States. Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department previously published this rule as a notice of proposed rulemaking, with a 60-day provision for public comment; and it is now publishing this rule as a final rule with a 60-day provision for public comment. This is without prejudice to its determination that the Exchange Visitor Program is a foreign affairs function.
This final rule is not a major rule as defined by 5 U.S.C. 804 for the purposes of Congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801–808). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
This final rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million in any year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.
Since this final rule is exempt from 5 U.S.C. 553, and no other law requires the Department of State to give notice of proposed rulemaking, it is not subject to the Regulatory Flexibility Act (5 U.S.C. 601,
The Department notes that the final rule will affect the operations of the nearly 1,400 sponsors designated by the Department to conduct exchange programs. These 1,400 sponsors bring into the United States close to 300,000 new exchange visitors annually. The Department has not conducted a study of how many of its sponsors are small businesses. However, even if all of the 1,400 sponsors are stipulated to be small businesses, the proposed changes to the regulations would not be expected to have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C. 601–612 and Executive Order 13272, section 3(b).
The Department has not specifically studied the effect of this regulation on small businesses. However, it estimates the cost of a management review, whose parameters the Department may define, to be around $10,000. There is a cost of around $3–5 per person for an instant electronic-type of background check or $15 per person cost for one where local documentation is reviewed electronically. These types of checks meet the standard outlined in the regulation. Health insurance should not cause an increase in sponsor costs, as most sponsors are already requiring insurance at the level noted in the rulemaking, if not higher. The vast majority of exchange visitors pay for their own insurance and buy from a variety of vendors with different costs that are affected by myriad factors.
The cost per small business is estimated at around $10,000 every two years for the management review. The cost, on average, is $48–$180 every four years for background checks based on an average of three to six ROs/AROs per sponsor.
The Office of Advocacy, Small Business Administration, submitted a public comment letter on this rule. The Office was concerned with the Department of State's use of the foreign affairs exemption, the use of the Interim Final Rule format, and the lack of small business data to justify this certification. After receiving and analyzing the aforementioned 656 comments and after consultation with the affected stakeholders, a number of changes were made to the proposed regulation. The Department removed the requirement for sponsors to collect a Dun & Bradstreet number on the organization and affiliated third parties, which would have been a cost to sponsors of several hundred dollars each. In addition, the expense of required pre-designation on-site reviews to sponsors was removed, which also would have cost sponsors several hundred dollars each.
After revising the proposed rule, the Department again reviewed the regulations being promulgated in this Final Rule in order to determine if they would potentially have a significant economic impact on any other small entities using the J-visa. Other than those comments received regarding management audits, no other commenters claimed that there would be a potential significant economic impact on small entities.
Accordingly, the Department has determined that the Final Rule is not expected to have an economic impact on a substantial number of small entities.
The Department is of the opinion that the Exchange Visitor Program is a foreign affairs function of the U.S. Government and that rules governing the conduct of this function are exempt from the requirements of Executive Order 12866. However, the Department has nevertheless reviewed the final rule to ensure its consistency with the regulatory philosophy and principles set forth in those Executive Orders. The following number of sponsors and participants will be affected by regulatory changes (note that the total number of sponsors in the table adds up to more than 1,400, since many sponsors cover more than one category of exchange visitor):
The Department acknowledges an increased paperwork burden on the 1,400 sponsors that participate in the exchange visitor program. The reasons for these requirements were explained above, and will be explained in detail when the respective information collections are updated. However, to summarize, these requirements will enhance the safety and security of the exchange visitor exchange visitors (some of whom are vulnerable minors) and will support interagency national security efforts by ensuring that reputable individuals have access to SEVIS. The increased costs, as explained in the preamble above, will involve the cost of criminal background checks for personnel assigned to each of the sponsors, which we estimate to be less than $10 per person, for an average
The general provisions section (Subpart A) has not been amended since March 19, 1993. Exchange programs conducted under the authorities of the Exchange Visitor Program promote mutual understanding by providing exchange visitors an understanding of and an appreciation for the similarities and differences between their own culture and that of the United States. Upon their return home, the exchange visitors enrich their communities with their fresh perspectives of U.S. culture and events. Although this is an intangible benefit, one that is not easily quantified, the Department finds that the benefits of this rulemaking outweigh its costs. The Department has reviewed this rulemaking in light of Executive Order 13563, and finds that it is consistent with the guidance therein.
The Department of State has reviewed this final rule in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
This regulation will not have 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. Executive Order 12372, regarding intergovernmental consultation on federal programs and activities, does not apply to this regulation.
The information collection requirements contained in this final rule are pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35 and OMB Control Number 1405–0147, Form DS–7000, which requires collection of additional information for the Exchange Visitor Program. (See 78 F.R. 38429, June 26, 2013).
Cultural exchange programs, Reporting and recordkeeping requirements.
Accordingly, 22 CFR Part 62 is amended as follows:
22 U.S.C. 2651a; 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431
(a) The regulations set forth in this part implement the Mutual Educational and Cultural Exchange Act of 1961 (the “Act”), as amended, Public Law 87–256, 22 U.S.C. 2451,
(b) The Secretary of State of the Department of State facilitates activities specified in the Act, in part, by designating public and private entities to act as sponsors of the Exchange Visitor Program. Sponsors may act independently or with the assistance of third parties. The purpose of the Program is to provide foreign nationals with opportunities to participate in educational and cultural programs in the United States and return home to share their experiences, and to encourage Americans to participate in educational and cultural programs in other countries. Exchange visitors enter the United States on a J visa. The regulations set forth in this subpart are applicable to all sponsors.
(c) The Assistant Secretary for Educational and Cultural Affairs of the Department of State may, in his or her sole discretion and to the extent consistent with the authorities described in paragraph (a) of this section and other applicable law, waive or modify any provision of this Part with respect to programs that are established pursuant to memoranda of understanding, letters of intent or similar arrangements between the United States and foreign governments. When establishing such a program, the Department will publish a notice in the
The following definitions apply to this part:
(1) Secondary school students must satisfy the attendance and course requirements of the state in which the school they attend is located; and
(2) College and university students must register for and complete a full course of study, as defined by the accredited academic institution in which the student is registered, unless exempted in accordance with § 62.23(e).
(1) A general or limited partnership created or organized under the laws of the United States, or of any state, the
(i) Which has its principal place of business in the United States; and
(ii) In instances where the partnership is additionally governed by a Board, the majority of whose officers are United States persons.
(2) A for-profit corporation, association, or other legal entity created or organized under the laws of the United States, or of any state, the District of Columbia, or a territory or outlying possession of the United States, whose principal place of business is located in the United States, and
(i) Whose shares or voting interests are publicly traded on a U.S. stock exchange; or
(ii) A majority of whose officers, a majority of whose shareholders, and a majority of whose members of its Board of Directors are United States persons and collectively hold a majority of the shares or stock (i.e., the
(3) A non-profit corporation, association, or other legal entity created or organized under the laws of the United States, or any state, the District of Columbia, or any territory or outlying possession of the United States; and
(i) Whose principal place of business is located in the United States; and
(ii) A majority of whose officers and a majority of whose members of its Board of Directors, Board of Trustees or other like body vested with its management are United States persons; or
(4) An accredited college, university, or other post-secondary academic institution in the United States created or organized under the laws of the United States, or of any state, county, municipality, or other political subdivision thereof, the District of Columbia, or of any territory or outlying possession of the United States; or
(5) An agency of the United States, or of any state or local government, the District of Columbia, or any territory or outlying possession of the United States.
(a) The following types of entities are eligible to apply for designation as a sponsor of an exchange visitor program:
(1) U.S. local, state, and federal government agencies to include the District of Columbia; and government agencies of any U.S. territories and outlying possessions;
(2) International agencies or organizations of which the United States is a member and that have an office in the United States; or
(3) Reputable organizations that are United States Persons.
(b) To be eligible for designation as a sponsor, an entity is required to:
(1) Demonstrate, to the Department of State's satisfaction, its ability to comply and remain in continual compliance with all applicable provisions of this part;
(2) Meet at all times its financial obligations and responsibilities attendant to successful sponsorship of its exchange visitor program; and
(3) Demonstrate that the organization or its proposed Responsible Officer has no fewer than three years' experience in international exchange.
Sponsors select foreign nationals to participate in exchange visitor program(s) in the United States. Participation is limited to foreign nationals who meet the following criteria for each of the following categories:
(a)
(1) Studying in the United States and:
(i) Pursuing a full course of study at a secondary accredited academic institution;
(ii) Pursuing a full course of study leading to or culminating in the award of a U.S. degree from a post-secondary accredited academic institution; or
(iii) Engaged full-time in a prescribed course of study of up to 24 months (non-degree) duration conducted by:
(A) A post-secondary accredited academic institution; or
(B) An institute approved by or acceptable to the post-secondary accredited academic institution, where the student is to be enrolled upon completion of the non-degree program;
(2) Engaged in academic training as permitted in § 62.23(f);
(3) Engaged in English language training at:
(i) A post-secondary accredited academic institution, or
(ii) An institute approved by or acceptable to the post-secondary accredited academic institution where the college or university student is to be enrolled upon completion of the language training; or
(4) Engaged full-time in a student internship program conducted by a post-secondary accredited academic institution.
(b)
(c)
(1) A degree or professional certificate from a foreign ministerially-recognized post-secondary academic institution and at least one year of prior related work experience in his or her occupational field acquired outside the United States; or
(2) Five years of work experience in his or her occupational field acquired outside the United States.
(d)
(e)
(f)
(g)
(h)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(i) Is currently enrolled full-time in and actively pursuing studies at a foreign ministerially-recognized degree- or certificate-granting post-secondary academic institution outside the United States, or
(ii) Graduated from such an institution no more than 12 months prior to the exchange visitor program begin date reflected on Form DS–2019.
(a) An entity meeting the eligibility requirements set forth in § 62.3 may apply to the Department of State for designation as an Exchange Visitor Program sponsor. An applicant must first complete and submit Form DS–3036 in SEVIS. The complete application must consist of:
(1) A completed copy of Form DS–3036 signed by the applicant's Chief Executive Officer, President, or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization's governing documents);
(2) Required supporting documentation and certifications as set forth in paragraph (c); and
(3) Confirmation of payment of the required non-refundable application fee through pay.gov as set forth in § 62.17.
(b) A complete application must set forth, in detail, the applicant's proposed exchange program activity and must demonstrate, to the Department of State's satisfaction, the applicant's ability to comply and remain in continual compliance with all the provisions of this part, and, in particular, to meet the sponsor eligibility requirements set forth in § 62.3 and the general obligations of sponsors set forth in § 62.9.
(c) An application must be accompanied by the following supporting documentation and certifications, as relevant:
(1) Evidence of sponsor eligibility as set forth in § 62.3(a), including evidence of legal status (e.g., charter, proof of incorporation, by laws, partnership agreement);
(2) Evidence of experience in operating a successful business, including a minimum of three years of experience in international exchange by the organization or by the proposed Responsible Officer;
(3) Evidence of the applicant's ability to meet at all times its financial obligations and responsibilities attendant to successful sponsorship of its exchange visitor program, and evidence that it can comply with § 62.9(e) and provide any supplemental or explanatory financial information the Department of State may request. In addition:
(i) An established entity must present a current audit report with audit notes prepared by an independent certified public accounting firm.
(ii) A newly formed entity must present a compilation (i.e., a balance sheet, statement of cash flows and all disclosures, revenues, expenditures, and notes to financial statements) prepared by an independent certified public accounting firm demonstrating that the entity has been capitalized with sufficient funds to cover general operating expenses and costs associated with an exchange program.
(4) A current Certificate of Good Standing (see § 62.2);
(5) An Employer Identification Number (EIN), which specifies the date of issuance;
(6) Evidence of current accreditation if the applicant is a secondary or post-secondary academic institution;
(7) Evidence of current licensure, if required by local, state, or federal law, to carry out the activity for which the applicant is seeking designation;
(8) A statement signed by the Chief Executive Officer, President, or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization's governing documents), certifying that:
(i) The applicant is a United States Person as defined in § 62.2;
(ii) The proposed Responsible Officer and all proposed Alternate Responsible Officers are United States citizens or lawful permanent residents of the United States;
(iii) The sponsor has completed a criminal background check on the potential Responsible Officer and all Alternate Responsible Officers, and has determined their suitability for these positions; the criminal background checks must be no older than four years at any time for re-designated sponsors and must be newly conducted as part of the designation application for new sponsors and the redesignation application for sponsors designated for only one year; and
(iv) The Responsible Officer will be provided sufficient staff and resources to fulfill his or her duties and obligations on behalf of the applicant;
(9) A completed SEVIS-generated Citizenship Certification for the proposed Responsible Officer and all proposed Alternate Responsible Officer(s) along with evidence that they are citizens of the United States or lawful permanent residents (e.g., copy of passport, birth certificate, green card); and
(10) Such additional information or documentation that the Department of State may deem necessary to evaluate the application. In addition, the Department may decide, in its
(a) Upon its favorable determination that an applicant meets all statutory and regulatory requirements, the Department of State may, in its sole discretion, designate the applicant as an Exchange Visitor Program sponsor.
(b) Initial designations are effective for one or two years at the sole discretion of the Department of State.
(c) Designation will confer upon a sponsor the authority to engage in one or more activities specified in § 62.4. A sponsor may engage only in the activity or activities specifically authorized in its written letter of designation.
(d) The Department of State may, in its sole discretion, require a sponsor to secure a payment bond in favor of the Department of State guaranteeing the sponsor's obligations hereunder.
(e) Designations are not transferable or assignable.
(a) Sponsors must file for redesignation no more than six months and no fewer than three months before the designation expiration date as set forth in the sponsor's letter of designation or its most recent letter of redesignation.
(b) A sponsor seeking redesignation as an Exchange Visitor Program sponsor must first complete and submit Form DS–3036 in SEVIS. The complete application must consist of:
(1) A completed copy of Form DS–3036, signed by the sponsor's Chief Financial Officer, President or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization's governing documents);
(2) Required supporting documentation and certifications as set forth in paragraph (c); and
(3) Confirmation of payment of the required non-refundable application fee through pay.gov as set forth in § 62.17.
(c) The complete application must include the following supporting documentation and certifications:
(1) A copy of the most recent year-end financial statements;
(2) A copy of the most recent letter of accreditation if the sponsor is a secondary or post-secondary academic institution;
(3) A list of the names, addresses and citizenship or legal permanent resident status of the current members of its Board of Directors or the Board of Trustees or other like body, vested with the management of the organization or partnership, and/or the percentage of stocks/shares held, as applicable;
(4) For a non-profit organization, a signed copy of the sponsor's most recent Form 990 filed with the Internal Revenue Service;
(5) A statement signed by the Chief Executive Officer, President, or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization's governing documents) certifying that the sponsor has completed timely criminal background checks since the date of the last designation or redesignation letter on the Responsible Officer and all Alternate Responsible Officers and has determined their suitability for these positions; and
(6) Such additional information or documentation that the Department of State may deem necessary to evaluate the application.
(d) Upon its favorable determination that a sponsor meets all statutory and regulatory requirements, the Department of State may, in its sole discretion, redesignate the organization as an Exchange Visitor Program sponsor for one or two years. A sponsor seeking re-designation may continue to operate its program(s) until such time as the Department of State notifies it of a decision to approve, amend or terminate its designation.
(a)
(b)
(c)
(d)
(1) Offer or make available to exchange visitors and the accompanying spouses and dependents, if any, a variety of appropriate cross-cultural activities. The extent and type of the cross-cultural activities will be determined by the needs and interests of the particular category of exchange visitor. Sponsors will be responsible for determining the appropriate types and numbers of such cross-cultural programs, unless otherwise specified by the Department. The Department of State encourages sponsors to give their exchange visitors the broadest exposure to American society, culture and institutions; and
(2) Encourage exchange visitors to participate voluntarily in activities that are for the purpose of sharing the language, culture, or history of their home country with Americans, provided such activities do not delay the completion of the exchange visitors' program.
(a)
(b)
(c)
(d)
(1) Provide accurate, complete, and timely information, to the extent lawfully permitted, to the Department of State and the Department of Homeland Security regarding their exchange visitor program(s), exchange visitors, and accompanying spouses and dependents (if any);
(2) Provide accurate information to the public when advertising their exchange visitor program(s) or responding to public inquiries;
(3) Provide accurate program information and materials to prospective exchange visitors, host organizations, and host employers, if applicable, at the time of recruitment and before exchange visitors enter into agreements and/or pay non-refundable fees. This information must clearly explain program activities and terms and conditions of program, including the terms and conditions of any employment activities (job duties, number of work hours, wages and compensation, and any typical deductions for housing and
(4) Not use the program number(s) assigned by the Department of State at the time of designation on any advertising materials or publications, including sponsor Web sites; and
(5) Not represent that its exchange visitor program is endorsed, sponsored, or supported by the Department of State or the U.S. Government, except for U.S. Government sponsors or exchange visitor programs financed directly by the U.S. Government to promote international educational exchanges. A sponsor may, however, represent that it is designated by the Department of State as a sponsor of an exchange visitor program.
(e)
(2) The Department of State may require non-government sponsors to provide evidence satisfactory to the Department of State that funds necessary to fulfill all obligations and responsibilities attendant to sponsorship of their exchange visitor programs are readily available and in the sponsor's control, including such supplementary or explanatory financial information as the Department of State may deem appropriate, such as, for example, audited financial statements.
(3) The Department of State may require a non-government sponsor to secure payment bonds in favor of the Department of State guaranteeing all financial obligations arising from its exchange visitor program when the Department has reasonable doubt about the sponsor's ability to meet its program and other financial obligations.
(f)
(1) Adequate staffing and sufficient support services are provided to administer their exchange visitor program; and
(2) Their employees, officers, agents, third parties, volunteers or other individuals or entities associated with the administration of their exchange visitor program are adequately qualified, appropriately trained, and comply with the Exchange Visitor Program regulations and immigration laws pertaining to the administration of their exchange visitor program(s).
(g)
(2) Responsible Officers and Alternate Responsible Officers must be employees or officers of the sponsor. Upon written sponsor request, the Department of State may, in its sole discretion, authorize the appointment of an individual who is not an employee or officer to serve as an Alternate Responsible Officer.
(3) In the event of the departure of a Responsible Officer or Alternate Responsible Officer, the sponsor must file a request in SEVIS for the approval of a replacement and forward the required documentation to the Department of State within ten calendar days from the date of the Responsible Officer's or Alternate Responsible Officer's departure.
(4) Requests to replace the Responsible Officer or add an Alternate Responsible Officer must be submitted in SEVIS, and a signed Form DS–3037 must be either mailed or emailed to the Department of State with the required completed Citizenship Certification, along with certification that the individual has undergone a criminal background check conducted at the time of such Certification.
(5) The Department of State reserves the right to deny the appointment of a Responsible Officer or an Alternate Responsible Officer.
Sponsors are responsible for the effective administration of their exchange visitor program(s). These responsibilities include:
(a)
(1) The program is suitable to the exchange visitor's background, needs, and experience; and
(2) The exchange visitor possesses sufficient proficiency in the English language, as determined by an objective measurement of English language proficiency, successfully to participate in his or her program and to function on a day-to-day basis. A sponsor must verify an applicant's English language proficiency through a recognized English language test, by signed documentation from an academic institution or English language school, or through a documented interview conducted by the sponsor either in-person or by videoconferencing, or by telephone if videoconferencing is not a viable option.
(b)
(1) The purpose of the Exchange Visitor Program;
(2) The home-country physical presence requirement;
(3) Travel to and entry into the United States (e.g., procedures to be followed by exchange visitors and accompanying spouses and dependents in paying SEVIS fees and obtaining visas for entry to the United States, including the information and documentation needed for the interview; travel arrangements to the United States, and what to expect at the port of entry, including the necessity of having and presenting travel documents at the port of entry);
(4) Housing, including specific information on what housing is provided by the program or otherwise available and the expected cost to the exchange visitor;
(5) An itemized list of all fees to be paid by a potential exchange visitor (i.e.,
(6) Description and amount of other costs that the exchange visitor will likely incur (e.g., insurance, living expenses, transportation expenses) while in the United States;
(7) Health care and insurance description, costs, and requirements for exchange visitors and their accompanying spouse and dependents, as applicable;
(8) Arrival notification requirements (e.g., procedures that exchange visitors, spouses and dependents are to follow upon entry into the United States in reporting their arrival to the sponsor and reporting to the location of their program); and
(9) Other information that will assist exchange visitors to prepare for their stay in the United States (e.g., how and when to apply for a social security number, if applicable; how to apply for a driver's license; how to open a bank account; employee rights and laws, including workman's compensation; and how to remain in lawful non-immigrant status.
(c)
(1) Life and customs in the United States;
(2) Local community resources (e.g., public transportation, medical centers, schools, libraries, recreation centers, and banks), to the fullest extent possible;
(3) Available healthcare, emergency assistance, and health insurance coverage;
(4) A description of the exchange visitor program in which the exchange visitor is participating such as information on the length and location of the program; a summary of the significant components of the program; information on any payment (i.e., stipend or wage) an exchange visitor will receive; and deductions from wages, including for housing and transportation;
(5) Sponsor rules that exchange visitors are required to follow while participating in their exchange visitor program;
(6) Name and address of the sponsor and the name, email address, and telephone number of the Responsible Officer and Alternate Responsible Officer(s);
(7) The Office of Designation's address, telephone number, facsimile number, Web site and email address, and a copy of the Exchange Visitor Program brochure or other Department of State materials as appropriate or required;
(8) Wilberforce Pamphlet on the Rights and Protections for Temporary Workers; and
(9) The requirement that an exchange visitor must report to the sponsor or sponsor designee within ten calendar days any changes in his or her telephone number, email address, actual and current U.S. address (i.e., physical residence), and site of activity (if the exchange visitor is permitted to make such change without prior sponsor authorization).
(d)
(1) Ensure that the activities in which exchange visitors are engaged are consistent with the category and activity listed on their Forms DS–2019;
(2) Monitor the physical location (site of activity), and the progress and welfare of exchange visitors to the extent appropriate for the category;
(3) Require that exchange visitors report to the sponsor within ten calendar days any changes in their telephone numbers, email addresses, actual and current U.S. addresses (i.e., physical residence), and site(s) of activity (if the exchange visitor is permitted to make such change without prior sponsor authorization);
(4) Report in SEVIS within ten business days of notification by an exchange visitor any change in the exchange visitor's actual and current U.S. address, telephone number, email address, and/or primary site of activity; and
(5) Report the email address for each accompanying spouse and dependent.
(e)
(f)
(g)
Responsible Officers must train and supervise Alternate Responsible Officers and ensure that these officials are in compliance with the Exchange Visitor Program regulations. Responsible Officers and Alternate Responsible Officers must:
(a) Be thoroughly familiar with the Exchange Visitor Program regulations, relevant immigration laws, and all federal and state regulations and laws pertaining to the administration of their exchange visitor program(s), including the Department of State's and the Department of Homeland Security's policies, manuals, instructions, and guidance on SEVIS and all other operations relevant to the Exchange Visitor Program; if Responsible Officers and Alternate Responsible Officers work with programs with an employment component, they also must have a detailed knowledge of federal, state, and local laws pertaining to employment, including the Fair Labor Standards Act;
(b) Monitor that the exchange visitor obtains sufficient advice and assistance to facilitate the successful completion of his or her exchange visitor program;
(c) Conduct all official communications relating to their sponsor's exchange visitor program with the Department of State and the Department of Homeland Security. A sponsor must include its exchange visitor program number on all
(d) Monitor to ensure that that sponsor spam filters do not block receipt of SEVIS or Department of State and Department of Homeland Security notices; and
(e) Control and issue Forms DS–2019 as set forth in § 62.12.
(a)
(1) Grant access only to Responsible Officers and Alternate Responsible Officers and ensure that they have access to and use SEVIS to update required information;
(2) Ensure that Responsible Officers and Alternate Responsible Officers input into SEVIS accurate, current, and updated information in accordance with these regulations; and
(3) Issue Forms DS–2019 only for the following authorized purposes:
(i) To facilitate the initial entry of the exchange visitor and accompanying spouse and dependents, if any, into the United States;
(ii) To extend the duration of participation of an exchange visitor, when permitted by the regulations and authorized by the Department of State;
(iii) To facilitate program transfers, when permitted by the regulations and/or authorized in writing by the Department of State;
(iv) To replace lost, stolen, or damaged Forms DS–2019;
(v) To facilitate the re-entry into the United States of an exchange visitor and accompanying spouse and dependents, if any, who travel outside the United States during the exchange visitor's program;
(vi) To facilitate a change of category, when requested in SEVIS and authorized by the Department of State;
(vii) To update information when significant changes take place in regard to the exchange visitor's program (e.g., a substantial change in funding, a change in the primary site of activity or a change in actual and current U.S. address);
(viii) To facilitate the correction of a minor or technical infraction; or
(ix) To facilitate a “reinstatement” or a “reinstatement update SEVIS status” when permitted by the Department of State.
(b)
(i) Is eligible and qualified for, and accepted into, the program in which he or she will participate;
(ii) Possesses adequate financial resources to participate in and complete his or her exchange visitor program; and
(iii) Possesses adequate financial resources to support an accompanying spouse and dependents, if any.
(2) Sponsors must ensure that:
(i) Only Responsible Officers or Alternate Responsible Officers who are physically present in the United States or in a U.S. territory may print and sign Forms DS–2019; and
(ii) Only the Responsible Officer or the Alternate Responsible Officer, whose name is printed on the Form DS–2019, is permitted to sign the document. The Form DS–2019 must be signed in blue ink to denote that it is the original document.
(c)
(d)
(2) Expansion of Program. A request for program expansion must include information such as, but not limited to, the source of program growth, staff increases, confirmation of adequately trained employees, noted programmatic successes, current financial information, additional overseas affiliates, additional third party entities, explanations of how the sponsor will accommodate the anticipated program growth, and any other information requested by the Department. The Department of State will take into consideration the current size of a sponsor's program and the projected expansion of the program in the coming 12 months and may consult with the Responsible Officer and/or Alternate Responsible Officer prior to determining the number of Forms DS–2019 to issue to a sponsor.
(e)
(2) Sponsors, their employees, officers, agents, or other third parties acting on behalf of the sponsor, may not forward to any unauthorized party (via facsimile or other electronic means) copies or Portable Document Formats (PDFs) of signed or unsigned Forms DS–2019. However, sponsors must forward such copies and/or PDFs to the Department of State or the Department of Homeland Security upon request.
(3) Sponsors must use the reprint function in SEVIS in the event the exchange visitor's Form DS–2019 has been lost or stolen.
(4) Sponsors must destroy any damaged and/or unusable Form DS–2019 on the sponsor's premises after making a record of such forms (e.g., forms with errors or forms damaged by a printer).
(a)
(1) Validation of program participation. Sponsors must promptly validate an exchange visitor's participation in their program. This will change the status of the exchange visitor's SEVIS record from “Initial” to “Active.” SEVIS records with program durations (e.g., the period between the “Program Begin Date” and “Program End Date”) of 30 days or more must be validated within 30 days following the “Program Begin Date” identified in SEVIS. SEVIS records with program durations that are less than 30 days must be validated prior to the “Program End Date” reflected in SEVIS. As part of the validation process, sponsors may amend the program begin date and must update the SEVIS record to reflect the actual and current U.S. address and site of activity in SEVIS. The status of SEVIS records that are not validated according to this schedule will automatically change to “Invalid” or “No Show”. Accompanying spouses and dependents' SEVIS records are automatically validated upon validation of the exchange visitors' SEVIS records.
(2) Failure of an exchange visitor to begin program. Sponsors must report in SEVIS, no later than 30 calendar days after the “Program Begin Date” listed in SEVIS, the failure of an exchange visitor to report to his or her sponsor upon entry in the United States (i.e., failure of exchange visitor to begin an exchange visitor program as scheduled). This will change the status of the exchange
(3) End of an exchange visitor's program. Sponsors must report in SEVIS any withdrawal from or early completion of an exchange visitor's program that occurs prior to the “Program End Date” listed in SEVIS on the exchange visitor's Form DS–2019. Sponsors must not alter the “Program End Date” field, but should enter the date of program completion in the “Effective Date of Completion” field. This will change the status of the exchange visitor's SEVIS record from “Active” to “Inactive.” Such notification in SEVIS ends a sponsor's programmatic obligations to the exchange visitor and/or his or her accompanying spouse and dependents.
(4) Accompanying spouse and dependent records. Sponsors must report in SEVIS if accompanying spouses and/or dependents depart from the United States prior to the exchange visitors' departure dates.
(5) Termination of an exchange visitor's program. Sponsors must promptly report in SEVIS the involuntary termination of an exchange visitor's program. Sponsors must not alter the “Program End Date” field, but should enter the date of program termination in the “Effective Date of Termination” field. This will change the status of the SEVIS record from “Active” to “Terminated”. Such notification in SEVIS ends a sponsor's programmatic obligation to the exchange visitor and his or her accompanying spouse and dependents, if any, and prevents the sponsor from thereafter extending the exchange visitor's duration of participation, transferring the exchange visitor to another program, or changing the exchange visitor's category. Sponsors must not terminate the program of an exchange visitor who voluntarily ends his or her program.
(b)
(1) Change in the actual and current U.S. address. Sponsors must ensure that the actual and current U.S. addresses of an exchange visitor are reported in SEVIS:
(i) Sponsors must report the U.S. mailing address (i.e., provide a P.O. Box number) in SEVIS in those limited cases where mail cannot be delivered to the exchange visitor's actual and current U.S. address (e.g., the exchange visitor resides in a campus setting); and
(ii) If a U.S. mailing address is reported to SEVIS, sponsors must also maintain records in SEVIS of actual and current U.S. addresses (e.g., dormitory, building and room number) for such exchange visitors.
(2) Change in site of activity. Sponsors must report in SEVIS any change to an exchange visitor's site of activity by entering the new site within ten business days of notification of such a change where sponsor rules or regulations permit such a change. Sponsors must promptly enter any change in the site of activity in those instances where the sponsor is responsible for the placement. Sponsors must identify the “primary” site of activity of an exchange visitor if multiple sites of activity are reported in SEVIS.
(c)
(1) Change of business and/or mailing address, telephone number, facsimile number, or email address;
(2) Change in the composition of the sponsor organization that affects its status as a United States Person as defined in § 62.2, which includes a new Employment Identification Number (EIN);
(3) Change of Responsible Officer or Alternate Responsible Officer;
(4) Major change of ownership or control of the sponsor's organization as defined in § 62.60(e);
(5) Change of the sponsor's principal place of business to a location outside the United States;
(6) Change in financial circumstances that may render the sponsor unable to comply with its obligations as set forth in § 62.9(e);
(7) Loss of licensure or accreditation;
(8) Loss or theft of Forms DS–2019, in which case a sponsor must notify the Department of State promptly by telephone or email of the SEVIS identification numbers of such Forms DS–2019 that have been lost or stolen;
(9) A decision by the sponsor to voluntarily cancel (withdraw) its exchange visitor program designation; or
(10) Any other material facts or events that may have an impact on the sponsor's ability to properly administer or conduct its exchange visitor program.
(d)
(a) Sponsors must require that all exchange visitors have insurance in effect that covers the exchange visitors for sickness or accidents during the period of time that they participate in the sponsor's exchange visitor program. In addition, sponsors must require that accompanying spouses and dependents of exchange visitors have insurance for sickness and accidents. Sponsors must inform all exchange visitors that they, and any accompanying spouse and dependent(s), also may be subject to the requirements of the Affordable Care Act.
(b) The period of required coverage is the actual duration of the exchange visitor's participation in the sponsor's exchange visitor program as recorded in SEVIS in the “Program Begin Date,” and as applicable, the “Program End Date,” “Effective Program End Date,” or “Effective Date of Termination” fields. Sponsors are not authorized to charge fees to their sponsored exchange visitors for the provision of insurance coverage beyond any demonstrable and justifiable staff time. Sponsors are not required to, but may, offer supplemental “entry to exit” coverage (i.e., coverage from the time the exchange visitor departs his or her home country until he or she returns). If the sponsor provides health insurance, or arranges for health insurance to be offered the exchange visitor, via payroll deduction at the host organization, the exchange visitor must voluntarily authorize this action in writing and also be given the opportunity to make other arrangements to obtain insurance. These authorizations must be kept on file by the sponsor. Minimum coverage must provide:
(1) Medical benefits of at least $100,000 per accident or illness;
(2) Repatriation of remains in the amount of $25,000;
(3) Expenses associated with the medical evacuation of exchange visitors to his or her home country in the amount of $50,000; and
(4) Deductibles not to exceed $500 per accident or illness.
(c) Insurance policies secured to fulfill the requirements of this section:
(1) May require a waiting period for pre-existing conditions that is reasonable as determined by current industry standards;
(2) May include provisions for co-insurance under the terms of which the exchange visitor may be required to pay up to 25% of the covered benefits per accident or illness; and
(3) Must not unreasonably exclude coverage for perils inherent to the activities of the exchange program in which the exchange visitor participates.
(d) Any policy, plan, or contract secured to fill the above requirements must, at a minimum, be:
(1) Underwritten by an insurance corporation having an A.M. Best rating of “A−” or above; a McGraw Hill Financial/Standard & Poor's Claims-paying Ability rating of “A−” or above; a Weiss Research, Inc. rating of “B+” or above; a Fitch Ratings, Inc. rating of “A−” or above; a Moody's Investor Services rating of “A3” or above; or such other rating as the Department of State may from time to time specify; or
(2) Backed by the full faith and credit of the government of the exchange visitor's home country; or
(3) Part of a health benefits program offered on a group basis to employees or enrolled students by a designated sponsor; or
(4) Offered through or underwritten by a federally qualified Health Maintenance Organization or eligible Competitive Medical Plan as determined by the Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services.
(e) Federal, state or local government agencies; state colleges and universities; and public community colleges may, if permitted by law, self-insure any or all of the above-required insurance coverage.
(f) At the request of a non-governmental sponsor of an exchange visitor program, and upon a showing that such sponsor has funds readily available and under its control sufficient to meet the requirements of this section, the Department of State may permit the sponsor to self-insure or to accept full financial responsibility for such requirements.
(g) The Department of State may, in its sole discretion, condition its approval of self-insurance or the acceptance of full financial responsibility by the non-governmental sponsor by requiring such sponsor to secure a payment bond in favor of the Department of State guaranteeing the sponsor's obligations hereunder.
(h) Accompanying spouses and dependents are required to be covered by insurance in the amounts set forth in paragraph (b) of this section. Sponsors must inform exchange visitors of this requirement, in writing, in advance of the exchange visitor's arrival in the United States.
(i) Exchange visitors who willfully fail to maintain the insurance coverage set forth above while a participant in an exchange visitor program or who make material misrepresentations to the sponsor concerning such coverage will be deemed to be in violation of these regulations and will be subject to termination as an exchange visitor.
(j) Sponsors must terminate an exchange visitor's participation in their program if the sponsor determines that the exchange visitor or any accompanying spouse or dependent willfully fails to remain in compliance with this section.
(a) Sponsors must submit annual reports to the Department of State that are generated through SEVIS on Form DS–3097. Such reports must be filed on an academic, calendar, or fiscal year basis, as directed by the Department of State in the sponsor's letter of designation or redesignation, and must contain the following:
(1)
(2)
(3)
(4)
(5)
“I certify that the information in this report is complete and correct to the best of my knowledge and belief; and, that the above named program sponsor has complied with all health and accident insurance requirements for exchange visitors and their accompanying spouses and dependents (22 CFR 62.14).”
(i) For exchange visitor programs classified as “Government Programs,” this certification will be signed by the Responsible Officer.
(ii) For exchange visitor programs classified as P–1 or P–2 “Academic Programs” this certification will be signed by the institution's Chief Executive Officer or Responsible Officer.
(iii) For exchange visitor programs classified as P–3 and P–4 “Private Sector Programs,” this certification will be signed by the organization's Chief Executive Officer or Responsible Officer.
(6)
(b) Sponsors of P–3 and P–4 “Private Sector” programs must file a program specific management review (in a format and on a schedule approved by the Department of State).
(a) An exchange visitor may receive compensation from the sponsor or the sponsor's appropriate designee, such as the host organization, when employment activities are part of the exchange visitor's program.
(b) An exchange visitor who engages in unauthorized employment shall be deemed to be in violation of his or her program status and is subject to termination as a participant in an exchange visitor program.
(c) The acceptance of employment by the accompanying spouse and dependents of an exchange visitor is governed by Department of Homeland Security regulations.