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Final rules.
This document contains final regulations that amend the regulations regarding excepted benefits under the Employee Retirement Income Security Act of 1974, the Internal Revenue Code, and the Public Health Service Act to specify requirements for limited wraparound coverage to qualify as an excepted benefit. Excepted benefits are generally exempt from the requirements that were added to those laws by the Health Insurance Portability and Accountability Act and the Affordable Care Act.
These final regulations are effective on May 18, 2015.
Amy Turner or Elizabeth Schumacher, Employee Benefits Security Administration, Department of Labor, at (202) 693–8335; Karen Levin, Internal Revenue Service, Department of the Treasury, at (202) 317–5500; Jacob Ackerman, Centers for Medicare & Medicaid Services, Department of Health and Human Services, at (410) 786–1565.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104–191, 110 Stat. 1936 added title XXVII of the Public Health Service Act (PHS Act), part 7 of the Employee Retirement Income Security Act of 1974 (ERISA), and chapter 100 of the Internal Revenue Code (the Code), providing portability and nondiscrimination provisions with respect to health coverage. These provisions of the PHS Act, ERISA, and the Code were later augmented by other consumer protection laws, including the Mental Health Parity Act of 1996,
The Affordable Care Act reorganizes, amends, and adds to the provisions of part A of title XXVII of the PHS Act relating to group health plans and health insurance issuers in the group and individual markets. The term “group health plan” includes both insured and self-insured group health plans.
Sections 2722 and 2763 of the PHS Act, section 732 of ERISA, and section 9831 of the Code provide that the requirements of title XXVII of the PHS Act, part 7 of ERISA, and chapter 100 of the Code, respectively, generally do not apply to excepted benefits. Excepted benefits are described in section 2791 of the PHS Act, section 733 of ERISA, and section 9832 of the Code.
The parallel statutory provisions establish four categories of excepted benefits. The first category includes benefits that are generally not health coverage
The second category of excepted benefits is limited excepted benefits, which may include limited scope vision or dental benefits, and benefits for long-term care, nursing home care, home health care, or community based care. Section 2791(c)(2)(C) of the PHS Act, section 733(c)(2)(C) of ERISA, and section 9832(c)(2)(C) of the Code authorize the Secretaries of Health and Human Services (HHS), Labor, and the Treasury (collectively, the Secretaries) to issue regulations establishing other, similar limited benefits as excepted benefits. The Secretaries exercised this authority previously with respect to certain health flexible spending arrangements (health FSAs).
The third category of excepted benefits, referred to as “noncoordinated excepted benefits,” includes both coverage for only a specified disease or illness (such as cancer-only policies), and hospital indemnity or other fixed indemnity insurance. In the group market, these benefits are excepted only if all of the following conditions are met: (1) The benefits are provided under a separate policy, certificate, or contract of insurance; (2) there is no coordination between the provision of such benefits and any exclusion of benefits under any group health plan maintained by the same plan sponsor; and (3) the benefits are paid with respect to any event without regard to whether benefits are provided under any group health plan maintained by the same plan sponsor.
The fourth category of excepted benefits is supplemental excepted benefits.
In 2004, the Departments of the Treasury, Labor, and HHS published final regulations with respect to excepted benefits (the HIPAA regulations).
On December 24, 2013, the Departments published additional proposed regulations with respect to the second category of excepted benefits, limited excepted benefits (2013 proposed regulations).
After consideration of comments received on the 2013 proposed regulations, the Departments published final regulations regarding dental and vision benefits and EAP benefits on October 1, 2014 (2014 final regulations).
Under the 2014 proposed regulations, limited benefits provided through a group health plan that wrap around either (1) eligible individual health insurance, or (2) coverage under a Multi-State Plan (collectively referred to as “limited wraparound coverage”) could constitute excepted benefits, if five requirements were met. For this purpose, the 2014 proposed regulations defined “eligible individual health insurance” as individual health insurance coverage that is not a grandfathered health plan,
Comments addressing the BHP all supported permitting wraparound of BHP coverage. The Departments agree and, therefore, these final regulations permit limited wraparound coverage of BHP coverage in the same manner as limited wraparound coverage of eligible individual health insurance.
The 2014 proposed regulations stated that limited wraparound coverage would have to be specifically designed to wrap around eligible individual health insurance or Multi-State Plan coverage. That is, the limited wraparound coverage would have to provide meaningful benefits beyond coverage of cost sharing under the eligible individual health insurance or Multi-State Plan coverage. The preamble to the 2014 proposed regulations provided examples, such as that limited wraparound coverage could provide coverage for expanded in-network medical clinics or providers, or provide benefits that are not essential health benefits (EHBs) and that are not covered under the eligible individual health insurance.
Many commenters requested additional clarity on the type of benefits that could be offered as meaningful benefits in limited wraparound coverage. Suggestions included reimbursement for the full cost of primary care, the cost of prescription drugs not on the formulary of the primary plan, ten physician visits per year, services considered to be provided out-of-network by the primary plan, access to onsite clinics or specific health facilities at no cost, or benefits targeted to a specific population (such as coverage for certain orthopedic injuries), home health coverage, or coverage of other benefits that are not covered EHBs under the primary plan. The Departments consider all of these examples to qualify as additional, meaningful benefits under this first requirement to be limited wraparound coverage that qualifies as excepted benefits. As discussed further below, the Departments reiterate that limited wraparound coverage that is an excepted benefit cannot be an account-based mechanism and instead must be a risk-sharing product that covers a defined package of services.
For the second requirement to be limited wraparound coverage that qualifies as excepted benefits, the Departments proposed that the limited wraparound coverage be limited in amount. Specifically, the 2014 proposed regulations provided that the annual cost of coverage per employee (and any covered dependents) under the limited wraparound coverage could not exceed the maximum annual contribution for health FSAs (which was $2,500 in 2014), indexed in the manner prescribed under Code section 125(i)(2) (which amounts to $2,550 for 2015), and the cost of coverage would include both employer and employee contributions towards coverage and be determined in the same manner as the applicable premium is calculated under a COBRA continuation provision. The preamble to the 2014 proposed regulations stated that the bright-line limitation was intended to be simpler to administer than a cap of 15 percent of the cost of the plan sponsor's primary coverage as set forth in the 2013 proposed regulations.
Many comments stated that the limits on the amount should be higher so that individuals eligible for the limited wraparound coverage would not experience gaps in coverage. Some commenters suggested that the Departments consider an alternative, referencing the higher health savings account (HSA) limits, which are $3,350 for individual coverage and $6,650 for families in 2015, indexed annually. Others suggested the Departments set the limit as the greater of: The maximum permitted annual salary reduction towards a health FSA (as was set forth in the 2014 proposed regulations), or a percentage of the cost of coverage under the primary plan (as was set forth in the 2013 proposed regulations).
These final regulations adopt the last suggestion. Either the dollar or percent limitation would satisfy the Departments' objective of ensuring that the limited wraparound coverage provides a limited benefit, as required by the statute, and be similar to other limited excepted benefits (that is, dental benefits, vision benefits, long term care, nursing home care, home health care, community-based care, or health FSAs as described in 26 CFR 54.9831–1(c)(3); 29 CFR 2590.732(c)(3); 45 CFR 146.145(b)(3)). The percentage, as in the 2013 proposed regulations, is 15 percent of the cost of coverage under the primary plan.
The final regulations do not adopt the suggestion to use much higher limits on the cost of coverage (for example, the HSA limits). Too large a benefit that is not limited in scope (
The Departments also received requests for clarification regarding the administration of the second requirement (that is, that the limited wraparound coverage be limited in amount). Some comments requested that the determination of the cost of coverage be permitted to be made on an aggregate basis in advance of each plan year by an actuary, and not based on actual experience of the group or any individual during the plan year. This approach is precisely the approach that was intended by the Departments. As stated earlier, to qualify as excepted benefits, the limited wraparound coverage could not be an account-based reimbursement arrangement. That is, the coverage must include a risk-sharing element. As such, making a determination regarding the cost of coverage must occur on an aggregate basis. Moreover, to the extent this determination for a given plan year is made on sound actuarial principles that are appropriately documented, the actual experience of the group or any individual during the plan year would not be a factor in determining the cost of coverage for that plan year (although it could impact future years by providing additional information on which the actuarial estimate of the cost of coverage for future years would be based). The final regulations include this clarification.
Under the 2014 proposed regulations, the third requirement for limited wraparound coverage to qualify as excepted benefits related to nondiscrimination. Specifically, the Departments proposed three sub-requirements relating to nondiscrimination. First, the wraparound coverage could not impose any preexisting condition exclusion, consistent with the requirements of section 2704 of the PHS Act (as incorporated into section 715 of ERISA and section 9815 of the Code) and implementing regulations.
The Departments received two comments on this third requirement. One commenter inquired as to the potential interaction between excepted benefits and the excise tax on high cost employer-sponsored health coverage under Code section 4980I. The Treasury and the IRS issued Notice 2015–16 on February 23, 2015 describing potential approaches with regard to a number of issues under Code section 4980I and inviting comments by May 15, 2015. Issues relating to Code section 4980I will be addressed as part of that rulemaking. Another commenter requested that the Departments consider “modernizing” the nondiscrimination provisions under Code section 105(h) and section 2716 of the PHS Act relating to prohibiting discrimination in favor of highly compensated employees. The Departments are considering this suggestion and other comments previously received for purposes of future guidance relating to these provisions.
The fourth requirement to qualify as excepted benefits concerned plan eligibility requirements. First, under the 2014 proposed regulations, individuals eligible for the limited wraparound coverage could not be enrolled in excepted benefit coverage that is a health FSA. One commenter suggested permitting dual enrollment in limited wraparound coverage and health FSA coverage. However, as described earlier, the Departments are using their discretion under ERISA section 733(c)(2), PHS Act section 2791(c)(2), and Code section 9832(c)(2) to define “other similar, limited benefits” as excepted benefits and do not adopt this suggestion. To ensure that wraparound coverage is a limited benefit, like health FSAs, the Departments do not intend to allow plan sponsors to combine multiple excepted benefits into an arrangement that functions as a material substitute for primary group health plan coverage and still be exempt from the health market reforms.
Under the 2014 proposed regulations, as part of the fourth requirement for limited wraparound coverage to constitute excepted benefits, coverage would be required to comply with one of two alternative sets of standards relating to eligibility and benefits: one set of plan eligibility requirements for wraparound benefits offered in conjunction with eligible individual health insurance (or BHP coverage) for persons who are not full-time employees, and a separate set of standards for coverage that wraps around certain Multi-State Plan coverage. As described further below, limited wraparound coverage for persons who are not full-time employees is intended for employers that are generally offering affordable, minimum value coverage to their full-time workers but want to offer an additional limited benefit to their part-time workers. Limited wraparound coverage offered in conjunction with a Multi-State Plan is intended for employers that were offering reasonably comprehensive coverage prior to the promulgation of these final rules, and wish to offer limited wraparound coverage while still contributing roughly the same total amount toward their employees' health benefits.
As under the 2014 proposed regulations, limited coverage that wraps around eligible individual health insurance (or BHP coverage) for an individual who is not a full-time employee is required to satisfy three standards relating to plan eligibility.
First, for each year that wraparound coverage is offered, the employer that is the sponsor of the plan offering wraparound coverage, or the employer participating in a plan offering wraparound coverage, must offer to its full-time employees coverage that: (1) Is substantially similar to coverage that the employer would need to offer to its full-time employees in order not to be subject to a potential assessable payment under the employer shared responsibility provisions of section 4980H(a) of the Code, if such provisions were applicable (that is, substantially similar to an offer of minimum essential coverage (as defined in Code section 5000A(f)) to at least 95 percent of its full-time employees (or to all but five of its full-time employees, if five is greater than five percent of its full-time employees)); (2) provides minimum value (as defined in section 36B(c)(2)(C)(ii) of the Code); and (3) is reasonably expected to be affordable (permitting use of the safe harbor rules for determining affordability set forth in 26 CFR 54.4980H–5(e)(2)). The preamble to the 2014 proposed regulations stated that, if a plan or issuer providing limited wraparound coverage takes reasonable steps to ensure that employers disclose necessary information regarding their coverage offered and affordability information to the plan or issuer, the plan or issuer could rely on reasonable representations by employers regarding this information, unless the plan or issuer has specific knowledge to the contrary.
Several commenters requested that, in the context of small employers and multiemployer plans, there be an exemption from the requirement that, to be considered excepted benefits, the employer offer to its full-time employees coverage that is substantially similar to coverage that the employer would need to offer pursuant to Code section 4980H(a). However, these final excepted benefits regulations are designed to allow plan sponsors an
Other commenters asked the Departments to clarify that any Code section 4980H-related requirements are met in instances in which the employer has no full-time employees. These final regulations clarify that, in the event that the employer has no full-time employees, but the plan covers retirees (and their dependents), or covers part-time employees (and their dependents), the requirements to provide coverage that is substantially similar to coverage that the employer would need to offer to its full-time employees in order not to be subject to a potential assessable payment section 4980H(a) of the Code, that provides minimum value, and that is reasonably expected to be affordable, are all considered satisfied.
Second, eligibility for the limited wraparound coverage must be limited to employees who are not full-time employees (and their dependents), or who are retirees (and their dependents). In the preamble to the 2014 proposed regulations, the Departments stated that “full-time employees” would be employees who are reasonably expected to work at least an average of 30 hours per week. Plans and issuers would not be required to define “full-time employees” strictly in accordance with the rules of Code section 4980H, but employers could rely on the Code section 4980H definition, or any reasonable interpretation of who is reasonably expected to work an average of 30 hours a week, for purposes of this provision. The Departments invited comment on this approach.
Some commenters argued that plan sponsors should be able to offer limited coverage that wraps around eligible individual health insurance to full-time employees. The Departments do not adopt this change. A rationale for treating the wraparound coverage as an excepted benefit is that recipients will be able to use this limited type of coverage in conjunction with individual coverage purchased through an Exchange without being disqualified from claiming the premium tax credit. This may be attractive to employers as a means of providing some health coverage to employees who may not otherwise have been offered coverage, such as part-time employees or retirees. However, this is not intended to incentivize or permit employers to fail to offer minimum essential coverage to full-time employees, a population to whom employers have typically offered coverage.
One commenter sought clarification that plan sponsors offering limited wraparound coverage may rely on a determination of full-time employee status at the time of enrollment. The Departments agree that employers offering limited wraparound coverage will make determinations based on the expected status of an employee in the future as a part-time employee versus full-time employee. Accordingly, the final regulations include a clarification that this standard is met if it is reasonably determined at the time of enrollment that the employee will on average work fewer than 30 hours per week during the plan year. Moreover, for purposes of administering the premium tax credit under section 36B of the Code, if it is reasonably determined at the time of enrollment that the employee will on average work fewer than 30 hours per week during the plan year and therefore the employee is offered limited coverage that wraps around eligible individual health insurance, but the employee later during the coverage period meets the definition of a full-time employee, the coverage will not fail to be excepted benefits and the employee will not become ineligible for premium tax credits for the remainder of the plan year solely because the original reasonable determination proves incorrect. Whether, to be reasonable, that determination would need to be changed for future plan years will depend on all the facts and circumstances.
Several commenters sought clarification regarding the definition of “dependent.” Specifically, commenters asked whether the term “dependent” includes “spouses” (as the term is defined under 26 CFR 54.9801–2, 29 CFR 2590.701–2, and 45 CFR 144.103 for purposes of chapter 100 of the Code, part 7 of ERISA, and title XXVII of the PHS Act), or whether it is limited to “dependent children” (as the term is defined under Code section 4980H and its implementing regulations). These final regulations clarify that, for purposes of excepted benefits, the term “dependent” is defined by reference to the definitions section governing the market reforms (that is, 26 CFR 54.9801–2, 29 CFR 2590.701–2, and 45 CFR 144.103) and not the employer shared responsibility provisions under Code section 4980H and its implementing regulations. Accordingly, spouses may qualify as dependents to the extent they are eligible for coverage under the terms of the limited wraparound coverage. Moreover, some commenters sought clarification as to whether a plan could permit enrollment of a spouse beneficiary without enrollment of an employee participant. While nothing in these final regulations, nor any other provision of ERISA, the Code, or the PHS Act requires plans to enroll spouse beneficiaries for coverage (other than COBRA coverage) if the participant does not enroll, nothing in these provisions prohibits plans from enrolling such a spouse if plans choose to do so.
Third, under the 2014 proposed regulations, other group health plan coverage, not limited to excepted benefits, would be required to be offered to the individuals eligible for the wraparound coverage. Only individuals eligible for other group health plan coverage could be eligible for the wraparound coverage.
Some commenters contended that plan sponsors should not be required to offer other group health plan coverage to individuals who are not full-time employees. This provision does not require employers to offer group health plan coverage to workers who are not full-time employees but it does limit the ability to offer the wrap-around coverage only to workers otherwise eligible for other group health plan coverage. That is because this provision is not intended to create an opportunity or incentive for employers to discontinue providing group health plan coverage and to encourage its employees to obtain coverage through the Exchange subsidized through the premium tax credit while still receiving meaningful employer-provided health benefits. Further, the same standard is applied in order for a health FSA to be an excepted benefit, and this provision in the final regulation is intended to allow employers to offer a limited benefit, similar to a health FSA.
For limited coverage that wraps around Multi-State Plan coverage, four requirements would be required to be met under the 2014 proposed regulations.
The first of the four standards would require that the limited wraparound
The 2014 proposed regulations provided that the employer would have had to offer coverage in the plan year that began in 2014 that is substantially similar to coverage that the employer would need to have offered to its full-time employees in order to not be subject to an assessable payment under the employer shared responsibility provisions of section 4980H(a) of the Code, if such provisions had been applicable. In addition, in the plan year that began in 2014, the employer would have had to have offered coverage to a substantial portion of full-time employees that provided “minimum value” (as defined in section 36B(c)(2)(C)(ii) of the Code) and was affordable (applying the safe harbor rules for determining affordability set forth in 26 CFR 54.4980H–5(e)(2)). Finally, for the duration of the pilot program (described later in this preamble), the employer's annual aggregate contributions for both primary and limited wraparound coverage must be substantially the same as the employer's aggregate contributions for coverage offered to full-time employees in 2014. The Departments stated in the preamble that they were considering interpreting this “substantially the same” condition as a percentage (for example, 80 or 90 percent) and potentially applying it on a per-worker basis to allow for fluctuations in an employer's workforce.
Citing that some employers may have made changes to their coverage in 2014 because Exchange coverage was first available in 2014, several commenters requested that plan sponsors be permitted to use either 2013 or 2014 as the base year for this maintenance of effort requirement set forth in these second and third requirements for limited coverage that wraps around Multi-State Plan coverage. These final regulations adopt this suggestion.
Other comments stated that an employer's annual aggregate contribution toward primary and limited wraparound coverage should include any assessable payments under Code section 4980H owed by the employer. An applicable large employer may become subject to an assessable payment if it fails to offer minimum essential coverage to its full-time employees and one or more of those employees obtains a premium tax credit, or it fails to provide a full-time employee minimum essential coverage that provides minimum value and is affordable for that employee and that employee obtains a premium tax credit. In neither case does the payment of an assessable payment provide coverage to the employee or otherwise assist that employee in obtaining coverage. Nor does the fact that the failure to provide coverage may permit the employee to obtain the premium tax credit mean that the resulting fee is contributing toward that employee's health coverage. The final regulations, therefore, do not make this change.
Some comments sought clarification regarding whether the employer's annual aggregate contributions for both primary and limited wraparound coverage must be substantially the same as the employer's aggregate contributions for coverage offered to full-time employees in 2013 or 2014. Some requested OPM be given discretion to determine whether the maintenance of effort standard has been met by each employer. Others requested a threshold of 60 percent in determining whether this standard has been met. Many factors, including fluctuations in workforce size, cost of coverage, and employer contributions towards other fringe benefits may affect employer contributions from year to year. The final regulations retain the standard set forth in the 2014 proposed regulations that the employer's annual aggregate contributions for both primary and limited wraparound coverage must be substantially the same as the employer's aggregate contributions for coverage offered to full-time employees in 2014 (or 2013). For this purpose, the Departments consider this “substantially the same” condition to be met if contributions were at least 80 percent of contributions made in 2013 or 2014, applied on an average, full-time worker basis (to allow for fluctuations in an employer's workforce). OPM may make a finding, based on all the facts and circumstances, that other employer contribution arrangements also meet this standard. OPM may provide additional guidance (such as examples and safe harbors) in the future.
As with coverage that wraps around eligible individual health insurance (or that wraps around Basic Health Plan coverage), commenters asked the Departments to clarify that any Code section 4980H-related requirements are met in instances in which the employer has no full-time employees. These final regulations adopt a parallel clarification for coverage that wraps around Multi-State Plan coverage as for coverage that wraps around eligible individual health insurance (or that wraps around Basic Health Plan coverage). That is, while these final regulations do not permit new employers to provide wraparound coverage as an excepted benefit, these final regulations clarify that, in the event that the employer has no full-time employees, but the plan covers retirees (and their dependents), or covers part-time employees (and their dependents), the requirements that, in the plan year that began in 2013 or 2014, the employer would have had to have offered coverage to a substantial portion of full-time employees that provided minimum value and was affordable is met, as is the requirement that, for the duration of the pilot program, the employer's annual aggregate contributions for both primary and limited wraparound coverage must be substantially the same as the employer's aggregate contributions for coverage offered to full-time employees in 2013 or 2014.
For purposes of administering this provision with respect to limited wraparound coverage offered in conjunction with Multi-State Plan coverage, the Departments had proposed that the term “full-time employee” means a “full-time employee” as defined in 26 CFR 54.4980H–1(a)(21) who is not in a limited non-assessment period for certain employees (as defined in 26 CFR 54.4980H–1(a)(26)). Moreover, if a plan or issuer providing limited wraparound coverage takes reasonable steps to ensure that employers disclose necessary information regarding their coverage offered and contribution levels for 2013 or 2014 to the plan or issuer, the plan or issuer may rely on reasonable representations by employers regarding this information, unless the plan or issuer has specific knowledge to the contrary. Consistent with the reporting
The fifth and final requirement for limited wraparound coverage to qualify as excepted benefits under the 2014 proposed regulations is a reporting requirement, for group health plans and group health insurance issuers, as well as group health plan sponsors. The final regulations adopt the approach outlined in the 2014 proposed regulations.
A self-insured group health plan, or a health insurance issuer offering or proposing to offer Multi-State Plan wraparound coverage, would report to OPM, in a form and manner specified in OPM guidance, information OPM reasonably requires to determine whether the plan or issuer qualifies to offer such coverage or complies with the applicable requirements of this section.
In addition, the plan sponsor of any group health plan offering any type of limited wraparound coverage would report to HHS, in a form and manner specified in guidance, information HHS reasonably requires to determine whether the exception for limited wraparound coverage is allowing plan sponsors to provide workers with comparable benefits whether enrolled in minimum essential coverage under a group health plan offered by the plan sponsor, or enrolled in eligible individual health insurance, BHP coverage, or Multi-State Plan coverage, with additional limited wraparound coverage offered by the plan sponsor, without causing an erosion of coverage.
Commenters requested that there be coordination of any reporting requirements with existing reporting requirements and some made specific suggestions regarding data elements that should be required for reporting. The Departments agree with the principle of non-duplication and will seek comment on any new reporting requirements through the process established by Paperwork Reduction Act of 1995.
Under the 2014 proposed regulations, limited wraparound coverage would be permitted under a pilot program for a limited time. Specifically, this type of wraparound coverage could be offered as excepted benefits if it is first offered no later than December 31, 2017, and ends on the later of: (1) The date that is three years after the date wraparound coverage is first offered; or (2) the date on which the last collective bargaining agreement relating to the plan terminates after the date wraparound coverage is first offered (determined without regard to any extension agreed to after the date the wraparound coverage is first offered). The 2014 proposed regulations invited comments on this time frame for applicability, including whether the Departments should have the option to provide for an earlier termination date.
Many commenters cited uncertainty and the lack of lead time as negatively impacting full utilization of the pilot program and requested a longer implementation period. The Departments agree that the timing for publication of these final rules makes 2015 plan year implementation impossible or impracticable for most plans. Accordingly, these final rules specify that wraparound coverage could be offered as excepted benefits if the coverage is first offered no earlier than January 1, 2016 and no later than December 31, 2018. The end date is unchanged from the proposal, that is the later of: (1) The date that is three years after the date wraparound coverage is first offered; or (2) the date on which the last collective bargaining agreement relating to the plan terminates after the date wraparound coverage is first offered (determined without regard to any extension agreed to after the date the wraparound coverage is first offered).
As discussed in detail above, these regulations amend the definition of “limited excepted benefits” in the group market to provide plan sponsors with two options to offer limited wraparound coverage to certain individuals. Under the first option, a plan sponsor could offer limited benefits provided through a group health plan that wraps around eligible individual health insurance to employees who are not full-time employees (and their dependents), or who are retirees (and their dependents). For this purpose, full-time employees are employees who are reasonably expected to work at least an average of 30 hours per week. Under the second option, the limited wraparound coverage that satisfies the requirements outlined in the regulations must be approved by OPM and be offered in conjunction with Multi-State Plan coverage authorized under section 1334 of the Affordable Care Act. Under the first option, the limited benefits would also be permitted to wrap around the Basic Health Program authorized under section 1331 of the Affordable Care Act.
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, and public health and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a regulation: (1) Having an annual effect on the economy of $100 million or more in any one year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. OMB has determined that the action is significant within the meaning of section 3(f)(4) of Executive Order 12866, and the Departments accordingly provide the following assessment of its potential benefits and costs.
The Departments recognize that many plan sponsors provide comprehensive health benefits to their workers. One objective of the Affordable Care Act is to allow individuals with comprehensive health insurance plans to maintain their current level of benefits. Some employers are interested in offering wraparound coverage to employees who are enrolled in a Multi-State Plan authorized under section 1334 of the Affordable Care Act or to part-time employees. These regulations provide two options to employers that clarify the circumstances under which plan sponsors can provide to their employees such limited wraparound coverage that qualifies as an excepted benefit.
The cost (and Federal budget impact
Comments were also invited on the effects of the proposal and the Departments requested detailed data that would inform the following questions: What will be the impact of limiting the cost of the wraparound coverage to $2,500 per employee (and any covered dependents)? How many employers offer coverage that provides minimum value and is affordable for a substantial portion (under the first option) or 95 percent (under the second option) of employees who are eligible for coverage? To what extent would premiums for comprehensive health coverage change in the presence and absence of this rule?
No specific data were received in response to this solicitation, although several commented that limited conditions under which wraparound coverage could be offered were overly restrictive and made it of limited use. Others commented that the uncertainty of the life span of a time-limited pilot program would minimize uptake of the offering of limited wraparound coverage.
These final regulations generally implement the 2014 proposed regulations with marginal change, as discussed above. Both options are designed so that wraparound coverage could not replace employer-sponsored primary group coverage. Under the individual health insurance wraparound option, the employer also must offer other group health coverage that is not limited to excepted benefits and provides minimum value to the class of participants offered the wraparound coverage by reason of their employment. Only individuals who are not full-time employees and who are eligible for other group health plan coverage may be eligible for the wraparound coverage. Also, the employer coverage must substantially satisfy the employer shared responsibility provisions of Code section 4980H(a), and the coverage would have to be affordable for at least 95 percent of full-time employees.
Under the Multi-State Plan wraparound option, the employer would have to offer coverage in the plan year beginning in 2013 or 2014 that would have substantially satisfied the employer shared responsibility provisions of Code section 4980H(a) if the provision had been applicable, provided minimum value, and been affordable for a substantial portion of its full-time employees.
The final regulations permit limited wraparound coverage to be excepted benefits if initially offered between January 1, 2016 and December 31, 2018, and continuing for the longer of three years or the date on which the last collective bargaining agreement relating to the group health plan terminates. In addition, the maximum benefit cannot exceed the greater of the annual health FSA contribution limit ($2,550 for 2015), indexed; or 15 percent of the firm's primary plan cost. In the 2014 proposed regulations the maximum benefit was the annual health FSA contribution limits ($2,550 for 2015), indexed.
As with the 2014 proposed regulations, the decision to offer the limited wraparound coverage remains optional. There is greater administrative complexity associated with the wraparound coverage than primary coverage alone or primary coverage plus a health FSA which offers similar benefits. Given a choice, some plan sponsors may choose to increase the affordability of their primary coverage rather than offer limited wraparound coverage. Some plan sponsors may not have that choice: The employers may not be in a financial position to make their primary health plans affordable to more workers, let alone contribute to wraparound coverage. Employers may also continue to simply not provide employees with affordable, minimum value coverage, allowing their workers to purchase coverage and potentially qualify for premium tax credits through an Exchange with no additional wraparound benefit, and these employers would continue to make any employer shared responsibility payments as applicable, resulting in no additional cost to the employer or the Federal government.
The option to offer limited wraparound coverage would not encumber any currently existing means by which employers can provide comprehensive health insurance coverage to their employees in compliance with the Affordable Care Act. Rather, it would clarify two additional, alternative means of doing so.
For the foregoing reasons, the Departments have reached the conclusion that the impact of the benefits, costs, and transfers will be limited. The Departments do not expect many plans to offer limited wraparound coverage, and will monitor usage and impact during the pilot program through reporting, as discussed above.
These final regulations are not subject to the requirements of the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3501
The final rule is not subject to the requirements of the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
For purposes of the RFA, the Departments continue to consider a “small entity” to be an employee benefit plan with fewer than 100 participants. The basis for this definition is found in section 104(a)(2) of the act, which permits the Secretary of Labor to prescribe simplified annual reports for pension plans that cover fewer than 100 participants. Pursuant to the authority of section 104(a)(3), the Department has previously issued at 29 CFR 2520.104–20, 2520.104–21, 2520.104–41, 2520.104–46 and 2520.104b–10 certain simplified reporting provisions and limited exemptions from reporting and disclosure requirements for small plans, including unfunded or insured welfare plans covering fewer than 100 participants and satisfying certain other requirements.
Further, while some large employers may have small plans, in general small employers maintain most small plans. Thus, the Departments believe that assessing the impact of these final regulations on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business that is based on size standards promulgated by the Small Business Administration (13 CFR 121.201) pursuant to the Small Business Act (15 U.S.C. 631
Because these final regulations impose no additional costs on employers or plans, the Departments believe that they do not have a significant economic impact on a substantial number of small entities. Accordingly, pursuant to section 605(b) of the RFA, the Departments hereby certify that these final regulations will not have a significant economic impact on a substantial number of small entities.
For purposes of the Department of the Treasury it has been determined that this final rule is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these final regulations, and, because these final regulations do not impose a collection of information on small entities, an analysis under the RFA is not required. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these final regulations was submitted to the Small Business Administration for comment on its impact on small business.
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
Executive Order 13132 outlines fundamental principles of federalism. It requires adherence to specific criteria by federal agencies in formulating and implementing policies that have “substantial direct effects” on the states, the relationship between the national government and states, or on the distribution of power and responsibilities among the various levels of government. Federal agencies promulgating regulations that have these federalism implications must consult with state and local officials, and describe the extent of their consultation and the nature of the concerns of state and local officials in the preamble to the final regulation.
In the Departments' view, the final regulations, by clarifying policy regarding certain expected benefits options that can be designed by employers to support their employees, will provide more certainty to employers and others in the regulated community as well as states and political subdivisions regarding the treatment of such arrangements under ERISA. Accordingly, the Departments will continue to affirmatively engage in outreach with officials of state and political subdivisions regarding excepted benefits and seek their input on any federalism implications that they believe may be presented.
These final regulations are subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
The Department of the Treasury regulations are adopted pursuant to the authority contained in sections 7805 and 9833 of the Code.
The Department of Labor regulations are adopted pursuant to the authority contained in 29 U.S.C. 1027, 1059, 1135, 1161–1168, 1169, 1181–1183, 1181 note, 1185, 1185a, 1185b, 1191, 1191a, 1191b, and 1191c; sec. 101(g), Public Law 104–191, 110 Stat. 1936; sec. 401(b), Public Law 105–200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Public Law 110–343, 122 Stat. 3765; Public Law 110–460, 122 Stat. 5123; Secretary of Labor's Order 1–2011, 77 FR 1088 (January 9, 2012).
The Department of Health and Human Services regulations are adopted pursuant to the authority contained in sections 2701 through 2763, 2791, and 2792 of the PHS Act (42 U.S.C. 300gg through 300gg–63, 300gg–91, and 300gg–92), as amended.
Excise taxes, Health care, Health insurance, Pensions, Reporting and recordkeeping requirements.
Continuation coverage, Disclosure, Employee benefit plans, Group health plans, Health care, Health insurance, Medical child support, Reporting and recordkeeping requirements.
Health care, Health insurance, Reporting and recordkeeping requirements, and State regulation of health insurance.
Accordingly, 26 CFR part 54 is amended as follows:
Authority: 26 U.S.C. 7805. * * *
Section 54.9831–1 also issued under 26 U.S.C. 9833; * * *
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For the reasons stated in the preamble, the Department of Labor amends 29 CFR part 2590 as follows:
29 U.S.C. 1027, 1059, 1135, 1161–1168, 1169, 1181–1183, 1181 note, 1185, 1185a, 1185b, 1185c, 1185d, 1191, 1191a, 1191b, and 1191c; sec. 101(g), Pub. L. 104–191, 110 Stat. 1936; sec. 401(b), Pub. L. 105–200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Pub. L. 110–343, 122 Stat. 3765; Pub. L. 110–460, 122 Stat. 5123; Secretary of Labor's Order 1–2011, 77 FR 1088 (January 9, 2012).
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For the reasons stated in the preamble, the Department of Health and Human Services amends 45 CFR part 146 as set forth below:
Secs. 2702 through 2705, 2711 through 2723, 2791, and 2792 of the PHS Act (42 U.S.C. 300gg–1 through 300gg–5, 300gg–11 through 300gg–23, 300gg–91, and 300gg–92).
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Coast Guard, DHS.
Final rule; correction.
The Coast Guard published in the
Effective on March 18, 2015.
If you have questions on this rule, call or email LT Dan McQuate, U.S. Coast Guard; telephone 270–442–1621, email
The Coast Guard published a document in the
In rule FR Doc. 2015–03331 published on March 5, 2015 (80 FR 11885), make the following correction. On page 11887, in the third column, correct the last full paragraph of the document to read as follows: Accordingly, the interim rule amending 33 CFR part 165 that published at 79 FR 66622 on November 10, 2014, is adopted as a final rule without change.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of boscalid in or on dill seed, the herb subgroup 19A, the stone fruit group 12–12, and the tree nut group 14–12. Interregional Research Project Number 4 (IR–4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). In addition, this regulation removes established tolerances for certain commodities/groups superseded by this action, and corrects the spelling of papaya.
This regulation is effective March 18, 2015. Objections and requests for hearings must be received on or before May 18, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2013–0797, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2013–0797, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA has modified the levels at which some of the tolerances are being established. The reason for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for boscalid including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with boscalid follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
In mammals, the primary targets are the liver and the thyroid (indirectly from liver adaptive response). In subchronic and chronic feeding studies in rats, mice and dogs, boscalid generally caused decreased body weights and decreased body weight gains (primarily in mice) and effects on the liver (increase in weights, changes in enzyme levels and histopathological changes) as well as on the thyroid (increase in weights and histopathological changes). Mode of action studies conducted in rats indicated that boscalid has a direct effect upon the liver and that the thyroid effects are secondary. A reversibility study in rats indicated that both liver and thyroid parameters returned to control values after the animals were placed on control diet. Thyroid weights were elevated in rats and dogs, but there were no histopathological changes observed in the thyroid in either mice or dogs.
In a developmental toxicity study in rats, no developmental toxicity was observed in the fetuses at the highest dose tested (limit dose). No effects were noted in the dams in this study. In a developmental toxicity study in rabbits, an increased incidence of abortions or early delivery was observed at the limit dose. There was quantitative evidence of increased susceptibility in the 2-generation reproduction study in rats, where decreases in body weights and in body weight gains in male offspring were seen at a dose that was lower than the dose that induced parental/systemic toxicity. There was quantitative evidence of increased susceptibility in the developmental neurotoxicity study in rats, where decreases in pup body weights (PND 4) and in body weight gains (PND 1–4) were seen in the absence of any maternal toxicity, however, these effects were shown to be reversible in that no treatment-related effects on body weight, body weight gain or any other parameter were noted at PND 21.
Although there is some evidence indicating increased incidence of thyroid follicular cell adenomas in rats, EPA classified boscalid as “suggestive evidence of carcinogenicity” and has concluded that the endpoint for chronic assessment would be protective of these effects. This is based on the following: the adenomas occurred at dose levels above the level used to establish the chronic population adjusted dose (cPAD), statistically significant increases were only seen for benign tumors (adenomas) and not for malignant ones (carcinomas), the increase in adenomas in females was
There was no evidence of neurotoxicity in rats in the acute, subchronic, or developmental studies up to the limit dose. No neurotoxic observations were noted in any of the other studies in any species.
Specific information on the studies received and the nature of the adverse effects caused by boscalid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for boscalid used for human risk assessment is discussed in Unit III.B. of the final rule published in the
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No such effects were identified in the toxicological studies for boscalid; therefore, a quantitative acute dietary exposure assessment is unnecessary.
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• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.
• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.
• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.
In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.
The Agency estimated the PCT for existing uses as follows: Almonds 40%; apples 15%; apricots 25%; blueberries 35%; broccoli 2.5%; cabbage 5%; caneberries 45%; cantaloupes 5%; carrots 15%; cauliflower 5%; celery 5%; cherries 45%; cucumbers 5%; dry beans/dry peas 2.5%; garlic 5%; grapes 30%; green beans 5%; green peas 1%; hazelnuts 5%; lettuce 25%; nectarines 15%; onions 20%; oranges 1%; peaches 20%; peanuts 1%; pears 15%; peppers 2.5%; pistachios 30%; plums/prunes 5%; potatoes 20%; pumpkins 10%; squash 5%; strawberries 60%; sugar beets 1%; tomatoes 5%; walnuts 1%; and watermelons 25%.
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6–7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.
The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to
2.
Based on the First Index Reservoir Screening Tool (FIRST) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of boscalid for chronic exposure assessments are estimated to be 26.4 parts per billion (ppb) for surface water and 697 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 697 ppb was used to assess the contribution to drinking water.
3.
Boscalid is currently registered for the following uses that could result in residential exposures: Golf course turf, residential fruit and nut trees, and residential ornamentals and landscape gardens. EPA assessed residential exposure using the following assumptions:
All residential exposures are considered short-term in duration. The residential handler assessment included short-term exposures via the dermal and inhalation routes from treating residential ornamentals, landscape gardens, and trees.
In terms of post-application exposure, there is the potential for dermal post-application exposure for individuals as a result of being in an environment that has been previously treated with boscalid. Short-term dermal exposures were assessed for adults, youth 11 to 16 years old, and children 6 to 11 years old. Incidental oral exposure to children 1 to 2 years old is not expected from treated turf because boscalid is registered for use only on golf course turf and residential gardens and trees.
The scenarios used in the aggregate assessment were those that resulted in the highest exposures. The highest exposures for all age groups were associated with only residential post-application dermal exposures, not inhalation exposures, and consist of the following:
• The residential dermal exposure for use in the adult aggregate assessment reflects dermal exposure from post-application activities on treated gardens.
• The residential dermal exposure for use in the youth (11–16 years old) aggregate assessment reflects dermal exposure from post-application golfing on treated turf.
• The residential dermal exposure for use in the child (6–11 years old) aggregate assessment reflects dermal exposure from post-application activities in treated gardens.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
EPA has not found boscalid to share a common mechanism of toxicity with any other substances, and boscalid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that boscalid does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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There was evidence of increased
There was evidence of increased
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i. The toxicity database is complete, with the exception of a subchronic inhalation study. EPA is retaining a 10X FQPA SF for assessing residential inhalation risks to adult applicators.
ii. For the reasons listed in Unit III.D.2., the Agency has concluded that there are no residual uncertainties concerning the potential for prenatal and post-natal toxicity.
iii There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessment assumed tolerance level residues and was moderately refined using some PCT data. The use of the PCT data for some crops is based on reliable data and will not underestimate the exposure and risk. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to boscalid in drinking water. EPA used similarly conservative assumptions to
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Boscalid is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to boscalid. EPA used the dermal exposure scenarios mentioned in Unit III.C.3. in the aggregate assessment because those scenarios resulted in the highest exposures and corresponding lowest MOEs.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that the combined short-term food, water, and residential exposures result in aggregate MOEs of 380 for adults, 460 for children 6–11 years old, and 1,100 for youth 11–16 years old. Because EPA's level of concern for boscalid is a MOE of 100 or below, these MOEs are not of concern.
4.
An intermediate-term adverse effect was identified; however, boscalid is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for boscalid.
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6.
Adequate enforcement methodology (gas chromatography/mass spectrometry (GC/MS)) is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established MRLs for herbs or dill seed. For stone fruit, Codex has an MRL of 3 ppm and the U.S. tolerance is 3.5 ppm. The U.S. tolerance cannot be lowered to 3 ppm to harmonize with Codex, because the cherry residue data used in support of the U.S. tolerances necessitate a higher value. The Codex tree nut MRL (0.05 ppm) is lower than the U.S. tolerance (0.7 ppm), and harmonization is not possible.
The petitioned for tolerance of 190 ppm for the herb subgroup 19A is not supported by the field trial data and the processing data and therefore, the tolerance is being established at 150 ppm based on the highest average field trial (HAFT) data for basil and the processing factor for drying. The tolerance for dill seed is being established at 100 ppm, not the petitioned for level of 300 ppm, based on an evaluation of the residue data using the Organization for Economic Cooperation and Development (OECD) calculation procedure.
Therefore, tolerances are established for residues of boscalid in or on dill, seed at 100 ppm; fruit, stone, group 12–12 at 3.5 ppm; herb subgroup 19A at 150 ppm; and nut, tree, group 14–12 at 0.70 ppm. In addition, due to the establishment of these tolerances, the existing tolerances for fruit, stone, group 12; nut, tree, group 14; and pistachio are removed as unnecessary. Lastly, as an administrative correction, the existing entry for “papya” is changed to its correct spelling “papaya.”
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735,
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
The addition and revisions read as follows:
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Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for residues of dimethomorph in or on papaya at 1.5 parts per million (ppm). BASF Corporation requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA) to cover residues of dimethomorph in papaya imported into the United States; there are currently no U.S. registrations for pesticides containing dimethomorph that are used on papaya.
This regulation is effective March 18, 2015. Objections and requests for hearings must be received on or before May 18, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2014–0483, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2014–0483 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 18, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2014–0483, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for dimethomorph including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with dimethomorph follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Dimethomorph has low acute toxicity by the oral, dermal, or inhalation route of exposure. It is not an eye or skin irritant, and is not a skin sensitizer. There is no evidence that dimethomorph is a developmental, reproductive, carcinogenic, mutagenic or immunotoxic chemical. Dimethomorph is classified as “not likely to be carcinogenic to humans” based upon lack of evidence of carcinogenicity in rats and mice.
No biologically significant effect was observed in the rat subchronic oral toxicity study while decreased body weight and increased incidence of arteritis in male rats and decreased body weights and increased incidence of “ground-glass” foci in livers of female rats were observed in the rat chronic toxicity study. In the dog subchronic oral toxicity study, decreased absolute and relative prostate weights, and slight liver effects were observed. No toxicity was observed at the limit dose in the rat 28-day dermal toxicity study. The developmental toxicity studies showed no increased sensitivity to offspring of either rats or rabbits as demonstrated by
In an acute neurotoxicity study, functional observational battery (FOB) findings and reduced motor activity were observed. However, these findings were considered an impairment of the overall condition of the animals following treatment, rather than direct neurotoxic effects of the dimethomorph exposure. No neurotoxic effects were observed in the subchronic neurotoxicity study in rats and there is no evidence of neurotoxicity throughout the dimethomorph toxicity database. There was no evidence of immunotoxicity in the immunotoxicity study.
Specific information on the studies received and the nature of the adverse effects caused by dimethomorph as well as the NOAEL and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL at which adverse effects of concern are identified. Uncertainty/safety factors (U/SF) are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for dimethomorph used for human risk assessment is shown in the Table of this unit.
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4.
EPA has not found dimethomorph to share a common mechanism of toxicity with any other substances, and dimethomorph does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that dimethomorph does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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i. The toxicity database for dimethomorph is complete.
ii. The available data do not support a determination that dimethomorph is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that dimethomorph results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The unrefined acute and chronic dietary risk assessments used tolerance level residues, included modeled drinking water estimates, assumed 100 PCT, and incorporated DEEM default processing factors. EPA made conservative (protective) assumptions in the groundwater and surface water modeling used to assess exposure to dimethomorph in drinking water. These assessments will not underestimate the exposure and risks posed by dimethomorph.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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FAMS–002–04 which utilizes high performance liquid chromatography with ultraviolet detection (HPLC/UV) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for residues of dimethomorph in/on papaya.
Therefore, tolerances are established for residues of dimethomorph, in or on papaya at 1.5 ppm. While no pesticides containing dimethomorph have been registered in the United States for use on papaya, this tolerance allows importation of papaya containing permissible residues of dimethomorph under the FFDCA.
This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is approving portions of submissions from Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee for inclusion into each State's implementation plan. This action pertains to the Clean Air Act (CAA or Act) infrastructure requirements for the 2008 Lead, 2008 Ozone and 2010 Nitrogen Dioxide (NO
This rule is effective on April 17, 2015.
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2014–0610. All documents in the docket are listed on the
Sean Lakeman, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. The telephone number is (404) 562–9043. Mr. Lakeman can be reached via electronic mail at
By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. 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. Sections 110(a)(1) and (2) require states to address basic SIP elements such as for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for the “infrastructure” SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.
Through this action, EPA is approving the PSD requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) (hereafter “PSD Elements”) for various infrastructure SIP submissions from the states of Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee. As described further below, for some of these states, EPA is approving the PSD Elements in the infrastructure SIP submissions for the 2008 Lead, 2008 Ozone and 2010 NO
For the 2008 Lead NAAQS, EPA is only approving the PSD Elements of the infrastructure SIP submissions from Alabama (received November 4, 2011), Florida (received October 14, 2011), Georgia (received May 14, 2012), Kentucky (received July 17, 2012), Mississippi (received November 17, 2011), and South Carolina (received September 20, 2011). EPA notes that the Agency approved the PSD Elements of Tennessee's 2008 Lead infrastructure SIP submission on August 12, 2013 (78 FR 48806).
For the 2008 Ozone NAAQS, EPA is only approving the PSD Elements of the infrastructure SIP submissions from Alabama (received August 20, 2012), Georgia (received March 6, 2012), Mississippi (received May 29, 2012; and resubmitted July 26, 2012), and South Carolina (received on July 17, 2012). EPA notes that the Agency approved the PSD Elements of the infrastructure SIP submissions for the 2008 Ozone NAAQS for Kentucky on March 7, 2013 (78 FR 14691) and November 3, 2014 (79 FR 65143), and Tennessee on March 6, 2013 (78 FR 14450) and January 9, 2014 (79 FR 1593).
For the 2010 NO
EPA is acting upon the PSD Elements portions of SIP submissions that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 Lead, 2008 Ozone and 2010 NO
On November 13, 2014, EPA published a proposed rulemaking to approve the portions of the above-described infrastructure SIP submissions from Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee to address the PSD permitting requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) of the CAA.
Section 110(a)(2)(C) has three components that must be addressed in infrastructure SIP submissions: Enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources; and PSD permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (
Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components have two subparts resulting in four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (“prong 1”), and interfering with maintenance of the NAAQS in another state (“prong 2”). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state interfering with measures required to prevent significant deterioration of air quality in another state (“prong 3”), or to protect visibility in another state (“prong 4”).
Section 110(a)(2)(J) has four components that must be addressed in infrastructure SIP submissions: (1) Consultation with government officials, (2) public notification, (3) prevention of significant deterioration, and (4) visibility protection.
With respect to the PSD Elements of these sections, EPA interprets the CAA to require each state to make, for each new or revised NAAQS, an infrastructure SIP submission that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants.
See EPA's November 13, 2014, proposed rulemaking at 79 FR 67398 for more detailed information on EPA's analysis of how the Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee infrastructure SIP submissions meet the requirements of the PSD Elements for the NAAQS for which they were submitted. As mentioned above, EPA did not receive any adverse comments on the November 13, 2014, proposed rulemaking. As such and based on EPA's analysis, the Agency has made the determination that:
• Alabama's SIP and practices are adequate and comply with PSD Elements for the 2008 Lead, 2008 Ozone and 2010 NO
• Florida's SIP and practices are adequate and comply with PSD Elements for the 2008 Lead and 2010 NO
• Georgia's SIP and practices are adequate and comply with the PSD Elements for the 2008 Lead, 2008 Ozone, and 2010 NO
• Kentucky's SIP and practices are adequate and comply with the PSD Elements for the 2008 Lead and 2010 NO
• Mississippi's SIP and practices are adequate and comply with the PSD Elements for the 2008 Lead, 2008 Ozone, and 2010 NO
• South Carolina's SIP and practices are adequate and comply with the infrastructure SIP PSD Elements for the 2008 Lead, 2008 Ozone, and 2010 NO
• Tennessee's SIP and practices are adequate and comply with the infrastructure SIP PSD Elements for the 2010 NO
As described above, EPA is approving the portions of the above-described infrastructure SIP submissions from Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee to address the PSD permitting requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) of the CAA. As described above, for some of these states, EPA is approving the PSD Elements of the infrastructure SIP submissions for the 2008 Lead, 2008 Ozone and 2010 Nitrogen NO
EPA also notes that, at present, the Agency has preliminarily determined that the Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee SIPs are sufficient to satisfy the PSD permitting requirements portion of section 110(a)(2)(C), 110(a)(2)(D)(i)(II), prong 3 and 110(a)(2)(J) with respect to GHGs because the PSD permitting program previously-approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of Best Available Control Technology. Although the approved Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee PSD permitting programs may currently contain provisions that are no longer necessary in light of the Supreme Court's
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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).
With the exception of South Carolina, the SIPs involved in this action are not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.” With respect to this action as it relates to South Carolina, EPA notes that the Catawba Indian Nation Reservation is located within South Carolina and pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27–16–120, “all state and local environmental laws and regulations apply to the Catawba Indian Nation and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” Thus, the South Carolina SIP applies to the Catawba Reservation, however, because this action is not approving any specific rule into the South Carolina SIP, but rather proposing that the State's already approved SIP meets certain CAA requirements, EPA has determined that there are no substantial direct effects on the Catawba Indian Nation. EPA has also determined that these revisions will not impose any 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 May 18, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
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Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate; when used as an inert ingredient in a pesticide chemical formulation. BASF Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate on food or feed commodities.
This regulation is effective March 18, 2015. Objections and requests for hearings must be received on or before May 18, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2014–0874, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2014–0874 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 18, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2014–0874, by one of the following methods.
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and use in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” and specifies factors EPA is to consider in establishing an exemption.
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d).
2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.
1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.
2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.
3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).
4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.
5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.
6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 Daltons.
Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).
7. The polymer's number average MW of >50,000 Daltons is greater than or equal to 10,000 Daltons. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.
Thus, 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated
For the purposes of assessing potential exposure under this exemption, EPA considered that 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate is >50,000 Daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”
EPA has not found 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate to share a common mechanism of toxicity with any other substances, and 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.
Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate.
There are no existing exemptions from a tolerance for 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate polymers.
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
Accordingly, EPA finds that exempting residues of 2-Propenoic acid, polymer with ethenyl acetate, ethenylbenzene, 2-ethylhexyl 2-propenoate and ethyl 2-propenoate from the requirement of a tolerance will be safe.
This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
1. The authority citation for part 180 continues to read as follows:
21 U.S.C. 321(q), 346a and 371.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of railworthiness directive.
Recent FRA investigations identified several railroad tank cars transporting hazardous materials and leaking small quantities of product from the cars' liquid lines. FRA's investigation revealed that the liquid lines of the leaking tank cars were equipped with a certain type of 3″ ball valve marketed and sold by McKenzie Valve and Machining (McKenzie) (formerly McKenzie Valve & Machining Company), an affiliate company of Union Tank Car Company (UTLX). FRA further found certain closure plugs installed on the 3″ valves cause mechanical damage to the valves, which leads to the destruction of the valves' seal integrity and that the 3″ valves, as well as similarly-designed 1″ and 2″ valves provided by this manufacturer are not approved for use on tank cars. FRA is issuing this Railworthiness Directive (Directive) to all owners of tank cars used to transport hazardous materials within the United States to ensure they identify and appropriately remove and replace these valves with approved valves consistent with Federal regulations.
This Directive is effective March 18, 2015. This Directive is applicable March 13, 2015.
Karl Alexy, Staff Director, Hazardous Materials Division, Office of Technical Oversight, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590, telephone (202) 493–6245;
Recent FRA investigations identified several DOT Specification 111 railroad tank cars transporting hazardous materials and leaking small quantities of product.
On January 15, 2015, FRA inspected seven of the identified leaking tank cars that BNSF removed from the train in Vancouver. The FRA inspector observed crude oil on the sides of each of these cars, and upon inspection of each tank car's top fittings, found product leaking from the liquid line ball valves and around each valve's closure plug. FRA also found the standalone closure plugs in each of these valves loose. Further inspection revealed that the valve balls had visual signs of mechanical damage. The mechanical damage FRA observed indicated that the bottom face of the closure plug came in contact with the valve ball, consequentially preventing complete engagement of the closure plug.
A second instance involved a single tank car loaded with mineral spirits (a Class 3 flammable liquid) found leaking on January 15, 2015, in a BNSF yard in Denver, CO. FRA's preliminary investigation shows that the leak occurred through the liquid line valve
UTLX owns all 17 of the cars found leaking as described above. Each of the leaking cars was configured with liquid line ball valves sold by UTLX's affiliate, McKenzie, and each valve was configured with a 3″ standalone plug as a closure. FRA identified the leaking valves as 3″ McKenzie UNNR threaded ball valves (McKenzie valves).
McKenzie provided FRA several valve configuration drawings indicating that the valve was a full port valve. This configuration requires a 3″ x 2″ reducer bushing with a 2″ plug to prevent contact between the closure plug and the valve ball. McKenzie also informed FRA that it markets and sells the same design of valve in 1″ and 2″ models. For the 2″ valve, McKenzie specified the use of a 1″ plug and an appropriately sized reducer.
At FRA's request, UTLX provided FRA drawings of the top fittings arrangements for these cars. However, unlike the drawings provided by McKenzie, the UTLX drawings provided by UTLX did not include a full port valve with a reducer bushing. Instead, consistent with the physical configuration of the tank cars FRA inspected, the drawings showed a full port threaded valve along with a 3″ plug and chain.
On January 27, 2015, FRA conducted field testing of the McKenzie valves at UTLX's Altoona, PA, tank car repair facility. FRA tested new 1″, 2″, and 3″ McKenzie valves at the facility's valve shop. The field testing included two cycles of application and removal of each valve's plug. FRA found that the 1″ and 2″ McKenzie valves showed no signs of contact between the valve ball when a 1″ or 2″ closure plug was installed and tightened. However, when a 3″ closure plug was applied and tightened in the 3″ McKenzie valve, the plug contacted and damaged the ball. The damage observed during this testing was consistent with the type of damage observed on the leaking UTLX tank cars described above.
FRA's field testing further found that the application of downward force on the valve ball applied by the 3″ plug resulted in the over-compression, damage, and misalignment of the inboard seal, causing the valve to leak. FRA also observed that once a valve's ball is damaged, when the valve is subsequently opened, the damaged surface of the ball also damaged the valve's top seals by tearing the seals. This further compromises the valve's seal. Additionally, FRA understands that with repeated opening and closing (exemplifying in-service use), the valve's threads will degrade, necessitating further engagement of the threads during subsequent applications of the plug. This continual degradation of the threads will require increasingly more tightening of the plug, exacerbating the damage to the ball and seals. In summary, FRA found that normal application and tightening of the 3″ plug in a 3″ McKenzie valve destroys the valve seal integrity.
FRA conducted a followup investigation at the UTLX facility in Altoona to perform a leak test of the 3″ McKenzie valve that was field tested and damaged on January 27, 2015. Although the designed leak-free working pressure of this valve is up to 500 pounds per square inch (psi), the leak test procedure requires that the valve hold a minimum pressure of 30 psi. The subject McKenzie valve failed to retain the minimum 30 psi of compressed air test pressure. The valve showed signs of a significant leak.
As required by Title 49 Code of Federal Regulations (CFR) 179.100–13 and 179.200–16 of the Federal Hazardous Materials Regulations (49 CFR parts 171–180; (HMR)), all valves applied to tanks cars must be of an approved design. The term “approved″ is defined in 49 CFR 179.2 as “approved by the [AAR] Tank Car Committee.”
McKenzie provided FRA with the Association of American Railroads (AAR) approval letters for the McKenzie valves. While McKenzie may have believed these approvals were sufficient, the provided AAR approvals demonstrate clear inconsistencies between the type of valve design that AAR approved versus the design of the valve actually being used and the design depicted on the valve configuration drawings both McKenzie and UTLX provided to FRA. AAR Approval E–077035 (October 26, 2007) is a renewal of previous AAR approvals,
McKenzie provided information to FRA indicating that from 2009 through the present, it sold approximately 11,200 of the 3″ valves to a variety of tank car owners and tank car facilities. McKenzie indicates that since 2012, its sales of these valves were predominantly to replace in-kind valves previously installed on existing tank cars. Further, McKenzie informed FRA that as of January 26, 2015, the company has stopped selling the 3″ valves as a result of the noted safety concerns. Overall, McKenzie and UTLX provided information leading FRA to conclude that approximately 6,000 DOT Specification railroad tank cars are equipped with the unapproved 3″ McKenzie UNNR valves. In addition, McKenzie indicates that it has sold over 37,000 1″ and 2″ valves to a variety of tank car owners and tank car facilities.
To date, FRA has identified only a small number of relatively minor hazardous materials leaks directly attributable to the identified McKenzie valves. FRA believes that the number of leaks potentially attributable to the identified McKenzie valves used in tank car liquid lines could be much higher. Based on FRA's field testing, the 3″ McKenzie valve appears to present an immediate safety issue in certain circumstances. While the 1″ and 2″ McKenzie valves do not appear to present similar concerns, based on the information that AAR, McKenzie, and UTLX have provided to date, it does not appear that any size of the McKenzie valves (
McKenzie and UTLX have taken independent actions to address some of the safety concerns with the 3″ valves. However, FRA believes those actions fail to adequately address the safety issue the valves present.
Upon the applicability date of this Directive, any railroad tank car equipped with an unapproved McKenzie UNNR threaded ball valve (McKenzie valve) is prohibited from being loaded with any hazardous material described in 49 CFR 172.101 and offered into transportation until the requirements listed below are met. Tank car owners
(1) Identify the railroad tank cars in their fleet equipped with any McKenzie valve.
(2) Provide to FRA: (a) The reporting mark and number of each car equipped with any McKenzie valve; and (b) the type of valve each car is equipped with.
(3) Create and maintain for a minimum of 6 months from the applicability date of this directive a record of the inspection of each McKenzie valve. The record must include, at a minimum, the inspection date and location, as well as the results of the inspection (
(4) Immediately inspect the 3″ McKenzie valves on each affected car. If any valve is configured with a 3″ standalone plug, ensure that the car is not loaded and offered into transportation until that valve is replaced with an approved valve consistent with 49 CFR part 179. In addition, any tank car equipped with an unapproved 3″ McKenzie valve is prohibited from being offered into transportation (whether loaded or residue) after May 12, 2015.
(5) Immediately inspect the 1″ and 2″ McKenzie valves on each affected car. If any valve shows evidence of mechanical damage, ensure that the car is not loaded and offered into transportation until that valve is replaced with an approved valve consistent with 49 CFR part 179. Even if a valve is not damaged, a tank car equipped with an unapproved 1″ or 2″ McKenzie valve is prohibited from being offered into transportation (whether loaded or residue) after June 11, 2015.
(6) Ensure that each unapproved McKenzie valve is removed and replaced by an entity permitted to perform such work in accordance with 49 CFR part 179.
(7) Ensure the valve application is properly qualified as required by subpart F of 49 CFR part 180.
After tank car owners have inspected and/or replaced the unapproved valves on each affected tank car as required above, and have provided the necessary information regarding that car to FRA, tank car owners may load the cars with hazardous materials and offer those cars for transportation. Alternatively, if upon an adequate showing demonstrating the safety of the 1″ and 2″ valves, McKenzie obtains AAR's approval for the use of those valves on DOT Specification 111 tank cars, cars equipped with these 1″ or 2″ McKenzie valves may be returned to hazardous materials service.
Tank car owners must send the information required to be submitted to FRA under this Directive to:
Mr. Randy M. Keltz, Jr., Tank Car Quality Assurance Specialist, Office of Railroad Safety, Federal Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, Telephone: (202) 236–7460, Email:
Regardless of any entity's compliance with this directive, FRA reserves the right to seek civil penalties or to take any other appropriate enforcement action for violations of the HMR that have occurred. FRA will be conducting an investigation to ensure that all tank cars equipped with the valves in question are identified and repaired consistent with the requirements of this Directive.
Federal Crop Insurance Corporation, USDA.
Proposed rule.
The Federal Crop Insurance Corporation (FCIC) proposes to revise the General and Administrative Regulation Subpart X—Interpretations of Statutory and Regulatory Provisions, to incorporate interpretations of procedures previously issued and administered in accordance with Manager's Bulletin MGR–05–018 and to provide a mechanism for interpretations of policy provisions that are not codified in the Code of Federal Regulations. The intended effect of this action is to provide requestors with information on how to request a final agency determination or an interpretation of FCIC procedures within one administrative regulation, bring consistency and clarity to the processes used, and to clarify existing provisions.
Written comments and opinions on this proposed rule will be accepted until close of business April 17, 2015 and will be considered when the rule is to be made final.
FCIC prefers that comments be submitted electronically through the Federal eRulemaking Portal. You may submit comments, identified by Docket ID No. FCIC–14–0001, by any of the following methods:
• Federal eRulemaking Portal:
• Mail: Director, Product Administration and Standards Division, Risk Management Agency, United States Department of Agriculture, P.O. Box 419205, Kansas City, MO 64133–6205.
All comments received, including those received by mail, will be posted without change to
Product Management, Product Administration and Standards Division, Risk Management Agency, United States Department of Agriculture, Beacon Facility, Stop 0812, Room 421, PO Box 419205, Kansas City, MO 64141–6205, telephone (816) 926– 7730.
This rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, it has not been reviewed by the OMB.
Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by the Office of Management and Budget (OMB) under control number 0563–0055.
FCIC is committed to complying with the E-Government Act of 2002, 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.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.
FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation does not require any more action on the part of the small entities than is required on the part of large entities. A Regulatory Flexibility Analysis has not been prepared since
This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.
This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.
This proposed rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. Interpretations of statutory and regulatory provisions are matters of general applicability and, therefore, no administrative appeals process is available and judicial review may only be brought to challenge the interpretation after seeking a determination of appealability by the Director of the National Appeals Division in accordance with 7 CFR part 11. Interpretations of procedure or policy provisions not codified in the Code of Federal Regulations are administratively appealable and the appeal provisions published at 7 CFR part 11 must be exhausted before any action for judicial review may be brought against FCIC.
This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.
FCIC proposes to revise the General and Administrative Regulations Subpart X—Interpretations of Statutory and Regulatory Provisions to provide requestors with information on how to request a final agency determination and an interpretation of procedures or policy provisions not codified in the Code of Federal Regulations within one administrative regulation. There are provisions in policies not codified in the Code of Federal Regulations that are identical to those in the Common Crop Insurance Basic Provisions (Basic Provisions) or Crop Provisions codified in the Code of Federal Regulations. In such instances, the requestor sought an interpretation of the applicable provision in the Basic Provisions and that interpretation was applicable to all policies that contained an identical provision. Nothing in this rule changes this process. However, there are numerous policies with provisions that are not codified in the Code of Federal Regulations in any policy. For these policy provisions, this rule provides a mechanism to obtain an interpretation of such provision.
The rule will also clarify existing provisions, eliminate redundancies, remove or update obsolete references, simplify the regulation to address final agency determinations and interpretations of procedures or policy provisions not codified in the Code of Federal Regulations in the same regulation, simplify program administration, and improve clarity of the requestor and FCIC obligations. The proposed rule also incorporates the information formerly contained in Manager's Bulletin MGR–05–018 into subpart X for efficiency and ease of use. Manager's Bulletin MGR–05–018 currently provides criteria for requesting an interpretation of procedures when a requestor seeks an interpretation of the meaning or applicability of procedure used in administering the Federal crop insurance program. Accordingly, Manager's Bulletin MGR–05–018 will no longer be used upon issuance of the final rule to this proposed rule.
The proposed rule amends the language to be consistent where possible and revises the regulation in plain language for ease of readability by the requestor.
Administrative practice and procedure, crop insurance, reporting and recordkeeping requirements.
Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation proposes to amend 7 CFR part 400 as follows:
7 U.S.C. 1506(1), 1506(o).
(a) The regulations contained in this subpart prescribe the rules and criteria for obtaining a final agency determination or an interpretation of a procedure or policy provision not codified in the Code of Federal Regulations.
(1) FCIC will provide a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations, as applicable, for policy provisions or procedures that were in effect during the four most recent
(2) If FCIC determines a request is outside the scope of crop years authorized in paragraph (a)(1) of this section, you will be notified within 30 days of the date of receipt by FCIC.
(3) If the policy provisions or procedures have changed for the time period you seek an interpretation you must submit a separate request for each policy provision or procedure by year. For example, if you seek an interpretation of section 6(b) of the Small Grains Crop Provisions for the 2012 through 2015 crop years but the policy provisions were revised starting with the 2014 crop year. You must submit two requests, one for the 2012 and 2013 crop years and another for the 2014 and 2015 crop years.
(b) With respect to a Final Agency Determination:
(1) All final agency determinations issued by FCIC are binding on all participants in the Federal crop insurance program for the crop years the policy provisions are in effect. Unless appealed in accordance with paragraph (2), failure of the National Appeals Division, arbitrator, or mediator to adhere to the final agency determination provided under this subpart will result in the nullification of any award or agreement in arbitration or mediation.
(2) All final agency determinations are considered matters of generally applicable and are not appealable to the National Appeals Division.
(i) Before obtaining judicial review of any final agency determination, you must obtain an administrative final determination from the Director of the National Appeals Division on the issue of whether the final agency determination is a matter of general applicability.
(ii) Any appeal of a final agency determination must be in accordance with 7 CFR 400.766(c)(4).
(c) With respect to an interpretation of procedure or policy provision not codified in the Code of Federal Regulations:
(1) If either you or any other does not agree with the written interpretation of procedure or policy provision not codified in the Code of Federal Regulations provided by FCIC, a request for administrative review may be filed in accordance with 7 CFR, part 400, subpart J. If you seek an administrative review from FCIC, such request must be submitted in in accordance with § 400.767(a).
(2) FCIC will not accept requests for administrative review from the National Appeals Division, a mediator or arbitrator.
(3) The RMA Office of the Deputy Administrator for Product Management will make a determination on the request for administrative review not later than 30 days after receipt of the request.
(4) Regardless of whether you have sought administrative review, you may appeal an interpretation of procedure made by FCIC to the National Appeals Division in accordance with 7 CFR part 11.
(a) All requests for a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations submitted under this subpart must:
(1) Be submitted to the Deputy Administrator using the format provided on RMA's Web site at
(i) In writing by certified mail or overnight delivery, to the Deputy Administrator, Risk Management Agency, United States Department of Agriculture, Beacon Facility, Stop 0801, Room 421, P.O. Box 419205, Kansas City, MO 64141–6205;
(ii) By facsimile at (816) 926–1803; or
(iii) By electronic mail at
(2) State whether you are seeking a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations;
(3) Identify and quote the specific provision in the Act, regulations, procedure, or policy provision for which you are requesting a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations;
(4) Contain no more than one request for an interpretation (You must make separate requests for each provision if more than one provision is at issue. For example, if there is a dispute with the interpretation of section 3 of the Loss Adjustment Manual, then one request for an interpretation is required. If there is a dispute with the interpretation of section 3 of the Loss Adjustment Manual and section 2 of the Macadamia Nut Loss Adjustment Standards Handbook, then two separate requests for an interpretation are required);
(5) State the crop, crop year(s), and plan of insurance applicable to the request;
(6) State the name, address, and telephone number of a contact person for the request; and
(7) Contain your detailed interpretation of the specific provision of the Act, regulations, procedure, or policy provision for which the request for interpretation is being requested.
(b) You may request a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations, as applicable, only if you have legally filed or formally initiated a judicial review, mediation, or arbitration.
(1) You must identify the type of proceeding (
(2) The name, address, telephone number, and if applicable, fax number, or email address of a contact person for both parties to the proceeding;
(3) Requests must be submitted not later than 90 days before the date the mediation, arbitration or litigation proceeding in which the interpretation will be used is scheduled to begin.
(i) If the rules of the court, mediation, or arbitration require the interpretation prior to the date the proceeding begins, add 90 days to the number of days required prior to the proceeding. For example, if a court requires the interpretation 20 days prior to the date the proceeding begins, you must submit the request 110 days before the proceeding is scheduled to begin.
(ii) Failure to timely submit a request for a final agency determination may result in:
(A) FCIC issuing a determination that no interpretation could be made because the request was not timely submitted; and
(B) Nullification of any agreement or award in accordance with the applicable Basic Provisions.
(iii) If during the mediation, arbitration, or litigation proceeding, an issue arises that requires a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations, the mediator, arbitrator, judge, or magistrate must promptly request a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations in accordance with § 400.767(a).
(4) FCIC at its sole discretion may authorize personnel to provide an oral or written interpretation, as appropriate; and
(5) Any decision or settlement resulting from such mediation, arbitration, or litigation proceeding before FCIC provides its interpretation may not be binding on the parties.
(c) If multiple parties are involved and have opposing interpretations a joint request for a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations including both requestor interpretations in one request is encouraged. If multiple insured persons are parties to the proceedings, and the request for a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations applies to all parties, one request may be submitted for all insured persons instead of separate requests for each person. In this case, the information required in this section must be provided for each person.
(a) FCIC reserves the right to not provide a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations for any request regarding, or that contains specific factual information to situations or cases, such as acts or failures to act of any participant under the terms of a policy, procedure, or any reinsurance agreement.
(1) Regardless of whether or not FCIC accepts a request, FCIC will not consider specific factual information to situations or cases in any final agency determination.
(2) FCIC will not consider any examples provided in your interpretation because those are fact specific and could be construed as a finding of fact by FCIC. If an example is required to illustrate an interpretation, FCIC will provide the example in the interpretation.
(b) If, in the sole judgment of FCIC, the request is unclear, ambiguous, or incomplete, FCIC will not provide a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations but notify you within 30 days of the date of receipt by FCIC that the request is unclear, ambiguous, or incomplete.
(c) If FCIC notifies you that a request is unclear, ambiguous or incomplete under § 400.768(b), the 90 day time period for FCIC to provide a response is stopped on the date FCIC notifies you. On the date FCIC receives a clear, complete, and unambiguous request, FCIC has the balance of the days remaining in the 90 day period to provide a response to you. For example, FCIC receives a request for a final agency determination on January 10. On February 10, FCIC notifies you the request is unclear. On March 10, FCIC receives a clarified request that meets all requirements for FCIC to provide a final agency determination. FCIC has sixty days from March 10, the balance of the 90 day period, to provide a response.
(d) FCIC reserves the right to modify the request for a final agency determination into an interpretation of procedure or policy provision not codified in the Code of Federal Regulations as needed if the request pertains to procedures or uncodified policy provisions and contains the information required in § 400.767.
(e) FCIC will provide you a written final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations within 90 days of the date of receipt for a request that meets all requirements in § 400.767.
(f) If FCIC does not provide a response within 90 days of receipt of a request, you may assume your interpretation is correct for the applicable crop year. However, your interpretation shall not be considered generally applicable and shall not be binding on any other program participants. Additionally, in the case of a joint request for a final agency determination or an interpretation of procedure or policy provision not codified in the Code of Federal Regulations, if FCIC does not provide a response within 90 days, neither party may assume their interpretations are correct.
(g) FCIC will publish all final agency determinations as specially numbered documents on the RMA Web site because they are generally applicable to all program participants.
(h) FCIC will not publish any interpretation of procedure or policy provision not codified in the Code of Federal Regulations because they are only applicable to the parties in the dispute. You are responsible for providing copies of the interpretation of procedure or policy provision not codified in the Code of Federal Regulations to all other parties involved in the proceeding.
(i) When issuing an interpretation, FCIC will not evaluate the insured, approved insurance provider, agent or loss adjuster as it relates to the performance of following FCIC policy provisions or procedures. Interpretations will not include any analysis of whether the insured, approved insurance provider, agent, or loss adjuster was in compliance with the policy provision or procedure in question.
Nuclear Regulatory Commission.
Advance notice of proposed rulemaking; extension of comment period.
On July 25, 2014, the U.S. Nuclear Regulatory Commission (NRC) published for comment an advance notice of proposed rulemaking (ANPR) to obtain input from members of the public on the development of a draft regulatory basis. The draft regulatory basis would identify potential changes to the NRC's current radiation protection regulations. The potential changes, if implemented, would achieve a closer alignment between the NRC's radiation protection regulations and the recommendations of the International Commission on Radiological Protection (ICRP) contained in ICRP Publication 103 (2007). The NRC is extending the comment period for the ANPR to provide additional time for members of the public to develop and submit their comments.
The comment period has been extended and expires on June 22, 2015. 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.
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
• Email comments to:
• Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301–415–1101.
• Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, ATTN: Rulemakings and Adjudications Staff.
• Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal workdays; telephone: 301–415–1677.
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Cardelia Maupin, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–2312; email:
Please refer to Docket ID NRC–2009–0279 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 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–2009–0279 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
On July 25, 2014 (79 FR 43284), the NRC published for comment an ANPR to obtain input from members of the public on the development of a draft regulatory basis. The draft regulatory basis would identify potential changes to the NRC's current radiation protection regulations. The potential changes, if implemented, would achieve a closer alignment between the NRC's radiation protection regulations and the recommendations in ICRP Publication 103 (2007). The ANPR identifies specific questions and issues with respect to a possible revision of the NRC's radiation protection requirements. Comments, including responses to the specific questions, will be considered by the NRC staff when it develops the draft regulatory basis.
The Part 20 of Title 10 of the
In response to a second request, dated February 18, 2015, from several members of the public, the NRC is now extending the public comment period by an additional 90 days. The deadline for submitting comments is now extended from March 24, 2015, to June 22, 2015.
For the Nuclear Regulatory Commission,
U.S. Small Business Administration.
Advance Notice of Proposed Rulemaking (ANPRM).
The U.S. Small Business Administration (SBA) is seeking input and comments on its Early Stage Small Business Investment Company (SBIC) initiative, promulgated in the final rule on April 27, 2012. The intent of the initiative was to license and provide SBA leverage to SBICs over a 5-year period (fiscal years 2012 through 2016) that would focus on making investments in early stage small businesses. Although 58 investment funds applied to the program, to date SBA has only licensed 5 Early Stage SBICs. SBA is seeking input from the public to determine whether existing market conditions warrant SBA continuing to license Early Stage SBICs past fiscal year 2016 on an ongoing basis and, if so, what changes should be made to the program to attract qualified early stage fund managers.
Comments must be received on or before May 18, 2015.
You may submit comments, identified by RIN 3245–AG68, by any of the following methods:
• Federal Rulemaking Portal:
• Mail, Hand Delivery/Courier: Javier Saade, Associate Administrator for the Office of Investment and Innovation, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416.
SBA will post comments on this Advance Notice of Proposed Rulemaking on
Theresa Jamerson, Office of Investment and Innovation, (202) 205–7563.
Since Fiscal Year (FY) 2000, the SBIC Debenture program has operated at zero subsidy cost, meaning that expected losses to the program's portfolio must be fully recouped through the collection of SBIC leverage fees in order to keep the program at zero subsidy cost to the taxpayer. By statute, SBIC leverage fees include a 1% commitment fee, a 2% draw fee, and an annual charge set at the time of commitment and paid on outstanding leverage in conjunction with interest payments. 15 U.S.C. 683(i). The annual charge is formulated each year to keep the program at zero subsidy cost, but may not, by statute, exceed 1.38%. 15 U.S.C. 683(b). Because the standard Debenture (Current Pay Debenture) requires semi-annual interest payments, most SBICs structure their investments as loans or mezzanine debt to finance later stage small businesses with positive operating cash flow so that they can meet requisite interest payments.
On April 27, 2012, SBA published a final rule (77 FR 25042) to define a new sub-category of SBICs as part of President Obama's Start-up America initiative. SBA's intent was to license over a 5-year period (fiscal years 2012 through 2016) venture funds focused on early stage businesses and to guarantee Debentures in an amount up to one-half of each fund's total capitalization. SBA allocated $1 billion of its SBIC Debenture leverage authorization over these years to this effort.
Although SBA has received 58 applications to the Early Stage SBIC program, to date, SBA has only licensed 5 Early Stage SBICs due to the quality of the application pool and SBA's rigorous licensing standards. SBA is seeking input on whether a market need for the program remains and, if so, what changes should SBA consider in order to attract Early Stage fund managers with successful track records.
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(1)
(a) Are there barriers preventing promising early stage small businesses from being financed, and, if so, what are the barriers?
(b) Are there gaps in the financial markets with regard to financing early stage or seed companies in the United States? If so, what evidence exists to identify and verify these gaps?
(c) If there are no or limited gaps in the financial markets for early stage and seed companies in the United States, should SBA continue the Early Stage SBIC program past 2016, but issue a call for Early Stage SBIC applications only if and when identifiable market gaps occur? If so, what evidence should SBA use to identify declining market conditions or gaps in the market?
(2)
(1)
SBA has heard from members of the venture capital industry that many early stage funds are not interested in leverage. SBA seeks input from the public on whether fund-level debt is of use to early stage fund managers or whether concerns exist with regard to current SBIC Early Stage Debenture leverage terms.
(2)
(a)
(b)
(c)
(d)
(3)
(a)
(b)
(4)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a revision to the Pennsylvania Title V Operating Permit Program submitted by the Commonwealth of Pennsylvania on February 11, 2014. The Pennsylvania Operating Permit Program is implemented through its Title V Operating Permits Rule, codified at Subchapter G of Chapter 127 of Title 25 of the Pennsylvania Code. The February 11, 2014 revision amends the title V fee program that funds the Pennsylvania Title V Operating Permit Program. These changes resulted in substantial revisions to Pennsylvania's Title V Operating Permit Program. EPA is proposing to approve these revisions. The intended effect of this action is to improve the Commonwealth's title V operating permit program.
Written comments must be received on or before April 17, 2015.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2015–0119 by one of the following methods:
A.
B.
C.
D.
Gerallyn Duke, (215) 814–2084, or by email at
EPA granted full approval of the Pennsylvania Title V Operating Permits Program on July 30, 1996.
Pennsylvania's initial title V permit emission fee, established in 1994 at 25 PA Code 127.705, was $37 per ton of regulated pollutant per title V facility. Pennsylvania's fee has been increased each year since 1994 by the percentage, if any, by which the Consumer Price Index (CPI) for the most recent calendar year exceeded the CPI for the previous calendar year. Under that regulatory framework, the annual emission fee for emissions occurring in calendar year 2012 was $57.50 per ton of regulated pollutant for emissions of up to 4,000 tons of each regulated pollutant. The fee structure has not been revised since 1994.
Pennsylvania has determined that title V annual emission fee revenues collected are no longer sufficient to cover title V program costs. Installation of air pollution control technology over the past two decades on major stationary sources, the retirement or curtailment of operations by major sources, and the conversion at many major facilities from burning coal or oil to burning natural gas have resulted in decreased emission of regulated pollutants that are subject to annual emission fees, and revenues collected have been decreasing as a result. The decline in interest rates paid on savings account balances used by the Commonwealth to manage permit fees collected also has affected the funds available to Pennsylvania, as the investments earn less interest in the current economy compared to the early years of the title V program. Pursuant to 40 CFR 70.4(i)(2), when EPA receives a title V program revision, EPA will publish its proposed approval or disapproval in the
In the February 11, 2014 program revision, Pennsylvania has included revised 25 PA Code 127.705 which Pennsylvania has amended to increase
Without this fee increase, Pennsylvania anticipates funds will not be sufficient to sustain the title V permitting program beginning fiscal years 2015–2016. If funds become insufficient to sustain the title V permitting program in Pennsylvania, EPA may determine that Pennsylvania has not taken “significant action to assure adequate administration and enforcement of the Program” and take subsequent required action under 40 CFR 70.10(b) and(c) as well as impose mandatory and discretionary sanctions under the CAA.
The February 11, 2014 Title V Operating Permit Program revision consists of amendments to Pennsylvania's rules which establish annual emission fees under title V of the CAA. This rulemaking proposes approval of the increase to the annual title V fees paid by the owner or operator of a title V facility from $57.50 per ton of regulated air pollutant to $85 per ton because the revision meets requirements in 40 CFR 70.9 for sufficient title V fees to cover permit program costs. The emission fees apply to emissions up to 4,000 tons of any regulated pollutant. The proposed revision does not establish a fee structure for carbon dioxide or other greenhouse gases (GHGs). EPA's rules do not mandate revisions to state title V programs to account for GHG emissions.
Pursuant to 40 CFR 70.4(i)(2), EPA is proposing to approve the Pennsylvania Title V Operating Program revision submitted on February 11, 2014 to increase the annual title V fees paid by the owners or operators of all title V facilities throughout Pennsylvania, including Allegheny and Philadelphia Counties, from $57.50 per ton of regulated air pollutant to $85 per ton. The revision meets requirements in 40 CFR 70.9. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule related to Pennsylvania title V fees does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the program is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Administrative practice and procedure, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve and incorporate by reference revisions to the Alaska State Implementation Plan (SIP) submitted on July 1, 2014 and October 24, 2014. These revisions primarily update the adoption by reference of Federal regulations and definitions into the Alaska SIP. The revisions also clarify stationary source permitting rules governing owner-requested emission limits and revise the SIP to reflect the redesignation of the Eagle River area of Anchorage. Upon final action, the Alaska SIP will be updated to reflect recent Federal regulatory changes and actions.
Comments must be received on or before April 17, 2015.
Submit your comments, identified by Docket ID No. EPA–R10–OAR–2014–0532, by any of the following methods:
•
•
•
•
Kristin Hall at telephone number: (206) 553–6357, email address:
Throughout this document wherever “we”, “us” or “our” is used, it is intended to refer to the EPA.
Section 110 of the Clean Air Act (CAA) specifies the general requirements for states to submit SIPs to implement, maintain and enforce the National Ambient Air Quality Standards (NAAQS) and the EPA's actions regarding approval of those SIPs. On July 1, 2014 and October 24, 2014, the Alaska Department of Environmental Conservation (ADEC), on behalf of the Governor of Alaska, submitted SIP revisions to the EPA to account for regulatory updates effective October 6, 2013 and November 9, 2014, respectively. These revisions update Alaska Administrative Code Title 18 Environmental Conservation, Chapter 50 Air Quality Control (18 AAC 50) to reflect the adoption by reference of Federal regulations and definitions into the Alaska SIP, and edit associated cross-references to definitions. The revisions also clarify stationary source permitting rules governing owner-requested emission limits, and update the SIP to reflect the redesignation of the Eagle River area of Anchorage to attainment for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM
We note that this action does not address the portions of the July 1, 2014, and October 24, 2014, SIP submittals related to Alaska's nonattainment new source review permitting program. The nonattainment new source review permitting rule updates submitted as part of these revisions were approved in a previous action on January 7, 2015 (80 FR 832). In this action, we are proposing to approve the remainder of the revisions to the Alaska SIP submitted on July 1, 2014 and October 24, 2014. Please see below for our evaluation.
On January 7, 2013, the EPA approved the maintenance plan submitted by ADEC for the Eagle River PM
In the July 1, 2014, submittal, ADEC revised and submitted changes to 18 AAC 50.040 “Federal Standards Adopted by Reference” to update the citation dates incorporating by reference certain Federal requirements into the Alaska SIP. Specifically, ADEC submitted the updated adoption by reference of 40 CFR part 51, Appendix W “Guideline on Air Quality Models” revised as of July 1, 2012. We are proposing to approve this revision as consistent with Federal requirements.
ADEC also submitted the updated incorporation by reference of Federal PSD permitting regulations at 40 CFR 51.166 and 40 CFR 52.21, revised as of April 1, 2013, which are referenced in ADEC's major source permitting rules in 18 AAC Chapter 50, Article 3, and relied on to implement ADEC's SIP-approved PSD permitting program. ADEC excluded from its submittal certain PSD permitting provisions in 40 CFR 51.166 and 40 CFR 52.21 that have been vacated by recent Court decisions, and those provisions are therefore not before the EPA for approval. Specifically, in response to the Court vacatur of the EPA PM
ADEC also excluded from its submittals the greenhouse gas (GHG) regulatory provision at 40 CFR 52.21(b)(49)(v) that was recently vacated by the Supreme Court and that is adopted by reference in 18 AAC 50.040(h)(4), effective October 6, 2013. On June 3, 2010, the EPA revised Federal PSD permitting rules addressing the application of the requirements to GHG emissions (GHG Tailoring Rule) (75 FR 31514). However, on June 23, 2014, the Supreme Court, in
The EPA anticipates a need to revise Federal PSD rules in light of the Supreme Court decision. In addition, the EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision. The timing and content of subsequent EPA actions with respect to the EPA regulations is expected to be informed by additional legal processes before the D.C. Circuit. The EPA is not expecting states to have revised their existing PSD program regulations at this juncture, before the D.C. Circuit has addressed these issues and before the EPA has revised its regulations at 40 CFR 51.166 and 52.21. However, the EPA is evaluating PSD program submissions to assure that state programs correctly address GHGs, consistent with the Supreme Court's decision. Because ADEC has excluded from its SIP submission the GHG Tailoring Rule provision that was vacated by the Supreme Court, that provision is not before the EPA for action.
For the reasons discussed above, we are proposing to determine that the updated incorporation by reference of Federal requirements in 18 AAC 50.040(h) is consistent with CAA requirements for SIP-approved PSD permitting programs.
We note that in both the July 1, 2014, and October 24, 2014, submittals, ADEC included changes to 18 AAC 50.040(i) related to Alaska's nonattainment new source review permitting program. These changes were previously approved on January 7, 2015 (80 FR 832).
The July 1, 2014, submittal included a revised version of 18 AAC 50.225 “Owner-Requested Limits,” effective October 6, 2013, that removed paragraph (b)(7). Paragraph (a) of 18 AAC 50.225 specifies that an owner-requested limit under this provision may be requested “to avoid all permitting obligations under AS 46.14.130 [Stationary sources requiring permits].” Paragraph (b)(7) of 18 AAC 50.225 stated that, “if applying all limits does not avoid all permit classifications under AS 46.14 and this chapter, the owner or operator shall submit to the department “a description, and if necessary an application, for the remaining classifications[.]” In the July 1, 2014, submittal, ADEC stated that in 18 AAC 50.225, paragraph (b)(7) contradicts paragraph (a) and that the repeal of (b)(7) merely clarifies the requirements for obtaining owner-requested limits. As explained by ADEC, the State's interpretation of 18 AAC 50.225 is that a source is only eligible to apply for an owner-requested limit under 18 AAC 50.225 to avoid all stationary source permitting obligations under AS 46.14.130. AS 46.14.130 “Stationary sources requiring permits” is the Alaska statute requiring both title I major new source construction permits and title V major source operating permits.
In the July 1, 2014, submittal ADEC asserted that “there is no relaxation of the regulations, as the two types of ORLs allow the applicant to avoid permitting classifications depending on their particular situation.”
We agree with ADEC that the provision at 18 AAC 50.225(b)(7) is potentially confusing and contradictory and that the repeal of that provision clarifies when each of the two provisions authorizing owner-requested limits (18 AAC 50.225 and 18 AAC 50.508) are applicable to owners and operators of stationary sources seeking an emission limit to avoid major permitting obligations. We therefore propose to approve the revision to 18 AAC 50.225.
In the July 1, 2014, submittal, ADEC revised this provision to reference the definition of fugitive emissions in 18 AAC 50.990 “Definitions” rather than the statutory definition in AS 46.14.990. The definition of “fugitive emissions” at 18 AAC 50.990(40) states that the term has the meaning given in 40 CFR 51.166(b)(20) in the Federal PSD regulations. This definition is approvable because the PSD definition of “fugitive emissions” in 40 CFR 51.166(b)(20) is identical to the definition of the same term in 40 CFR 51.301 “Definitions” for purposes of 40 CFR part 51, subpart P “Protection of Visibility.”
The October 24, 2014, submittal revised 18 AAC 50.502 “Minor Permits for Air Quality Protection” to add
The July 1, 2014, submittal revised the definition of “fugitive emissions” at 18 AAC 50.990(40) to have the meaning given in 40 CFR 51.166(b)(20), as revised as of July 1, 2012. The October 24, 2014, submittal repealed the definition of “regulated NSR pollutant” at 18 AAC 50.990(92). This action does not address these changes because we previously approved them on January 7, 2015 (80 FR 832).
The July 1, 2014, submittal also updated the citation date for the incorporation by reference of the Federal definition of “volatile organic compound” (VOC). The submittal revised 18 AAC 50.990(121) to define “VOC” as the meaning given in 40 CFR 51,100(s) as of April 18, 2013. We note that the Federal definition has been revised since April 18, 2013. Specifically, on October 22, 2013, the EPA removed constituents from the definition of VOC (78 FR 62451). While the definition in Alaska's rule is not identical to the Federal definition, the Alaska definition is more stringent and therefore approvable.
The EPA is proposing to approve and incorporate by reference into the Alaska SIP changes to the following provisions submitted on July 1, 2014 and October 24, 2014:
• 18 AAC 50.015 “Air Quality Designations, Classifications, and Control Regions” (State effective 10/6/2013);
• 18 AAC 50.040 “Federal Standards Adopted by Reference” (State effective 10/6/2013);
• 18 AAC 50.225 “Owner-Requested Limits” (State effective 10/6/2013);
• 18 AAC 50.260 “Guidelines for Best Available Retrofit Technology under the Regional Haze Rule” (State effective 10/6/2013);
• 18 AAC 50.502 “Minor Permits for Air Quality Protection” (State effective 11/9/2014); and
• 18 AAC 50.990 “Definitions” (State effective 11/9/2014).
We have made the preliminary determination that the submitted SIP revisions are approvable because they are consistent with section 110 and part C of title I of the CAA. We note that this action does not address the submitted revisions related to Alaska's nonattainment NSR permitting program because we approved those changes on January 7, 2015 (80 FR 832).
In this rule, the EPA is proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the provisions described above in Section III. Proposed Action. The EPA has made, and will continue to make, these documents generally available electronically through
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, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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 it does not involve technical standards; and
• does not provide the 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, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to make a determination that the Baltimore, Maryland Moderate Nonattainment Area (Baltimore Area) has attained the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). This
Written comments must be received on or before April 17, 2015.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2014–0884 by one of the following methods:
A.
B. Email:
C. Mail: EPA–R03–OAR–2014–0884, Cristina Fernandez, Associate Director, Office of Air Program Planning, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Irene Shandruk, (215) 814–2166, or by email at
On March 12, 2008, EPA revised both the primary and secondary NAAQS for ozone to a level of 0.075 parts per million (ppm) (annual fourth-highest daily maximum 8-hour average concentration, averaged over three years) to provide increased protection of public health and the environment. 73 FR 16436 (March 27, 2008).
Under the provisions of EPA's ozone implementation rule (40 CFR 51.918), if EPA issues a determination that an area is attaining the relevant standard (through a rulemaking that includes public notice and comment), it will suspend the area's obligations to submit an attainment demonstration, RACM, RFP, contingency measures and other planning requirements related to attainment of the 2008 8-hour ozone NAAQS for as long as the area continues to attain the standard. This suspension remains in effect until such time, if ever, that EPA (i) redesignates the area to attainment at which time those requirements no longer apply, or (ii) subsequently determines that the area has violated the 2008 8-hour ozone NAAQS. Although these requirements are suspended, EPA is not precluded from acting upon these elements at any time if submitted to EPA for review and approval. The determination of attainment is not equivalent to a redesignation under section 107(d)(3) of the CAA. The designation status of the Baltimore Area will remain nonattainment for the 2008 8-hour ozone NAAQS until such time as EPA determines that the Area meets the CAA requirements for redesignation to attainment, including an approved maintenance plan. Additionally, the determination of attainment is separate from, and does not influence or otherwise affect, any future designation determination or requirements for the Baltimore Area based on any new or revised ozone NAAQS, and it remains in effect regardless of whether EPA designates this Area as a nonattainment area for purposes of any new or revised ozone NAAQS.
For ozone, an area may be considered to be attaining the 2008 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR part 50, based on three complete, consecutive calendar years of quality-assured ambient air monitoring data. Under EPA regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the
EPA has reviewed the complete, quality-assured and certified ozone ambient air monitoring data for the monitoring period for 2012–2014 for the Baltimore Area. The design values for each monitor for the years 2012–2014 are less than or equal to 0.075 ppm, and all monitors meet the data completeness requirements (
The data in Table 1 are available in EPA's AQS database. The AQS report with this data is available in the docket for this rulemaking under docket number EPA–R03–OAR–2014–0884 and available online at
EPA is proposing to make a determination that the Baltimore Area has attained the 2008 8-hour ozone NAAQS. This proposed determination is based upon complete, quality-assured, and certified ambient air monitoring data that show the Baltimore Area has monitored attainment of the 2008 8-hour ozone NAAQS for the 2012–2014 monitoring period. Once this proposal is final, the requirement for this Area to submit an attainment demonstration, RACM, a RFP plan, contingency measures, and other planning requirements related to attainment of the 2008 8-hour ozone NAAQS shall be suspended for so long as the Baltimore Area continues to attain the 2008 8-hour ozone NAAQS. Although these requirements are suspended, EPA is not precluded from acting upon these elements at any time if submitted to EPA for review and approval. Finalizing this determination does not constitute a redesignation of the Baltimore Area to attainment for the 2008 8-hour ozone NAAQS under CAA section 107(d)(3). This determination of attainment also does not involve approving any maintenance plan for the Baltimore Area and does not determine that the Baltimore Area has met all the requirements for redesignation under the CAA, including that the attainment be due to permanent and enforceable measures. Therefore, the designation status of the Baltimore Area will remain nonattainment for the 2008 8-hour ozone NAAQS until such time as EPA takes final rulemaking action to determine that such Area meets the CAA requirements for redesignation to attainment. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
This action proposes to make an attainment determination based on air quality data and would, if finalized, result in the suspension of certain Federal requirements and would not impose any additional requirements. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, concerning a determination of attainment for the 2008 ozone NAAQS for the Baltimore Area, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the State Implementation Plan (SIP) is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Intergovernmental relations, Incorporation by reference, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing a limited approval and limited disapproval of revisions to the Arizona Department of Environmental Quality (ADEQ) portion of the applicable state implementation plan (SIP) for the State of Arizona. These revisions are primarily intended to serve as a replacement of ADEQ's existing SIP-approved rules for the issuance of New Source Review (NSR) permits for stationary sources, including but not limited to review and permitting of major sources and major modifications under the Clean Air Act (CAA or Act). After a lengthy stakeholder process, the State of Arizona developed and submitted a NSR program for SIP approval that satisfies most of the applicable Clean Air Act and NSR regulatory requirements, and will significantly update ADEQ's existing SIP-approved NSR program. It also represents an overall strengthening of ADEQ's SIP-approved NSR program by clarifying and enhancing the NSR permitting requirements for major and minor stationary sources. This proposed action will update the applicable plan and set the stage for remedying certain deficiencies in these rules. We are seeking comment on our proposed action and plan to follow with a final action.
Any comments must arrive by April 17, 2015.
Submit comments, identified by docket number EPA–R09–OAR–2015–0187, by one of the following methods:
1.
2.
3.
Lisa Beckham, EPA Region 9, (415) 972–3811,
Throughout this document, the terms “we,” “us,” and “our” refer to EPA.
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials
(ii) The initials
(iii) The initials
(iv) The initials
(v) The initials
(vi) The initials
(vii) The words
(viii) The initials
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(x) The initials
(xi) The initials
(xii) The initials
(xiii) The initials
(xiv) The initials
(xv) The initials
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(xvii) The initials
(xviii) The initials
(xix) The initials
(xx) The initials
(xxi) The initials
(xxii) The initials
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(xxiv) The initials
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On July 28, 2011 and October 29, 2012, ADEQ submitted revisions to the ADEQ portion of the Arizona SIP. On May 16, 2014, ADEQ supplemented the July 28, 2011 submittal. On September 6, 2013, July 2, 2014, and February 16, 2015, ADEQ supplemented the October 29, 2012 submittal. Collectively, these submittals generally comprise ADEQ's current program for preconstruction review and permitting of new or modified stationary sources under ADEQ's jurisdiction in Arizona (as described below).
The proposed revisions to the SIP that are subject to this action cover those areas of Arizona where ADEQ has jurisdiction. Currently, ADEQ has permitting jurisdiction for the following stationary source categories in all areas of Arizona: Smelting of metal ores, coal-fired electric generating stations, petroleum refineries, Portland cement plants, and portable sources. ADEQ also has permitting jurisdiction for major and minor sources in the following counties: Apache, Cochise, Coconino, Gila, Graham, Greenlee, La Paz, Mohave, Navajo, Santa Cruz, Yavapai, and Yuma. Finally, ADEQ has permitting jurisdiction over major sources in Pinal County
Table 1 lists the rules we are proposing for approval in today's action with the corresponding effective dates and submittal dates. The submitted rules are from the Arizona Administrative Code, Title 18—Environmental Quality, Chapter 2—Department of Environmental Quality—Air Pollution Control, Articles 1, 2, 3, and 4. The submitted statutory provision is from Title 49 of the Arizona Revised Statutes, Chapter 1, Article 1.
On December 28, 2012, April 29, 2013, and December 2, 2014, ADEQ's July 28, 2011, October 29, 2012, and July 2, 2014 submittals, respectively, were deemed complete by operation of law to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. Each of these submittals includes evidence of public notice and adoption of the regulation. Our technical support document (TSD) provides additional background information on each of the submitted rules.
EPA has not approved significant revisions or updates to ADEQ's SIP-approved NSR program since the 1980s. The existing SIP-approved NSR program for new or modified stationary sources under ADEQ's jurisdiction generally consists of the rules identified below in Table 2 that we are proposing to supersede in or delete from the Arizona SIP. Collectively, these regulations established the NSR requirements for both major and minor stationary sources under ADEQ jurisdiction in Arizona, including requirements for the generation and use of emission reduction credits in nonattainment areas.
Consistent with ADEQ's stated intent to have the submitted NSR rules replace the existing NSR program in the SIP, EPA's approval of the regulations identified above in Table 1 generally would have the effect of superseding our prior approval of the current SIP-approved NSR program.
The purpose of this proposed rule is to present our evaluation under the CAA and EPA's regulations of rules and statutory provisions submitted by ADEQ on July 28, 2011, October 29, 2012, and July 2, 2014, which are identified in Table 1. We provide our reasoning in general terms below, and include our more detailed analysis in the TSD, which is available in the docket for this proposed rulemaking.
EPA has reviewed the provisions submitted by ADEQ that are the subject of this action, including those governing NSR for stationary sources under ADEQ jurisdiction for compliance with the CAA's general requirements for SIPs in CAA section 110(a)(2), EPA's regulations for stationary source permitting programs in 40 CFR part 51, sections 51.160 through 51.166, and the CAA requirements for SIP revisions in CAA section 110(l) and 193.
With respect to procedures, CAA sections 110(a) and 110(l) require that revisions to a SIP be adopted by the State after reasonable notice and public hearing. EPA has promulgated specific procedural requirements for SIP revisions in 40 CFR part 51, subpart F. These requirements include publication of notices, by prominent advertisement in the relevant geographic area, of a public hearing on the proposed revisions, a public comment period of at least 30 days, and an opportunity for a public hearing.
Based on our review of the public process documentation included in the July 28, 2011, October 29, 2012 and July 2, 2014 submittals, we find that ADEQ has provided sufficient evidence of public notice and opportunity for comment and public hearings prior to adoption and submittal of these rules to EPA.
With respect to substantive requirements, we have generally reviewed the ADEQ provisions that are the subject of our current action in accordance with the CAA and applicable regulatory requirements, focusing primarily on those that apply to: (1) General preconstruction review programs, including for minor sources, under section 110(a)(2)(C) of the Act; (2) PSD permit programs under part C of title I of the Act; and (3) Nonattainment NSR permit programs under part D of title I of the Act (NA–NSR). For the most part, ADEQ's submittal satisfies applicable CAA requirements, specifically including the applicable requirements for these three preconstruction review programs and would strengthen the applicable SIP by updating the regulations and adding requirements to address new or revised NSR permitting and other requirements promulgated by EPA, but the submitted rules also contain specific deficiencies that prevent full approval. Below, we discuss generally our evaluation of ADEQ's submittal and the deficiencies that are the basis for our proposed action on these rules. Our TSD contains a more detailed evaluation as well as additional recommendations for program improvements.
Section 110(a)(2)(C) requires each SIP to include a program for the regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure attainment and maintenance of the National Ambient Air Quality Standards (NAAQS). In addition to the permit programs required under parts C and D of the CAA for PSD sources and nonattainment NSR sources, respectively, which are discussed below, EPA's regulations at 40 CFR 51.160–51.164 provide general programmatic requirements to implement this statutory mandate commonly referred to as the “minor NSR program.” These minor NSR program regulations impose requirements for SIP approval of State and local programs that are more general in nature as compared with the specific statutory and regulatory requirements for PSD and NA–NSR permitting programs. Under EPA's regulations governing the minor NSR program, States and local air agencies retain a level of discretion to define the types and sizes of sources subject to the program, whereas under the PSD and nonattainment NSR permitting programs, the sources subject to regulation are specified by EPA regulations. The substantive requirements for the preconstruction review and permitting of minor stationary sources under ADEQ jurisdiction are ADEQ rules R18–2–302.01 and R18–2–334. These rules, and other administrative rules included in the minor NSR portion of the SIP submittal, satisfy most of the statutory and regulatory requirements for minor NSR programs, but these rules also contain several deficiencies that form the basis for our proposed limited disapproval, as discussed below.
We are proposing a limited approval and limited disapproval of ADEQ's minor NSR program because it is not fully consistent with the requirements of 40 CFR 51.160, 40 CFR 51.161, 40 CFR 51.163 and 40 CFR 51.164, as described below. We find that approval
40 CFR 51.160 requires that each NSR program contain certain legally enforceable procedures. We have identified several deficiencies with ADEQ's program as it pertains to these requirements.
First, as required by 40 CFR 51.160(a), ADEQ's permitting procedures are not enforceable in all instances. ADEQ's program allows certain sources to begin construction when a “proposed final permit” is issued by ADEQ, rather than preventing construction until a final permit has been issued. See R18–2–101(114), R18–2–302(G), R18–2–334(B), R18–2–402(C). The definition for “proposed final permit” in R18–2–101 does not specify that such an action is a final decision for NSR purposes. As a result, the program does not provide ADEQ with clear authority to prevent construction or modification before it issues a final decision on the request for authority to construct as is required per 40 CFR 51.160(a) and (b). ADEQ has clarified that, in effect, under ADEQ's rules, a proposed final permit is treated as a final authorization to construct, and that it will treat proposed final permit as a final, appealable agency action under Arizona law.
Second, ADEQ's program does not contain adequate enforceable procedures to ensure compliance by sources subject to review under its NSR program with the NAAQS as required by 40 CFR 51.160(a)(2) and (b)(2). Although NAAQS is a defined term in ADEQ's regulations, see R18–2–101(85), ADEQ's NSR program generally does not refer to the NAAQS and instead generally references the State's ambient air standards in Article 2 of ADEQ's air program. See R18–2–302.01, R18–2–334, and R18–2–406.
Third, for sources subject to ADEQ's registration program at R18–2–302.01, ADEQ has not demonstrated that its NSR program meets the requirement to ensure that sources subject to NSR review comply with the applicable portions of the control strategy as required by 40 CFR 51.160(b)(1).
Fourth, ADEQ's registration program in R18–2–302.01 does not contain enforceable procedures for the owner or operator to submit the necessary information for ADEQ to determine whether a source will violate the applicable control strategy or interfere with attainment or maintenance of the NAAQS as required by 40 CFR 51.160(c). R18–2–302.01(A)(3) requires applicants to calculate a source's uncontrolled potential to emit, but then references provisions in another rule, R18–2–327(C), that are used to calculate “actual” emissions. As such, ADEQ's program contains conflicting procedures for calculating potential emissions. In addition, rule R18–2–327, is not in the Arizona SIP, and has not been submitted to EPA for SIP approval.
Fifth, ADEQ's program does not meet the requirement that the applicant submit information related to the nature and amounts of emissions, for certain kinds of emissions units as required by 40 CFR 51.160(c)(1). For Class I and Class II permits, R18–2–304(E)(9) allows sources to avoid providing emission information for “insignificant activities,” as defined in R18–2–101(68). The term “insignificant activities” is generally associated with the title V program. Many of the activities listed in ADEQ's definition of insignificant activity are activities that would not be expected to emit regulated NSR pollutants. However, this is not true for all activities, such as those listed under R18–2–101(68)(a–c) that include liquid storage tanks, combustion engines, and “low-emitting processes.”
Sixth, for sources subject to R18–2–302.01, ADEQ's program does not meet the requirement in 40 CFR 51.160(d) that its procedures provide that approval of construction or modification
Finally, for sources subject to ADEQ's registration program under R18–2–302.01, ADEQ's program does not meet the requirement to use Appendix W to 40 CFR part 51 for air quality modeling as required by 40 CFR 51.160(f)(1).
40 CFR 51.160(e) requires ADEQ's submittal to provide a basis for the types and sizes of facilities, buildings, structures, or installations that will be subject to review under 40 CFR 51.160. Such exclusions are appropriate so long as such sources and modifications are not environmentally significant, consistent with the
First, ADEQ's submittal does not provide a clear basis for concluding that the exemption thresholds selected by ADEQ will ensure a sufficient percentage of minor sources are subject to review in nonattainment areas. As ADEQ points out in its submittal, ADEQ's analysis is based on data for Maricopa County
Second, while EPA agrees that, in general, certain types of equipment may be exempted from the minor NSR program, ADEQ must provide a basis under 40 CFR 51.160(e) to demonstrate that regulation of the equipment exempted in R18–2–302(C) and A.R.S. § 49–426(B) is not needed for ADEQ's program to meet federal NSR requirements for attainment and maintenance of the NAAQS or review for compliance with the control strategy. Such demonstration must address: (1) An explanation of whether the regulatory exemption in R18–2–302(C) for “agricultural equipment used in normal farm operations” constitutes an interpretation or refinement of the exemption for such sources in A.R.S. § 49–426(B), and how the two provisions apply to ADEQ's NSR program; (2) Identification of the types of equipment ADEQ considers to be “agricultural equipment used in normal farm operations” and whether this type of equipment could potentially be expected to occur at a stationary source subject to title V of the Act, 40 CFR parts 60, 61, or 63, or major NSR, and, if so, whether such equipment is subject to NSR review at such sources; (3) ADEQ's basis for determining that “agricultural equipment used in normal farm operations” does not need to be regulated as part of ADEQ's minor NSR program under 40 CFR 51.160(e); and (4) ADEQ's interpretation of the exemption for fuel burning equipment in A.R.S. § 49–426(B) and how it does, or does not, apply in the context of its major and minor NSR programs, and, to the extent such equipment is not subject to NSR review, ADEQ's basis for determining that equipment exempted under this provision does not need to be reviewed as part of ADEQ's minor NSR program under 40 CFR 51.160(e).
Finally, ADEQ's minor NSR program sets a permitting exemption threshold for PM
40 CFR 51.161 requires that each NSR program contain certain procedures related to public participation. We have identified several deficiencies with ADEQ's program as it pertains to these requirements.
First, ADEQ's program does not ensure that NSR review for all minor sources regulated under ADEQ's NSR program, as ADEQ defines it pursuant to 40 CFR 51.160(e), is subject to public notice and comment consistent with 40 CFR 51.161(a). 40 CFR 51.161(a) requires that the program under 51.160 provide for public comment on the information submitted by owners or operators. In addition, the public information must include ADEQ's analysis of the effects of construction or modification on ambient air, including ADEQ's proposed approval or disapproval. ADEQ's program does not meet this requirement because: (1) “modification” of existing sources that become subject to the registration program under R18–2–302.01 (currently only “construction” of a source) are not subject to public notice (see R18–2–302.01(B)(3)); (2) R18–2–334(G) exempts most modifications from public notice; (3) R18–2–330 does not clearly define which public notice requirements apply to registrations; and (4) public participation does not appear to be
Second, ADEQ's registration program at R18–2–302.01(F) does not contain the necessary enforceable procedures for sources taking “elective limits” to limit their potential to emit in a manner that allows the source to avoid the public participation requirements in 40 CFR 51.161(a), while otherwise being subject to the registration program. See R18–2–302.01(B)(3)(b) and R18–2–302(E)(1). While ADEQ's rule contains requirements for monitoring, recordkeeping, and reporting of elective limits, these requirements are not sufficiently enforceable for purposes of limiting the source's potential to emit, and thereby avoiding public notice, as well other substantive requirements of ADEQ's minor NSR program when issuing a registration. In order to meet practical enforceability requirements for limiting the potential to emit (PTE), R18–2–302.01(F) must also contain (1) a technically accurate limitation and the portions of the source subject to the limitation and (2) the time period for the limitations (hourly, daily, monthly, etc.). Further, if the limitation is over a period longer than daily, R18–2–302.01(F) must specify when to compile daily records to show compliance with the elected limit. Additional detail on this issue is provided in our TSD.
Third, ADEQ's NSR program does not ensure, for all sources subject to NSR review, the availability for public inspection, in at least one location in the area affected, of the information submitted by the owner or operator and of ADEQ's analysis on the effect on air quality as required by this federal regulation. R18–2–330(D)(11) requires the public notice to identify the nearest ADEQ office where documents can be inspected, but there are only two department offices for ADEQ. See 40 CFR 51.161(b)(1). We do not interpret this provision as meeting the requirement to make information available in the “area affected.” In addition, the public notice requirements do not make reference to providing ADEQ's analysis for public inspection. Potentially, this is covered by “all other materials available to the Director that are relevant to the permit decision”.
Finally, ADEQ's NSR program does provide notice to the necessary parties in 40 CFR 51.161(d) for sources required to obtain registrations under R18–2–302.01.
40 CFR 51.163 requires each NSR program to include administrative procedures that will be followed in making the determinations specified in 40 CFR 51.160(a). While ADEQ's program generally meets the requirements of this provision, ADEQ's submittal contains references to other ADEQ rules, R18–2–317 and R18–2–317.02, which are not in the SIP and have not been submitted for SIP approval. See R18–2–306.02(D), R18–2–319(I), R18–2–304(J), R18–2–306(A), and R18–2–306.02(D).
40 CFR 51.164 requires that each NSR program contain certain provisions related to good engineering practice for stack heights. In addition to reviewing ADEQ's submittal as compared with the NSR program requirements of 40 CFR 51.164, we also reviewed ADEQ's submittal as it relates to certain general SIP program requirements in 40 CFR 51.100 and 51.118. The stack height provisions in the NSR program rely on the general stack height provisions in 40 CFR 51.118(b), which in turn references the definitions in 40 CFR 51.100(hh) through (kk). We have identified several deficiencies with ADEQ's program as it pertains to these requirements.
First, ADEQ's submittal does not meet the public hearing requirements in 40 CFR 51.164 and 51.118(a). While R18–2–332(E) contains a reference to holding a public hearing, when required, the provision references ADEQ's public hearing provision in R18–1–402. R18–1–402 is not in the SIP and has not been submitted for SIP approval.
Second, ADEQ's submittal does not contain language that meets the exception in 40 CFR 51.118(b): “except where pollutants are being emitted from such stacks or using such dispersion techniques by sources, as defined in section 111(a)(3) of the Clean Air Act, which were constructed, or reconstructed, or for which major modifications, as defined in §§ 51.165(a)(1)(v)(A), 51.166(b)(2)(i) and 52.21(b)(2)(i), were carried out after December 31, 1970.” In addition, R18–2–332(A)(3) incorrectly references July 1, 1975 instead of July 1, 1957 as that date appears in 40 CFR 51.118(b).
Third, ADEQ's submittal does not contain a requirement that owners or operators seeking to rely on the equation in 40 CFR 51.100(ii)(2)(i) produce evidence that the equation was actually relied on in establishing an emission limitation. See R18–2–332(B)(2).
Finally, ADEQ's submittal contains a provision at R18–2–332(D) that provides additional provisions for sources “seeking credit because of plume impaction which results in concentrations in violation of national ambient air quality standards or applicable maximum allowable increases.” This provision is not contained in the federal regulations and appears to allow for the use of stack heights beyond GEP stack height, as defined in 40 CFR 51.100(ii).
In sum, while we have identified several disapproval issues with ADEQ's minor NSR program requirements as they correspond to federal minor NSR program requirements, compared to the existing SIP, approving ADEQ's minor NSR program into the Arizona SIP nonetheless represents a significant overall strengthening of ADEQ's NSR program, as discussed above. Thus, we are proposing a limited approval and limited approval of ADEQ's minor NSR program submittal.
Part C of title I of the Act contains the provisions for the prevention of significant deterioration (PSD) of air quality in areas designated “attainment” or “unclassifiable” for the NAAQS, including preconstruction permit requirements for new major sources or major modifications proposing to construct in such areas. EPA's regulations for SIP-approved PSD permit programs are found in 40 CFR 51.166.
ADEQ rules R18–2–402 and R18–2–406 contain the substantive requirements for review and permitting of PSD sources under ADEQ's jurisdiction. These regulations satisfy most of the statutory and regulatory requirements for PSD permit programs, but these and other rules in the NSR SIP submittal contain several deficiencies that form the basis for our proposed limited disapproval, or proposed disapprovals as discussed below.
Although ADEQ's submittal meets most PSD program requirements, we are proposing to disapprove two specific aspects of ADEQ's PSD program. The ADEQ rule provisions that we are proposing to disapprove are directly comparable to federal PSD rule provisions that have been vacated by federal courts, and we find that they are separable from the remainder of ADEQ's PSD program. Accordingly, we find these provisions suitable for disapproval at this time. These provisions are described below in Sections II.C.8 and 9.
For the remainder of ADEQ's PSD program submittal, we are proposing limited approval and limited disapproval. We find that approval of ADEQ's updated PSD program, aside from the two aspects that are separable and will be disapproved as mentioned above, will substantially strengthen the SIP overall, particularly as the current SIP-approved PSD program is significantly out of date when compared with current federal PSD regulatory requirements as well as current State regulations. See our discussion in Section G below. However, specific provisions of the PSD SIP program submittal are inconsistent with PSD program requirements, and these deficiencies must be addressed before we can fully approve ADEQ's PSD program. The deficiencies that we have identified with ADEQ's PSD program that provide the basis for our limited disapproval are described below in Sections II.C.1 through 7.
First, ADEQ's submittal often refers to Articles 9 and/or 11 of ADEQ's regulations where the federal regulations refer to 40 CFR parts 60, 61, or 63; or, similarly, sections 111 or 112 of the Act. See R18–2–101(53)(a), (122)(b); R18–2–401(10); R18–2–402(G)(2); and R18–2–406(A)(4). Articles 9 and 11 are where ADEQ incorporates by reference the federal regulations in 40 CFR part 60, 61, and 63 (which EPA implements under sections 111 and 112 of the Act). However, these Articles are not in the SIP, have not been submitted for SIP approval, and do not contain provisions equivalent to all of the subparts in parts 60, 61, and 63. See 40 CFR 51.166(b)(1)(iii)(
Second, ADEQ's submittal uses the term “increment” or “incremental ambient standard,” but does not specifically define these terms or otherwise identify what is meant by these terms. While the PSD program does not specifically define the term “increment” either, the term is introduced at 40 CFR 51.166(c)—
Third, on January 15, 2013, EPA issued a final rule revising the NAAQS for PM
Fourth, R18–2–406(A) contains a reference to R18–2–408, but R18–2–408 is not in the SIP and has not been submitted for SIP approval.
Fifth, ADEQ's submittal allows a source at R18–2–302(G) and R18–2–402(C) to begin actual construction upon the issuance of a proposed final permit. As previously discussed, ADEQ's program is ambiguous as to whether a proposed final permit, as defined in R18–2–101(114), constitutes final action by the Director. While ADEQ has issued guidance clarifying that it treats “proposed final permits” as final actions for purposes of preconstruction permitting
Sixth, ADEQ's NSR submittal contains provisions that allow for exclusions from increment consumption, for certain temporary emissions, that do not conform to the requirements in the analogous federal rule. First, ADEQ's rule at R18–2–218(F)(5) requires only the ADEQ Director's approval for temporary emissions beyond two years, but the federal program requirements at 40 CFR 51.166(f)(i)(v) and 51.166(f)(4) require the Administrator's approval to allow temporary emissions that exceed two years. In addition, ADEQ's program language does not reference a specific time period beyond two years that it would allow for exclusions from increment consumption, which is not consistent with the federal regulation's requirement at 40 CFR 51.166(f)(4) that the time for such exclusions be specified in the plan. Finally, the provision at R18–2–218(F)(5)(b)(ii), which references the state ambient air quality standards, must be applied to “any” air quality control region. As currently written this provision does not clearly apply to areas outside of Arizona where Arizona's standards would not generally apply.
Seventh, ADEQ's submittal contains a provision at R18–2–406(E) providing an exemption for certain portable stationary sources with a prior permit that contains requirements equivalent to the PSD requirements in 40 CFR 51.166 (j) through (r), as allowed by 40 CFR 51.166(i)(1)(iii). However, ADEQ's rule at R18–2–406(E) is worded broadly to also allow an exemption for portable sources that have been permitted under Article 4 of ADEQ's regulations, which also includes nonattainment NSR permits and PAL permits. We do not interpret this federal exemption as generally applying to such permits, as it is not clear that such permits contain requirements “equivalent” to those in 40 CFR 51.166(j) through (r).
Eight, ADEQ's submittal contains conditions generally meeting the requirements of 40 CFR 51.166(k)(1) in rule R18–2–406(A)(5)(a). However, R18–2–406(A)(5) contains an “or” between subsections (a) and (b) that could be interpreted as allowing a source to demonstrate it will not contribute to an
Ninth, ADEQ's submittal includes R18–2–406(A)(6)(b), which specifies that the use of a modified or substituted model must be subject to public notice and the opportunity for public comment, but neither the rule nor the submittal makes clear the procedures that would be used for notice and comment for this purpose or demonstrates that such procedures would be consistent with 40 CFR 51.102, as required by 40 CFR 51.166(l)(2).
Tenth, ADEQ's PSD SIP submittal does not appear to specifically address the requirements of 40 CFR 51.166(n)(1) and (3), which require that the SIP must require that (1) the owner or operator of a proposed source or modification shall submit all information necessary to perform any analysis or make any determination required under procedures established in accordance with 40 CFR 51.166, and (2) upon request of the state, the owner or operator shall also provide specified information concerning air quality impacts and growth. ADEQ's submittal at R18–2–304, R18–2–402(G) and R18–2–407 identifies the information necessary for a complete application under this program and requires applicants to respond to deficiencies in the application, but these provisions do not appear to fully address the requirements of 40 CFR 51.166(n)(1) and (3).
Eleventh, ADEQ's submittal contains an apparent typographical error in R18–2–402(F)(1)(c), which includes a cross-reference to R18–2–401(20)(b)(iii) rather than R18–2–401(20)(b)(iv). See 40 CFR 51.166(r)(6).
Finally, ADEQ's submittal does not require owners or operators to make information required under 40 CFR 51.166(r)(6) available for review upon request by the Director or the general public pursuant to the requirements in 40 CFR 70.4(b)(3)(viii) as is required by 40 CFR 51.166(r)(7).
40 CFR 51.166(e) contains provisions related to restrictions on area classifications (Class I, II, or II). We have identified several deficiencies in ADEQ's program with respect to these provisions.
First, ADEQ's submittal contains requirements for area classifications in R18–2–217. However, ADEQ's submittal does not completely meet the requirements of 40 CFR 51.166(e) and section 162(a) of the Act, which require certain areas in existence on August 7, 1977 to be designated as Class I areas. Such designations apply to any boundary changes made to those Class I areas after August 7, 1977. While ADEQ generally includes this requirement at R18–2–217(B), its rule limits such boundary changes to those made prior to March 12, 1993.
Second, ADEQ's NSR submittal at R18–2–217 does not contain a provision consistent with the federal regulatory requirement for Class I area redesignations prior to August 7, 1977 in rule R18–2–217 or elsewhere as required by 40 CFR 51.166(e)(2). Even if it is the case that there are no areas in Arizona that were redesignated Class I prior to August 7, 1977, ADEQ's program must recognize Class I area designations under this provision that may have been made in other states for which sources within ADEQ may have an impact. See 40 CFR 51.166(e)(2).
Finally, ADEQ's NSR submittal does not include a provision that is fully consistent with 40 CFR 51.166(e)(3). While ADEQ's rules generally meet this requirement at R18–2–217(D), this rule does not fully meet the requirements of 40 CFR 51.166(e)(3) because (1) it is not clear what is meant in ADEQ's rule by “all other areas” and (2) it does not contain a provision that ensures that ADEQ recognizes federal legislation that specified the area classification of a particular area.
40 CFR 51.166(g) contains provisions allowing certain areas classified as Class I, II, or III to be redesignated to another classification. We have identified several deficiencies in ADEQ's program with these provisions.
First, ADEQ's submittal contains provisions at R18–2–217(A) identifying that attainment and unclassifiable areas in the State shall be designated as Class I, II, or III. However, this portion of the PSD program applies to all areas of the State. That is, all areas of the State must be designated as Class I, II, or III irrespective of their attainment designation under Section 107 of the Act. See 40 CFR 51.166(g)(1).
Second, ADEQ's submittal contains provisions at R18–2–217(E) for allowing the state to redesignate certain areas, but the submittal does not adequately meet the public participation requirements specified in the federal regulation at 40 CFR 51.166(g)(2)(i), which requires a public hearing consistent with the procedures in 40 CFR 51.102. ADEQ's redesignation provisions do not specify the public hearing procedures that will be used. See 40 CFR 51.166(g)(2)(i).
Third, ADEQ's provisions for redesignating areas to Class III do not clearly identify which areas may be designated as Class III as specified in 40 CFR 51.166(g)(3).
Fourth, R18–2–217(E) allows for the redesignation to be approved by the Governor or the Governor's designee. However, the federal program at 40 CFR 51.166(g)(3)(ii) specifically requires the Governor's approval and does not allow for this approval to be delegated. See 40 CFR 51.166(g)(3)(ii).
Fifth, R18–2–217(F)(4) contains a reference to “maximum allowable concentration” which appears to refer to R18–2–218(E). However, R18–2–218(E) references the “ambient air quality standards in this Article.” The state's ambient air quality standards do not generally apply in areas outside of Arizona, and ADEQ's NSR submittal does not demonstrate that they would apply outside of Arizona for purposes of R18–2–217(F)(4). See 40 CFR 51.166(g)(3)(iii).
Finally, ADEQ's provisions do not clearly require that a permit application that can only be approved if an area is redesignated to Class III, and material submitted as part of that application, must be available for public inspection prior to the public hearing on the redesignation to Class III. See 40 CFR 51.166(g)(3)(iv).
40 CFR 51.166(p) contains additional requirements related to protection of Federal Class I areas. We have identified several deficiencies in ADEQ's program with these provisions.
First, ADEQ's submittal does not address the requirements of 40 CFR 51.166(p)(1), but they are generally addressed by existing SIP requirements in R9–3–304(H). However, the existing SIP only requires application information to be submitted to the Federal Land Manager, and does not require that this information be provided to EPA as required by this provision. Consistent with 40 CFR 51.166(p)(2), the Federal Land Manager works in consultation with EPA on the protection of Class I lands.
Second, ADEQ's submittal does not address the requirement under 40 CFR 51.166(p)(3), but it is addressed by the existing SIP requirement in R9–3–304(H)(1). However, the existing SIP contains outdated maximum allowable increases that must be updated. See 40 CFR 51.166(p)(3).
Finally, ADEQ's submittal generally includes the provisions of 40 CFR 51.166(p)(4) at R18–2–406(F)(2), but contains the phrase “no significant adverse impacts,” which is inconsistent with the federal regulation which requires a demonstration of “no adverse impacts.” The addition of the word “significant” is somewhat ambiguous in this context, but appears to allow variances under circumstances not allowed under the analogous federal regulation.
40 CFR 51.166(q) contains several specific public participation requirements for issuing PSD permits. We have identified several public participation deficiencies in ADEQ's program.
First, ADEQ's submittal does not ensure that materials available during the public comment period are available in each region in which the proposed source would be constructed as required by 40 CFR 51.166(q)(2)(ii). While ADEQ's program at R18–2–330(D)(11) requires these materials to be available at the nearest Department office, ADEQ only has two Department offices. As such, it is not clear that in all instances the public affected by a proposed project would have reasonable access in their region to the materials specified in 40 CFR 51.166(q)(2)(ii).
Second, ADEQ's submittal does not require ADEQ to notify the public of (1) the degree of increment consumption that is expected from the source or modification, or (2) the Director's preliminary determination, as required by 40 CFR 51.166(q)(2)(iii).
Third, ADEQ's submittal does not require ADEQ to make the public comments and the written notification of its final determination available in the same location as the preliminary documents as required by 40 CFR 51.166(q)(2)(vi) and (viii).
Finally, ADEQ's submittal requires the Director to take final action on an application within one year of receipt of a complete application—R18–2–402(I)(3). See 40 CFR 51.166(q)(2)(vii). However, ADEQ's program also indicates that a source may begin actual construction once a “proposed final permit” is obtained. See R18–2–402(C) and R18–2–302(G). ADEQ's regulations are ambiguous as to whether a proposed final permit, as defined in R18–2–101(114), constitutes final action by the Director that is subject to administrative and/or judicial review. As EPA has stated previously in the context of our actions on other State SIP submittals, we interpret the CAA to require an opportunity for judicial review of a decision to grant or deny a PSD permit, whether issued by EPA or by a State under a SIP-approved or delegated PSD program. 77 FR 65305, 65306, Oct. 26, 2012 (EPA's approval of the San Joaquin Valley Unified Air Pollution Control District's PSD program into the California SIP); see also 61 FR 1880, 1882. Jan. 24, 1996 (EPA's proposed disapproval of Virginia's PSD program SIP revision due to State law standing requirements that limited judicial review); 72 FR 72617, 72619, Dec. 21, 2007 (in approving South Dakota's PSD program, EPA stated that it interprets the CAA and regulations to require at minimum an opportunity for state judicial review of PSD permits). EPA continues to interpret the relevant provisions of the Act as described in these prior rulemaking actions. While ADEQ has issued guidance clarifying that it treats “proposed final permits” as “appealable agency actions,” under Arizona law,
ADEQ's rules contain provisions for using plantwide applicability limits (PALs) in R18–2–412. We have identified the following deficiencies with ADEQ's PALs provisions program as they relate to the PSD program.
First, neither the ADEQ regulatory provisions for PALs at R18–2–412 nor the ADEQ regulatory definitions in R18–2–401 that apply in the context of major sources and major modifications contain a definition for
Second, ADEQ's PAL provision for calculating baseline emissions at R18–2–412(B)(2) does not specify that baseline actual emissions are to include emissions associated not only with operation of the unit, but also emissions associated with startup, shutdown and malfunction, as is required by 40 CFR 51.166(w)(3)(ii).
Third, ADEQ's PAL provisions at R18–2–412(H) contain an incorrect reference to (H)(4) instead of the definition for major modification, and R18–2–412(H)(5) uses “eliminated” where the federal regulation uses “established.” See 40 CFR 51.166(w)(9).
Finally, ADEQ's PAL renewal provisions at R18–2–412(I)(1) must contain a reference to subsection (D) of R18–2–412 instead of (F). In addition, R18–2-(I)(4)(a) must reference subsection (E) of R18–2–412. See 40 CFR 51.166(w)(10).
ADEQ's submittal contains definitions applicable to the PSD program that do not fully meet the requirements of 40 CFR 51.166(b)(1), which requires each State plan to contain specific definitions for the PSD program. Deviations from the wording are approvable if the State specifically demonstrates that the submitted definition is more stringent, or at least as stringent, in all respects as the corresponding definition in 40 CFR 51.166(b). We have carefully reviewed the definitions used in ADEQ's PSD program as compared with the federal PSD definitions in 40 CFR 51.166(b) and have found that, generally, ADEQ's submittal contains the definitions necessary to implement a PSD program. However, a number of ADEQ's definitions do not meet the requirements of 40 CFR 51.166(b)(1) because their wording deviates from the wording in the corresponding federal regulatory definitions in 40 CFR 51.166(b)(1) in a manner that may be less stringent than the federal definitions, and the State has not demonstrated otherwise.
On January 22, 2013, the U.S. DC Circuit Court of Appeals in
ADEQ's submittal at R18–2–407(H)(1)(c) contains the equivalent of the PM
ADEQ's submittal contains a definition for basic design parameter at R18–2–401(3) that reflects the definition that EPA originally developed as part of its Equipment Replacement Provisions. See 68 FR 61248 Oct. 27, 2003. However, the definition for basic design parameter, and other elements related to the Equipment Replacement Provisions, were vacated by the DC Circuit Court of Appeals in
Part D of title I of the Act contains the general requirements for areas designated “nonattainment” for the NAAQS, including preconstruction permit requirements for new major sources or major modifications proposing to construct in such nonattainment areas, commonly referred to as “Nonattainment New Source Review” or “NA–NSR.” EPA's regulations for NA–NSR permit programs are found in 40 CFR 51.165. Most areas under ADEQ's jurisdiction are currently designated as “attainment” or “unclassifiable/attainment” for all NAAQS pollutants. However, there are some areas under ADEQ's jurisdiction that are nonattainment and warrant a NA–NSR program. See 40 CFR 81.303.
R18–2–402 through 405 contain the substantive NA–NSR requirements for review and permitting of major sources and major modifications in nonattainment areas under ADEQ jurisdiction in Arizona. These regulations satisfy most of the statutory and regulatory requirements for NA–NSR permit programs, but these rules contain several deficiencies that that do not allow us to fully approve the NA–NSR program submittal that is the subject of this action, as discussed below.
Although ADEQ's NA–NSR program submittal meets most NA–NSR program requirements, we are proposing to disapprove one specific aspect of ADEQ's NA–NSR program relating to the definition of “basic design parameter.” The ADEQ rule provision that we are proposing to disapprove is directly comparable to a federal NA–NSR rule provision that has been vacated by a federal court, and we find that it is separable from the remainder of ADEQ's NA–NSR program. Accordingly, we find this provision suitable for disapproval at this time. This issue is described in more detail below in Section II.D.4.
For most of the remainder of ADEQ's NA–NSR program submittal, we are proposing limited approval and limited disapproval. We find that approval of ADEQ's updated NA–NSR program, aside from the aspect that is separable and is proposed for disapproval as mentioned above, will substantially strengthen the SIP overall, particularly as the current SIP-approved NA–NSR program is significantly out of date when compared with current federal NA–NSR regulatory requirements as well as current State regulations. See our discussion in Section G below. However, specific provisions of the NA–NSR SIP program submittal are inconsistent with NA–NSR program requirements, and these deficiencies must be addressed before we can fully approve ADEQ's NA–NSR program into the SIP. The deficiencies that we have identified with ADEQ's NA–NSR program that provide the basis for our limited approval and limited disapproval are described immediately below in Sections II.D.1 through 3.
First, as discussed above with respect to ADEQ's PSD program submittal, ADEQ's NA–NSR program submittal often refers to Articles 9 and/or 11 of ADEQ's regulations where the federal regulations refer to 40 CFR parts 60, 61, or 63; or, similarly, sections 111 or 112 of the Act. See R18–2–101(122)(b); R18–2–401(10); R18–2–402(G)(2); and R18–2–406(A)(4). Articles 9 and 11 are where ADEQ incorporates by reference the federal regulations in 40 CFR parts 60, 61, and 63 (which EPA implements under sections 111 and 112 of the Act). However, these Articles are not in the SIP, have not been submitted for SIP approval, and do not necessarily contain provisions equivalent to
Second, the nonattainment NSR program requirements at 40 CFR 51.165(a)(2) require each plan to have a
Third, 40 CFR 51.165(a)(3)(ii)(G) requires that credit for emission reductions can be claimed only to the extent that the reviewing authority has not relied on it in issuing any permit under regulations approved pursuant to 40 CFR 51 subpart I or the State has not relied on it in demonstration of attainment or reasonable further progress. ADEQ's NSR submittal generally addresses this requirement at R18–2–404(H), but also needs to include references to rules R18–2–302.01 and R18–2–334, which are to be approved as part of ADEQ's NSR regulations under Subpart I.
Fourth, ADEQ's submittal contains an apparent typographical error in R18–2–402(F)(1)(c), which includes a cross-reference to R18–2–401(20)(b)(iii) rather than R18–2–401(20)(b)(iv). This error must be corrected to ensure that the requirement in 40 CFR 51.165(a)(6)(i)(
Fifth, ADEQ's submittal does not require owners or operators to make information required under 40 CFR 51.165(a)(6) available for review upon request by the Director or the general public pursuant to the requirements in 40 CFR 70.4(b)(3)(viii) as is required by 40 CFR 51.165(a)(7).
Sixth, 40 CFR 51.165(a)(9)(i) requires that increases in emissions shall be offset by reductions in emissions using a ratio of emission decreases to emission increases of at least 1 to 1. ADEQ's NA–NSR submittal contains this requirement at R18–2–404(A), but could
Seventh, 40 CFR 51.165(a)(11) requires emission offsets to be obtained for the same regulated NSR pollutant, unless interprecursor offsetting is permitted for a particular pollutant, as further specified in the rule. ADEQ's NA–NSR SIP submittal does not address interprecursor offsets, and it is not required to, but the submittal does not contain a specific requirement that offsets must be for the same regulated pollutant.
Eighth, 40 CFR 51.165(b) requires that ADEQ have a preconstruction program that satisfies the requirements of section 110(a)(2)(D)(i) of the Act for any new major stationary source or major modification that would locate in an attainment area, but would cause or contribute to a violation of a NAAQS in any adjacent area. ADEQ's program contains provisions for 40 CFR 51.165(b) at R18–2–406(A)(5)(a)–(b) that generally meet this requirement. However, ADEQ's regulations at R18–2–406(A)(5)(b) refer to the “Arizona primary or secondary ambient air quality standards,” which is not a defined term, whereas the analogous federal program provisions refer to the NAAQS. As a result, ADEQ's program does not fully meet the requirements in 40 CFR 51.165(b)(1) and (2) as ADEQ's regulations do not make clear which standards are being referred to, and the submittal does not demonstrate that such standards would apply to areas outside of Arizona for purposes of ADEQ's NSR review. Similarly, ADEQ's regulation at R18–2–406(A)(5)(a) references the state's ambient air quality standards in Article 2, which would not clearly apply to areas outside of Arizona.
Finally, Section 173(a)(4) of the Act requires that NA–NSR permit programs shall provide that permits to construct and operate may be issued if “the Administrator has not determined that the applicable implementation plan is not being adequately implemented for the nonattainment area in which the proposed source is to be constructed or modified.” However, ADEQ's program does not contain a provision that would prohibit the issuance of NA–NSR permits in areas where the Administrator has made this determination or that requires that ADEQ conduct a review to ensure that this requirement is met. To obtain full program approval, ADEQ must add a provision to its NA–NSR program requirements that ensures compliance with CAA section 173(a)(4).
ADEQ's rules contain provisions for using plantwide applicability limits (PALs) in R18–2–412. We have identified the following deficiencies with ADEQ's PALs provisions program as they relate to the NA–NSR program.
First, ADEQ's provision for PALs does not specify that modifications under a PAL do not need approval through the nonattainment major NSR program. Only the PSD program is mentioned. ADEQ's submittal does not contain a definition for nonattainment major NSR program (see 40 CFR 51.165(a)(1)(xxx)). ADEQ should either add this definition or considering referencing R18–2–403. See 40 CFR 51.165(f)(1)(iii)(B).
Second, neither the ADEQ regulatory provisions for PALs at R18–2–412 nor the ADEQ regulatory definitions in R18–2–401 that apply in the context of major sources and major modifications contain a definition for
Third, ADEQ's PAL provision for calculating baseline emissions at R18–2–412(B)(2) does not specify that baseline actual emissions are to include emissions associated not only with operation of the unit, but also emissions associated with startup, shutdown and malfunction, as is required by 40 CFR 51.165(f)(3)(ii).
Fourth, ADEQ's PAL provisions at R18–2–412(H) contain an incorrect reference to R18–2–412(H)(4) instead of the definition for major modification, and R18–2–412(H)(5) uses “eliminated” where the federal regulation uses “established.” See 40 CFR 51.165(f)(9).
Finally, ADEQ's program contains incorrect cross-references in meeting the requirements of 40 CFR 51.165(f)(1), as follows: ADEQ's PAL renewal provisions at R18–2–412(I)(1) must contain a reference to subsection (D) of R18–2–412 instead of (F), and R18–2–(I)(4)(a) must reference subsection (E) of R18–2–412.
ADEQ's submittal contains definitions applicable to the nonattainment NSR program that do not fully meet the requirements of 40 CFR 51.165(a)(1), which requires each State plan to contain specific definitions for the nonattainment NSR program. Deviations from the wording are approvable if the State specifically demonstrates that the submitted definition is more stringent, or at least as stringent, in all respects as the corresponding definition in 40 CFR 51.165(a)(1). We have carefully reviewed the definitions used in ADEQ's nonattainment NSR program as compared with the federal PSD definitions in 40 CFR 51.165(a)(1) and have found that generally, ADEQ's submittal contains the definitions necessary to implement a NA–NSR program. However, a number of ADEQ's definitions do not meet the requirements of 40 CFR 51.165(a)(1) because their wording deviates from the wording in the corresponding federal regulatory definitions in 40 CFR 51.165(a)(1) in a manner that may be less stringent than the federal definitions, and the State has not demonstrated otherwise.
ADEQ's submittal contains a definition for basic design parameter at R18–2–401(3) that reflects the definition that EPA originally developed as part of its Equipment Replacement Provisions. See 68 FR 61248, Oct. 27, 2003. However, the definition for basic design parameter, and other elements related to the Equipment Replacement Provisions, were vacated by the DC Circuit Court of Appeals in
On January 4, 2013, the U.S. Court of Appeals for the District of Columbia Circuit, in
ADEQ's NSR SIP submittal generally includes requirements for the PM
EPA is in the process of evaluating the requirements of subpart 4 as they pertain to NA–NSR. In particular, subpart 4 includes section 189(e) of the CAA, which requires the control of major stationary sources of PM
On the other hand, while ADEQ's submittal may not yet contain all of the elements necessary to satisfy the CAA requirements when evaluated under subpart 4, the NA–NSR SIP submittal represents a considerable strengthening of the currently approved Arizona SIP, which does not address NSR permitting for PM
For the reasons explained above, EPA is not evaluating at this time whether ADEQ's NA–NSR submittal will require additional revisions relating to PM
In addition, section 189(e) of the CAA requires that ADEQ's NSR program for PM
On September 4, 2013, the West Pinal area was redesignated to nonattainment for the 1987 p.m.
While ADEQ's submittal may not yet contain all of the elements necessary to satisfy the CAA NA–NSR requirements when evaluated under subpart 4, the proposed revisions to ADEQ's NA–NSR program represent a considerable strengthening of the currently approved Arizona SIP, which does not address NSR requirements for PM
In addition to ADEQ's NSR SIP submittal, we are taking action on rules R18–2–311 and R18–2–312. These rules were submitted to EPA for SIP approval in a separate submittal on July 28, 2011. We delayed acting on rules R18–2–311 and R18–2–312 in a previous action, and are therefore now evaluating and taking action on the rules. We are also taking action on A.R.S. § 49–107, an Arizona statutory provision concerning local delegation of state authority.
First, ADEQ's rule R18–2–311 specifies the test methods and procedures which can be used to determine compliance with requirements established under ADEQ's air program. On October 19, 1984, EPA approved an earlier version of this rule into the SIP.
Second, ADEQ's rule R18–2–312 requires stationary sources to conduct a performance test within 60 days of achieving the capability to operate at its maximum production rate, but no later than 180 days after initial start-up. The rule also specifies that testing shall be conducted under such conditions specified by State, including, but not limited to appropriate test methods, notification to the State, data reduction, records, and number of test runs. On April 23, 1982 (47 FR 17485) EPA approved a version of this rule into the SIP.
Third, A.R.S. § 49–107 is the current Arizona state law that provides ADEQ with authority to “delegate to a local environmental agency, county health department, public health services district or municipality any functions, powers or duties which the director believes can be competently, efficiently and properly performed by the local agency if the local agency accepts the delegation and agrees to perform the delegated functions, powers and duties according to the standards of performance required by law and prescribed by the director,” and other related authorities. This statutory provision establishes that ADEQ has clear authority to delegate various functions under the CAA, including NSR permitting, to county and other local government agencies and, as such, we find it to be approvable and propose to approve it into the SIP. This provision will replace 7–1–8.3(R9–3–803)
In Table 2 of this preamble we identify the rules and statutory provisions we are proposing to remove or supersede from the SIP as part of this action. ADEQ's existing SIP-approved NSR rules are generally outdated, as we have not acted to approve substantial revisions to ADEQ's NSR rules since the 1980s. Further, the ADEQ NSR rules currently in the SIP have been repealed for purposes of State law by ADEQ. Significant changes have been made to the Act and the underlying implementing federal NSR regulations since our last substantial action on ADEQ's NSR SIP. Therefore, replacing the existing, outdated NSR SIP rules with the updated ADEQ rules in this submittal that we propose to approve into the SIP is appropriate and generally serves as an overall strengthening of Arizona's SIP. In some cases, we approved updated versions of these rules into the SIP in previous rulemaking actions, and a few of the rules proposed for removal are no longer necessary for other reasons. Our TSD provides additional detail.
CAA Section 110(l) states: “Each revision to an implementation plan submitted by a State under this chapter shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 7501 of this title), or any other applicable requirement of this chapter.”
With respect to the procedural requirements of CAA section 110(l), based on our review of the public process documentation included in the July 28, 2011, October 29, 2012 and July 2, 2014 submittals, we find that ADEQ has provided sufficient evidence of public notice and opportunity for comment and public hearings prior to submittal of this SIP revision and has satisfied these procedural requirements under CAA section 110(l).
With respect to the substantive requirements of section 110(l), as discussed further below, we have determined that our approval of the ADEQ NSR SIP Submittal and the other rules and statutory provisions that we are proposing to act on in this action (including but not limited to the rescission of numerous existing NSR SIP rules), as described above in this preamble, would strengthen the applicable SIP in most respects. Taken in its entirety, we find that the SIP revision represents a strengthening of ADEQ's minor NSR, PSD, and NA–NSR programs as compared to the existing SIP-approved NSR program for ADEQ that was last substantially revised in the SIP in the early 1980s, and that our approval of this SIP submittal would not interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any other applicable requirement of the Act.
First, this proposed action would correct a number of deficiencies in ADEQ's current SIP-approved NSR program. ADEQ's existing SIP-approved program does not currently contain these significant program elements: (1) Implementation of NSR requirements for PM
Further, ADEQ has also updated its program to provide for additional permitting flexibilities that have been added to the federal NSR program, such as PALs and the 2002 NSR Reforms.
Second, most of the deficiencies identified with the ADEQ rule provisions on which we are taking action fit into one of two categories: (1) Deficiencies that relate to an NSR program element that has been added since ADEQ's NSR program was approved into the SIP (
The most significant deficiency that we have identified, as discussed in detail above in this notice, is the absence of provisions that ensure protection of the 2012 PM
In addition, ADEQ has relaxed its definition of “major stationary source.” ADEQ's previous definition applied the PSD and NA–NSR program requirements to existing non-major sources when a project would cause such a
In summary, we find that, on balance, the improvements ADEQ is making to its NSR program and other portions of the SIP that are the subject of this section outweigh the deficiencies discussed above as compared to ADEQ's existing SIP-approved NSR program. In addition, we are unaware of any reliance by ADEQ on the continuation of any specific aspect of the permit-related rules currently in the ADEQ portion of the Arizona SIP for the purpose of continued attainment or maintenance of the NAAQS. Given all these considerations, we propose to conclude that our approval of the ADEQ regulations and statute that are the subject of this action into the Arizona SIP would not interfere with any applicable requirement concerning attainment and RFP or any other applicable requirement of the Act.
Section 193 of the Act, which was added by the CAA Amendments of 1990, includes a savings clause that provides, in pertinent part: “No control requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before November 15, 1990, in any area which is a nonattainment area for any air pollutant may be modified after November 15, 1990, in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant.”
We find that the provisions included in ADEQ's NSR SIP submittal would ensure equivalent or greater emission reductions compared to the SIP-approved NSR program in the nonattainment areas under ADEQ's jurisdiction. In particular, the NSR provisions in ADEQ's NSR SIP submittal cover stationary sources in areas that are nonattainment for the PM
For the reasons stated above and explained further in our TSD, we find that the submitted NSR rules satisfy most of the applicable CAA and regulatory requirements for minor NSR, PSD, and nonattainment NSR permit programs under CAA section 110(a)(2)(C) and parts C and D of title I of the Act but also contain certain deficiencies that prevent us from proposing a full approval of the NSR SIP submittal. Therefore, we are proposing a limited approval and limited disapproval of the submitted NSR rules. We do so based also on our finding that, while the rules do not meet all of the applicable requirements, the rules would represent an overall strengthening of the SIP by clarifying and enhancing the NSR permitting requirements for major and minor stationary sources under ADEQ's jurisdiction in Arizona. In addition, we are also proposing to remove the existing statutes and rules listed in Table 2 from the SIP, which are outdated and mostly being superseded by our proposed action. As discussed above, we are proposing a partial disapproval of two elements of ADEQ's program, which have been vacated from the PSD program (and is one case also from the NA–NSR program) by the courts. We are also proposing a limited approval of ADEQ's nonattainment NSR program for the Nogales and West Central Pinal PM
Pursuant to section 110(k) of the CAA and for the reasons provided above, EPA is proposing a limited approval and limited disapproval of revisions to the ADEQ portion of the Arizona SIP that govern preconstruction review and the issuance of preconstruction permits for stationary sources, including the review and permitting of major sources and major modifications under parts C and D of title I of the CAA. Specifically, EPA is proposing a limited approval and limited disapproval of the new and amended ADEQ regulations listed in Table 1, above, as a revision to the ADEQ portion of the Arizona SIP. We are also proposing to remove the existing statutes and rules listed in Table 2 from the SIP, which are outdated and mostly being superseded by our proposed action. In addition, we are also proposing to partially disapprove two provisions of ADEQ's NSR program that have been vacated by the courts. We are proposing a limited approval of ADEQ's nonattainment NSR program in certain nonattainment areas under section 189 of the Act related to PM
EPA is proposing this action because, although we find that the new and amended rules meet most of the applicable requirements for such permit programs and that the SIP revisions improve the existing SIP, we have found certain deficiencies that prevent full approval, as explained further in this preamble and in the TSD for this rulemaking. The intended effect of our proposed limited approval and limited disapproval action is to update the applicable SIP with current ADEQ
If finalized as proposed, our limited disapproval action would trigger an obligation on EPA to promulgate a Federal Implementation Plan unless the State of Arizona corrects the deficiencies, and EPA approves the related plan revisions, within two years of the final action. Additionally, for those deficiencies that relate to the Nonattainment NSR requirements under part D of title I of the Act, the offset sanction in CAA section 179(b)(2) would apply in the ADEQ nonattainment areas 18 months after the effective date of a final limited disapproval, and the highway funding sanctions in CAA section 179(b)(1) would apply in these areas six months after the offset sanction is imposed. Neither sanction will be imposed under the CAA if Arizona submits and we approve, prior to the implementation of the sanctions, SIP revisions that correct the deficiencies that we identify in our final action. The EPA intends to work with ADEQ to correct the deficiencies identified in this action in a timely manner.
We will accept comments from the public on this proposed action for the next 30 days.
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the ADEQ rules and Arizona statutory provisions listed in Table 1 of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through
This proposed action is not a “significant regulatory action” under the terms of Executive Order 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 does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
This rule will not have a significant impact on a substantial number of small entities because SIP approvals or disapprovals under section 110 and subchapter I of the Clean Air Act do not create any new requirements but simply approve or disapprove requirements that the State is already imposing. Therefore, because EPA's proposed limited approval/limited disapproval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538, requires Federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments that might be significantly or uniquely affected by any regulatory requirements. The plan must enable officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.
This proposed rule does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector in any one year. Thus, this rule is not subject to the requirements of section 202 or 205 of UMRA. This Federal action proposes to approve and disapprove pre-existing requirements under State or local law, and imposes no new requirements.
This proposed rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This proposed rule does not impose regulatory requirements on any government entity.
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 in the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed action from State and local officials.
Under Executive Order 13175 (65 FR 67249, November 9, 2000), EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement.
This proposed rule does not have tribal implications, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. EPA specifically solicits additional comment on this proposed rule from tribal officials. The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, 12 (10) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not change the level of environmental protection for any affected populations.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) for the State of Missouri submitted on October 2, 2013. This proposed rulemaking will amend the SIP to update the construction permits rule to incorporate by reference recent EPA actions related to plantwide applicability limitations (PALs) for greenhouse gases (GHGs) and to correct the definition of “regulated NSR pollutant.” Other revisions include modifying the notification period for initial equipment start-up and clarifying de minimis permit air quality analysis requirements.
Comments must be received on or before April 17, 2015.
Submit your comments, identified by Docket ID No. EPA–R07–OAR–2015–0123, by one of the following methods:
1.
2.
3.
Paula Higbee, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913–551–7028 or by email at
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:
EPA is proposing to approve the SIP revision submitted by the state of Missouri for 10 CSR 10–6.060, “Construction Permits Required”. On October 3, 2013, EPA received a request to amend the SIP to incorporate by reference all sections of title 40 part 52.21 of the Code of Federal Regulations (CFR) except for subsections (a), (q) and (s) through July 1, 2012. Missouri is also requesting to amend the SIP to incorporate by reference EPA's July 12, 2012, final rule finalizing PALs for GHGs (77 FR 41051) and EPA's October 25, 2012, final rule amending the definition of “Regulated NSR Pollutant” concerning condensable particulate matter (77 FR 65107). In Missouri's letter to EPA, Missouri also requested to amend the SIP to incorporate EPA's May 18, 2011, rule repealing the grandfathering provisions for particulate matter less than 2.5 micrometers (PM
Missouri implements its PSD program by incorporating by reference section 52.21 of the CFR in its rule 10 CSR 10–6.060, “Construction Permits Required”. In a previous action on June 21, 2013, EPA approved the most recent amendment to Missouri's PSD program (78 FR 37457). Missouri's currently approved PSD program incorporates by reference (IBR) the Federal regulations as promulgated July 1, 2011, in the CFR, and incorporates the July 20, 2011, rule “Deferral for CO2 Emissions from Bioenergy and Other Biogenic Sources under the Prevention of Significant Deterioration and Title V Programs” (“Biomass Deferral” 76 FR 43490). Missouri's currently approved PSD program contains a number of important required elements, including those related to the 2008 “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM
On October 20, 2010, EPA promulgated additional PSD regulations relating to PM
On June 23, 2014, the United States Supreme Court, in
EPA anticipates a need to revise Federal PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision. This can be accomplished as soon as EPA revises the Federal PSD rules in states that allow future revisions to the Federal PSD program to be automatically incorporated into the SIP. The timing and content of subsequent EPA actions with respect to the EPA regulations is expected to be informed by additional legal processes before the D.C. Circuit. EPA is not expecting states to have revised their existing PSD program regulations at this juncture, before the D.C. Circuit has addressed these issues and before EPA has revised its regulations at 40 CFR 51.166. However, EPA is evaluating PSD program submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.
Missouri's existing approved SIP contains the GHG permitting requirements reflected in 40 CFR 52.21 after EPA issued the Tailoring Rule. As a result, the PSD permitting program in Missouri previously approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT when sources emit or increase greenhouse gases in the amount of 75,000 tons per year (measured as carbon dioxide equivalent). Although the approved Missouri PSD permitting program may also currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not prevent EPA from approving the submission addressed in this rule. Missouri's 2013 SIP submission does not add any GHG permitting requirements that are inconsistent with the Supreme Court decision. While this submission incorporates all of section 52.21 for completeness, except for subsections (a), (q) and (s), the submission mostly reincorporates PSD permitting requirements for GHG's that are already in the Missouri SIP.
This proposed revision does add to the Missouri SIP the elements of EPA's July 12, 2012, rulemaking, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule Step 3 and GHG Plantwide Applicability Limits, “Step 3 Tailoring Rule” (77 FR 41051), which implements Step 3 of the phase in of PSD permitting requirements for GHGs. This rule became effective on August 13, 2012. Specifically, the incorporation of the Step 3 rule provisions will allow GHG-emitting sources to obtain plantwide applicability limits (PALs) for their GHG-emitting sources on a carbon dioxide equivalent (CO2e) basis. The GHG PAL provisions, as currently written, include some provisions that may no longer be appropriate in light of the Supreme Court decision. Since the Supreme Court has determined that sources and modifications may not be defined as “major” solely on the basis of the level of GHGs emitted or increased, PALs for GHGs may no longer have value in some situations where a source might have triggered PSD based on GHG emissions alone. However, PALs for GHGs may still have a role to play in determining whether a modification that triggers PSD for a pollutant other than GHGs should also be subject to BACT for GHGs. These provisions, like the other GHG provisions discussed previously, will likely be revised pending further legal action. However, these provisions do not add new requirements for sources or modifications that only emit or increase GHGs above the major source threshold or the 75,000 tpy GHG level in section 52.21(b)(49)(iv). Rather, the PALs provisions provide increased flexibility to sources that wish to address their GHG emissions in a PAL. Since this flexibility may still be valuable to sources in at least one context described above, we believe that it is appropriate to approve these provisions into the Missouri SIP at this juncture.
EPA is proposing to revise Missouri's SIP to incorporate by reference EPA's October 25, 2012 rule, “Implementation of the New Source Review Program for Condensable Particulate Matter”. This revision is appropriate and necessary to ensure that the inadvertent error which was contained in EPA's 2008 rule, which was previously SIP approved in the Missouri rule (78 FR 37457) is corrected. EPA's 2008 rule, “Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM
As stated above, Missouri's incorporation by reference of all sections of title 40 section 52.21 of the CFR except for subsections (a), (q) and (s) and EPA's July 12, 2012, final rule on PALs for GHGs (77 FR 41051) and EPA's October 25, 2012, final rule amending the definition of “Regulated NSR Pollutant” concerning condensable particulate matter (77 FR 65107) are appropriate even in light of recent court actions and ensure that the state PSD program is in agreement with Federal requirements. Missouri also requested to amend the SIP to incorporate EPA's May 18, 2011, rule repealing the grandfathering provisions for PM
Additional revisions include, in paragraph (5)(D)(1) of the rule, Missouri is adding subparagraphs A. and B. which provide clear and specific requirements for when an air quality analysis is required for De Minimis permits. In (5)(D)(2) of the rule, Missouri is adding subparagraphs A., B., and C. which provide clear and specific requirements for when the director may require an air quality analysis. These revisions strengthen Missouri's PSD program.
MDNR is making minor administrative edits to subsections (6)(A) and (6)(A)(2). In (6)(E)(1)(A) Missouri is modifying the notification period for initial equipment start-up. This revision shortens the timeframe for which notification is provided to the state prior to initial start-up.
The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfies the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations. MDNR received five (5) comments from one source: The U.S. Environmental Protection Agency. Missouri responded to each of the comments and made revisions to the rule as appropriate. Overall, these actions strengthen the Missouri SIP, by ensuring the state PSD program incorporates recent Federal PSD updates. These revisions do not
EPA is proposing to approve the revisions to the SIP. These revisions update the construction permits rule to incorporate by reference recent EPA actions related to PALs for GHGs, and amend the definition of “Regulated NSR Pollutant.” Other revisions include modifying the notification period for initial equipment start-up and clarifying de minimis permit air quality analysis requirements.
We are processing this rule as a proposed action because we are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments.
In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Missouri 10 CSR 10–6.060 “Construction Permits Required” described in the proposed amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” under the terms of Executive Order 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).
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
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 May 18, 2015. Filing a petition for reconsideration by the Administrator of this proposed rule does not affect the finality of this rulemaking 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 effectivess of such future rule or action. This proposed action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 52 as set forth below:
42 U.S.C. 7401
(c) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes updates to management reference point values for Southern Oregon coastal Chinook salmon, Grays Harbor fall Chinook salmon, and Willapa Bay natural coho, as recommended by the Pacific Fishery Management Council (Council) for use in developing annual management measures beginning in 2015. This update is implemented as part of the 2014 methodology review where the Council and its advisory bodies considered new information on the three stocks of salmon to make a determination on whether changes to reference points for these stocks were warranted.
Comments on this proposed rule must be received on or before April 2, 2015.
You may submit comments, identified by NOAA–NMFS–2015–0014, by any one of the following methods:
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Peggy Mundy at 206–526–4323.
The Council manages West Coast ocean salmon fisheries under the Pacific Coast Salmon Fishery Management Plan (FMP). The FMP has long used stock-specific conservation objectives to manage fishery impacts to Council-managed salmon stocks. Conservation objectives are, generally, fixed quantities intended to provide the necessary guidance during the course of the annual preseason planning process to establish salmon fishing seasons that achieve optimum yield. Under the FMP, conservation objectives can be added or
In 2009, NMFS amended the guidelines for National Standard 1 (NS1) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) at 50 CFR 600.310 to provide guidance on how to comply with new annual catch limit (ACL) and accountability measure requirements for ending overfishing of fisheries managed by Federal fishery management plans, including status determination criteria (SDC) (74 FR 3204). Amendment 16 to the FMP (76 FR 81851) defined a suite of reference points for salmon, consistent with the revised NS1 guidelines. In the FMP, SDC are defined in terms of quantifiable, biologically-based reference points, or population parameters, including: maximum sustainable yield (MSY), MSY fishing mortality rate (F
As part of the 2014 methodology review, the Council and its advisory bodies considered new information on three stocks of salmon (Southern Oregon coastal Chinook salmon, Grays Harbor fall Chinook salmon, and Willapa Bay natural coho) to make a determination on whether changes to reference points for these stocks were warranted. A joint methodology review was conducted by the STT, SSC, and the Model Evaluation Workgroup at the Council offices in Portland, OR, October 21–23, 2014. The results of the methodology review were presented at the Council meeting in Costa Mesa, CA, November 12–19, 2014. Both the methodology review and the Council meeting were open to the public and were announced in the
The Southern Oregon coastal Chinook salmon stock, a component of the Southern Oregon Northern California Chinook stock complex, is an aggregate of natural and hatchery fall and spring Chinook salmon populations in Oregon streams south of the Elk River (
The STT and SSC evaluated ODFW's analysis and recommended that the Council adopt ODFW's proposed values as described above. The SSC recommended ODFW's proposed values for S
During the 2014 methodology review, Washington Department of Fish and Wildlife (WDFW) staff presented a spawner-recruit analysis for Grays Harbor fall Chinook salmon. The analysis produced an estimated S
Based on information from the 2014 methodology review and the advisory body recommendations, the Council adopted the recommended stock productivity methodology and the resulting S
The Willapa Bay natural coho salmon stock was added to the FMP under Amendment 16, but without a conservation objective and other reference point values. WDFW's habitat-based escapement goal (
Based on information from the 2014 methodology review and the advisory body recommendations, the Council adopted the recommended stock productivity methodology and the resulting S
In addition, because Willapa Bay natural coho is not managed under an international agreement, listed under the ESA, or designated as a hatchery stock, the FMP requires that it be managed with an ACL (FMP sections 3.3.3 and 3.3.4). Because it is not part of a stock complex, it will be managed using an individual stock ACL. The Council and NMFS will determine the ACL annually, based on annual abundance projections and the appropriate formula set forth in the FMP (FMP section 3.3.4). Because the Council has recommended, and NMFS proposes to adopt, a directly estimated value for F
As noted earlier, the Council is expected to address the reference points for Willapa Bay natural coho salmon that were not explicit in its prior action at its March meeting. It is possible that it could recommend values for MSST that are different from those proposed above. Were this to occur, the recommended values would likely be 0.75 * S
Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Pacific Salmon Fishery Management Plan, the MSA, and other applicable law, subject to further consideration after public comment. As described above, NMFS is proposing portions of this rule according to section 305(d) of the MSA.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The West Coast Regional Administrator has determined that the actions of this proposed rule qualify for categorical exclusion from further NEPA analysis under NAO 216–6.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
The purpose of the Regulatory Flexibility Act (RFA) is to relieve small businesses, small organizations, and small governmental entities of burdensome regulations and record-keeping requirements. Major goals of the RFA are: (1) To increase agency awareness and understanding of the impact of their regulations on small business, (2) to require agencies communicate and explain their findings to the public, and (3) to encourage agencies to use flexibility and to provide regulatory relief to small entities. The RFA emphasizes predicting impacts on small entities as a group distinct from other entities and the consideration of alternatives that may minimize the impacts while still achieving the stated objective of the action. An initial regulatory flexibility analysis (IRFA) is conducted unless it is determined that an action will not have a “significant economic impact on a substantial number of small entities.”
The objective of this proposed rule is to update management reference points for three stocks of salmon under the FMP. This proposed rule would impact vessels harvesting salmon from the ocean troll fishery. The following fishery information is found in the Council's Review of 2013 Ocean Salmon Fisheries Stock Assessment and Fisheries Evaluation Document. In 2013, there were 2,270 permits issued for this fishery, with a total ex-vessel value of $34.1 million. Of the 2,270 permits, only 1,177 actually landed salmon all within the states of California, Oregon and Washington. In California, 670 vessels landed salmon for an ex-vessel value of $23.6 million; in Oregon, 399 vessels landed salmon for an ex-vessel value of $7.6 million; and in Washington, 108 vessels landed salmon for an ex-vessel value of $2.8 million. Treaty Indian ocean fisheries landed
On June 12, 2014, the Small Business Administration (SBA) issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33467 (June 12, 2014)). The rule increased the size standard from $19.0 to $20.5 million for finfish fishing, from $5 to $5.5 million for shellfish fishing, and from $7.0 million to $7.5 million for other marine fishing, for-hire businesses, and marinas. Based on this size standard, all 1,177 vessels that landed salmon from the ocean troll fishery are considered small under the Small Business Administration approved definition of a small fish harvester. Therefore, there are no disproportionate impacts between small and large vessels. Furthermore, there are no disproportionate impacts based on homeport, gear type, or vessel size from the promulgation of this proposed rule.
This proposed rule would not result in any immediate impacts on revenues or costs for the small entities participating in the Pacific salmon fishery; the updated management reference point values will be considered within the overall suite of criteria that are used to frame the annual management measures. The management reference points are used to set Council management goals, identify when overfishing is occurring, and identify when a stock is overfished. These values all have the potential to impact how annual salmon management measures are structured, specifically what constraints are needed to manage impacts. However, the salmon fishery impacts a large number of stocks, and the fishery as a whole must be managed to meet management goals for every stock. Depending on abundance projections for a given year, meeting management goals for a few particularly limiting stocks typically results in fisheries that are not limited by management goals for the remaining stocks. Therefore, the proposed changes would only impact fishery revenues in years when any of the three affected salmon stocks are constraining to fisheries, which is unlikely based on historical data.
As a result, an IRFA is not required and none has been prepared. NMFS will conduct the appropriate analyses for any subsequent rulemakings stemming from this proposed rule.
This proposed rule would not establish any new reporting or recordkeeping requirements. This proposed rule does not include a collection of information. No Federal rules have been identified that duplicate, overlap, or conflict with this action.
This action is not expected to have adverse effects on any species listed under the Endangered Species Act (ESA) or designated critical habitat. This action modifies reference points used in the setting of annual management measures for West Coast salmon fisheries. NMFS has current ESA biological opinions that cover fishing under annual regulations adopted under the FMP on all listed salmon species. NMFS reiterates their consultation standards for all ESA-listed salmon and steelhead species in their annual Guidance letter to the Council. Some of NMFS past biological opinions have found no jeopardy, and others have found jeopardy, but provided reasonable and prudent alternatives to avoid jeopardy. The annual management measures are designed to be consistent with the biological opinions that found no jeopardy, and with the reasonable and prudent alternatives in the jeopardy biological opinions. The Council's recommended management measures, which will be consistent with the reference points proposed here, therefore comply with NMFS' consultation standards and guidance for all listed salmon species which may be affected by Council fisheries. In some cases, the recommended measures are more restrictive than NMFS' ESA requirements.
In 2009, NMFS consulted on the effects of fishing under the Salmon FMP on the endangered Southern Resident Killer Whale Distinct Population Segment (SRKW) and concluded the salmon fisheries were not likely to jeopardize SRKW. Annual salmon management measures are designed to be consistent with the terms of that biological opinion.
This proposed rule was developed after meaningful collaboration with the affected tribes, through the Council process. Under the MSA at 16 U.S.C. 1852(b)(5), one of the voting members of the Council must be a representative of an Indian Tribe with Federally recognized fishing rights from the area of the Council's jurisdiction.
16 U.S.C. 1801
National Agricultural Statistics Service, USDA.
Notice of public meeting.
The National Agricultural Statistics Service (NASS) announces a meeting of an Expert Panel on Federal Statistics on Women and Beginning Farmers in U.S. Agriculture.
The Panel meeting will be held from 9 a.m. to 5 p.m. on Thursday April 2 and from 9 a.m. to 5 p.m. Friday April 3, 2015. A public comment period will commence at 9:15 a.m. on April 2, 2015.
The Panel meeting will take place in U.S. Department of Agriculture, National Agricultural Statistics Service, 1400 Independence Avenue SW., Room 6309, South Building, Washington, DC 20250. Written comments may be filed before or up to two weeks after the meeting with the contact person identified herein at: U.S. Department of Agriculture, National Agricultural Statistics Service, 1400 Independence Avenue SW., Room 5029, South Building, Washington, DC 20250–2001.
Linda J. Young, Director, Research and Development Division, telephone 800–727–9540, Fax: 202–690–2090, or email:
NASS will be convening a panel of subject matter experts covering a broad range of expertise and interests on April 2 and 3. During this meeting, the panel will consider statements provided by the public on data needs for women and beginning farmers and ranchers, discuss the currently available data on women and beginning farmers and ranchers, and consider additional stakeholder data needs in this area. The panel meeting is open to the public on Thursday April 2. The public is asked to preregister for the meeting at least 5 business days prior to the meeting. Your pre-registration must state the names of each person in your group, organization, or interest represented; the number of people planning to give oral comments, if any; and whether anyone in your group requires special accommodations. Submit registrations to
Written comments can also be sent via Fax: 202–690–2090, or email: to
All statements will become a part of the official records of the Panel meeting and will be kept on file for public review in the office of the Director, Research and Development Division.
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 should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
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.
Ashley National Forest, USDA Forest Service.
Notice of Proposed Fee Increase.
The Ashley National Forest is proposing to increase the fee for Christmas tree permits from $10.00 to $15.00 per tag. This increase is proposed and will be determined upon further analysis and public comment. Funds from fees would be used for the continued operation of the Christmas tree program, including visitor services, maps, and law enforcement.
Comments will be accepted through May 30, 2015. Increased fees would begin November 2015.
Send comments to: Lesley Tullis, Environmental Coordinator, Ashley National Forest, 355 North Vernal Avenue, Vernal, Utah 84078 (email
Louis Haynes, Public Affairs Officer, at 435–789–1181. Information about proposed fee changes can also be found on the Ashley National Forest Web site:
The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108–447) directed the Secretary of Agriculture to publish a six month advance notice in the
Once public involvement is complete, the fee increases will be reviewed by a Recreation Resource Advisory Committee prior to a final decision and implementation.
U.S. Commission on Civil Rights.
Notice of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Missouri Advisory Committee (Committee) will hold a meeting on Friday, March 27, 2015, at 12 p.m. until 1 p.m. The purpose of the meeting is to discuss and vote on an advisory memorandum to the Commission based on testimony heard at the February 23, 2015, meeting in St. Louis; discuss the advisory committee survey regarding the February 23 meeting; and begin discussions on the logistics and agenda for the upcoming Kansas City meeting.
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888–539–3696, conference ID: 6375577. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Member of the public are also entitled to submit written comments; the comments must be received in the regional office by March 27, 2015. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353–8324, or emailed to Carolyn Allen at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
The meeting will be held on Friday, March 27, 2015, at 12 p.m. CST.
Dial: 888–539–3696.
Conference ID: 6375577.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The North Atlantic right whale (
Although the program has been in effect for over 15 years, the U.S. Government has not assessed the role, if any, that the MSR has in reducing ship collisions with right whales. In addition, mariners have not been polled to assess possible difficulties involved in the reporting itself. The goal of this information collection is to determine if (a) the reporting procedures are adequately clear to the mariner; (b) the reporting itself is onerous or unwieldy (
This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Economic Development 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 May 18, 2015.
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: Philip Saputo, Program Analyst, U.S. Department of Commerce, Economic Development Administration Performance and National Programs Division, 1401 Constitution Avenue NW., Suite 71030, Washington, DC 20230, Phone: 202–400–0662, Email:
The mission of the Economic Development Administration (EDA) is to lead the Federal economic agenda by promoting innovation and competitiveness, preparing American
A recipient must submit a written request to EDA to amend an investment award and provide such information and documentation as EDA deems necessary to determine the merit of altering the terms of an award (
Paper report.
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 Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received a request from the Sonoma County Water Agency (SCWA) for authorization to take marine mammals incidental to Russian River estuary management activities. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to SCWA to incidentally take marine mammals, by Level B harassment only, during the specified activity.
Comments and information must be received no later than April 17, 2015.
Comments on the application should be addressed to Jolie Harrison, Supervisor, Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Ben Laws, Office of Protected Resources, NMFS, (301) 427–8401.
An electronic copy of SCWA's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at:
NMFS has prepared an Environmental Assessment (EA; 2010) and associated Finding of No Significant Impact (FONSI) in accordance with NEPA and the regulations published by the Council on Environmental Quality. These documents are posted at the aforementioned Internet address. Information in SCWA's application, NMFS' EA (2010), and this notice collectively provide the environmental information related to proposed issuance of this IHA for public review and comment. We will review all comments submitted in response to this notice as we complete the NEPA process, including a decision of whether to reaffirm the existing FONSI, prior to a final decision on the incidental take authorization request.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
The incidental taking of small numbers of marine mammals may be allowed only if NMFS (through authority delegated by the Secretary) finds that the total taking by the specified activity during the specified time period will (i) have a negligible impact on the species or stock(s) and (ii) not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). Further, the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking must be set forth.
The allowance of such incidental taking under section 101(a)(5)(A), by harassment, serious injury, death, or a combination thereof, requires that regulations be established. Subsequently, a Letter of Authorization may be issued pursuant to the prescriptions established in such regulations, providing that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations. Under section 101(a)(5)(D), NMFS may authorize such incidental taking by harassment only, for periods of not more than one year, pursuant to requirements and conditions contained within an IHA. The establishment of these prescriptions requires notice and opportunity for public comment.
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.” Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
On January 21, 2015, we received an adequate and complete request from SCWA for authorization of the taking of marine mammals incidental to Russian River estuary management activities in Sonoma County, California. SCWA proposes to manage the naturally-formed barrier beach at the mouth of the Russian River in order to minimize potential for flooding adjacent to the estuary and to enhance habitat for juvenile salmonids, as well as to conduct biological and physical monitoring of the barrier beach and estuary. Flood control-related breaching of barrier beach at the mouth of the river may include artificial breaches, as well as construction and maintenance of a lagoon outlet channel. The latter activity, an alternative management technique conducted to mitigate impacts of flood control on rearing habitat for Endangered Species Act (ESA)-listed salmonids, occurs only from May 15 through October 15 (hereafter, the “lagoon management period”). Artificial breaching and monitoring activities may occur at any time during the one-year period of validity of the proposed IHA.
Breaching of naturally-formed barrier beach at the mouth of the Russian River requires the use of heavy equipment (
This would be the sixth such IHA, if issued. SCWA was first issued an IHA, valid for a period of one year, effective on April 1, 2010 (75 FR 17382), and was subsequently issued one-year IHAs for incidental take associated with the same activities, effective on April 21, 2011 (76 FR 23306), April 21, 2012 (77 FR 24471), April 21, 2013 (78 FR 23746), and April 21, 2014 (79 FR 20180).
The proposed action involves management of the estuary to prevent flooding while preventing adverse modification to critical habitat for ESA-listed salmonids. Requirements related to the ESA are described in further detail below. During the lagoon management period, this involves construction and maintenance of a lagoon outlet channel that would facilitate formation of a perched lagoon. A perched lagoon, which is an estuary closed to tidal influence in which water surface elevation is above mean high tide, would reduce flooding while maintaining beneficial conditions for juvenile salmonids. Additional breaches of barrier beach may be conducted for the sole purpose of reducing flood risk. SCWA's proposed activity was described in detail in our notice of proposed authorization prior to the 2011 IHA (76 FR 14924; March 18, 2011); please see that document for a detailed description of SCWA's estuary management activities. Aside from minor additions to SCWA's biological and physical estuary monitoring measures, the specified activity remains the same as that described in the 2011 document.
The specified activity may occur at any time during the one-year timeframe (April 21, 2015, through April 20, 2016) of the proposed IHA, although construction and maintenance of a lagoon outlet channel would occur only during the lagoon management period. In addition, there are certain restrictions placed on SCWA during the harbor seal pupping season. These, as well as periodicity and frequency of the specified activities, are described in further detail below.
The estuary is located about 97 km (60 mi) northwest of San Francisco in Sonoma County, near Jenner, California (see Figure 1 of SCWA's application). The Russian River watershed encompasses 3,847 km
Within the Russian River watershed, the U.S. Army Corps of Engineers (Corps), SCWA and the Mendocino County Russian River Flood Control and Water Conservation Improvement District (District) operate and maintain federal facilities and conduct activities in addition to the estuary management,
If a project is found to jeopardize a species or adversely modify its critical habitat, NMFS must develop and recommend a non-jeopardizing Reasonable and Prudent Alternative (RPA) to the proposed project, in coordination with the federal action agency and any applicant. A component of the RPA described in the 2008 BiOp requires SCWA to collaborate with NMFS and modify their estuary water level management in order to reduce marine influence (
The analysis contained in the BiOp found that maintenance of lagoon conditions was necessary only for the lagoon management period. See NMFS' BiOp (2008) for details of that analysis. As a result of that determination, there are three components to SCWA's estuary management activities: (1) Lagoon outlet channel management, during the lagoon management period only, required to accomplish the dual purposes of flood risk abatement and maintenance of juvenile salmonid habitat; (2) traditional artificial breaching, with the sole goal of flood risk abatement; and (3) physical and biological monitoring. The latter activity, physical and biological monitoring, will remain the same as in past years but with the addition of a new monitoring activity. In 2014, acoustic telemetry of tagged steelhead was added to the fisheries monitoring activities. As is the case for other monitoring activities in the estuary, this activity involves at least two crew members in a small motorized boat travelling throughout the estuary. Therefore, as for other such activities in the estuary, the potential exists for disturbance of pinnipeds hauled-out at peripheral haul-outs. Please see the previously referenced
NMFS' BiOp determined that salmonid estuarine habitat may be improved by managing the Russian River estuary as a perched, freshwater lagoon and, therefore, stipulates as a RPA to existing conditions that the estuary be managed to achieve such conditions between May 15th and October 15th. In recognition of the complexity and uncertainty inherent in attempting to manage conditions in a dynamic beach environment, the BiOp stipulates that the estuarine water surface elevation RPA be managed adaptively, meaning that it should be planned, implemented, and then iteratively refined based on experience gained from implementation. The first phase of adaptive management, which has been implemented since 2010, is limited to outlet channel management (ESA PWA, 2014). The second phase, begun in 2014, requires study of and consideration of alternatives to a historical, dilapidated jetty present at Goat Rock State Beach (
The plan for study of the jetty is described in greater detail in SCWA's “Feasibility of Alternatives to the Goat Rock State Beach Jetty for Managing Lagoon Water Surface Elevations—A Study Plan” (ESA PWA, 2011), and was also described in detail in our notice of proposed authorization prior to the 2013 IHA (78 FR 14985; March 8, 2013). Implementation of the study plan began in March 2014 with installation of wells monitoring water seepage through the barrier beach and geophysical mapping of the submerged substrate and structures. Visits to the well sites are not anticipated to disturb seals, as the wells are not located near the haul-out.
Harbor seals are the most common species inhabiting the haul-out at the mouth of the Russian River (Jenner haul-out) and fine-scale local abundance data for harbor seals have been recorded extensively since 1972. California sea lions and northern elephant seals have also been observed infrequently in the project area. In addition to the primary Jenner haul-out, there are eight peripheral haul-outs nearby (see Figure 4 of SCWA's application). These include North Jenner and Odin Cove to the north; Pocked Rock, Kabemali, and Rock Point to the south; and Penny Logs, Patty's Rock, and Chalanchawi upstream within the estuary.
This section briefly summarizes the range, population status, threats and human-caused mortality, and range-wide as well as local abundance of these species. We have reviewed SCWA's detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Sections 3 and 4 of SCWA's application instead of reprinting the information here. The following information is summarized largely from NMFS Stock Assessment Reports, which may be accessed at
Harbor seals inhabit coastal and estuarine waters and shoreline areas of the northern hemisphere from temperate to polar regions. The eastern North Pacific subspecies is found from Baja California north to the Aleutian Islands and into the Bering Sea. Multiple lines of evidence support the existence of geographic structure among harbor seal populations from California to Alaska (Carretta
California harbor seals are not protected under the ESA or listed as depleted under the MMPA, and are not considered a strategic stock under the MMPA because annual human-caused mortality (43) is significantly less than the calculated potential biological removal (PBR; 1,641) (Carretta
The best abundance estimate of the California stock of harbor seals is 30,968 and the minimum population size of this stock is 27,348 individuals (Carretta
Counts of harbor seals in California increased from 1981 to 2004, with a calculated annual net productivity rate of 9.2 percent for the period 1983–1994 (Carretta
Prior to state and federal protection and especially during the nineteenth century, harbor seals along the west coast of North America were greatly reduced by commercial hunting, with only a few hundred individuals surviving in a few isolated areas along the California coast (Carretta
Harbor seal pupping normally occurs at the Russian River from March until late June, and sometimes into early July. The Jenner haul-out is the largest in Sonoma County. A substantial amount of monitoring effort has been conducted at the Jenner haul-out and surrounding areas. Concerned local residents formed the Stewards' Seal Watch Public Education Program in 1985 to educate beach visitors and monitor seal populations. State Parks Volunteer Docents continue this effort towards safeguarding local harbor seal habitat. On weekends during the pupping and molting season (approximately March-August), volunteers conduct public outreach and record the numbers of visitors and seals on the beach, other marine mammals observed, and the number of boats and kayaks present.
Ongoing monthly seal counts at the Jenner haul-out were begun by J. Mortenson in January 1987, with additional nearby haul-outs added to the counts thereafter. In addition, local resident E. Twohy began daily observations of seals and people at the Jenner haul-out in November 1989. These datasets note whether the mouth at the Jenner haul-out was opened or closed at each observation, as well as various other daily and annual patterns of haul-out usage (Mortenson and Twohy, 1994). Recently, SCWA began regular baseline monitoring of the haul-out as a component of its estuary management activity. Table 1 shows average daily numbers of seals observed at the mouth of the Russian River from 1993–2005 and from 2009–14.
The number of seals present at the Jenner haul-out generally declines during bar-closed conditions (Mortenson, 1996). SCWA's pinniped monitoring efforts from 1996 to 2000 focused on artificial breaching activities and their effects on the Jenner haul-out. Seal counts and disturbances were recorded from one to two days prior to breaching, the day of breaching, and the day after breaching (MSC, 1997, 1998, 1999, 2000; SCWA and MSC, 2001). In each year, the trend observed was that harbor seal numbers generally declined during a beach closure and increased the day following an artificial breaching event. Heckel and McIver (1994) speculated that the loss of easy access to the haul-out and ready escape to the sea during bar-closed conditions may account for the lower numbers. Table 2 shows average daily seal counts recorded during SCWA monitoring of breaching events from 1996–2000 and 2009–14, representing bar-closed conditions, when seal numbers decline.
Mortenson (1996) observed that pups were first seen at the Jenner haul-out in late March, with maximum counts in May. In this study, pups were not counted separately from other age classes at the haul-out after August due to the difficulty in discriminating pups from small yearlings. From 1989 to 1991, Hanson (1993) observed that pupping began at the Jenner haul-out in mid-April, with a maximum number of pups observed during the first two weeks of May. This corresponds with the peaks observed at Point Reyes, where the first viable pups are born in March and the peak is the last week of April to early May (SCWA, 2014). Based on this information, pupping season at the Jenner haul-out is conservatively defined here as March 15 to June 30.
California sea lions range from the Gulf of California north to the Gulf of Alaska, with breeding areas located in the Gulf of California, western Baja California, and southern California. Five genetically distinct geographic populations have been identified: (1) Pacific Temperate, (2) Pacific Subtropical, (3) Southern Gulf of California, (4) Central Gulf of California and (5) Northern Gulf of California (Schramm
California sea lions are not protected under the ESA or listed as depleted under the MMPA. Total annual human-caused mortality (389) is substantially less than the PBR (estimated at 9,200 per year); therefore, California sea lions are not considered a strategic stock under the MMPA. There are indications that the California sea lion may have reached or is approaching carrying capacity, although more data are needed to confirm that leveling in growth persists (Carretta
The best abundance estimate of the U.S. stock of California sea lions is 296,750 and the minimum population size of this stock is 153,337 individuals (Carretta
Trends in pup counts from 1975 through 2008 have been assessed for four rookeries in southern California and for haul-outs in central and northern California. During this time period counts of pups increased at an annual rate of 5.4 percent, excluding six El Nino years when pup production declined dramatically before quickly rebounding (Carretta
Historic exploitation of California sea lions include harvest for food by Native Americans in pre-historic times and for oil and hides in the mid-1800s, as well as exploitation for a variety of reasons more recently (Carretta
Solitary California sea lions have occasionally been observed at or in the vicinity of the Russian River estuary (MSC, 1999, 2000), in all months of the year except June. Male California sea lions are occasionally observed hauled out at or near the Russian River mouth in most years: once in August 2009, January and December 2011, January 2012, December 2013, and February 2014. Other individuals were observed in the surf at the mouth of the river or swimming inside the estuary. Juvenile sea lions were observed during the summer of 2009 at the Patty's Rock haul-out, and some sea lions were observed during monitoring of peripheral haul-outs in October 2009. The occurrence of individual California sea lions in the action area may occur year-round, but is infrequent and sporadic.
Northern elephant seals gather at breeding areas, located primarily on offshore islands of Baja California and California, from approximately December to March before dispersing for feeding. Males feed near the eastern Aleutian Islands and in the Gulf of Alaska, while females feed at sea south of 45°N (Stewart and Huber, 1993; Le Boeuf
Northern elephant seals are not protected under the ESA or listed as depleted under the MMPA. Total annual human-caused mortality (8.8) is substantially less than the PBR (estimated at 4,882 per year); therefore, northern elephant seals are not considered a strategic stock under the MMPA. Modeling of pup counts indicates that the population has reached its Maximum Net Productivity Level, but has not yet reached carrying capacity (Carretta
The best abundance estimate of the California breeding population of northern elephant seals is 179,000 and the minimum population size of this stock is 81,368 individuals (Carretta
Trends in pup counts from 1958 through 2005 show that northern elephant seal colonies are continuing to grow in California, but appear to be stable or slowly decreasing in Mexico (Stewart
Data from 2000–05 indicate that a minimum of 8.8 (CV = 0.4) northern elephant seals are killed annually in commercial fisheries, including hook-and-line, gillnet, and trawl fisheries. In addition, drift gillnet fisheries exist along the entire Pacific coast of Baja California and may take animals from this population, although few quantitative data and no species-specific information are available (Carretta
Censuses of pinnipeds at the mouth of the Russian River have been taken at least semi-monthly since 1987. Elephant seals were noted from 1987–95, with one or two elephant seals typically counted during May censuses, and occasional records during the fall and winter (Mortenson and Follis, 1997). A single, tagged northern elephant seal sub-adult was present at the Jenner haul-out from 2002–07. This individual seal, which was observed harassing harbor seals also present at the haul-out, was generally present during molt and again from late December through March. A single juvenile elephant seal was observed at the Jenner haul-out in June 2009 and, in recent years, a sub-adult seal was observed in late summer of 2013–14. The occurrence of individual northern elephant seals in the action area has generally been infrequent and sporadic in the past 10 years.
A significant body of monitoring data exists for pinnipeds at the mouth of the Russian River. In addition, pinnipeds have co-existed with regular estuary management activity for decades, as well as with regular human use activity at the beach, and are likely habituated to human presence and activity. Nevertheless, SCWA's estuary management activities have the potential to disturb pinnipeds present on the beach or at peripheral haul-outs in the estuary. During breaching operations, past monitoring has revealed that some or all of the seals present typically move or flush from the beach in response to the presence of crew and equipment, though some may remain hauled-out. No stampeding of seals—a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus—has been documented since SCWA developed protocols to prevent such events in 1999. While it is likely impossible to conduct required estuary management activities without provoking some response in hauled-out animals, precautionary mitigation measures, described later in this document, ensure that animals are gradually apprised of human approach.
In the absence of appropriate mitigation measures, it is possible that pinnipeds could be subject to injury, serious injury, or mortality, likely through stampeding or abandonment of pups. However, based on a significant body of site-specific data, harbor seals are unlikely to sustain any harassment that may be considered biologically significant. Individual animals would, at most, flush into the water in response to maintenance activities but may also simply become alert or move across the beach away from equipment and crews. During 2013, SCWA observed that harbor seals are less likely to flush from the beach when the primary aggregation of seals is north of the breaching activity (please refer to Figure 2 of SCWA's application), meaning that personnel and equipment are not required to pass the seals. Four artificial breaching events were implemented in 2013, with two of these events occurring north of the primary aggregation and two to the south (at approximately 800 and 150 ft distance) (SCWA, 2014). In both of the former cases, all seals present eventually flushed to the water, but when breaching activity remained to the south of the haul-out, only 11 and 53 percent of seals, respectively, were flushed.
California sea lions and northern elephant seals have been observed as less sensitive to stimulus than harbor seals during monitoring at numerous other sites. For example, monitoring of pinniped disturbance as a result of abalone research in the Channel Islands showed that while harbor seals flushed at a rate of 69 percent, California sea lions flushed at a rate of only 21 percent. The rate for elephant seals declined to 0.1 percent (VanBlaricom, 2010). In the event that either of these species is present during management activities, they would be expected to display a minimal reaction to maintenance activities—less than that expected of harbor seals.
Although the Jenner haul-out is not known as a primary pupping beach, pups have been observed during the pupping season; therefore, we have evaluated the potential for injury, serious injury, or mortality to pups. There is a lack of published data regarding pupping at the mouth of the Russian River, but SCWA monitors have observed pups on the beach. No births were observed during recent monitoring, but may be inferred based on signs indicating pupping (
Similarly, the period of mother-pup bonding, critical time needed to ensure pup survival and maximize pup health, is not expected to be impacted by estuary management activities. Harbor seal pups are extremely precocious, swimming and diving immediately after birth and throughout the lactation period, unlike most other phocids which normally enter the sea only after weaning (Lawson and Renouf, 1985; Cottrell
In summary, and based on extensive monitoring data, we believe that impacts to hauled-out pinnipeds during estuary management activities would be behavioral harassment of limited duration (
The purposes of the estuary management activities are to improve summer rearing habitat for juvenile salmonids in the Russian River estuary and/or to minimize potential flood risk to properties adjacent to the estuary. These activities would result in temporary physical alteration of the Jenner haul-out, but are essential to conserving and recovering endangered salmonid species, as prescribed by the BiOp. These salmonids are themselves prey for pinnipeds. In addition, with barrier beach closure, seal usage of the beach haul-out declines, and the three nearby river haul-outs may not be available for usage due to rising water surface elevations. Breaching of the barrier beach, subsequent to the temporary habitat disturbance, likely increases suitability and availability of habitat for pinnipeds. Biological and water quality monitoring would not physically alter pinniped habitat. Please see the previously referenced
During SCWA's pinniped monitoring associated with artificial breaching activities from 1996 to 2000, the number of harbor seals hauled out declined when the barrier beach closed and then increased the day following an artificial breaching event (MSC, 1997, 1998, 1999, and 2000; SCWA and MSC, 2001). This response to barrier beach closure followed by artificial breaching has remained consistent in recent years and is anticipated to continue. However, it is possible that the number of pinnipeds using the haul-out could decline during the extended lagoon management period, when SCWA would seek to maintain a shallow outlet channel rather than the deeper channel associated with artificial breaching. Collection of baseline information during the lagoon management period is included in the monitoring requirements described later in this document. SCWA's previous monitoring, as well as Twohy's daily counts of seals at the sandbar (Table 1) indicate that the number of seals at the haul-out declines from August to October, so management of the lagoon outlet channel (and managing the sandbar as a summer lagoon) would have little effect on haul-out use during the latter portion of the lagoon management period. The early portion of the lagoon management period coincides with the pupping season. Past monitoring during this period, which
In summary, there will be temporary physical alteration of the beach. However, natural opening and closure of the beach results in the same impacts to habitat; therefore, seals are likely adapted to this cycle. In addition, the increase in rearing habitat quality has the goal of increasing salmonid abundance, ultimately providing more food for seals present within the action area. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
SCWA has proposed to continue the following mitigation measures, as implemented during the previous IHA, designed to minimize impact to affected species and stocks:
• SCWA crews would cautiously approach the haul-out ahead of heavy equipment to minimize the potential for sudden flushes, which may result in a stampede—a particular concern during pupping season.
• SCWA staff would avoid walking or driving equipment through the seal haul-out.
• Crews on foot would make an effort to be seen by seals from a distance, if possible, rather than appearing suddenly, again preventing sudden flushes.
• During breaching events, all monitoring would be conducted from the overlook on the bluff along Highway 1 adjacent to the haul-out in order to minimize potential for harassment.
• A water level management event may not occur for more than two consecutive days unless flooding threats cannot be controlled.
In addition, SCWA proposes to continue mitigation measures specific to pupping season (March 15–June 30), as implemented in the previous IHAs:
• SCWA will maintain a one week no-work period between water level management events (unless flooding is an immediate threat) to allow for an adequate disturbance recovery period. During the no-work period, equipment must be removed from the beach.
• If a pup less than one week old is on the beach where heavy machinery would be used or on the path used to access the work location, the management action will be delayed until the pup has left the site or the latest day possible to prevent flooding while still maintaining suitable fish rearing habitat. In the event that a pup remains present on the beach in the presence of flood risk, SCWA would consult with NMFS to determine the appropriate course of action. SCWA will coordinate with the locally established seal monitoring program (Stewards' Seal Watch) to determine if pups less than one week old are on the beach prior to a breaching event.
• Physical and biological monitoring will not be conducted if a pup less than one week old is present at the monitoring site or on a path to the site.
For all activities, personnel on the beach would include up to two equipment operators, three safety team members on the beach (one on each side of the channel observing the equipment operators, and one at the barrier to warn beach visitors away from the activities), and one safety team member at the overlook on Highway 1 above the beach. Occasionally, there would be two or more additional people (SCWA staff or regulatory agency staff) on the beach to observe the activities. SCWA staff would be followed by the equipment, which would then be followed by an SCWA vehicle (typically a small pickup truck, the vehicle would be parked at the previously posted signs and barriers on the south side of the excavation location). Equipment would be driven slowly on the beach and care would be taken to minimize the number of shut-downs and start-ups when the equipment is on the beach. All work would be completed as efficiently as possible, with the smallest amount of heavy equipment possible, to minimize disturbance of seals at the haul-out. Boats operating near river haul-outs during monitoring would be kept within posted speed limits and driven as far from the haul-outs as safely possible to minimize flushing seals.
We have carefully evaluated SCWA's proposed mitigation measures and considered their effectiveness in past implementation to preliminarily determine whether they are likely to effect the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.
Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
• Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
• A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
• A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
• A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only).
• Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of
• For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of SCWA's proposed measures and on SCWA's record of management at the mouth of the Russian River including information from monitoring of SCWA's implementation of the mitigation measures as prescribed under the previous IHAs, we have preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA 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 incidental take authorizations 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.
Any monitoring requirement we prescribe should accomplish one or more of the following general goals:
1. An increase in the probability of detecting marine mammals, both within defined zones of effect (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;
2. An increase in our understanding of how many marine mammals are likely to be exposed to stimuli that we associate with specific adverse effects, such as behavioral harassment or hearing threshold shifts;
3. An increase in our understanding of how marine mammals respond to stimuli expected to result in incidental take and how anticipated adverse effects on individuals may impact the population, stock, or species (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
• Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict pertinent information,
• Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict pertinent information,
• Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
4. An increased knowledge of the affected species; or
5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
SCWA submitted a marine mammal monitoring plan as part of the IHA application. It can be found on the Internet at
1. Under what conditions do pinnipeds haul out at the Russian River estuary mouth at Jenner?
2. How do seals at the Jenner haul-out respond to activities associated with the construction and maintenance of the lagoon outlet channel and artificial breaching activities?
3. Does the number of seals at the Jenner haul-out significantly differ from historic averages with formation of a summer (May 15 to October 15) lagoon in the Russian River estuary?
4. Are seals at the Jenner haul-out displaced to nearby river and coastal haul-outs when the mouth remains closed in the summer?
In summary, past monitoring includes the following, which is proposed to continue should an IHA be issued:
In addition to the census data, disturbances of the haul-out are recorded. The method for recording disturbances follows those in Mortenson (1996). Disturbances would be recorded on a three-point scale that represents an increasing seal response to the disturbance (Table 3). The time, source, and duration of the disturbance, as well as an estimated distance between the source and haul-out, are recorded. It should be noted that only responses falling into Mortenson's Levels 2 and 3 will be considered as harassment under the MMPA, under the terms of this proposed IHA.
Weather conditions are recorded at the beginning of each census. These include temperature, percent cloud cover, and wind speed (Beaufort scale). Tide levels and estuary water surface elevations are correlated to the monitoring start and end times.
In an effort towards understanding possible relationships between use of the Jenner haul-out and nearby coastal and river haul-outs, several other haul-outs on the coast and in the Russian River estuary are monitored as well (see Figure 4 of SCWA's application). The peripheral haul-outs are visited for ten-minute counts twice during each baseline monitoring day. All pinnipeds hauled out were counted from the same vantage point(s) at each haul-out using a high-powered spotting scope or binoculars.
A one-day pre-event channel survey would be made within one to three days prior to constructing the outlet channel. The haul-out would be monitored on the day the outlet channel is constructed and daily for up to the maximum two days allowed for channel excavation activities. Monitoring would also occur on each day that the outlet channel is maintained using heavy equipment for the duration of the lagoon management period. Monitoring of outlet channel construction and maintenance would correspond with that described under the “Baseline” section previously, with the exception that management activity monitoring duration is defined by event duration, rather than being set at eight hours. On the day of the management event, pinniped monitoring begins at least one hour prior to the crew and equipment accessing the beach work area and continues through the duration of the event, until at least one hour after the crew and equipment leave the beach.
In an attempt to understand whether seals from the Jenner haul-out are displaced to coastal and river haul-outs nearby when management events occur, other nearby haul-outs are monitored concurrently with monitoring of outlet channel construction and maintenance activities. This provides an opportunity to qualitatively assess whether these haul-outs are being used by seals displaced from the Jenner haul-out during lagoon outlet channel excavation and maintenance. This monitoring would not provide definitive results regarding displacement to nearby coastal and river haul-outs, as individual seals are not marked or photo-identified, but is useful in tracking general trends in haul-out use during lagoon outlet channel excavation and maintenance. As volunteers are required to monitor these peripheral haul-outs, haul-out locations may need to be prioritized if there are not enough volunteers available. In that case, priority would be assigned to the nearest haul-outs (North Jenner and Odin Cove), followed by the Russian River estuary haul-outs, and finally the more distant coastal haul-outs.
Pinniped response to artificial breaching will be monitored at each such event during the term of the IHA. Methods would follow the census and disturbance monitoring protocols described in the “Baseline” section, which were also used for the 1996 to 2000 monitoring events (MSC, 1997, 1998, 1999, 2000; SCWA and MSC, 2001). The exception, as for lagoon management events, is that duration of monitoring is dependent upon duration of the event. On the day of the management event, pinniped monitoring begins at least one hour prior to the crew and equipment accessing the beach work area and continues through the duration of the event, until at least one hour after the crew and equipment leave the beach.
For all counts, the following information would be recorded in thirty-minute intervals: (1) Pinniped counts, by species; (2) behavior; (3) time, source and duration of any disturbance; (4) estimated distances between source of disturbance and pinnipeds; (5) weather conditions (
If, during monitoring, observers sight any pup that might be abandoned, SCWA would contact the NMFS stranding response network immediately and also report the incident to NMFS' West Coast Regional Office and Office of Protected Resources within 48 hours. Observers will not approach or move the pup. Potential indications that a pup may be abandoned are no observed contact with adult seals, no movement of the pup, and the pup's attempts to nurse are rebuffed.
Training on the MMPA, pinniped identification, and the conditions of the IHA is held for staff and contractors assigned to estuary management activities. The training includes equipment operators, safety crew members, and surveyors. In addition, prior to beginning each water surface elevation management event, the biologist monitoring the event participates in the onsite safety meeting to discuss the location(s) of pinnipeds at the Jenner haul-out that day and methods of avoiding and minimizing disturbances to the haul-out as outlined in the IHA.
SCWA is required to submit a report on all activities and marine mammal monitoring results to the Office of Protected Resources, NMFS, and the West Coast Regional Administrator, NMFS, ninety days prior to the expiration of the IHA if a renewal is sought, or within ninety days of the expiration of the IHA otherwise. This annual report will also be distributed to California State Parks and Stewards, and would be available to the public on SCWA's Web site. This report will contain the following information:
• The number of pinnipeds taken, by species and age class (if possible);
• Behavior prior to and during water level management events;
• Start and end time of activity;
• Estimated distances between source and pinnipeds when disturbance occurs;
• Weather conditions (
• Haul-out reoccupation time of any pinnipeds based on post-activity monitoring;
• Tide levels and estuary water surface elevation; and
• Pinniped census from bi-monthly and nearby haul-out monitoring.
The annual report includes descriptions of monitoring methodology, tabulation of estuary management events, summary of monitoring results, and discussion of problems noted and proposed remedial measures.
SCWA complied with the mitigation and monitoring required under all previous authorizations. In accordance with the 2014 IHA, SCWA submitted a Report of Activities and Monitoring Results, covering the period of January 1 through December 31, 2014. Previous monitoring reports (available at
Baseline monitoring was performed to gather additional information about the population of harbor seals utilizing the Jenner haul-out including population trends, patterns in seasonal abundance and the influence of barrier beach condition on harbor seal abundance. The effect of tide cycle and time of day on the abundance of seals at the Jenner haul-out was explored in detail in a previous report (SCWA, 2012); data collected in 2013–14 did not change the interpretation of these findings. Baseline monitoring at the mouth of the Russian River was conducted concurrently with monitoring of the peripheral haul-outs, and was scheduled for two days out of each month with the intention of capturing a low and high tide each in the morning and afternoon. A total of 23 baseline surveys were conducted in 2014. Figure 3 of SCWA's 2014 report shows the mean number of harbor seals during twice-monthly baseline monitoring events from 2010–14.
Peak seal abundance, as determined by the single greatest count of harbor seals at the Jenner haul-out, was on March 6 (424 seals), and overall mean seal abundance at Jenner was greatest in July (mean = 266 ± 2.1 s.e.). Seal abundance was significantly greater in July and March compared to all other months except February. The July peak in abundance occurred during the summer molting period, while the March peak in abundance occurred prior to the start of pupping. Similar to previous years, seal abundance declined in the fall. The reduction in seal abundance during the fall months, while not atypical, may have been more severe for 2014 due to the long periods of barrier beach closures during those months.
No distressed or abandoned pups were reported in 2014. Pup production at the Jenner haul-out was 23.2 percent of total seals as calculated from the peak pup count recorded on April 29 and the number of adult harbor seals present at the same time. Although lower than in 2013, this level of production is more typical of past years as compared to 2012, where 13.8 percent of seals were pups at the time of the peak pup count. The average of pups observed (when pups were present) during April and May have been similar between years, ranging from 12.9–15.4 for 2011–14. Comparison of count data between the Jenner and peripheral haul-outs did not show any obvious correlations (
Six each pre-breaching, breaching, and post-breaching surveys were conducted in 2014. Artificial breaching events occurred on January 2, January 30, March 24, October 22, November 17, and November 26. No injuries or mortalities were observed during 2014, and harbor seal reactions ranged from merely alerting to crew presence to flushing from the beach. No California sea lions were observed during water level management activities or during
Total observed incidences of marine mammal take, by Level B harassment only, from water level management activity and biological and physical monitoring, was 2,116 harbor seals (detailed in Table 4) and two northern elephant seals (one each disturbed during activity indicated on July 22 and August 6 below). No California sea lions were observed during water level management activities or during biological and physical monitoring of the beach and estuary. While the observed take was significantly lower than the level authorized, it is possible that incidental take in future years could approach the level authorized. Actual take is dependent largely upon the number of water level management events that occur, which is unpredictable. Take of species other than harbor seals depends upon whether those species, which do not consistently utilize the Jenner haul-out, are present. The authorized take, though much higher than the actual take, was justified based on conservative estimated scenarios for animal presence and necessity of water level management. No significant departure from the method of estimation is used for the proposed IHA (see “Estimated Take by Incidental Harassment”) for the same activities in 2015.
It should be noted that one of the primary reasons for the increase in observed incidences of incidental take in 2013–14 (1,351 and 2,116) compared with prior years (208 in 2012, 42 in 2011, 290 in 2010) was a change in protocol for the beach topographic surveys (although realized level of activity would be expected to remain a primary determinant in future years). Due to the frequent and prolonged river mouth closures in 2013—including closures of 25 days in June/July and 21 days in September/October—there was an increased need to gather complete information about the topography and sand elevation of the beach to best inform water level management activities.
This necessitated the survey crew to access the entire beach, including any area where seals were hauled out. Therefore, beginning on May 30, 2013, the methods for conducting the monthly topographic surveys of the barrier beach were changed. Previously, monitors at a distance would inform survey crews via radio if harbor seals became alert to their presence. Survey crews would then retreat or avoid certain areas as necessary to avoid behavioral harassment of the seals. According to the revised protocol, and provided that no neonates or nursing pups were on the haul-out, the survey crew would continue their approach. The survey crews would proceed in a manner that allowed for the seals to gradually vacate the beach before the survey proceeded, thereby reducing the intensity of behavioral reactions as much as possible, but the numbers of incidences of behavioral harassment nevertheless increased. SCWA expects that this revised protocol would remain in place for the coming year.
SCWA continued to investigate the relative disturbance caused by their activities versus that caused by other sources (see Figures 5–6 of SCWA's monitoring report as well as SCWA, 2014). The data recorded during 2014 do not differ from the findings reported in SCWA (2014). Harbor seals are most frequently disturbed by people on foot, with an increase in frequency of people present during bar-closed conditions (see Figures 5–6 of SCWA's monitoring report). Kayakers are the next most frequent source of disturbance overall, also with an increase during bar-closed conditions. For any disturbance event it is often only a fraction of the total haul-
The following section provides a summary of information available in SCWA's monitoring report. The primary purpose of SCWA's Pinniped monitoring plan is to detect the response of pinnipeds to estuary management activities at the Russian River estuary. However, as described previously, the questions listed below are also of specific interest. The limited data available thus far precludes drawing definitive conclusions regarding the key questions in SCWA's monitoring plan, but we discuss preliminary conclusions and available evidence below.
A summary of baseline pinniped monitoring provided in SCWA (2012) concluded that time of year, tidal state, and time of day all influenced harbor seal abundance at the Jenner haul-out. Baseline data collected from 2009–13 indicate that the highest numbers of pinnipeds are observed at the Jenner haul-out in July (during the molting season; see Figure 3 of SCWA's monitoring report), as would be expected on the basis of harbor seal biological and physiological requirements (Herder, 1986; Allen
Overall, seals appear to utilize the Jenner haul-out throughout the tidal cycle. Seal abundance is significantly lower during the highest of tides when the haul-out is subject to an increase in wave overwash. Time of day had some effect on seal abundance at the Jenner haul-out, as abundance was greater in the afternoon hours compared to the morning hours. More analysis exploring the relationship of ambient temperature, incidence of disturbance, and season on time of day effects would help to explain why these variations in seal abundance occur. It is likely that a combination of multiple factors (
SCWA has, thus far, implemented the lagoon outlet channel only once (July 8, 2010). The response of harbor seals at the Jenner haul-out to the outlet channel implementation activities was similar to responses observed during past artificial breaching events (MSC, 1997, 1998, 1999, 2000; SCWA and MSC, 2001). The harbor seals typically alert to the sound of equipment on the beach and leave the haul-out as the crew and equipment approach. Individuals then haul out on the beach while equipment is operating, leaving the beach again when equipment and staff depart, and typically begin to return to the haul-out within thirty minutes of the work ending. Because the barrier beach reformed soon after outlet channel implementation and subsequently breached on its own following the 2010 event, maintenance of the outlet channel was not necessary and monitoring of the continued response of pinnipeds at the Jenner haul-out to maintenance of the outlet channel and management of the lagoon for the duration of the lagoon management period has not yet been possible. As noted previously, when breaching activities were conducted south of the haul-out location seals often remained on the beach during all or some of the breaching activity. This indicates that seals are less disturbed by activities when equipment and crew do not pass directly past their haul-out.
The duration of closures in recent years has not generally been dissimilar from the duration of closures that have been previously observed at the estuary, and lagoon outlet channel implementation has occurred only once, meaning that there has been a lack of opportunity to study harbor seal response to extended lagoon conditions. A barrier beach has formed during the lagoon management period twelve times since SCWA began implementing the lagoon outlet channel adaptive management plan, with an average duration of nine days. However, the additional sustained river outlet closures observed in 2014 during the lagoon management period (maximum 29 days) provide some information regarding the abundance of seals during the formation of a summer lagoon. While seal abundance was lower overall during bar-closed conditions, overall there continues to be a slight increasing trend in seal abundance. These observations may indicate that, while seal abundance exhibits a short-term decline following bar closure, the number of seals utilizing the Jenner haul-out overall during such conditions is not affected. Short-term fluctuations in abundance aside, it appears that the general trends of increased abundance during summer and decreased abundance during fall, which coincide with the annual molt and likely foraging dispersal, respectively, are not affected. Such short-term fluctuations are likely not an indicator that seals are less likely to use the Jenner haul-out at any time.
Initial comparisons of peripheral (river and coastal) haul-out count data to the Jenner haul-out counts have been inconclusive (see Table 2 and Figures 7–8 of SCWA's monitoring report), and further information from estuary management activities is needed.
Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has
SCWA has requested, and NMFS proposes, authorization to take harbor seals, California sea lions, and northern elephant seals, by Level B harassment only, incidental to estuary management activities. These activities, involving increased human presence and the use of heavy equipment and support vehicles, are expected to harass pinnipeds present at the haul-out through disturbance only. In addition, monitoring activities prescribed in the BiOp may harass additional animals at the Jenner haul-out and at the three haul-outs located in the estuary (Penny Logs, Patty's Rock, and Chalanchawi). Estimates of the number of harbor seals, California sea lions, and northern elephant seals that may be harassed by the proposed activities is based upon the number of potential events associated with Russian River estuary management activities and the average number of individuals of each species that are present during conditions appropriate to the activity. As described previously in this document, monitoring effort at the mouth of the Russian River has shown that the number of seals utilizing the haul-out declines during bar-closed conditions. Tables 5 and 6 detail the total number of estimated takes.
Events associated with lagoon outlet channel management would occur only during the lagoon management period, and are split into two categories: (1) Initial channel implementation, which would likely occur between May and September, and (2) maintenance and monitoring of the outlet channel, which would continue until October 15. In addition, it is possible that the initial outlet channel could close through natural processes, requiring additional channel implementation events. Based on past experience, SCWA estimates that a maximum of three outlet channel implementation events could be required. Outlet channel implementation events would only occur when the bar is closed; therefore, it is appropriate to use data from bar-closed monitoring events in estimating take (Table 2). Construction of the outlet channel is designed to produce a perched outflow, resulting in conditions that more closely resemble bar-closed than bar-open with regard to pinniped haul-out usage. As such, bar-closed data is appropriate for estimating take during all lagoon management period maintenance and monitoring activity. As dates of outlet channel implementation cannot be known in advance, the highest daily average of seals per month—the March average for 2009–14—is used in estimating take. For maintenance and monitoring activities associated with the lagoon outlet channel, which would occur on a weekly basis following implementation of the outlet channel, the average number of harbor seals for each month was used.
Artificial breaching activities would also occur during bar-closed conditions. Data collected specifically during bar-closed conditions may be used for estimating take associated with artificial breaching (Table 2). The number of estimated artificial breaching events is also informed by experience, and is equal to the annual average number of bar closures recorded for a given month from 1996–2013.
Prior to 2014, for monthly topographic surveys on the barrier beach, SCWA estimated that only ten percent of seals hauled out would be likely to be disturbed by this activity, which involves two people walking along the barrier beach with a survey rod. During those surveys a pinniped monitor was positioned at the Highway 1 overlook and would notify the surveyors via radio when any seals on the haul-out begin to alert to their presence. This enabled the surveyors to retreat slowly away from the haul-out, typically resulting in no disturbance. However, protocol for this monitoring activity has been changed (
For biological and physical habitat monitoring activities in the estuary, it was assumed that pinnipeds may be encountered once per event and flush from a river haul-out. The potential for harassment associated with these events is limited to the three haul-outs located in the estuary. In past experience, SCWA typically sees no more than a single harbor seal at these haul-outs, which consist of scattered logs and rocks that often submerge at high tide.
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.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Although SCWA's estuary management activities may disturb pinnipeds hauled out at the mouth of the Russian River, as well as those hauled out at several locations in the estuary during recurring monitoring activities, impacts are occurring to a small, localized group of animals. While these impacts can occur year-round, they occur sporadically and for limited duration (
No injury, serious injury, or mortality is anticipated, nor is the proposed action likely to result in long-term impacts such as permanent abandonment of the haul-out. Injury, serious injury, or mortality to pinnipeds would likely result from startling animals inhabiting the haul-out into a stampede reaction, or from extended mother-pup separation as a result of such a stampede. Long-term impacts to pinniped usage of the haul-out could result from significantly increased presence of humans and equipment on the beach. To avoid these possibilities, we have worked with SCWA to develop the previously described mitigation measures. These are designed to reduce the possibility of startling pinnipeds, by gradually apprising them of the presence of humans and equipment on the beach, and to reduce the possibility of impacts to pups by eliminating or altering management activities on the beach when pups are present and by setting limits on the frequency and duration of events during pupping season. During the past fifteen years of flood control management, implementation of similar mitigation measures has resulted in no known stampede events and no known injury, serious injury, or mortality. Over the course of that time period, management events have generally been infrequent and of limited duration.
No pinniped stocks for which incidental take authorization is proposed are listed as threatened or endangered under the ESA or determined to be strategic or depleted under the MMPA. Recent data suggests that harbor seal populations have reached carrying capacity; populations of California sea lions and northern elephant seals in California are also considered healthy.
In summary, and based on extensive monitoring data, we believe that impacts to hauled-out pinnipeds during estuary management activities would be behavioral harassment of limited duration (
The proposed number of animals taken for each species of pinnipeds can be considered small relative to the population size. There are an estimated 30,968 harbor seals in the California stock, 296,750 California sea lions, and 179,000 northern elephant seals in the California breeding population. Based on extensive monitoring effort specific to the affected haul-out and historical data on the frequency of the specified
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, we have determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
No species listed under the ESA are expected to be affected by these activities. Therefore, we have determined that a section 7 consultation under the ESA is not required. As described elsewhere in this document, SCWA and the Corps consulted with NMFS under section 7 of the ESA regarding the potential effects of their operations and maintenance activities, including SCWA's estuary management program, on ESA-listed salmonids. As a result of this consultation, NMFS issued the Russian River Biological Opinion (NMFS, 2008), including Reasonable and Prudent Alternatives, which prescribes modifications to SCWA's estuary management activities. The effects of the proposed activities and authorized take would not cause additional effects for which section 7 consultation would be required.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As a result of these preliminary determinations, we propose to issue an IHA to SCWA for conducting the described estuary management activities in Sonoma County, California, for one year from the date of issuance, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.
This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).
The Sonoma County Water Agency (SCWA), California, is hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1371(a)(5)(D)) to harass marine mammals incidental to conducting estuary management activities in the Russian River, Sonoma County, California.
1. This Incidental Harassment Authorization (IHA) is valid from April 21, 2015 through April 20, 2016.
2. This IHA is valid only for activities associated with estuary management activities in the Russian River, Sonoma County, California, including:
(a) Lagoon outlet channel management;
(b) Artificial breaching of barrier beach;
(c) Geophysical surveys and other work associated with a jetty study; and
(d) Physical and biological monitoring of the beach and estuary as required.
3. General Conditions:
(a) A copy of this IHA must be in the possession of SCWA, its designees, and work crew personnel operating under the authority of this IHA.
(b) SCWA is hereby authorized to incidentally take, by Level B harassment only, 3,976 harbor seals (
(c) The taking by injury (Level A harassment), serious injury, or death of any of the species listed in condition 3(b) of the Authorization or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.
(d) If SCWA observes a pup that may be abandoned, it shall contact the National Marine Fisheries Service (NMFS) West Coast Regional Stranding Coordinator immediately (562–980–3230;
4. Mitigation Measures:
In order to ensure the least practicable impact on the species listed in condition 3(b), the holder of this Authorization is required to implement the following mitigation measures:
(a) SCWA crews shall cautiously approach the haul-out ahead of heavy equipment to minimize the potential for sudden flushes, which may result in a stampede—a particular concern during pupping season.
(b) SCWA staff shall avoid walking or driving equipment through the seal haul-out.
(c) Crews on foot shall make an effort to be seen by seals from a distance, if possible, rather than appearing suddenly at the top of the sandbar, again preventing sudden flushes.
(d) During breaching events, all monitoring shall be conducted from the overlook on the bluff along Highway 1 adjacent to the haul-out in order to minimize potential for harassment.
(e) A water level management event may not occur for more than two consecutive days unless flooding threats cannot be controlled.
(f) Equipment shall be driven slowly on the beach and care will be taken to minimize the number of shut-downs and start-ups when the equipment is on the beach.
(g) All work shall be completed as efficiently as possible, with the smallest
(h) Boats operating near river haul-outs during monitoring shall be kept within posted speed limits and driven as far from the haul-outs as safely possible to minimize flushing seals.
In addition, SCWA shall implement the following mitigation measures during pupping season (March 15-June 30):
(i) SCWA shall maintain a one week no-work period between water level management events (unless flooding is an immediate threat) to allow for an adequate disturbance recovery period. During the no-work period, equipment must be removed from the beach.
(j) If a pup less than one week old is on the beach where heavy machinery will be used or on the path used to access the work location, the management action shall be delayed until the pup has left the site or the latest day possible to prevent flooding while still maintaining suitable fish rearing habitat. In the event that a pup remains present on the beach in the presence of flood risk, SCWA shall consult with NMFS and CDFG to determine the appropriate course of action. SCWA shall coordinate with the locally established seal monitoring program (Stewards of the Coast and Redwoods) to determine if pups less than one week old are on the beach prior to a breaching event.
(k) Physical and biological monitoring shall not be conducted if a pup less than one week old is present at the monitoring site or on a path to the site.
5. Monitoring:
The holder of this Authorization is required to conduct baseline monitoring and shall conduct additional monitoring as required during estuary management activities. Monitoring and reporting shall be conducted in accordance with the approved Pinniped Monitoring Plan.
(a) Baseline monitoring shall be conducted twice-monthly for the term of the IHA. These censuses shall begin at dawn and continue for eight hours, weather permitting; the census days shall be chosen to ensure that monitoring encompasses a low and high tide each in the morning and afternoon. All seals hauled out on the beach shall be counted every thirty minutes from the overlook on the bluff along Highway 1 adjacent to the haul-out using high-powered spotting scopes. Observers shall indicate where groups of seals are hauled out on the sandbar and provide a total count for each group. If possible, adults and pups shall be counted separately.
(b) In addition, peripheral haul-outs shall be visited for ten-minute counts twice during each baseline monitoring day.
(c) During estuary management events, monitoring shall occur on all days that activity is occurring using the same protocols as described for baseline monitoring, with the difference that monitoring shall begin at least one hour prior to the crew and equipment accessing the beach work area and continue through the duration of the event, until at least one hour after the crew and equipment leave the beach. In addition, a one-day pre-event survey of the area shall be made within one to three days of the event and a one-day post-event survey shall be made after the event, weather permitting.
(d) Monitoring of peripheral haul-outs shall occur concurrently with event monitoring, when possible.
(e) For all monitoring, the following information shall be recorded in thirty-minute intervals:
i. Pinniped counts by species;
ii. Behavior;
iii. Time, source and duration of any disturbance, with takes incidental to SCWA actions recorded only for responses involving movement away from the disturbance or responses of greater intensity (
iv. Estimated distances between source of disturbance and pinnipeds;
v. Weather conditions (
vi. Tide levels and estuary water surface elevation.
(a) All monitoring during pupping season shall include records of any neonate pup observations. SCWA shall coordinate with the Stewards' monitoring program to determine if pups less than one week old are on the beach prior to a water level management event.
6. Reporting:
The holder of this Authorization is required to:
(a) Submit a report on all activities and marine mammal monitoring results to the Office of Protected Resources, NMFS, and the West Coast Regional Administrator, NMFS, 90 days prior to the expiration of the IHA if a renewal is sought, or within 90 days of the expiration of the permit otherwise. This report must contain the following information:
i. The number of seals taken, by species and age class (if possible);
ii. Behavior prior to and during water level management events;
iii. Start and end time of activity;
iv. Estimated distances between source and seals when disturbance occurs;
v. Weather conditions (
vi. Haul-out reoccupation time of any seals based on post-activity monitoring;
vii. Tide levels and estuary water surface elevation;
viii. Seal census from bi-monthly and nearby haul-out monitoring; and
ix. Specific conclusions that may be drawn from the data in relation to the four questions of interest in SCWA's Pinniped Monitoring Plan, if possible.
(b) Reporting injured or dead marine mammals:
i. In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury, or mortality, SCWA shall immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the following information:
A. Time and date of the incident;
B. Description of the incident;
C. Environmental conditions (
D. Description of all marine mammal observations in the 24 hours preceding the incident;
E. Species identification or description of the animal(s) involved;
F. Fate of the animal(s); and
G. Photographs or video footage of the animal(s).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with SCWA to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. SCWA may not resume their activities until notified by NMFS.
i. In the event that SCWA discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (
The report must include the same information identified in 6(b)(i) of this IHA. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with SCWA to determine whether additional mitigation measures or modifications to the activities are appropriate.
ii. In the event that SCWA discovers an injured or dead marine mammal, and
iii. Pursuant to sections 6(b)(ii–iii), SCWA may use discretion in determining what injuries (
7. Validity of this Authorization is contingent upon compliance with all applicable statutes and permits, including NMFS' 2008 Biological Opinion for water management in the Russian River watershed. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if the authorized taking is having a more than a negligible impact on the species or stock of affected marine mammals.
We request comment on our analysis, the draft authorization, and any other aspect of this Notice of Proposed IHA for SCWA's estuary management activities. Please include with your comments any supporting data or literature citations to help inform our final decision on SCWA's request for an MMPA authorization.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is rescinding the administrative review of the countervailing duty (CVD) order on circular welded carbon-quality steel pipe (CWP) from the People's Republic of China (PRC) for the period January 1, 2013, through December 31, 2013.
Mary Kolberg, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1785.
On August 29, 2014, the Department initiated an administrative review of the CVD order on CWP from the PRC with respect to Baoshan Iron & Steel Co., Ltd., Beijing Jia Mei AO Trade Co., Ltd., Beijing Jinghua Global Trading Co., Benxi Northern Steel Pipes, Co. Ltd., CNOOC Kingland Pipeline Co., Ltd., ETCO (China) International Trading Co., Ltd., Guangzhou Juyi Steel Pipe Co., Ltd., Huludao City Steel Pipe Industrial, Jiangsu Changbao Steel Tube Co., Ltd., Jiangsu Yulong Steel Pipe Co., Ltd., Liaoning Northern Steel Pipe Co., Ltd., Pangang Chengdu Group Iron & Steel Co., Ltd., Shanghai Zhongyou TIPO Steel Pipe Co., Ltd., Tianjin Haoyou Industry Trade Co., Tianjin Longshenghua Import & Export, Tianjin Shuangjie Steel Pipe Co., Ltd., Weifang East Steel Pipe Co., Ltd., WISCO & CRM Wuhan Materials & Trade., and Zhejiang Kingland Pipeline Industry Co., Ltd., covering the period January 1, 2013, through December 31, 2013, based on a request by Wheatland Tube Company (hereinafter, the petitioner).
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the publication of the notice of initiation of the requested review. In this case, the petitioner withdrew its request within the 90-day deadline, and no other party requested an administrative review of the CVD order. Therefore, in accordance with 19 CFR 351.213(d)(1), we are rescinding the administrative review of CWP from the PRC covering the period January 1, 2013, through December 31, 2013, in its entirety.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess CVDs on all entries of CWP from the PRC made during the period of review at rates equal to the cash deposit of estimated CVDs required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after the date of publication of this notice in the
This notice serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation that is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
International Trade Administration, U.S. Department of Commerce.
Notice of an open meeting.
The United States Manufacturing Council (Council) will hold the first meeting of the current members' term on Wednesday, April 1, 2015. The Council was established in April 2004 to advise the Secretary of Commerce on matters relating to the manufacturing industry.
The purpose of the meeting is to brief Council members on current manufacturing initiatives throughout the Federal government. The Council will receive briefings from various leaders across the Department who are actively engaged in different aspects of manufacturing policy. The Council will also receive briefings from senior officials of related government agencies such as the Department of Labor. The Secretary of Commerce has been invited to welcome the Council and provided introductory remarks. Following the briefings, the Council members will be asked to discuss their views on major priorities facing the manufacturing industry and issues that they propose for the Council to advise on during their appointment term. The agenda may change to accommodate Council business. The final agenda will be posted on the Department of Commerce Web site for the Council at
Wednesday, April 1, 2015, 8:30 a.m.–11:30 a.m. The deadline for members of the public to register, including requests to make comments during the meetings and for auxiliary aids, or to submit written comments for dissemination prior to the meeting, is 5 p.m. EDT on March 23, 2015.
U.S. Manufacturing Council, U.S. Department of Commerce, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230,
Niara Phillips, the United States Manufacturing Council, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230, telephone: 202–482–4501, email:
In addition, any member of the public may submit pertinent written comments concerning the Council's affairs at any time before or after the meeting. Comments may be submitted to Niara Phillips at the contact information indicated above. To be considered during the meeting, comments must be received no later than 5:00 p.m. EDT on March 23, 2015, to ensure transmission to the Council prior to the meeting. Comments received after that date will be distributed to the members but may not be considered at the meeting. Copies of Council meeting minutes will be available within 90 days of the meeting.
Notice of Issuance of an Export Trade Certificate of Review to DFA of California, Application no. 14–00004.
The Secretary of Commerce, through the Office of Trade and Economic Analysis (“OTEA”) of the International Trade Administration, Department of Commerce, issued an Export Trade Certificate of Review to DFA of California on March 2, 2015.
Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, (202) 482–5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001–21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the
DFA of California (“DFA”) is certified to engage in the Export Trade Activities and Methods of Operation described below in the following Export Trade and Export Markets.
The Export Markets include all parts of the world except the United States (the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands).
For purposes of the Certificate of Review, “members” and “membership” refer to members of and membership in DFA of California; and “Members” and “Membership” refer to Members under the Certificate within the meaning of 15 CFR 325.2(1).
1. To engage in Export Trade in the Export Markets, DFA and Members may, subject to the Terms and Conditions below, exchange and discuss the following information:
a. Information about expenses specific to exporting to and within the Export Markets, including without limitation, transportation, transmodal or intermodal shipments, insurance, inland freight to port, port storage, commissions, export sales, documentation, financing, customs, duties and taxes;
b. Information about U.S. and foreign legislation and regulations, including federal marketing order programs, affecting sales of Products for the Export Markets;
c. Information about DFA's or its Members' export operations, including without limitation, sales and distribution networks established by DFA or its Members in the Export Markets;
d. Information about the credit terms extended to, and credit history of, export customers.
2. To engage in Export Trade in the Export Markets, DFA and its Members may, subject to the Terms and Conditions below, and further subject to the condition that the information is either (1) publicly available, or (2) if not publicly available, then compiled and distributed only in aggregate and summary form, by a person who is not employed by, nor affiliated with, a Processor or Packer, and in a manner that does not disclose either directly or by inference information about a transaction of any specific Member, exchange and discuss the following information:
a. With respect to the Export Markets, information about sales and marketing efforts, activities and opportunities for sales of Products, selling strategies, sales contracts, pricing, projected demand, customary terms of sale, and specifications for Products by customers in the Export Markets;
b. With respect to Products available from Members for export, information about price, quality, and quantity; and
c. Information about prior export sales by Members, including export prices.
3. DFA and its Members may meet to engage in the activities described in paragraphs 1 and 2 above.
4. DFA and its Members may prescribe the following conditions for admission and termination of members of DFA as participants in the Export Trade Activities and Methods of Operation and as Members of the Certificate (within the meaning of 15 CFR 325.2(1)) (“Membership”):
a. DFA may limit Membership to Fig, Prune, or Walnut Processors or Packers as defined under “Definitions.”
b. DFA may terminate Membership on the occurrence of one or more of the following events:
i. Withdrawal or resignation of a Member;
ii. Expulsion approved by a majority of all Members for a material violation of DFA's by-laws, after prior written notice to the Member proposed to be expelled and an opportunity of such Member to appear and be heard before a meeting of the Members;
iii. Death or permanent disability of a Member who is an individual or the dissolution of a Member other than an individual; or
iv. The bankruptcy of a Member, as provided in DFA's by-laws.
5. DFA and its Members may establish the following Minimum Qualifications for Members to participate in the DFA's Export Committees for Figs, Natural Condition Prunes, Prune Processors and Walnuts. There are no additional requirements for participation in the Fig and Walnut Export Committees.
a. A participant in any of the Export Committees must be:
i. A DFA Member;
ii. Owner of a commercially viable processing facility;
iii. In good standing with DFA credit terms (Payment net 30); and
iv. With personal and business conduct consistent with the highest industry standards as necessary to protect the integrity of the committee.
b. Fig Export Committee: A participant must meet the Minimum Qualifications.
c. Natural Condition Prune Export Committee: In addition to meeting the Minimum Qualifications, participation in this export committee requires that the Member be a packer of natural condition prunes for export.
d. Prune Processor Export Committee:
i. In addition to meeting the Minimum Qualifications, participation in this export committee requires that the Member be a processor of processed prunes for export;
ii. Participation also requires that the Member has the capability to thermally process and pack fruit into a consumer-ready product to a minimum 25% moisture level suitable for end user consumption.
e. Walnut Export Committee: A participant must meet the Minimum Qualifications.
6. Export Committees can elect to have guest speakers (such as
1. “Processor or Packer” means a person or entity that processes or packs figs, prunes or walnuts grown in California.
2. “Member” means the Members of DFA listed in Attachment A and any other members of DFA added as Members under the Certificate through amendment of the Certificate.
3. “Natural Condition Prunes” means prunes (with pits) in the condition in which they are normally delivered from a dry yard or dehydrator and may include:
a. Prunes which have been washed but which retain natural condition;
b. Prunes which will permit normal bulk storage without adding a preservative;
c. Prunes which will permit normal bulk storage without adding a preservative;
d. Prunes which have been size graded;
e. Prunes which may have been processed and re-dried to acceptable natural condition moisture content; and
f. Prunes in which the average moisture content of a lot is 21% or less.
4. “Processed Prunes” means prunes which have been thermally processed
1. Neither DFA nor any Member shall intentionally disclose, directly or indirectly, to DFA or to any other Member any information about its own or any other Member's costs, output, capacity, inventories, domestic prices, domestic sales, domestic orders, terms of domestic marketing or sale, U.S. business plans, strategies, or methods that is (1) not already generally available to the trade or public; or (2) made in connection with the administration of a United States Department of Agriculture marketing order for any Product.
2. Meetings at which DFA Members discuss the information under paragraphs 1 of the Export Trade Activities and Methods of Operations above shall not be open to the public.
3. Participation by a Member in any Export Trade Activity or Method of Operation under this Certificate shall be entirely voluntary as to that Member. A Member may withdraw from Membership under this Certificate at any time by giving a written notice to DFA, a copy of which DFA shall promptly transmit to the Secretary of Commerce and the Attorney General.
4. DFA and its Members will comply with requests made by the Secretary of Commerce, on behalf of the Secretary or the Attorney General, for information or documents relevant to conduct under the Certificate. The Secretary of Commerce will request such information or documents when either the Attorney General or the Secretary believes that the information or documents are required to determine that the Export Trade, Export Trade Activities and methods of Operation of a person protected by this Certificate of Review continue to comply with the standards of section 303(a) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Western Pacific Fishery Management Council (Council) will hold a meeting of its Scientific and Statistical Committee (SSC) subcommittee to review and discuss the revisions of false killer whale stock boundaries and bycatch proration method for incidental take in the Hawaii longline fishery.
The SSC subcommittee meeting will be held on March 31, 2015 at 1 p.m.
The SSC subcommittee meeting will be held at the Council office, 1164 Bishop Street, Suite 1400, Honolulu, HI 96813; telephone: (808) 522–8220.
Kitty M. Simonds, Executive Director; telephone: (808) 522–8220.
Public comment opportunity will be provided. The order in which agenda items are addressed may change. The meetings will run as late as necessary to complete scheduled business.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522–8220 (voice) or (808) 522–8226 (fax), at least 5 days prior to the meeting date.
16 U.S.C. 1801
Givaudan Fragrances Corporation (Givaudan), an operator of FTZ 44, submitted a notification of proposed production activity to the FTZ Board for its facility located in Mount Olive, New Jersey. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on March 4, 2015.
Givaudan already has authority to produce fragrance compounds within Site 1 of FTZ 44. The current request would add foreign-status materials to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Givaudan from customs duty payments on the foreign status materials used in export production. On
The components and materials sourced from abroad include: lactic acid salts and esters; tartaric acid salts and esters; and, acridine and indole (duty rate ranges from free to 4.4%).
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is April 27, 2015.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
For further information, contact Kathleen Boyce at
International Trade Administration, U.S. Department of Commerce.
Notice of an Open Meeting.
The President's Advisory Council on Doing Business in Africa (Council) will hold a meeting to deliberate on recommendations related to strengthening commercial engagement between the United States and Africa. Topics may include: mobilizing capital, risk mitigation, trade facilitation, cold chain development, renewal of the African Growth and Opportunity Act (AGOA), infrastructure development, and developing and marketing export resources for U.S. small- and medium-sized businesses. The final agenda will be posted at least one week in advance of the meeting on the Council's Web site at
April 8, 2015 at 9:30 a.m. (ET)
The President's Advisory Council on Doing Business in Africa meeting will be broadcast via live webcast on the Internet at
Tricia Van Orden, Executive Secretary, President's Advisory Council on Doing Business in Africa, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230, telephone: 202–482–5876, email:
Submit statements electronically to Tricia Van Orden, Executive Secretary, President's Advisory Council on Doing Business in Africa, via email:
Send paper statements to Tricia Van Orden, Executive Secretary, President's Advisory Council on Doing Business in Africa, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230.
Statements will be provided to the members in advance of the meeting for consideration and also will be posted on the President's Advisory Council on Doing Business in Africa Web site (
Economic Development 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 May 18, 2015.
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: Philip Saputo, Program Analyst, U.S. Department of Commerce, Economic Development Administration Performance and National Programs Division, 1401 Constitution Avenue NW., Suite 71030, Washington, DC 20230, Phone: 202–400–0662, Email:
The mission of the Economic Development Administration (EDA) is to lead the Federal economic agenda by promoting innovation and competitiveness, preparing American
The
Paper and electronic submissions.
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.
Economic Development 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 May 18, 2015.
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: Philip Saputo, Program Analyst, U.S. Department of Commerce, Economic Development Administration Performance and National Programs Division, 1401 Constitution Avenue NW., Suite 71030, Washington, DC 20230, Phone: 202–400–0662, Email:
The mission of the Economic Development Administration (EDA) is to lead the Federal economic agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. In order to effectively administer and monitor its economic development assistance programs, EDA collects certain information from applications for, and recipients of, EDA investment assistance.
A recipient must request in writing EDA's approval to undertake an incidental use of property acquired or improved with EDA's investment assistance (
Paper and electronic submissions.
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.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2015.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.326M.
This priority is:
Adolescents must possess the ability to read for understanding across a wide variety of content in order to meet college- and career-ready standards. Elements of literacy at the middle and secondary level include the ability to recognize and decode words and how students engage in reading as well as writing and oral communication skills.
To improve adolescent literacy, as defined for the purpose of this priority, models should be designed to implement evidence-based adolescent literacy interventions that are based on strong theory or evidence of promise for improving reading, and locating, understanding, interpreting, evaluating, and using written information across multiple content areas. Intensive reading intervention to improve adolescent literacy should also include a mix of effective instruction, modeling, professional development, and evidence-based teaching practices that are appropriate for classroom and small group settings. Evidence also suggests the implementation of reading interventions requires well trained professionals who are prepared to incorporate these interventions within instruction across subjects in middle and high school grades (Faggella-Luby, Ware, & Capozzoli, 2009). Therefore, adolescent literacy models should also include professional development as a component of the model. In addition, such models need to be replicable across content areas in classrooms and small group settings in multiple school sites, with a goal of scaling-up the intervention for wider use.
(a) Model demonstration projects funded under this priority must direct their efforts at improving adolescent literacy interventions in content areas using effective whole-class and small group instructional approaches for students with disabilities;
(b) Models must also include—
(1) A professional development component to teach educators how to implement the interventions with fidelity across a variety of content areas.
(2) Strategies for replicating interventions used by educators so they are effective when brought to scale across multiple classrooms within the participating local educational agency (LEA).
(c) Each model must include a plan to implement at least one evidence-based adolescent literacy intervention that applies strong theory or evidence of promise. In addition, these models must be implemented at multiple school sites and include professional development for all content area teachers at all middle and high school grades targeted to receive the intervention.
To be considered for funding under this absolute priority, applicants must meet the application requirements contained in this priority. Each project funded under this absolute priority also must meet the programmatic and administrative requirements specified in the priority.
(a) A detailed review of the research evidence that supports the effectiveness of the proposed model, its components, and processes to improve outcomes for adolescents with disabilities in middle and high school grades;
(b) A logic model that depicts, at a minimum, the goals, activities, outputs, and outcomes of the proposed model demonstration project. The logic model must describe how LEAs and participating schools involved in the project would contribute to the activities, outputs, and outcomes of the proposed project. A logic model communicates how a project will achieve its outcomes and provides a framework for both the formative and summative evaluations of the project;
While section 77.1(c) of EDGAR contains a definition for “logic model,” OSEP, based upon its experience in this area, has been using the above definition as standard language for the OSEP TA&D priorities. OSEP's definition establishes a difference between logic models and conceptual frameworks whereas 34 CFR 77.1(c) considers the model to be one and the same. The following Web sites provide more information on logic models:
(c) A description of the activities of the proposed model demonstration project to improve literacy for adolescents with disabilities in subject areas taught in middle and high schools. The description must include:
(1) Intervention components, including:
(i) Evidence-based literacy instruction and interventions that are provided to the adolescents with disabilities, and are replicable across a variety of content areas by each participating school within a participating LEA;
(ii) An explanation of the culturally responsive principles
(iii) An explanation of the professional development materials and activities that would be provided to school and LEA personnel to ensure that they implement the evidence-based intervention with fidelity; and
(iv) A data plan that outlines the process for collecting, assessing, and analyzing
(2) Components that will be implemented in each participating school and LEA and that—
(i) Identify the methods and criteria that will be used to select
Applicants are encouraged to identify, to the extent possible, LEAs and schools willing to participate in the applicant's model demonstration. Final site selection will be determined in consultation with the OSEP project officer following the kick-off meeting described in paragraph (d)(1) of these application requirements.
(ii) Provide initial and ongoing professional development, including coaching, for educators involved in implementing the models; and
(3) Evaluation components, including:—
(i) How the applicant will measure the extent to which project activities maintain fidelity to the proposed model;
(ii) How the applicant will measure the social validity of the model—in other words, measuring the satisfaction of stakeholders' (
(iii) A formative evaluation plan, consistent with the project's logic model and the data-collection plan that will include, as appropriate, periodic collection of student performance and achievement data, as well as the data collection systems that will be used to measure the fidelity of the implementation activities to the proposed model, stakeholder satisfaction, and descriptions of the settings where the intervention will take place. The plan must outline how these data will be reviewed by project staff, when they will be reviewed, and how they will be used during the course of the project to adjust the model or its implementation to increase the model's usefulness, generalizability, and potential for sustainability; and
(iv) The timeline and plan to collect summative evaluation data on the
(d) A budget for attendance at the following:
(1) A one and one half-day kick-off meeting to be held in Washington, DC, after receipt of the award.
(2) The three-day Project Directors' Conference in Washington, DC, during each year of the project period; and
(3) Six travel days spread across years 2–4 of the project period to attend planning meetings, Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP, to be held in Washington, DC, with the OSEP project officer.
(a) Document the process for model replication purposes, should the model be successful;
(b) Communicate and collaborate on an ongoing basis with other Department-funded literacy projects to share information on successful strategies and implementation challenges regarding adolescent literacy instruction and achievement;
(c) Maintain ongoing telephone and email communication with the OSEP project officer and the other model demonstration projects funded under this priority; and
(d) If the project maintains a Web site, include relevant information about the model, the intervention, and the demonstration activities that meets government- or industry-recognized standards for accessibility.
The following regulations apply: (a) The Education Department General Administrative Regulations (EDGAR) in 34 CFR parts 75, 77, 79, 81, 82, 84, 86, 97, 98, and 99. (b) The Education Department debarment and suspension regulations as adopted in 2 CFR part 3485 and the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards as adopted as regulations of the Department in 2 CFR part 3474.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply only to institutions of higher education (IHEs).
Contingent on the availability of funds and the quality of applications, we may make additional awards in FY 2016 from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
2.
3.
(a) The projects funded under this competition must make positive efforts to employ, and advance in employment, qualified individuals with disabilities (see section 606 of the IDEA).
(b) Each applicant and grantee under this competition must involve individuals with disabilities or parents of individuals with disabilities ages birth through 26 in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of the IDEA).
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this competition as follows: CFDA number 84.326M.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. You must limit Part III to the equivalent of no more than 50 pages, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section (Part III).
We will reject your application if you exceed the page limit in the application narrative section; or if you apply standards other than those specified in the application package.
Submission of Proprietary Information:
Given the types of projects that may be proposed in applications for the Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities—Model Demonstration Projects to Improve Adolescent Literacy for Students with Disabilities in Middle and High Schools, Grades 6–12, your application may include business information that you consider proprietary. The Department's regulations define “business information” in 34 CFR 5.11.
Under the Department's transparency policies, we make successful applicants' abstracts available to the public.
Consistent with Executive Order 12600, please designate in your application any information that you feel is exempt from disclosure under Exemption 4 of the Freedom of Information Act. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your Unique Entity Identifier (UEI) number and TIN with the System for Award Management (SAM), the Government's primary registrant database;
c. Provide your UEI number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
Currently, SAM relies on the identifier provided by Dun and Bradstreet (DUNS number) for the UEI. You can create a DUNS number within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2–5 weeks for your TIN to become active.
The SAM registration process may take seven or more business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, you will need to allow 24 to 48 hours for the information to be available in Grants.gov and before you can submit an application through Grants.gov. If you are currently registered with the SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days to complete. Information about SAM is available at
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the Model Demonstration Projects on the Improvement of Adolescent Literacy for Students with Disabilities in Middle and High Schools in Grades 6–12 competition, CFDA number 84.326M, must be submitted electronically using the Government-wide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the Model Demonstration Projects to Improve Adolescent Literacy for Students with Disabilities in Middle and High Schools, Grades 6–12 competition at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material. Additional, detailed information on how to attach files is in the application instructions.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Greg Knollman, U.S. Department of Education, 400 Maryland
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.326M), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.326M), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
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In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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In the past, the Department has had difficulty finding peer reviewers for certain competitions because so many individuals who are eligible to serve as peer reviewers have conflicts of interest. The standing panel requirements under section 682(b) of IDEA also have placed additional constraints on the availability of reviewers. Therefore, the Department has determined that, for some discretionary grant competitions, applications may be separated into two or more groups and ranked and selected for funding within specific groups. This procedure will make it easier for the Department to find peer reviewers, by ensuring that greater numbers of individuals who are eligible to serve as reviewers for any particular group of applicants will not have conflicts of interest. It also will increase the quality, independence, and fairness of the review process, while permitting panel members to review applications under discretionary grant competitions for which they also have submitted applications. However, if the Department decides to select an equal number of applications in each group for funding, this may result in different cut-off points for fundable applications in each group.
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure
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Grantees will be required to report information on their project's performance in annual reports to the Department (34 CFR 75.590).
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Greg Knollman, U.S. Department of Education, 400 Maryland Avenue SW., Room 4096, PCP, Washington, DC 20202–2600. Telephone: (202) 245–6425.
If you use a TDD or a TTY, call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
You may also access documents of the Department published in the
This is a supplemental notice in the above-referenced proceeding, of South Jersey Energy ISO6, 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 Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
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 March 30, 2015.
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
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on March 2, 2015, Rockies Express Pipeline LLC, (Rockies Express) filed an application with the Federal Energy Regulatory Commission pursuant to section 7(c) of the Natural Gas Act (NGA) requesting a certificate of public convenience and necessity authorizing the operation as section 7(c) jurisdictional facilities certain pipeline assets, located in Noble and Monroe Counties, Ohio, that heretofore have been constructed and operated solely for the purpose of providing transportation services permitted under section 311 of the Natural Gas Policy Act, all as more completely described in the Application. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site web at
Any questions regarding the application should be directed to David Haag, Vice President, Regulatory, Rockies Express Pipeline LLC, 370 Van Gordon Street, Lakewood, Colorado 80228–8304, phone (303) 763–3258.
Specifically, the facilities for which Rockies Express is requesting NGA section 7(c) authority were the subject of two advance notification filings made by Rockies Express on August 26, 2013 in Docket No. CP13–539–000 (Seneca Lateral Project) and on April 18, 2014 in Docket No. CP14–194–000 (Seneca Compressor Expansion Project). The facilities consist of: (1) Approximately 14.7 miles of 24-inch lateral pipeline extending from an interconnect with MarkWest Energy Partners, L.P. Seneca Processing Plant to Rockies Express' mainline; (2) measurement facilities; and (3) 15,980 horsepower of booster compression. Rockies Express proposes incremental firm and interruptible transportation recourse rates based on the cost of the facilities of $135,950,429.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit seven copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
This is a supplemental notice in the above-referenced proceeding, of South Jersey Energy ISO7, 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 Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR 34, of future issuances of securities and assumptions of liability is March 30, 2015.
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 South Jersey Energy ISO8, 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 Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
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 March 30, 2015.
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
Office of Nuclear Energy, Department of Energy.
Request for public comment.
The U.S. Department of Energy (DOE) plans to issue a new Secretarial Determination covering continued transfers of uranium for cleanup services at the Portsmouth Gaseous Diffusion Plant and for down-blending of highly-enriched uranium (HEU) to low-enriched uranium (LEU). In support of this process, DOE issued a Request for Information that solicited information about the effects of continued uranium transfers on the domestic uranium industries and recommendations about factors to be considered in assessing the possible impacts of DOE transfers. DOE also commissioned an economic analysis of the effects of its proposed uranium transfers. DOE now provides for public review the responses received from the public, the economic analysis prepared for DOE, and a list of factors DOE has identified for analysis of the impacts of DOE transfers on the uranium mining, conversion, and enrichment industries. DOE requests comment on this list of factors, the information and documents made available through this notice, and the included summary of information considered.
DOE will accept comments, data, and information responding to this proposal submitted on or before April 6, 2015.
Interested persons may submit comments by any of the following methods.
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No facsimiles (faxes) will be accepted. Supporting documents are available on the Internet at
Mr. David Henderson, U.S. Department of Energy, Office of Nuclear Energy, Mailstop NE–52, 19901 Germantown Rd., Germantown, MD 20874–1290. Phone: (301) 903–2590. Email:
The Department of Energy (DOE) holds inventories of uranium in various forms and quantities—including low-enriched uranium (LEU) and natural uranium—that have been declared as excess and are not dedicated to U.S. national security missions. Within DOE, the Office of Nuclear Energy (NE), the Office of Environmental Management (EM), and the National Nuclear Security Administration (NNSA) coordinate the management of these excess uranium inventories. DOE explained its approach to managing this inventory in a July 2013 Report to Congress,
Much of this excess uranium has substantial economic value on the open market. One tool that DOE has used to manage its excess uranium inventory has been to enter into transactions in which DOE exchanges excess uranium for services. This notice involves uranium transfers of this type under two separate programs. Specifically, DOE transfers uranium in exchange for cleanup services at the Portsmouth Gaseous Diffusion Plant and for down-blending of highly-enriched uranium (HEU) to LEU. DOE currently transfers uranium for these two programs at an aggregate rate of approximately 2,705 metric tons of natural uranium equivalent (MTU) per year.
DOE manages its excess uranium inventory in accordance with the Atomic Energy Act of 1954 (42 U.S.C. 2011
In accordance with the above statutes and other laws, the Secretary has periodically determined whether certain transfers of natural and low-enriched uranium will have an adverse material impact on the domestic uranium industries. DOE issued the most recent Secretarial Determination in May 2014. That determination covered transfers of up to a total of 2,705 MTU per year natural uranium equivalent, broken down as follows: Up to 650 MTU per year of natural uranium equivalent in the form of LEU transferred for downblending, with the balance, but not less than 2,055 MTU per year of natural uranium equivalent for cleanup services at the Paducah or Portsmouth Gaseous Diffusion Plant.
To inform the May 2014 Secretarial Determination—as it had for a number of previous determinations—DOE tasked Energy Resources International, Inc. (ERI) with assessing the potential effects on the domestic uranium mining, conversion, and enrichment industries from DOE's proposed volume of uranium transfers. In addition to its review and consideration of the report prepared by ERI (2014 ERI Report), DOE held in-person meetings and accepted written communications regarding the transfers from several entities that expressed an interest in DOE's proposed uranium transactions. DOE staff then prepared a separate analysis based on these and other inputs and recommended a course of action to the Secretary.
DOE plans to issue a new Secretarial Determination pursuant to section 3112(d). As a preparatory step, DOE sought information from the public through a Request for Information published in the
In the December 8, 2014, Request for Information (79 FR 72661), DOE solicited information from interested stakeholders and specifically requested comment on the following seven questions.
(1) What factors should DOE consider in assessing whether transfers will have adverse material impacts?
(2) With respect to transfers from DOE's excess uranium inventory in calendar years 2012, 2013, and 2014, what have been the effects of transfers in uranium markets and the consequences for the domestic uranium mining, conversion, and enrichment industries relative to other market factors?
(3) What market effects and industry consequences could DOE expect from continued transfers at annual rates comparable to the transfers described in the 2014 Secretarial Determination?
(4) Would transfers at a lower annual rate significantly change these effects, and if so, how?
(5) Are there actions DOE could take other than altering the annual rate of transfers that would mitigate any negative effects on these industries?
(6) Are there actions DOE could take with respect to transfers that would have positive effects on these industries?
(7) Are there any anticipated changes in these markets that may significantly change how DOE transfers affect the domestic uranium industries?
In response to this request, DOE received comments from a diverse group of parties representing interests across the nuclear industry. DOE received comments from members of the uranium mining, conversion, and enrichment industries. DOE also received comments from trade associations, nuclear utilities, local governmental bodies, and members of the public. All comments are available at
In preparation for the May 2014 Secretarial Determination, DOE tasked ERI to assess the potential effects on the domestic uranium mining, conversion, and enrichment industries of the introduction of DOE excess uranium inventory in various forms and quantities through sale or transfer during calendar years 2014 through 2033. DOE may consider this report in its deliberations regarding a new Determination (“2014 ERI Report”).
In preparation for the planned Secretarial Determination that is the subject of today's notice, DOE tasked ERI with preparing an additional analysis of DOE transfers (“2015 ERI Report”). For this additional analysis, DOE tasked ERI to consider the effect of hypothetical DOE transfers on the domestic uranium industries under three different scenarios. Under Scenario 1, DOE would continue transfers at the current annual rate of 2,705 MTU per year, consisting of 2,055 MTU for cleanup work and 650 MTU as low-enriched uranium for downblending. Under Scenario 2, DOE would decrease transfers to a rate corresponding with 1,855 MTU per year, consisting of 1,410 MTU for cleanup work and 445 MTU as low-enriched uranium for downblending. Under Scenario 3, DOE would cease transfers for cleanup work and downblending.
DOE also asked ERI to provide specific categories of information in its analysis, including a discussion of price volatility and regional differences in the markets. DOE tasked ERI to discuss the implications of changing certain assumptions underlying its analysis, specifically regarding what proportion of DOE material would enter the global as compared to the domestic market and regarding the share of DOE material delivered under long-term contracts. ERI's report also includes updated information regarding changes in the market between April 2014 and February 2015. Both the 2014 ERI Report and the 2015 ERI Report can be found at
DOE issues Secretarial Determinations pursuant to Section 3112(d) of the USEC Privatization Act. Section 3112(d) states that DOE may transfer “natural and low-enriched uranium” if, among other things, “the Secretary determines that the sale of the material will not have an adverse material impact on the domestic uranium mining, conversion, or enrichment industry, taking into account the sales of uranium under the Russian HEU Agreement and the Suspension Agreement.” After considering this statutory language, DOE has developed a set of factors that it proposes to consider in determining whether its uranium transfers will have an “adverse material impact” on the domestic uranium industries.
The USEC Privatization Act does not clearly indicate what kind or degree of effect or influence on an industry would constitute an “adverse material impact.” As discussed below, these words are
Moreover, the meaning of the phrase is likely to depend in part on the factual context in which it is to be applied. Uranium transactions can take myriad forms, and the effect of any given transaction on any one or all of these industries will depend heavily on the facts and circumstances at the time of the transaction. DOE's inventory of uranium is changing over time, and Congress could not have anticipated the specific characteristics of every potential transaction. Thus, it would be unsurprising for the statute to describe DOE's mandate in open-ended terms, leaving DOE to elaborate details as and when DOE applied the statute over time.
Thus, the Secretary will need to exercise judgment to develop an understanding of “adverse material impact,” in its statutory context, as applicable to a given potential transfer or sale of uranium. Part of that task involves establishing an analytical framework to form the basis of and reach a determination about the impacts of DOE's transfers. The Secretary is responsible for reviewing relevant information and exercising judgment to decide whether a particular sale or transfer will have an adverse material impact.
DOE's first step in developing an analytical framework is to elaborate what it means for transfers to “have” an “impact.” DOE believes that it can appropriately fulfill the purpose of the statute by reading this phrase to refer to “impacts” that have a causal relationship to DOE transfers. The overall thrust of Section 3112 is to permit transfers and sales of uranium to the degree consistent with various policy considerations set forth in various paragraphs.
Thus, in assessing a given transfer, DOE will essentially evaluate two forecasts: One reflecting the state of the domestic uranium industries if DOE goes forward with the transfer, and one reflecting the state of the domestic uranium industries if DOE does not go forward with the transfer. DOE will then compare these two forecasts to determine the relevant impacts on the domestic uranium industries. It bears mention that not every difference in predicted outcomes will necessarily count as an impact of the transfer. For example, if DOE transfers would be the final contribution after independent causes have pushed an industry to a given adverse state, DOE might not regard the full scope of the adversity as attributable to the transfers.
With respect to assessing whether the adverse impacts of a transfer would be “material,” DOE observes that the word “material” is used to denote situations “of real importance or great consequence.”
As noted above, one purpose of the USEC Privatization Act was that DOE should manage and eventually dispose of the large legacy inventory that the privatization of USEC would leave it. In privatizing the United States Enrichment Corporation, Congress recognized that DOE would have uranium inventory left over and that this inventory would have substantial economic value. By including 3112(d), Congress preserved the Secretary's discretion to utilize uranium transfers as a tool in managing the uranium inventory, and the substantial value embodied therein. If Congress had not wanted DOE to make productive use of its inventory, it could have prohibited all sales by the Department with or without a determination. Indeed, the USEC Privatization Act explicitly directed DOE to transfer various quantities of uranium to market participants. 42 U.S.C. 2297h–10(b)(2) & (c).
Section 3112 also provides helpful context that indicates the magnitude of industry impact that Congress considered acceptable. The statute specifically authorized material delivered under the Russian HEU Agreement to enter the U.S. market notwithstanding a preexisting suspension agreement limiting the entry of this material. 42 U.S.C. 2297h–10(b)(3), (5)–(7). The act contained annual limits on deliveries of the natural uranium component of the Russian material. The limits started at 2 million pounds U3O8 equivalent in 1998, and increased by 2 million pounds each year reaching a maximum of 20 million pounds U3O8 equivalent in 2009 and each year thereafter. 42 U.S.C. 2297h–10(b)(5).
Indeed, the structure and legislative history of 3112(b) confirm that the schedule for Russian material's entering domestic markets reflects Congress's balancing of concerns similar to those that motivated 3112(d)(2). Congress could have simply allowed all Russian material into the U.S. without limitation. Instead, Congress provided a schedule that ramped up over a period of 20 years. Thus, Congress was attempting to balance the competing concerns of providing a market for the consumption of downblended Russian HEU and protecting the domestic uranium industries from large-scale disruption. The schedule outlined in Section 3112(b) reveals the level of market interference that Congress believed struck that balance. This notion is further confirmed by the legislative history of this provision, which specifically states that Congress was trying to balance the interests in maintaining the Russian HEU Agreement with the interests of the domestic uranium industries. See S. Rep. 104–173, at 14. Further, the legislative history explains that the schedule of maximum deliveries was designed to protect against disruptions to the uranium markets by providing a “reasonable, predictable, and measured introduction of this Russian material into the domestic uranium market.”
Section 3112(d)(2) confirms that DOE's consideration of 3112(b) in interpreting 3112(d)(2) is reasonable. Section 3112(d)(2) explicitly directs the Secretary to “take into account” the sales of uranium under the Russian HEU Agreement and the Suspension Agreement. DOE believes that in addition to requiring the Secretary to consider any transfers under these programs that are ongoing at the time of DOE's transfers, this language asks the Secretary to consider and take into account the history and context of these transfers and the statutory text authorizing them. In addition, it bears mention that in a 3112(d)(2) deliberation DOE may take account of the fact that the cessation of the Russian HEU Agreement removed a substantial amount of secondary supply from uranium markets.
The preceding discussion is not intended automatically to support transfers of up to 20 million pounds under Section 3112(d). The Secretary must exercise his own judgment as to whether transfers would cause an adverse material impact, in light of market and industry conditions today. However, DOE believes that this provision provides some insight into what scale of market interference Congress considered acceptable, and hence would not constitute an “adverse material impact.”
For these reasons, DOE believes that whether the effects of a given transfer constitute an “adverse material impact” should not depend on a quantitative bright-line test, but rather should be based on an evaluation of potential impacts by examining a number of factors. Accordingly, DOE proposes to consider the effects of DOE transfers using a set of factors. DOE proposes to analyze its transfers in light of the best available information, data and expert judgment to form the basis for the Secretary's determination.
In the December 2014 RFI, DOE sought comment from the public on what factors it should consider in assessing whether a given set of transfers would have an adverse material impact on the domestic uranium industries. After considering the comments received, DOE believes the following factors may be relevant to this question:
These factors reflect many of those suggested by commenters, and DOE believes they reflect the types of impacts that a DOE transfer could in principle have on a domestic uranium industry. Not every factor will necessarily be relevant on a given occasion or to a particular industry; DOE intends this list of factors only as a guide to its analysis. DOE is open to additional comment on these factors. There are a few factors proposed by commenters that are not included in DOE's list, for the reasons outlined below.
One commenter suggested that DOE should consider the effects of its transfers on the profitability of the industries. Comment of ConverDyn, Encl. at 2. Another commenter suggested that DOE should consider the effect of its transfers on gross profit margin. TradeTech Report, 12–13. DOE notes that profit and profitability can vary depending on company-specific circumstances and accounting treatments, and therefore may not be reliable indicators of how a given market phenomenon like DOE transfers is affecting an industry. Moreover, for assessing the impact on an industry, the profit of participants is, in a sense, an indirect measure, as it is principally a link between market dynamics—prices and sales—and the ultimate reaction of industry in terms of increasing or decreasing activity. For these reasons, DOE proposes to look instead at factors which are either more directly related to industry impact or are more reliable predictors of industry impact.
Several commenters suggested that DOE should consider current market conditions as a factor. Comment of UPA, at 3; comment of Uranerz, at 3. DOE agrees that current market conditions are relevant, and DOE plans to consider the potential effects of DOE transfers in light of the relevant context, which includes current market conditions as well as past and projected future conditions. DOE believes that considering broader market conditions in this manner will yield insight into how the domestic uranium industries can be expected to respond to DOE transfers.
Some commenters suggested that DOE consider uncommitted utility demand or uncovered utility requirements compared to the level of DOE transfers. UPA and others, for example, stated that transfers at the rate described in the May 2014 Secretarial Determination would constitute more than 100 percent of global uncommitted utility demand in calendar year 2015 and almost 60 percent in 2016. These commenters cite to a report by the Ux Consulting Company, LLC (UxC): UxC Uranium Market Outlook—Q4 2014 (2014).
Commenters also proposed share price and market capitalization as factors for consideration. E.g., Comment of ConverDyn, Enclosure, at 2. DOE is not convinced that either of these provides an appropriate indicator for whether DOE transfers will cause an adverse material impact, because both market capitalization and share price are too attenuated from the effects of DOE transfers. While share price certainly does influence a company's decisions about investment and allocation of capital, it is only one factor. At the same time, a company's share price tends to reflect myriad inputs besides the effects of a market phenomenon like DOE transfers. Other contributions to share price can include the nature of company management, gearing ratio (debt vs. equity), inflation, and the particular risks associated with the uranium market (such as the influence of political changes, like the shift in energy policy in Germany or public responses to nuclear accidents). Furthermore, many of the largest U.S. producers are part of multi-line companies whose share prices depend in part on product markets other than uranium. For these reasons, DOE believes that share price and market capitalization are too highly attenuated to serve as useful proxies for industry impact.
Some commenters suggested that DOE should consider the “spill-over effects” across the different nuclear fuel industries that might cause indirect harm. E.g., Comment of URENCO, at 5. Although the commenter did not explain what “spill-over effects” it was referring to, DOE recognizes that as a general matter the interaction between the different uranium markets can be relevant, particularly the relationship between enrichment prices and uranium concentrate/conversion prices. As enrichment can be used to provide additional uranium concentrate as uranium hexafluoride—either through underfeeding or re-enrichment of tails—there is a potential for changes in one market to affect the others. However, DOE does not believe this should be considered as a separate factor. Instead, DOE believes these effects are better understood and assessed when considered as part of the analysis for each of the six market factors listed above.
In this section, DOE summarizes for each industry the information that DOE believes to be relevant with respect to the above-listed factors. In addition to the 2014 ERI Report, the 2015 ERI Report, and the comments received in response to the RFI, in some instances DOE refers to additional information from other sources. Where available, DOE provides a link to where these documents are available on the Internet.
In preparation for the proposed Secretarial Determination, DOE tasked ERI with estimating the effect of DOE transfers on the market prices for uranium concentrates. In the 2015 ERI Report, as in previous reports, ERI estimated this effect by employing two different types of model that rely on somewhat different assumptions: A market clearing price model and an econometric model. For its market clearing price model, ERI constructs individual supply and demand curves and compares the clearing price with and without DOE transfers.
Applying this approach to the three scenarios listed in Section I.E above—2,705 MTU per year (scenario 1), 1,855 MTU per year (scenario 2), or zero transfers (scenario 3)—ERI estimates that DOE transfers will have the effects listed in Table 1. Transfers at the rate of 2,705 MTU per year would cause the price of uranium concentrates to be lower than it would be without DOE transfers by, on average, $2.80 between 2015 and 2024—with prices being $3.00 and $2.80 lower in 2015 and 2016 specifically. 2015 ERI Report, 45. For DOE transfers at a rate of 1,855 MTU per year, ERI estimates that prices would be, on average, $2.60 lower between 2015 and 2024—with prices being $2.10 and $1.90 lower in 2015 and 2016 specifically. If DOE ceased transfers under these two programs, ERI estimates that prices would be, on average, $1.30 lower between 2015 and 2024—with prices being $0.30 and $0.10 lower in 2015 and 2016 specifically.
ERI then compares these numbers to the current spot and term price indicators published by TradeTech on January 31, 2015—
The second model that ERI used to predict the effects of DOE transfers specifically on the spot price for uranium using an econometric model. A summary of ERI's estimates using this model appears in Table 2. ERI compared the monthly spot and term market prices published by TradeTech with published offers to sell uranium for delivery within one year of publication and published inquiries to purchase uranium for delivery within one year. Based on this information, ERI developed a multivariable correlation to estimate how the market prices would respond to the availability of new supply from DOE. 2015 ERI Report, 50. Applying this econometric model, ERI predicts that transfers under Scenario 1 would cause the spot price to be lower by about $2.40 per pound between 2015 and 2017 than it would be in the absence of transfers, and by about $5.10 between 2018 and 2024. For Scenario 2, ERI estimated that the spot price would be lower by about $1.70 per pound between 2015 and 2017 than it would be without transfers, and by about $4.80 between 2018 and 2024. For Scenario 3, ERI estimated that the spot price would be lower by about $0.30 per pound between 2015 and 2017, and by $2.00 between 2018 and 2024. 2015 ERI Report, 53. Again, as noted for the market clearing analysis, the market price currently takes account of the already ongoing transfers at the levels of Scenario 1. Thus, on ERI's analysis prices already exhibit a level of price suppression similar to the level predicted in the near term under Scenario 1. 2015 ERI Report, 52–53.
For the 2014 ERI Report, ERI had conducted a similar market clearing approach for a level of transfers that is equal to Scenario 1 of the 2015 ERI Report. Although that report used slightly older data, the results are very similar. Notably, ERI estimated that the price effect attributable to DOE transfers at the current rates is $2.90 between 2014 and 2023—with prices being $3.00 lower in 2014 and 2015, and $2.80 lower in 2016.
Three commenters provided their own estimates of the price effects of DOE transfers.
UPA attached to its comment a market analysis it commissioned from TradeTech, LLC, a uranium market consultant. Comment of UPA, Attachment, TradeTech, “UPA DOE Material Transfer Study” (2015) (hereinafter “TradeTech Report”). A summary of TradeTech's estimates appears in Table 3. TradeTech explains that it estimated the price effect of DOE transfers using its proprietary Dynamic Pricing Model. This model is an econometric forecasting approach to estimate the equilibrium between two dimensions TradeTech calls “active supply” and “active demand.” In its estimates, TradeTech assumes that 50 percent of DOE transfers enters the spot market and 50 percent enters the term market. TradeTech Report, 14. Using its model, TradeTech estimates that DOE's transfer reduced the spot price by an average of $3.55 per pound between January 2012 and December 2014. TradeTech Report, 15. TradeTech also estimates that continued DOE transfers at current rates would reduce the spot price by an average of $2.43 per pound between January 2015 and December 2016. TradeTech Report, 20.
TradeTech also provides estimates for the effect of DOE transfers at several decreased transfer rates. If DOE transfers decreased to 75% of current levels, TradeTech estimates that the spot price would increase by an average of $0.53 per pound between January 2015 and December 2016. TradeTech Report, 26.
Fluor-B&W Portsmouth attached to its comment an April 2014 market analysis from NAC International (NAC). Comment of Fluor-B&W Portsmouth, Attachment A, NAC International, “Impact of DOE Excess Uranium Sales on the U
NAC developed a range of estimates of the impact of DOE transfers utilizing its production cost estimates at three different rates: 2,800 MTU per year, 2,400 MTU per year, and 10% of U.S. reactor requirements. NAC Report, 3–21 to 3–22. First, NAC applied a methodology it believes approximates ERI's approach to its own cost estimates. Specifically, NAC identified the incremental cost of the last property needed to meet demand in a given year based on total supply and demand. NAC Report, 3–22. NAC then explains that because long-term contracts with fixed pricing mechanisms have allowed some high-cost producers to produce ahead of lower cost supply, it believes a better approach is to base the model on uncommitted supply and demand. NAC then applies a multiplier to these estimates to account for additional incremental costs not included in its site forward production costs estimate. These additional costs include increased site forward costs due to operation at less than nominal capacity, taxes, corporate overhead, and variations in the required rate of return. NAC Report, 3–23. NAC also applies a time shift to the cost trend to account for the fact that producers need a price signal before investing in a new production center—
Cameco attached to its comment a market analysis it commissioned from Ux Consulting Company, LLC (UxC), another uranium market consultant. Comment of Cameco Corp., Attachment, UxC Special Report, “Impact of DOE Inventory Sales on the Nuclear Fuel Markets” (January 2015) (hereinafter “UxC Report”). A summary of UxC's estimates of the effect of DOE transfers on future prices appears in Table 4. UxC explains that it estimated the price effect of DOE transfers using two proprietary econometric models: The U–PRICE model and the SWU–PRICE model. UxC explains that these models were developed using historical data on the nuclear fuel markets collected and compiled by UxC. These two models take into account and quantify the impact of “key factors influencing the markets.” UxC also explains that the two models can be linked to simulate the interrelationship between uranium concentrates and enrichment. UxC Report, 3.
Using these two models, UxC estimates the effects of DOE transfers using two slightly different methodologies. For the first approach, what UxC calls the “incremental approach,” UxC does not include the cumulative impact of previous years' transfers. The second approach, which UxC calls the “total impact approach,”
Using its incremental approach, UxC estimates that between 2012 and 2014 DOE's transfer reduced the spot price by an average of $4.50 per pound and the term price by an average of $2.88 per pound. Using its total impact approach, UxC estimates that between 2008 and 2014 DOE's transfers reduced the spot price by an average of $7.11 per pound and the term price by an average of $5.10 per pound. UxC Report, 6–7.
UxC also estimates the effect of DOE continued transfers at current rates for the period 2015 to 2030. UxC estimates that DOE transfers in the near and medium terms would reduce the spot price by an average of $5.78 per pound. UxC projects that this effect will change slightly in the medium term as market prices start to recover. Specifically, DOE transfers will reduce the spot price between 2018 and 2030 by an average of $4.47 per pound. UxC also notes that the former number is larger relative to the expected price of uranium than the latter number (14.1% versus 7.1%). UxC Report, 10. UxC estimates that DOE transfers in the near and medium terms would reduce the term price by an average of $4.86 per pound. Between 2018 and 2030, DOE transfers are estimated to reduce the term price by an average of $5.30 per pound. Again, the near and medium term impact is larger in relation to the expected price (9.0% versus 7.1%). UxC Report, 11.
UxC puts particular focus on the interrelationship between the uranium and enrichment markets. UxC states that uranium and SWU are “substitutes.” Thus, UxC uses enrichment prices as an input into its uranium concentrate price forecast, and vice versa. UxC Report, 5, 8, 17. DOE understands that this interplay can take several forms. First, to the extent that enrichers have unsold enrichment capacity, they may apply that excess capacity to underfeeding
The other market analyses do not appear to take these interplays into account.
ERI states that realized price varies from one company to another. To estimate the realized prices for U.S. producers, ERI gathered information from public filings representing approximately 95% of U.S. production. 2015 ERI Report, 60–61. ERI does not list the specific dollar figures, but it provides a graph of how realized uranium prices have changed over time for several U.S. producers. This graph shows that realized prices declined for most primary producers in 2014. Even with this decline, ERI estimates that several producers achieved realized prices in 2014 well above the average spot price over the course of the year. At least one producer achieved a realized price well above the average term price for 2014. 2015 ERI Report, 61.
ERI reports that some mining companies have negotiated contracts that base the price paid at least partially on a fixed or base-escalated pricing mechanism. As an example, ERI reports that Cameco has reported that the price sensitivity of its current contract
TradeTech also provides its estimates of the decline in realized price for several producers—both U.S. and foreign. Although TradeTech does not provide specific figures, it provides information on several firms in chart form. It appears from the chart that among the firms for which TradeTech provides estimates, realized prices in 2013 varied from as low as about $38 to as high as about $57. For most producers, there was a decline in realized price between 2011 and 2013. The magnitude of that decline ranges from approximately $12 to as low as $2 or $3. TradeTech Report, 13. TradeTech notes that one reason for declining realized prices is the expiration of long-term contracts signed when prices were substantially higher. TradeTech Report, 12.
NAC similarly notes that some higher cost suppliers have locked in higher prices through fixed price contracts that allow them to realize prices greater than current market prices. NAC Report, 3–22. NAC also provides its estimated supply capability broken down by production cost. The specific figures are withheld from the public version of the NAC Report to protect confidential information. NAC Report, 3–9 to 3–11. Although NAC estimates the effect of DOE transfers on market price, as described above, NAC does not provide specific estimates of the effect on the price realized by individual producers.
EIA reports several figures that are relevant to the prices realized by current production facility operators. EIA reports that the weighted average price in sales directly from U.S. producers in 2013 was $44.65. EIA, 2013 Uranium Production Report, 7 (2014). Similarly, EIA reports that the weighted average price paid by U.S. reactor operators in 2013 was $51.99 per pound U
EIA provides data about sales using different pricing mechanisms. EIA reports that of the approximately 23.3 million pounds U
ERI reports that U.S. production has risen since the DOE uranium inventory transfers in December 2009. In 2014, production was 5% higher compared to the previous year. However, ERI reports that production in 2015 is expected to decline to 2013 levels. 2015 ERI Report, 58. Since 2009, four new operations have begun production: Willow Creek in 2010, Hobson/Palangana in late 2010/early 2011, Lost Creek in 2013, and Nichols Ranch in 2014. ERI also reports that one additional production center is expected to begin operations in 2015. Despite these new operations, ERI notes that several conventional and in-situ leach operations have scaled back operations. 2015 ERI Report, 57.
After reporting this information, ERI presents a chart showing the price levels at the time cutbacks were announced at various U.S. suppliers. ERI reports price points for four operations: $45 per pound in the spot market for conventional mines in Utah; $40 per pound in the spot market for two in-situ-leach operations; and $35 per pound in the spot market for additional conventional mines and a uranium mill. 2015 ERI Report, 62.
ERI then estimates average production costs for existing mines by referring to EIA's published data on production expenditures across the uranium industry. Using a three year average to smooth out year-to-year differences, ERI notes that average production costs have remained fairly constant since 2009 at about $40 per pound. 2015 ERI Report, 63. ERI further reports that it estimates production costs at U.S. in-situ-leach facilities to range from the low $30s to the mid $40s per pound. ERI concludes that the pattern of cutbacks and estimated production costs “do not seem to indicate that adding back the $3 per pound price effect attributed to all DOE inventory material for Scenario 1 would move current prices enough to cause U.S. producers to ramp well field development and production activities back up.” 2015 ERI Report, 64. ERI further notes that the spot price would remain near $40 per pound and “may still not be sufficient for higher cost ISL producers to restart well field development or higher cost conventional mines to resume mining activities, and likely would not have prevented the decisions to cut back when prices declined to $35/lb in mid 2013 and then below $30/lb in mid 2014.” 2015 ERI Report, 64.
The 2014 ERI Report came to similar conclusions using similar methodology. That report noted that despite the overall increase in uranium production in recent years, there have been production cuts at several operations. 2014 ERI Report, 49. ERI also provided a chart of production cut announcements and the then-current spot and term prices. 2014 ERI Report, 58. ERI noted that some uranium producers report costs in public filings, but these costs are not reported consistently across firms and generally
TradeTech predicts a “potential reduction in the number of market participants.” TradeTech Report, 21. It then applies the price effect it estimates for DOE transfers to a hypothetical uranium producer with a production cost of $47.41 per pound. See Figure 15 of TradeTech Report, 22. TradeTech does not apply its estimate to any particular producer. TradeTech does, however, provide estimates for the production costs of several firms in both 2011 and 2013.
As noted above, NAC provides estimated production cost ranges for segments of current supply, but it does not directly estimate the effect of DOE transfers on production levels. NAC Report, 3–9 to 3–11.
UxC does not provide any specific estimates of production levels or costs at currently operating facilities. However, in other reports, UxC outlines detailed estimates for individual mines. UxC Uranium Market Outlook—Q4 2014, 76–78 (2014); UxC Uranium Production Cost Study, 80–84 (Aug. 2013).
In addition to the information described above, DOE has considered information from EIA reports. EIA reports on production in the domestic uranium industry on a quarterly and annual basis. EIA's most recent quarterly report provides preliminary data for 2014. U.S. primary production in 2014 stood at 4.9 million pounds U
DOE has considered information contained from EIA reports relating to employment in the domestic uranium production industry. EIA's most recent Uranium Production Report states that employment stood at 1,156 person-years in 2013, 1,196 person-years in 2012, and 1,191 person-years in 2011. EIA, 2013 Uranium Production Report, 10 (May 2014).
In its analysis, ERI compared EIA's employment figures with changes in uranium spot and term prices. Based on a statistical correlation, ERI infers that employment responds to changes in price. 2015 ERI Report, 73. ERI then uses this correlation to estimate that the decrease in uranium prices over the course of 2014 resulted in a loss of 114 person-years from the 2013 value of 1,156. 2015 ERI Report, 55. ERI then estimates that the price effect it attributes to DOE transfers lowered employment by 41 person years in 2013, and 44 person years in 2014. 2015 ERI Report, 56. ERI further estimates that price effects due to DOE transfers at the levels described in Scenario 1 would result in an average employment loss of 42 person years over the next 10 years. For Scenario 2 and 3, ERI estimated that the average employment loss would be 39 and 21 person years, respectively. Again, it is important to note that this estimate is not a prediction that the uranium production industry under Scenario 1 would shed 42 jobs in 2015 and each subsequent year. Instead, this figure reflects ERI's estimate that total employment in the industry would be higher by an average of 42 person-years without DOE transfers compared to with DOE transfers.
For the 2014 ERI Report, ERI conducted a similar analysis and came to broadly similar conclusions. It estimated an employment loss of 50 person-years for 2013, and an average loss of 44 person years over the course of 2014–2023. 2014 ERI Report, 48.
Though no commenter provided specific numbers, several referred to decreases in employment in recent years caused by decreases in uranium prices. E.g., Comment of Mark S. Pelizza, at 1. Some commenters stated that the uranium production industry has lost half its workforce since May 2012 without providing supporting data. Comment of UPA, at 2; comment of Uranerz, at 2. Although several stated that DOE transfers were causing a portion of these losses, no commenter estimated the proportion of recent employment decreases attributable to DOE transfers. TradeTech Report, 21–22; UxC Report, 5.
As stated above, ERI reports that four new production centers began operation since 2009: one in 2010, one in late 2010/early 2011, one in 2013, and one in 2014. In addition, one new production center—Peninsula's Lance—is expected to begin operations in 2015. 2015 ERI Report, 57. ERI explains that the new production centers may have been able to begin operations only because they were supported by fixed price term contracts that were signed when prices were substantially higher than they are currently—
Based on the above, ERI concludes, “[i]t does not appear that removing the DOE inventory from the market and adding back the $2 to $3 per pound price effect attributed to the DOE inventory material . . . would necessarily increase current prices enough to change the situation regarding the viability of new production centers in the U.S.” 2015 ERI Report, 62. However, ERI reports that some lower cost ISL projects in the U.S. may be able to move forward at current prices. 2015 ERI Report, 62.
The 2014 ERI Report came to similar conclusions. 2014 ERI Report, 57. It noted that despite the overall increase in uranium production in recent years, there have been production cuts at several operations. 2014 ERI Report, 49. ERI also reported the same prices that it believed would be required to motivate further development as it reports the 2015 report. 2014 ERI Report, 57.
NAC provides estimates of the site forward cost including rate of return for ten properties it considers to be under development.
EIA reports that production expenditures were $168.8 million in 2011, $187 million in 2012 and $168 million in 2013—when spread across annual production, these numbers represent approximately $41 per pound in 2011, $43 per pound in 2012 and $36 per pound in 2013. EIA, 2013 Domestic Uranium Production Report, 7, 11 (2014). Including costs related to drilling between 2009 and 2013 raises this figure by about $10–15 per pound, and including land, exploration, and reclamation costs in those years increases these figures by a further $19–24 per pound. EIA, 2013 Domestic Uranium Production Report, 7, 11 (2014).
EIA also provides a table of different facilities and their operating statuses. EIA reports one uranium mill in development as of the 4th quarter 2014—in the “permitted and licensed” stage. EIA, Domestic Uranium Production Report Q4 2014, 4 (January 2015). EIA reports eight in-situ-leach plants under development—two in the “developing” stage, three that are “partially permitted and licensed,” two that are “permitted and licensed,” and one that is “under construction.” EIA, Domestic Uranium Production Report Q4 2014, 5–6 (January 2015).
As described above, ERI notes that US industry production has risen since the start of DOE uranium inventory barters in December 2009. ERI also notes that four new operations began production since 2009, and one additional production center is expected to begin operations in 2015. 2015 ERI Report, 57.
ERI also presents its future expectations regarding demand for uranium. ERI's most recent Reference Nuclear Power Growth forecasts project global requirements to grow to approximately 182 million pounds annually between 2018 and 2020, approximately 15% higher than current requirements. Global requirements are expected to continue to rise to a level of 203 million pounds in 2025, approximately 28% higher than current requirements. 2015 ERI Report, 6–7. ERI presents a graph comparing global requirements, demand, and supply from 2013—2035. That graph shows that global secondary supply and supply from current mines will continue to exceed global reactor demand until approximately 2018. However, if China's practice of purchasing amounts of uranium well in excess of its current reactor demand is included—what ERI terms “Discretionary Strategic” demand—global demand approximately equals supply from secondary supply and currently operating mines. 2015 ERI Report, 9–10. If planned expansions and new mines under development are included, supply is expected to exceed demand until approximately 2024, regardless of whether “Discretionary Strategic” demand is included.
A variety of other sources predict substantial increases in reactor requirements and/or demand.
In addition to a predicted increase in demand, several sources predict a recovery in either spot or term uranium prices—or both. ERI notes that term prices are expected to increase in the future, but does not provide a specific forecast. 2015 ERI Report, 46. ERI's econometric model, however, does show an increase in the spot price. Specifically, ERI's chart forecasts that spot prices will recover over the course of 2015–2018 eventually settling in the $52–57 range after 2019. 2015 ERI Report, 52. TradeTech's forecasted Exchange Value predicts an increase in spot price to approximately $50 as early as June 2016, even with DOE transfers. TradeTech Report, 20. UxC's estimates of the effect of DOE transfers assume that market conditions will improve in the medium term. Specific price levels are withheld from Figures 5 and 6 of the public version to protect confidential information. UxC Report, 10–11. In its annual Uranium Market Outlook, UxC provides a more detailed explanation of its price forecast, which generally predicts an increase in price over the next 10 years. UxC Uranium Market Outlook—Q4 2014, 111–19 (2014).
Finally, DOE recognizes that the predictability of transfers from its excess uranium inventory over time is important to the long-term viability and health of the uranium industries. ERI has noted the importance of predictability “for long-term planning and investment decisions by the domestic industry.” 2015 ERI Report, 100; 2014 ERI Report, 60–61. Some commenters also stated that DOE transfers should be predictable. Comment of UPA, at 2; comment of Cameco, at 2. DOE notes that the upper scenario considered by ERI would represent continued transfers at rates consistent with the May 2014 determination and roughly similar to the May 2012 determination. Compare 2015 ERI Report, 25, with 2014 ERI Report, 28.
In its analysis, ERI estimates the effect of DOE transfers on the market prices for conversion services. To estimate this effect, ERI employed a market clearing price model very similar to what is described above for the uranium market. As with uranium concentrates, ERI constructed individual supply and demand curves for conversion services and estimated the clearing price with and without DOE transfers. 2015 ERI Report, 44. A summary of ERI's estimates of the effect of DOE transfers on the conversion price appears in Table 5.
Applying this approach to the three scenarios listed above, ERI estimates
ERI compares these numbers to the current spot and term price indicators published by TradeTech on January 31, 2015—
For the 2014 ERI Report, ERI conducted a similar market clearing approach for a level of transfers that is equal to Scenario 1 of the 2015 ERI Report. Although that report used slightly older data, the results are very similar. Notably, ERI estimated that the price effect attributable to DOE transfers at the current rates is $0.90 between 2014 and 2023—with prices being $0.90 lower in 2014, 2015, and 2016.
In addition to its estimate of the price effect of DOE transfers on the uranium concentrate market, TradeTech estimates the effect on the price of conversion services. A summary of TradeTech's estimates appears in Table 6. It appears that TradeTech developed this estimate using its econometric Dynamic Pricing Model. TradeTech Report, 14. Using its model, TradeTech estimates that DOE's transfer reduced the spot price by an average of $2.13 per kgU as UF
TradeTech also provides estimates for the effect of DOE transfers of several decreased transfer rates. If DOE transfers decreased to 75% of current levels, TradeTech estimates that the spot price would increase by an average of $0.21 per kgU as UF
UxC's U–PRICE and SWU–PRICE econometric models predict the markets' reaction to changes in supply for the uranium concentrate and enrichment industries. UxC does not directly model the conversion services market. Instead, UxC relies on other evidence to conclude that the price effect of DOE transfers on spot conversion prices have been “at least
ERI does not provide in either report a specific estimate of the change in ConverDyn's realized price due to DOE transfers. However, ERI does note that ConverDyn's realized price is believed to have increased over the past decade, although ERI says unit costs have increased as well. ERI bases its sales revenue assumptions on a sale price of $14 per kgU. This estimate appears to be based predominately on claims by the company that it is operating at a loss. 2015 ERI Report, 70; 2014 ERI Report, 70.
No commenter provides specific information about the current realized prices achieved in the conversion industry, and no commenter directly estimates the effect of DOE's transfers on realized prices. However, some information relevant to ConverDyn's realized price is publicly available.
ConverDyn has stated in the past that the conversion market generally relies on long-term contracts. Declaration of Malcolm Critchley,
DOE does not have complete information regarding the pricing structure of conversion services contracts. ConverDyn has stated in the past that the conversion market generally relies on long-term contracts that are “linked, at least in part, to market prices at the time of the contract.” Declaration of Malcolm Critchley,
In addition to the above, ConverDyn's comment also refers to a document it submitted to DOE in March 2014 that provides some additional information on ConverDyn's contracting practices. Comment of ConverDyn, Enclosure, at 5 n.12. That document was submitted with a request that it be treated as containing proprietary information. Letter from Malcolm Critchley, ConverDyn, to Peter B. Lyons, DOE (March 10, 2014). DOE may consider this document in its deliberations.
There is only one existing conversion facility in the United States, the Metropolis Works facility (MTW) operated by Honeywell International. ConverDyn is the exclusive marketing agent for conversion services from this facility. Comment of ConverDyn, at 1; 2015 ERI Report, 64. The nominal capacity of the Metropolis Works facility is 15 million kgU as UF
In estimating the effect of DOE transfers on ConverDyn's sales volume, ERI assumes that 50% of the material used for cleanup at Portsmouth and 100% of all other DOE material enters the U.S. market. 2015 ERI Report, 65–66. Based on statements from ConverDyn, ERI assumes that ConverDyn's share of the U.S. market for conversion services is 25% and that its share of the international market is 16%. 2015 ERI Report, 68. A summary of ERI's estimates of the effect of DOE transfers on ConverDyn's sales volume appears in Table 7. Using the assumptions described above, ERI estimates that under Scenario 1, DOE transfers decrease ConverDyn's market volume by 0.67 million kgU, or 7.5%. Under Scenario 2, ERI estimates that DOE transfers decrease ConverDyn's market volume by 0.46 million kgU, or 5.3%. Under Scenario 3, ERI estimates that DOE transfers decrease ConverDyn's market volume by 0.08 million kgU, or 1%. 2015 ERI Report, 69–70. As with ERI's price estimates discussed above, these estimates do not suggest that were DOE to transfer uranium in accordance with Scenario 1, ConverDyn would lose the predicted volume of sales. DOE has been transferring at or above the rate of Scenario 1 for nearly three years. On ERI's analysis, the estimated effect has already occurred. Transfers in accordance with Scenario 1 would continue the effect, and transfers in accordance with Scenario 2 or 3 would lead to an increase in ConverDyn's sales volume, of the amount ERI predicts.
Based on its estimate of the effect on ConverDyn's sales volume, ERI also estimates the change in production costs at Metropolis Works due to DOE transfers. A summary of ERI's estimates of the effect of DOE transfers on ConverDyn's production costs appears in Table 8. ERI analyzes two scenarios based on slightly different assumptions about the amount of ConverDyn's costs that are variable. Specifically, ERI calculates production costs based on 80% and 100% fixed costs. 2015 ERI Report, 70.
ERI assumes that ConverDyn's production cost would be $15 per kgU if DOE material was not being introduced into the market. Assuming 100% of Metropolis Works' costs are fixed, DOE transfers would not affect total production costs, but they would increase per unit costs. Specifically, ERI estimates that DOE transfers at the level under Scenario 1 increase production costs to $16.2 per kgU, about 8% higher than without DOE transfers. Transfers at the level under Scenario 2 would cause Metropolis Works production costs to be $15.84, about 5.6% higher than without DOE transfers. Under Scenario 3, production costs would be $15.15, about 1% higher than without DOE transfers. 2015 ERI Report, 70. If 80% of Metropolis Works' costs are fixed, total production costs would be lower with DOE transfers, but per unit production costs would also be lower. Under Scenario 1, production costs would be $15.97, about 6.5% higher than without DOE transfers. Under Scenario 2, production costs would be $15.68, about 4.5% higher than without DOE transfers. Under Scenario 3, production costs would be $15.12, about 1% higher than without DOE transfers. 2015 ERI Report, 71.
The 2014 ERI Report conducted a similar analysis using slightly different assumptions regarding ConverDyn's pre-Fukushima production and current market share. Specifically, ERI calculated the effect of DOE transfers assuming two different pre-Fukushima production levels: 10 million kgU and 12 million kgU. With these assumptions, ERI estimated ConverDyn's current sales volume at 7.50 million kgU and 9.00 million kgU respectively. 2014 ERI Report, 66, 68. ERI also calculated the effect of DOE transfers assuming two different assumptions about ConverDyn's share of the U.S. Market: 25% and 30%. 2014 ERI Report, 65–66. Based on these assumptions ERI estimates that DOE transfers decrease ConverDyn's market volume by between 0.60 and 0.72 million kgU. 2014 ERI Report, 66, 68. This represents between 6.9% and 8.1% of ConverDyn's estimated sales volume. 2014 ERI Report, 67, 69.
On production cost, ERI similarly estimates based on 80% and 100% fixed costs. As with sales volume, ERI conducts this calculation twice: once assuming a volume of 7.50 million kgU, and once assuming a volume of 9.00 million kgU. For the 7.50 million kgU scenario, ERI estimates that if production costs are 100% fixed, DOE transfers cause unit production costs to increase about 8% to $16.20 per kgU. If production costs are 80% fixed, DOE transfers cause unit production costs to increase about 6.4% to $15.96 per kgU. For the 9.00 million kgU scenario, ERI estimates that production costs would increase by 7.8% for 100% fixed costs and 6.2% for 80% fixed costs. 2014 ERI Report, 70–71.
ConverDyn's comment in response to the RFI does not provide a separate estimate of the effect of DOE transfers on its sales volume. ConverDyn refers to the relevant sections of the 2014 ERI report regarding its sales volume and production costs. Comment of ConverDyn, Enclosure, at 5. With respect to the 2014 ERI Report, ConverDyn does not refute or confirm the assumptions ERI used in its analysis regarding ConverDyn's sales volume, market share, or production costs. ConverDyn's comment also refers to a document it submitted to DOE in March 2014. Comment of ConverDyn, Enclosure, at 5 n.12. That document was submitted with a request that it be treated as containing proprietary information. Letter from Malcolm Critchley, ConverDyn, to Peter B. Lyons, DOE (March 10, 2014). That document provides estimates of the effect of DOE transfers on ConverDyn's sales volume and profits, but it does not provide financial information demonstrating that those effects have occurred or supporting analysis explaining why a given change in ConverDyn's sales or revenue should be attributed to DOE transfers.
In addition to the above, ConverDyn notes in its comment that the Metropolis Works facility ceased production beginning in January 2015 for a period of approximately three months—two months longer than usual. ConverDyn states that this was necessitated by “the continued depressed state of the conversion market.” Although ConverDyn refers to the displacement of conversion sales by DOE's transfers, it acknowledges that DOE's transfers are not the sole cause of the lengthening of Metropolis Works facility's annual shutdown. ConverDyn does not include supporting data or otherwise provide a proportionate breakdown of the impact of DOE material versus other factors in causing this shutdown. Comment of ConverDyn, Enclosure, at 4.
The UxC Report does not provide estimates for production levels or production costs at individual facilities, but its report does note that the cost for primary producers is “known to be in the range of $10–$15/kgU.” UxC Report, 15. In a separate publication, UxC provides more detailed estimates of both current production levels and projected future production for individual facilities. Market share can be determined by comparing production levels to those of other primary producers and secondary sources. UxC Conversion Market Outlook—December 2014, 45–47 (2014).
Traxys provides some information relevant to DOE's analysis of the assumptions ERI uses in its calculations. Traxys explains that in selling material obtained from Fluor-B&W Portsmouth, it pursues a goal to sell at least 50% of the material to non-U.S. customers. Traxys states that it has consistently met this goal. Comment of Traxys, at 1. Traxys further explains that in 2014 no
ERI notes that Metropolis Works restarted after an extended shutdown in summer 2013 with approximately 270 employees. Prior to the 2012–2013 shutdown, ERI estimates that the facility employed approximately 334 people. As this change coincided with a change in long-term production volume, ERI concludes that is unlikely that 100% of Metropolis Works' production costs are fixed. 2015 ERI Report, 72–73; 2014 ERI Report, 71. Although it does not provide specific estimates, ERI states that “[a] portion of the reduction in work force at Metropolis Works may be associated with the introduction of DOE inventory into the market.” However, ERI also notes that several other factors likely played a part as well. 2015 ERI Report, 73; 2014 ERI Report, 72. ConverDyn does not provide a separate estimate of decreased employment levels due to DOE transfers; instead ConverDyn referred to the relevant sections of the 2014 ERI Report. Comment of ConverDyn, Enclosure, at 5.
Neither ERI nor any of the commenters provide an estimate of the effect of DOE transfers on new facility development or capital improvement plans. However, DOE understands that several conversion services companies are undertaking these or related activities.
Although there are several large-scale development projects currently planned or underway outside the United States—namely AREVA's COMURHEX II modernization project and TVEL's plan for a new facility at SCC—DOE is not aware of any such plans in the United States. See Eileen Supko & Thomas Meade, “New facilities are on the horizon,”
Metropolis Works has, however, undertaken substantial capital expenditures at its existing facility in recent years. Honeywell has stated that it has invested “nearly $177 million over the past 10 years in capital improvements, including $50 million in safety projects.” “About Us,” Honeywell,
In terms of future plans, Metropolis Works announced in November 2014 that it would be shutting down for approximately 90 days beginning in early January 2015. Honeywell noted that it would use the extended shutdown to make updates and capital improvements. Jim Pritchett, Honeywell Metropolis Works, Letter to Employees (Nov. 20, 2014), available at
ERI's most recent Reference Nuclear Power Growth forecasts project global requirements to grow to approximately 67.2 million kgU by 2020, approximately 20% higher than current requirements. Global requirements are expected to continue to rise to a level of 91.4 million kgU by 2035, approximately 63% higher than current requirements. 2015 ERI Report, 13. ERI presents a graph comparing global requirements, demand, and supply from 2013—2035. That graph forecasts that global secondary supply and supply from primary converters will continue to exceed global demand until at least 2025. Beyond that point, supply generally keeps pace with growth in requirements. 2015 ERI Report, 14.
Although not focused on conversion, the requirements forecasts noted above in section III.A.6 are also relevant to the conversion industry. In general, requirements and/or uranium concentrate demand forecasts should also apply to demand for conversion services. However, there may be some small differences due to strategic and discretionary inventory building. For example, China has been purchasing strategic supply well in excess of its requirements. Those purchases have come in the form of U
No other commenter provided specific projections about future conversion requirements, demand, or prices. However, DOE has some additional information not submitted in response to the RFI. In its December 2014 Conversion Market Outlook, UxC predicts significant increases in both requirements and demand in the long-term. UxC Conversion Market Outlook—December 2014, 40, 44 (2014). UxC also provides a more detailed explanation of its price forecast, which generally predicts an increase in price over the next 10 years. UxC Conversion Market Outlook—December 2014, 82, 85 (2014).
Finally, as with uranium concentrates, DOE recognizes that the predictability of transfers from its excess uranium inventory over time is important to the long-term viability and health of the uranium conversion industry. Again, DOE notes that the upper scenario considered by ERI would represent continued transfers at rates consistent with the May 2012 and May 2014 determinations. Compare 2015 ERI Report, 25, with 2014 ERI Report, 28.
In its analysis, ERI also estimated the effect of DOE transfers on the market prices for enrichment services. To estimate this effect, ERI employed a market clearing price model similar to what is described above for the uranium market. As with uranium concentrates and conversion, ERI constructed individual supply and demand curves for enrichment services and estimated the clearing price with and without DOE transfers. 2015 ERI Report, 44. A summary of ERI's estimates of the effect of DOE transfers on the market price for SWU appears in Table 9.
Applying this approach to the three scenarios listed above, ERI estimates that DOE transfers at the rate of 2,705 MTU per year would cause the price of enrichment services to be, on average, $4.50 lower between 2015 and 2024—with prices being $5.90 and $3.80 lower in 2015 and 2016 specifically. 2015 ERI Report, 46. For DOE transfers at a rate of 1,855 MTU per year, ERI estimates that prices would be, on average, $3.60 lower between 2015 and 2024—with prices being $5.10 and $3.00 lower in 2015 and 2016 specifically. If DOE ceased transfers under these two programs, ERI estimates that prices would be, on average, $1.70 lower between 2015 and 2024—with prices being $3.20 and $1.70 lower in 2015 and 2016 specifically.
ERI compares these numbers to the current spot and term price indicators published by TradeTech on January 31, 2015—
For the 2014 ERI Report, ERI conducted a similar market clearing approach for a level of transfers that is equal to Scenario 1 of the 2015 ERI Report. Although that report used slightly older data, the results are similar. Notably, ERI estimated that the price effect attributable to DOE transfers at the current rates is $4.00 between 2014 and 2023—with prices being $5.20, $5.70, and $3.60 lower in 2014, 2015, and 2016, respectively.
In addition to its estimate of the price effect of DOE transfers on the uranium concentrate market, UxC estimates the effect on the price of enrichment services using its proprietary U–PRICFE and SWU–PRICE models. UxC Report, 5. As with its uranium concentrate estimates, UxC estimates the impact using two different methodologies, an “incremental approach” and a “total impact approach.”
Using its incremental approach, UxC estimates that between 2012 and 2014 DOE's transfers reduced the spot price by an average of $7.49 per SWU and the term price by an average of $5.37 per SWU. Using its total impact approach, UxC estimates that between 2008 and 2014 DOE's transfers reduced the spot price by an average of $9.19 per SWU and the term price by an average of $6.96 per SWU. UxC Report, 8–9.
UxC also estimates the effect of DOE continued transfers at current rates for the period 2015 to 2030. A summary of UxC's estimates of the effect of DOE transfers on future enrichment prices appears in Table 10. UxC estimates that DOE transfers in the near and medium terms would reduce the spot price by an average of $5.31 per SWU. UxC projects that this effect will change slightly in the medium term as market prices start to recover. Specifically, DOE transfers will reduce the spot price between 2018 and 2030 by an average of $4.86 per SWU. UxC also notes that the former number is larger relative to the expected price of enrichment than the latter number (5.9% versus 3.8%). UxC Report, 12. UxC estimates that DOE transfers in the near and medium terms would reduce the term price by an average of $5.50 per SWU. Between 2018 and 2030, DOE transfers are estimated to reduce the term price by an average of $5.00 per SWU. Again, the near and medium term impact is larger in relation to the expected price (5.6% versus 3.6%). UxC Report, 11.
As mentioned above, a change in market prices for uranium concentrates and conversion services may also affect enrichers. URENCO has stated that at a small amount of its capacity is devoted to underfeeding. Comment of URENCO, at 3. ERI notes that URENCO estimates it is using 10–15% of its capacity for underfeeding. 2015 ERI Report, 75. Thus, to the extent that URENCO utilizes or resells the natural uranium hexafluoride that results from underfeeding, the market prices for uranium and conversion could be relevant to its business decisions.
There is only one currently operating enrichment facility in the United States, the URENCO USA (UUSA) gas centrifuge facility in New Mexico. No commenter provides information about the realized price achieved by URENCO or the effect of DOE transfers on that price. However, other sources provide some relevant information.
In recent years, the vast majority of SWU has been sold on the term market. UxC Enrichment Market Outlook—Q4 2014, 17, 20 (2014). ERI estimates that more than 95% of enrichment requirements are covered under long-term contracts. 2015 ERI Report, 74. Even in the term market, contracting volume is down compared to levels prior to 2010. UxC Enrichment Market Outlook—Q4 2014, 9, 21 (2014). Long-term contracts for SWU last for 10 or more years, in some cases and in some cases 15 or more years. UxC Enrichment Market Outlook—Q4 2014, 100 (2014).
EIA reports that in 2013, the average price paid for SWU was $142.22. EIA, Uranium Marketing Report, 7 (2014). This is well above the average market prices for 2013, approximately $110 in the spot market and $120 in the term market according to UxC.
URENCO's most recent financial statements indicate that at least a portion of its contract portfolio “extend beyond 2025.” URENCO Limited, Interim Financial Statements for the 6 Months Ended 30 June 2014, at 6, available at
As noted above, URENCO has stated that a small amount of its capacity is devoted to underfeeding. Comment of URENCO, at 3.
URENCO reports that the nameplate capacity for the UUSA facility is 3.7 million SWU. Comment of URENCO, at 1. URENCO has also stated that construction of additional centrifuges will continue until the facility reaches 5.7 million SWU. “About Us, URENCO USA,” URENCO,
Due to the nature of gas centrifuges, it is highly unlikely that UUSA will decrease production of SWU. As URENCO states, due to the low level of electricity required to run the centrifuges, slowing production would have almost no effect on operating expenses. Furthermore, stopping and restarting a centrifuge may damage the equipment. Comment of URENCO, at 3.
ERI does not provide an estimate of the change in employment due to DOE transfers in the enrichment industry. No commenter references changes in employment in the enrichment industry. URENCO states that its business is essentially fixed-cost and makes no reference to changes in employment.
URENCO recently completed “Phase II” of its expansion plans, bringing the capacity of its facility to 3.7 million SWU. “Phase II Completion,” URENCO (Apr. 9, 2014),
DOE is aware of several other planned or proposed enrichment facilities in the U.S., namely, AREVA's Eagle Rock
The Eagle Rock Enrichment Facility would use gas centrifuge technology and would have a capacity of approximately 3.3 million SWU. “Eagle Rock Enrichment Facility,” AREVA,
The proposed American Centrifuge Plant would use gas centrifuge technology and would have a capacity of approximately 3.8 million SWU. “USEC Inc. Gas Centrifuge,” U.S. NRC,
Global Laser Enrichment, a venture of GE-Hitachi and Cameco, has proposed an enrichment plant that would use laser enrichment technology developed by Silex Systems, an Australian company. The proposed facility in Wilmington, NC would have a capacity of about 6 million SWU. GLE License Application, Rev. 7, U.S. NRC, Docket 70–7016, at 1–16 (August 20, 2012), available at
ERI's most recent Reference Nuclear Power Growth forecasts project global requirements to grow to approximately 59 million SWU between 2021 and 2025, approximately 31% higher than current requirements. Global requirements are expected to continue to rise to a level of 74 million SWU between 2031 and 2035, approximately 64% higher than current requirements. 2015 ERI Report, 13. ERI presents a graph comparing global requirements, demand, and supply from 2013–2035. That graph shows that global supply will continue to significantly exceed global demand over the long term. 2015 ERI Report, 16.
Although not focused on enrichment, the requirements forecasts noted above in section III.A.6 are also somewhat relevant to the enrichment industry. In general, requirements and/or uranium concentrate demand forecasts should also apply to demand for low enriched uranium. As with conversion, there may be some small differences due to strategic and discretionary inventory building. For example, China has been purchasing strategic supply well in excess of its requirements. Those purchases have come in the form of U
In addition to demand for LEU, higher demand for uranium concentrates can affect demand for enrichment because of the relationship described above between natural uranium and enrichment as inputs for producing enriched uranium product. In the medium to long term, supply from current mines will cease to exceed demand. Meanwhile, requirements for LEU will continue to significantly exceed enrichment supply. As prices for uranium concentrates and conversion increase relative to SWU prices, it may become more economical to re-enrich high-assay tails. In this vein, ERI suggests that enrichers will continue to redirect capacity to underfeeding and that Rosatom will continue to re-enrich tails. 2015 ERI Report, 16.
No other commenter provides specific projections about future enrichment requirements, demand, or prices. In its Uranium Enrichment Outlook for the 4th quarter of 2014, UxC predicts significant increases in both requirements and demand in the long-term. UxC Enrichment Market Outlook—Q4 2014, 36, 38 (2014). UxC also provides a more detailed explanation of its price forecast, which generally predicts an increase in price over the next 10 years. UxC Enrichment Market Outlook—Q4 2014, 91–94 (2014).
Finally, as with uranium concentrates and conversion services, DOE recognizes that the predictability of transfers from its excess uranium inventory over time is important to the long-term viability and health of the uranium enrichment industries. Again, DOE notes that the upper scenario considered by ERI would represent continued transfers at rates consistent with the May 2012 and May 2014 determinations. Compare 2015 ERI Report, 25, with 2014 ERI Report, 28.
DOE believes it will be possible to identify a rate of transfers that will not have an adverse material impact on domestic uranium industries. DOE therefore proposes to issue a new Secretarial Determination, pursuant to 3112(d) of the USEC Privatization Act, that transfers of uranium for cleanup services at the Portsmouth Gaseous Diffusion Plant and for down-blending of HEU to LEU will not have an adverse material impact on the domestic production, conversion, or enrichment industry. In preparing this determination, DOE may use the six factors proposed above as an analytical framework for assessing the potential impacts of DOE transfers for each industry.
DOE continues to deliberate over what rate of transfers would be appropriate for such a determination. Commenters suggested a range of options. Many commenters indicated that a rate of 5 million pounds total of
DOE is also considering whether to include additional features in a determination that might change how a given set of transfers affects domestic industries. Some commenters proposed a scheme of matched sales, in which DOE would transfer a given tranche of uranium only after ensuring that a buyer had bought an equivalent quantity, at a comparable price, from U.S. producers. Other commenters asked that DOE transfer uranium in such a way that the uranium appears on markets only in the long term. The commenters do not appear to be suggesting that DOE simply not transfer uranium until some future date; rather, they contemplate that DOE would transfer uranium in the near term but with some restriction on use or availability that prevents the uranium from displacing other supply sources for some number of years. Yet the transfers DOE is considering would be part of barter transactions in exchange for services obtained essentially contemporaneously. In considering commenters' suggestions about long-term as compared to short-term availability of DOE-sourced uranium, DOE will need to assess whether the markets could support the provision of services in the near term to be compensated by uranium available only in the long term. In light of the forecast increases in the price of uranium concentrates, it is conceivable that transactions to bridge the gap from near- to long-term could be financially justifiable for some entities. DOE will continue to analyze this possibility.
To enable the Secretary to make a determination as expeditiously as possible, DOE is setting a deadline of April 6, 2015, for all comments to be received. DOE invites all interested parties to submit, in writing, comments and information on the factors described above, the information and documents made available through this notice, and the summary of information considered. DOE intends to make all comments received publicly available. Any information that may be confidential and exempt by law from public disclosure should be submitted as described below.
Pursuant to 10 CFR 1004.11, any person submitting information he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery/courier two well-marked copies: One copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination. Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission (Commission or FERC) regulations contained in the Code of Federal Regulations (CFR) (18 CFR part 380), the Office of Energy Projects has reviewed the applications for license for the York Haven Hydroelectric Project (FERC No. 1888), the Muddy Run Pumped Storage Project (FERC No. 2355), and the Conowingo Hydroelectric Project (FERC No. 405) and prepared a final multi-project environmental impact statement (EIS).
The existing York Haven Project is located on the Susquehanna River at river mile (RM) 55 in the city of York, in York, Dauphin, and Lancaster Counties, Pennsylvania. The project does not occupy any federal lands. The Muddy Run and Conowingo Projects are located on the Susquehanna River at RM 22 and RM 10, respectively, in Lancaster and York Counties, Pennsylvania, and Cecil and Harford Counties, Maryland. Conowingo Pond, the reservoir for the Conowingo Project, acts as the lower reservoir for the Muddy Run Project. The Muddy Run Project also includes an upper reservoir for pumped storage operation. The projects do not occupy any federal lands.
The final EIS contains staff's analysis of the applicants' proposals and the alternatives for relicensing the York Haven, Muddy Run, and Conowingo Projects. The final EIS documents the views of governmental agencies, non-governmental organizations, affected Indian tribes, the public, the license applicants, and Commission staff.
A copy of the final EIS is available for review at the Commission or may be viewed on the Commission's Web site at
You may also register online at
For further information, please contact Emily Carter at (202) 502–6512 or at
This is a supplemental notice in the above-referenced proceeding, of California Clean Power Corp.'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 Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
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 April 1, 2015.
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
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
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.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by 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:
In an order issued on October 8, 2004, the Commission set forth a guideline for Other Federal Agencies (OFAs) to submit their costs related to Administering Part I of the Federal Power Act.
The Commission will hold a technical conference for reviewing the submitted OFA costs. The purpose of the conference will be for OFAs and licensees to discuss costs reported in the forms and any other supporting documentation or analyses.
The technical conference will be held on March 26, 2015, in Conference Room 3M–2B at the Commission's headquarters, 888 First Street NE., Washington, DC. The technical conference will begin at 2:00 p.m. (EST).
The technical conference will also be transcribed. Those interested in obtaining a copy of the transcript immediately for a fee should contact the Ace-Federal Reporters, Inc., at 202–347–3700, or 1–800–336–6646. Two weeks after the post-forum meeting, the transcript will be available for free on the Commission's e-library system. Anyone without access to the Commission's Web site or who has questions about the technical conference should contact Norman Richardson at (202) 502–6219 or via email at
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to
1. By letter filed September 29, 2014, Ampersand Tannery Island Hydro, LLC informed the Commission that the exemption from licensing for the Tannery Island Project, FERC No. 4908, originally issued July 11, 1983,
2. Ampersand Tannery Island Hydro, LLC is now the exemptee for the Tannery Island Project, FERC No. 4908. All correspondence should be forwarded to: Mr. Jingdong Huang, Asset Manager, Ampersand Tannery Island Hydro, LLC, 717 Atlantic Avenue, Suite 1A, Boston, MA 02111.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on March 3, 2015, Texas Eastern Transmission, LP (Texas Eastern), P.O. Box 1642, Houston, TX 77251–1642 filed in Docket No. CP15–103–000, a prior notice request pursuant to sections 157.205 and 157.216 of the Commission's regulations under the Natural Gas Act for authorization to abandon by sale to EnCrescent, LLC certain pipeline facilities and to remove related ancillary facilities located in Harrison County, Texas and Caddo Parish, Louisiana, all as more fully set forth in the application which is on file with the Commission and open to public inspection. Specifically, Texas Eastern proposes to (i) abandon by sale approximately 4 miles of its lateral Line 1–N–1, approximately 2 miles of lateral Line 1–N–1–B, approximately 0.3 miles of lateral Line 1–N–2 and approximately 0.1 miles of lateral Line 1–N–4, and (ii) remove related ancillary facilities. The project will have no impact on the certificated capacity of Texas Eastern's system and there will be no reduction in service to existing customers as a result of the proposed abandonment activities.
The filing may also be viewed on the web at
Any questions regarding this Application should be directed to Lisa A. Connolly, General Manager, Rates & Certificates or Estela D. Lozano, Manager, Rates, Texas Eastern Transmission, LP, P.O. Box 1642, Houston, TX 77251–1642, by phone at (713) 627–4102 or (713) 627–5947, or by email at
Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenter's will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with he Commission's environmental review process. Environmental commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
Purpose of Meeting: To discuss the applicant's responses (filed on April 2, 2014 and December 2, 2014) to the Commission's Additional Information Requests filed on August 26, 2014 and December 31, 2013, and other outstanding questions following the Commission's review of the N.E.W. Hydro's application, filed on February 28, 2013.
A summary of the meeting will be prepared and filed for the project's records.
All local, state, and Federal agencies, Indian tribes, and other interested parties are invited to participate by phone. Please contact Chelsea Hudock at
Environmental Protection Agency (EPA).
Notice; Extension of nomination period.
This document extends the deadline for submitting a nomination to serve on the Pesticide Program Dialogue Committee (PPDC) for 30 days from the original deadline of March 16, 2015 to April 16, 2015. The nomination period is being extended to ensure the Agency receives a diverse range of qualified candidates.
Nominations must be received on or before April 16, 2015.
Follow the detailed instructions provided in the
Dea Zimmerman, Designated Federal Officer for the PPDC, telephone number: (312) 353–6344; email address:
In the
To submit nominations, please follow the detailed instructions provided under
7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice of open meeting of the Environmental Financial Advisory Board.
The United States Environmental Protection Agency's (USEPA) Environmental Financial Advisory Board (EFAB) will hold a public meeting on May 14–15, 2015. EFAB is an EPA advisory committee chartered under the Federal Advisory Committee Act (FACA) to provide advice and recommendations to EPA on creative approaches to funding environmental programs, projects, and activities.
The purpose of this meeting is to hear from informed speakers on environmental finance issues, proposed legislation, and EPA priorities; to discuss activities, progress, and preliminary recommendations with regard to current EFAB work projects; and to consider requests for assistance from EPA offices.
Environmental finance discussions and presentations are expected on, but not limited to, the following topics: Water infrastructure financing; financing operations and maintenance at green sites; and EPA's Water Infrastructure and Resiliency Financing Center.
The meeting is open to the public; however, seating is limited. All members of the public who wish to attend the meeting must register, in advance, no later than Friday, May 1, 2015. Registration is required for all members of the public to assure an expeditious security process.
The full board meeting will be held on Thursday, May 14, 2015 from 1:00 p.m. to 5 p.m., EDT and Friday, May 15, 2015 from 9:00 a.m. to 5 p.m., EDT.
District of Columbia Water and Sewer Authority, 5000 Overlook Drive, Washington, DC 20005.
For information on access or services for individuals with disabilities, or to request accommodations for a person with a disability, please contact Sandra Williams, U.S. EPA, at (202) 564–4999 or
Environmental Protection Agency.
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces a meeting of the Drinking Water Committee (DWC) to review the EPA's
The public meeting will be held on April 29, 2015, from 9:00 a.m. to 5:00 p.m. (Eastern Standard Time) and on April 30, 2015, from 9:00 a.m. to 3:30 p.m. (Eastern Standard Time).
The public meeting will be held at the George Washington University, Milken Institute School of Public Health, 950 New Hampshire Ave. NW., 7th Floor, Washington, DC 20052.
Any member of the public who wants further information concerning this public meeting may contact Ms. Stephanie Sanzone, Designated Federal Officer (DFO) for the Drinking Water Committee, EPA Science Advisory Board Staff Office (1400R), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; by telephone at (202) 564–2067 or via email at
EPA's Office of Water requested that the SAB Drinking Water Committee review the
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before May 18, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418–2918.
Federal Communications Commission.
Federal Deposit Insurance Corporation (FDIC).
Notice of open meeting.
In accordance with the Federal Advisory Committee Act, notice is hereby given of a meeting of the FDIC Advisory Committee on Community Banking, which will be held in Washington, DC. The Advisory Committee will provide advice and recommendations on a broad range of policy issues that have particular impact on small community banks throughout the United States and the local communities they serve, with a focus on rural areas.
Thursday, April 2, 2015, from 9 a.m. to 3 p.m.
The meeting will be held in the FDIC Board Room on the fourth floor of the FDIC Building located at 550 17th Street NW., Washington, DC.
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Committee Management Officer of the FDIC, at (202) 898–7043.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime Commission.
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the HOLA (12 U.S.C. 1467a(e)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 10(c)(4)(B) of the HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 13, 2015.
A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101–2566:
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than April 2, 2015.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198–0001:
1.
Board of Governors of the Federal Reserve System, March 13, 2015.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 13, 2025.
A. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480–0291:
1.
B. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President) 2200 North Pearl Street, Dallas, Texas 75201–2272:
1.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing an opportunity for public comment on our proposed collection of certain information. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by May 18, 2015.
Submit electronic comments on the collection of information to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE–14526, Silver Spring, MD 20993–0002,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (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, when appropriate, and other forms of information technology.
Section 412(h)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 350a(h)(1)) exempts an infant formula which is represented and labeled for use by an infant with an inborn error of metabolism, low birth weight, or who otherwise has an unusual medical or dietary problem from the requirements of section 412(a), (b), and (c) of the FD&C Act. These formulas are customarily referred to as “exempt infant formulas.” In the
In the
The proposed information collection seeks OMB approval of the recordkeeping recommendations of the draft guidance. Our estimate of the burden of the recordkeeping recommendations includes the one-time burden of developing production and in-process control systems and the annual burdens of developing and maintaining production aggregate production and control records, records pertaining to the distribution of infant formula, and records pertaining to regularly scheduled audits. Included in the burden estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information.
FDA estimates the burden of this collection of information as follows:
The total one-time estimated burden imposed by this collection of information is 19,320 hours. The total annual estimated burden imposed by this collection of information is 6,328.06 hours. There are no capital costs or operating and maintenance costs associated with this collection of information. The estimated burden for the draft guidance is based on “Evaluation of Recordkeeping Costs for Food Manufacturers,” Eastern Research Group Task Order No. 5, Contract No. 223–01–2461. FDA estimates that firms will be able to fulfill recordkeeping requirements with existing record systems; that is, FDA estimates that it will not be necessary for infant formula firms to invest in new recordkeeping systems.
As of the beginning of 2015, five manufacturers produce exempt infant formulas that are marketed in the United States. Four out of these five infant formula manufacturers produce both exempt and non-exempt infant formulas, with both types of infant formula produced using the same production lines and equipment. Our experts believe that manufacturing practices are similar for both exempt and non-exempt infant formulas. Furthermore, given expert estimations of industry standard practices, it is estimated that the manufacturer that only produces exempt infant formula has practices comparable to those manufacturers producing both exempt and non-exempt infant formulas (Ref. 1). Together, these 5 manufacturers produce exempt infant formula at 12 plants.
The number of recordkeepers in column 3 of table 1 is based on FDA's expert estimation of the number of plants that may not already be adhering to the relevant recordkeeping provisions of the final rule. The Regulatory Impact Analysis for the final rule (79 FR 33057) estimated that 25 percent of all infant formula plants manufacturing non-exempt infant formula were not currently adhering to the recordkeeping provisions under § 106.100. Although such recordkeeping requirements are now effective for manufacturers of non-exempt infant formulas, and manufacturers of exempt infant formulas may have implemented similar procedures for their exempt infant formulas, it is estimated conservatively that this same proportion (25 percent, or 3 out of 12 plants that manufacture exempt infant formula) are not currently adhering to the recordkeeping provisions, and unless otherwise specified, burdens are estimated based on these 3 plants. Furthermore, we estimate that plants will collect the same information across the various exempt infant formulas produced by each firm.
For records pertaining to production and in-process controls, FDA estimates that, at most, three plants do not currently develop production records as specified under §§ 106.6(c)(5) and 106.100(e)(1) and (e)(3). A team of two senior validation engineers (or other similarly skilled employees) per plant (2 workers per plant × 3 plants = 6 workers) would each need to work 20 hours to provide sufficient initial baseline records and documentation to develop records pertaining to production and in-process controls, for an industry total of 120 hours (2 workers per plant × 3 plants × 20 hours per worker = 120 hours), as presented in line 1 of table 1.
For the recordkeeping specified under § 106.35(c), in accordance with § 106.100(f)(5), FDA estimates that a team of 10 senior validation engineers (or other similarly skilled employees) per plant would need to work full time for 16 weeks (16 weeks/person × 40 work hours/week = 640 work hours per person) to provide sufficient initial records and documentation pertaining to controls intended to prevent adulteration due to automatic equipment. The total burden for 10 senior validation engineers each working 640 hours is 6,400 per plant in the first year (10 senior validation engineers × 640 hours = 6,400). For three plants, the total one-time hourly burden is 3 plants × 6,400 hours per plant = 19,200 hours, as presented in line 2 of table 1.
For the testing specified under § 106.20(f)(3), manufacturers of exempt infant formulas should conduct water testing with appropriate frequency to meet Environmental Protection Agency primary standards for drinking water (40 CFR parts 9, 141, and 142), but shall conduct these tests at least annually for chemical contaminants, every 4 years for radiological contaminants, and weekly for bacteriological contaminants. FDA estimates that it is part of normal business practice for exempt infant formula plants to test for chemical contaminants and keep records of those tests on a regular basis; therefore, this is a new collection of information that does not present a burden (Ref. 1).
It is estimated that the recommendation to manufacturers of exempt infant formulas to test at least every 4 years for radiological contaminants would represent a new burden for all 12 infant formula plants (Ref. 1). In addition, it is estimated that collecting water for this testing takes between 1 and 2 hours (Ref. 1). For the purposes of this analysis, it is conservatively estimated that water collection takes, on average, 1.5 hours and that water collection occurs separately for each type of testing. It is estimated that performing the test (collecting the information) will take 1.5 hours per test, every 4 years. Therefore, 1.5 hours per plant × 12 plants = 18 total hours, every 4 years, or 4.5 hours per year, as seen in line 3 of table 1.
Furthermore, the draft guidance recommends that manufacturers of exempt infant formula make and retain records of the frequency and results of water testing as specified under §§ 106.20(f)(4) and 106.100(f)(1). For the 12 plants that are estimated not to currently test for radiological contaminants, this burden is estimated to be 5 minutes per record every 4 years. Therefore, 0.08 hour per record × 12 plants = 0.96 hour every 4 years for the maintenance of records of radiological testing, or 0.24 hours per year, as seen on line 4 of table 1.
It is estimated that the recommendation to test weekly for bacteriological contaminants is a new burden for three infant formula plants. It is estimated that performing the test (collecting the information) will take 5 minutes per test once a week. Annually, this burden is 0.08 hour × 52 weeks = 4.16 hours per year per plant, and 4.16 hours per plant × 3 plants = 12.48 total annual hours, as seen on line 5 of table 1. Furthermore, for the three plants that are estimated to not currently test weekly for bacteriological contaminants, this burden is estimated to be 5 minutes per record, every week. Therefore, 0.08 hour per record × 52 weeks = 4.16 hours per plant for the maintenance of records of bacteriological testing. Accordingly, 4.16 hours per plant × 3 plants = 12.48 annual hours, as seen on line 6 of table 1.
The draft guidance recommends that manufacturers of exempt infant formulas calibrate certain instruments against a known reference standard and that records of these calibration activities be made and retained, as specified in §§ 106.30(d)(1) and 106.100(f)(2). FDA estimates that one senior validation engineer (or other similarly skilled employee) for each of the three (at most) plants would need to spend about 13 minutes per week to conduct the ongoing calibration recordkeeping. Therefore, 3 recordkeepers × 0.21 hours per week per
The draft guidance recommends that manufacturers of exempt infant formula make and retain records of the temperatures of each cold storage compartment as specified in §§ 106.30(e)(3)(iii) and 106.100(f)(3). Based on expert opinion, FDA estimates that three (at most) plants are not currently conducting recordkeeping, and that at each of these three plants, conducting this recordkeeping would take one senior validation engineer (or other similarly skilled employee) about 13 minutes per week. Therefore, 3 recordkeepers × 0.21 hours per week per recordkeeper = 0.63 hours per week; 0.63 hours per week × 52 weeks = 32.76 hours as the total industry annual burden, as presented in line 8 of table 1.
The draft guidance recommends the making and retention of records of ongoing sanitation efforts as specified under §§ 106.30(f)(2) and 106.100(f)(4). Based on expert opinion, FDA estimates that three (at most) plants are not currently making and retaining these records, and that at each of these three plants, it would take one senior validation engineer (or other similarly skilled employee) 0.19 hours per week to make and retain these records. Therefore, 3 recordkeepers × 0.19 hours per week per recordkeeper = 0.57 hours per week; 0.57 hours per week × 52 weeks = 29.64 hours as the total industry annual burden, as presented in line 9 of table 1.
There will be annual recordkeeping associated with recommendations for preventing adulteration from equipment, as specified under §§ 106.35(c) and 106.100(f)(5). It is estimated that one senior validation engineer (or other similarly skilled employee) per plant would need to work 10 hours per week (520 work hours per year) to meet the ongoing recordkeeping recommendation. For the estimated three (at most) plants not conducting this recordkeeping, the total annual burden is 520 hours per plant × 3 plants = 1,560 annual hours, as shown in line 10 of table 1. In addition, this guidance recommends that an infant formula manufacturer revalidate its systems when it makes changes to automatic equipment. FDA estimates that such changes are likely to occur twice a year to any aspect of the plant's system, and that on each of the two occasions, a team of four senior validation engineers (or other similarly skilled employees) per plant would need to work full time for 4 weeks (4 weeks × 40 hours per week = 160 work hours per person) to provide revalidation of the plant's automated systems sufficient to adhere to this section. The total annual burden for four senior validation engineers each working 160 hours twice a year is 1,280 hours ((160 hours × 2 revalidations) × 4 engineers = 1,280 total work hours) per plant. Therefore, 1,280 hours per plant × 3 plants = 3,840 annual hours, as shown on line 11 of table 1.
The draft guidance recommends written specifications for ingredients, containers, and closures, as specified under §§ 106.40(g) and 106.100(f)(6). FDA estimates that the exempt infant formula industry already establishes written specifications for these components. However, the guidance regarding controls to prevent adulteration caused by ingredients, containers, and closures may represent new recordkeeping for three (at most) plants (Ref. 1). It is not possible to predict how often a specification will not be met or how often documented reviews of reconditioned ingredients, closures, or containers will occur. FDA estimates that, on average, one senior validation engineer per plant would work about 10 minutes a week to complete this recordkeeping. Therefore, 3 recordkeepers × 0.17 hours per week per recordkeeper = 0.51 hours per week; 0.51 hours per week × 52 weeks = 26.52 total annual hours, as presented in line 12 of table 1.
This draft guidance recommends manufacturers of exempt infant formula to make and maintain records of controls to prevent adulteration during manufacturing, as specified in §§ 106.50 and 106.100(e). It is not possible to predict how often changes to the master manufacturing order would be made or how often deviations from the master manufacturing order would occur. Based on expert opinion, FDA estimates that each year, three (at most) plants would change a master manufacturing order and that, on average, one senior validation engineer for each of the three (at most) plants would spend about 14 minutes per week on recordkeeping pertaining to the master manufacturing order. Thus, 3 recordkeepers × 0.23 hours per recordkeeper per week = 0.69 hours per week; 0.69 hours per week × 52 weeks = 35.88 hours as the total annual industry burden, as presented in line 13 of table 1.
The draft guidance recommends manufacturers of exempt infant formula make and retain records of the testing of infant formula for microorganisms, as specified in §§ 106.55(d) and 106.100(e)(5)(ii) and (f)(7). We estimate that this recordkeeping represents a new collection of information for, at most, three plants (Ref. 1) and that one senior validation engineer per plant would spend 15 minutes per week on recordkeeping pertaining to microbiological testing. Thus, 3 recordkeepers × 0.25 hours per recordkeeper per week = 0.75 hours; 0.75 hours per week × 52 weeks = 39 hours as the total annual industry burden, as presented in line 14 of table 1.
The draft guidance recommends that exempt infant formula manufacturers make and maintain records consistent with the requirements for the labeling of mixed-lot packages of infant formula that apply to non-exempt infant formula manufacturers, as specified under § 106.60(c). We estimate that the draft guidance will result in infant formula diverters labeling infant formula packaging (such as packing cases) to facilitate product tracing and to keep specific records of the distribution of these mixed lot cases. (A diverter is considered to be a business or individual that purchases food, including occasionally infant formula, in a geographic area where a special allowance or deal is being offered and then resells that food at a lower price to wholesale or retail grocery, drug and mass merchandise chains in an area where the deal is not being offered.) There will be some cost associated with this recordkeeping and labeling, but the Agency estimates that this burden would be minimal as it is estimated that less than 1 percent of infant formula is handled by diverters. For the purposes of this analysis, it is estimated that, for all plants combined, it may take one worker using manual methods 15 minutes, at most, to relabel one case of infant formula one time each month (0.25 hours per month × 12 months = 3 annual hours), as presented in line 15 of table 1.
The draft guidance recommends nutrient testing for exempt infant formula manufacturers as specified in § 106.91(a)(1) to (a)(4). It is estimated that the systems and processes of 100 percent of the exempt formula industry test in accordance with these provisions. Therefore, nutrient testing does not represent a new recordkeeping burden as nutrient testing is estimated to be common business practice in the exempt infant formula industry. Thus, no burden is estimated for these recommendations (Ref. 1).
The draft guidance also recommends ongoing stability testing as specified under § 106.91(b)(1), (b)(2), and (b)(3). It is estimated that the systems and processes of the infant formula industry
The draft guidance recommends recordkeeping for test results as specified under §§ 106.91(d) and 106.100(e)(5)(i). This represents new information collections for the two plants that are estimated not to be conducting all of the stability testing specified in § 106.91(b) (Ref. 1). For the purposes of this analysis, FDA estimates that one senior validation engineer per plant would spend about 9 minutes per week maintaining records related to testing. Thus, 2 recordkeepers × 0.15 hours per recordkeeper per week = 0.3 hours per week × 52 weeks = 15.6 hours as the annual total industry burden, as presented in lines 17, 18, and 19 of table 1.
The draft guidance recommends the creation of audit plans and procedures, as specified under § 106.94. FDA estimates that all exempt infant formula manufacturers currently conduct audits, but that 25 percent of infant formula plants (3 of 12 plants) do not conduct audits that include all elements specified in § 106.94 (Ref. 1). It is estimated that the ongoing review and updating of audit plans would require a senior validation engineer 8 hours per year, per plant. Therefore, 8 hours per year per plant × 3 plants = 24 annual hours to regularly review and update audit plans as shown in line 20 of table 1.
The infant formula final rule does not mandate a frequency of auditing, and, therefore, one is not recommended in the draft guidance. For the purposes of this analysis, FDA estimates that a manufacturer would choose to audit once per week. Each weekly audit is estimated to require a senior validation engineer 4 hours, or 52 weeks × 4 hours = 208 hours per plant per year. Therefore, the total annual burden for the estimated three plants not currently acting in accordance to this guidance to update audit plans is 208 hours × 3 plants = 624 hours, as shown in line 21 of table 1.
The following references have been placed on display in the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by May 18, 2015.
Submit electronic comments on the collection of information to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE–14526, Silver Spring, MD 20993–0002,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (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,
Under section 903(d)(2) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 393(d)(2)), the Commissioner of Food and Drugs is authorized to implement general powers (including conducting research) to carry out effectively the mission of FDA. Subsequent to the events of September 11, 2001, and as part of broader counterterrorism and emergency preparedness activities, FDA's Center for Devices and Radiological Health (CDRH) began developing operational plans and interventions that would enable CDRH to anticipate and respond to medical device shortages that might arise in the context of Federally declared disasters/emergencies or regulatory actions. In particular, CDRH identified the need to acquire and maintain detailed data on domestic inventory, manufacturing capabilities, distribution plans, and raw material constraints for medical devices that would be in high demand, and/or would be vulnerable to shortages in specific disaster/emergency situations or following specific regulatory actions. Such data could support prospective risk assessment, help inform risk mitigation strategies, and support real-time decision-making by the Department of Health and Human Services during actual emergencies or emergency preparedness exercises.
FDA developed “The Emergency Medical Device Shortages Program Survey” in 2002 to support the acquisition of such data from medical device manufacturers. In 2004, CDRH changed the process for the data collection, and the electronic database in which the data were stored was formally renamed the “Emergency Shortages Data Collection System” (ESDCS). Recognizing that some of the data collected may be commercially confidential, access to the ESDCS is restricted to members of the CDRH Emergency Shortage Team (EST) and senior management with a need-to-know. At this time, the need-to-know senior management personnel are limited to two senior managers. Further, the data are used by this defined group only for decision making and planning in the context of a Federally declared disaster/emergency, an official emergency preparedness exercise, or a potential public health risk posed by non-disaster-related device shortage.
The data procurement process consists of an initial scripted telephone call to a regulatory officer at a registered manufacturer of one or more key medical devices tracked in the ESDCS. In this initial call, the EST member describes the intent and goals of the data collection effort and makes the specific data request. After the initial call, one or more additional follow-up calls and/or electronic mail correspondence may be required to verify/validate data sent from the manufacturer, confirm receipt, and/or request additional detail. Although the regulatory officer is the agent who the EST member initially contacts, regulatory officers may designate an alternate representative within their organization to correspond subsequently with the CDRH EST member who is collecting or verifying/validating the data.
Because of the dynamic nature of the medical device industry, particularly with respect to specific product lines, manufacturing capabilities, and raw material/subcomponent sourcing, it is necessary to update the data in the ESDCS at regular intervals. The EST makes such updates on a regular basis, but makes efforts to limit the frequency of outreach to a specific manufacturer to no more than every 4 months.
The ESDCS will only include those medical devices for which there will likely be high demand during a specific emergency/disaster, or for which there are sufficiently small numbers of manufacturers such that disruption of manufacture or loss of one or more of these manufacturers would create a shortage.
FDA estimates the burden of this collection of information as follows:
FDA based the burden estimates in table 1 of this document on past experience with direct contact with the medical device manufacturers and anticipated changes in the medical device manufacturing patterns for the specific devices being monitored. FDA estimates that approximately 125 manufacturers would be contacted by telephone and/or electronic mail 3 times per year either to obtain primary data or to verify/validate data. Because the requested data represent data elements that are monitored or tracked by manufacturers as part of routine inventory management activities, it is anticipated that for most manufacturers, the estimated time required of manufacturers to complete the data request will not exceed 30 minutes per request cycle.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an amendment to the notice of meeting of the Cardiovascular and Renal Drugs Advisory Committee. This meeting was
Kristina Toliver, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993–0002, 301–796–9001, FAX: 301–847–8533,
In the
The committee will discuss the new drug application (NDA) 204958, cangrelor injection, submitted by The Medicines Company, for the proposed indication of reduction of thrombotic cardiovascular events in patients with coronary artery disease (CAD) undergoing percutaneous coronary intervention (PCI)—(PCI refers to the opening of narrowed blood vessels supplying the heart muscle by a balloon inserted through an artery puncture with or without a stent) who have not received an oral P2Y12 inhibitor prior to the PCI procedure and in whom oral therapy with P2Y12 inhibitors is not feasible or desirable (P2Y12 is a protein involved in blood clotting. Inhibiting this protein is a key mechanism of action of cangrelor).
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to the advisory committees.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639–7570 or send an email to
National Hospital Ambulatory Medical Care Survey (NHAMCS) Supplement of Primary Care Policies for Managing Patients with High Blood Pressure, High Cholesterol, or Diabetes (NSPCP)—New—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Cardiovascular disease is a leading cause of death and disability for men and women in the United States, among the most costly health problems facing our nation today, and among the most preventable. Risk factors for cardiovascular disease include high blood pressure and high cholesterol. Because over 50% of diabetics have high blood pressure, high cholesterol, or both conditions, the optimal systems to treat people with hypertension, high cholesterol, or diabetes are interrelated.
In 2005, CDC's Division for Heart Disease and Stroke Prevention (DHDSP) began developing evaluation indicators that reflect evidence-based outcomes from policy, systems, and environmental changes related to heart disease and stroke prevention. However, many of the indicators for short-term policy and systems changes do not have readily available data sources. This is particularly true for outcomes related to health care systems changes.
NCHS proposes to conduct a new information collection, the NSPCP. The survey will target primary care physicians specializing in internal medicine or family practice. Respondents will be drawn from a nationally representative sample of physicians. Physicians working in hospitals, federal facilities, nursing homes, rehabilitation centers and correctional facilities will not be eligible for the survey. Eligibility will be determined by phone.
The survey instrument will undergo cognitive testing before administration.
The telephone screener will be administered to the individual who answers the phone at the selected practice. We anticipate that this will likely be an office assistant or medical secretary. The primary purpose of the screener is to ensure correct contact information for the physician, so we anticipate that an office assistant or medical secretary will be able to answer the screener questions in a short amount of time. We have estimated 10 minutes per response.
Administrators of the mail-based survey will collect information about physician practices' use of evidence-based systems, including multidisciplinary team approaches for chronic disease treatment, electronic health records (EHR) with features appropriate for treating patients with chronic disease (
CDC will use the information to examine health systems and dissemination of health systems technology. Primary care practices will use the results to inform their systems for managing patients with chronic conditions and to improve the quality of care delivered. NCHS and CDC will also use the results to improve technical assistance to public health partners.
OMB approval is requested for two years. Participation in the survey is voluntary and all responses CDC will de-identify all responses. There are no costs to respondents other than their time. The total estimated annualized burden hours are 429.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Board of Scientific Counselors, NIAMS.
The meeting 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 Institute of Arthritis and Musculoskeletal and Skin Diseases, 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.
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.
National Institutes of Health, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 209 and 37 CFR part 404 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852–3804; telephone: 301–496–7057; fax: 301–402–0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
Technology descriptions follow.
The invention provides a method of determining the prognosis of thymic cancer in a patient by assaying (for example using PCR based methods) the genetic material obtained from the patient tissue to detect a mutation in at least one copy of GTF2I genetic sequence; and correlating the presence of a GTF2I mutation with the prognosis of a thymic cancer patient, the presence of the mutation indicating that the thymic cancer is indolent.
A genetic test will complement the diagnostic assessment, facilitate development of a molecular classification and assessment for the clinical management of thymic cancers.
Potential Commercial Applications:
• A diagnostic test kit for the prognosis and clinical management of thymic cancer.
• Clinical decision whether treatment is needed (for example, additional treatment after surgery).
• Therapeutic decision making, between an aggressive course of
Development Stage:
• Early-stage.
• In vitro data available.
• In vivo data available (human).
Potential Commercial Applications:
• Imaging test rodents.
• Imaging pharmacological agent distribution in rodents.
• Imaging the therapeutically effects of pharmacological agent.
Development Stage:
• Early-stage.
• Prototype.
Potential Commercial Applications:
• Drug Development.
• Toxicity Studies.
• Drug Design.
Competitive Advantages:
• Small animals.
• High Throughput.
• Space efficiency.
• Resource economy.
Development Stage:
• Early stage.
• Prototype.
This abstract replaces one published on Thursday, January 29, 2015 (80 FR 4935) to correct the patent application filing date.
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.
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.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639–7570 or send an email to
Coal Workers' Health Surveillance Program (CWHSP)—(0920–0020)—Reinstatement with Change—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
NIOSH would like to submit an Information Collection Request (ICR) to revise the data collection instruments being utilized within the Coal Workers' Health Surveillance Program (CWHSP).
On May 1, 2014, the Mine Safety and Health Administration (MSHA) published final rule 30 CFR 70, 71, 72, 75, and 90. The new MSHA rule added surface coal miners, a respiratory health assessment, and spirometry testing for chronic obstructive pulmonary disease (COPD) to the previously mandated chest x-ray examination program. These additions are being referred to as the Expanded CWHSP (an additional component under the current CWHSP).
This request incorporates all components that now fall under the CWHSP. Those components include: Coal Workers' X-ray Surveillance Program (CWXSP), B Reader Program, Enhanced Coal Workers' Health Surveillance Program (ECWHSP), Expanded Coal Workers' Health Surveillance Program, and National Coal Workers' Autopsy Study (NCWAS).
The CWHSP is a congressionally-mandated medical examination program for monitoring the health of coal miners. The Program was originally authorized under the 1969 Federal Coal Mine Health and Safety Act and is currently authorized under the 1977 Federal Mine Safety and Health Act and its subsequent amendments (the Act). The Act provides the regulatory authority for
The total estimated annualized burden hours of 20,282 is based on the following collection instruments:
• Coal Mine Operator Plan (2.10) and Coal Contractor Plan (2.18)—Under 42 CFR part 37, every coal operator and coal contractor in the U.S. must submit a plan approximately every 4 years, providing information on how they plan to notify their miners of the opportunity to obtain the medical examination. Completion of this form with all requested information (including a roster of current employees) takes approximately 30 minutes.
• Radiographic Facility Certification Document (2.11)—X-ray facilities seeking NIOSH approval to provide miner radiographs under the CWHSP must complete an approval packet including this form which requires approximately 30 minutes for completion.
• Miner Identification Document (2.9)—Miners who elect to participate in the CWHSP must fill out this document which requires approximately 20 minutes. This document records demographic and occupational history, as well as information required under the regulations in relation to the examinations. In addition to completing this form, acquiring the chest image from the miner takes approximately 15 minutes.
• Chest Radiograph Classification Form (2.8)—NIOSH utilizes a radiographic classification system developed by the International Labour Office (ILO) in the determination of pneumoconiosis among coal miners. Physicians (B Readers) fill out this form regarding their interpretations of the radiographs (each image has two separate interpretations, and approximately 7% of the images require additional interpretations). Based on prior practice it takes the physician approximately 3 minutes per form.
• Physician Application for Certification (2.12)—Physicians taking the B Reader examination are asked to complete this registration form which provides demographic information as well as information regarding their medical practices. It typically takes the physician about 10 minutes to complete this form.
• Spirometry Facility Certification Document (2.14)—This new form is analogous to the Radiographic Facility Certification Document (2.11) and records the spirometry facility equipment/staffing information. Spirometry facilities seeking NIOSH approval to provide miner spirometry testing under the CWHSP must complete an approval packet which includes this form. It is estimated that it will take approximately 30 minutes for this form to be completed at the facility.
• Respiratory Assessment Form (2.13)—This new form is designed to assess respiratory symptoms and certain medical conditions and risk factors. It is estimated that it will take approximately five minutes for administration of this form to the miner by an employee at the facility.
• Spirometry Results Notification Form (2.15)—This new form replaces previous forms 2.15, 2.16 and 2.17. It is used to: collect information that will allow NIOSH to identify the miner in order to provide notification of the spirometry test results; assure that the test can be done safely; record certain factors that can affect test results; provide documentation that the required components of the spirometry examination have been transmitted to NIOSH for processing; and conduct quality assurance audits and interpretation of results. It is estimated that it will take the facility approximately 20 minutes to complete this form. In addition to completing this form, acquiring an acceptable spirometry test from the miner takes approximately 15 minutes.
• Pathologist Invoice—Under the NCWAS, the invoice submitted by the pathologist must contain a statement that the pathologist is not receiving any other compensation for the autopsy. Each participating pathologist may use their individual invoice as long as this statement is added. It is estimated that only five minutes is required for the pathologist to add this statement to the standard invoice that they routinely use.
• Pathologist Report—Under the NCWAS the pathologist must submit information found at autopsy, slides, blocks of tissue, and a final diagnosis indicating presence or absence of pneumoconiosis. The format of the autopsy reports is variable depending on the pathologist conducting the autopsy. Since an autopsy report is routinely completed by a pathologist, the only additional burden is the specific request for a clinical abstract of terminal illness and final diagnosis relating to pneumoconiosis. Therefore, only 5 minutes of additional burden is estimated for the pathologist's report.
• Consent, Release and History Form (2.6)—This form documents written authorization from the next-of-kin to perform an autopsy on the deceased miner. A minimum of essential information is collected regarding the deceased miner including an occupational history and a smoking history. From past experience, it is estimated that 15 minutes is required for the next-of-kin to complete this form.
There are no costs to respondents other than their time.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice of hearing: Reconsideration of disapproval.
This notice announces an administrative hearing to be held on April 30, 2015, at the Department of Health and Human Services, Centers for Medicare and Medicaid Services, Division of Medicaid & Children's Health, Dallas Regional Office, 1301 Young Street, Room 730, Dallas, TX 75202, to reconsider CMS' decision to disapprove Louisiana's Medicaid SPA 12–66–B.
Benjamin R. Cohen, Presiding Officer, CMS, 2520 Lord Baltimore Drive, Suite L, Baltimore, Maryland 21244, Telephone: (410) 786–3169.
This notice announces an administrative hearing to reconsider CMS' decision to disapprove Louisiana's Medicaid SPA 12–66B which was submitted to the Centers for Medicare and Medicaid Services (CMS) on December 20, 2012 and disapproved on December 11, 2014. In part, this SPA requested CMS approval to revise the current pharmacy reimbursement methodology for estimated acquisition cost (EAC) which is currently calculated as average acquisition cost (AAC) of the drug dispensed to a new calculation of AAC adjusted by a multiplier of 1.1 for multiple source drugs and 1.01 for single source drugs. In addition, propose a reimbursement methodology of wholesale acquisition cost (WAC) adjusted by a multiplier of 1.05 for state-defined specialty therapeutic classes of drugs.
The issues to be considered at the hearing are:
• Whether the state's proposed increased payment methodology under Louisiana Medicaid SPA 12–66–B complies with the requirements of section 1902(a)(30)(A) of the Act which requires, in part, that states have methods and procedures to assure that payment rates are consistent with efficiency, economy, and quality of care.
• Whether the state demonstrated that the proposed payment increases are consistent with the aggregate upper payment limits set in implementing regulations at 42 CFR 447.512 which provide that payments for drugs are to be based on the lower of: (1) The ingredient EAC of the drug and a reasonable dispensing fee; or (2) the provider's usual and customary charges to the general public.
• Whether the proposed calculation of EAC used in calculating upper payment limits (based on a multiple of the AAC) is consistent with the definition of EAC in 42 CFR 447.502, which defines EAC as “the agency's best estimate of the price generally and currently paid by providers for a drug marketed or sold by a particular manufacturer or labeler in the package size of drug most frequently purchased by providers.”
Section 1116 of the Act and federal regulations at 42 CFR part 430, establish Department procedures that provide an administrative hearing for reconsideration of a disapproval of a state plan or plan amendment. CMS is required to publish a copy of the notice to a state Medicaid agency that informs the agency of the time and place of the hearing, and the issues to be considered. If we subsequently notify the agency of additional issues that will be considered at the hearing, we will also publish that notice.
Any individual or group that wants to participate in the hearing as a party must petition the presiding officer within 15 days after publication of this notice, in accordance with the requirements contained at 42 CFR 430.76(b)(2). Any interested person or organization that wants to participate as
The notice to Louisiana announcing an administrative hearing to reconsider the disapproval of its SPA reads as follows:
I am responding to your request for reconsideration of the decision to disapprove Louisiana's Medicaid state plan amendment (SPA) 12–66B, which was submitted to the Centers for Medicare and Medicaid Services (CMS) on December 20, 2012, and disapproved on December 11, 2014. I am scheduling a hearing on your request for reconsideration to be held on April 30, 2015, at the Department of Health and Human Services, Centers for Medicare and Medicaid Services, Division of Medicaid & Children's Health, Dallas Regional Office, 1301 Young Street, Room 730, Dallas, TX 75202.
I am designating Mr. Benjamin R. Cohen as the presiding officer. If these arrangements present any problems, please contact Mr. Cohen at (410) 786–3169. In order to facilitate any communication that may be necessary between the parties prior to the hearing, please notify the presiding officer to indicate acceptability of the hearing date that has been scheduled and provide names of the individuals who will represent the state at the hearing. If the hearing date is not acceptable, Mr. Cohen can set another date mutually agreeable to the parties. The hearing will be governed by the procedures prescribed by federal regulations at 42 CFR part 430.
In part, this SPA would revise the current pharmacy reimbursement methodology for estimated acquisition cost (EAC) which is currently calculated as average acquisition cost (AAC) of the drug dispensed to a new
• Whether the state's proposed increased payment methodology under Louisiana Medicaid SPA 12–66–B complies with the requirements of section 1902(a)(30)(A) of the Act which requires, in part, that states have methods and procedures to assure that payment rates are consistent with efficiency, economy, and quality of care.
• Whether the state demonstrated that the proposed payment increases are consistent with the aggregate upper payment limits set in implementing regulations at 42 CFR 447.512 which provide that payments for drugs are to be based on the lower of: 1) the ingredient EAC of the drug and a reasonable dispensing fee; or 2) the provider's usual and customary charges to the general public.
• Whether the proposed calculation of EAC used in calculating upper payment limits (based on a multiple of the AAC) is consistent with the definition of EAC in 42 CFR 447.502, which defines EAC as “the agency's best estimate of the price generally and currently paid by providers for a drug marketed or sold by a particular manufacturer or labeler in the package size of drug most frequently purchased by providers.”
In the event that CMS and the state come to agreement on resolution of the issues which formed the basis for disapproval, this SPA may be moved to approval prior to the scheduled hearing.
Food and Drug Administration, HHS.
Notification of public meeting; request for comments.
The Food and Drug Administration (FDA) is announcing a public meeting entitled “Identification of Alternative In Vitro Bioequivalence Pathways Which Can Reliably Ensure In Vivo Bioequivalence of Product Performance and Quality of Non-Systemically Absorbed Drug Products for Animals”. The purpose of the public meeting is to discuss the use of in vitro methods as a mechanism for assessing the in vivo product bioequivalence (BE) of non-systemically absorbed drug products intended for use in veterinary species. FDA is seeking additional public comment to the docket, and is requesting that any written comments be submitted by May 18, 2015.
Given the imprecision and logistic challenges associated with clinical endpoint BE studies, FDA is exploring alternative pathways that can be applied to help ensure the equivalence of product performance and quality for those products that are non-systemically absorbed (locally acting).
The assessment of in vivo BE of non-systemically absorbed drug products has been a longstanding challenge facing drug manufacturers and regulators of human and animal health products. Although blood level BE trials remain the standard for comparing drug products that are systemically absorbed and that act at a target site reached via the blood (systemic circulation), such studies cannot confirm product in vivo BE when a drug is either not systemically absorbed or when it is associated with therapeutic effects occurring proximal to the site of absorption. To date, unless the active pharmaceutical ingredient met the criteria for highly soluble, as defined in CVM Guidance #171 entitled “Waivers of In Vivo Demonstration of Bioequivalence of Animal Drugs in Soluble Powder Oral Dosage Form Products and Type A Medicated Articles,” clinical endpoint BE trials have provided the only option for generating inter-product comparisons. FDA is exploring whether an alternative in vitro BE approach may be considered when blood level BE studies are either not feasible or not appropriate, and when products do not meet the criteria for applying a Guidance #171-based biowaiver.
The assumption underlying the application of the in vitro BE approach is that equivalence in product physicochemical attributes and in vitro product performance translates to equivalence in product in vivo behavior. For sponsors with a right of reference to underlying safety and effectiveness data, the criteria for similarity of physicochemical attributes would be defined on the basis of the underlying dataset to confirm the comparability of the original formulation and pre- and post-approval changes in formulation or method of product manufacture. In the case of generic products, a more rigid approach to sameness would be used in terms of product composition and physicochemical characteristics. In both situations, physicochemical comparisons would be based upon a battery of in vitro test procedures, including a comparison of in vitro dissolution behavior under a range of physiologically-relevant conditions.
Examples of the kinds of products where in vitro bioequivalence concepts can potentially be applied include some orally administered products (
The in vitro BE approach should not be construed as a biowaiver, but rather as an alternative set of tests that would be handled in a manner consistent with that of an in vivo BE study. Specifically, (1) because an in vitro BE approach is not a biowaiver, sponsors would still need to meet the same environmental safety and human food safety requirements associated with products undergoing in vivo BE studies; (2) one in vitro study may not suffice when there are multiple product strengths (
To assist FDA in developing guidance for demonstrating in vitro BE, with this notice the Agency is convening an open forum, providing a summary of what the Agency envisions as considerations pivotal to the BE assessment and inviting public comment on the various components of an in vitro BE determination.
While oral presentations from specific individuals and organizations may be limited due to time constraints during the public meeting, stakeholders may submit electronic or written comments discussing any issues of concern to the administrative record (the docket) for the rulemaking. All relevant data and documentation should be submitted with the comments. Submit electronic comments to
Information and data submitted voluntarily to FDA during the public meeting will become part of the administrative record for the rulemaking and will be accessible to the public at
Additionally, the public can access the meeting remotely by using the following Adobe Connect link:
Coast Guard, DHS.
Notice; withdrawal.
The Coast Guard published a document in the
If you have questions on this notice of study or any of the meetings, call or email LT Kody Stitz, Seventeenth Coast Guard District (dpw); telephone (907) 463–2270; email
For correct information on the Port Access Route Study please see the Notice of Study published in the
To electronically access all information referenced in this notice of correction visit
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Anna Guido, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Department of the Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, we (Department of the Interior, DOI) plan to ask the Office of Management and Budget (OMB) to extend the approval for the information collection (IC) described below. This IC is scheduled to expire June 30, 2015. We invite the general public and other Federal agencies to take this opportunity to comment on this IC.
Consideration will be given to all comments received by
Mail or hand carry comments to the Department of the Interior; Office of Policy Analysis; Attention: Don Bieniewicz; Mail Stop 3530; 1849 C Street NW., Washington, DC 20240. If you wish to email comments, the email address is:
To request a copy of the information collection request, any explanatory information and related forms, see the contact information provided in the
This notice is for renewal of information collection.
The Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The Government Performance and Results Act of 1993 (GPRA) (Pub. L. 103–62) requires agencies to “improve Federal program effectiveness and public accountability by promoting a new focus on results, service quality, and customer satisfaction.” Executive Order 13571 on “Streamlining Service Delivery and Improving Customer Service” requires Federal agencies to establish “mechanisms to solicit customer feedback on Government services.” To fulfill this responsibility, DOI bureaus and offices must collect data from their respective user groups to better understand the needs and desires of the public and to respond accordingly.
The proposed renewal covers all of the organizational units and bureaus in DOI. Bureaus and offices will voluntarily obtain information from their customers and stakeholders. No one survey will cover all the topic areas; rather, these topic areas serve as a guide within which the agencies will develop questions. Topic areas include:
(1) Communication/information/education. Questions will focus on customer satisfaction with aspects of communication/information/products/education offered. Respondents may be asked for feedback regarding the following attributes of the services provided:
(a) Timeliness.
(b) Consistency.
(c) Ease of Use and Usefulness.
(d) Ease of Information Access.
(e) Helpfulness and Effectiveness.
(f) Quality.
(g) Value for fee paid for information/product/service.
(h) Level of engagement in communications process (
(2) Disability accessibility. This area will focus on customer satisfaction data related to disability access to DOI buildings, facilities, trails, etc.
(3) Management practices. This area covers questions relating to how well customers are satisfied with DOI management practices and processes, what improvements they might make to specific processes, and whether or not they feel specific issues were addressed and reconciled in a timely, courteous, and responsive manner.
(4) Resource management. We will ask customers and partners to provide satisfaction data related to DOI's ability to protect, conserve, provide access to, and preserve natural resources that we manage.
(5) Rules, regulations, policies. This area focuses on obtaining feedback from customers regarding fairness, adequacy, and consistency in enforcing rules, regulations, and policies for which DOI is responsible. It will also help us understand public awareness of rules and regulations and whether or not they are explained in a clear and understandable manner.
(6) Service delivery. We will seek feedback from customers regarding the manner in which DOI delivers services. Attributes will range from the courtesy of staff to timeliness of service delivery and staff knowledge of the services being delivered.
(7) Technical assistance. Questions developed within this topic area will focus on obtaining customer feedback regarding attributes of technical assistance, including timeliness, quality, usefulness, and the skill level of staff providing this assistance.
(8) Program-specific. Questions for this area will reflect the specific details of a program that pertain to its customer respondents. The questions will address very specific and/or technical issues related to the program. The questions will be geared toward gaining a better understanding about how to provide specific products and services and the public's attitude toward their usefulness.
(9) General demographics. Some general demographics may be used to augment satisfaction questions so that we can better understand the customer and improve how we serve that customer. We may ask customers how many times they have used a service, visited a facility within a specific timeframe, their ethnic group, or their race.
(2) Annual reporting and recordkeeping burden:
(3) Description of the need and use of the information: We use customer satisfaction surveys to help us fulfill our responsibilities to provide excellence in government by proactively consulting with those we serve. This programmatic clearance provides an expedited approval process for DOI bureaus and offices to conduct customer research through external surveys such as questionnaires and comment cards. We anticipate that the information obtained could lead to reallocation of resources, revisions in certain agency processes and policies, development of guidance related to customer services, and improvement in the way we serve the American public.
The Department invites comments on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agencies, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection of information and the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on respondents, including through the use of appropriate automated, electronic, mechanical, or other collection techniques or other forms of information technology.
“Burden” means the total time, effort, and financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. This includes the
All written comments, with names and addresses, will be available for public inspection. If you wish us to withhold your personal information, you must prominently state at the beginning of your comment what personal information you want us to withhold. We will honor your request to the extent allowable by law. If you wish to view any comments received, you may do so by scheduling an appointment with the Department of the Interior; Office of Policy Analysis as indicated in the
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.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comment.
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 (Act) prohibits activities with endangered and threatened species unless a Federal permit allows such activity. The Act also requires that we invite public comment before issuing recovery permits to conduct certain activities with endangered species.
Comments on these permit applications must be received on or before April 17, 2015.
Written data or comments should be submitted to the Endangered Species Program Manager, U.S. Fish and Wildlife Service, Region 8, 2800 Cottage Way, Room W–2606, Sacramento, CA 95825 (telephone: 916–414–6464; fax: 916–414–6486). Please refer to the respective permit number for each application when submitting comments.
Daniel Marquez, Fish and Wildlife Biologist; see
The following applicants have applied for scientific research permits to conduct certain activities with endangered species under section 10(a)(1)(A) of the Act (16 U.S.C. 1531
The applicant requests a permit to take (harass by survey, capture, handle, and release) the California tiger salamander (Santa Barbara County Distinct Population Segment (DPS) and Sonoma County DPS) (
The applicant requests a permit to take (harass by survey, capture, handle, and release) the giant kangaroo rat (
The applicant requests a permit to remove/reduce to possession the
The applicant requests a permit to take (locate and monitor nests) the least Bell's vireo (
The applicant requests a permit to take (capture, collect, and collect vouchers) the Conservancy fairy shrimp (
The applicant requests a permit to take (harass by survey, collect, and translocate) the mission blue butterfly (
The applicant requests a permit amendment to take (harass by survey,
The applicant requests a permit amendment to take (survey, capture, handle, and release) the Sierra Nevada yellow-legged frog (
The applicant requests a permit renewal and amendment to take (harass by survey) the southwestern willow flycatcher (
The applicant requests a permit to take (harass by survey, capture, handle, release, and collect adult vouchers) the Conservancy fairy shrimp (
The applicant requests a permit amendment to take (harass by survey, capture, handle, release, collect adult vouchers, and collect cysts) the Conservancy fairy shrimp (
The applicant requests a permit renewal and amendment to take (harass by survey) the southwestern willow flycatcher (
The applicant requests a permit renewal to take (survey by pursuit, live-capture, handle, and release) the Quino checkerspot butterfly (
The applicant requests a permit renewal to take (survey by pursuit, live-capture, handle, and release) the Quino checkerspot butterfly (
The applicant requests a permit renewal to take (harass by survey) the southwestern willow flycatcher (
The applicant requests a permit renewal to remove/reduce to possession the
The applicant requests a permit renewal to take (harass by survey) the southwestern willow flycatcher (
The applicant requests a permit renewal to take (harass by survey) the southwestern willow flycatcher (
The applicant requests a permit renewal to take (harass by survey) the southwestern willow flycatcher (
The applicant requests a permit renewal to remove/reduce to possession from lands under Federal jurisdiction the
The applicant requests a permit renewal to take (harass by survey, capture, handle, release, and collect adult vouchers) the Conservancy fairy shrimp (
The applicant requests a new permit to take (locate and monitor nests) the least Bell's vireo (
The applicant requests a new permit to take (collect adult vouchers) the Conservancy fairy shrimp (
The applicant requests a new permit to take (capture, handle, and release) the San Bernardino kangaroo rat (
The applicant requests a permit renewal to take (capture, handle, and release) the Fresno kangaroo rat (
The applicant requests a permit amendment to take (harass by survey, capture, handle, release, and collect adult vouchers) the Conservancy fairy shrimp (
The applicant requests a permit amendment to take (capture, handle, mark, collect biological samples, radio-collar, survey, translocate, hold over-night, and release) the Sierra Nevada bighorn sheep (
We invite public review and comment on each of these recovery permit applications. Comments and materials we receive will be available for public inspection, by appointment, during normal business hours at the address listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Office of Strategic Employee and Organization Development, Federal Consulting Group.
Notice and request for comments.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Federal Consulting Group within the Department of the Interior announces that it has submitted a request for a proposed extension of information collection for the American Customer Satisfaction Index (ACSI) Government Customer Satisfaction Surveys to the Office of Management and Budget and requests public comments on this submission. The information collection request describes the nature of the information collection and the expected burden and cost.
Office of Management and Budget has up to 60 days to approve or disapprove the information collection request, but may respond after 30 days; therefore, public comments should be submitted to Office of Management and Budget by April 17, 2015, in order to be assured of consideration.
Send your written comments by facsimile to (202) 395–5806 or email (
To request additional information or copies of the form(s) and instructions, please write to the Federal Consulting Group (see contact information provided in the
The Office of Management and Budget regulation at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Public Law 104–13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. The Office of Strategic Employee and Organization Development, Federal Consulting Group has submitted a request to the Office of Management and Budget to renew its approval of this collection of information for three years.
The proposed renewal of this information collection activity provides a means to consistently assess, benchmark, and improve customer satisfaction with Federal government agency programs and/or services within the Executive Branch. The Federal Consulting Group of the Department of the Interior serves as the executive agent for this methodology and has partnered with the Claes Fornell International Group (CFI Group) and the American Customer Satisfaction Index (ACSI) to offer the ACSI to Federal government agencies.
The CFI Group, a leader in customer satisfaction and customer experience management, offers a comprehensive model that quantifies the effects of quality improvements on citizen satisfaction. The CFI Group has developed the methodology and licenses it to the American Customer Satisfaction Index, an independent organization which produces the American Customer Satisfaction Index (ACSI). This national indicator is developed for different economic sectors each quarter, which are then published in
The ACSI is the only cross-agency methodology for obtaining comparable measures of customer satisfaction with Federal government programs and/or services. Along with other economic objectives—such as employment and growth—the quality of outputs (goods and services) is a part of measuring living standards. The ACSI's ultimate purpose is to help improve the quality of goods and services available to American citizens.
ACSI surveys conducted by the Federal Consulting Group are subject to the Privacy Act of 1974, Public Law 93–579, December 31, 1974 (5 U.S.C. 552a). The agency information collection is an integral part of conducting an ACSI survey. The contractor will not be authorized to release any agency information upon completion of the survey without first obtaining permission from the Federal Consulting Group and the participating agency. In no case shall any new system of records containing privacy information be developed by the Federal Consulting Group, participating agencies, or the contractor collecting the data. In addition, participating Federal agencies may only provide information used to randomly select respondents from among established systems of records provided for such routine uses.
There is no other agency or organization able to provide the information accessible through the surveying approach used in this information collection. Further, the information will enable Federal agencies to determine customer satisfaction metrics with discrimination capability across variables. Thus, this information collection will assist Federal agencies in making the best use of resources in a targeted manner to improve service to the public.
This survey asks no questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, or other matters that are commonly considered private.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it is operating under a currently valid OMB control number. The Office of Management and Budget control number for this collection is 1090–0007. The control number will be displayed on the surveys used. Response to the surveys is voluntary.
(4) As required under 5 CFR 1320.8(d), a
All written comments will be available for public inspection by appointment with the Federal Consulting Group at the contact information given in the
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Bureau of Reclamation, Interior.
Notice.
The Yakima River Basin Conservation Advisory Group, Yakima River Basin Water Enhancement Project, established by the Secretary of the Interior, will hold a public meeting. The Yakima River Basin Conservation Advisory Group is a Federal advisory committee that provides technical advice and counsel to the Secretary of the Interior and Washington State on the structure, implementation, and oversight of the Yakima River Basin Water Conservation Program.
The meeting will be held on Friday, April 10, 2015, from 9 a.m. to 12:00 p.m.
The meeting will be held at the Bureau of Reclamation, Yakima Field Office, 1917 Marsh Road, Yakima, Washington 98901.
Timothy McCoy, Manager, Yakima River Basin Water Enhancement Project, (509) 575–5848, extension 209; facsimile (509) 454–5612; or by email at
The Yakima River Basin conservation Advisory Group (CAG) provides recommendations to the Secretary of the Interior and the State of Washington on the structure and implementation of the basin conservation program; with that the group provides recommendations on rules, regulations, and administration to facilitate the voluntary sale and lease of water. The CAG provides oversight to the Yakima River Basin Conservation Plan, and provides an annual review of the implementation of the Water Conservation Program, including the applicable water conservation guidelines of the Secretary used by participating entities in preparing their individual water conservation plan.
Office of Strategic Employee and Organization Development, Federal Consulting Group, Department of the Interior.
Notice and request for comments.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Federal Consulting Group within the Department of the Interior announces that it has submitted a request for a proposed extension of information collection for the E-Government Web site Customer Satisfaction Surveys to the Office of Management and Budget, and requests public comments on this submission. The information collection request describes the nature of the information collection and the expected burden and cost.
Office of Management and Budget has up to 60 days to approve or disapprove the information collection request, but may respond after 30 days; therefore, public comments should be submitted to Office of Management and Budget by April 17, 2015, in order to be assured of consideration.
Send your written comments by facsimile to (202) 395–5806 or email (
To request additional information or copies of the form(s) and instructions, please write to the Federal Consulting Group (see contact information provided in the
The Office of Management and Budget regulation at 5 CFR part 1320, which implements the provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104–13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. The Office of Strategic Employee and Organization Development, Federal Consulting Group has submitted a request to Office of Management and Budget to renew its approval of this collection of information for three years.
This information collection activity provides a means to consistently assess, benchmark, and improve customer satisfaction with Federal Government agency Web sites within the Executive Branch. The Federal Consulting Group of the Department of the Interior serves as the executive agent for this methodology and has partnered with ForeSee to offer this assessment to federal agencies.
ForeSee is a leader in customer satisfaction and customer experience management on the Web and related media. Its methodology (Customer Experience Analytics or CXA) is a derivative of one of the most respected, credible, and well known measures of customer satisfaction in the country, the American Customer Satisfaction Index (ACSI). The ForeSee CXA methodology combines survey data and a patented econometric model to precisely measure the customer satisfaction of Web site users, identify specific areas for improvement, and determine the impact of those improvements on customer satisfaction and future customer behaviors.
The ForeSee CXA is the only cross-agency methodology for obtaining comparable measures of customer satisfaction with Federal Government Web sites. The ultimate purpose of ForeSee CXA is to help improve the quality of goods and services available to American citizens, including those from the Federal government.
The E-Government Web site Customer Satisfaction Surveys will be completed subject to the Privacy Act of 1974, Public Law 93–579, December 31, 1974 (5 U.S.C. 522a). The agency information collection will be used solely for the purpose of the survey. The contractor will not be authorized to release any agency information upon completion of the survey without first obtaining permission from the Federal Consulting Group and the participating agency. In no case shall any new system of records containing privacy information be developed by the Federal Consulting Group, participating agencies, or the contractor collecting the data. In addition, participating Federal agencies may only provide information used to randomly selected respondents from among established systems of records provided for such routine uses.
There is no other agency or organization able to provide the information accessible through the surveying approach used in this information collection. Further, the information will enable Federal agencies to determine customer satisfaction metrics with discrimination capability across variables. Thus, this information collection will assist Federal agencies in making the best use of resources in a targeted manner to improve service to the public.
This survey asks no questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, or other matters that are commonly considered private.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it is operating under a currently valid Office of Management and Budget control number. The Office of Management and Budget control number for this collection is 1090–0008. The control number will be displayed on the surveys used. For expeditious administration of the surveys, the expiration date will not be displayed on the individual instruments. Response to the surveys is voluntary.
(1)
(2)
Annual Responses: 1,250,000.
Frequency of Response: Once per survey.
(4) As required under 5 CFR 1320.8(d), a
All written comments will be available for public inspection by appointment with the Federal Consulting Group at the contact information given in the
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Fish and Wildlife Service, Interior.
Notice of receipt of priority list and approval of projects.
We, the U.S. Fish and Wildlife Service (Service), announce the Fiscal Year (FY) 2015 priority list of wildlife and sport fish conservation projects from the Association of Fish and Wildlife Agencies (AFWA). As required by the Wildlife and Sport Fish Restoration Programs Improvement Act of 2000, AFWA submits a list of projects to us each year to consider for funding under the Multistate Conservation Grant Program. We have reviewed the list and have awarded all the grants from the list.
John C. Stremple, Multistate Conservation Grants Program Coordinator, Wildlife and Sport Fish Restoration Program, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: WSFR, Falls Church, VA 22041–3808.
John C. Stremple, (703) 358–2156 (phone) or
The Wildlife and Sport Fish Restoration Programs Improvement Act of 2000 (Improvement Act, Pub. L. 106–408) amended the Pittman-Robertson Wildlife Restoration Act (16 U.S.C. 669
Grantees under this program may use funds for sport fisheries and wildlife management and research projects, boating access development, hunter safety and education, aquatic education, fish and wildlife habitat improvements, and other purposes consistent with the enabling legislation.
To be eligible for funding, a project must benefit fish and/or wildlife conservation for at least 26 States, for a majority of the States in any one Service Region, or for one of the regional associations of State fish and wildlife agencies. We may award grants to a State, a group of States, or one or more nongovernmental organizations. For the purpose of carrying out the National Survey of Fishing, Hunting, and Wildlife-Associated Recreation, we may award grants to the Service, if requested by AFWA, or to a State or a group of States. Also, AFWA requires all project proposals to address its National Conservation Needs, which AFWA announces annually at the same time it requests proposals. Further, applicants must provide certification that no activities conducted under a Multistate Conservation Grant will promote or encourage opposition to regulated hunting or trapping of wildlife, or to regulated angling or taking of fish.
AFWA committees and interested nongovernmental organizations that represent conservation organizations, sportsmen's and women's organizations, and industries that support or promote fishing, hunting, trapping, recreational shooting, bowhunting, or archery review and rank eligible project proposals. AFWA's Committee on National Grants recommends a final list of priority projects to the directors of the State fish and wildlife agencies for their approval by majority vote. By statute, AFWA then transmits the final approved list to the Service for funding under the Multistate Conservation Grant program by October 1 of the fiscal year. This year, AFWA sent us a list of 17 projects that they recommended for funding. We have awarded all of the recommended projects for FY 2015. The list follows:
Department of the Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of the Secretary, Department of the Interior announces the proposed extension of a Generic Information Collection Request (Generic ICR): “DOI Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” and seeks public comments on the provisions thereof.
Consideration will be given to all comments received by
Mail or hand carry comments to the Department of the Interior; Office of Policy Analysis; Attention: Don Bieniewicz; Mail Stop 3530; 1849 C Street NW., Washington, DC 20240. If you wish to email comments, the email address is:
To request a copy of the information collection request, any explanatory information and related forms, see the contact information provided in the
This notice is for renewal of information collection.
The Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The information collection activity will garner qualitative customer and stakeholder feedback in an efficient, timely manner, in accordance with the Administration's commitment to improving service delivery. By qualitative feedback we mean information that provides useful insights on perceptions and opinions, but are not statistical surveys that yield quantitative results that can be generalized to the population of study. This feedback will provide insights into customer or stakeholder perceptions, experiences and expectations, provide an early warning of issues with service, or focus attention on areas where communication, training or changes in operations might improve delivery of products or services. These collections will allow for ongoing, collaborative and actionable communications between the Agency and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management.
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: the target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential nonresponse bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study.
(1)
(2) Annual reporting and recordkeeping burden:
(3)
The Department invites comments on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agencies, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection of information and the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on respondents, including through the use of appropriate automated, electronic, mechanical, or other collection techniques or other forms of information technology.
“Burden” means the total time, effort, and financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install, and use technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; to train
All written comments, with names and addresses, will be available for public inspection. If you wish us to withhold your personal information, you must prominently state at the beginning of your comment what personal information you want us to withhold. We will honor your request to the extent allowable by law. If you wish to view any comments received, you may do so by scheduling an appointment with the Department of the Interior; Office of Policy Analysis as indicated in the
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.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act, the Bureau of Land Management (BLM) Albuquerque District Resource Advisory Council (RAC) will meet as indicated below.
The RAC will meet on Friday, April 17, 2015, at the Socorro Field Office, 901 South Highway 85, Socorro, NM 87801, from 9 a.m.–4 p.m. The public may send written comments to the RAC at the BLM Albuquerque District Office, 435 Montano Rd., Albuquerque, NM 87107.
Martín Visarraga, BLM Albuquerque District Office, 435 Montano Rd., Albuquerque, NM 87107, 505–761–8902. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8229 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The 10-member Albuquerque District RAC advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in New Mexico's Albuquerque District.
Planned agenda items include updates on the SunZia Southwest Transmission Project; the Kinder Morgan Lobos CO2 Pipeline Project; the upcoming move of the Rio Puerco Field Office and transition to a mobile workforce; and the Rio Puerco Resource Management Plan. There will also be a discussion on fee increases for the Kasha-Katuwe Tent Rocks National Monument and Datil Well Campground, sustainable resource efforts, and recreation opportunities for the Albuquerque District.
A half-hour comment period during which the public may address the RAC will begin at 11 a.m. All RAC meetings are open to the public. Depending on the number of individuals wishing to comment and time available, the time for individual oral comments may be limited.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on February 9, 2015, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Andrea Electronics Corp., of Bohemia, New York. A letter supplementing the complaint was filed on March 3, 2015. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain audio processing hardware and software and products containing same by reason of infringement of certain claims of U.S. Patent No. 5,825,898 (“the '898 patent”); U.S. Patent No. 6,483,923 (“the '923 patent”); U.S. Patent No. 6,049,607 (“the '607 patent”); U.S. Patent No. 6,363,345 (“the '345 patent”); and U.S. Patent No. 6,377,637 (“the '637 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, as supplemented, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205–2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205–2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2014).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain audio processing hardware and software and products containing same by reason of infringement of one or more of claims 1–28 of the '898 patent; claims 1–16 of the '923 patent; claims 1–12 and 25–37 of the '607 patent; claims 1–25, 38–40, and 42–47 of the '345 patent; and claims 1–14 of the '637 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties and other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors, 19 U.S.C. 1337(d)(1), (f)(1), (g)(1);
(3) Notwithstanding any Commission Rules that would otherwise apply, the presiding Administrative Law Judge shall hold an early evidentiary hearing, find facts, and issue an early decision, as to whether the complainant has standing to assert each of the asserted patents. Any such decision shall be in the form of an initial determination (ID). Petitions for review of such an ID shall be due five calendar days after service of the ID; any replies shall be due three business days after service of a petition. The ID will become the Commission's final determination 30 days after the date of service of the ID unless the Commission determines to review the ID. Any such review will be conducted in accordance with Commission Rules 210.43, 210.44, and 210.45, 19 CFR 210.43, 210.44, and 210.45. The Commission expects the issuance of an early ID relating to the standing issues within 100 days of institution, except that the presiding ALJ may grant a limited extension of the ID for good cause shown. The issuance of an early ID finding complainant does not have standing to assert the asserted patents shall stay the investigation unless the Commission orders otherwise; any other decision shall not stay the investigation or delay the issuance of a final ID covering the other issues of the investigation.
(4) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(5) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 30) granting a joint motion to terminate the above-captioned investigation based on a settlement agreement.
Clark S. Cheney, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2661. Copies of all non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone 202–205–2000. General information concerning the Commission
The Commission instituted this investigation on June 4, 2014, based on a complaint filed by Spansion LLC (“Spansion”). 79 FR 32312–13 (June 4, 2014). The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain non-volatile memory chips and products containing the same by reason of infringement of four U.S. patents. The notice of investigation named as respondents Macronix International Co., Ltd.; Macronix Asia Limited; Macronix (Hong Kong) Co., Ltd.; Macronix America, Inc. (collectively, “Macronix”); Acer Inc.; Acer America Corp.; ADT-Corp.; Amazon.com, Inc.; ASRock Inc.; ASRock America, Inc.; ASUSTeK Computer Inc.; Asus Computer International; Belkin International, Inc.; D-Link Corporation; D-Link Systems, Inc.; Leap Motion, Inc.; Lowe's Companies, Inc.; Lowe's Home Centers, LLC (f/k/a Lowe's Home Centers, Inc.); Microsoft Corp.; Nintendo Co., Ltd.; Nintendo of America, Inc.; Sercomm Corporation; Vonage Holdings Corp.; Vonage America Inc.; and Vonage Marketing LLC.
On January 29, 2015, Spansion and all respondents filed an unopposed motion to terminate the investigation based on a settlement agreement between Spansion and Macronix. On the same day, Spansion and Macronix filed a joint motion to limit service of their settlement agreement pursuant to Commission Rule 210.21(b)(1). On February 9, 2015, Commission investigative attorney Monisha Deka (“IA”) filed a response in support of both motions.
On February 18, 2015, the ALJ issued the subject ID granting both motions and terminating the investigation. The ALJ noted the parties' assertion that the settlement agreement between Spansion and Macronix fully resolves the investigation with respect to all respondents and that there are no other agreements between the parties concerning the subject matter of this investigation. The ALJ further found no evidence that termination based on the settlement agreement would impose any undue burdens on public health and welfare, competitive conditions in the U.S. economy, the production of like or directly competitive articles in the United States, or U.S. consumers. To the contrary, the ALJ found that termination is in the public interest because it would avoid needless litigation and conserve public resources.
The ALJ found that Spansion and Macronix filed a confidential and public version of the settlement agreement in compliance with Commission Rule 210.21(b). The ALJ additionally found that because the settlement agreement at issue is confidential between Spansion and Macronix, there was good cause to limit service of that agreement to Spansion, the Macronix respondents, and the IA. No petitions for review of the ID were filed.
The Commission has determined not to review the ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the presiding administrative law judge has issued a Final Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bond in the above-captioned investigation. The Commission is soliciting comments from the public on public interest issues raised by the recommended relief, specifically that if the Commission were to find a violation of section 337, 19 U.S.C. 1337, that the Commission issue limited exclusion orders and cease and desist orders directed to the respondents. The ALJ rejected the respondents' arguments that the public interest stands in the way of relief for the complainants. This notice is soliciting public interest comments from the public only. Parties are to file public interest submissions pursuant to 19 CFR 210.50(a)(4).
Sidney A. Rosenzweig, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708–2532. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
Section 337 of the Tariff Act of 1930 provides that if the Commission finds a violation it shall exclude the articles concerned from the United States:
The Commission is interested in further development of the record on the public interest in these investigations. Accordingly, members of the public are invited to file submissions of no more than five (5) pages, inclusive of attachments, concerning the public interest in light of the administrative law judge's Recommended Determination on Remedy and Bond issued in this investigation on February 27, 2015. Comments should address whether issuance of a limited exclusion order and/or cease and desist orders in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the recommended orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the recommended orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the recommended orders within a commercially reasonable time; and
(v) explain how the limited exclusion order and/or cease and desist orders would impact consumers in the United States.
Written submissions must be filed no later than by close of business on Tuesday, April 7, 2015.
By order of the Commission.
In accordance with section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on December 11, 2014, applicable to workers of Mondi Bags USA, LLC, New Philadelphia Plant, New Philadelphia, Ohio. The Notice of Determination was published in the
At the request of a State Workforce Official, the Department reviewed the certification for workers of the subject firm. The workers' firm is engaged in the production of multiwall bags.
The investigation confirmed that the worker group includes workers whose wages are reported under Graphic Packaging Industrial. Based on these findings, the Department is amending this certification to include those workers.
The amended notice applicable to TA–W–85,665 is hereby issued as follows:
All workers of Mondi Bags USA, LLC, New Philadelphia Plant, including workers whose wages are reported under Graphic Packaging Industrial, New Philadelphia, Ohio, who became totally or partially separated from employment on or after November 13, 2013 through December 11, 2016, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974, as amended.
In accordance with section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on June 24, 2014, applicable to workers of Riverside Manufacturing Company, Main Sewing Plant, including on-site leased workers from Ambassador Personnel, Riverside, Georgia (TA–W–85,243) and Riverside Manufacturing Company, ReComTec Division, including on-site leased workers from Ambassador Personnel, Riverside, Georgia (TA–W–85,243A). The Notice of Determination was published in the
At the request of a State Workforce Official, the Department reviewed the certification for workers of the subject firm. The workers' firm is engaged in the production of apparel.
The investigation confirmed that the worker group includes workers whose wages are reported under Affinity Apparel. Based on these findings, the Department is amending this certification to include those workers.
The amended notice applicable to TA–W–85,243 is hereby issued as follows:
All workers of Riverside Manufacturing Company, Main Sewing Plant, including workers whose wages are reported under Affinity Apparel, and including on-site leased workers from Ambassador Personnel, Riverside, Georgia (TA–W–85,243) and Riverside Manufacturing Company, ReComTec Division, including workers whose wages are reported under Affinity Apparel, and including on-site leased workers from Ambassador Personnel, Riverside, Georgia (TA–W–85,243A), who became totally or partially separated from employment on or after April 16, 2013 through June 24, 2016, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974, as amended.
In accordance with section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment
At the request of a state workforce official, the Department reviewed the certification for workers of the subject firm. The firm is engaged in the production of electrical power control systems.
The investigation confirmed that workers of Ensin Maintenance Services were employed on-site and were sufficiently under the control of the subject firm to be considered leased workers.
The amended notice applicable to TA–W–85,483 and TA–W–85,483A is hereby issued as follows:
All workers of SMC Electrical Products, Inc., a subsidiary of Becker Mining America, Inc., including on-site leased workers from Bristol Computer Services, Kelly Services and Ensin Maintenance Services, Barboursville, West Virginia (TA–W–85,483) and SMC Electrical Products, Inc., a subsidiary of Becker Mining America, Inc., including on-site leased workers from Bristol Computer Services and Kelly Services, Delta, Colorado (TA–W–85,483A) who became totally or partially separated from employment on or after August 13, 2013 through September 26, 2016 are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974, as amended.
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than March 30, 2015.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than March 30, 2015.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N–5428, 200 Constitution Avenue NW., Washington, DC 20210.
Notice.
The Department of Labor (DOL) is submitting the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled, “Bloodborne Pathogens Standard,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before April 17, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–OSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Bloodborne Pathogens Standard information collection. The Bloodborne Pathogen Standard is an occupational safety and health standard that prevents occupational exposure to bloodborne pathogens. The standard's information collection requirements are essential components that protect workers from occupational exposure. The information is used by employers and workers to implement the protection required by the Standard. OSHA compliance officers will use some of the information in enforcing the Standard. The collections of information contained in the Bloodborne Pathogens Standard include a written exposure control plan, documentation of workers' hepatitis B vaccinations and post-exposure evaluations and follow-up medical visits, training, related recordkeeping and a sharps injury log. Information generated in accordance with these provisions provides the employer and the worker with means to provide protection from the adverse health effects associated with occupational exposure to bloodborne pathogens. Occupational Safety and Health Act sections 2(b)(9), 6, and 8(c) authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on March 31, 2015. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA–W) number and alternative trade adjustment assistance (ATAA) by (TA–W) number issued during the period of
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Section (a)(2)(A) all of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. the sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or
II. Section (a)(2)(B) both of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. there has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and
C. One of the following must be satisfied:
1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States;
2. the country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or
3. there has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
Also, in order for an affirmative determination to be made for secondarily affected workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) Significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) a loss or business by the workers' firm with the firm (or subdivision) described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of Section 246(a)(3)(A)(ii) of the Trade Act must be met.
1. Whether a significant number of workers in the workers' firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that are not easily transferable.
3. The competitive conditions within the workers' industry (
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
In the following cases, it has been determined that the requirements of 246(a)(3)(A)(ii) have not been met for the reasons specified.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
Because the workers of the firm are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA.
The investigation revealed that criteria (a)(2)(A)(I.A.) and (a)(2)(B)(II.A.) (employment decline) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.C.) (increased
The workers' firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
I hereby certify that the aforementioned determinations were issued during the period of
National Aeronautics and Space Administration.
Notice of intent to grant a partially exclusive license.
This notice is issued in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant a partially exclusive license in the United States to practice the invention described and claimed in U.S. Patent Application Serial No. 13/987,251 entitled Fluid Harmonic Absorber and U.S. Patent No. 8,939,178 entitled Variable-Aperture Reciprocating Reed Valve to Thornton Tomasetti, Inc., having its principal place of business in New York, NY. The patent rights in these inventions have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective partially exclusive license will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7.
The prospective partially exclusive license may be granted unless, within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated exclusive license.
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Objections relating to the prospective license may be submitted to Mr. James J. McGroary, Chief Patent Counsel/LS01, Marshall Space Flight Center, Huntsville, AL 35812, (256) 544–0013.
Mr. Sammy A. Nabors, Technology Transfer Office/ZP30, Marshall Space Flight Center, Huntsville, AL 35812, (256) 544–5226. Information about other NASA inventions available for licensing can be found online at
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–463, as amended, the National Aeronautics and Space Administration announces a meeting of the Ad Hoc Task Force on Science, Technology, Engineering and Mathematics (STEM) of the NASA Advisory Council (NAC). This Task Force reports to the NAC.
Friday, April 3, 2015, 9:00 a.m. to 3:00 p.m., Local Time.
NASA Headquarters, Room 4U25 (Education Conference Room), 300 E Street SW., Washington, DC 20546.
Dr. Beverly Girten, Executive Secretary for the Ad Hoc Task Force on STEM Education, NASA Headquarters, Washington, DC 20546, (202) 358–0212, or
The meeting will be open to the public up to the seating capacity of the room. This meeting is also available telephonically and by WebEx. You must use a touch tone phone to participate in this meeting. Any interested person may dial the toll free access number 844–467–6272 or toll access number 720–259–6462, and then the numeric participant passcode: 329152 followed by the # sign. To join via WebEx on April 3, the link is
Attendees will be requested to sign a register and to comply with NASA
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize agencies to preserve records of continuing value in the National Archives of the United States and to destroy, after a specified period, records lacking administrative, legal, research, or other value. NARA publishes notice for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules.
NARA must receive requests for copies in writing by April 17, 2015. Once NARA completes appraisal of the records, we will send you a copy of the schedule you requested. NARA staff usually prepare appraisal memoranda that contain additional information concerning the records covered by a proposed schedule. You may also request these and we will provide them once we have completed the appraisal as well. You have 30 days after we send the documents in which to submit comments.
You may request a copy of any records schedule identified in this notice by contacting Records Management Services (ACNR) using one of the following means:
Requesters must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and must provide a mailing address. If you would also like the appraisal reports, please say so in your request.
Margaret Hawkins, Director, Records Management Services (ACNR), by mail at: National Archives and Records Administration; 8601 Adelphi Road; College Park, MD 20740–6001, by telephone at 301–837–1799, or by email at
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval. These schedules provide for timely transfer into the National Archives of historically valuable records and authorize disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media-neutral unless specified otherwise. An item in a schedule is media-neutral when the disposition instructions may be applied to records regardless of the medium in which the records are created and maintained. Items included in schedules submitted to NARA on or after December 17, 2007, are media-neutral unless the item is limited to a specific medium. (See 36 CFR 1225.12(e).)
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of individuals directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of Defense, Defense Logistics Agency (DAA–0361–2014–0013, 1 item, 1 temporary item). Master files of an electronic information system that contains records relating to criminal incidents that occurred at agency facilities.
2. Department of Defense, Defense Logistics Agency (DAA–0361–2014–
3. Department of Defense, Defense Logistics Agency (DAA–0361–2015–0004, 1 item 1 temporary item). Records documenting fuel deliveries to naval ships or shore facilities.
4. Department of Defense, National Reconnaissance Office (N1–525–14–1, 1 item, 1 temporary item). Records related to administrative information technology and communications policy files.
5. Department of the Navy, Office of the General Counsel (DAA–0428–2015–0001, 1 item, 1 temporary item). Master files of an electronic information system used to track, organize, and view legal discovery documents.
6. Department of State, Bureau of Energy Resources (DAA–0059–2015–0002, 3 items, 3 temporary items). Records of the Office of Energy Diplomacy including project files, working files, and background material.
7. Department of Veterans Affairs, Office of Congressional and Legislative Affairs (DAA–0015–2014–0003, 1 item, 1 temporary item). Records relating to audits and performance reviews including comments, drafts, and final reports.
8. Court Services and Offenders Supervision Agency for the District of Columbia, Community Justice Programs (DAA–0562–2013–0004, 1 item, 1 temporary item). Master files of an electronic information system used to generate substance abuse treatment plans for defendants and offenders.
9. Court Services and Offenders Supervision Agency for the District of Columbia, Community Supervision Services (DAA–0562–2013–0011, 1 item, 1 temporary item). Case files of offenders under probation or parole.
10. Court Services and Offenders Supervision Agency for the District of Columbia, Community Supervision Services (DAA–0562–2013–0023, 1 item, 1 temporary item). Master files of an electronic information system used to manage the physical location of offender case files.
11. Court Services and Offenders Supervision Agency for the District of Columbia, Community Supervision Services (DAA–0562–2013–0025, 1 item, 1 temporary item). Master files of an electronic information system used to track the physical location of supervised offenders wearing tracking devices.
12. Court Services and Offenders Supervision Agency for the District of Columbia, Pretrial Services Agency (DAA–0562–2013–0026, 1 item, 1 temporary item). Master files of an electronic information system used to determine pre-trial release conditions and compliance of defendants.
13. National Archives and Records Administration, Research Services (N2–70–14–1, 2 items, 2 temporary items). Records of the Bureau of Mines, consisting of Petroleum Division records relating to petroleum in foreign countries and Technical Cooperation Administration country files. These records were accessioned to the National Archives but lack sufficient historical value to warrant their continued preservation.
14. Recovery Accountability and Transparency Board, Agency-wide (DAA–0220–2014–0015, 11 items, 11 temporary items). Web site and social media records including content, media, and management and support files.
2:00 p.m., Monday, March 23, 2015.
NeighborWorks America—Gramlich Boardroom, 999 North Capitol Street NE., Washington, DC 20002.
Open (with the exception of Executive Session).
Jeffrey Bryson, General Counsel/Secretary, (202) 760–4101;
Nuclear Regulatory Commission.
Confirmatory order; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing a confirmatory order to Honeywell International, Inc. (Honeywell), confirming an agreement reached in an Alternative Dispute Resolution session held on December 9, 2014. As part of the agreement, Honeywell will conduct presentations and training to its employees regarding the policy for raising employee concerns, addressing safety issues, and management response to employee concerns; modify existing processes and develop new processes that provide for ongoing support for employee protection requirements; and review and update its Safety Conscious Work Environment policy and incorporate aspects of the NRC's Safety Culture Policy, as appropriate. The NRC will refrain from issuing a Notice of Violation or proposing a civil penalty.
The confirmatory order was effective on March 11, 2015.
Please refer to Docket ID NRC–2015–0062 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this action by the following methods:
•
•
•
Daniel Lenehan, telephone: 301–415–3501, email:
The text of the Order is attached.
For the Nuclear Regulatory Commission.
Honeywell International Inc. (Honeywell or Licensee) is the holder of Materials License No. SUB–526, issued by the U. S. Nuclear Regulatory Commission (NRC or Commission) pursuant to Title 10 of the Code of Federal Regulations (10 CFR) Part 40 on May 11, 2007, and Materials License Nos. 12–15023–02E and 15–19986–01E, issued by the NRC pursuant to 10 CFR part 30 on September 7, 2012 and October 2, 2014, respectively. The licenses authorize the operation of Honeywell's Metropolis, Illinois, facility; and specific licenses for exempt distribution of byproduct material at Honeywell's St. Charles, Illinois; and Olathe, Kansas facilities in accordance with conditions specified therein.
This confirmatory order (Order) is the result of an agreement reached during an alternative dispute resolution (ADR) mediation session conducted on December 9, 2014.
On May 29, 2013, the NRC Office of Investigations (OI) initiated an investigation to determine whether a contractor at Honeywell's Metropolis, Illinois facility, Bluestone, LLC (Bluestone), terminated one of its employees for, in part, notifying both Honeywell and Bluestone of a safety concern. The investigation was completed on May 15, 2014, and was documented in OI Report No. 2–2013–030. Based upon evidence developed during its investigation, the NRC identified an apparent violation of 10 CFR 40.7, “Employee protection,” involving a former Bluestone employee who was terminated for, in part, notifying both Honeywell and Bluestone that the employee smelled alcohol on the employee's immediate supervisor's breath onsite and during duty hours. By letter dated September 26, 2014, the NRC identified to Honeywell the apparent violation of 10 CFR 40.7, “Employee protection,” and offered Honeywell the opportunity to provide a response in writing, attend a pre-decisional enforcement conference, or to request alternative dispute resolution (ADR) in which a neutral mediator with no decision-making authority would facilitate discussions between the NRC and Honeywell and, if possible, assist the NRC and Honeywell in reaching an agreement on resolving the matter.
In response to the NRC's letter, Honeywell chose to participate in ADR. On December 9, 2014, the NRC and Honeywell met in an ADR session mediated by a professional mediator, arranged through Cornell University's Institute on Conflict Resolution. During that ADR session, a preliminary settlement agreement was reached, and this Order is issued pursuant to that agreement.
The NRC acknowledges that Bluestone no longer provides services as a contractor at Honeywell's Metropolis, Illinois facility.
During the ADR mediation session, a preliminary settlement agreement was reached. The elements of the agreement, as signed by both parties, consisted of the following:
1. Communication:
Conducting presentations by senior Honeywell managers to inform Honeywell's employees and the employees of Honeywell's contractors of Honeywell's policy regarding raising employee concerns and management treatment of such concerns.
2. Training:
Presenting training regarding raising safety concerns, addressing safety issues, and management response to employee concerns.
3. Work Process:
Modifying existing processes and developing new processes that provide for ongoing management support for employee protection requirements.
4. Policy Guidance:
Reviewing and updating Honeywell's Safety Conscious Work Environment (SCWE) policy and incorporating applicable aspects of NRC's Safety Culture Policy, as appropriate.
5. Enforcement Consideration:
During the ADR process, Honeywell neither admitted nor denied that a violation occurred. This confirmatory order, therefore, should not be used as evidence that a violation in fact occurred or that Honeywell agrees that a violation occurred. The NRC will refrain from issuing a Notice of Violation or proposing a civil penalty for all matters discussed in the NRC's letter of September 26, 2014 (EA–14–114).
On February 26, 2015, Honeywell consented to issuing this Order with the commitments described in Section V below. Honeywell further agreed that this Order is to be effective upon issuance and that it has waived its right to a hearing.
Since Honeywell has agreed to take additional actions to address NRC concerns, as set forth below in Section V, the NRC has concluded that its concerns can be resolved through the effective implementation of Honeywell's commitments.
I find that Honeywell's commitments as set forth in Section V are acceptable and necessary and conclude that with these commitments the public health and safety are reasonably assured. In view of the foregoing, I have determined that public health and safety require that Honeywell's commitments be confirmed by this Order. Based on the above and Honeywell's consent, this Confirmatory Order is immediately effective upon issuance.
Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR parts 30 and 40, IT IS HEREBY ORDERED, EFFECTIVE IMMEDIATELY, THAT LICENSE NOS. SUB–526, 12–15023–02E, and 15–19986–01E ARE MODIFIED AS FOLLOWS:
A.
1. By no later than sixty (60) calendar days after the issuance of this confirmatory order (Order), one or more members of Honeywell's management, at a level at least equal to the Plant Manager at Honeywell's Metropolis, Illinois facility, will issue site-wide written communication to all employees at the Honeywell's Metropolis facility and to all personnel engaged in NRC-regulated activities at the Olathe Service Center (Olathe, Kansas) and System Sensor (St. Charles, Illinois) facilities, reinforcing Honeywell's commitment to maintaining a safety conscious work environment (SCWE) and reaffirming Honeywell's insistence upon the protection of employees' right and obligation to raise safety issues.
2. By no later than ninety (90) calendar days after the issuance of this Order, Honeywell shall communicate its SCWE policy to Honeywell employees at Honeywell's Metropolis, Illinois facility in one or more all-hands meetings, providing employees with the opportunity to ask questions in a live forum.
3. By no later than ninety (90) calendar days after the issuance of this Order, Honeywell shall place posters in strategic areas throughout Honeywell Metropolis, Illinois facility to promote SCWE and inform employees of avenues available to employees to raise concerns including the NRC.
4. By no later than ninety (90) calendar days after the issuance of this Order, Honeywell shall develop and distribute pocket-sized cards that discuss avenues available to employees to raise concerns including the NRC. Honeywell shall distribute these cards to all employees at Honeywell's Metropolis, Illinois facility, and to all personnel engaged in NRC regulated activities at the Olathe Service Center (Olathe, Kansas) and System Sensor (St. Charles, Illinois) facilities.
5. By no later than one (1) year after the issuance of this Order, a Honeywell representative shall provide a presentation at a public forum about Honeywell's SCWE policy and its compliance program relating to the NRC's Employee Protection Rule.
B.
1. Honeywell shall review its existing general employee training to ensure coverage of NRC's Employee Protection Rule (10 CFR 40.7). The training will include insights from the underlying matter and SCWE, case studies, and behavioral observation. This review will be completed and documented within one hundred twenty (120) calendar days of the issuance of this Order. If this review reveals a need to revise the general employee training, Honeywell shall make the appropriate revisions within one hundred eighty (180) calendar days of the issuance of this Order.
2. By no later than one hundred eighty (180) calendar days after the issuance of this Order, Honeywell shall develop initial SCWE training for all employees and behavioral observation supervisor training to include discussion of the NRC's Employee Protection Rule, case studies and table top role playing. This will be included in any return-to-work training for all employees and in all new supervisor training. Honeywell shall provide annual refresher training for Honeywell supervisors after the initial training. Honeywell shall use a training instructor (internal or external) with expertise in SCWE and NRC regulations to conduct such training.
3. By no later than one hundred eighty (180) calendar days after the issuance of this Order, Honeywell shall modify its existing B-council training to include behavioral observation and SCWE topics twice every twelve (12) months.
4. By no later than two hundred seventy (270) calendar days after the issuance of this Order, Honeywell shall develop and provide biennial SCWE and behavioral observation training for employees to include case studies and the NRC's Employee Protection Rule (10 CFR 40.7). Honeywell shall use a training instructor (internal or external) with expertise in SCWE and NRC regulations for such training. This training shall be included in the new employee training.
5. By no later than two hundred seventy (270) calendar days after the issuance of this Order, Honeywell shall develop and provide initial SCWE training for all personnel engaged in NRC-regulated activities at the Metropolis, IL, Olathe Service Center (Olathe, Kansas) and System Sensor (St. Charles, Illinois) facilities to include the NRC's Employee Protection Rule (10 CFR 30.7). Honeywell shall provide annual refresher training after the initial training. Honeywell shall use a training instructor (internal or external) with expertise in SCWE and NRC regulations to conduct such training.
C.
1. By no later than ninety (90) calendar days after the issuance of this Order, Honeywell shall modify the Incident Tracking and Corrective Action (ITCA) process to accept anonymous submissions from employees. Honeywell shall update the ITCA procedure on checking, processing and addressing any concerns. In case of non-anonymous submissions, employees may request a copy of the submission as entered into the ITCA.
2. By no later than ninety (90) calendar days after the issuance of this Order, Honeywell shall establish a procedure to include guidance on monitoring and processing concerns and informing management of concerns received through the Honeywell SCWE hotline.
3. By no later than one hundred twenty (120) calendar days after the issuance of this Order, Honeywell shall develop and include a provision in any new or renewed agreements with its contractors that expressly highlights the contractor's obligation to comply with the applicable NRC Employee Protection Rule (10 CFR 40.7).
4. By no later than one hundred twenty (120) calendar days after the issuance of this Order, Honeywell shall ensure that new and renewed contracts entered into by Honeywell require contractors, when any formal adverse action is taken against a contractor employee at the Metropolis, Illinois facility (
5. By no later than one hundred twenty (120) calendar days after the issuance of this Order, Honeywell shall modify the Honeywell Designated Representative (HDR) procedure to require the HDR to periodically inquire about any concerns raised through a contractor's concerns resolutions program that have not been submitted to any of Honeywell's concerns resolution avenues. The HDR shall enter such concerns in Honeywell's ITCA system as appropriate.
6. By no later than one hundred twenty (120) calendar days after the issuance of this Order, Honeywell shall develop and implement a procedure for behavioral observation activities.
D.
1. By no later than ninety (90) calendar days after the issuance of this Order, Honeywell shall review and update Honeywell's SCWE policy and incorporate into the SCWE policy the applicable aspects of the NRC's Safety Culture Policy statement as appropriate.
In the event of the transfer of the operating license of an applicable Honeywell facility to another entity, the commitments for such facility shall survive any transfer of ownership.
The Director, Office of Enforcement, may, in writing, relax or rescind any of
In consideration for the actions and/or initiatives that Honeywell agrees to undertake, as outlined above, the NRC agrees not to pursue any further enforcement action based on the notice of apparent violation of employee protection requirements (Case no. EA–14–114, Office of Investigations report No. 2–2013–030), dated May 15, 2014.
Any person adversely affected by this Confirmatory Order, other than Honeywell International Inc., may request a hearing within 30 days of its publication in the
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 E-Filing rule, 10 CFR 2.301. The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten (10) days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange (EIE), users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket, which is available to the public at
If a person other than Honeywell requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Confirmatory Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
If a hearing is requested by a person whose interest is adversely affected, the Commission will issue an order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Confirmatory Order should be sustained.
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section V above shall be final 20 days from the date this Confirmatory Order is published in the
A REQUEST FOR HEARING SHALL NOT STAY THE IMMEDIATE EFFECTIVENESS OF THIS ORDER.
Dated at Rockville, Maryland, this 11th day of March, 2015.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, Billing Instructions for NRC Cost Type Contracts.
Submit comments by May 18, 2015. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
• Federal Rulemaking Web site: Go to
• Mail comments to: Tremaine Donnell, Office of Information Services, Mail Stop: T–5 F53, 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
Tremaine Donnell, Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–6258; email:
Please refer to Docket ID NRC–2015–0046 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.
• NRC's Clearance Officer: A copy of the collection of information and related instructions may be obtained without charge by contacting NRC's Clearance Officer, Tremaine Donnell, Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–6258; email:
Please include Docket ID NRC–2015–0046 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.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking 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 estimate of the burden of the information collection 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 on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1)
The proposed rule change consists of technical amendments to the Settlement Service Guide (“Guide”) in order to make technical changes and updates to its text.
In its filing with the Commission, DTC 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. DTC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Pursuant to the proposed rule change the Guide would be revised to:
(i) Refer to the “Settlement User Interface” rather than the “Settlement Web”, “Participant Terminal System” and “Participant Browser Service”;
(ii) update the text of the Settling Bank Processing Schedule and other text in the Guide to reflect that DTC end-of-day net settlement is processed through the National Settlement Service (NSS) of the Federal Reserve System, specifically, that DTC submits to the Federal Reserve Bank of New York a file to debit and credit Federal Reserve accounts of Settling Banks simultaneously;
(iii) delete references to the “U.S. program” of EuroCCP (which has ceased to exist) as well as any references to related DTC processing provisions that are obsolete as a result;
(iv) simplify and update other text, including descriptions of processes and timeframes, contact information for settlement processing and cross-references; and
(v) conform grammar and usage throughout the Guide.
The proposed rule changes would become effective immediately.
The proposed rule change would update the Guide to make technical changes and updates to the Guide to reflect current terminology, systems functionality, practices and processing timeframes, which would simplify and clarify the Guide's text. Therefore, DTC believes the proposed rule change is consistent with the requirements of: (i) The Act, in particular Section 17A(b)(3)(F) of the Act,
DTC does not believe that the proposed rule change would have any impact, or impose any burden, on competition.
Written comments relating to the proposed rule change have not yet been solicited or received. DTC will notify the Commission of any written comments received by DTC.
The foregoing rule change has become effective pursuant to Section
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 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.
On November 14, 2014, Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The proposed rule change, as modified by Amendment No. 1, is described in Items II and III below, which Items have been substantially prepared by FINRA.
FINRA is proposing Amendment No. 1 to SR–FINRA–2014–047, a proposed rule change to adopt NASD Rule 2711 (Research Analysts and Research Reports) as a FINRA rule, with several modifications. The proposed rule change also would amend NASD Rule 1050 (Registration of Research Analysts) and Incorporated NYSE Rule 344 to create an exception from the research analyst qualification requirement. The proposed rule change would renumber NASD Rule 2711 as FINRA Rule 2241 in the consolidated FINRA rulebook.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA 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 V below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On November 14, 2014, FINRA filed with the Securities and Exchange Commission (“Commission”) SR–FINRA–2014–047,
The Commission published the proposed rule change for public comment in the
As described in greater detail in the Proposing Release, the proposed rule change would retain the core provisions of the current rules, broaden the obligations on members to identify and manage research-related conflicts of interest, restructure the rules to provide some flexibility in compliance without diminishing investor protection, extend protections where gaps have been identified, and provide clarity to the applicability of existing rules. Where consistent with protection of users of research, the proposed rule change reduces burdens where appropriate. The description below is the proposal as amended by Amendment No. 1.
FINRA is proposing to mostly maintain the definitions in current NASD Rule 2711, with the following modifications:
• Minor changes to the definition of “investment banking services” to clarify that such services include all acts in furtherance of a public or private offering on behalf of an issuer.
• clarification in the definition of “research analyst account” that the definition does not apply to a registered investment company over which a research analyst or member of the research analyst's household has discretion or control, provided that the research analyst or member of the research analyst's household has no financial interest in the investment company, other than a performance or management fee.
• exclusion from the definition of “research report” of communications concerning open-end registered investment companies that are not listed or traded on an exchange (“mutual funds”).
• exclusion from the definition of “research report” of communications that constitute private placement memoranda and comparable offering-related documents prepared in connection with investment banking services transactions, other than those that purport to be research.
• move into the definitional section the definitions of “third-party research report” and “independent third-party research report” that are now in a separate provision of the rule.
• adoption of a definition of “sales and trading personnel” to include persons in any department or division, whether or not identified as such, who perform any sales or trading service on behalf of a member.
FINRA is proposing to create a new section entitled “Identifying and Managing Conflicts of Interest.” This section contains an overarching provision that requires members to establish, maintain and enforce written policies and procedures reasonably designed to identify and effectively manage conflicts of interest related to the preparation, content and distribution of research reports and public appearances by research analysts and the interaction between research analysts and persons outside of the research department, including investment banking and sales and trading personnel, the subject companies and customers.
FINRA is proposing that the required policies and procedures must prohibit prepublication review, clearance or approval of research reports by persons engaged in investment banking services activities and restrict or prohibit such
The proposed rule change would require that the policies and procedures restrict or limit input by the investment banking department into research coverage decisions to ensure that research management independently makes all final decisions regarding the research coverage plan.
The proposed rule change would require that the policies and procedures prohibit persons engaged in investment banking activities from supervision or control of research analysts, including influence or control over research analyst compensation evaluation and determination.
The proposed rule change would require that the policies and procedures limit determination of the research department budget to senior management, excluding senior management engaged in investment banking services activities.
The proposed rule change would require that the policies and procedures prohibit compensation based upon specific investment banking services transactions or contributions to a member's investment banking services activities.
The proposed rule change would require that the policies and procedures establish information barriers or other institutional safeguards reasonably designed to ensure that research analysts are insulated from the review, pressure or oversight by persons engaged in investment banking services activities or other persons, including sales and trading personnel, who might be biased in their judgment or supervision.
The proposed rule change would require that the policies and procedures prohibit direct or indirect retaliation or threat of retaliation against research analysts employed by the member or its affiliates by persons engaged in investment banking services activities or other employees as the result of an adverse, negative, or otherwise unfavorable research report or public appearance written or made by the research analyst that may adversely affect the member's present or prospective business interests.
The proposed rule change would require that the policies and procedures define quiet periods of a minimum of 10 days after an initial public offering (“IPO”), and a minimum of three days after a secondary offering, during which the member must not publish or otherwise distribute research reports, and research analysts must not make public appearances, relating to the issuer if the member has participated as an underwriter or dealer in the IPO or, with respect to the quiet periods after a secondary offering, acted as a manager or co-manager of that offering.
With respect to these quiet-period provisions, the proposed rule change reduces the current 40-day quiet period for IPOs to a minimum of 10 days after the completion of the offering for any member that participated as an underwriter or dealer, and reduces the 10-day secondary offering quiet period to a minimum of three days after the completion of the offering for any member that has acted as a manager or co-manager in the secondary offering. The proposed rule change maintains exceptions to the quiet periods for research reports or public appearances concerning the effects of significant news or a significant event on the subject company and, for secondary offerings, research reports or public appearances pursuant to SEC Rule 139 regarding a subject company with “actively-traded securities.”
The proposed rule change also eliminates the current quiet periods 15 days before and after the expiration, waiver or termination of a lock-up agreement.
In addition, the proposed rule change requires firms to adopt written policies and procedures to restrict or limit activities by research analysts that can reasonably be expected to compromise their objectivity.
The proposed rule change also adds Supplementary Material .01, which codifies the existing interpretation that the solicitation provision prohibits members from including in pitch materials any information about a member's research capacity in a manner that suggests, directly or indirectly, that the member might provide favorable research coverage.
The proposed rule establishes a new proscription with respect to joint due diligence activities—
The proposed rule continues to prohibit investment banking department personnel from directly or indirectly directing a research analyst to engage in sales or marketing efforts related to an investment banking services transaction, and directing a research analyst to engage in any communication with a current or prospective customer about an investment banking services transaction.
FINRA is proposing to maintain the current prohibition against promises of favorable research, a particular research recommendation, rating or specific content as inducement for receipt of business or compensation.
FINRA is proposing to require that firms establish written policies and procedures that restrict or limit research analyst account trading in securities, any derivatives of such securities and funds whose performance is materially dependent upon the performance of securities covered by the research analyst.
With a couple of modifications, the proposed rule change maintains the current disclosure requirements. The proposed rule change adds a requirement that a member must establish, maintain and enforce written policies and procedures reasonably designed to ensure that purported facts in its research reports are based on reliable information.
In addition, the proposed rule change would require a member to disclose in any research report at the time of publication or distribution of the report:
• If the research analyst or a member of the research analyst's household has a financial interest in the debt or equity securities of the subject company (including, without limitation, whether it consists of any option, right, warrant, future, long or short position), and the nature of such interest;
• if the research analyst has received compensation based upon (among other factors) the member's investment banking revenues;
• if the member or any of its affiliates: (i) Managed or co-managed a public offering of securities for the subject company in the past 12 months; (ii) received compensation for investment banking services from the subject company in the past 12 months; or (iii) expects to receive or intends to seek compensation for investment banking services from the subject company in the next three months;
• if, as of the end of the month immediately preceding the date of
• if the subject company is, or over the 12-month period preceding the date of publication or distribution of the research report has been, a client of the member, and if so, the types of services provided to the issuer. Such services, if applicable, must be identified as either investment banking services, non-investment banking services, non-investment banking securities-related services or non-securities services;
• if the member was making a market in the securities of the subject company at the time of publication or distribution of the research report;
• if the research analyst received any compensation from the subject company in the previous 12 months.
The proposed rule change would also expand upon the current “catch-all” disclosure, which mandates disclosure of any other material conflict of interest of the research analyst or member that the research analyst knows or has reason to know of at the time of the publication or distribution of a research report. The proposed rule change goes beyond the existing provision by requiring disclosure of material conflicts known not only by the research analyst, but also by any “associated person of the member with the ability to influence the content of a research report.”
The proposed rule change also maintains the requirement to disclose when a member or its affiliates beneficially own 1% or more of any class of common equity securities of the subject company.
The proposal modifies the exception for disclosure that would reveal material non-public information regarding specific potential future investment banking transactions of the subject company to include specific potential future investment banking transactions of other companies, such as a competitor of the subject company.
The proposal groups in a separate provision the disclosures required when a research analyst makes a public appearance.
With respect to both research reports and public appearances, members and research analysts would continue to be required to comply with applicable disclosure provisions of FINRA Rule 2210 and the federal securities laws.
The proposed rule change retains with non-substantive modifications the provision in the current rules that requires a member to notify its customers if it intends to terminate coverage of a subject company.
The proposal requires firms to establish, maintain and enforce written policies and procedures reasonably designed to ensure that a research report is not distributed selectively to internal trading personnel or a particular customer or class of customers in advance of other customers that the firm has previously determined are entitled to receive the research report.
The proposal would maintain the existing third-party disclosure requirements,
In addition, the proposal continues to address qualitative aspects of third-party research reports. For example, the proposal maintains, but in the form of policies and procedures, the existing requirement that a registered principal or supervisory analyst review and approve third-party research reports distributed by a member. To that end, the proposed rule change requires a member to establish, maintain and enforce written policies and procedures reasonably designed to ensure that any third-party research it distributes contains no untrue statement of material fact and is otherwise not false or misleading. For the purpose of this requirement, a member's obligation to review a third-party research report extends to any untrue statement of material fact or any false or misleading information that should be known from reading the research report or is known based on information otherwise possessed by the member.
The proposal maintains the existing exceptions for “independent third-party research reports.” Specifically, such research does not require principal pre-approval or, where the third-party research is not “pushed out,” the third-party disclosures.
Finally, under the proposed rule change, members also must ensure that a third-party research report is clearly labeled as such and that there is no confusion on the part of the recipient as to the person or entity that prepared the research report.
The current rule exempts firms with limited investment banking activity—those that over the previous three years, on average per year, have managed or co-managed 10 or fewer investment banking transactions and generated $5 million or less in gross revenues from those transactions—from the provisions that prohibit a research analyst from being subject to the supervision or control of an investment banking department employee because the potential conflicts with investment banking are minimal.
The proposed rule change further exempts firms with limited investment banking activity from the provisions restricting or limiting research coverage decisions and budget determination. In addition, the proposal exempts eligible firms from the requirement to establish information barriers or other institutional safeguards to insulate research analysts from the review or oversight by investment banking personnel or other persons, including sales and trading personnel, who may be biased in their judgment or supervision. However, those firms still are required to establish information barriers or other institutional safeguards reasonably designed to ensure that research analysts are insulated from
The proposed rule change amends the definition of “research analyst” for the purposes of the registration and qualification requirements to limit the scope to persons who produce “research reports” and whose primary job function is to provide investment research (
The proposed rule change would delete the requirement to attest annually that the firm has in place written supervisory policies and procedures reasonably designed to achieve compliance with the applicable provisions of the rules, including the compensation committee review provision.
Proposed Supplementary Material .09 would clarify the obligations of each associated person under those provisions of the proposed rule change that require a member to restrict or prohibit certain conduct by establishing, maintaining and enforcing particular written policies and procedures. Specifically, the proposal provides that, consistent with FINRA Rule 0140, persons associated with a member must comply with such member's policies and procedures as established pursuant to proposed FINRA Rule 2241.
The proposed rule change would provide FINRA, pursuant to the Rule 9600 Series, with authority to conditionally or unconditionally grant, in exceptional and unusual circumstances, an exemption from any requirement of the proposed rule for good cause shown, after taking into account all relevant factors and provided that such exemption is consistent with the purposes of the rule, the protection of investors, and the public interest.
In connection with Amendment No. 1, FINRA also responded to the comments received on the original proposal as proposed in the Notice, included below.
Three of the four commenters to the proposal expressed general support for the proposal.
One commenter requested that the proposal define the term “sales and trading personnel” as “persons who are primarily responsible for performing sales and trading activities, or exercising direct supervisory authority over such persons.”
One commenter asked FINRA to include an exclusion from the definition of “research report” for private placement memoranda and similar offering-related documents prepared in connection with investment banking services transactions.
The definition of “research report” is generally understood not to include such offering-related documents prepared in connection with investment banking services transactions. In the course of administering the filing review programs under FINRA Rules 2210 (Communications with the Public), 5110 (Corporate Financing Rule), 5122 (Member Private Offerings) and 5123 (Private Placements of Securities), FINRA has not received any inquiries or addressed any issues that indicate there is confusion regarding the scope of the research analyst rules as applied to offering-related documents prepared in connection with investment banking activities. Nonetheless, to provide firms with greater clarity as to the status of such offering-related documents under the proposal, FINRA proposes to amend the proposed rule change to exclude private placement memoranda and similar offering-related documents prepared in connection with investment banking services transactions other than those that purport to be research from the definition of “research report.”
One commenter asked FINRA to refrain from using the concept of “reliable” research in the proposals as it may inappropriately connote accuracy in the context of a research analyst's opinions.
One commenter asked FINRA to eliminate as redundant the term “independently” from the provisions permitting non-research personnel to have input into research coverage, so long as research management “independently makes all final decisions regarding the research coverage plan.”
The rule proposal would adopt a policies and procedures approach to identification and management of research-related conflicts of interest and require those policies and procedures to prohibit or restrict particular conduct. Commenters expressed several concerns with the approach.
Two commenters asserted that the mix of a principles-based approach with prescriptive requirements was confusing in places and posed operational challenges. In particular, the commenters recommended eliminating the minimum standards for the policies and procedures.
As discussed in more detail in the Proposing Release, FINRA believes the framework will maintain the same level of investor protection in the current rules while providing both some flexibility for firms to align their compliance systems with their business model and philosophy and imposing additional obligations to proactively identify and manage emerging conflicts. Even under a policies and procedures approach, the proposals would effectively maintain, with some modifications, the key proscriptions in the current rules—
In light of the overarching principle that requires firms to establish, maintain and enforce written policies and procedures reasonably designed to identify and effectively manage research-related conflicts, the “at a minimum” language was meant to convey that additional conflicts management policies and procedures may be needed to address emerging conflicts that may arise as the result of business changes, such as new research products, affiliations or distribution methods at a particular firm. As discussed in the Proposing Release, FINRA intends for firms to proactively identify and manage those conflicts with appropriately designed policies and procedures. FINRA's inclusion of the “at a minimum” language was not intended to suggest that firms' written policies and procedures must go beyond the specified prohibitions and restrictions in the proposal where no new conflicts have been identified. However, FINRA believes the overarching requirement for policies and procedures reasonably designed to identify and effectively manage research-related conflicts suffices to achieve the intended regulatory objective, and therefore to eliminate any confusion, FINRA proposes to amend the proposal to delete the “at a minimum” language.
FINRA appreciates the commenters' concerns with respect to language in the supplementary material that would make a violation of a firm's policies a violation of the underlying rule. The supplementary material was intended to hold individuals responsible for engaging in the conduct that the policies and procedures effectively restrict or prohibit. FINRA agrees that purpose is achieved with the language in the supplementary material that states that, consistent with FINRA Rule 0140, “it shall be a violation of [the Rule] for an associated person to engage in the restricted or prohibited conduct to be addressed through the establishment, maintenance and enforcement of policies and procedures required by [the Rule] or related Supplementary
The proposed rule would require written policies and procedures to “establish information barriers or other institutional safeguards reasonably designed to ensure that research analysts are insulated from the review, pressure or oversight by persons engaged in investment banking services activities or other persons, including sales and trading department personnel, who might be biased in their judgment or supervision.” Some commenters suggested that “review” was unnecessary in this provision because the review of research analysts was addressed sufficiently in other parts of the proposed rule.
One commenter asked FINRA to clarify that the information barriers or other institutional safeguards required by the proposed rule are not intended to prohibit or limit activities that would otherwise be permitted under other provisions of the rule.
The commenter also asserted that the terms “bias” and “pressure” are broad and ambiguous on their face and requested that FINRA clarify that for purposes of the information barriers requirement that they are intended to address persons who may try to improperly influence research.
One commenter asked FINRA to modify the information barriers or other institutional safeguards requirement to conform the provision to FINRA's “reasonably designed” standard for policies and procedures that members must adopt.
One commenter opposed as overbroad the proposed expansion of the current “catch-all” disclosure requirement to include “any other material conflict of interest of the research analyst or member that a research analyst
FINRA proposed the change to capture material conflicts of interest known by persons other than the research analyst (
FINRA continues to believe that a potential gap exists in the current rules where a supervisor or other person with the authority to change the content of a research report knows of a material conflict. However, FINRA intended for the provision to capture only those individuals who are required to review the content of a particular research report or have exercised their authority to review or change the research report prior to publication or distribution. In addition, FINRA did not intend to capture legal or compliance personnel who may review a research report for compliance purposes but are not authorized to dictate a particular recommendation, rating or price target. FINRA proposes to amend the supplementary material in the proposals consistent with this clarification. In addition, FINRA proposes to modify the exception in proposed Rules 2241(c)(5) and (d)(2) (applying to public appearances) not to require disclosure that would otherwise reveal material non-public information regarding specific potential future investment banking transactions, whether or not the transaction involves the subject company.
One commenter requested confirmation that members may rely on hyperlinked disclosures for research reports that are delivered electronically, even if these reports are subsequently printed out by customers.
The proposal requires firms to establish, maintain and enforce written policies and procedures reasonably designed to ensure that a research report is not distributed selectively to internal trading personnel or a particular customer or class of customers in advance of other customers that the firm has previously determined are entitled to receive the research report. The proposals also include supplementary material that explains that firms may provide different research products to different classes of customers—
One commenter supported the provisions as proposed with general disclosure,
Importantly, the supplementary material states that products may lead to different recommendations or ratings, provided that each is consistent with the member's ratings system for each respective product. In other words, all differing recommendations or ratings must be reconcilable such that they are not truly at odds with one another. Since the proposals would not allow inconsistent recommendations that could mislead one or more investors, FINRA believes general disclosure of alternative products with different objectives and recommendations is appropriate relative to its investor protection benefits.
The proposal would eliminate or reduce the quiet periods during which a member may not publish or otherwise distribute research reports or make a public appearance following its participation in an offering. Citing recent enforcement actions in the research area, one commenter did not support elimination or reduction of the quiet periods.
Other commenters requested that FINRA retain the exceptions in NASD Rule 2711(f) that permits: (i) The publication and distribution of research or a public appearance concerning the effects of significant news or a significant event on the subject company during the quiet period; and (ii) the publication of distribution of research pursuant to Rule 139 under the Securities Act of 1933.
Two commenters opposed the requirement in the equity proposal that members disclose, in an equity research report, if they or their affiliates maintain a significant financial interest in the debt of the research company.
One commenter asked FINRA to confirm in any Regulatory Notice announcing adoption of the proposed rule change that provisions relating to research coverage and budget decisions and joint due diligence are intended to supersede the corresponding terms of the Global Research Analyst Settlement
One commenter opposed the provision that would give FINRA the authority to grant, in exceptional or unusual circumstances, an exemption from the requirement of the proposed rule for good cause shown.
One commenter requested that the implementation date be at least 12 months after SEC approval of the proposed rule change.
FINRA believes that the foregoing fully responds to the issues raised by the commenters.
FINRA will announce the effective date of the proposed rule change in a Regulatory Notice to be published no later than 60 days following Commission approval. The effective date will be no later than 180 days following publication of the Regulatory Notice announcing Commission approval.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
Moreover, the proposed rule change is consistent with Section 15D of the Act,
FINRA 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. FINRA provided a comprehensive statement regarding the burden on competition in the Proposing Release. FINRA's response to comments and proposed revisions as set forth in this Amendment No. 1 do not change FINRA's statement in the Proposing Release.
Written comments on the proposed rule change were solicited by the Commission in response to the publication of SR–FINRA–2014–047.
Within 180 days after the date of publication of the initial 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 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) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its Fees Schedule. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fees Schedule, effective March 2, 2015. Currently, the Exchange assesses a $0.60 per contract fee for electronic executions by broker-dealers, non-Trading Permit Holders (“non-TPHs”) Market-Makers, Professionals/Voluntary Professionals and Joint Back-Offices (“JBOs”) in non-Penny Pilot equity, ETF, ETN and index options (excluding Underlying Symbol List A
The Exchange also seeks to append Footnote 16 to “Clearing Trading Permit Holder Proprietary” rows in the equity, ETF, ETN, Index, Specified Proprietary Index Options and Mini-Options rate tables. Footnote 16 of the Fees Schedule provides that “Broker-Dealer transaction fees apply to broker-dealer orders (orders with “B” origin code), non-Trading Permit Holder market-maker orders (orders with “N” origin code), orders from specialists in the underlying security (orders with “Y” origin code) and certain orders with “F” origin code (orders from OCC members that are not CBOE Trading Permit Holders).” The Exchange believes appending Footnote 16 to the row in which the “F” origin code is listed clarifies that, in some instances, orders with the “F” origin code designation will be assessed Broker-Dealer transaction fees if the orders are from the Options Clearing Corporation (“OCC”) members that are not CBOE Trading Permit Holders (“TPHs”). The Exchange notes no substantive changes are being made by this change, rather the Exchange merely seeks to add further clarification and alleviate potential confusion.
On January 2, 2015, the Exchange established an FBW fee for an updated version of FBW (“FBW2”), which the Exchange had anticipated making
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
Increasing the fee for electronic executions by broker-dealers, non-TPHs, [
The Exchange believes that this proposed change is equitable and not unfairly discriminatory because the Exchange will assess broker-dealers, non-TPH Market-Makers, Professionals/Voluntary Professionals and JBOs the same electronic options transaction fees in non-Penny Pilot options classes. The Exchange notes that it does not assess Customers the electronic options transaction fees in non-Penny Pilot options because Customer order flow enhances liquidity on the Exchange for the benefit of all market participants. Specifically, Customer liquidity benefits all market participants by providing more trading opportunities, which attracts Market-Makers. An increase in the activity of these market participants in turn facilitates tighter spreads, which may cause an additional corresponding increase in order flow from other market participants. The Exchange notes that Market-Makers are assessed lower electronic options transaction fees in non-Penny Pilot options as compared to Professionals, JBOs, Broker Dealers and non-Trading Permit Holder Market-Makers because they have obligations to the market and regulatory requirements, which normally do not apply to other market participants (
Assessing higher fees for transactions in electronic, non-Penny Pilot classes is equitable and not unfairly discriminatory because in non-Penny Pilot classes the spreads are naturally larger than in Penny Pilot classes, and these wider spreads allow for greater profit potential. Limiting this fee increase to electronic transactions is equitable and not unfairly discriminatory because electronic trading requires constant system development and maintenance.
The Exchange always strives for clarity in its rules and Fees Schedule, so that market participants may best understand how rules and fees apply. The Exchange believes appending Footnote 16 to “Clearing Trading Permit Holder Proprietary” in the rates tables alleviates potential confusion. The alleviation of potential confusion will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest.
Finally, the Exchange believes it is reasonable to provide a waiver for the months of March and April 2015 because it allows new users time to become familiar with and fully acclimated to the new FBW functionality and incentivizes the users to begin this process as soon as the new functionality becomes available. The Exchange believes it is reasonable to provide a waiver for the first month for a new login ID beginning May 1, 2015, because it allows a new user after April 2015 to fully acclimate to the new FBW functionality. Additionally, the Exchange notes it is merely extending existing waivers to correspond with a delayed launch of FBW2.
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, because, while the fee increase will apply only to certain market participants, market participants have different obligations and different circumstances (as described in the “Statutory Basis” section above). The Exchange does not believe that the proposed rule change relating to the FBW 2 fee waivers will impose any burden on competition that
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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)
The Exchange proposes to amend the NYSE Arca Options Fee Schedule (“Fee Schedule”) relating to Market Maker Posting Credit Tiers. The Exchange proposes to implement the fee change effective March 2, 2015. 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 purpose of this filing is to create an additional Market Maker Monthly Posting Credit Super Tier (“Super Tier II”) for Executions in Penny Pilot Issues and SPY. The Exchange proposes to implement the fee change effective March 2, 2015.
Currently, the Exchange has a Base Posting Credit rate, and two additional tiers with higher credit rates for Market Makers that meet certain volume criteria, as outlined in the table below.
The Exchange is proposing to add another tier, Super Tier II, to provide an incentive for increased Market Maker activity on the Exchange.
As with the Super Tier, the proposed Super Tier II qualification would be 200,000 contracts, but only contracts traded for the account of a Market Maker would count and at least 110,000 of those contracts would have to be from Posted Orders or quotes from both Penny Pilot and non-Penny Pilot issues. Unlike Super Tier, contract volume from a Market Maker's affiliate would not be counted for determining whether a member qualified for fees in Super Tier II. Market Makers who meet the threshold for Super Tier II would receive a credit of $0.42 applied to Posted Electronic Market Maker executions in Penny Pilot issues, including SPY.
In addition, the Exchange proposes to make a non-substantive change to the title of the table to more accurately reflect its contents, such that it reads: “MARKET MAKER MONTHLY POSTING CREDIT TIERS AND QUALIFICATIONS FOR EXECUTIONS IN PENNY PILOT ISSUES AND SPY.”
The Exchange is not proposing any other modifications to the Market Maker Posting Credits at this time.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed change is reasonable because adding a new Super Tier II would encourage Market Makers to post greater volumes in all issues, including non-Penny Pilot issues, in order to qualify for the Super Tier II credit of $0.42. The proposed change is also reasonable because it is designed to attract higher volumes of Market Maker Posted Orders to the Exchange, which would benefit all market participants by offering greater price discovery, increased transparency and trading opportunities on the Exchange. Encouraging Market Makers to send higher volumes of orders to the Exchange would also contribute to the Exchange's depth of book as well as to the top of book liquidity.
The Exchange also believes that the proposed credits are reasonable because they are within a range of similar credits available on other option exchanges.
The Exchange believes the non-substantive change to the title of the table would benefit all market participants as it would add clarity to the fee schedule.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A) 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) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of application for an exemptive order under Section 206A of the Investment Advisers Act of 1940 (the “Advisers Act”) and Rule 206(4)–5(e) thereunder.
Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants, TRPA and TRPIL, T. Rowe Price Associates, Inc., 100 East Pratt Street, Baltimore, Maryland 21202.
Kyle R. Ahlgren, Senior Counsel, or Melissa R. Harke, Branch Chief, at (202) 551–6825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the
1. The Applicants are registered with the Commission as investment advisers under the Advisers Act. T. Rowe Price Group, Inc. (“TRPG”) is the parent company of both Applicants. The Applicants serve as adviser or subadviser to companies that are registered with the Commission as investment companies (“RICs”) under the Investment Company Act of 1940 (the “1940 Act”). In addition, TRPIL acts as an adviser to the T. Rowe Price Trust Company (“TRPTC”) in connection with assets of defined contribution and benefit plans of companies and governmental entities that are invested in the Emerging Markets Equity Trust Fund, a common trust fund exempt under Section 3(c)(11) of the 1940 Act and of which TRPTC is the Trustee (the “Fund”). Certain public pension plans that are government entities of Wisconsin (the “Clients”) have selected a RIC as an investment option for participants in participant-directed plans. One Client had been invested in the Fund since 2003 but divested its investment by May 2012. The investment decisions for the Clients are overseen by boards of trustees, and Gubernatorial appointees sit on these boards. Due to this power of appointment, the Governor is an “official” of each Client under Rule 206(4)–5(f)(6)(ii). The Governor, however, does not sit on any Client's board or have any direct involvement in any Client's investment decisions.
2. Applicants represent that Michael McGonigle (the “Contributor”) is a Vice President of TRPG and TRPA. He has been a director of credit research in the Fixed Income Division since 2010 and is a member of the Fixed Income Steering Committee. In his role as a director of credit research, he supervises approximately 15 research analysts in TRPA and eight research analysts in TRPIL, some of whom may occasionally meet with government entity clients or prospective clients, or with consultants for prospective clients. The Contributor is, therefore, a “covered associate” of TRPA and TRPIL, as defined in Rule 206(4)–5(f)(2)(ii). The Advisers have identified only one meeting with a Wisconsin government entity client at which an analyst supervised by the Contributor was present since March 14, 2011, the effective date of Rule 206(4)–5 (the “Rule”). The Contributor has not participated in any such meetings with any state or local government entity client or prospective client of the Advisers since the effective date of the Rule.
3. The recipient of the Contribution was Scott Walker (the “Official”), the Governor of Wisconsin, who took office in January 2011. The Contribution was made on February 5, 2012 to the Official's recall primary election campaign for the amount of $250 (the “Contribution”). The Wisconsin Campaign Finance Information System reported it as received by the campaign on February 26, 2012. Although not entitled to vote in Wisconsin elections, the Contributor was interested in the highly contentious and publicized recall election, given his political views that are in line with those of the Official. The Contributor remembers watching television coverage of the recall election and receiving telephone solicitations for political contributions during this time. To the best of the Contributor's recollection, he made the Contribution pursuant to such a telephone solicitation. The Contributor has never met the Official or dealt with the Official in any capacity. The Contributor has never solicited or coordinated any contributions for or on behalf of the Official. The Contribution is consistent with other political contributions made by the Contributor (which were made prior to the effective date of the Rule).
4. Applicants represent that the Clients' relationship with the Applicants pre-dates the Contribution. The Adviser's relationship with one Client dates back to at least 2003 when the Client invested in the Fund. This Client began withdrawing its investment from the Fund in 2011 and was fully divested in May 2012. The Clients with a RIC advised by the Advisers began their relationship with the Advisers in 2005 and 2008.
5. Applicants represent that at no time did any employees of the Applicants other than the Contributor have any knowledge of the Contribution prior to the Applicants' legal department's discovery of the Contribution. The Contribution was discovered in the course of compliance testing by the Advisers' legal department on or around March 18, 2014. Subsequently, the Applicants and the Contributor obtained the Official's agreement to return the full amount of the Contribution, which was returned on May 1, 2014. After identifying the Contribution, the Advisers established an escrow account and deposited in the account an amount equal to the sum of all fees paid to the Advisers, directly or indirectly, with respect to the Clients between February 5, 2012 through February 26, 2014. The Advisers have notified the Client invested in the Fund, each affected RIC, and each Client that offers as an investment option in a participant-directed plan an affected RIC that is directly advised by the Advisers, of the Contribution and the resulting two-year prohibition on compensation absent exemptive relief from the Commission. The Advisers have informed such Clients and each affected RIC that the fees attributable to the Clients since the date of the Contribution through the two-year period were being placed in escrow and that, absent exemptive relief from the Commission, those fees would be distributed in a way that is permissible under applicable laws and the Rule.
6. Applicants represent that the Advisers' policies and procedures regarding pay-to-play (“Pay-to-Play Policies and Procedures”) in place at the time of the Contribution required all employees to pre-clear contributions to state and local officials and candidates. Employees must annually certify their compliance with the Advisers' Code of Ethics, which describes the Advisers' preclearance policy for political contributions, through an Annual Verification Questionnaire (the “Questionnaire”). The Questionnaire requires employees to certify their compliance with the Policy. The Contributor has completed his annual online training and Questionnaire certification each year since the effective date of the Rule. The legal department or specific business units of the Advisers also occasionally send reminder emails about the Policy. The Advisers have also started to include searches of public Web sites for contributions made by employees, and it was in the course of developing this testing program that the Contribution was discovered by the Advisers.
7. Applicants represent that to the best of the Contributor's recollection, the Contributor's violation of Applicant's Pay-to-Play Policies and Procedures resulted from his simply forgetting to pre-clear his contribution as required, due to his becoming impassioned about the recall election while watching televised reports about it and receiving a telephone solicitation while doing so. Applicants note that on May 31, 2012, pursuant to the Advisers' policies and procedures, the Contributor requested pre-clearance from Advisers' legal department to make a contribution to the Official's campaign for the recall general election and received permission to make a $150 contribution.
1. Rule 206(4)–5(a)(1) under the Advisers Act prohibits a registered investment adviser from providing investment advisory services for compensation to a government entity within two years after a contribution to an official of the government entity is made by the investment adviser or any covered associate of the investment adviser. Each Client is a “government entity,” as defined in rule 206(4)–5(f)(5), the Contributor is a “covered associate” as defined in rule 206(4)–5(f)(2), and the Official is an “official” as defined in rule 206(4)–5(f)(6). Rule 206(4)–5(c) provides that when a government entity invests in a covered investment pool, the investment adviser to that covered investment pool is treated as providing advisory services directly to the government entity. The RICs and the Funds are “covered investment pools,” as defined in rule 206(4)–5(f)(3).
2. Section 206A of the Advisers Act grants the Commission the authority to “conditionally or unconditionally exempt any person or transaction . . . from any provision or provisions of [the Advisers Act] or of any rule or regulation thereunder, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of [the Advisers Act].”
3. Rule 206(4)–5(e) provides that the Commission may exempt an investment adviser from the prohibition under Rule 206(4)–5(a)(1) upon consideration of the factors listed below, among others:
(1) Whether the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Advisers Act;
(2) Whether the investment adviser: (i) Before the contribution resulting in the prohibition was made, adopted and implemented policies and procedures reasonably designed to prevent violations of the rule; and (ii) prior to or at the time the contribution which resulted in such prohibition was made, had no actual knowledge of the contribution; and (iii) after learning of the contribution: (A) Has taken all available steps to cause the contributor involved in making the contribution which resulted in such prohibition to obtain a return of the contribution; and (B) has taken such other remedial or preventive measures as may be appropriate under the circumstances;
(3) Whether, at the time of the contribution, the contributor was a covered associate or otherwise an employee of the investment adviser, or was seeking such employment;
(4) The timing and amount of the contribution which resulted in the prohibition;
(5) The nature of the election (
(6) The contributor's apparent intent or motive in making the contribution which resulted in the prohibition, as evidenced by the facts and circumstances surrounding such contribution.
4. The Applicants request an order pursuant to section 206A and rule 206(4)–5(e), exempting them from the two-year prohibition on compensation imposed by rule 206(4)–5(a)(1) with respect to investment advisory services provided to the Clients within the two-year period following the Contribution.
5. The Applicants submit that the exemption is necessary and appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. The Applicants further submit that the other factors set forth in Rule 206(4)–5 similarly weigh in favor of granting an exemption to the Applicants to avoid consequences disproportionate to the violation. The Applicants note that causing the Advisers to serve without compensation for a two-year period could result in a financial loss that is approximately 24,000 times the amount of the Contribution.
6. The Applicants represent that neither the Advisers nor the Contributor sought to interfere with the Clients' merit-based selection process for advisory services, nor did they seek to negotiate higher fees or greater ancillary benefits than would be achieved in arms'-length transactions. The Applicants note that the Advisers' relationship with the Clients pre-date the Contribution, and that one Client divested its investment in the Fund shortly after the Contribution. The Applicants represent that they have no reason to believe that the Contribution undermined the integrity of the market for advisory services or resulted in a violation of the public trust in the process for awarding contracts.
7. The Applicants note that the Advisers adopted and implemented pay-to-play policies and procedures on the Rule's effective date, March 14, 2011 that are fully compliant with the Rule's requirements. The Applicants further note that the Advisers began developing compliance testing that includes random searches of public campaign databases for contributions by employees. The Applicants represent that at no time did any employees of the Advisers other than the Contributor have any actual knowledge that the Contribution had been made prior to its discovery by the Advisers in March 2014. The Applicants further represent that the Advisers and the Contributor obtained the Official's agreement to return the Contribution, which was subsequently returned, and the Advisers established an escrow account for all fees attributable to the Clients' relationships with the Advisers accrued between February 5, 2012 and February 26, 2014.
8. The Applicants state that the Contributor's apparent intent in making the Contribution was not to influence the selection or retention of the Advisers, and that the Contribution was consistent with prior political donations made by the Contributor in support of other candidates who share the political views of the Official.
9. The Applicants represent that the Contributor has had no direct contact or involvement with any of the Clients, and that the Contributor's only indirect involvement with one of the Clients was through a single meeting at which a research analyst who reported to the Contributor met with the Client.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to modify the “Options Pricing” section of its fee schedule effective immediately, in order to modify pricing charged by the Exchange's options platform (“BATS Options”) including adjusting the rebates associated with Customer Penny Pilot Add Volume Tier 1 and Professional and Firm Penny Pilot Add Volume Tiers 1 and 2, as further described below.
The Exchange proposes to adjust the rebate for Customer
The Exchange also proposes to adjust the rebate for Professional
The Exchange proposes to implement the amendments to its fee schedule effective immediately.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6 of the Act.
Volume-based rebates and fees such as the ones currently maintained on BATS Options have been widely adopted by equities and options exchanges and are equitable because they are open to all Members on an equal basis and provide additional benefits or discounts that are reasonably related to the value to an exchange's market quality associated with higher levels of market activity, such as higher levels of liquidity provision and/or growth patterns, and introduction of higher volumes of orders into the price and volume discovery processes. The Exchange believes the proposed reduction of the rebate for orders that add liquidity for Customers that meet Customer Add Volume Tier 1 is a reasonable, fair and equitable, and not unfairly discriminatory allocation of fees and rebates because it will provide Members with a greater incentive to increase their participation on BATS Options in order to receive a higher rebate by meeting a higher Customer Add Volume Tier. Currently, the difference between the rebate received for orders that qualify for Customer Add Volume Tier 1 and those that qualify for Customer Add Volume Tier 2 is only $0.03 per contract, but as proposed, the difference would be $0.08 per contract.
The Exchange also believes that the proposed reduction of the rebates for Professional/Firm Step-up Add Volume Tier 1 and Tier 2 is a reasonable, fair and equitable, and not unfairly discriminatory allocation of fees and rebates because, as stated above, the Exchange's tiered pricing structure is designed such that fees and rebates are related to the value of market quality associated with higher levels of market activity, such as higher levels of liquidity provision and/or growth patterns, and introduction of higher volumes of orders into the price and volume discovery processes. As such, the Exchange believes that it is reasonable, fair, and equitable to lower the rebates associated with Professional/Firm Step-up Add Volume Tier 1 and Tier 2. In this same light, the Exchange notes that the proposed amendments would bring the rebate for Professional/Firm Step-up Add Volume Tier 1 and Tier 2 in line with that of the Market Maker Add Volume Tier. The Exchange also notes that Professional and Firm orders can continue to receive further enhanced rebates through the NBBO Setter Tiers and that any order that qualifies for either Professional/Firm Step-Up Add Volume Tier 1 or Tier 2 will also qualify for NBBO Setter Tier 1 where the order sets the national best bid or offer.
The Exchange reiterates that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels to be excessive.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. With respect to the proposed new rebates in Customer Add Volume Tier 1 and Professional/Firm Step-Up Tier 1 and Tier 2, the Exchange does not believe that any such changes burden competition, but instead, that they enhance competition, as they are intended to increase the competitiveness of and draw additional volume to BATS Options. As stated above, the Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if the deem fee structures to be unreasonable or excessive.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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) of the Securities Exchange Act of 1934 (“Act”),
CHX proposes to clarify for Participants and non-Participants the Exchange's smart versus direct routing protocol.
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.
The Exchange proposes to clarify for Participants and non-Participants the Exchange's smart versus direct routing protocol related to the CHX Routing Services. As described in the initial rule filing, upon the triggering of a Routing Event,
The Exchange would like to clarify the smart versus direct routing protocol and to propose special handling of Routable Orders in relation to Protected Quotations
Under footnote 50 of the initial rule filing,
Where the routed order is smaller than the aggregate size of two or more contra-side Protected Quotations that could be satisfied, the Exchange will rely on the third-party routing broker to utilize its smart-routing technology to route the order pursuant to a routing table provided by the Exchange. Thus, the relevant snapshot of the NBBO for Regulation NMS purposes will be taken by the third-party routing broker and the third-party routing broker would route orders IOC and ISO. However, where the routed order is smaller than the size of one Protected Quotation that could be satisfied or is the same size as the aggregate size of one or more contra-side Protected Quotations that could be satisfied, the Exchange will direct the third-party routing broker to route orders to specific routing destinations. Thus, the relevant snapshot of the NBBO will be taken by the Exchange and the Exchange would mark the directed orders IOC and ISO.
Where the
The Exchange also proposes to adopt special routing handling for Protected Quotations displayed on the ADF, as an exception to the aforementioned price point by price point determination to either smart or direct route an order. Specifically, upon the triggering of any Routing Event based on a Protected Quotation displayed on the ADF, the Exchange will route away the entire remaining balance of the Routable Order for smart routing by a third-party routing broker. The Exchange submits that this special handling is the most efficient way for the Exchange to meet its Regulation NMS obligations regarding Protected Quotation(s) displayed on the ADF and is consistent with the routing-related rules adopted pursuant to the initial rule filing.
The Exchange believes that the proposed clarification of the smart versus direct routing protocol described in the initial rule filing and special handling of the Protected Quotations displayed on the ADF is consistent with Section 6(b) of the Act in general
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. Given that the proposed changes promote clarity as to existing rules and does not amend any rules, the Exchange believes that any burden on competition is necessary and appropriate as clarity of the Exchange's rules further the purposes of the Act.
No written comments were either solicited or received.
The foregoing rule change has been filed by the Exchange as a “non-controversial” rule change pursuant to Section 19(b)(3)(A)(i) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b–4(f)(6)(iii), the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange asserts that waiver of this requirement would allow the Exchange to clarify its initial rule filing prior to the CHX Routing Services becoming operational, and notes that the Exchange provides these services in a highly competitive market in which market participants may avail themselves of a wide variety of options offered by self-regulatory organizations, alternative trading systems and other broker-dealers. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because it will allow the Exchange to clarify its rules in a timely manner and thereby avoid potential confusion. Therefore, the Commission hereby waives the 30-day operative delay and designates the proposed rule change to be operative upon filing with the Commission.
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.
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 is filing a proposal to amend the MIAX Options Fee Schedule.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its current MIAX Market Maker
The sliding scale for MIAX Market Maker transaction fees is based on the substantially similar fees of the Chicago Board Options Exchange, Incorporated (“CBOE”).
The sliding scale would apply to all MIAX Market Makers for transactions in all products except mini-options. By amending the volume tier calculations, the sliding scale will more closely align with that of CBOE.
The Exchange believes the proposed sliding scale is objective in that the fee reductions are based solely on reaching stated volume thresholds. The specific volume thresholds of the tiers were set based upon business determinations and an analysis of current volume levels. The specific volume thresholds and rates were set in order to encourage MIAX Market Makers to reach for higher tiers. The Exchange believes that the proposed changes to the tiered fee schedule may incent firms to display their orders on the Exchange and increase the volume of contracts traded here.
As mentioned above, the Exchange notes that the proposed sliding fee scale for MIAX Market Makers structured on contract volume thresholds is based on the substantially similar fees of the CBOE.
The Exchange also proposes to increase the rebate incentive for Priority Customer orders to correspond with the increase in the transaction fee for tier 1 of the MIAX Market Maker sliding scale. The Exchange offers MIAX Market Makers the opportunity to reduce transaction fees by $0.02 per contract in standard options if the Member or its affiliates of at least 75% common ownership between the firms as reflected on each firm's Form BD, Schedule A, qualifies in a given month for Priority Customer Rebate Program volume tiers 3, 4, or 5 in the Fee Schedule. The Exchange proposes to amend the rebate incentive for Priority Customer orders in order to increase the rebate incentive for tier 1 to correspond with the increase in transaction fees for volume tier 1 of the MIAX Market Maker sliding scale. As proposed, any Member or its affiliates of at least 75% common ownership between the firms as reflected on each firm's Form BD, Schedule A, that qualifies for Priority Customer Rebate Program volume tiers 3, 4, or 5 and is a MIAX Market Maker will be assessed $0.23 per contract for tier 1, $0.15 per contract for tier 2, $0.10 per contract for tier 3, $0.05 per contract for tier 4, and $0.03 per contract for tier 5 for transactions in standard options in lieu of the applicable transaction fees in the Market Maker sliding scale.
The Exchange believes that these incentives will encourage MIAX Market Makers to transact a greater number of orders on the Exchange.
Finally, the Exchange proposes to modify the name of the title of the column in the chart from “Contracts Per Month” to “Percentage Thresholds of National Market Maker Volume”. The Exchange believes that the new title more clearly describes the type of threshold methodology that is being used for the fee.
The proposed changes will become operative on March 1, 2015.
The Exchange believes that its proposal to amend its fee schedule is consistent with Section 6(b) of the Act
The proposed volume based discount fee structure is not discriminatory in that all MIAX Market Makers are eligible to submit (or not submit) liquidity, and may do so at their discretion in the daily volumes they choose during the course of the billing period. All similarly situated MIAX Market Makers are subject to the same fee structure, and access to the Exchange is offered on terms that are not unfairly discriminatory. Volume based discounts have been widely adopted by options and equities markets, and are equitable because they are open to all MIAX Market Makers on an equal basis and provide discounts that are reasonably related to the value of an exchange's market quality associated with higher volumes. The proposed fee levels and volume thresholds are reasonably designed to be comparable to those of other options exchanges employing similar fee programs, and also to attract additional liquidity and order flow to the Exchange.
The Exchange's proposal to provide MIAX Market Makers the opportunity to reduce transaction fees by $0.02 per contract in standard options, provided certain criteria are met, is reasonable because the Exchange desires to offer all such market participants an opportunity to lower their transaction fees. The Exchange's proposal to offer MIAX Market Makers the opportunity to reduce transaction fees by $0.02 per contract in standard options, provided certain criteria are met, is equitable and not unfairly discriminatory because the Exchange offers all market participants, excluding Priority Customers, a means to reduce transaction fees by qualifying for volume tiers in the Priority Customer Rebate Program. The Exchange believes that offering all such market participants the opportunity to lower transaction fees by incentivizing them to transact Priority Customer order flow in turn benefits all market participants.
Finally, the Exchange believes that the proposed to change to the name of the title of the column in the chart from “Contracts Per Month” to “Percentage Thresholds of National Market Maker Volume” is reasonable in that the new title more clearly describes the type of threshold methodology that is being used for the fee.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and to attract order flow. The Exchange believes that the proposed rule change reflects this competitive environment because it modifies the Exchange's fees in a manner that encourages market participants to provide liquidity and to send order flow to the Exchange.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 14, 2014, Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The proposed rule change, as modified by Amendment No. 1, is described in Items II and III below, which Items have been substantially prepared by FINRA.
FINRA is proposing Amendment No. 1 to SR–FINRA–2014–048, a proposed rule change to adopt FINRA Rule 2242 (Debt Research Analysts and Debt Research Reports) to address conflicts of interest relating to the publication and distribution of debt research reports.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA 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 V below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Rule Filing History
On November 14, 2014, FINRA filed with the Securities and Exchange Commission (“Commission”) SR–FINRA–2014–048,
The Commission published the proposed rule change for public comment in the
As described in greater detail in the Proposing Release, the proposed rule change would adopt a tiered approach that, in general, would provide retail debt research recipients with extensive protections similar to those provided to recipients of equity research under current and proposed FINRA rules, with modifications to reflect the different nature and trading of debt securities,
Most of the defined terms closely follow the defined terms for equity research in NASD Rule 2711, as amended by the equity research filing, with minor changes to reflect their application to debt research. The proposed definitions are set forth below.
Under the proposed rule change, the term “debt research analyst” would mean an associated person who is primarily responsible for, and any associated person who reports directly or indirectly to a debt research analyst in connection with, the preparation of the substance of a debt research report, whether or not any such person has the job title of “research analyst.”
The proposed rule change would define the term “debt research report” as any written (including electronic) communication that includes an analysis of a debt security or an issuer of a debt security and that provides information reasonably sufficient upon which to base an investment decision, excluding communications that solely constitute an equity research report as defined in proposed Rule 2241(a)(11).
Communications that constitute statutory prospectuses that are filed as part of the registration statement would not be included in the definition of a debt research report. Further, communications that constitute private placement memoranda and comparable offering-related documents, other than those that purport to be research, would not be included in the definition of a debt research report. In general, the term debt research report also would not include communications that are limited to the following, if they do not include an analysis of, or recommend or rate, individual debt securities or issuers:
• Discussions of broad-based indices;
• commentaries on economic, political or market conditions;
• commentaries on or analyses of particular types of debt securities or characteristics of debt securities;
• technical analyses concerning the demand and supply for a sector, index or industry based on trading volume and price;
• recommendations regarding increasing or decreasing holdings in particular industries or sectors or types of debt securities; or
• notices of ratings or price target changes, provided that the member simultaneously directs the readers of the notice to the most recent debt research report on the subject company that includes all current applicable disclosures required by the rule and that such debt research report does not contain materially misleading disclosure, including disclosures that are outdated or no longer applicable.
The term debt research report also, in general, would not include the following communications, even if they include an analysis of an individual debt security or issuer and information reasonably sufficient upon which to base an investment decision:
• Statistical summaries of multiple companies' financial data, including listings of current ratings that do not include an analysis of individual companies' data;
• an analysis prepared for a specific person or a limited group of fewer than 15 persons;
• periodic reports or other communications prepared for investment company shareholders or discretionary investment account clients that discuss individual debt securities in the context of a fund's or account's past performance or the basis for previously made discretionary investment decisions; or
• internal communications that are not given to current or prospective customers.
The proposed rule change would define the term “debt security” as any “security” as defined in Section 3(a)(10) of the Exchange Act, except for any “equity security” as defined in Section 3(a)(11) of the Exchange Act, any “municipal security” as defined in Section 3(a)(29) of the Exchange Act, any “security-based swap” as defined in Section 3(a)(68) of the Exchange Act, and any “U.S. Treasury Security” as defined in paragraph (p) of FINRA Rule 6710.
The proposed rule change would define the term “debt trader” as a person, with respect to transactions in debt securities, who is engaged in proprietary trading or the execution of transactions on an agency basis.
The proposed rule change would provide that the term “independent third-party debt research report” means a third-party debt research report, in respect of which the person producing the report: (1) Has no affiliation or business or contractual relationship with the distributing member or that member's affiliates that is reasonably likely to inform the content of its research reports; and (2) makes content determinations without any input from the distributing member or that member's affiliates.
The proposed rule change would define the term “investment banking department” as any department or division, whether or not identified as such, that performs any investment banking service on behalf of a member.
The proposed rule change would define the term “member of a debt research analyst's household” as any individual whose principal residence is the same as the debt research analyst's principal residence.
The proposed rule change would define “public appearance” as any participation in a conference call, seminar, forum (including an interactive electronic forum) or other public speaking activity before 15 or more persons or before one or more representatives of the media, a radio, television or print media interview, or the writing of a print media article, in which a debt research analyst makes a recommendation or offers an opinion concerning a debt security or an issuer of a debt security.
Under the proposed rule change the term “qualified institutional buyer” has the same meaning as under Rule 144A of the Securities Act.
The proposed rule change would define “research department” as any department or division, whether or not identified as such, that is principally responsible for preparing the substance of a debt research report on behalf of a member.
Similar to the proposed equity research rule, the proposed rule change contains an overarching provision that would require members to establish, maintain and enforce written policies and procedures reasonably designed to identify and effectively manage conflicts of interest related to the preparation, content and distribution of debt research reports, public appearances by debt research analysts, and the interaction between debt research analysts and persons outside of the research department, including investment banking, sales and trading and principal trading personnel, subject companies and customers.
The proposed rule change introduces a distinction between sales and trading personnel and persons engaged in principal trading activities, where the conflicts addressed by the proposal are of most concern.
The written policies and procedures must be reasonably designed to promote objective and reliable debt research that reflects the truly held opinions of debt research analysts and to prevent the use of debt research reports or debt research analysts to manipulate or condition the market or favor the interests of the firm or current or prospective customers or class of customers.
FINRA is proposing that the required policies and procedures must prohibit prepublication review, clearance or approval of debt research by persons involved in investment banking, sales and trading or principal trading, and either restrict or prohibit such review, clearance and approval by other non-research personnel other than legal and compliance.
With respect to coverage decisions, a member's written policies and procedures must restrict or limit input by investment banking, sales and trading and principal trading personnel to ensure that research management independently makes all final decisions regarding the research coverage plan.
A member's written policies and procedures also must restrict or limit activities by debt research analysts that can reasonably be expected to compromise their objectivity.
The proposed rule change also would prohibit investment banking personnel from directing debt research analysts to engage in sales or marketing efforts related to an investment banking
A member's written policies and procedures must limit the supervision of debt research analysts to persons not engaged in investment banking, sales and trading or principal trading activities.
A member's written policies and procedures also must limit the determination of a firm's debt research department budget to senior management, excluding senior management engaged in investment banking or principal trading activities, and without regard to specific revenues or results derived from investment banking.
With respect to compensation determinations, a member's written policies and procedures must prohibit compensation based on specific investment banking services or trading transactions or contributions to a firm's investment banking or principal trading activities and prohibit investment banking and principal trading personnel from input into the compensation of debt research analysts.
Neither investment banking personnel nor persons engaged in principal trading activities may give input with respect to the compensation determination for debt research analysts. However, sales and trading personnel may give input to debt research management as part of the evaluation process in order to convey customer feedback, provided that final compensation determinations are made by research management, subject to review and approval by the compensation committee.
Under the proposed rule change, a member's written policies and procedures must restrict or limit trading by a “debt research analyst account” in securities, derivatives and funds whose performance is materially dependent upon the performance of securities covered by the debt research analyst.
The proposed rule change includes Supplementary Material .10, which provides that FINRA would not consider a research analyst account to have traded in a manner inconsistent with a research analyst's recommendation where a member has instituted a policy that prohibits any research analyst from holding securities, or options on or derivatives of such securities, of the companies in the research analyst's coverage universe, provided that the member establishes a reasonable plan to liquidate such holdings consistent with the principles in paragraph (b)(2)(J)(i) and such plan is approved by the member's legal or compliance department.
A member's written policies and procedures must prohibit direct or indirect retaliation or threat of retaliation against debt research analysts by any employee of the firm for publishing research or making a public appearance that may adversely affect the member's current or prospective business interests.
The proposed rule change establishes a proscription with respect to joint due diligence activities—
The proposed rule change delineates the prohibited and permissible interactions between debt research analysts and sales and trading and principal trading personnel. The proposed rule change would require members to establish, maintain and enforce written policies and procedures reasonably designed to prohibit sales and trading and principal trading personnel from attempting to influence a debt research analyst's opinions or views for the purpose of benefiting the trading position of the firm, a customer or a class of customers.
The proposed rule change would permit sales and trading and principal trading personnel to communicate customers' interests to a debt research analyst, so long as the debt research analyst does not respond by publishing debt research for the purpose of benefiting the trading position of the firm, a customer or a class of customers.
The proposed rule change also would permit sales and trading and principal trading personnel to seek the views of debt research analysts regarding the creditworthiness of the issuer of a debt security and other information regarding an issuer of a debt security that is reasonably related to the price or performance of the debt security, so long as, with respect to any covered issuer, such information is consistent with the debt research analyst's published debt research report and consistent in nature with the types of communications that a debt research analyst might have with customers. In determining what is consistent with the debt research analyst's published debt research, a member may consider the context, including that the investment objectives or time horizons being discussed differ from those underlying the debt research analyst's published views.
The proposed rule change clarifies that communications between debt research analysts and sales and trading or principal trading personnel that are not related to sales and trading, principal trading or debt research activities may take place without restriction, unless otherwise prohibited.
The proposed rule change would apply standards to communications with customers and internal sales personnel. Any written or oral communication by a debt research analyst with a current or prospective customer or internal personnel related to an investment banking services transaction must be fair, balanced and not misleading, taking into consideration the overall context in which the communication is made.
Consistent with the prohibition on investment banking department personnel directly or indirectly directing a debt research analyst to engage in sales or marketing efforts related to an investment banking services transaction or directing a debt research analyst to engage in any communication with a current or prospective customer about an investment banking services transaction, no debt research analyst may engage in any communication with a current or prospective customer in the presence of investment banking department personnel or company management about an investment banking services transaction.
The proposed rule change would, in general, adopt the disclosures in the equity research rule for debt research, with modifications to reflect the different characteristics of the debt market. The proposed rule change would require members to establish, maintain and enforce written policies and procedures reasonably designed to ensure that purported facts in their debt research reports are based on reliable information.
Consistent with the equity rules, irrespective of the rating system a member employs, a member must include in each debt research report limited to the analysis of an issuer of a debt security that includes a rating of the subject company the percentage of all subject companies rated by the member to which the member would assign a “buy,” “hold” or “sell” rating.
If a debt research report limited to the analysis of an issuer of a debt security contains a rating for the subject company and the member has assigned a rating to such subject company for at least one year, the debt research report must show each date on which a member has assigned a rating to the debt security and the rating assigned on such date. This information would be required for the period that the member has assigned any rating to the debt security or for a three-year period, whichever is shorter.
The proposed rule change would require
• If the debt research analyst or a member of the debt research analyst's household has a financial interest in the debt or equity securities of the subject company (including, without limitation, any option, right, warrant, future, long or short position), and the nature of such interest;
• if the debt research analyst has received compensation based upon (among other factors) the member's investment banking, sales and trading or principal trading revenues;
• if the member or any of its affiliates: managed or co-managed a public offering of securities for the subject company in the past 12 months; received compensation for investment banking services from the subject company in the past 12 months; or expects to receive or intends to seek compensation for investment banking services from the subject company in the next three months;
• if, as of the end of the month immediately preceding the date of publication or distribution of a debt research report (or the end of the second most recent month if the publication date is less than 30 calendar days after the end of the most recent month), the member or its affiliates have received from the subject company any compensation for products or services other than investment banking services in the previous 12 months;
• if the subject company is, or over the 12-month period preceding the date of publication or distribution of the debt research report has been, a client of the member, and if so, the types of services provided to the issuer. Such services, if applicable, shall be identified as either investment banking services, non-investment banking securities-related services or non-securities services;
• if the member trades or may trade as principal in the debt securities (or in related derivatives) that are the subject of the debt research report;
• if the debt research analyst received any compensation from the subject company in the previous 12 months; and
• any other material conflict of interest of the debt research analyst or member that the debt research analyst or an associated person of the member with the ability to influence the content of a debt research report knows or has reason to know at the time of the publication or distribution of a debt research report.
The proposed rule change would incorporate a proposed amendment to the corresponding provision in the equity research rules that expands the existing “catch all” disclosure to require disclosure of material conflicts known not only by the research analyst, but also by any “associated person of the member with the ability to influence the content of a research report.” The proposed rule change defines a person with the “ability to influence the content of a research report” as an associated person who is required to review the content of the debt research report or has exercised authority to review or change the debt research report prior to publication or distribution. This term does not include legal or compliance personnel who may review a debt research report for compliance purposes but are not authorized to dictate a particular recommendation or rating.
The proposed rule change requires disclosure of firm ownership of debt securities in research reports or a public appearance to the extent those holdings constitute a material conflict of interest.
The proposed rule change adopts an exception for disclosure that would reveal material non-public information regarding specific potential future investment banking transactions.
Like the equity research rule, the proposed rule change would permit a member that distributes a debt research report covering six or more companies (compendium report) to direct the reader in a clear manner to the
The proposed rule change would provide that a member may satisfy the disclosure requirement with respect to receipt of non-investment banking services compensation by an affiliate by implementing written policies and procedures reasonably designed to prevent the debt research analyst and associated persons of the member with the ability to influence the content of debt research reports from directly or indirectly receiving information from the affiliate as to whether the affiliate received such compensation.
The proposed rule change closely parallels the equity research rules with respect to disclosure in public appearances. Under the proposed rule, a debt research analyst must disclose in public appearances:
• If the debt research analyst or a member of the debt research analyst's household has a financial interest in the debt or equity securities of the subject company (including, without limitation, whether it consists of any option, right, warrant, future, long or short position), and the nature of such interest;
• if, to the extent the debt research analyst knows or has reason to know, the member or any affiliate received any compensation from the subject company in the previous 12 months;
• if the debt research analyst received any compensation from the subject company in the previous 12 months;
• if, to the extent the debt research analyst knows or has reason to know, the subject company currently is, or during the 12-month period preceding the date of publication or distribution of the debt research report, was, a client of the member. In such cases, the debt research analyst also must disclose the types of services provided to the subject company, if known by the debt research analyst; or
• any other material conflict of interest of the debt research analyst or member that the debt research analyst knows or has reason to know at the time of the public appearance.
However, a member or debt research analyst will not be required to make any such disclosure to the extent it would reveal material non-public information regarding specific potential future investment banking transactions.
The proposed rule change would require members to maintain records of public appearances by debt research analysts sufficient to demonstrate compliance by those debt research analysts with the applicable disclosure requirements for public appearances. Such records must be maintained for at least three years from the date of the public appearance.
With respect to both research reports and public appearances, the proposed rule change would require that, in addition to the disclosures required under the proposed rule, members and debt research analysts must comply with all applicable disclosure provisions of FINRA Rule 2210 (Communications with the Public) and the federal securities laws.
The proposed rule change requires firms to establish, maintain and enforce written policies and procedures reasonably designed to ensure that a debt research report is not distributed selectively to internal trading personnel or a particular customer or class of customers in advance of other customers that the member has previously determined are entitled to receive the debt research report.
In addition, a member that provides different debt research products and services for certain customers must inform its other customers that its alternative debt research products and services may reach different conclusions or recommendations that could impact the price of the debt security.
FINRA is proposing to apply the supervisory review and disclosure obligations applicable to the distribution of third-party equity research similarly to third-party retail debt research. Moreover, the proposed rule change would incorporate the current standards for third-party equity research, including the distinction between independent and non-independent third-party research with respect to the review and disclosure requirements. In addition, the proposed rule change adopts an expanded requirement in the proposed equity research rules that requires members to disclose any other material conflict of interest that can reasonably be expected to have influenced the member's choice of a third-party research provider or the
The proposed rule change would prohibit a member from distributing third-party debt research if it knows or has reason to know that such research is not objective or reliable.
In addition, the proposed rule change would require a member to establish, maintain and enforce written policies and procedures reasonably designed to ensure that any third-party debt research report it distributes contains no untrue statement of material fact and is otherwise not false or misleading.
The proposed rule change would require that a member accompany any third-party debt research report it distributes with, or provide a Web address that directs a recipient to, disclosure of any material conflict of interest that can reasonably be expected to have influenced the choice of a third-party debt research report provider or the subject company of a third-party debt research report, including:
• If the member or any of its affiliates managed or co-managed a public offering of securities for the subject company in the past 12 months; received compensation for investment banking services from the subject company in the past 12 months; or expects to receive or intends to seek compensation for investment banking services from the subject company in the next three months;
• if the member trades or may trade as principal in the debt securities (or in related derivatives) that are the subject of the debt research report; and
• any other material conflict of interest of the debt research analyst or member that the debt research analyst or an associated person of the member with the ability to influence the content of a debt research report knows or has reason to know at the time of the publication or distribution of a debt research report.
The proposed rule change would not require members to review a third-party debt research report prior to distribution if such debt research report is an independent third-party debt research report.
The proposed rule would require that members ensure that third-party debt research reports are clearly labeled as such and that there is no confusion on the part of the recipient as to the person or entity that prepared the debt research reports.
The proposed rule change clarifies the obligations of each associated person under those provisions of the proposed rule that require a member to restrict or prohibit certain conduct by establishing, maintaining and enforcing particular policies and procedures. Specifically, the proposed rule change provides that, consistent with FINRA Rule 0140, persons associated with a member must comply with such member's written policies and procedures as established pursuant to the proposed rule. In addition, consistent with Rule 0140, the proposed rule states in Supplementary Material .08 that it shall be a violation of proposed Rule 2242 for an associated person to engage in the restricted or prohibited conduct to be addressed through the establishment, maintenance and enforcement of written policies and procedures required by provisions of FINRA Rule 2242, including applicable Supplementary Material.
Similar to the equity research rule, the proposed rule change exempts from certain provisions regarding supervision and compensation of debt research analysts those members that over the previous three years, on average per year, have participated in 10 or fewer investment banking services transactions as manager or co-manager and generated $5 million or less in gross investment banking revenues from those transactions.
While small investment banks may need those who supervise debt research analysts under such circumstances also to be involved in the determination of those analysts' compensation, the proposal still prohibits these firms from
The proposed rule change includes an exemption from certain provisions regarding supervision and compensation of debt research analysts for members that engage in limited principal trading activity where: (1) In absolute value on an annual basis, the member's trading gains or losses on principal trades in debt securities are $15 million or less over the previous three years, on average per year; and (2) the member employs fewer than 10 debt traders; provided, however, such members must establish information barriers or other institutional safeguards reasonably designed to ensure debt research analysts are insulated from pressure by persons engaged in principal trading or sales and trading activities or other persons who might be biased in their judgment or supervision.
As with the limited investment banking activity exemption, members still would be required to establish information barriers or other institutional safeguards reasonably designed to ensure debt research analysts are insulated from
Given the debt market and the needs of its participants, the proposed rule change would exempt debt research distributed solely to eligible institutional investors (“institutional debt research”) from most of the provisions regarding supervision, coverage determinations, budget and compensation determinations and all of the disclosure requirements applicable to debt research reports distributed to retail investors (“retail debt research”).
The proposed rule distinguishes between larger and smaller institutions in the manner in which their opt-in decision is obtained. The larger may receive institutional debt research based on negative consent, while the smaller must affirmatively consent in writing to receive that research.
Specifically, the proposed rule would allow firms to distribute institutional debt research by negative consent to a person who meets the definition of a qualified institutional buyer (“QIB”)
Institutional accounts that meet the definition of FINRA Rule 4512(c) but do not satisfy the higher tier requirements described above may still affirmatively elect in writing to receive institutional debt research. Specifically, a person that meets the definition of “institutional account” in FINRA Rule 4512(c) may receive institutional debt research provided that such person, prior to receipt of a debt research report, has affirmatively notified the member in writing that it wishes to receive institutional debt research and forego treatment as a retail investor for the purposes of the proposed rule. Retail investors may not choose to receive institutional debt research.
To avoid a disruption in the receipt of institutional debt research, the proposed rule change would allow firms to send institutional debt research to any FINRA Rule 4512(c) account, except a natural person, without affirmative or negative consent for a period of up to one year after SEC approval while they obtain the necessary consents. Natural persons that qualify as an institutional account under FINRA Rule 4512(c) must provide
The proposed exemption relieves members that distribute institutional debt research to institutional investors from the requirements to have written policies and procedures for this research with respect to: (1) Restricting or prohibiting prepublication review of institutional debt research by principal trading and sales and trading personnel or others outside the research department, other than investment banking personnel; (2) input by investment banking, principal trading and sales and trading into coverage decisions; (3) limiting supervision of debt research analysts to persons not engaged in investment banking, principal trading or sales and trading activities; (4) limiting determination of the debt research department's budget to senior management not engaged in investment banking or principal trading activities and without regard to specific revenues derived from investment banking; (5) determination of debt research analyst compensation; (6) restricting or limiting debt research analyst account trading; and (7) information barriers or other institutional safeguards reasonably designed to ensure debt research analysts are insulated from review or oversight by investment banking, sales and trading or principal trading personnel, among others (but members still must have written policies and procedures to guard again those persons pressuring analysts). The exemption further would apply to all disclosure requirements, including content and disclosure requirements for third-party research.
Notwithstanding the proposed exemption, some provisions of the proposed rule still would apply to institutional debt research, including the prohibition on prepublication review of debt research reports by investment banking personnel and the restrictions on such review by subject companies. While prepublication review by principal trading and sales and trading personnel would not be prohibited pursuant to the exemption, other provisions of the rule continue to require management of those conflicts, including the requirement to establish information barriers reasonably designed to insulate debt research analysts from pressure by those persons. Furthermore, the requirements in Supplementary Material .05 related to submission of sections of a draft debt research report for factual review would apply to any permitted prepublication review by persons not directly responsible for the preparation, content or distribution of debt research reports. In addition, members must prohibit debt research analysts from participating in the solicitation of investment banking services transactions, road shows and other marketing on behalf of issuers and further prohibit investment banking personnel from directly or indirectly directing a debt research analyst to engage in sales and marketing efforts related to an investment banking deal or to communicate with a current or prospective customer with respect to such transactions. The provisions regarding retaliation against debt research analysts and promises of favorable debt research also still apply with respect to research distributed to eligible institutional investors.
While the proposed rule change does not require institutional debt research to carry the specific disclosures applicable to retail debt research, it does require that such research carry general disclosures prominently on the first page warning that: (1) The report is intended only for institutional investors and does not carry all of the independence and disclosure standards of retail debt research reports; (2) if applicable, that the views in the report may differ from the views offered in retail debt research reports; and (3) if applicable, that the report may not be independent of the firm's proprietary interests and that the firm trades the securities covered in the report for its own account and on a discretionary basis on behalf of certain customers, and such trading interests may be contrary to the recommendation in the report.
The proposed rule change would require members to establish, maintain and enforce written policies and procedures reasonably designed to ensure that institutional debt research is made available only to eligible institutional investors.
The proposed rule change would provide FINRA, pursuant to the FINRA Rule 9600 Series, with authority to conditionally or unconditionally grant, in exceptional and unusual circumstances, an exemption from any requirement of the proposed rule for good cause shown, after taking into account all relevant factors and provided that such exemption is consistent with the purposes of the rule, the protection of investors, and the public interest.
All of the commenters to the proposal expressed general support for the proposal.
One commenter requested that the proposal define the term “sales and trading personnel” as “persons who are primarily responsible for performing sales and trading activities, or exercising direct supervisory authority over such persons.”
One commenter asked FINRA to include an exclusion from the definition of “debt research report” for private placement memoranda and similar offering-related documents prepared in connection with investment banking services transactions.
As noted with respect to the definition of “research report” in the equity research filing, a “debt research report” is generally understood not to include such offering-related documents prepared in connection with investment banking services transactions. In the course of administering the filing review programs under FINRA Rules 2210 (Communications with the Public), 5110 (Corporate Financing Rule), 5122 (Member Private Offerings) and 5123 (Private Placements of Securities), FINRA has not received any inquiries or addressed any issues that indicate there is confusion regarding the scope of the research analyst rules as applied to offering-related documents prepared in connection with investment banking activities. Nonetheless, to provide firms with greater clarity as to the status of such offering-related documents under the proposals, FINRA proposes to amend the proposed rule to exclude private placement memoranda and similar offering-related documents prepared in connection with investment banking services transactions other than those that purport to be research from the definition of “debt research report.”
One commenter asked FINRA to refrain from using the concept of “reliable” research in the proposal as it may inappropriately connote accuracy in the context of a research analyst's opinions.
One commenter asked FINRA to eliminate as redundant the term “independently” from the provisions permitting non-research personnel to have input into research coverage, so long as research management “independently makes all final decisions regarding the research coverage plan.”
One commenter requested that the proposal define the terms “principal trading activities,” “principal trading personnel,” and “persons engaged in principal trading activities” to exclude traders who are primarily involved in customer accommodation or customer facilitation trading, such as market makers that trade on a principal basis.
The proposal would allow sales and trading personnel, but not personnel engaged in principal trading activities, to provide input to debt research management into the evaluation of debt research analysts. As discussed in detail in Item 5 of the Proposing Release in response to the same comment raised to earlier iterations of the debt proposal, given the importance of principal trading operations to the revenues of many firms, FINRA believes there is increased risk that a principal trader could improperly pressure or influence debt research if he or she has a say into analyst compensation or can selectively relay customer feedback. FINRA believes the risk to retail investors—the compensation evaluation restrictions would not apply to institutional debt research—outweighs the benefit of an additional data point for research management to assess the quality of research produced by those that they oversee. FINRA also notes that the proposal would allow sales and trading personnel to provide customer feedback. Accordingly, FINRA declines to define the terms as the commenter suggested.
Another commenter asked for clarification of the term “principal trading” because it believes the term “sales and trading” already encompasses all agency, principal and proprietary trading activities.
One commenter suggested that FINRA revise the definition of “subject company” to specify that the term means the “
The rule proposal as originally proposed would have adopted a policies and procedures approach to identification and management of research-related conflicts of interest and require those policies and procedures to, at a minimum, prohibit or restrict particular conduct. Commenters expressed several concerns with the approach.
Two commenters asserted that the mix of a principles-based approach with prescriptive requirements was confusing in places and posed operational challenges. In particular, the commenters recommended eliminating the minimum standards for the policies and procedures.
As discussed in more detail in the proposed rule change, FINRA believes the framework will maintain the same level of investor protection in the current equity rules (which also would largely apply to retail debt research) while providing both some flexibility for firms to align their compliance systems with their business model and philosophy and imposing additional obligations to proactively identify and manage emerging conflicts. Even under a policies and procedures approach, the proposal would effectively maintain, with some modifications, the key proscriptions in the current rules—
In light of the overarching principle that requires firms to establish, maintain and enforce written policies and procedures reasonably designed to identify and effectively manage research-related conflicts, the “at a minimum” language was meant to convey that additional conflicts management policies and procedures may be needed to address emerging conflicts that may arise as the result of business changes, such as new research products, affiliations or distribution methods at a particular firm. As discussed in the Proposing Release, FINRA intends for firms to proactively identify and manage those conflicts with appropriately designed policies and procedures. FINRA's inclusion of the “at a minimum” language was not intended to suggest that firms' written policies and procedures must go beyond the specified prohibitions and restrictions in the proposal where no new conflicts have been identified. However, FINRA believes the overarching requirement for policies and procedures reasonably designed to identify and effectively manage research-related conflicts suffices to achieve the intended regulatory objective, and therefore to eliminate any confusion, FINRA proposes to amend the proposals to delete the “at a minimum” language.
FINRA appreciates the commenters' concerns with respect to language in the supplementary material that would make a violation of a firm's policies a violation of the underlying rule. The supplementary material was intended to hold individuals responsible for engaging in the conduct that the policies and procedures effectively restrict or prohibit. FINRA agrees that purpose is achieved with the language in the supplementary material that states that, consistent with FINRA Rule 0140, “it shall be a violation of [the Rule] for an associated person to engage in the restricted or prohibited conduct to be addressed through the establishment, maintenance and enforcement of policies and procedures required by [the Rule] or related Supplementary Material.” Therefore, FINRA proposes to amend the proposals to delete the language stating that a violation of a firm's policies and procedures shall constitute a violation of the rule itself.
The proposed rule would require written policies and procedures to “establish information barriers or other institutional safeguards reasonably designed to ensure that research analysts are insulated from review, pressure or oversight by persons engaged in investment banking services activities or other persons, including sales and trading department personnel, who might be biased in their judgment
One commenter asked FINRA to clarify that the information barriers or other institutional safeguards required by the proposed rule are not intended to prohibit or limit activities that would otherwise be permitted under other provisions of the rule.
The commenter also asserted that the terms “bias” and “pressure” are broad and ambiguous on their face and requested that FINRA clarify that for purposes of the information barriers requirement that they are intended to address persons who may try to improperly influence research.
One commenter asked FINRA to modify the information barriers or other institutional safeguards requirement to conform the provision to FINRA's “reasonably designed” standard for related policies and procedures.
One commenter opposed as overbroad the proposed expansion of the current “catch-all” disclosure requirement to include “any other material conflict of interest of the research analyst or member that a research analyst
FINRA proposed the change to capture material conflicts of interest known by persons other than the research analyst (
FINRA continues to believe that the catch-all provision must include persons with the ability to influence the content of a debt research report to avoid creating a gap where a supervisor or other person with the authority to change the content of a research report knows of a material conflict. However, FINRA intended for the provision to capture only those individuals who are required to review the content of a particular research report or have exercised their authority to review or change the research report prior to publication or distribution. In addition, FINRA did not intend to capture legal or compliance personnel who may review a research report for compliance purposes but are not authorized to dictate a particular recommendation or rating. FINRA proposes to amend the supplementary material in the proposals consistent with this clarification. In addition, FINRA proposes to modify the exception in proposed Rules 2242(c)(5) and (d)(2) (applying to public appearances) not to require disclosure that would otherwise reveal material non-public information regarding specific potential future investment banking transactions, whether or not the transaction involves the subject company.
One commenter requested confirmation that members may rely on hyperlinked disclosures for research reports that are delivered electronically, even if these reports are subsequently printed out by customers.
The proposed rule change would require firms to establish, maintain and enforce written policies and procedures reasonably designed to ensure that a research report is not distributed selectively to internal trading personnel or a particular customer or class of customers in advance of other customers that the firm has previously determined are entitled to receive the research report. The proposals also include supplementary material that explains that firms may provide different research products to different classes of customers—
One commenter supported the provisions as proposed with general disclosure,
Another commenter expressed concern that the proposal raises issues about the parity of information received by retail and institutional investors, and whether research provided to institutional investors could contain views that differ from those in research to retail investors.
Importantly, the supplementary material states that products may lead to different recommendations or ratings, provided that each is consistent with the member's ratings system for each respective product. In other words, all differing recommendations or ratings must be reconcilable such that they are not truly at odds with one another. As such, the proposed rule change would not allow research provided to an institutional investor to contain views inconsistent with those offered in retail debt research.
Since the proposed rule change would not allow inconsistent recommendations that could mislead one or more investors, FINRA believes general disclosure of alternative products with different objectives and recommendations is appropriate relative to its investor protection benefits.
One commenter asked that FINRA clarify that members that have developed policies and procedures consistent with FINRA Rule 5280 (Trading Ahead of Research Reports) would also be in compliance with the debt proposal's expectation of structural separation between investment banking and debt research, and between sales and trading and principal trading and debt research.
The same commenter asked that FINRA modify the prohibition on debt analyst attendance at road shows to permit passive participation since there is less opportunity to meet and assess issuer management than in the equity context.
The commenter also asked FINRA to delete the term “attempting” in the proposed Supplementary Material .03(a)(1), which would require members to have policies and procedures reasonably designed to prohibit sales and trading and principal trading personnel from “attempting to influence a debt research analyst's opinion or views for the purpose of benefitting the trading position of the firm, a customer, or a class of customers.”
The commenter further expressed concern that the term “pending” is vague in the above-cited provision.
Supplementary Material .03(b)(3) provides that in determining what is consistent with a debt research analyst's published debt research for purposes of sharing certain views with sales and trading and principal trading personnel, members may consider the context, including that the investment objectives or time horizons being discussed may differ from those underlying the debt analyst's published views. One commenter asked FINRA to clarify that the standard may be applied wherever consistency with a debt research analyst's views may be assessed under the proposed debt rule, such as with respect to debt research analyst account trading or providing customized analysis, recommendations, or trade ideas to sales and trading, principal trading, and customers.
One commenter expressed concern about the requirements that a member disclose in retail debt research reports its distribution of all debt security ratings (and the percentage of subject companies in each buy/hold/sell category for which the member has provided investment banking services within the previous 12 months) and historical ratings information on the debt securities that are the subject of the debt research report for a period of three years or the time during which the member has assigned a rating, whichever is shorter.
Similar to the current equity rules, FINRA believes that to the extent that a firm produces retail debt research that assigns a rating to an issuer—
While FINRA also believes that the disclosures would be valuable to retail investors with respect to debt research on individual debt securities, FINRA recognizes the additional complexity and cost associated with compliance, particularly where a retail debt research report may include multiple ratings of individual debt securities, some of which may be positive and others negative or neutral. FINRA believes it would be beneficial to obtain additional information about the array of debt research products that are now being distributed to retail investors, as well as the operational challenges and costs to apply these disclosure provisions to debt research on individual debt securities. Accordingly, FINRA is proposing to eliminate for now the requirements with respect to debt research reports on individual debt securities. FINRA will reconsider the appropriateness of the disclosure requirements as applied to research on individual debt securities after obtaining and assessing the additional information.
The same commenter also requested that FINRA allow members to provide a hyperlink or web address to web-based disclosures in all debt research reports, rather than requiring the disclosures within a printed report.
The proposed rule change would exempt debt research provided solely to certain eligible institutional investors from many of the proposed rule's provisions, provided that a member obtains consent from the institutional investor to receive that research and the research reports contain specified
One commenter opposed providing any exemption for debt research distributed solely to eligible institutional investors, contending that it would deprive the market's largest participants of the important protections of the proposed rules for retail debt research.
Another commenter supported the proposed tiered approach for how institutional investors may receive research reports.
As discussed in detail in the Proposing Release, FINRA believes an institutional exemption is appropriate to allow more sophisticated institutional market participants that can assess risks associated with debt trading and are aware of conflicts that may exist between a member's recommendations and trading interests, to continue to receive the timely flow of analysis and trade ideas that they value. FINRA notes that institutional debt research still would remain subject to several provisions of the rules, including the required separation between debt research and investment banking and the requirements for conflict management policies and procedures to insulate debt analysts from pressure by traders and others. In addition, FINRA notes that no institutional investor will be exposed to this less-protected institutional research without either negative or affirmative consent, as applicable.
With respect to the standard for negative consent, FINRA addressed that issue in great detail in Item 5 of the Proposing Release. In short, FINRA does not believe that less sophisticated institutional investors should be required to take any additional steps to receive the full protections of the proposed rules. To the extent the QIB standard for negative consent is too difficult to implement, the proposal provides an alternative to obtain a one-time affirmative consent for any Rule 4512(c) institutional account and further provides a one-year grace period to obtain that consent, so as not to disrupt the current flow of debt research to institutional customers. As discussed in the rule filing, FINRA included the alternative methods of consent and the grace period to satisfy the differing industry views on which of two consent options would be most cost effective.
Another commenter asked that FINRA confirm that, in distributing debt research reports under the institutional debt research framework to certain non-U.S. institutional investors who are customers of a member's non-U.S. broker-dealer affiliate, the member may rely on similar classifications in the non-U.S. institutional investors' home jurisdictions.
The same commenter asked FINRA to clarify the application of the institutional debt research framework to desk analysts or other personnel who are part of the trading desk and are not “research department” personnel. In particular, the commenter suggested that proposed Rules 2242(b)(2)(H) (with respect to pressuring) and (b)(2)(L) should not apply when sales and trading personnel or principal trading personnel publish debt research reports in reliance on the institutional research exemption because the requirements of those provisions cannot be reconciled with the inherent nature of conflicts present.
The proposed rule change would exempt members with limited principal trading activity or limited investment banking activity from the review, supervision, budget, and compensation provisions in the proposed rule related to principal trading and investment banking personnel, respectively. The limited principal trading exemption
One commenter questioned whether the exemptions could compromise the independence and accuracy of the analysis and opinions provided.
As discussed in detail the Proposing Release, FINRA included the exemptions to balance the burdens of compliance with the level or risk to investors. FINRA determined the thresholds for each exemption based on data analysis and a survey of firms that engage in principal trading activity or investment banking activity, respectively. FINRA has not found abuses with respect to the limited investment banking exemption in the equity context and notes that some important separation requirements would still apply to the eligible firms, such as the prohibition on compensating a debt research analyst based on a specific investment banking transaction or contributions to a member's investment banking services activities.
Similarly, the proposed limited principal trading exemption would apply where, based on the survey and data analysis, FINRA reasonably believes the amount of potential principal trading profits poses appreciably lower risk of pressure on debt research analysts by sales and trading or principal trading personnel and where there would be a significant marginal cost to add a trader dedicated to producing research relative to the increase in investor protection. The proposal would still prohibit debt research analysts at exempt firms from being compensated based on specific trading transactions.
With respect to both exemptions, as the commenter noted, firms would still be required to establish information barriers or other institutional safeguards reasonably designed to ensure debt research analysts are insulated from pressure by persons engaged in investment banking or principal trading activities, among others. FINRA believes a number of policies could be implemented to achieve compliance with this requirement. For example, in the context of principal trading, these measures might include monitoring of communications between debt research analysts and individuals on the trading desk and reviewing published research in relation to transactions executed by the firm in the subject company's debt securities. FINRA also notes that neither exemption would allow trading ahead of research by firm traders, as FINRA Rule 5280 would continue to apply to both debt and equity research and prohibits such conduct. Finally, as noted, FINRA intends to monitor the research produced by firms that avail themselves of the exemptions to assess whether the thresholds to qualify for the exemptions are appropriate or should be modified.
One commenter asked FINRA to consider amending FINRA Rule 2210 to exclude debt research reports from that rule's filing requirements, since there is an exception from the filing requirements for equity research reports that concern only equity securities that trade on an exchange.
One commenter requested that the implementation date be at least 12 months after SEC approval of the proposed rule change and that FINRA sequence the compliance dates of the equity research filing and the proposed rule change in that order.
FINRA believes that the foregoing fully responds to the issues raised by the commenters.
FINRA will announce the effective date of the proposed rule change in a Regulatory Notice to be published no later than 60 days following Commission approval. The effective date will be no later than 180 days following publication of the Regulatory Notice announcing Commission approval.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA 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. FINRA provided a comprehensive statement regarding the burden on competition in
Written comments on the proposed rule change were solicited by the Commission in response to the publication of SR–FINRA–2014–048.
Within 180 days after the date of publication of the initial 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 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.
Social Security Administration.
Notice of Social Security Ruling (SSR).
We are providing notice of SSR 15–1p. This SSR provides guidance on how we develop evidence to establish that a person has a medically determinable impairment of interstitial cystitis (IC), and how we evaluate IC in disability claims and continuing disability reviews under titles II and XVI of the Social Security Act.
Cheryl Williams, Office of Medical Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235–6401, (410) 965–1020.
Although 5 U.S.C. 552(a)(1) and (a)(2) do not require us to publish this SSR, we are doing so in accordance with 20 CFR 402.35(b)(1).
Through SSRs, we convey to the public SSA precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, and special veterans benefits programs. We may base SSRs on determinations or decisions made at all levels of administrative adjudication, Federal court decisions, Commissioner's decisions, opinions of the Office of the General Counsel, or other interpretations of the law and regulations.
Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all components of the Social Security Administration. 20 CFR 402.35(b)(1).
This SSR will remain in effect until we publish a notice in the
This Social Security Ruling (SSR) rescinds and replaces SSR 02–2p: “Titles II and XVI: Evaluation of Interstitial Cystitis.”
IC is a complex genitourinary disorder involving recurring pain or discomfort in the bladder and pelvic region. The American Urological Association (AUA), National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK), and other medical experts may use the terms “interstitial cystitis/bladder pain syndrome (IC/BPS)” and “interstitial cystitis/painful bladder syndrome (IC/PBS)” to describe this disorder because they consider the term “interstitial cystitis” to be synonymous with the terms “bladder pain syndrome” and “painful bladder syndrome.” When we refer to IC in this SSR, we include IC/BPS and IC/PBS.
The AUA has developed guidelines providing a clinical framework for diagnosing and treating IC/BPS.
Except for statutory blindness, we find a person to be “disabled” if he or she is unable to do any substantial gainful activity by reason of a medically determinable physical or mental impairment(s) or combination of impairments that can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.
IC constitutes an MDI when producing appropriate symptoms and medical signs or laboratory findings, and may result in a disabling impairment. There are some signs and findings that could indicate IC, but there are no specific signs or findings that are universally accepted. However, for our program purposes, we are choosing to rely upon certain signs and findings to establish the existence of an MDI of IC. Once we establish that a person has an MDI of IC by taking into consideration these signs or findings, we use the sequential evaluation process to determine whether the person is disabled. This policy interpretation clarifies how our adjudicators should apply our regulations in establishing an MDI of IC and determining disability under titles II and XVI of the Act.
A. IC is a complex genitourinary disorder resulting in recurring pain or discomfort in the bladder and pelvic region. The AUA and other medical experts characterize IC, in part, as an unpleasant sensation (pain, pressure, discomfort) perceived to be related to the urinary bladder, associated with lower urinary tract symptoms of more than six weeks duration, in the absence of infection or other identifiable causes. IC is most common in women and sometimes occurs before age 18.
B. In accordance with the AUA guidelines, a physician should make a diagnosis of IC only after reviewing the person's medical history and conducting a physical examination. The physician should also conduct laboratory tests to rule out certain medical conditions that may result in the same or similar symptoms. For example, the AUA guidelines recommend a basic laboratory
C. IC may co-occur with fibromyalgia, chronic fatigue syndrome, irritable bowel syndrome, inflammatory bowel disease, vulvodynia, chronic headaches, Sjögren's syndrome, endometriosis, or systemic lupus erythematosus.
D. Treatments for IC are mostly directed at symptom control. They include, but are not limited to: Changes in diet; physical therapy and pelvic floor strengthening exercises; stress management; bladder distention; bladder instillation; oral drugs, such as prescription drugs indicated for IC (for example, Elmiron and dimethyl sulfoxide), antidepressants, antihistamines, antacids, anticoagulants, and narcotic analgesics; transcutaneous electrical nerve stimulation; and surgery, such as substitution cystoplasty or urinary diversion with or without cystectomy. Treatment is not effective for everyone because response varies among patients.
1. A person can establish that he or she has an MDI of IC by providing appropriate evidence from an acceptable medical source.
2. We generally will rely on the judgment of a licensed physician who has made a diagnosis of IC. The evidence must document that this physician reviewed the person's medical history and conducted a physical examination, and that his or her diagnosis is not inconsistent with the other substantial evidence in the person's case record.
3. If we cannot establish that a person has an MDI of IC, but there is evidence of another MDI, we will not evaluate the impairment under this SSR. Instead, we will evaluate it under the rules that apply for that impairment.
B.
1.
2.
3.
• Suprapubic tenderness on physical examination;
• Sexual dysfunction (including dyspareunia);
• Sleep dysfunction; and
• Chronic fatigue or tiredness.
C.
1. Fibrosis (bladder-wall stiffening);
2. Diffuse glomerulations (pinpoint bleeding caused by recurrent irritation) on the bladder wall; and
3. Hunner's ulcers (patches of broken skin) on the bladder wall.
D.
1. Repeated sterile urine cultures while IC symptoms continue;
2. Positive potassium sensitivity test (Parson's test);
3. Antiproliferative factor (APF) accumulation in the urine.
E.
F.
A.
1. Longitudinal clinical records reflecting ongoing medical evaluation and treatment from the person's medical sources, especially treating sources, are extremely helpful in documenting the presence of any signs or laboratory findings, as well as the person's limitations over time. The longitudinal record should contain medical observations, information about treatment, the person's response to treatment, and a detailed description of how the impairment affects the person's ability to function.
2. In addition to obtaining evidence from a physician, we may request evidence from other acceptable medical sources, such as psychologists, both to determine whether the person has another MDI(s) and to evaluate the severity and functional effects of IC in combination with other impairments the person may have. Under our regulations and SSR 06–03p, we also may consider evidence from other medical sources we do not consider acceptable medical sources to help us evaluate the severity and functional effects of the impairment(s).
3. Information from nonmedical sources can also help us evaluate the severity of a person's IC.
• Spouses, parents, siblings, other relatives, neighbors, friends, and clergy;
• Past employers, rehabilitation counselors, and teachers; and
• Statements from SSA and State agency personnel who interviewed the person.
4. Before we make a determination whether or not the person is disabled, we will make every reasonable effort to develop his or her complete medical history and help the person get medical reports from his or her medical sources. Generally, we will request evidence from the person's medical sources for the 12-month period preceding the month of application unless there is reason to believe that development of an earlier period is necessary, or unless the alleged onset of disability is less than 12 months before the date of application.
5. When the alleged onset of disability secondary to IC occurred less than 12 months before adjudication, we must evaluate the medical evidence and project the degree of impairment severity that is likely to exist at the end of 12 months.
1. When there is insufficient evidence for us to determine whether the person has an MDI of IC or is disabled, we may take one or more actions to try to resolve the insufficiency:
• We may recontact the person's treating or other source(s) to see if the information we need is available;
• We may request additional existing records from treating or other sources;
• We may ask the person or others for more information; or
• We may purchase a consultative examination (CE) at our expense.
2. When we are unable to resolve an insufficiency in the evidence, and we need to determine whether the person has an MDI of IC or is disabled, we may make a determination or decision based on the evidence we have.
C.
Generally, we follow a two-step symptom evaluation process:
A.
B.
Once we establish that a person has an MDI of IC, we will consider this MDI in the sequential evaluation process to determine whether the person is disabled.
We adjudicate claims involving IC using the sequential evaluation process, just as we do for any impairment. Once we find that an MDI(s) exists (see section II), we must establish the severity of the impairment(s) based on the totality of signs, symptoms, and laboratory findings, and the effects of the impairment(s), including any related symptoms, on the person's ability to function. Additionally, several other disorders may share characteristics similar to those of IC. When there is evidence of the potential presence of another disorder that may adequately explain the person's symptoms, it may be necessary to pursue additional medical or other development. As mentioned, if we cannot find that the person has an MDI of IC but there is evidence of another MDI, we will not evaluate the impairment under this SSR. Instead, we will evaluate it under the rules that apply for that impairment.
A.
B.
C.
D.
1. Pain and other symptoms associated with IC may result in exertional limitations that prevent a person from doing a full range of unskilled work in one or more of the exertional categories in appendix 2 of subpart P of part 404 (appendix 2).
2. Exertional and nonexertional limitations resulting from IC may affect the person's ability to perform routine movement and necessary physical activity in the work environment, such as sitting, standing, walking, lifting, carrying, pushing, and pulling. These limitations may also affect the person's ability to do postural functions, such as climbing, balancing, stooping, and crouching, or they may affect the person's ability to tolerate extreme heat, humidity, or hazards.
3. Adjudicators must be alert to the possibility that there may be exertional or nonexertional (for example, postural or environmental) limitations that erode a person's occupational base sufficiently to preclude the use of a rule in appendix 2 to direct a decision. In such cases, adjudicators must use the rules in appendix 2 as a framework for decision-making and may need to consult a vocational resource.
E.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 11 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective April 16, 2015. Comments must be received on or before April 17, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. [Docket No. FMCSA–2013–0022], using any of the following methods:
•
•
•
•
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, 202–366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 11 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 11 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
The exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retains a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and 31315, each of the 11 applicants has satisfied the entry conditions for obtaining an exemption from the vision requirements (78 FR 12815; 78 FR 22602). Each of these 11 applicants has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements.
These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA–2013–0022), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
The Federal Motor Carrier Safety Administration (FMCSA) announces its decision to grant Mobileye, Inc.'s (Mobileye) exemption application to enable motor carriers to utilize its camera-based collision avoidance systems (CAS) mounted within the swept area of the windshield wipers. The Federal Motor Carrier Safety Regulations (FMCSRs) currently require antennas, transponders, and similar devices to be located outside the area swept by the windshield wipers. The Mobileye CAS is able to warn drivers of potential hazards by detecting other vehicles, pedestrians and cyclists on the road, and lane markings and traffic signs. The Agency believes the use of the CAS promotes improved safety performance and that the placement of the system in the swept area of the windshield wipers will not obstruct drivers' view of the roadway and potential hazards. The Agency has concluded that the limited 2-year exemption will achieve a level of safety equivalent to or greater than the level of safety provided by the rule restricting the placement of devices in the windshield area.
This exemption is effective March 18, 2015 and ending March 20, 2017.
Mr. Mike Huntley, Vehicle and Roadside Operations Division, Office of Carrier, Driver, and Vehicle Safety, MC–PSV, (202) 366–5370, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590–0001.
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Mobileye applied for an exemption from 49 CFR 393.60(e)(1) to allow the installation of a CAS system on several thousand commercial motor vehicles. A copy of the application is included in the docket referenced at the beginning of this notice.
Section 393.60(e)(1) of the FMCSRs prohibits the obstruction of the driver's field of view by devices mounted at the top of the windshield. Antennas, transponders and similar devices must not be mounted more than 152 mm (6 inches) below the upper edge of the windshield. These devices must be located outside the area swept by the windshield wipers and outside the driver's sight lines to the road and highway signs and signals.
In its application, Mobileye stated:
Mobileye is making this request because we are coordinating device development and installation of a camera based collision avoidance system in up to several hundred thousand commercial motor vehicles. The camera based sensor equipment to be installed is going to be located at either the bottom or top of the windshield, but will be in the swept area of the windshield wipers because the safety equipment must have a clear forward facing view of the road.
This system is the same technology that Mobileye provides to carmakers such as Ford, GM, Honda and many others. These companies have deployed over two million vehicles with this technology. Collision avoidance systems, in particular those that have the main features of Mobileye, have been noted by NHTSA, NTSB and FMCSA as key safety equipment in both cars and trucks. Recently, the NTSB cited this type of collision avoidance system as part of its top ten “most wanted” advocacy priorities. FMCSA itself has recommended Forward Collision Warning and Lane Departure Warning, just two of Mobileye features. Mobileye seeks exemption for the aftermarket (field retrofitable) version of this technology.
With the exemption, Mobileye will be able to install the camera based collision avoidance system in a location which will offer the best opportunity to optimize the data and evaluate the benefits of such a system as well as maximize safety benefits.
FMCSA published a notice of the application in the
In response to its notice requesting public comment, the Agency received one comment from the American Trucking Associations (ATA). The ATA stated that it “strongly supports” granting the exemption to allow use of the Mobileye CAS in commercial motor vehicles. The ATA noted that “Safety technology companies have been working with many ATA members to help reduce carrier crash involvement rates using their technologies. As a result, many of our member companies have seen significant decreases in the number of at-fault collisions and near misses.”
The FMCSA has evaluated the Mobileye exemption application. The Agency believes that granting the temporary exemption to allow placement of the Mobileye CAS system sensor in the upper or lower portion of the windshield, within the swept area of the windshield wipers, will provide a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption because (1) based on the technical information available, there is no indication that the CAS sensor would obstruct drivers' views of the roadway, highway signs and surrounding traffic; (2) generally,
This action is consistent with previous Agency actions permitting the similar placement of video event recorders on CMVs, within the swept area of the windshield wipers. FMCSA has granted temporary exemptions to Greyhound Lines, Inc. and to DriveCam, Inc. regarding the use of the video event recorders to increase safety through (1) identification and remediation of risky driving behaviors such as distracted driving and drowsiness, (2) enhanced monitoring of passenger behavior on CMVs in passenger service, and (3) enhanced collision review and analysis. Both of these exemptions have been renewed for two additional 2-year periods, as FMCSA is not aware of any evidence showing that the installation of the devices in the upper area of the windshield has resulted in any degradation in safety. The Agency has not received any feedback from interested parties suggesting that use of safety devices/technology in the windshield area have had an adverse impact on safety.
This action is also consistent with previous Agency actions permitting the similar placement of lane departure warning system sensors on CMVs, within the swept area of the windshield wipers. FMCSA initially granted temporary exemptions to Con-way Freight, TK Holdings, Inc., and Iteris, Inc. regarding the use of lane departure warning systems to increase safety by alerting drivers who unintentionally drift out of their lane of travel. The Agency renewed the exemptions for an additional 2-year period, and while the original exemptions granted relief to motor carriers using only the Takata and Iteris lane departure warning systems, the Agency determined—given that it has not been made aware of any reduction in the level of safety associated with the use of those systems—that it was appropriate to extend the scope of the exemption to encompass motor carriers using any lane departure warning system, provided that such sensors (1) are the same size or smaller than the Takata and Iteris (now Bendix) sensors, and (2) mounted in the windshield in accordance with the provisions of the original exemption.
FMCSA continues to believe that the potential safety gains from the use of video event recorders and lane departure waning systems to improve driver behavior and performance will improve the overall level of safety to the motoring public. The Agency believes the same is true regarding the use of the Mobileye CAS.
The Agency hereby grants the exemption for a two-year period, beginning March 18, 2015 and ending March 20, 2017. During the temporary exemption period, motor carriers using the Mobileye CAS must ensure that the sensor is mounted not more than 100 mm (4 inches) below the upper edge, or above the lower edge, of the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs and signals. The exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) Motor carriers and/or commercial motor vehicles fail to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b).
Interested parties possessing information that would demonstrate that motor carriers using the Mobileye CAS are not achieving the requisite statutory level of safety should immediately notify FMCSA. The Agency will evaluate any such information and, if safety is being compromised or if the continuation of the exemption is not consistent with 49 U.S.C. 31136(e) and 31315(b), will take immediate steps to revoke the exemption.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with or is inconsistent with this exemption with respect to a person operating under the exemption.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions, request for comments.
FMCSA announces receipt of applications from 28 individuals for exemption from the vision requirement in the Federal Motor Carrier Safety Regulations. They are unable to meet the vision requirement in one eye for various reasons. The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision requirement in one eye. If granted, the exemptions would enable these individuals to qualify as drivers of commercial motor vehicles (CMVs) in interstate commerce.
Comments must be received on or before April 17, 2015. All comments will be investigated by FMCSA. The exemptions will be issued the day after the comment period closes.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2014–0304 using any of the following methods:
• Federal eRulemaking Portal: Go to
• Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001.
• Hand Delivery: West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
• Fax: 1–202–493–2251.
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” FMCSA can renew exemptions at the end of each 2-year period. The 28 individuals listed in this notice have each requested such an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting an exemption will achieve the required level of safety mandated by statute.
Mr. Albrecht, 27, has a retinal scar in his right eye due to a traumatic incident in 2010. The visual acuity in his right eye is 20/150, and in his left eye, 20/15. Following an examination in 2014, his optometrist stated, “It is our opinion that he has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Albrecht reported that he has driven tractor-trailer combinations for 7 years, accumulating 700,000 miles. He holds a Class A CDL from Minnesota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Beverly, 58, has had complete loss of vision in his right eye since 2011 due to a central retinal artery occlusion. The visual acuity in his right eye is counting fingers, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist stated, “It is my medical opinion as an ophthalmologist that Mr. Beverly has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Beverly reported that he has driven tractor-trailer combinations for 16 years, accumulating 960,000 miles. He holds an operator's license from Florida. His driving record for the last 3 years shows no crashes and one conviction for a moving violation in a CMV; he exceeded the speed limit by 21 miles per hour.
Mr. Cigler, 64, has had a branch retinal vein occlusion in his right eye since 2011. The visual acuity in his right eye is 20/80, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “Dr. Komyatte certifies that in her medical opinion, Mr. Cigler has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Cigler reported that he has driven tractor-trailer combinations for 20 years, accumulating 2.6 million miles. He holds an operator's license from Indiana. His driving record for the last 3 years shows one crash, for which he was not cited and did not contribute, and two convictions for moving violations in a CMV; in one instance he disregarded a traffic signal, and in another he was cited for improper lane usage.
Mr. Crane, 59, has had amblyopia in his right eye since birth. The visual acuity in his right eye is 20/80, and in his left eye, 20/25. Following an examination in 2014, his optometrist stated, “I also certify that he has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Crane reported that he has driven straight trucks for 28 years, accumulating 700,000 miles. He holds a Class A CDL from Ohio. His driving record for the last 3 years shows no crashes and one conviction for a moving violation in a CMV; he was operating a CMV in a no truck zone.
Mr. Daisey, 63, has complete loss of vision in his left eye due to a traumatic incident in childhood. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2014, his optometrist stated, “Mr. Daisey's vision is good enough to have a commercial license.” Mr. Daisey reported that he has driven straight trucks for 18 years, accumulating 18,000 miles. He holds a Class CB CDL from Delaware. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Daneau, 54, has had amblyopia in his left eye since birth. The visual acuity in his right eye is 20/20, and in his left eye, 20/300. Following an examination in 2014, his optometrist stated, “I believe that Terry Daneau possesses sufficient vision to maintain a CDL as long as glasses are worn.” Mr. Daneau reported that he has driven straight trucks for 16 years, accumulating 800,000 miles. He holds a Class B MC CDL from New Hampshire. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Doyle, 53, has had a corneal scar in his right eye since 1985. The visual acuity in his right eye is 20/60, and in his left eye, 20/25. Following an examination in 2014, his optometrist stated, “Upon examining patient I certify that in my medical opinion, has sufficient vision to perform the driving tasks required to operate a commercial vehicle with a license (non-CDL) as explained in #1 Proof of Commercial License.” Mr. Doyle reported that he has driven straight trucks for 14 years, accumulating 121,422 miles. He holds a Class D license from New York. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Eubank, 25, has had refractive amblyopia in his right eye since birth. The visual acuity in his right eye is 20/400, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “Darin has sufficient vision to drive a commercial vehicle.” Mr. Eubank reported that he has driven straight trucks for 9 years, accumulating
Mr. Feik, 53, has a prosthetic left eye due to a traumatic incident in 1989. The visual acuity in his right eye is 20/15, and in his left eye, no light perception. Following an examination in 2015, his ophthalmologist stated, “It is my opinion that Mr. Feik has excellent peripheral vision and visual acuity in the right eye to perform the tasks required of him to operate a commercial vehicle without reservations.” Mr. Feik reported that he has driven straight trucks for 8 years, accumulating 380,000 miles. He holds a Class BM CDL from Illinois. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Fitzpatrick, 38, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/70. Following an examination in 2014, his optometrist stated, “Based on the longstanding nature of Phillip's amblyopia in the left eye and the fact he has had a CDL for a number of years I believe that Phillip can safely and effectively operate a vehicle that requires a CDL.” Mr. Fitzpatrick reported that he has driven straight trucks for 18 years, accumulating 90,000 miles. He holds a Class B CDL from New Mexico. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Fleming, 68, has had a branch vein occlusion in his right eye since 2012. The visual acuity in his right eye is 20/60, and in his left eye, 20/25. Following an examination in 2014, his optometrist stated, “In my medical opinion,
William Fleming has sufficient vision to perform the driving task required to operate a commercial vehicle.” Mr. Fleming reported that he has driven buses for 3 years, accumulating 78,000 miles. He holds a Class B CDL from Oregon. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Foote, 61, has had exotropia with amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/25, and in his left eye, 20/80. Following an examination in 2014, his optometrist stated, “In my medical opinion, he has sufficient vision to perform the necessary driving tasks for a commercial vehicle.”
Mr. Foote reported that he has driven straight trucks for 29 years, accumulating 435,000 miles. He holds a Class A MC CDL from New Hampshire. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Garrett, 61, has complete loss of vision in his right eye due to a traumatic incident in 1974. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “Due to his driving record and excellent vision in his left eye I feel Jimmy can operate a commercial vehicle safely.” Mr. Garrett reported that he has driven straight trucks for 6 years, accumulating 36,000 miles, and tractor-trailer combinations for 26 years, accumulating 2.34 million miles. He holds a Class A CDL from Arkansas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Gautney, 61, has had glaucoma in his left eye since 1983. The visual acuity in his right eye is 2030, and in his left eye, 20/400. Following an examination in 2014, his ophthalmologist stated, “The above named patient has had the diagnosis of glaucoma for over 30 years . . . The patient can perform all tasks required to maintain CDL certification.” Mr. Gautney reported that he has driven tractor-trailer combinations for 18 years, accumulating 1.8 million miles. He holds a Class AM CDL from Texas. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Goodell, 73, has glaucoma in his left eye due to a traumatic incident in 1991. The visual acuity in his right eye is 20/20, and in his left eye, counting fingers. Following an examination in 2014, his optometrist stated, “Attn: Vision Program U.S. Dept of Transportation . . . Considering the fact this vision defect in the left eye is longstanding I would state Dale has over time adapted to the loss of vision and should continue to be able to operate a motor vehicle safely.” Mr. Goodell reported that he has driven straight trucks for 56 years, accumulating 5.6 million miles, and tractor-trailer combinations for 42 years, accumulating 1.05 million miles. He holds a Class A CDL from South Dakota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Mendoza, 35, has had histoplasmosis in his right eye since childhood. The visual acuity in his right eye is 20/100, and in his left eye, 20/20. Following an examination in 201X, his optometrist stated, “I believe Mr. Mendoza does have sufficient vision required for CDL.” Mr. Mendoza reported that he has driven tractor-trailer combinations for nine years, accumulating 954,000 miles. He holds a Class A CDL from Virginia. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Miller, 60, has retinal detachment in his right eye due to a traumatic incident in 1972. The visual acuity in his right eye is light perception, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “He is able to perform the required visual tasks associated with commercial driving skills.” Mr. Miller reported that he has driven straight trucks for 10 years, accumulating 110,000 miles. He holds an operator's license from Iowa. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Moyer, 47, has had a retinal detachment in his left eye since 1990. The visual acuity in his right eye is 20/20, and in his left eye, 20/200. Following an examination in 2015, his ophthalmologist stated, “Field is full od and doesn't compromise his ability to function as a commercial driver.” Mr. Moyer reported that he has driven straight trucks for 29 years, accumulating 870,000 miles, and tractor-trailer combinations for 26 years, accumulating 260,000 miles. He holds a Class AM CDL from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Pillig, 43, has had anisometropia with amblyopia in his left eye since childhood. The visual acuity in his right
Mr. Rawls, 46, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2015, his ophthalmologist stated, “Patient has a corneal scar from an accident OS in 1990. Vision has been poor since then. Patient obtained a commercial license in 2008 and 2010, but needs re-evaluation to see if he qualifies for an exemption for a CDL license. The patient, based upon his examination today, does not meet the requirements for a CDL. However, the patient has had a CDL in the past with no accidnets on record. If appropriate, the patient would desire a road test to prove his ability to safely drive and quality [
Mr. Ropp, 72, has had histoplasmosis in his left eye since 1973. The visual acuity in his right eye is 20/20, and in his left eye, light perception. Following an examination in 2014, his optometrist stated, “In my opinion I believe with his record of 30 plus years without an accident or moving violation I don't feel his vision will be a concern in regards to driving a commercial vehicle.” Mr. Ropp reported that he has driven straight trucks for 34 years, accumulating 68,000 miles, and tractor-trailer combinations for 34 years, accumulating 68,000 miles. He holds a Class A CDL from Illinois. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Slone, 51, has a prosthetic right eye due to a traumatic incident in childhood. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “Mr. Slone has sufficient vision to operate a commercial vehicle under the following restrictions (a) spectacle RX (b) passenger mirror.” Mr. Slone reported that he has driven straight trucks for 35 years, accumulating 1.75 million miles. He holds an operator's license from Kentucky. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Sorensen, 57, has complete loss of vision in his right eye due to a traumatic incident at birth. The visual acuity in his right eye is counting fingers, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “I would also state in my medical opinion Mr. Sorensen is able to safely operate a commercial vehicle. There is a longstanding history of loss of vision in the right eye associated with trauma resulting in loss of vision in the right eye.” Mr. Sorensen reported that he has driven straight trucks for 20 years, accumulating 40,000 miles, and tractor-trailer combinations for 11 years, accumulating 33,000 miles. He holds a Class A CDL from Nebraska. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Stokke, 54, has complete loss of vision in his left eye due to a traumatic incident in 2005. The visual acuity in his right eye is 20/20, and in his left eye, light perception. Following an examination in 2014, his ophthalmologist stated, “In summary, this 53 year old commercial truck driver has adequate vision to continue driving a commercial vehicle in my opinion.” Mr. Stokke reported that he has driven tractor-trailer combinations for 29 years, accumulating 1.37 million miles. He holds a Class A CDL from California. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Stuart, 55, has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/350. Following an examination in 2014, his optometrist stated, “In my opinion Mr. Stuart has sufficient vision to perform [
Mr. Tlumach, 45, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/100, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist stated, “At this time, from a medical standpoint, he has sufficient vision needed to continue to perform the driving tasks required to operate a commercial motor vehicle.” Mr. Tlumach reported that he has driven straight trucks for 12 years, accumulating 144,000 miles. He holds an operator's license from Pennsylvania. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Watkins, 74, has/has had amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/25, and in his left eye, 20/400. Following an examination in 2014, his ophthalmologist stated, “Pt's [
Mr. Zaloudek, 43, has a damaged cornea and retina in his right eye due to a traumatic incident in childhood. The visual acuity in his right eye is counting fingers, and in his left eye, 20/15. Following an examination in 2014, his optometrist stated, “In my opinion Kevin Zaludek's vision is sufficient for him to safely operate a commercial vehicle.” Mr. Zaloudek reported that he has driven straight trucks for 15 years, accumulating 225,000 miles. He holds an operator's license from Vermont. His driving record for the last 3 years shows
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
FMCSA will consider all comments and material received during the comment period and may change this notice based on your comments.
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final determination; granting of exemption.
FMCSA announces its decision to grant the application of the Oregon Trucking Associations (OTA) for a limited exemption from the Agency's hours-of-service (HOS) regulation requiring commercial motor vehicle (CMV) drivers to take 30-minute rest breaks at specified intervals in their duty day. This exemption is limited to CMV drivers engaged in transporting timber from Oregon forestlands, and further limited to periods of the year in which the Oregon Department of Forestry (ODF) has formally restricted logging operations to certain hours of the day due to an elevated risk of forest fire. FMCSA believes that the rest breaks during these periods of restricted operating hours may reduce the volume of timber that OTA drivers can deliver, affecting the economic viability of the Oregon lumber industry. The Agency grants this limited exemption on condition that these exempt drivers do not drive after the 12th hour of their duty day. The Agency finds that the CMV operations of OTA timber transporters under this limited exemption would likely achieve a level of safety equivalent to or greater than the level of safety that would be obtained in the absence of the exemption.
This limited exemption is effective March 18, 2015 subject to the Terms and Conditions stated herein, and expires March 20, 2017.
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The Agency may grant an exemption subject to specified terms and conditions. The decision of the Agency must be published in the
On December 27, 2011, FMCSA published a final rule establishing mandatory rest breaks for CMV drivers (76 FR 81133). Effective July 1, 2013, drivers may not operate a CMV if 8 hours or more have elapsed since the end of the driver's last off-duty or sleeper-berth period of at least 30 minutes [49 CFR 395.3(a)(3)(ii)]. FMCSA did not otherwise specify when drivers must take the 30-minute break.
On August 2, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision on petitions for review of the Agency's final HOS rule of December 27, 2011.
In response to the U.S. Court of Appeals decision, on October 28, 2013 (78 FR 64179), FMCSA amended its December 27, 2011, final HOS rule to provide an exception from the 30-minute rest break requirement for short-haul drivers who are not required to prepare records of duty status (RODS). The Agency also removed regulatory text made obsolete by the passing of the July 1, 2013, compliance date for the final rule.
The OTA, a trade association, has applied for a limited exemption from the mandatory rest break requirement of 49 CFR 395.3(a)(3)(ii) on behalf of all motor carriers and drivers who operate CMVs to transport logs in interstate commerce from Oregon forestlands. Some Oregon timber is transported by truck to ports for export to other countries, which is interstate commerce. Some is transported to other States by truck, sometimes interlining with rail or water carriers. OTA states that most of its members who engage in lumber operations have interstate operating authority. OTA states that the lumber mills must receive a certain volume of logs to remain economically viable. It bears noting here, that drivers transporting logs from Oregon forests to Oregon lumber mills that are operating in intrastate commerce, and therefore not subject to FMCSA jurisdiction or to this exemption. Some of this transportation to the mills, however, does cross State lines and is therefore interstate transportation covered by the Federal regulations. OTA did not provide a percentage breakdown of those shipments that are in interstate commerce.
The OTA has indicated that a substantial number of its drivers qualify as short-haul drivers, and thus will not require this exemption. The general HOS rule limits certain short-haul drivers to a duty day of 12 hours from the time they come on duty following 10 consecutive hours off duty. Nonetheless, OTA has proposed that all drivers employing this exemption be limited by its terms to a duty day of no more than 12 hours.
When the risk of fire is high, the Oregon Department of Forestry (ODF) limits logging in the forestland to certain hours of the day, such as prior to 1:00 p.m. OTA states that fire-safety restrictions are often imposed from July to late October and that logging operators need all remaining time each day to cut and remove the volume of timber needed to sustain the lumber mills. OTA seeks relief from the 30-minute break requirement only when the ODF is formally restricting logging operations to certain hours of the day due to an elevated risk of forest fire. OTA states that during these periods of limited operations, CMV drivers employing this exemption would achieve the same level of safety with this exemption in place as they would achieve if required to observe the rest-break requirement.
CMV enforcement officials in Oregon generally have access to the ODF current roster showing what level of forest protection is in place at any time. When Oregon timber transporters travel out of State, they must carry a copy of the ODF order reflecting the alert level at that time, as the exemption terms and conditions will require.
On December 10, 2013, FMCSA published notice of this application and asked for public comment (78 FR 74222). Only one comment was received. An international forest products company that conducts Oregon timber operations supported the application for exemption.
FMCSA reviewed OTA's application for exemption and the public comments. The Agency believes that limiting the timber operations of these CMV drivers to a fixed 12-hour window will promote safety at least as effectively as the 30-minute break. These drivers would be operating like certain short-haul drivers, who are already permitted to follow a 12-hour duty period, during which they are exempt from the break requirement. These timber-transporting drivers would likely achieve a level of safety equivalent to or greater than the level of safety that would be obtained in the absence of the exemption [49 CFR 381.310(c)(5)].
This is an exemption only from the 30-minute break requirement [49 CFR 395.3(a)(3)(ii)]. Today's exemption is restricted to drivers operating CMVs when engaged in interstate logging transportation originating in forestlands of the State of Oregon during periods in which the Oregon Department of Forestry (ODOF) imposes Industrial Fire Precaution Level 3 (IPFL3) on those lands, restricting the transportation of logs in those forests to certain hours of the day due to an elevated risk of forest fire.
Motor carriers must notify FMCSA by email addressed to
a. Date of the accident,
b. City or town, and State, in which the accident occurred, or closest to the accident scene,
c. Driver's name and license number,
d. Vehicle number and state license number,
e. Number of individuals suffering physical injury,
f. Number of fatalities,
g. The police-reported cause of the accident,
h. Whether the driver was cited for violation of any traffic laws, motor carrier safety regulations, and
i. The driver's total driving time and total on-duty time period at the time of the accident.
In accordance with 49 U.S.C. 31315(d), during periods that this exemption is in effect, no State shall enforce any law or regulation that conflicts with or is inconsistent with this exemption with respect to a firm or person operating under the exemption.
The FMCSA does not believe the safety record of any driver operating under this exemption will deteriorate. However, should deterioration in safety occur, FMCSA will take all steps necessary to protect the public interest, including revocation of the exemption. The FMCSA in its discretion may revoke the exemption immediately for failure to comply with its terms and conditions.
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Meeting Notice of RTCA Special Committee 225, Rechargeable Lithium Battery and Battery Systems.
The FAA is issuing this notice to advise the public of the nineteenth meeting of the RTCA Special Committee 225, Rechargeable Lithium Battery and Battery Systems.
The meeting will be held April 7–9, 2015 from 9:00 a.m.–5:00 p.m.
The meeting will be held at RTCA Headquarters, 1150 18th Street NW., Suite 910, Washington DC 20036.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 330–0662/(202) 833–9339, fax (202) 833–9434, or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463, 5 U.S.C., App.), notice is hereby given for a meeting of Special Committee 225. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 302.201 et. seq.). The due date for Answers, Conforming Applications, or Motions to Modify Scope are set forth below for each application. Following the Answer period DOT may process the application by expedited procedures. Such procedures may consist of the adoption of a show-cause order, a tentative order, or in appropriate cases a final order without further proceedings.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for renewal of exemption; request for comments.
FMCSA announces that it has received an application from Adirondack Trailways, Pine Hill Trailways, and New York Trailways (“Trailways”) for a renewal of their exemption from the hours-of-service (HOS) record of duty status (RODs) provision in 49 CFR 395.8(c). Trailways currently holds an exemption for the period of May 31, 2013 to May 31, 2015. FMCSA extended the exemption to
If granted, this exemption would be effective during the period of May 31, 2015 to May 31, 2017. Comments must be received on or before April 17, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA–2012–0268 using any of the following methods:
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Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to
Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 202–366–4325. Email:
The HOS rule in 49 CFR 395.8(c) requires every commercial motor vehicle (CMV) driver to record his or her duty status for each 24-hour period using methods described in that section. Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption from the HOS requirements for up to a 2-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The procedures for requesting an exemption (including renewals) are prescribed in 49 CFR part 381.
Trailways offers scheduled passenger-carrier service throughout New York State and to the nearby Canadian cities of Montreal and Toronto. Trailways and all other regular route passenger carriers and their drivers were granted exemptions for the period May 31, 2013 to May 31, 2015. Trailways' initial application for relief from the HOS RODs rule was submitted in 2012; a copy of the application is in the docket identified at the beginning of this notice. The 2012 application describes fully the nature of Trailways' operations.
Trailways' application for a renewal of the exemption is for fixed-route carriers and their drivers who are often away from the controls of the vehicle for less than 10 minutes to assist passengers or make passenger pick-ups and drop-offs along the route. Trailways' advised that until March 2011 they and other motor carriers had been operating in accordance with a 1996 interpretation of 49 CFR 395.8(c) issued by the Federal Highway Administration (FHWA). The 1996 interpretation allowed regular-route passenger carrier CMV drivers not to record a location entry on the driver's RODS for non-driving periods of less than 10 minutes. The RODS simply showed the stop as driving time. In March 2011, New York State officials began enforcing the rule literally, requiring that a change in duty status be entered on the log any time the driver leaves the operating controls of the CMV. Trailways was concerned that the violations would have a negative effect on the companies' and the drivers' Compliance Safety Accountability ratings, as well as schedules and passenger service because of the delays needed to make the entries.
Trailways therefore requested that their drivers with regularly scheduled routes be exempted from changing their duty status from “driving” to “on-duty not driving” when making stops of less than 10 minutes.
Trailways noted that the exemption would reduce the amount of total time a driver can drive in a duty period. Without the exemption, the times drivers spend at stops to load passengers, freight, etc. would be logged as on-duty/not driving, increasing the driving time available, but creating an additional administrative distraction every time the driver leaves the controls, regardless of the reason or the limited amount of time away from the vehicle controls. Trailways further advised that its carriers provide flag stops and that having to update the log at each flag stop increases the length of time the motorcoach may delay traffic while waiting for the pick-up and/or discharge of passengers and luggage, and then waiting for the driver to update the log. According to Trailways, in many instances the large number of brief stops will not fit on the log if the driver makes all of the required entries.
Trailways noted that the maximum possible driving time would be reduced and that traffic congestion could be reduced. FMCSA believes this would ensure that operations under the exemption would be at least as safe as operations that comply with the requirements on change of duty status.
As in 2013, FMCSA would apply the exemption, if granted, to all regular-route for-hire passenger-carrier drivers because they presumably operate in much the same manner as Trailways. Including all such drivers in the exemption will preclude the need for other carries to file identical exemption requests, and will provide for consistent enforcement because the same provisions would be applied to all similar scenarios involving brief stops by drivers of these carriers during their regular-route operations.
A copy of Trailways' exemption application is available for review in the docket for this notice.
In accordance with 49 U.S.C. 31136(e) and 31315(b)(4), FMCSA requests public comment on the Trailways' application for an exemption from certain
The exemption would be restricted to drivers employed by Trailways and other regular-route for-hire passenger-carrier drivers. Instead of complying with the provisions in 49 CFR 395.8(c), these drivers would be exempted from changing their duty status from “driving” to “on-duty not driving” when making stops of less than 10 minutes. These drivers must comply with all other applicable provisions of the Federal Motor Carrier Safety Regulations (49 CFR parts 350–399).
The limited exemption from the HOS RODs requirements of 49 CFR 395.8(c) is proposed to be effective from 12:01 a.m. on May 31, 2015, through 11:59 p.m. on May 31, 2017.
In accordance with 49 U.S.C. 31315(d), during the period this exemption would be in effect, no State may enforce any law or regulation that conflicts with or is inconsistent with the exemption with respect to a firm or person operating under the exemption.
Trailways and other regular-route for-hire passenger-carriers would be required to notify FMCSA within 5 business days of any accident (as defined in 49 CFR 390.5), involving any of the motor carrier's CMVs operating under the terms of this exemption. The notification must include the following information:
a. Date of the accident,
b. City or town, and State, in which the accident occurred, or closest to the accident scene,
c. Driver's name and driver's license number and State of issuance,
d. Vehicle number and State license plate number,
e. Number of individuals suffering physical injury,
f. Number of fatalities,
g. The police-reported cause of the accident,
h. Whether the driver was cited for violation of any traffic laws or motor carrier safety regulations, and
i. The driver's total driving time and total on-duty time period prior to the accident.
Reports filed under this provision shall be emailed to
FMCSA does not believe the drivers covered by this exemption will experience any deterioration of their safety record. However, should this occur, FMCSA will take all steps necessary to protect the public interest, including revocation or restriction of the exemption. The FMCSA will immediately revoke or restrict the exemption for failure to comply with its terms and conditions.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemption; request for comments.
FMCSA renews Lytx, Inc.'s (Lytx) (previously DriveCam, Inc.)
This decision is effective March 18, 2015. Comments must be received on or before April 17, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) number FMCSA–2008–0312 by any of the following methods:
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Mr. Luke Loy, Vehicle and Roadside Operations Division, Office of Bus and Truck Standards and Operations, MC–
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Lytx applied for an exemption from 49 CFR 393.60(e)(1) to allow the placement of video event recorders within the area swept by CMV windshield wipers. On April 15, 2009, FMCSA published a notice of final disposition granting the exemption (74 FR 17549). On April 18, 2011, FMCSA published a notice of final disposition renewing this exemption until April 16, 2013 (76 FR 21791). On March 22, 2013, FMCSA published a notice of final disposition renewing this exemption until April 16, 2015 (78 FR 17750). The renewal outlined in this Notice extends the exemption through April 16, 2017.
FMCSA is not aware of any evidence showing that the installation of video event recorders on CMVs, in accordance with the conditions of the original exemption, has resulted in any degradation in safety. FMCSA continues to believe that the potential safety gains from the use of video event recorders to improve driver behavior will improve the overall level of safety to the motoring public.
The exemption is renewed subject to the requirements that video event recorders installed in CMVs be mounted not more than 50mm (2 inches) below the upper edge of the area swept by the windshield wipers, and located outside the driver's sight lines to the road and highway signs and signals. The exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) Motor carriers and/or commercial motor vehicles fail to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
The Agency believes that extending the exemption for another two years will likely achieve a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption because (1) based on the technical information available, there is no indication that the video event recorders obstruct drivers' views of the roadway, highway signs and surrounding traffic; (2) trucks and buses generally have an elevated seating position which greatly improves the forward visual field of the driver, and any impairment of available sight lines is minimal; and (3) the location within the top two inches of the area swept by the windshield wiper and out of the driver's normal sightline is reasonable and enforceable at roadside. In addition, the Agency believes that the use of video event recorders by fleets to deter unsafe driving behavior is likely to improve the overall level of safety to the motoring public.
Without the exemption, FMCSA and the motor carrier industry would be unable to continue to test this innovative safety management control system.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
FMCSA requests comments from parties with data concerning the safety record of CMVs equipped with video event recorders by April 17, 2015. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the Lytx exemption.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions request for comments.
FMCSA announces receipt of applications from 39 individuals for exemption from the prohibition against persons with insulin-treated diabetes mellitus (ITDM) operating commercial motor vehicles (CMVs) in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate CMVs in interstate commerce.
Comments must be received on or before April 17, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2014–0314 using any of the following methods:
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Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 39 individuals listed in this notice have recently requested such an exemption from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
Mr. Anderson, 54, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Anderson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Anderson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Belloli, 59, has had ITDM since 2007. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Belloli understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Belloli meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Massachusetts.
Mr. Breister, 51, has had ITDM since 2004. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Breister understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Breister meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Wisconsin.
Mr. Carino, 28, has had ITDM since 2012. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Carino understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Carino meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Illinois.
Mr. Curtis, 63, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Curtis understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Curtis meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds an operator's license from Nevada.
Mr. Dixon, 24, has had ITDM since 1999. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Dixon understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dixon meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from South Dakota.
Ms. Edmondson, 25, has had ITDM since 1997. Her endocrinologist examined her in 2014 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Edmondson understands diabetes management and monitoring has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Edmondson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her ophthalmologist examined her in 2014 and certified that she does not have diabetic retinopathy. She holds an operator's license from Alabama.
Mr. Gentile, 56, has had ITDM since 2014. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Gentile understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gentile meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from New Jersey.
Mr. Gibson, 29, has had ITDM since 2000. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Gibson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gibson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Texas.
Mr. Gossetti, 43, has had ITDM since 1988. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Gossetti understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gossetti meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he has stable proliferative diabetic retinopathy. He holds an operator's license from Rhode Island.
Mr. Griffith, 48, has had ITDM since 2014. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Griffith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Griffith meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Massachusetts.
Mr. Handel, 69, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Handel understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Handel meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Oregon.
Mr. Hersh, 70, has had ITDM since 2005. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hersh understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hersh meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Nebraska.
Mr. Houghton, 48, has had ITDM since 2011. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Houghton understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Houghton meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Massachusetts.
Mr. Hughes-Gariepy, 42, has had ITDM since 2011. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies
Mr. Johnson, 54, has had ITDM since 2010. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Johnson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Johnson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Georgia.
Mr. Lake, 50, has had ITDM since 2014. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lake understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lake meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from North Carolina.
Mr. Landis, 76, has had ITDM since 2012. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Landis understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Landis meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Illinois.
Mr. Lohr, 57, has had ITDM since 1985. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lohr understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lohr meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Lupold, 57, has had ITDM since 2014. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lupold understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lupold meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. McGathey, 30, has had ITDM since 2006. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. McGathey understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. McGathey meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds an operator's license from Indiana.
Mr. Mesnard, 60, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Mesnard understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Mesnard meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Milburn, 63, has had ITDM since 2014. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Milburn understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Milburn meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from Idaho.
Mr. Miles, 54, has had ITDM since 1990. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting
Mr. Oliver, 45, has had ITDM since 1991. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Oliver understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Oliver meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a chauffeur's license from Michigan.
Mr. Olson, 69, has had ITDM since 2012. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Olson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Olson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Idaho.
Mr. Peak, 68, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Peak understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Peak meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Kansas.
Mr. Reith, 64, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Reith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Reith meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class B CDL from Pennsylvania.
Mr. Rubinetti, 50, has had ITDM since 2012. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Rubinetti understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Rubinetti meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New Jersey.
Mr. Smith, 53, has had ITDM since 2009. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Smith understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Smith meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Florida.
Mr. Snyder, 47, has had ITDM since 2014. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Snyder understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Snyder meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds an operator's license from Massachusetts.
Mr. Spierings, 69, has had ITDM since 2004. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Spierings understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Spierings meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist
Mr. Stokes, 66, has had ITDM since 2013. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Stokes understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Stokes meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Washington.
Mr. Strum, 36, has had ITDM since 2014. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Strum understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Strum meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Indiana.
Mr. Vierstraete, 50, has had ITDM since 2014. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Vierstraete understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Vierstraete meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Williams, 34, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Williams understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Williams meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Idaho.
Mr. Wilson, 55, has had ITDM since 2013. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Wilson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wilson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class E CDL from Michigan.
Mr. Witt, 46, has had ITDM since 1982. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Witt understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Witt meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Vermont.
Mr. Wright, 22, has had ITDM since 2004. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Wright understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wright meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds an operator's license from Colorado.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the date section of the notice.
FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441).
Section 4129 requires: (1) Elimination of the requirement for 3 years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.
In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established
Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary.
The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 notice, except as modified by the notice in the
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, To submit your comment online, go to
Federal Railroad Administration (FRA), United States Department of Transportation (USDOT).
Notice.
FRA hereby gives notice that it is submitting the following Information Collection request (ICR) to the Office of Management and Budget (OMB) for Emergency processing under the Paperwork Reduction Act of 1995 and its implementing regulations. FRA requests that OMB immediately authorize the collection of information identified below on March 18, 2015, for a period of 180 days.
A copy of this individual ICR, with applicable supporting documentation, may be obtained by calling FRA's Clearance Officers: Robert Brogan (tel. (202) 493–6292) or Kimberly Toone (tel. (202) 493–6132); these numbers are not toll-free), or by contacting Mr. Brogan via facsimile at (202) 493–6216 or Ms. Toone via facsimile at (202) 493–6497, or via email by contacting Mr. Brogan at
As provided under 5 CFR 1320.13,
Upon OMB approval of its emergency clearance request, FRA will follow the normal clearance procedures for the information collection associated with this Railworthiness Directive.
Pursuant to 44 U.S.C. 3507(a) and 5 CFR 320.5(b), 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501–3520.
Federal Transit Administration (FTA), DOT.
Notice of random drug and alcohol testing rates for 2015.
This notice announces the 2015 random testing rates for employers subject to the Federal Transit Administration's (FTA) drug and alcohol rules.
Iyon Rosario, Drug and Alcohol Program Manager for the Office of Transit Safety and Oversight, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202–366–2010 or email:
On January 1, 1995, FTA required large transit employers to begin drug and alcohol testing employees performing safety-sensitive functions and submit annual reports by March 15 of each year beginning in 1996. The annual report includes the number of employees who had a verified positive for the use of prohibited drugs, and the number of employees who tested positive for the misuse of alcohol during the reported year. Small employers commenced their FTA-required testing on January 1, 1996, and began reporting the same information as the large employers beginning March 15, 1997. The testing rules were updated on August 1, 2001, and established a random testing rate for prohibited drugs and the misuse of alcohol.
The rules require employers conduct random drug tests at a rate equivalent to at least 50 percent of their total number of safety-sensitive employees for prohibited drug use and at least 25 percent for the misuse of alcohol. However, the rules provide the drug random testing rate may be lowered to 25 percent if the “positive rate” for the entire transit industry is less than one percent for two preceding consecutive years. Once lowered, the random rates may be raised to 50 percent if the positive rate equals or exceeds one percent for any one year (“positive rate” means the number of positive results for random drug tests conducted under 49 CFR 655.45 plus the number of refusals of random tests required by 49 CFR 655.49, divided by the total number of random drug tests, plus the number of refusals of random tests required by 49 CFR part 655).
The alcohol provisions provide the random rate may be lowered to 10 percent if the “violation rate” for the entire transit industry is less than 0.5 percent for two consecutive years. It will remain at 25 percent if the “violation rate” is equal to or greater than 0.5 percent but less than one percent, and it will be raised to 50 percent if the “violation rate” is one percent or greater for any one year (“violation rate” means the number of covered employees found during random tests administered under 49 CFR 655.45 to have an alcohol concentration of 0.04 or greater, plus the number of employees who refuse a random test required by 49 CFR 655.49, divided by the total reported number of random alcohol tests plus the total number of refusals of random tests required by 49 CFR part 655).
Pursuant to 49 CFR 655.45(b), the Acting Administrator's decision to increase or decrease the minimum annual percentage rate for random drug and alcohol testing is based, in part, on the reported positive drug and alcohol violation rates for the entire industry. The information used for this determination is drawn from the drug and alcohol Management Information System (MIS) reports required by 49 CFR part 655. In determining the reliability of the data, the Acting Administrator considers the quality and completeness of the reported data, or may obtain additional information or reports from employers, and make appropriate modifications in calculating the industry's verified positive results and violation rates.
The Acting Administrator has determined that the random drug testing rate will remain at 25 percent for 2015 due to a “positive rate” lower than 1.0 percent for random drug test data for the two preceding calendar years. The random drug rates for the two preceding years are 0.74 percent for 2013 and 0.87 percent for 2014.
The Acting Administrator also has determined that the random alcohol testing rate for 2015 will remain at 10 percent because the random alcohol violation rate was again lower than 0.5 percent for the two preceding consecutive years due. The random alcohol rates for the two preceding years are 0.12 percent for 2013 and 0.14 percent for 2014.
Detailed reports on the FTA drug and alcohol testing data collected from transit employers may be obtained from the FTA, Office of Transit Safety and Oversight, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 366–2010
Issued in Washington, DC, pursuant to authority under 49 CFR 1.91.
Federal Aviation Administration (FAA), DOT.
Notice of Intent to Rule on Request to Release Airport Property at the Ottumwa Regional Airport (OTM), Ottumwa, Iowa.
The FAA proposes to rule and invites public comment on the release of land, Lot #7, 14550 Terminal Ave., at the Ottumwa Regional Airport, Ottumwa, Iowa, under the provisions of 49 U.S.C. 47107(h)(2).
Comments must be received on or before April 17, 2015.
Comments on this application may be mailed or delivered to the FAA at the following address: Lynn D. Martin, Airports Compliance Specialist, Federal Aviation Administration, Airports Division, ACE–610C, 901 Locust Room 364, Kansas City, MO 64106.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to: Tom Francis, Airport Manager, C/O Ottumwa Regional Airport 14802 Terminal St. Ottumwa, IA 50501, 641–683–0619.
Lynn D. Martin, Airports Compliance Specialist, Federal Aviation Administration, Airports Division, ACE–610C, 901 Locust Room 364, Kansas City, MO 64106, (816) 329–2644,
The request to release property may be reviewed, by appointment, in person at this same location.
The FAA invites public comment on the request to release approximately 2.80 acres of airport property,14550 Terminal Ave., Lot #7, at the Ottumwa Regional Airport (OTM) under the provisions of 49 U.S.C. 47107(h)(2). On March 4, 2015, the Airport Manager at the Ottumwa Regional Airport requested from the FAA that approximately 2.80 acres of property, Lot #7, be released for sale to Friends of NAS Ottumwa for use as a museum for the Ottumwa Naval Air Station history. On March 12, 2015, the FAA determined that the request to release property at the Ottumwa Regional Airport (OTM) submitted by the Sponsor meets the procedural requirements of the Federal Aviation Administration and the release of the property does not and will not impact future aviation needs at the airport. The FAA may approve the request, in whole or in part, no sooner than thirty days after the publication of this Notice.
The following is a brief overview of the request:
Ottumwa Regional Airport (OTM) is proposing the release of one parcel, Lot #7, containing 2.80 acres, more or less. The release of land is necessary to comply with Federal Aviation Administration Grant Assurances that do not allow federally acquired airport property to be used for non-aviation purposes. The sale of the subject property will result in the land at the Ottumwa Regional Airport (OTM) being changed from aeronautical to non-aeronautical use and release the lands from the conditions of the Airport Improvement Program Grant Agreement Grant Assurances. In accordance with 49 U.S.C. 47107(c)(2)(B)(i) and (iii), the airport will receive fair market value for the property, which will be subsequently reinvested in another eligible airport improvement project for general aviation facilities at the Ottumwa Regional Airport.
Any person may inspect, by appointment, the request in person at the FAA office listed above under
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemptions, request for comments.
FMCSA announces receipt of applications from 21 individuals for exemption from the vision requirement in the Federal Motor Carrier Safety Regulations. They are unable to meet the vision requirement in one eye for various reasons. The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision requirement in one eye. If granted, the exemptions would enable these individuals to qualify as drivers of commercial motor vehicles (CMVs) in interstate commerce.
Comments must be received on or before April 17, 2015. All comments will be investigated by FMCSA. The exemptions will be issued the day after the comment period closes.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2014–0303 using any of the following methods:
•
•
•
•
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” FMCSA can renew exemptions at the end of each 2-year period. The 21 individuals listed in this notice have each requested such an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting an exemption will achieve the required level of safety mandated by statute.
Mr. Anderson, 53, has had Best disease in his right eye since childhood. The visual acuity in his right eye is 20/100, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “There are no visual changes that warrant new restrictions to his current commercial driver's license.” Mr. Anderson reported that he has driven straight trucks for 37 years, accumulating 296,000 miles, and tractor-trailer combinations for 2 years, accumulating 15,000 miles. He holds a Class A CDL from Minnesota. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Arkwright, 43, has had a toxoplasmosis scar in his right eye since birth. The visual acuity in his right eye is 20/60, and in his left eye, 20/20. Following an examination in 2015, his optometrist stated, “It is my opinion that Mr. Arkwright has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Arkwright reported that he has driven straight trucks for 3 years, accumulating 225,000 miles, and tractor-trailer combinations for 17 years, accumulating 2.02 million miles. He holds an operator's license from Mississippi. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Ashworth, 52, has had a corneal scar in his right eye since childhood. The visual acuity in his right eye is 20/80, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “I certify that in my medical opinion, Mr. Ashworth has sufficient vision to perform the driving task required to operate a commercial vehicle.” Mr. Ashworth reported that he has driven straight trucks for 10 years, accumulating 350,000 miles, and tractor-trailer combinations for 20 years, accumulating 2.7 million miles. He holds a Class DA CDL from Kentucky. His driving record for the last 3 years shows no crashes and one conviction for a moving violation in a CMV; he failed to obey a traffic control device.
Mr. Cimei, 57, has a hemorrhage and retinal detachment in his right eye due to a traumatic incident in 2009. The visual acuity in his right eye is hand motion, and in his left eye, 20/15. Following an examination in 2015, his ophthalmologist stated, “In my medical opinion he has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Cimei reported that he has driven straight trucks for 26 years, accumulating 260,000 miles, and tractor-trailer combinations for 26 years, accumulating 5,200 miles. He holds a Class A CDL from Illinois. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Gruszecki, 59, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/100, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist stated, “Based on the vision testing Ronald should be able to perform the tasks required for his commercial license.” Mr. Gruszecki reported that he has driven straight trucks for 28 years, accumulating 1.26 million miles. He holds an operator's license from Illinois. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Harper, 66, has a displaced pupil in his right eye due to a traumatic incident during childhood. The visual acuity in his right eye is 20/50, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “In my medical opinion Mr. Harper has sufficient vision to adequately perform the tasks necessary to operate a commercial vehicle at this time.” Mr. Harper reported that he has driven straight trucks for 2 years, accumulating 16,000 miles, and tractor-trailer combinations for 31 years, accumulating 3.1 million miles. He holds a Class A CDL from Missouri. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Helfer, 50, has had a cataract with amblyopia in his left eye since birth. The visual acuity in his right eye is 20/20, and in his left eye, 20/1000. Following an examination in 2014, his optometrist stated, “I certify that in my medical opinion, patient has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Helfer reported that he has driven tractor-trailer combinations for 24 years, accumulating 1.44 million miles. He holds a Class AM CDL from Illinois. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Jones, 59, has had macular drusen in his left eye since 2005. The visual acuity in his right eye is 20/20, and in his left eye, 20/100. Following an examination in 2014, his optometrist stated, “RE: Commercial Driver's License . . . In my medical opinion, I believe Steven can safely operate a motor vehicle. I am encouraged that he has already driven safely for over 10 years with his current state of visual ability.” Mr. Jones reported that he has driven straight trucks for 22 years, accumulating 514,800 miles. He holds a Class A CDL from Kansas. His driving record for the last 3 years shows no
Mr. Laforce, 49, has had esotropia and amblyopia in his left eye since birth. The visual acuity in his right eye is 20/20, and in his left eye, 20/50. Following an examination in 2014, his optometrist stated, “Has sufficient vision to perform daily tasks to operate a commercial vehicle.” Mr. Laforce reported that he has driven tractor-trailer combinations for three years, accumulating 63,000 miles. He holds a Class A CDL from Vermont. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Lewis, 36, has had a retinal detachment in his right eye since 2008. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist certified that, in his medical opinion, Mr. Lewis has sufficient vision to perform the driving tasks required to operate a commercial vehicle. Mr. Lewis reported that he has driven straight trucks for 2.7 years, accumulating 3,200 miles. He holds an operator's license from Ohio. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. McKinney, 25, has had amblyopia in his left eye since birth. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2014, his optometrist stated, “Ryan has 20/20 vision binocular and has full field of vision in both eyes. This condition has been present since birth. I see no reason why Ryan McKinney should not be allowed to drive a commercial vehicle on the interstate.” Mr. McKinney reported that he has driven straight trucks for one year, accumulating 1,000 miles, and tractor-trailer combinations for 18 months, accumulating 130,000 miles. He holds a Class A CDL from Tennessee. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Miller, 67, has had refractive amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/100, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “In my medical opinion, I see no reason visually that he could not operate a commercial vehicle.” Mr. Miller reported that he has driven straight trucks for 17 years, accumulating 799,000 miles, and tractor-trailer combinations for 22 years, accumulating 1.98 million miles. He holds a Class A CDL from Ohio. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Murray, 67, has complete loss of vision in his left eye due to a traumatic incident in 2002. The visual acuity in his right eye is 20/25, and in his left eye, no light perception. Following an examination in 2014, his optometrist stated, “In my opinion patient has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Murray reported that he has driven tractor-trailer combinations for 40 years, accumulating 432,000 miles. He holds a Class A CDL from Louisiana. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Oberschlake, 50, has had amblyopia in his right eye since childhood. The visual acuity in his right eye is 20/70, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist certified that, in his medical opinion, Mr. Oberschlake has sufficient vision to perform the driving tasks required to operate a commercial vehicle. Mr. Oberschlake reported that he has driven straight trucks for 30 years, accumulating 45,000 miles. He holds an operator's license from Ohio. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Ohl, 49, has had refractive amblyopia in his right eye since birth. The visual acuity in his right eye is 20/50, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “In general, based on his current visual status, I believe Dennis to be capable of safely operating a commercial vehicle.” Mr. Ohl reported that he has driven straight trucks for 7.5 years, accumulating 172,500 miles. He holds an operator's license from Missouri. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Peebles, 65, has had complete loss of vision due to a choroidal melanoma in his right eye since 2014. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2014, his ophthalmologist stated, “This vision in his left eye is 20/20 with and without correction . . . Based on my exam and the Goldman visual field, Mr. Peebles fulfills the driving tasks required to operate a commercial vehicle.” Mr. Peebles reported that he has driven tractor-trailer combinations for 30 years, accumulating 468,500 miles. He holds a Class AM CDL from Tennessee. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Perrotta, 56, has had maculopathy associated with chronic central serous retinopathy in his left eye since 2007. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2014, his optometrist stated, “It is in my medical opinion that Mr. Perrotta's visual system is capable of performing the designated driving tasks required to operate a commercial vehicle, and has been doing so without incident for over 10 years.” Mr. Perrotta reported that he has driven straight trucks for 5.5 years, accumulating 184,800 miles. He holds a Class B CDL from Massachusetts. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Pitts, 67, has had a retinal detachment in his right eye since 2010. The visual acuity in his right eye is no light perception, and in his left eye, 20/20. Following an examination in 2014, his optometrist stated, “In my medical opinion, Mr. Pitts has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Pitts reported that he has driven tractor-trailer combinations for 40 years, accumulating four million miles. He holds a Class A CDL from Florida. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
Mr. Porter, 56, has had hyperopia with amblyopia in his left eye since childhood. The visual acuity in his right eye is 20/20, and in his left eye, 20/400. Following an examination in 2014, his optometrist stated, “R [
Mr. Prouty, 55, has had a retinal detachment and a cataract in his left eye since birth. The visual acuity in his right eye is 20/20, and in his left eye, counting fingers. Following an examination in 2014, his ophthalmologist stated, “In my medical opinion, he has sufficient vision to operate a commercial motor vehicle.” Mr. Prouty reported that he has driven straight trucks for 20 years, accumulating 300,000 miles, tractor-trailer combinations for 38 years, accumulating 760,000 miles, and buses for one year, accumulating 1,000 miles. He holds a Class A CDL from Iowa. His driving record for the last 3 years shows one crash, for which he was cited for following too closely.
Mr. Rau, 54, has a retinal tear and calcification of cornea secondary to failed penetrating keratoplasty in his left eye due to a traumatic incident in 1986. The visual acuity in his right eye is 20/20, and in his left eye, no light perception. Following an examination in 2014, his ophthalmologist stated, “I certify that in my medical opinion Mr. Rau has sufficient vision with correction to perform driving tasks required to operate commercial vehicles.” Mr. Rau reported that he has driven straight trucks for 33 years, accumulating 907,500 miles, and tractor-trailer combinations for 30 years, accumulating 2.63 million miles. He holds a Class A CDL from New Jersey. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
FMCSA will consider all comments and material received during the comment period and may change this notice based on your comments.
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Federal Aviation Administration
Notice of Public Meeting.
In preparation for the International Civil Aviation Organization's (ICAO) Dangerous Goods Panel's (DGP's) meeting to be held April 27–May 1, 2015, in Montreal, Canada, the FAA's Office of Hazardous Materials Safety and the Pipeline and Hazardous Materials Safety Administration's (PHMSA) Office of Hazardous Materials Safety announce a public meeting.
The public meeting will be held on Thursday, April 23, 2015 from 9 a.m. until 12 p.m.
The public meeting will be held at FAA Headquarters (FOB 10A), Bessie Coleman Conference Center, 2nd Floor, 800 Independence Avenue SW., Washington, DC 20591.
Participants are requested to register by using the following email address:
Please include your name, organization, email address, and indicate whether you will be attending in person or participating via conference call. Conference call connection information will be provided to those who register and indicate that they will participate via conference call.
Questions regarding the meeting can be directed to Ms. Janet McLaughlin, Deputy Director, Office of Hazardous Materials Safety, ADG–2, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267–9432. Email:
We are committed to providing equal access to this meeting for all participants. If you need alternative formats or other reasonable accommodations, please call (202) 267–9432 or email
Information and viewpoints provided by stakeholders are requested as the United States delegation prepares for the International Civil Aviation Organization's Dangerous Goods Panel's (ICAO DGP's) Working Group 2015 Meeting.
Papers relevant to this ICAO DGP meeting can be viewed at the following Web page:
A panel of representatives from the FAA and PHMSA will be present. The meetings are intended to be informal, non-adversarial, and to facilitate the public comment process. No individual will be subject to questioning by any other participant. Government representatives on the panel may ask questions to clarify statements. Unless
The meeting will be open to all persons, subject to the capacity of the meeting room and phone lines available for those participating via conference call. Every effort will be made to accommodate all persons wishing to attend. The FAA and PHMSA will try to accommodate all speakers, subject to time constraints.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other federal agencies to comment on proposed information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the Community Development Financial Institutions Fund (CDFI Fund), Department of the Treasury, is soliciting comments concerning an evaluation of the CDFI Fund's Bank Enterprise Award (BEA) Program.
Written comments should be received on or before May 18, 2015 to be assured of consideration.
Direct all comments to Greg Bischak, Program Manager, Financial Strategies and Research, at the Community Development Financial Institutions Fund, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20020, by email to
Requests for additional information should be directed to
The program evaluation is designed to assess:
• The
• The
• The
• The
The primary audience for the BEA Program evaluation will include key leadership from the population of approximately 156 FDIC-insured financial institutions that applied for BEA Program awards during calendar years 2012, 2013, or 2014. In addition, the evaluation audience will include a sample of CDFI Partners (CDFIs that were recipients of loans or investments from BEA Program applicants or awardees).
An online survey will be administered to address the study objectives and related research questions. The survey instrument will be organized into the following major categories and related topics:
• Organizational Profile
○ Assessment Area
○ Service Area
○ Community Reinvestment Act (CRA) Asset Size (Used to Determine Bank Size)
○ Number of Awards and Dollar Amount
○ Activity Category
○ Institution type (
• Effectiveness of the BEA Program as a mechanism for providing performance based awards.
○ Extent to which banks' decisions to apply for a BEA Program award was driven by economic or financial rewards (
○ Extent to which the Qualified Activities that formed the basis for the bank's application were driven by regulatory factors (
○ Degree to which the Qualified Activities that formed the basis for banks' applications needed support (
• Influence of the BEA Program on Bank Behavior and Investment Patterns.
○ Extent to which FDIC-insured financial institutions have provided loans, investments, or assistance to CDFI's in BEA qualified distressed communities during the assessment period.
○ Types of support provided.
○ Types of CDFIs most frequently receiving support from FDIC-insured financial institutions (
○ Primary reason(s) why FDIC-insured financial institutions have provided loans, investments, or assistance to various types of CDFIs in BEA qualified distressed communities.
○ Extent to which banks had provided financial products and/or services in the distressed community before the applicable assessment period.
○ Level of effort, cost, and risk associated with carrying out the Qualified Activities that formed the basis for the bank's application (and variation by type of activity).
○ Estimated ratio of the dollar amount of the Qualified Activities that formed the basis for a bank's application to the amount of the BEA Program award calculated for the Qualified Activities.
○ Estimate on the extent to which the bank's actual Qualified Activities exceed the amount included in their BEA applications.
• Impact of the BEA Program awards on Recipient Banks and Distressed Communities.
○ Perceived impact of BEA Program awards on recipient banks.
○ Perceived impact of BEA Program awards on residents and businesses in Distressed Communities.
• Impact of BEA Program-eligible investments in CDFIs and in distressed communities.
○ Perceived extent to which the Qualified Activities that formed the basis for banks' applications have benefited CDFIs and residents and businesses in distressed communities.
The survey instrument will include 15–20 closed-ended questions (
Questions regarding the survey instrument should be directed to Greg Bischak, Program Manager, Financial Strategies and Research, at the Community Development Financial Institutions Fund, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20020, by email to
12 U.S.C. 1834a, 4703, 4703 note, 4713; 12 CFR part 1806.
Environmental Protection Agency.
Final rule.
This action finalizes the residual risk and technology review (RTR) conducted for the Off-Site Waste and Recovery Operations (OSWRO) source category regulated under national emission standards for hazardous air pollutants (NESHAP). In addition, the Environmental Protection Agency (EPA) is finalizing amendments to correct and clarify regulatory provisions related to emissions during periods of startup, shutdown and malfunction (SSM); add requirements for reporting of performance testing through the Electronic Reporting Tool (ERT); revise the routine maintenance provisions; clarify provisions pertaining to open-ended valves and lines (OELs); add monitoring requirements for pressure relief devices (PRDs); clarify provisions for some performance test methods and procedures; and make several minor clarifications and corrections. The revisions to the final rule increase the level of emissions control and environmental protection provided by the OSWRO NESHAP.
This final action is effective on March 18, 2015.
The EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2012–0360. All documents in the docket are listed on the
For questions about this final action, contact Ms. Paula Hirtz, Sector Policies and Programs Division (E143–01), Office of Air Quality Planning and Standards (OAQPS), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541–2618; fax number: (919) 541–0246; and email address:
Table 1 of this preamble is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the final action for the source category listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding
In addition to being available in the docket, an electronic copy of this final action will be available on the Internet through the Technology Transfer Network (TTN) Web site, a forum for information and technology exchange in various areas or air pollution control. Following signature by the EPA Administrator, the EPA will post a copy of this final action at
Additional information is available on the RTR Web site at
Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by May 18, 2015. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.
Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to reconsider the rule, “[i]f the
Section 112 of the CAA establishes a two-stage regulatory process to address emissions of hazardous air pollutants (HAP) from stationary sources. In the first stage, we must identify categories of sources emitting one or more of the HAP listed in CAA section 112(b) and then promulgate technology-based NESHAP for those sources. “Major sources” are those that emit, or have the potential to emit, any single HAP at a rate of 10 tons per year (tpy) or more, or any combination of HAP at a rate of 25 tpy or more. For major sources, these standards are commonly referred to as maximum achievable control technology (MACT) standards and must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements and non-air quality health and environmental impacts). In developing MACT standards, CAA section 112(d)(2) directs the EPA to consider the application of measures, processes, methods, systems or techniques, including but not limited to those that reduce the volume of or eliminate HAP emissions through process changes, substitution of materials or other modifications; enclose systems or processes to eliminate emissions; collect, capture or treat HAP when released from a process, stack, storage or fugitive emissions point; are design, equipment, work practice or operational standards; or any combination of the above.
For these MACT standards, the statute specifies certain minimum stringency requirements, which are referred to as MACT floor requirements and may not be based on cost considerations. See CAA section 112(d)(3). For new sources, the MACT floor cannot be less stringent than the emission control achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than floors for new sources, but they cannot be less stringent than the average emission 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, we must also consider control options that are more stringent than the floor, under CAA section 112(d)(2). We may establish standards more stringent than the floor, based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts and energy requirements.
In the second stage of the regulatory process, the CAA requires the EPA to undertake two different analyses, which we refer to as the technology review and the residual risk review. Under the technology review, we must review the technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years, pursuant to CAA section 112(d)(6). Under the residual risk review, we must evaluate the risk to public health remaining after application of the technology-based standards and revise the standards, if necessary, to provide an ample margin of safety to protect public health or to prevent, taking into consideration costs, energy, safety and other relevant factors, an adverse environmental effect. The residual risk review is required within 8 years after promulgation of the technology-based standards, pursuant to CAA section 112(f). In conducting the residual risk review, if the EPA determines that the current standards provide an ample margin of safety to protect public health, it is not necessary to revise the MACT standards pursuant to CAA section 112(f).
The EPA promulgated the OSWRO NESHAP on July 1, 1996 (61 FR 34139). The standards are codified at 40 CFR part 63, subpart DD. The OSWRO industry consists of facilities that conduct operations to manage, convey or handle wastes or recoverable materials that are received from other facilities. The source category covered by the OSWRO NESHAP currently includes approximately 56 facilities. However, based on available permit information, seven facilities are known to be exempt from most of the rule requirements due to the low HAP content of the off-site waste they receive or because they comply instead with 40 CFR part 61, subpart FF, as allowed by the OSWRO NESHAP, and they are not expected to be affected by the final rule amendments.
In general, the rule applies to waste management units and recovery operations that are located at major sources of HAP emissions, are used to manage, convey or handle used oil, used solvent or waste received from other facilities, and contain at least one of 97 organic HAP specified in the rule.
Rule changes have been made to the OSWRO NESHAP since the promulgation of the NESHAP on July 1, 1996, in several separate actions. On July 20, 1999 (64 FR 38950), the EPA issued a direct final rule that amended specific provisions in the rule to resolve issues and questions raised after promulgation of the final rule. In this action, the EPA also amended other rule language to correct technical omissions, to make requirements consistent with other related air rules, and to correct typographical, printing and grammatical errors. On January 8, 2001 (66 FR 1263), the EPA published technical corrections
On July 2, 2014 (79 FR 37850), the EPA published proposed amendments to the OSWRO NESHAP based on the RTR analyses and also proposed other revisions. The proposed revisions include the following:
• Revisions to the tank requirements to require increased control of emissions for tanks in a specific size range that also contain material above a specified vapor pressure;
• Revisions to the equipment leak requirements to remove the option to comply with either 40 CFR part 63, subpart H or 40 CFR part 61, subpart V, and require compliance with only 40 CFR part 63, subpart H;
• Revisions to requirements related to emissions during periods of SSM;
• The addition of requirements for reporting of performance testing through the ERT;
• Revisions to the routine maintenance provisions to limit the applicability of the provisions to tanks;
• Clarifications to the “sealed” requirement of the provisions for OELs;
• Addition of monitoring requirements for PRDs;
• Clarification of provisions for some performance test methods and procedures; and
• Several minor clarifications and corrections.
This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the OSWRO source category, and amends the OSWRO NESHAP, as proposed, based on those determinations. This action also finalizes the proposed changes to the NESHAP described in section II.D. of this preamble. We are also finalizing minor changes to the NESHAP in consideration of comments received during the public comment period for the proposed rulemaking, as described in section IV.D.2 of this preamble. In the following subsections, we introduce and summarize the final amendments to the OSWRO NESHAP.
Pursuant to CAA section 112(f), we are revising the tank and equipment leak requirements of the OSWRO NESHAP. Specifically, as we proposed, we are finalizing our determination that risks from the OSWRO source category are acceptable, considering all of the health information and factors evaluated and also considering risk estimation uncertainty; we are finalizing revisions to the tank requirements to require increased control of emissions for tanks in a specific size range that also contain material above a specified vapor pressure; and we are finalizing revisions to the equipment leak requirements to remove the option to comply with either 40 CFR part 63, subpart H or 40 CFR part 61, subpart V, and require compliance with only 40 CFR part 63, subpart H. We evaluated the costs, emissions reductions, energy implications and cost effectiveness of these revised standards and determined that these measures are cost effective and technically feasible and will provide an ample margin of safety to protect public health and prevent adverse environmental effects from exposure to emissions from the OSWRO source category.
We determined that there are developments in practices, processes and control technologies that warrant revisions to the NESHAP for this source category. Therefore, to satisfy the requirements of CAA section 112(d)(6), we are revising the MACT standards to include those developments. Specifically, as we proposed, we are finalizing revisions to the tank requirements to require increased control of emissions for tanks in a specific size range that also contain material above a specified vapor pressure, and we are finalizing revisions, as proposed, to the equipment leak requirements to remove the option to comply with either 40 CFR part 63, subpart H or 40 CFR part 61, subpart V, and require compliance with only 40 CFR part 63, subpart H. As noted in section III.A of the preamble, we are concurrently promulgating these tank and equipment leak revisions under section 112(f)(2) of the CAA to provide an ample margin of safety to protect public health.
We are finalizing, as proposed, changes to the OSWRO NESHAP to eliminate the SSM exemption. Consistent with
This rule also finalizes, as proposed, revisions to several other OSWRO NESHAP requirements. We describe the revisions in the following paragraphs.
To increase the ease and efficiency of data submittal and data accessibility, we are finalizing, as proposed, a requirement that owners and operators of OSWRO facilities submit electronic copies of certain required performance test reports through an electronic performance test report tool called the ERT. This requirement to submit performance test data electronically to the EPA does not require any additional performance testing and applies only to those performance tests conducted using test methods that are supported by the ERT.
We are finalizing the proposed revisions to the routine maintenance provisions to limit their applicability to tanks routing emissions to a control device rather than any equipment or process routing emissions to a control device. This revision restores the OSWRO NESHAP provisions to the original intent for them to be consistent with the routine maintenance provisions of the Hazardous Organic NESHAP (HON).
To reduce compliance uncertainty associated with “sealed” OELs, we are
To conform with the reasoning of the Court's ruling in
We are finalizing, as proposed, several minor changes to the test methods and procedures required by the NESHAP to correct errors and to provide consistency, clarification and flexibility.
In addition, we are finalizing, as proposed, several miscellaneous minor changes to improve the clarity of the rule requirements.
We are also finalizing minor changes to the NESHAP in consideration of comments received during the public comment period for the proposed rulemaking, as described in section IV. D.2 of this preamble.
The effective date and compliance dates for the revisions to the OSWRO NESHAP being promulgated in this action have not changed since proposal.
The revisions to the OSWRO NESHAP being promulgated in this action are effective on March 18, 2015.
The compliance date for the revised SSM requirements, electronic reporting requirements, the revised routine maintenance provisions, the operating and pressure release management requirements for PRDs, and the revised requirements regarding bypasses and closure devices on pressure tanks for existing OSWRO facilities is the effective date of the standards March 18, 2015. The compliance date for existing OSWRO facilities to comply with the PRD monitoring requirements is 3 years from the effective date of the standards, March 20, 2018. The compliance date for existing OSWRO facilities to comply with the revised tank requirements is 2 years from the effective date of the standards, March 20, 2017. For equipment leaks, the compliance date for existing sources is 1 year from the effective date of the standards, March 18, 2016.
New sources must comply with all of the standards immediately upon the effective date of the standard, March 18, 2015, or upon startup, whichever is later.
For each issue, this section provides a description of what we proposed and what we are finalizing for the issue, the EPA's rationale for the final decisions and amendments and a summary of key comments and responses. For all comments not discussed in this preamble, comment summaries and the EPA's responses can be found in the comment summary and response document available in the docket.
Pursuant to CAA section 112(f), we conducted a residual risk review and presented the results of this review, along with our proposed decisions regarding risk acceptability and ample margin of safety, in the July 2, 2014, proposed rule for the OSWRO NESHAP (79 FR 37850). The results of the risk assessment are presented briefly below in Table 2, and in more detail in the residual risk document,
We then considered whether the OSWRO NESHAP provides an ample margin of safety to protect public health and whether more stringent standards are necessary to prevent, taking into consideration costs, energy, safety and other relevant factors, an adverse environmental effect. In considering whether the standards should be tightened to provide an ample margin of safety to protect public health, we considered the same risk factors that we considered for our acceptability determination and also considered the costs, technological feasibility and other relevant factors related to emissions control options that might reduce risk associated with emissions from the source category. The control options identified to reduce risk were the same as those identified under the technology review for the OSWRO source category. Based on that analysis, we proposed to require more stringent controls for tanks of certain sizes and containing materials above a certain vapor pressure. We also proposed to require facilities to comply with the more stringent leak detection and repair (LDAR) program of 40 CFR part 63, subpart H rather than to allow facilities to comply with either 40 CFR part 63, subpart H or 40 CFR part 61, subpart V. Furthermore, we proposed that additional HAP emissions controls for OSWRO process vents are not necessary to provide an ample margin of safety. Based on the results of our screening analysis for risks to the environment, we also proposed that more stringent standards are not necessary to prevent an adverse environmental effect.
Information received by the EPA during the proposal comment period indicates that four additional facilities, not included in the risk review for the OSWRO source category, are subject to the OSWRO NESHAP. These facilities include Eastman Chemical Company in Kingsport, Tennessee; Eastman Chemical Company in Longview, Texas; E.I. DuPont de Nemours and Company in Orange, Texas; and E. I. DuPont de Nemours and Company in Axis, Alabama.
To determine whether to conduct additional risk modeling for these facilities, we reviewed the title V permits and the results of previously performed risk modeling for these facilities. The review of the facility title V permits, as well as conversations with facility representatives, indicated that these facilities are primarily chemical manufacturing plants with processes subject to other NESHAPs that also process some amount of waste received from other facilities within their companies. A review of previously modeled facility-wide risks for these four facilities as part of the risk reviews for the other NESHAP indicate that the maximum facility-wide cancer risks due to emissions of HAP range from 6-in-1 million to 40-in-1 million. These risks are relatively low when compared to the upper end of the range of acceptability of 100-in-1 million. The maximum facility-wide non-cancer risks due to HAP emissions range from 0.08 to 1. In addition, the results show that the facility-wide cancer and non-cancer risks are attributed to HAP emissions from non-OSWRO processes. As the OSWRO processes are minor operations at these facilities, the risk due to OSWRO operations is expected to be a small fraction of the facility-wide risk.
Adding these facilities to the dataset and performing additional modeling would not be expected to result in increased maximum risks from the source category, for the reasons discussed above. Thus, we determined that additional modeling to include these facilities is not necessary, and, based on available information, the risks from these four facilities do not change our decisions regarding risk acceptability or ample margin of safety for the OSWRO source category. We have not otherwise changed any aspects of our risk review since the proposal.
The comments received on the proposed risk review were generally supportive of our determination of risk acceptability and ample margin of safety analysis and requirement for additional control. A summary of these comments and our responses can be found in the comment summary and response document available in the docket for this action (EPA–HQ–OAR–2012–0360).
For the reasons explained in the proposed rule, we determined that the risks from the OSWRO source category are acceptable, and the revised requirements for tanks and equipment leaks described above will provide an ample margin of safety to protect public. In addition, for the reasons explained in the proposal, we determined that more stringent standards are not necessary to prevent an adverse environmental effect. Since proposal, neither the risk assessment nor our determinations regarding risk acceptability, ample margin of safety or adverse environmental effects have changed. Therefore, pursuant to CAA section 112(f)(2), we are revising the OSWRO NESHAP to require the 40 CFR part 63, subpart H LDAR program and more stringent emissions controls for certain tanks to provide an ample margin of safety to protect public.
Pursuant to CAA section 112(d)(6), we conducted a technology review, which focused on identifying and evaluating developments in practices, processes and control technologies for the emission sources in the OSWRO source category. At proposal, we identified developments in practices, processes or control technologies for process vents, tanks and equipment leaks.
For process vents, one potential control technology was identified at proposal, use of a regenerative thermal oxidizer, which could increase the emissions capture and control efficiency from 95 percent to 98 percent for those process vents that are currently controlled with a carbon adsorption system or other device achieving 95-percent control. We estimated an additional emission reduction of 10 tpy of HAP would be associated with this increase in emissions control efficiency, and the estimated costs would be $350,000 per ton of HAP emission reduction.
For tanks, we identified two potential developments in practices and control techniques at proposal. Option 1 would lower the vapor pressure threshold above which “Level 2” control would be required for some tanks. “Level 2” control essentially requires one of five options: (1) A fixed roof tank equipped with an internal floating roof; (2) a fixed roof tank equipped with an external floating roof; (3) a tank with a vapor-tight cover and vented through a closed-vent system to a control device that has an efficiency of 95 percent or more; (4) a pressure tank; or (5) a tank inside a permanent total enclosure that is vented through a closed-vent system to an enclosed combustion control device. Option 1 would require Level 2 emissions control for tanks with capacities greater than or equal to 75 cubic meters (m
For equipment leaks, we identified the more stringent leak definitions of 40 CFR part 63, subpart H over those of 40 CFR part 61, subpart V as a development in practices, processes or control technologies at proposal. To implement the subpart H LDAR program, two options were identified: Option 1—switching from the subpart V LDAR program to the subpart H LDAR program, without the connector monitoring requirements; Option 2—switching from the subpart V LDAR program to the subpart H LDAR program, with the connector monitoring requirements. For Option 1, we estimated an additional emission reduction of up to 69 tpy and estimated the costs would be $1,000 per ton of HAP emission reduction. For Option 2, we estimated the HAP emissions reduction incremental to Option 1 would be approximately 70 tpy and the incremental cost effectiveness between Option 1 and Option 2 would be $7,000 per ton of HAP emission reduction.
Based on the costs and the emission reductions that would be achieved with the identified developments, we proposed to revise the MACT standard pursuant to CAA section 112(d)(6) to require Level 2 controls for tanks with capacities greater than or equal to 75 m
The analysis of the proposed control requirements for tanks at existing OSWRO facilities has been revised to reflect new data submitted by industry during the comment period. As part of its comments, the Cement Kiln Recycling Coalition provided information to demonstrate that alternative values or assumptions should be used in the analysis of tank emission reductions and costs of control. These comments were associated with the proposed requirement that Level 2 controls be used for tanks with capacities greater than or equal to 75 m
As shown in Table 3, our revised estimate of the capital costs for the tanks Option 1 requirement is approximately $139,000, and the total annualized costs are estimated to be approximately $192,000. The estimated HAP emissions reduction is approximately 26 tpy, and the cost effectiveness is approximately $7,000/ton.
At proposal, we also evaluated the impacts of requiring an increased HAP emissions control efficiency of 98 percent based on the use of a regenerative thermal oxidizer (
For further details on the revised tanks analysis, see the technical memorandum titled,
As part of its comments on the proposed rule, one commenter noted that the EPA did not account for monitoring of agitator seals on tanks in its analysis of the costs of implementing the more stringent leak definitions for equipment in 40 CFR part 63 subpart H. We have revised our analysis of the costs and emissions reductions associated with switching from the 40 CFR part 61, subpart V LDAR program to the 40 CFR part 63, subpart H LDAR program to include the expected emissions reductions and costs associated with monitoring agitator seals for leaks. Also, based on information received after proposal that there are four additional facilities in the source category that would be subject to the LDAR requirements of the rule, we have revised the analysis to include those facilities. We included this information in the evaluation of both regulatory options: Option 1—switching from a subpart V LDAR program to a subpart H LDAR program, without the subpart H connector monitoring requirements and Option 2—switching from a subpart V LDAR program, with the subpart H connector monitoring requirements.
The revised estimated costs and emissions reductions associated with these two options are shown in Table 4. For Option 1 (subpart H without connector monitoring), we estimate the capital costs to be approximately $414,000, and the total annualized costs are estimated to be approximately $155,000. The estimated HAP emissions reduction is approximately 109 tpy, and the cost effectiveness is approximately $1,000/ton. For Option 2 (subpart H with connector monitoring), we estimate the capital costs to be approximately $2,089,000, and the total annualized costs are estimated to be approximately $664,000. The estimated HAP emissions reduction is approximately 185 tpy, and the cost effectiveness is approximately $4,000/ton. The incremental cost effectiveness between Option 1 and Option 2 is approximately $7,000.
In addition to these revisions to the equipment leak analysis, we also considered comments regarding the costs of connector monitoring. In its comments on the proposed rule, one commenter claimed that the costs the EPA included in its analysis for ongoing connector monitoring and administrative activities were too low. Although we do not agree with the commenter and we continue to believe the costs we used in the analysis for these activities are reasonable, we conducted an additional analysis to assess the potential effect of using the values provided by the commenter on the cost effectiveness of Option 2. This additional analysis showed there would be a slight increase in the Option 2 total annualized cost to $672,000. The cost effectiveness would remain approximately $4,000, and the incremental cost effectiveness between Option 1 and Option 2 would still be approximately $7,000.
For further details on the revised equipment leaks analysis, see the technical memorandum titled,
For process vents and other equipment and processes at OSWRO facilities, the technology review has not changed since proposal.
The following is a summary of the key comments received regarding the OSWRO source category technology review and our responses to these comments. Additional comments on the technology review and our responses can be found in the comment summary and response document available in the docket for this action (EPA–HQ–OAR–2012–0360).
Based on our analysis of the costs of a 40 CFR part 63, subpart H LDAR program with monthly agitator monitoring using Method 21, we are finalizing, as proposed, the requirement that OSWRO facilities comply with subpart H, including the subpart H requirements for connectors in gas/vapor service and in light liquid service.
Another commenter asserts that the revised monitoring requirements for connectors will not result in substantial, or any, HAP emission reductions. The commenter's assertion is based on data obtained from LDAR records of its member facilities, where only five connectors were found to have a leak above 500 ppm out of 10,542 connectors analyzed over the past year. The commenter also asserts that the EPA's assumption of 82-percent HAP composition is incorrect, and was taken from an OSWRO NESHAP background information document from 1994 which is based on an outdated HAP list (
Regarding the factor used in estimating the leak frequency, we increased the connector leak frequency by a factor of 1.7. As explained below, we believe it is appropriate to apply this factor to the OSWRO source category to account for differences in industry-reported and National Enforcement Investigations Center (NEIC) measured leak frequencies. In 1999, the NEIC published the results of a comparative monitoring study at 17 petroleum refineries, which showed the percentage of valves identified as leaking by NEIC was always higher than the results of monitoring conducted by the petroleum refiners.
We disagree with the commenter that applying the connector leak frequency
We disagree with the commenter's claim that the estimated emissions per connector used in the EPA's analysis are too high. The leak rates used were based on those reported in the Protocol for Equipment Leak Emissions Estimates (EPA–453/R–95–017, November 1995), which determined these leak rates based on screening data from 33 chemical production units and bagging data from 22 chemical production units. We consider this to be relevant and robust data, and the resulting average leak emissions rates are appropriate to use in our analyses.
We agree with the commenter that the HAP composition used in our analyses of 82 percent was taken from the 1994 OSWRO NESHAP background information document. The commenter did not provide any information to show that another estimate of HAP composition would be appropriate, and, without any basis for a different value, we have not changed our analyses to include a different HAP composition.
This commenter also disputes the EPA's estimate of the costs that would be incurred by facilities to comply with the proposed amendments to the vapor pressure thresholds for tank control level. The commenter states that contrary to the EPA's assumptions, there are a significant number of sources that would require the installation of a new control device or would have to upgrade and/or expand their existing control device systems to comply with the Control Level 2 standards. The commenter asserts that the EPA provided no assessment of whether existing control devices are sized to accommodate additional vented sources, and control devices are typically not sized with significant excess capacity due to economic and space considerations. The commenter states that the EPA also did not consider flame arrestors to prevent back-flash to tanks, which would cost $10,000 per unit. In addition, the commenter asserts that the EPA did not consider capital costs related to engineering installation, or regulatory and safety costs, such as additional process hazard reviews and analyses under either the Occupational Safety and Health Administration (OSHA) Process Safety Management or CAA Risk Management Plan regulations that would likely be required if tanks are connected to a control device.
The commenter also disputes EPA's estimate of annual costs, and states that the EPA did not consider the additional cost associated with operation of the control device itself, such as costs associated with replacement and disposal or regeneration of carbon (for a carbon adsorption system). The commenter asserts that the annual cost should still be applied even if there is an existing control device because annual carbon costs are a function of the throughput of the newly affected units. The commenter further asserts that additional annual and capital costs would be incurred from the operation of a nitrogen blanketing system that may be required if carbon adsorption units is used as the HAP control device.
The commenter estimates that the cost effectiveness of the proposed amendments to the tank vapor pressure thresholds is actually $48,000 per ton of HAP controlled, which the commenter claims is an unnecessary cost to achieve minor emission reductions.
We agree with the commenter that OSWRO tanks likely do not contain 100-percent HAP, and have revised the analysis to include a mix of tank constituents that comprises 60-percent HAP, as suggested by the commenter. We have moved the location of the model facility from Houston to a location near the center of the continental United States, which has temperatures more representative of the national average. We have also increased the conservation vent pressure setting from the default value of 0.03 psi to 0.5 psi, as suggested by the commenter. We did not revise the average waste throughput used in the analysis. The commenter did not provide data to support the claim that the average waste throughput is actually 20,000,000 gallons per facility, and the EPA's estimate of 35,000,000 gallons per facility is supported by data obtained through the 2013 CAA section 114 questionnaire for the one OSWRO facility with tanks in the size and vapor pressure range affected by the proposed standards.
In addition, while some facilities may have control devices with adequate capacity to control emissions from the additional tanks that would become subject to Level 2 control requirements as a result of the proposed amendments, it may be possible that some facilities do not have the required excess capacity. Therefore, we have revised the analysis to add the conservative assumption that each facility would need to install a carbon adsorber to comply with the proposed amendments. The revised analysis includes the cost of a carbon adsorber canister system, including installation and other associated capital costs, as well as annual costs for the operation of the device (
We disagree with the commenter that the cost of nitrogen blanketing systems should be included in the analysis. Nitrogen blankets are not required by the OSWRO NESHAP for use with a control device, and we do not believe that nitrogen blankets are necessary for the operation of control devices, including a carbon adsorption system, as suggested by the commenter. Further, nitrogen blanketing systems can be used on tanks that are not controlled by a control device, and may already be in place for the tanks that would be affected by the revised standard. We also disagree with the commenter that we have not considered capital costs related to engineering installation and regulatory and safety costs. We explicitly include installation costs of equipment, and we follow the procedure of the EPA Control Cost Manual for including indirect costs.
Considering the revisions to emission controls and costs identified above, we have determined that the capital costs for the proposed amendments to the tank provisions are approximately $139,000, and the total annualized costs are estimated to be approximately $192,000. The estimated HAP emissions reduction is approximately 26 tpy, and the cost effectiveness is approximately $7,000 per ton of HAP reduced. While the revised analysis resulted in lower emission reductions at a higher cost than the estimates developed prior to proposal, we still find the amendments to the tank control provisions to be cost effective, and are, therefore, finalizing the amendments as proposed.
Based on our revised analysis for tanks, the costs of Option 1 are reasonable, given the level of HAP emissions reduction that would be achieved with this control option. Therefore, as a result of this revised technology review pursuant to CAA section 112(d)(6), we have determined, as we did at proposal, that it is appropriate to revise the OSWRO NESHAP to require Level 2 controls for tanks with capacities greater than or equal to 75 m
Considering our revised analysis for equipment leaks, we have determined the costs of Option 2, which includes all of the requirements of Option 1, are reasonable, given the level of HAP emissions reduction that would be achieved with this control option. We note that, while we did not include the higher connector monitoring costs analyzed in response to commenter suggestions in this determination, the inclusion of these costs would not change our conclusion that the costs of Option 2 are reasonable, given the level of HAP emissions reduction that would be achieved with this control option.
As noted in section IV.A.4 of the preamble, we are promulgating these revisions concurrently under section 112(f)(2) of the CAA to provide an ample margin of safety to protect public health. Furthermore, for the reasons discussed above and in the preamble to the proposed rule, we have determined that it is not necessary pursuant to CAA section 112(d)(6) to revise the OSWRO NESHAP to require additional HAP emission controls for process vents or any other equipment or processes at OSWRO facilities.
In its 2008 decision in
We have eliminated the SSM exemption in this rule. Consistent with
In proposing the standards in this rule, the EPA took into account startup and shutdown periods and, for the reasons explained below, did not propose alternate standards for those periods. Information on periods of startup and shutdown received from the facilities through CAA section 114 questionnaire responses indicated that emissions during these periods are the same as during normal operations. The facilities do not process waste unless and until their control devices are operating to fully control emissions. Therefore, we determined that separate standards for periods of startup and shutdown are not necessary.
Periods of startup, normal operations and shutdown are all predictable and routine aspects of a source's operations. Malfunctions, in contrast, are neither predictable nor routine. Instead they are, by definition, sudden, infrequent and not reasonably preventable failures of emissions control, process or monitoring equipment. (40 CFR 63.2) (Definition of malfunction). 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 CAA section 112, emission 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 CAA section 112 that directs the EPA to consider malfunctions in determining the level “achieved” by the best performing sources when setting emission standards. As the United States Court of Appeals for the District of Columbia 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(d) 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,
If the EPA determines in a particular case that an enforcement action against a source for violation of an emission standard is warranted, 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.
In summary, the EPA interpretation of the CAA and, in particular, section 112 is reasonable and encourages practices that will avoid malfunctions. Administrative and judicial procedures for addressing exceedances of the standards fully recognize that violations may occur despite good faith efforts to comply and can accommodate those situations.
To address the United States Court of Appeals for the District of Columbia Circuit vacatur of portions of the EPA's CAA section 112 regulations governing the emissions of HAP during periods of SSM,
We proposed to revise the General Provisions applicability table (Table 2) entry for 40 CFR 63.6(e) by adding rows specifically for 40 CFR 63.6(e)(1)(i), 63.6(e)(1)(ii), 63.6(e)(1)(iii), and 63.6(e)(3) and to include a “no” in the column 2 for the 40 CFR 63.6(e)(1)(i) entry. Section 63.6(e)(1)(i) describes the general duty to minimize emissions. Some of the language in that section is no longer necessary or appropriate in light of the elimination of the SSM exemption. We proposed instead to add general duty regulatory text at 40 CFR 63.683(e) that reflects the general duty to minimize emissions while eliminating the reference to periods covered by an SSM exemption. The current language in 40 CFR 63.6(e)(1)(i) characterizes what the general duty entails during periods of SSM. With the elimination of the SSM exemption, there is no need to differentiate between normal operations, startup and shutdown, and malfunction events in describing the general duty. Therefore, the language the EPA proposed for 40 CFR 63.683(e) does not include that language from 40 CFR 63.6(e)(1).
We also proposed to include a “no” in column 2 for the newly added entry for 40 CFR 63.6(e)(1)(ii). Section 63.6(e)(1)(ii) imposes requirements that are not necessary with the elimination of the SSM exemption or are redundant with the general duty requirement being added at 63.683(e).
The provisions of 40 CFR 63.6(e)(1)(iii) still apply, and we proposed to keep the “yes” in column 2 for that section. For 40 CFR 63.6(e)(2), we proposed to include a “no” in the second column for that section because it is a reserved section in the General Provisions.
We also proposed to clarify in the applicability section of 40 CFR 63.680(g)(1) and (2) that the emission limits of subpart DD apply at all times except when the affected source is not operating and that the owner or operator must not shut down items of equipment required or used for compliance with the requirements of subpart DD.
We proposed to include a “no” in column 2 for the newly added 40 CFR 63.6(e)(3) entry. Generally, this paragraph requires development of an SSM plan and specifies SSM recordkeeping and reporting requirements related to the SSM plan. As noted, the EPA proposed to remove the SSM exemptions. Therefore, affected units will be subject to an emission standard during such events. The applicability of a standard during such events will ensure that sources have ample incentive to plan for and achieve compliance and thus the SSM plan requirements are no longer necessary.
We proposed to revise the General Provisions applicability table (Table 2) entry for 40 CFR 63.6(f)(1) by changing the “yes” in column 2 to a “no.” The current language of 40 CFR 63.6(f)(1) exempts sources from non-opacity standards during periods of SSM. As discussed above, the Court in
We proposed to revise the General Provisions applicability table (Table 2) entry for 40 CFR 63.7(e)(1) by changing the “yes” in column 2 to a “no.” Section 63.7(e)(1) describes performance testing requirements. The EPA instead proposed to add a performance testing requirement at 40 CFR 63.694(l). The performance testing requirements we proposed to add differ from the General Provisions performance testing provisions in several respects. The regulatory text does not include the language in 40 CFR 63.7(e)(1) that restated the SSM exemption and language that precluded startup and shutdown periods from being considered “representative” for purposes of performance testing. The proposed performance testing provisions specified that performance tests conducted under this subpart should be based on representative performance (
We proposed to revise the General Provisions applicability table (Table 2) entries for 40 CFR 63.8(c)(1)(i) and (iii) by changing the “yes” in column 2 to a “no.” The cross-references to the general duty and SSM plan requirements in those subparagraphs are not necessary in light of other requirements of 40 CFR 63.8 that require good air pollution control practices (40 CFR 63.8(c)(1)) and that set out the requirements of a quality control program for monitoring equipment (40 CFR 63.8(d)).
We proposed to revise the General Provisions applicability table (Table 2) entry for 40 CFR 63.10(b)(2)(i) by changing the “yes” in column 2 to a “no.” Section 63.10(b)(2)(i) describes the recordkeeping requirements during startup and shutdown. These recording provisions are no longer necessary because the EPA proposed that recordkeeping and reporting applicable to normal operations will apply to startup and shutdown. In the absence of special provisions applicable to startup and shutdown, such as a startup and shutdown plan, there is no reason to retain additional recordkeeping for startup and shutdown periods.
We proposed to revise the General Provisions applicability table (Table 2) entry for 40 CFR 63.10(b)(2)(ii) by changing the “yes” in column 2 to a “no.” Section 63.10(b)(2)(ii) describes the recordkeeping requirements during a malfunction. The EPA proposed to add such requirements to 40 CFR 63.696(h). The regulatory text we proposed to add differs from the General Provisions it is replacing in that the General Provisions require the creation and retention of a record of the occurrence and duration of each malfunction of process, air pollution control and monitoring equipment. The EPA proposed that this requirement apply to any failure to meet an applicable standard and is requiring that the source record the date, time and duration of the failure rather than the “occurrence.” The EPA also proposed to add to 40 CFR 63.696(h) a requirement that sources keep records that include a list of the affected source or equipment and actions taken to minimize emissions, an estimate of the quantity of each regulated pollutant emitted over the standard for which the source failed to meet the standard, and a description of the method used to estimate the emissions. Examples of such methods would include product-loss calculations, mass balance calculations, measurements when available, or engineering judgment based on known process parameters. The EPA proposed to require that sources keep records of this information to ensure that there is adequate information to allow the EPA to determine the severity of any failure to meet a standard, and to provide data that may document how the source met the general duty to minimize emissions when the source has failed to meet an applicable standard.
We proposed to revise the General Provisions applicability table (Table 2) entry for 40 CFR 63.10(b)(2)(iv) by changing the “yes” in column 2 to a “no.” When applicable, the provision requires sources to record actions taken during SSM events when actions were inconsistent with their SSM plan. The requirement is no longer appropriate because SSM plans will no longer be required. The requirement previously applicable under 40 CFR 63.10(b)(2)(iv)(B) to record actions to minimize emissions and record corrective actions is now applicable by reference to 40 CFR 63.696(h).
We proposed to revise the General Provisions applicability table (Table 2) entry for 40 CFR 63.10(b)(2)(v) by changing the “yes” in column 2 to a “no.” When applicable, the provision requires sources to record actions taken during SSM events to show that actions taken were consistent with their SSM plan. The requirement is no longer appropriate because SSM plans will no longer be required.
We proposed to revise the General Provisions applicability table (Table 2) entry for 40 CFR 63.10(d)(5)(i) by consolidating it with the entry for 63.10(d)(5)(ii) and changing the “yes” in column 2 to “no.” Section 63.10(d)(5)(i) describes the reporting requirements for SSM. To replace the General Provisions reporting requirements, the EPA proposed to add reporting requirements to 40 CFR 63.697(b)(3). The replacement language differs from the General Provisions requirement in that it eliminates periodic SSM reports as a stand-alone report. We proposed language that requires sources that fail to meet an applicable standard at any time to report the information concerning such events in the semiannual summary report already required under this rule. We proposed that the report must contain the number, date, time, duration and the cause of such events (including unknown cause, if applicable), a list of the affected source or equipment, an estimate of the quantity of each regulated pollutant emitted over any emission limit and a description of the method used to estimate the emissions.
Examples of such methods would include product-loss calculations, mass balance calculations, measurements when available or engineering judgment based on known process parameters. The EPA proposed this requirement to ensure that there is adequate information to determine compliance, to allow the EPA to determine the severity of the failure to meet an applicable standard, and to provide data that may document how the source met the general duty to minimize emissions during a failure to meet an applicable standard.
We will no longer require owners or operators to determine whether actions taken to correct a malfunction are consistent with an SSM plan, because plans would no longer be required. The proposed amendments, therefore, eliminated the cross reference to 40 CFR 63.10(d)(5)(i) that contains the description of the previously required SSM report format and submittal schedule from this section. These specifications are no longer necessary because the events will be reported in otherwise required reports with similar format and submittal requirements.
We proposed to revise the General Provisions applicability table (Table 2) entry for 40 CFR 63.10(d)(5)(ii) by consolidating it with the entry for 63.10(d)(5)(i) and changing the “yes” in column 2 to a “no.” Section 63.10(d)(5)(ii) describes an immediate report for startups, shutdown and malfunctions when a source failed to meet an applicable standard but did not follow the SSM plan. We will no longer require owners and operators to report when actions taken during a startup, shutdown or malfunction were not consistent with an SSM plan, because plans would no longer be required.
We have not changed any aspect of the SSM provisions since the proposal.
Comments were received regarding the proposed revisions to remove the SSM exemptions for the OSWRO source category. Some commenters suggested that the rule should provide a six-month compliance period for the SSM provisions, that the rule requirements, which were based on steady-state conditions, should not apply during periods of malfunction, and that the EPA should establish work practice standards for malfunctions. One
For the reasons provided above, provided in the preamble for the proposed rule and provided in the comment summary and response document available in the docket, we have removed the SSM exemption from the OSWRO NESHAP; eliminated or revised certain recordkeeping and reporting requirements related to the eliminated SSM exemption; and removed or modified inappropriate, unnecessary or redundant language in the absence of the SSM exemption. We are, therefore, finalizing our proposed determination that facilities comply with the standards at all times and no additional standards are needed to address emissions during startup or shutdown periods.
As stated in the preamble to the proposed rule, to increase the ease and efficiency of data submittal and data accessibility, the EPA proposed to require owners and operators of OSWRO facilities to submit electronic copies of certain required performance test reports.
Data will be collected by direct computer-to-computer electronic transfer using EPA-provided software. This EPA-provided software is an electronic performance test report tool called the ERT. The ERT will generate an electronic report package which will be submitted to the Compliance and Emissions Data Reporting Interface (CEDRI) and then archived to the EPA's Central Data Exchange (CDX). A description and instructions for use of the ERT can be found at
The requirement to submit performance test data electronically to the EPA will not create any additional performance testing and will apply only to those performance tests conducted using test methods that are supported by the ERT. A listing of the pollutants and test methods supported by the ERT is available at the ERT Web site. The EPA believes, through this approach, industry will save time in the performance test submittal process. Additionally, this rulemaking benefits industry by reducing recordkeeping costs as the performance test reports that are submitted to the EPA using CEDRI will no longer be required to be kept in hard copy.
State, local and tribal agencies may benefit from more streamlined and accurate review of performance test data that will become available to the public through WebFIRE. Having such data publicly available enhances transparency and accountability. For a more thorough discussion of electronic reporting of performance tests using direct computer-to-computer electronic transfer and using EPA-provided software, see the discussion in the preamble to the proposal.
In summary, in addition to supporting regulation development, control strategy development and other air pollution control activities, having an electronic database populated with performance test data will save industry, state, local, tribal agencies and the EPA significant time, money and effort while improving the quality of emission inventories and air quality regulations and providing greater transparency to the public.
The OSWRO NESHAP at 40 CFR 63.693(b)(3)(i) allows a facility to bypass control devices for up to 240 hours per year to perform planned routine maintenance of the closed-vent system or control device in situations when the routine maintenance cannot be performed during periods that the control device is shut down.
The routine maintenance provision was originally established in the HON (see 40 CFR 63.119(e)(3)–(4); 57 FR 62710, December 31, 1992 (proposed); 59 FR 19402, April 22, 1994 (final)) for facilities that elected to use a closed vent system and control device to comply with the emission limitation requirements for tanks. We included the routine maintenance provision in the HON for tanks routing emissions to control devices because the estimated HAP emissions to degas the tank would be greater than the emissions that would result if the tank emitted directly to the atmosphere for a short period of time during routine maintenance of the control device.
We intended for the OSWRO NESHAP to track the HON maintenance provisions, and, therefore, those provisions should have been limited to tanks. We did not identify a basis for applying the routine maintenance provisions in the OSWRO NESHAP to emission points other than tanks, and, therefore, proposed to limit the provision to tanks routing emissions to a control device, consistent with the rationale provided in the HON.
The OSWRO NESHAP at 40 CFR 63.691(b) requires an owner or operator to control emissions from equipment leaks according to the requirements of either 40 CFR part 61, subpart V or 40 CFR part 63, subpart H.
In response to this uncertainty, we proposed to amend 40 CFR 63.691(b) to clarify what “seal the open end” means for OELs. The proposed clarification explains that, for the purpose of complying with the requirements of 40 CFR 61.242–6(a)(2) of subpart V or 40 CFR 63.167(a)(2) of subpart H, as applicable, OELs are “sealed” by the cap, blind flange, plug or second valve when instrument monitoring of the OELs conducted according to Method 21 of 40 CFR part 60, appendix A indicates no readings of 500 ppm or greater.
In addition, 40 CFR 63.167(d) of subpart H and 40 CFR 61.242–6(d) of subpart V exempt OELs that are in an
To ensure the OSWRO MACT standards are consistent with the
To ensure compliance with these provisions, we also proposed that facilities subject to the OSWRO NESHAP monitor PRDs in off-site material service that release to the atmosphere by using a device or system that is capable of identifying and recording the time and duration of each pressure release and notifying operators immediately that a pressure release is occurring. Owners or operators would be required to keep records and report any pressure release and the amount of organic HAP released to the atmosphere with the next periodic report. As with the prohibition, this proposed monitoring requirement would not apply to PRDs for which HAP releases are captured and routed to a drain system, process or control device.
For purposes of estimating the costs of the proposed requirement to monitor HAP releases to the atmosphere from PRDs, we assumed that operators would install electronic indicators on each PRD in off-site material service that vents to the atmosphere (rather than to a control device, process or drain system) to identify and record the time and duration of each pressure release. However, the proposed requirements allowed owners or operators to use a range of methods to satisfy these requirements, including the use of a parametric monitoring system (that may already be in use at facilities) on the process system or piping that is sufficient to notify operators immediately that a release is occurring, as well as recording the time and duration of the pressure release. Based on our conservative cost assumptions that the most expensive approach would be used, the nationwide capital cost of installing these monitors was estimated to be $1.75 million, and the total annualized cost of installing and operating these monitors is $250,000 per year for the OSWRO source category.
The OSWRO NESHAP at 40 CFR 63.694 specifies test methods and procedures to be used in determining compliance with the requirements of subpart DD. We proposed several minor changes to these provisions to correct errors and to provide consistency, clarification and flexibility. These proposed changes included:
• Requiring that test runs last “at least 1 hour,” rather than stating that tests last “1 hour” in § 63.694(f)(1) and (i)(1);
• Specifying that a minimum of three test runs are required in § 63.694(l)(3)(i) and (l)(4)(i), consistent with the Part 63 General Provisions and standard testing practices;
• Specifying in § 63.694(m)(2) that in the determination of process vent stream flow rate and total HAP concentration, the sample site selected must be at the center of the vent for vents smaller than 0.10 meter in diameter, which is the point most likely to provide a representative sample of the gas stream;
• Clarifying in § 63.694(j)(3) that results from direct measurement must be used as the maximum HAP vapor pressure for off-site material in a tank if the Administrator and the owner or operator disagree on a determination of the maximum HAP vapor pressure for an off-site material stream using knowledge;
• Correcting a citation in § 63.694(k)(3) to the appropriate section of EPA Method 21 for instrument response factors;
• Allowing the use of either EPA Method 25A or Method 18 in § 63.694(l)(3) for determining compliance with the control device percent reduction requirement and in § 63.694(l)(4) for determining compliance with the enclosed combustion device concentration limit and clarifying that Method 25A must be used when measuring total organic compounds, while Method 18 must be used for measuring the total HAP compounds included in Table 1 to the OSWRO NESHAP;
• Including the use of EPA Method 3A as an alternative to EPA Method 3B in § 63.694(l)(4)(iii)(A) for determining the oxygen concentration to use in oxygen correction equations; and
• Including the use of EPA Methods 2F and 2G as options for flow rate measurement in § 63.694(l)(2) and (m)(3), which are newer velocity measurement methods that were published after the original OSWRO rule.
We proposed several miscellaneous minor changes to improve the clarity of the OSWRO NESHAP requirements. These proposed changes included:
• Updating the list of combustion devices in § 63.684(b)(5) that may be used to destroy the HAP contained in an off-site material stream. This revision would include incinerators, boilers or industrial furnaces for which the owner or operator complies with the requirements of 40 CFR part 63, subpart EEE, which had not been promulgated when the OSWRO MACT standards were developed. We also proposed conforming changes to the boiler and process heater control device requirements to clarify that combustion units complying with the requirements of subpart EEE may be used for the purposes of compliance with the OSWRO NESHAP.
• To clarify the requirements for tanks of all sizes and tank content vapor pressures, we proposed to revise the tank control level tables to include tanks less than 75 m
• Clarifying that where § 63.691 requires the owner or operator to control the HAP emitted from equipment leaks in accordance with either 40 CFR part 61, subpart V or 40 CFR part 63, subpart H, the definitions in 40 CFR 61.241 and 40 CFR 63.161 apply, with the differences listed, for the purposes of the OSWRO NESHAP.
• Revising the clerical errors to insert ppm values in the requirements where they were omitted. These revisions included clarifying in § 63.683(c)(1)(ii) that the average volatile organic HAP (VOHAP) concentration of the off-site material must be less than 500 parts per million by weight (ppmw) at the point-of-delivery and clarifying the requirements of § 63.693(f)(1)(i)(B) and § 63.693(f)(1)(ii)(B) are to achieve a total incinerator outlet concentration of less than or equal to 20 500 parts per million by volume (ppmv) on a dry basis corrected to 3-percent oxygen.
• Clarifying in §§ 63.684(h), 63.693(b)(8) and 63.694(b)(3)(iv) that the Administrator may require a performance test, revisions to a control device design analysis, or that direct measurement be used in the determination of a VOHAP concentration, rather than that the Administrator may only request such actions.
• Revising several references to the Part 63 General Provisions in Table 2 to correct errors, including errors where the entries in Table 2 conflict with the regulatory text in subpart DD and where references to specific sections of the General Provisions do not exist or are reserved.
We have not made any changes to the proposed provisions for electronic reporting, routine maintenance, OELs, the proposed performance test method clarifications and alternative methods or the other proposed clarifications and corrections.
For PRDs, in the PRD monitoring requirements at 40 CFR 63.691(c)(3)(i), we are including examples of parametric monitoring systems, in addition to the direct monitoring device examples listed at proposal. We are also clarifying that tank conservation vents are not PRDs in 40 CFR 63.685(c)(2)(iii)(B), and we are adding fuel gas systems to the list of equipment a PRD may be routed to in 40 CFR 63.691(c)(4) to be exempt from the PRD monitoring requirements and pressure release prohibition. In addition to these revisions, we are making the following revisions, clarifications and corrections in the final rule:
• Revisions
○ We are revising the language in 40 CFR 63.680(b)(2)(v) to indicate that facilities complying with the wastewater provisions under any other part 63 regulation, not just the HON, are not required to also comply with the OSWRO NESHAP provisions for that waste.
○ We are revising the requirements for boilers and process heaters and also for incinerators in 40 CFR 63.693(f)(2)(iii) and 63.693(g)(2)(i)(C) to exclude such equipment that has been issued a final or interim status RCRA permit from the OSWRO NESHAP performance test requirements, since the performance tests required under RCRA to obtain a permit satisfy the performance test requirements of the OSWRO NESHAP.
○ We are revising three additional references to the Part 63 General Provisions in Table 2 to correct errors where the entries in Table 2 conflict with the regulatory text in subpart DD regarding notification of performance tests. The specific changes were to revise the entries for 63.7(b), 63.7(c) and 63.9(e) from a “no” to a “yes” in column 2 of Table 2.
• Clarifications
○ We are revising the definitions of “in gas/vapor service” and “in light liquid service” in 40 CFR 63.681 to clarify our intent that equipment in off-site material service that “contains or contacts” a gas or vapor is “in gas/vapor service.” For consistency, we are also revising the definition of “in light liquid service” to include equipment that “contains or contacts” liquid.
○ To improve clarity we are revising the wording of the proposed tank provisions in 40 CFR 63.685(g)(2) to remove a repeated phrase.
○ We have rephrased the proposed requirements in 40 CFR 63.694(l) to more simply state that performance tests must be conducted under representative performance (
○ We have added language in 40 CFR 63.691(b)(2)(v) to clarify which requirements apply to PRDs in liquid service and to clarify when the PRD provisions of 40 CFR 63.691(c) apply rather than the PRD provisions of 40 CFR part 63, subpart H or 40 CFR part 61, subpart V.
• Corrections
○ We are revising 40 CFR 63.680(e)(1)(i) through (iii) and 63.680(e)(2) to reference 63.691(b)(2) rather than 63.691(b) to indicate that compliance with 40 CFR part 63, subpart H is required after a specified date. Consistent with our intention discussed in the preamble to the proposed rule, this correction will allow compliance with 40 CFR part 61, subpart V only until the date at which compliance with 40 CFR part 63, subpart H is required.
○ We are including the correct VOHAP concentration of 500 ppmw in 40 CFR 63.683(c)(1)(ii).
○ We are correcting an erroneous reference to 40 CFR part 67 in 40 CFR 63.685(c)(2)(iii)(B) to properly reference 40 CFR part 63.
○ We are adding a reference in the semiannual reporting requirements of 40 CFR 63.697(b)(4) to 40 CFR 63.683(f), which includes additional deviations that must be reported.
○ We are correcting three entries in the General Provisions Applicability table
Several comments were received regarding the proposed revisions to the ERT, OELs, PRDs and other provisions for the OSWRO source category. The following is a summary of several of these comments and our response to those comments. Other comments received and our responses to those comments can be found in the Comment Summary and Response document available in the docket for this action (EPA–HQ–OAR–2012–0360).
The EPA believes that electronic reporting is a more efficient way to collect test data and has set up a retrieval system such that air agencies can access files that have been submitted using the ERT. As more air agencies adopt electronic reporting, we believe that the need for paper reports will diminish. The EPA is also developing a web-based ERT and has plans to release an extensible markup language (XML) schema that could be used by third parties to develop customized reporting software that meets the EPA's reporting requirements. The EPA expects these additional reporting options will provide a more robust and user friendly reporting process in the future.
The EPA also disagrees with the commenter that clarifying the meaning of “seal” creates a new loophole for OELs. As discussed in the preamble to the proposed rule and elsewhere in this document, we are clarifying an existing requirement that OELs be sealed.
One commenter states that the proposed PRD monitoring requirements will predetermine the imposition of systems that safety experts may deem unnecessary, and the placement of such systems, including monitoring, should rather be determined during a process hazards analysis, which is specific to each situation and is implemented for the explicit purpose of protecting life and property. Another commenter also argues that process safety professionals should make risk-based decisions, and asserts that the proposed requirements do not recognize the variations that exist between different types of systems and that choices must be made for each individual system considering site conditions. The commenter asserts that the management requirements for PRDs should have a wide variety of options depending on the character of the discharge. The commenter states that the industry's success in preventing accidents has lead the EPA to wrongly assume that it is easy to anticipate and prevent all circumstances that may cause an over-pressurization event.
We disagree with the comment that minor releases will divert attention and resources away from critical safety tasks. These releases are associated with malfunction events that would require immediate corrective action and have the potential to emit large quantities of HAP. In addition, while the owner or operator must follow the PRD recordkeeping and reporting requirements for each release to the atmosphere, these tasks can be completed after the release has occurred and should not interfere with any actions needed to ensure process and system safety. Further, we note that the rule does not require PRDs to be vented to control devices, as suggested by a commenter; however, a facility owner or operator may choose to vent PRDs to control devices. We also note that the commenters did not provide data or information in support of their speculation that venting a PRD to a control device would reduce the effectiveness of the PRD or that a safety hazard would be created.
Regarding the comments that the PRD monitoring requirements will dictate the types of systems used at facilities, we note that, as discussed elsewhere in this preamble, the requirements for PRD monitoring provide a wide latitude in the type of monitoring system used, which may be chosen by the facility owner or operator, providing that the basic requirements for the system are met.
Several commenters argue that the EPA provided no data to support the claim that a large number of releases occur and may emit large quantities of HAP, or to support the contention that releases are not being identified. One commenter asserts that PRD releases are rare, and that the EPA's data from PRD episodes at California South Coast refineries, which resulted in large emissions, does not apply to chemical operations. Another commenter notes that at its facility, PRD releases are infrequent events that last for 1 or 2 seconds and states that the proposed PRD provisions are not warranted. One commenter states that the industry already quantifies and reports releases through the use of pressure monitoring and other types of process controls that are also implemented to maintain stable operation. The commenter asserts that the EPA is establishing a numeric standard of zero that is based on the premise that most relief devices do not release, which fails to acknowledge the differences between systems.
In light of, and consistent with, the
Contrary to some commenters' assertions that the EPA did not provide data to support the claim that a large number of PRD releases occur and may emit large quantities of HAP, a report by the South Coast Air Quality Management District (SCAQMD) containing such data was referenced and made available with the proposed rule in the memorandum,
This commenter states that the exclusion for PRDs discharged to a drain system that meets the requirements of 40 CFR 63.689 is not useful, and states that the EPA provides no cost justification or assessment of potential emission reductions of this alternative requirement. The commenter asserts that hard-piping discharge to a closed sewer system is neither feasible nor safe in many situations, and suggests that the EPA require only that liquids be sent for on-site or off-site treatment, which would be consistent with the Chemical Manufacturing Area Source standard (40 CFR part 63, subpart VVVVVV). This commenter and another commenter state that, to be consistent with the HON, PRDs that are routed to a fuel gas system should be exempted in 40 CFR 63.691(c)(4).
We disagree with the commenter that the provisions that exclude PRDs that are routed to a drain system meeting the requirements of 40 CFR 63.689 from the PRD release and monitoring requirements is an alternate requirement. This provision acknowledges that such equipment would not have uncontrolled HAP emission releases directly to the atmosphere, and therefore the PRD release management and monitoring provisions should not apply, but it does not require that any equipment be routed to such a drain system. We also note that the chemical manufacturing area source standard does not have pressure release management or monitoring requirements, and the standards in that rule are not applicable to the OSWRO NESHAP. The EPA agrees with commenters' suggestion to exclude PRDs that release to a fuel gas system from the PRD monitoring provisions, and we have revised the final rule to reflect this change.
For the reasons provided above and in the preamble for the proposed rule, we are finalizing the proposed provisions regarding electronic reporting; routine maintenance; OELs; safety devices, pressure tanks, bypasses and PRDs; performance test method clarifications and alternative methods; and other clarifications and corrections.
For the reasons provided above, we are making the revisions, clarifications and corrections noted in section IV.D.2 in the final rule.
We estimate that there are 56 major source OSWRO facilities. Based on available permit information, seven facilities are known to be exempt from most of the rule requirements due to the low HAP content of the off-site waste they receive or because they comply instead with 40 CFR part 61, subpart FF, as allowed by the OSWRO NESHAP, and they are not expected to be affected by the final rule revisions. These facilities are only required to document that the total annual quantity of the HAP contained in the off-site material received at the plant site is less than 1 megagram per year, and they are not subject to any other emissions limits or monitoring, reporting or recordkeeping requirements. We are not aware of any new OSWRO facilities that are expected to be constructed in the foreseeable future.
For equipment leaks, we are eliminating the option of complying with 40 CFR part 61, subpart V, and requiring facilities in the OSWRO source category to comply with 40 CFR part 63, subpart H, including connector monitoring. Our revised estimate of the HAP emission reduction for this change is approximately 185 tpy.
For tanks, we are finalizing requirements for tanks of certain sizes and containing materials above certain vapor pressures to use Level 2 controls. Our revised estimate of the HAP emission reduction for this change is approximately 26 tpy.
We do not anticipate any HAP emission reduction from our clarification of the rule provision “seal the open end” (in the context of OELs), clarification of the scope of the routine maintenance provisions, or requirement to electronically report the results of emissions testing.
For the revisions to the MACT standards regarding SSM, including monitoring of PRDs in off-site material service, we were not able to quantify the
Therefore, the estimated total HAP emission reductions for the final standards for the OSWRO source category are estimated to be 211 tpy.
For equipment leaks, we are eliminating the option of complying with 40 CFR part 61, subpart V, and requiring facilities in the OSWRO source category to comply with 40 CFR part 63, subpart H (including connector monitoring). We estimate the nationwide capital costs to be $2.1 million and the annualized costs to be $664,000.
For tanks, we are requiring tanks of certain sizes and containing materials above certain vapor pressures to use Level 2 controls. We estimate the nationwide capital costs to be $139,000 and the annualized costs to be $192,000.
We do not anticipate any quantifiable capital or annualized costs for our definition of “seal” (in the context of OELs), clarification of the scope of the routine maintenance provisions and requirement to electronically report the results of emissions testing.
For the requirement to install and operate monitors on PRDs, we estimate the nationwide capital costs to be $1.9 million and the annualized costs to be $270,000. Therefore, the total capital costs for the final amendments for the OSWRO source category are approximately $4.1 million and the total annualized costs are approximately $1.1 million.
Both the magnitude of control costs needed to comply with a regulation and the distribution of these costs among affected facilities can have a role in determining how the market will change in response to that regulation. Total annualized costs for the final amendments are estimated to be about $1.1 million. The average annualized cost per facility is estimated to be about $23,000. Without detailed industry data, it is not possible to conduct a complete quantitative analysis of economic impacts. However, prior analyses suggest the impacts of these final amendments will be minimal. The Economic Impact Analysis for the final OSWRO NESHAP
We have estimated that this action will achieve HAP emissions reduction of 211 tpy. The final standards will result in significant reductions in the actual and MACT-allowable emissions of HAP and will reduce the actual and potential cancer risks and non-cancer health effects due to emissions of HAP from this source category, as discussed in the proposal preamble (79 FR 37869–37870). We have not quantified the monetary benefits associated with these reductions; however, these avoided emissions will result in improvements in air quality and reduced negative health effects associate with exposure to air pollution of these emissions.
The EPA is making environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low-income populations in the United States. The EPA has established policies regarding the integration of environmental justice into the agency's rulemaking efforts, including recommendations for the consideration and conduct of analyses to evaluate potential environmental justice concerns during the development of a rule.
Following these recommendations, to gain a better understanding of the source category and near source populations, the EPA conducted a proximity analysis for OSWRO facilities prior to proposal to identify any overrepresentation of minority, low income or indigenous populations. This analysis gives an indication of the prevalence of sub-populations that may be exposed to air pollution from the sources. We have revised this analysis to include four additional OSWRO facilities that the EPA learned about after proposal.
The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority, low income or indigenous populations. Additionally, the final changes to the NESHAP increase the level of environmental protection for all affected populations by reducing emissions from equipment leaks and tanks and do not cause any disproportionately high and adverse human health or environmental effects on any population, including any minority, low income or indigenous populations. Further details concerning this analysis are presented in the memorandum titled,
As part of the health and risk assessments, as well as the proximity analysis conducted for this action, risks to infants and children were assessed. These analyses are documented in the
The results of the proximity analysis show that the average percentage of children 17 years and younger in close proximity to OSWRO is similar to the percentage of the national population in this age group. The difference in the absolute number of percentage points of the population 17 years old and younger from the national average indicates a 7-percent over-representation near OSWRO facilities. Consistent with the EPA's Policy on Evaluating Health Risks to Children, we conducted inhalation and multipathway risk assessments for the OSWRO source category considering risk to infants and children.
For our inhalation risk assessment, several carcinogens emitted by facilities in this source category have a mutagenic mode of action. For these compounds,
For our multipathway screening assessment (
Based on the analyses described above, the EPA has determined that the changes to this rule, which will reduce emissions of HAP by over 200 tpy, will lead to reduced risk to children and infants.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
The information collection activities in this rule have been submitted for approval to the OMB under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 1717.11. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.
The information requirements in this rulemaking are based on the notification, recordkeeping and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to national emission standards. These notifications, reports and records are essential in determining compliance, and are specifically authorized by CAA section 114 (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to agency policies set forth in 40 CFR part 2, subpart 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. When OMB approves this ICR, the agency will announce that approval in the
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are businesses that can be classified as small firms using the SBA size standards for their respective industries. The agency has determined that of the 27 firms that own the 49 facilities in the OSWRO source category, four firms, or 15 percent, can be classified as small firms. Based on the sales test screening methodology, all four firms will experience minimal impact, or a cost-to-sales ratio of 1 percent or less. Details of this analysis are presented in the memo,
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments, or on the private sector.
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.
This action does not have tribal implications as specified in Executive Order 13175. There are no OSWRO facilities that are owned or operated by tribal governments. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in the:
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This action involves technical standards. The EPA has decided to add EPA Methods 2F and 2G to the list of methods allowed to determine process vent stream gas volumetric flow rate. No applicable voluntary consensus standards (VCS) were identified for these methods. In addition, the EPA is finalizing provisions to allow EPA Method 3A as an alternative to EPA Method 3B for determining the oxygen concentration to use in oxygen correction equations. While the EPA identified several candidate VCS for this method (ANSI/ASME PTC 19–10–1981 Part 10, ASME B133.9–1994 (2001), ISO 10396:1993 (2007), ISO 12039:2001, ASTM D5835–95 (2013), ASTM D6522–00 (2011), and CAN/CSA Z223.2–M86 (1999)) as being potentially applicable, the agency decided not to use them. The use of these VCS would not be practical due to lack of equivalency, documentation, validation data and other important technical and policy considerations. The EPA also is finalizing requirements to use EPA Method 25A to determine compliance with the control device percent reduction requirement, if the owner or operator chooses to measure total organic content. While the EPA identified two candidate VCS (ISO 14965:2000(E), EN 12619 (1999)) as being potentially applicable, we are not including either standard in this final rule. The use of these VCS would not be practical due to the limited measurement ranges of these methods. (For more detail, see the document titled,
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it increases the level of protection provided to human health or the environment. The results of this evaluation are contained in the memorandum titled, Updated
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Administrative practice and procedures, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Environmental Protection Agency (EPA) is amending title 40, chapter I, of the Code of Federal Regulations (CFR) as follows:
42 U.S.C. 7401
The revisions and addition read as follows:
(b) * * *
(2) * * *
(v) Waste that is transferred from a chemical manufacturing plant or other facility for which the owner or operator of the facility from which the waste is transferred has complied with the provisions of the air emission control standards for process wastewater specified by another subpart of this part. This exemption does not apply to a source which complies with another subpart of this part by transferring its wastewater off-site for control.
(e) * * * (1)
(i) For an affected source that commenced construction or reconstruction before October 13, 1994 and receives off-site material for the first time before February 1, 2000, the owner or operator of this affected source must achieve compliance with the provisions of the subpart (except §§ 63.685(b)(1)(ii), 63.691(b)(2), and 63.691(c)(3)(i) and (ii)) on or before February 1, 2000 unless an extension has been granted by the Administrator as provided in § 63.6(i). These existing affected sources shall be in compliance with the tank requirements of § 63.685(b)(1)(ii) 2 years after the publication date of the final amendments on March 18, 2015, the equipment leak requirements of § 63.691(b)(2) 1 year after the publication date of the final amendments on March 18, 2015, and the pressure relief device monitoring requirements of § 63.691(c)(3)(i) and (ii) 3 years after the publication date of the final amendments on March 18, 2015.
(ii) For an affected source that commenced construction or reconstruction before October 13, 1994, but receives off-site material for the first
(iii) For an affected source that commenced construction or reconstruction before October 13, 1994, but receives off-site material for the first time on or after March 18, 2015, the owner or operator of the affected source must achieve compliance with the provisions of this subpart (except §§ 63.685 (b)(1)(ii), 63.691(b)(2), and 63.691(c)(3)(i) and (ii)) upon the first date that the affected source begins to manage off-site material. These existing affected sources shall be in compliance with the tank requirements of § 63.685(b)(1)(ii) 2 years after the publication date of the final amendments on March 18, 2015, the equipment leak requirements of § 63.691(b)(2) 1 year after the publication date of the final amendments on March 18, 2015, and the pressure relief device monitoring requirements of § 63.691(c)(3)(i) and (ii) 3 years after the publication date of the final amendments on March 18, 2015.
(2)
(g)
(2) The owner or operator shall not shut down items of equipment that are required or utilized for compliance with this subpart during times when emissions are being routed to such items of equipment, if the shutdown would contravene requirements of this subpart applicable to such items of equipment.
The additions and revisions read as follows:
(1) The vapor pressure of one or more of the organic compounds is greater than 0.3 kilopascals at 20 °C;
(2) The total concentration of the pure organic compounds constituents having a vapor pressure greater than 0.3 kilopascals at 20 °C is equal to or greater than 20 percent by weight of the total process stream; and
(3) The fluid is a liquid at operating conditions. Note to
The revision and addition read as follows:
(c) * * *
(1) * * *
(ii) The owner or operator determines before placing off-site material in the process equipment associated with the process vent that the average VOHAP concentration of the off-site material is less than 500 ppmw at the point-of-delivery. * * *
(e)
(f) In addition to the cases listed in § 63.695(e)(4), deviation means any of the cases listed in paragraphs (f)(1) through (6) of this section.
(1) Any instance in which an affected source subject to this subpart, or an owner or operator of such a source, fails to meet any requirement or obligation established by this subpart, including, but not limited to, any emission limit, operating limit or work practice standard.
(2) When a performance test indicates that emissions of a pollutant in Table 1 to this subpart are exceeding the emission standard for the pollutant specified in Table 1 to this subpart.
(3) When the average value of a monitored operating parameter, based on the data averaging period for compliance specified in § 63.695, does not meet the operating limit specified in § 63.693.
(4) When an affected source discharges directly into the atmosphere from any of the sources specified in paragraphs (f)(4)(i) and (ii) of this section.
(i) A pressure relief device, as defined in § 63.681.
(ii) A bypass, as defined in § 63.681.
(5) Any instance in which the affected source subject to this subpart, or an owner or operator of such a source, fails to meet any term or condition specified in paragraph (f)(5)(i) or (ii) of this section.
(i) Any term or condition that is adopted to implement an applicable requirement in this subpart.
(ii) Any term or condition relating to compliance with this subpart that is included in the operating permit for an affected source to obtain such a permit.
(6) Any failure to collect required data, 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, calibration checks and required zero and span adjustments).
The revisions and addition read as follows:
(b) * * *
(5)
(v) An incinerator, boiler, or industrial furnace for which the owner or operator has submitted a Notification of Compliance under §§ 63.1207(j) and 63.1210(d) and complies with the requirements of subpart EEE of this part at all times (including times when non-hazardous waste is being burned).
(h) The Administrator may at any time conduct or require that the owner or operator conduct testing necessary to demonstrate that a treatment process is achieving the applicable performance requirements of this section. The testing shall be conducted in accordance with the applicable requirements of this section. The Administrator may elect to have an authorized representative observe testing conducted by the owner or operator.
The revisions read as follows:
(b) According to the date an affected source commenced construction or reconstruction and the date an affected source receives off-site material for the first time as established in § 63.680(e)(i) through (iii), the owner or operator shall control air emissions from each tank subject to this section in accordance with either paragraph (b)(1)(i) or (ii) of this section.
(1)(i) For a tank that is part of an existing affected source but the tank is not used for a waste stabilization process as defined in § 63.681, the owner or operator shall determine whether the tank is required to use either Tank Level 1 controls or Tank Level 2 controls as specified for the tank by Table 3 of this subpart based on the off-site material maximum HAP vapor pressure and the tank's design capacity. The owner or operator shall control air emissions from a tank required by Table 3 to use Tank Level 1 controls in accordance with the requirements of paragraph (c) of this section. The owner or operator shall control air emissions from a tank required by Table 3 to use Tank Level 2 controls in accordance with the requirements of paragraph (d) of this section.
(ii) For a tank that is part of an existing affected source but the tank is not used for a waste stabilization process as defined in § 63.681, the owner or operator shall determine whether the tank is required to use either Tank Level 1 controls or Tank Level 2 controls as specified for the tank by Table 4 of this subpart based on the off-site material maximum HAP vapor pressure and the tank's design capacity. The owner or operator shall control air emissions from a tank required by Table 4 to use Tank Level 1 controls in accordance with the requirements of paragraph (c) of this section. The owner or operator shall control air emissions from a tank required by Table 4 to use Tank Level 2 controls in accordance with the requirements of paragraph (d) of this section.
(2) For a tank that is part of a new affected source but the tank is not used for a waste stabilization process as defined in § 63.681, the owner or operator shall determine whether the tank is required to use either Tank Level
(c) * * *
(1) The owner or operator shall determine the maximum HAP vapor pressure for an off-site material to be managed in the tank using Tank Level 1 controls before the first time the off-site material is placed in the tank. The maximum HAP vapor pressure shall be determined using the procedures specified in § 63.694(j). Thereafter, the owner or operator shall perform a new determination whenever changes to the off-site material managed in the tank could potentially cause the maximum HAP vapor pressure to increase to a level that is equal to or greater than the maximum HAP vapor pressure limit for the tank design capacity category specified in Table 3, Table 4, or Table 5 of this subpart, as applicable to the tank.
(2) * * *
(i) The owner or operator controls air emissions from the tank in accordance with the provisions specified in subpart OO of this part—National Emission Standards for Tanks—Level 1, except that § 63.902(c)(2) and (3) shall not apply for the purposes of this subpart.
(iii) * * *
(B) At all other times, air emissions from the tank must be controlled in accordance with the provisions specified in subpart OO of this part—National Emission Standards for Tanks—Level 1, with the exceptions specified in paragraphs (c)(2)(iii)(B)(
(
(
(g) * * *
(2) Whenever an off-site material is in the tank, the fixed roof shall be installed with each closure device secured in the closed position and the vapor headspace underneath the fixed roof vented to the control device except that venting to the control device is not required, and opening of closure devices or removal of the fixed roof is allowed at the following times:
(i) To provide access to the tank for performing routine inspection, maintenance, or other activities needed for normal operations. Examples of such activities include those times when a worker needs to open a port to sample liquid in the tank, or when a worker needs to open a hatch to maintain or repair equipment. Following completion of the activity, the owner or operator shall promptly secure the closure device in the closed position or reinstall the cover, as applicable, to the tank.
(ii) To remove accumulated sludge or other residues from the bottom of the tank.
(h) * * *
(3) Whenever an off-site material is in the tank, the tank shall be operated as a closed system that does not vent to the atmosphere except at those times when purging of inerts from the tank is required and the purge stream is routed to a closed-vent system and control device designed and operated in accordance with the requirements of § 63.693.
(i) The owner or operator who elects to control air emissions by using an enclosure vented through a closed-vent system to an enclosed combustion control device shall meet the requirements specified in paragraphs (i)(1) through (3) of this section.
(b) * * *
(1) A floating roof in accordance with all applicable provisions specified in subpart VV of this part—National Emission Standards for Oil-Water Separators and Organic-Water Separators, except that §§ 63.1043(c)(2), 63.1044(c)(2), and 63.1045(b)(3)(i) shall not apply for the purposes of this subpart. For portions of the separator where it is infeasible to install and operate a floating roof, such as over a weir mechanism, the owner or operator shall comply with the requirements specified in paragraph (b)(2) of this section.
(2) A fixed-roof that is vented through a closed-vent system to a control device in accordance with all applicable provisions specified in subpart VV of this part—National Emission Standards for Oil-Water Separators and Organic-Water Separators, except that §§ 63.1043(c)(2), 63.1044(c)(2), and 63.1045(b)(3)(i) shall not apply for the purposes of this subpart.
(3) A pressurized separator that operates as a closed system in accordance with all applicable provisions specified in subpart VV of this part—National Emission Standards for Oil-Water Separators and Organic-Water Separators, except that §§ 63.1043(c)(2), 63.1044(c)(2), and 63.1045(b)(3)(i) shall not apply for the purposes of this subpart.
(b) * * *
(1) A floating membrane cover in accordance with the applicable provisions specified in subpart QQ of this part—National Emission Standards for Surface Impoundments, except that §§ 63.942(c)(2) and (3) and 63.943(c)(2) shall not apply for the purposes of this subpart; or
(2) A cover that is vented through a closed-vent system to a control device in accordance with all applicable provisions specified in subpart QQ of this part—National Emission Standards for Surface Impoundments, except that §§ 63.942(c)(2) and (3) and 63.943(c)(2) shall not apply for the purposes of this subpart.
(b) * * *
(1) * * *
(i) The owner or operator controls air emissions from the container in accordance with the standards for Container Level 1 controls as specified in subpart PP of this part—National Emission Standards for Containers, except that §§ 63.922(d)(4) and (5) and 63.923(d)(4) and (5) shall not apply for the purposes of this subpart.
(ii) As an alternative to meeting the requirements in paragraph (b)(1)(i) of this section, an owner or operator may choose to control air emissions from the container in accordance with the standards for either Container Level 2 controls or Container Level 3 controls as specified in subpart PP of this part—National Emission Standards for
(3) * * *
(i) The owner or operator controls air emissions from the container in accordance with the standards for Container Level 2 controls as specified in subpart PP of this part—National Emission Standards for Containers, except that §§ 63.922(d)(4) and (5) and 63.923(d)(4) and (5) shall not apply for the purposes of this subpart.
(d) * * *
(5) Whenever an off-site material is in the transfer system, the cover shall be installed with each closure device secured in the closed position, except the opening of closure devices or removal of the cover is allowed to provide access to the transfer system for performing routine inspection, maintenance, repair, or other activities needed for normal operations. Examples of such activities include those times when a worker needs to open a hatch or remove the cover to repair conveyance equipment mounted under the cover or to clear a blockage of material inside the system. Following completion of the activity, the owner or operator shall promptly secure the closure device in the closed position or reinstall the cover, as applicable.
The revision and addition read as follows:
(b) According to the date an affected source commenced construction or reconstruction and the date an affected source receives off-site material for the first time, as established in § 63.680(e)(i) through (iii), the owner or operator shall control the HAP emitted from equipment leaks in accordance with the applicable provisions specified in either paragraph (b)(1) or (2) of this section.
(1)(i) The owner or operator controls the HAP emitted from equipment leaks in accordance with §§ 61.241 through 61.247 in 40 CFR part 61, subpart V—National Emission Standards for Equipment Leaks, with the difference noted in paragraphs (b)(1)(iii) and (iv) of this section for the purposes of this subpart; or
(ii) The owner or operator controls the HAP emitted from equipment leaks in accordance with §§ 63.161 through 63.182 in subpart H of this part—National Emission Standards for Organic Hazardous Air Pollutants from Equipment Leaks, with the differences noted in paragraphs (b)(2)(i) through (iv) of this section for the purposes of this subpart.
(iii) On or after March 18, 2015, for the purpose of complying with the requirements of 40 CFR 61.242–6(a)(2) or the requirements of § 63.167(a)(2), the open end is sealed when instrument monitoring of the open-ended valve or line conducted according to Method 21 of 40 CFR part 60, appendix A indicates no readings of 500 ppm or greater.
(iv) On or after March 18, 2015, for the purpose of complying with the requirements of 40 CFR 61.242–6(d) or the requirements of § 63.167(d), open-ended valves or lines in an emergency shutdown system which are designed to open automatically in the event of a process upset and that are exempt from the requirements in 40 CFR 61.242–6(a), (b), and (c) or § 63.167(a), (b), and (c) must comply with the requirements in § 63.693(c)(2).
(2) The owner or operator controls the HAP emitted from equipment leaks in accordance with §§ 63.161 through 63.183 in subpart H of this part—National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks, with the differences noted in paragraphs (b)(2)(i) through (v) of this section for the purposes of this subpart.
(i) For each valve in gas/vapor or in light liquid service, as defined in § 63.681, that is part of an affected source under this subpart, an instrument reading that defines a leak is 500 ppm or greater as detected by Method 21 of 40 CFR part 60, appendix A.
(ii) For each pump in light liquid service, as defined in § 63.681, that is part of an affected source under this subpart, an instrument reading that defines a leak is 1,000 ppm or greater as detected by Method 21 of 40 CFR part 60, appendix A. Repair is not required unless an instrument reading of 2,000 ppm or greater is detected.
(iii) On or after March 18, 2015, for the purpose of complying with the requirements of § 63.167(a)(2), the open end is sealed when instrument monitoring of the open-ended valve or line conducted according to Method 21 of 40 CFR part 60, appendix A indicates no readings of 500 ppm or greater.
(iv) On or after March 18, 2015, for the purpose of complying with the requirements of § 63.167(d), open-ended valves or lines in an emergency shutdown system which are designed to open automatically in the event of a process upset and that are exempt from the requirements in § 63.167(a), (b), and (c) must comply with the requirements in § 63.693(c)(2).
(v) For the purposes of this subpart, the pressure relief device requirements of § 63.691(c) of this subpart rather than those of § 63.165 or of 40 CFR 61.242–4, as applicable, shall apply. The pressure relief device requirements of § 63.691(c)(3) and (4) apply in addition to the requirements of § 63.169 or of 40 CFR 61.242–8, as applicable, for pressure relief devices in liquid service.
(c)
(1)
(2)
(i) If the pressure relief device does not consist of or include a rupture disk, the pressure relief device shall be returned to a condition indicated by an instrument reading of less than 500 ppm above background, as detected by Method 21 of 40 CFR part 60, appendix A, no later than 5 calendar days after the pressure release device returns to off-site material service following a pressure release, except as provided in § 63.171.
(ii) If the pressure relief device consists of or includes a rupture disk, except as provided in § 63.171, install a replacement disk as soon as practicable but no later than 5 calendar days after the pressure release.
(3)
(i) The owner or operator must equip each pressure relief device in off-site material service with a device(s) or use a monitoring system. The device or monitoring system may be either specific to the pressure release device itself or may be associated with the process system or piping, sufficient to indicate a pressure release to the atmosphere. Examples of these types of devices or monitoring systems include, but are not limited to, a rupture disk indicator, magnetic sensor, motion detector on the pressure relief valve stem, flow monitor, pressure monitor, or parametric monitoring system. The devices or monitoring systems must be capable of meeting the requirements specified in paragraphs (c)(3)(i)(A) through (C) of this section.
(A) Identifying the pressure release;
(B) Recording the time and duration of each pressure release; and
(C) Notifying operators immediately that a pressure release is occurring.
(ii) If any pressure relief device in off-site material service releases directly to the atmosphere as a result of a pressure release event, the owner or operator must calculate the quantity of HAP listed in Table 1 of this subpart released during each pressure release event and report this quantity as required in § 63.697(b)(5). Calculations may be based on data from the pressure relief device monitoring alone or in combination with process parameter monitoring data and process knowledge.
(4)
The revisions and additions read as follows:
(b) * * *
(3) Whenever gases or vapors containing HAP are routed from a tank through a closed-vent system connected to a control device used to comply with the requirements of § 63.685(b)(1), (2), or (3), the control device must be operating except as provided for in paragraphs (b)(3)(i) and (ii) of this section.
(i) The control device may only be bypassed for the purpose of performing planned routine maintenance of the closed-vent system or control device in situations when the routine maintenance cannot be performed during periods that tank emissions are vented to the control device.
(ii) On an annual basis, the total time that the closed-vent system or control device is bypassed to perform routine maintenance shall not exceed 240 hours per each calendar year.
(8) In the case when an owner or operator chooses to use a design analysis to demonstrate compliance of a control device with the applicable performance requirements specified in this section as provided for in paragraphs (d) through (g) of this section, the Administrator may require that the design analysis be revised or amended by the owner or operator to correct any deficiencies identified by the Administrator. If the owner or operator and the Administrator do not agree on the acceptability of using the design analysis (including any changes required by the Administrator) to demonstrate that the control device achieves the applicable performance requirements, then the disagreement must be resolved using the results of a performance test conducted by the owner or operator in accordance with the requirements of § 63.694(l). The Administrator may choose to have an authorized representative observe the performance test conducted by the owner or operator. Should the results of this performance test not agree with the determination of control device performance based on the design analysis, then the results of the performance test will be used to establish compliance with this subpart.
(c) * * *
(1) * * *
(ii) A closed-vent system that is designed to operate at a pressure below atmospheric pressure. The system shall be equipped with at least one pressure gauge or other pressure measurement device that can be read from a readily accessible location to verify that negative pressure is being maintained in the closed-vent system when the control device is operating.
(2) In situations when the closed-vent system includes bypass devices that could be used to divert a vent stream from the closed-vent system to the atmosphere at a point upstream of the control device inlet, each bypass device must be equipped with either a flow indicator as specified in paragraph (c)(2)(i) of this section or a seal or locking device as specified in paragraph (c)(2)(ii) of this section, except as provided for in paragraph (c)(2)(iii) of this section:
(iii) Equipment needed for safety reasons, including low leg drains, open-ended valves and lines not in emergency shutdown systems, and pressure relief devices subject to the requirements of § 63.691(c) are not subject to the requirements of paragraphs (c)(2)(i) and (ii) of this section.
(f) * * *
(1) * * *
(i) * * *
(B) To achieve a total incinerator outlet concentration for the TOC, less methane and ethane, of less than or equal to 20 ppmv on a dry basis corrected to 3 percent oxygen.
(ii) * * *
(B) To achieve a total incinerator outlet concentration for the HAP, listed in Table 1 of this subpart, of less than or equal to 20 ppmv on a dry basis corrected to 3 percent oxygen.
(2) The owner or operator must demonstrate that the vapor incinerator achieves the performance requirements in paragraph (f)(1) of this section by conducting either a performance test as specified in paragraph (f)(2)(i) of this section or a design analysis as specified in paragraph (f)(2)(ii) of this section, except as provided for in paragraph (f)(2)(iii) of this section.
(iii) An owner or operator is not required to conduct a performance test or design analysis if the incinerator has been issued a final permit under 40 CFR part 270 and complies with the requirements of 40 CFR part 264, subpart O, or has certified compliance with the interim status requirements of 40 CFR part 265, subpart O.
(g) * * *
(1) * * *
(v) Introduce the vent stream to a boiler or process heater for which the owner or operator either has been issued a final permit under 40 CFR part 270 and complies with the requirements of 40 CFR part 266, subpart H; or has certified compliance with the interim status requirements of 40 CFR part 266, subpart H; or has submitted a Notification of Compliance under §§ 63.1207(j) and 63.1210(d) and complies with the requirements of subpart EEE of this part at all times (including times when non-hazardous waste is being burned).
(2) * * *
(i) If an owner or operator chooses to comply with the performance specifications in either paragraph (g)(1)(i), (ii), or (iii) of this section, the owner or operator must demonstrate compliance with the applicable performance specifications by conducting either a performance test as specified in paragraph (g)(2)(i)(A) of this section or a design analysis as specified in paragraph (g)(2)(i)(B) of this section, except as provided for in paragraph (g)(2)(i)(C) of this section.
(C) An owner or operator is not required to conduct a performance test or design analysis if the boiler or process heater has been issued a final permit under 40 CFR part 270 and complies with the requirements of 40 CFR part 266, subpart H; or has certified compliance with the interim status requirements of 40 CFR part 266, subpart H.
(b) * * *
(3) * * *
(iv) In the event that the Administrator and the owner or operator disagree on a determination of the average VOHAP concentration for an off-site material stream using knowledge, then the results from a determination of VOHAP concentration using direct measurement as specified in paragraph (b)(2) of this section shall be used to establish compliance with the applicable requirements of this subpart. The Administrator may perform or require that the owner or operator perform this determination using direct measurement.
(f) * * *
(1) The actual HAP mass removal rate (MR) shall be determined based on results for a minimum of three consecutive runs. The sampling time for each run shall be at least 1 hour.
(i) * * *
(1) The actual HAP mass removal rate (MR
(j) * * *
(3)
(k) * * *
(3) The detection instrument shall meet the performance criteria of Method 21 of 40 CFR part 60, appendix A, except the instrument response factor criteria in section 8.1.1 of Method 21 shall be for the weighted average composition of the organic constituents in the material placed in the unit at the time of monitoring, not for each individual organic constituent.
(l)
(2) The gas volumetric flow rate shall be determined using Method 2, 2A, 2C, or 2D, 2F, or 2G of 40 CFR part 60, appendix A, as appropriate.
(3) To determine compliance with the control device percent reduction requirement, the owner or operator shall use Method 18 of 40 CFR part 60, appendix A to measure the HAP in Table 1 of this subpart or Method 25A of 40 CFR part 60, appendix A to measure TOC. Method 18 may be used to measure methane and ethane, and the measured concentration may be subtracted from the Method 25A measurement. Alternatively, any other method or data that has been validated according to the applicable procedures in Method 301 in appendix A of this part may be used. The following procedures shall be used to calculate percent reduction efficiency:
(i) A minimum of three sample runs must be performed. The minimum sampling time for each run shall be 1 hour. For Method 18, either an integrated sample or a minimum of four grab samples shall be taken. If grab sampling is used, then the samples shall be taken at approximately equal intervals in time such as 15 minute intervals during the run.
(ii) * * *
(B) When the TOC mass rate is calculated, the average concentration reading (minus methane and ethane) measured by Method 25A of 40 CFR part 60, appendix A shall be used in the equation in paragraph (l)(3)(ii)(A) of this section.
(4) To determine compliance with the enclosed combustion device total HAP concentration limit of this subpart, the owner or operator shall use Method 18 of 40 CFR part 60, appendix A to measure the total HAP in Table 1 of this subpart or Method 25A of 40 CFR part 60, appendix A to measure TOC. Method 18 may be used to measure
(i) A minimum of three sample runs must be performed. The minimum sampling time for each run shall be 1 hour. For Method 18, either an integrated sample or a minimum of four grab samples shall be taken. If grab sampling is used, then the samples shall be taken at approximately equal intervals in time, such as 15 minute intervals during the run.
(ii) * * *
(A) The TOC concentration (C
(B) The total HAP concentration (C
(iii) * * *
(A) The emission rate correction factor or excess air, integrated sampling and analysis procedures of Method 3B of 40 CFR part 60, appendix A shall be used to determine the oxygen concentration (%O
(m) * * *
(2) No traverse site selection method is needed for vents smaller than 0.10 meter in diameter. For vents smaller than 0.10 meter in diameter, sample at the center of the vent.
(3) Process vent stream gas volumetric flow rate must be determined using Method 2, 2A, 2C, 2D, 2F, or 2G of 40 CFR part 60, appendix A, as appropriate.
The revisions and addition read as follows:
(a) The owner or operator must install, calibrate, maintain, and operate all monitoring system components according to §§ 63.8, 63.684(e), 63.693(d)(3), (e)(3), (f)(3), (g)(3), and (h)(3), and paragraph (a)(5) of this section and perform the inspection and monitoring procedures specified in paragraphs (a)(1) through (4) of this section.
(5)(i) 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, calibration checks and required zero and span adjustments), the owner or operator must operate the continuous monitoring system 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 data. Monitoring system failures that are caused in part by poor maintenance or careless operation are not malfunctions. The owner or operator is required to complete monitoring system repairs in response to monitoring system malfunctions and to return the monitoring system to operation as expeditiously as practicable.
(ii) The owner or operator may not use data recorded during monitoring system malfunctions, repairs associated with monitoring system malfunctions, or required monitoring system quality assurance or control activities in calculations used to report emissions or operating levels. The owner or operator must use all the data collected during all other required data collection periods in assessing the operation of the control device and associated control system. The owner or operator must report any periods for which the monitoring system failed to collect required data.
(e)
(4) A deviation for a given control device is determined to have occurred when the monitoring data or lack of monitoring data result in any one of the criteria specified in paragraphs (e)(4)(i) through (iii) of this section being met. When multiple operating parameters are monitored for the same control device and during the same operating day more than one of these operating parameters meets a deviation criterion specified in paragraphs (e)(4)(i) through (iii) of this section, then a single deviation is determined to have occurred for the control device for that operating day.
(i) A deviation occurs when the daily average value of a monitored operating parameter is less than the minimum operating parameter limit (or, if applicable, greater than the maximum operating parameter limit) established for the operating parameter in accordance with the requirements of paragraph (e)(3) of this section.
(ii) A deviation occurs when the period of control device operation is 4 hours or greater in an operating day and the monitoring data are insufficient to constitute a valid hour of data for at least 75 percent of the operating hours. Monitoring data are insufficient to constitute a valid hour of data if measured values are unavailable for any of the 15-minute periods within the hour.
(iii) A deviation occurs when the period of control device operation is less than 4 hours in an operating day and more than 1 of the hours during the period does not constitute a valid hour of data due to insufficient monitoring data. Monitoring data are insufficient to constitute a valid hour of data if measured values are unavailable for any of the 15-minute periods within the hour.
(5) For each deviation, except when the deviation occurs during periods of non-operation of the unit or the process that is vented to the control device (resulting in cessation of HAP emissions to which the monitoring applies), the owner or operator shall be deemed to have failed to have applied control in a manner that achieves the required operating parameter limits. Failure to achieve the required operating
(h) An owner or operator shall record the malfunction information specified in paragraphs (h)(1) through (3) of this section.
(1) In the event that an affected unit fails to meet an applicable standard, record the number of failures. For each failure, record the date, time and duration of the failure.
(2) For each failure to meet an applicable standard, record and retain a list of the affected sources or equipment, an estimate of the volume of each regulated pollutant emitted over any emission limit and a description of the method used to estimate the emissions.
(3) Record actions taken to minimize emissions in accordance with § 63.683(e) and any corrective actions taken to return the affected unit to its normal or usual manner of operation.
(i) For pressure relief devices in off-site material service, keep records of the information specified in paragraphs (i)(1) through (5) of this section, as applicable.
(1) A list of identification numbers for pressure relief devices that the owner or operator elects to route emissions through a closed-vent system to a control device, process or drain system under the provisions in § 63.691(c)(4).
(2) A list of identification numbers for pressure relief devices that do not consist of or include a rupture disk, subject to the provisions in § 63.691(c)(2)(i).
(3) A list of identification numbers for pressure relief devices equipped with rupture disks, subject to the provisions in § 63.691(c)(2)(ii).
(4) The dates and results of the Method 21 of 40 CFR part 60, appendix A, monitoring following a pressure release for each pressure relief device subject to the provisions in § 63.691(c)(2)(i). The results of each monitoring event shall include:
(i) The measured background level.
(ii) The maximum instrument reading measured at each pressure relief device.
(5) For pressure relief devices in off-site material service subject to § 63.691(c)(3), keep records of each pressure release to the atmosphere, including the following information:
(i) The source, nature, and cause of the pressure release.
(ii) The date, time, and duration of the pressure release.
(iii) An estimate of the quantity of HAP listed in Table 1 of this subpart emitted during the pressure release and the calculations used for determining this quantity.
(iv) The actions taken to prevent this pressure release.
(v) The measures adopted to prevent future such pressure releases.
(j) (1) For pressure tank closure devices, as specified in § 63.685(h)(2), keep records of each release to the atmosphere, including the information specified in paragraphs (j)(3) though (7) of this section.
(2) For each closed vent system that includes bypass devices that could divert a stream away from the control device and into the atmosphere, as specified in § 63.693(c)(2), and each open-ended valve or line in an emergency shutdown system which is designed to open automatically in the event of a process upset, as specified in § 63.167(d) or 40 CFR 61.242–6(d), keep records of each release to the atmosphere, including the information specified in paragraphs (j)(3) though (9) of this section.
(3) The source, nature, and cause of the release.
(4) The date, time, and duration of the release.
(5) An estimate of the quantity of HAP listed in Table 1 of this subpart emitted during the release and the calculations used for determining this quantity.
(6) The actions taken to prevent this release.
(7) The measures adopted to prevent future such release.
(8) Hourly records of whether the bypass flow indicator specified under § 63.693(c)(2) was operating and whether a diversion was detected at any time during the hour, as well as records of the times of all periods when the vent stream is diverted from the control device or the flow indicator is not operating.
(9) Where a seal mechanism is used to comply with § 63.693(c)(2), hourly records of flow are not required. In such cases, the owner or operator shall record that the monthly visual inspection of the seals or closure mechanism has been done, and shall record the duration of all periods when the seal mechanism is broken, the bypass line valve position has changed, or the key for a lock-and-key type lock has been checked out, and records of any car-seal that has broken.
The revisions and additions read as follows:
(a) Each owner or operator of an affected source subject to this subpart must comply with the notification requirements specified in paragraph (a)(1) of this section and the reporting requirements specified in paragraphs (a)(2) and (3) of this section.
(1) * * *
(i) For pressure relief devices in off-site material service subject to the requirements of § 63.691(c), the owner or operator must submit the information listed in paragraph (a)(1)(ii) of this section in the notification of compliance status required under § 63.9(h) within 150 days after the first applicable compliance date for pressure relief device monitoring.
(ii) For pressure relief devices in off-site material service, a description of the device or monitoring system to be implemented, including the pressure relief devices and process parameters to be monitored (if applicable), a description of the alarms or other methods by which operators will be notified of a pressure release, and a description of how the owner or operator will determine the information to be recorded under § 63.696(i)(5)(ii) through (iii) (
(3)
(i) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT Web site (
(ii) For data collected 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 must submit the results of the performance test to the Administrator at the appropriate address listed in 40 CFR 60.4.
(b) * * *
(3)
(4) A summary report specified in § 63.10(e)(3) shall be submitted on a semiannual basis (
(5) For pressure relief devices in off-site material service subject to § 63.691(c), Periodic Reports must include the information specified in paragraphs (b)(5)(i) through (iii) of this section.
(i) For pressure relief devices in off-site material service subject to § 63.691(c), report the results of all monitoring conducted within the reporting period.
(ii) For pressure relief devices in gas/vapor service subject to § 63.691(c)(2)(i), report any instrument reading of 500 ppm above background or greater, if detected more than 5 days after the pressure release.
(iii) For pressure relief devices in off-site material service subject to § 63.691(c)(3), report each pressure release to the atmosphere, including the following information:
(A) The source, nature, and cause of the pressure release.
(B) The date, time, and duration of the pressure release.
(C) An estimate of the quantity of HAP listed in Table 1 of this subpart emitted during the pressure release and the method used for determining this quantity.
(D) The actions taken to prevent this pressure release.
(E) The measures adopted to prevent future such pressure releases.
(6)
(i) Any pressure tank closure device, as specified in § 63.685(h)(2), has released to the atmosphere.
(ii) Any closed vent system that includes bypass devices that could divert a vent a stream away from the control device and into the atmosphere, as specified in § 63.693(c)(2), has released directly to the atmosphere.
(iii) Any open-ended valve or line in an emergency shutdown system which is designed to open automatically in the event of a process upset, as specified in § 63.167(d) or 40 CFR 61.242–6(d), has released directly to the atmosphere.
(iv) The pressure tank closure device or bypass deviation report must include the information specified in paragraphs (b)(6)(iv)(A) through (E) of this section.
(A) The source, nature and cause of the release.
(B) The date, time and duration of the discharge.
(C) An estimate of the quantity of HAP listed in Table 1 of this subpart emitted during the release and the method used for determining this quantity.
(D) The actions taken to prevent this release.
(E) The measures adopted to prevent future such releases.
(c) The authorities that cannot be delegated to State, local, or Tribal agencies are as specified in paragraphs (c)(1) through (5) of this section.
(5) Approval of alternatives to the electronic reporting requirements in § 63.697(a)(3).
The revisions and additions read as follows:
(a) Managing Director;
(b) Chief of Staff;
(c) General Counsel; and
(d) Associate Directors in the order in which they have been appointed as such.
(b) No individual listed in section 1 of this memorandum shall act as Chairman unless that individual is otherwise eligible to so serve under the Act.
(c) Notwithstanding the provisions of this memorandum, the President retains discretion, to the extent permitted by law, to depart from this memorandum in designating an acting Chairman.
(b) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(c) You are hereby authorized and directed to publish this memorandum in the