National Agricultural Statistics Service
Rural Business-Cooperative Service
Economic Development Administration
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Army Department
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Federal Emergency Management Agency
U.S. Customs and Border Protection
U.S. Immigration and Customs Enforcement
Fish and Wildlife Service
Land Management Bureau
National Park Service
Mine Safety and Health Administration
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration
Maritime Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Community Development Financial Institutions Fund
Fiscal Service
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Office of the Secretary, DHS.
Final rule.
Pursuant to the Administrative Procedure Act, the Department of Homeland Security (DHS or Department) is adopting a process under which interested persons may petition the Department to issue, amend, or repeal a rule.
This rule is effective December 28, 2016.
Danny Fischler, Office of the General Counsel, U.S. Department of Homeland Security, 202–282–9822.
The Administrative Procedure Act (APA) requires that each agency give interested persons the right to petition the agency for the issuance, amendment, or repeal of a rule. 5 U.S.C. 553(e). Such a petition is known as a “rulemaking petition.” On July 21, 2016, DHS published an interim final rule describing its procedures for receiving and responding to rulemaking petitions.
The one in-scope comment stated general support for the interim final rule, but requested that DHS allow petitioners to submit rulemaking petitions online in addition to by physical mail. The commenter stated that online communication is more efficient. DHS agrees that in certain contexts online communication is more efficient than physical mail, but has decided to retain the requirement to submit rulemaking petitions by physical mail. In this context, DHS believes that physical mail is a more effective and appropriate means of submission to the agency. A properly filed rulemaking petition is a legal document giving rise to specific legal obligations on the part of the agency.
DHS has determined that no changes to the interim final rule are necessary. Accordingly, this rule finalizes the interim final rule without change.
This rule, like the interim final rule that preceded it, is a rule of agency organization, procedure, or practice under the Administrative Procedure Act, 5 U.S.C. 553(b)(A). Although the Administrative Procedure Act did not require DHS to provide a period of advance notice and opportunity for public comment, DHS invited public comment on the interim final rule, and has responded to such comment in this final rule.
Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a significant regulatory action for the purposes of Executive Order 12866, as amended, and therefore review by the Office of Management and Budget is not necessary.
This rule describes how to petition DHS to issue, amend, or repeal a rule. The rule's qualitative benefits include additional transparency and accountability for the public. The rule imposes no additional costs on the public or the government.
This rule does not require a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
This rule does not contain or modify any collections of information under the Paperwork Reduction Act.
Administrative practice and procedure.
For the reasons set forth in the preamble, the interim final rule adding 6 CFR part 3, which was published at 81 FR 47285 on July 21, 2016, is adopted as a final rule without change.
Financial Stability Oversight Council.
Interim final rule.
This rule makes revisions to the regulations of the Financial Stability Oversight Council (the “Council”) under the Freedom of Information Act (“FOIA”) as required by the FOIA Improvement Act of 2016.
Jonah Crane, Deputy Assistant Secretary, Financial Stability Oversight Council, U.S. Treasury Department, (202) 622–7811; Stephen Milligan, Attorney-Advisor, U.S. Treasury Department, (202) 622–4051.
Interested persons are invited to submit comments regarding this interim final rule according to the instructions below. All submissions must refer to the document title.
On June 30, 2016, the President signed into law the FOIA Improvement Act of 2016, Public Law 114–185, 130 Stat. 538 (2016). The revisions to the Council's FOIA regulations implement changes mandated by the statute, as described below.
The rule revises section 1301.2(a)(2) and sections 1301.4(a), (b), (d), and (e) to provide that materials required to be made available for public inspection will now be available in an electronic format. The rule revises section 1301.2(c)(2) to provide that the Council will withhold records or information under the FOIA only when it reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or when disclosure is prohibited by law. Revised section 1301.2(c)(2) also provides that whenever the Council determines that full disclosure of a requested record is not possible, the Council will consider whether partial disclosure is possible and will take reasonable steps to segregate and release nonexempt material.
The rule revises section 1301.7(e)(2) to provide that, in the event the Council requires additional time beyond a ten-day extension to process a request or appeal, the Council will make available its FOIA Public Liaison, who will assist in defining the desired scope of the request, and will notify the requester of the right to seek dispute resolution services from the Office of Government Information Services. Similarly, the rule revises sections 1301.8(b)(2), (3), and (4) to provide for the Council to advise requesters of their right to seek assistance from the FOIA Public Liaison and, in the case of a denied request or when no records can be found, to seek dispute resolution services offered by the Office of Government Information Services.
The rule also revises section 1301.11(b) to extend the deadline for seeking an appeal to 90 days of the date of the initial determination or the date of the letter transmitting the last records released, whichever is later and adds a new paragraph (f) to section 1301.11 to provide information as to how requesters may seek dispute resolution. Finally, the rule revises section 1301.12(e)(4) with respect to the circumstances under which the Council will waive fees if it does not comply with the time limits for responding to requests and appeals.
The Council finds that good cause exists, pursuant to 5 U.S.C. 553(b), that notice and public comment on this rulemaking would be unnecessary and contrary to the public interest because the revisions to the Council's FOIA regulations are limited to those mandated by the FOIA Improvement Act of 2016 and the Council is not exercising any discretion in issuing these revisions. While the interim final rule is effective immediately upon publication, the Council is inviting public comment on the interim final rule during a sixty-day period and will consider all comments in developing a final rule.
Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a significant regulatory action as defined in section 3.f of Executive Order 12866.
Freedom of Information.
12 U.S.C. 5322; 5 U.S.C. 552.
This part contains the regulations of the Financial Stability Oversight Council (the “Council”) implementing the Freedom of Information Act
(a)
(1) Information required to be published in the
(2) Information required to be made available for public inspection in an electronic format or, in the alternative, to be published and offered for sale (see § 1301.4); and
(3) Information required to be made available to any member of the public upon specific request (see §§ 1301.5 through 1301.12).
(b)
(c)
(2) The Council shall withhold records or information under the FOIA only when it reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or when disclosure is prohibited by law. Whenever the Council determines that full disclosure of a requested record is not possible, the Council shall consider whether partial disclosure is possible and shall take reasonable steps to segregate and release nonexempt information. Nothing in this paragraph requires disclosure of information that is otherwise exempted from disclosure under 12 U.S.C. 552(b)(3).
Subject to the application of the FOIA exemptions and exclusions (5 U.S.C. 552(b) and (c)) and subject to the limitations provided in 5 U.S.C. 552(a)(1), the Council shall state, publish and maintain current in the
(a) Descriptions of its central and field organization and the established places at which, the persons from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
(b) Statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the Council; and
(e) Each amendment, revision, or repeal of matters referred to in paragraphs (a) through (d) of this section.
(a)
(1) Final opinions, including concurring and dissenting opinions, and orders, made in the adjudication of cases;
(2) Those statements of policy and interpretations which have been adopted by the Council but which are not published in the
(3) Its administrative staff manuals and instructions to staff that affect a member of the public;
(4) Copies of all records, regardless of form or format, that have been released previously to any person under 5 U.S.C. 552(a)(3) and §§ 1301.5 through 1301.12, and that the Council determines have become or are likely to become the subject of subsequent requests for substantially the same records. When the Council receives three (3) or more requests for substantially the same records, then the Council shall place those requests in front of any existing processing backlog and make the released records available in the Council's public reading room and in the electronic reading room on the Council's Web site.
(5) A general index of the records referred to in paragraph (a)(4) of this section.
(b)
(c)
(d)
(e)
(2) The Council shall make the indices referred to in paragraph (a)(5)
(a)
(b)
(1) The request for records shall be made in writing and submitted by mail or via the Internet and should state, both in the request itself and on any envelope that encloses it, that it comprises a FOIA request. A request that does not explicitly state that it is a FOIA request, but clearly indicates or implies that it is a request for records, may also be processed under the FOIA.
(2) If a request is sent by mail, it shall be addressed and submitted as follows: FOIA Request—Financial Stability Oversight Council, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220. If a request is made via the Internet, it shall be submitted as set forth on the Council's Web site.
(3) In order to ensure the Council's ability to respond in a timely manner, a FOIA request must describe the records that the requester seeks in sufficient detail to enable Council personnel to locate them with a reasonable amount of effort. Whenever possible, the request must include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record. If known, the requester must include any file designations or descriptions for the records requested. In general, a requester is encouraged to provide more specific information about the records or types of records sought to increase the likelihood that responsive records can be located.
(4) The request shall include the name of and contact information for the requester, including a mailing address, telephone number, and, if available, an email address at which the Council may contact the requester regarding the request.
(5) For the purpose of determining any fees that may apply to processing a request, a requester shall indicate in the request whether the requester is a commercial user, an educational institution, non-commercial scientific institution, representative of the news media, or “other” requester, as those terms are defined in § 1301.12(c), or in the alternative, state how the records released will be used. The Council shall use this information solely for the purpose of determining the appropriate fee category that applies to the requester and shall not use this information to determine whether to disclose a record in response to the request.
(6) If a requester seeks a waiver or reduction of fees associated with processing a request, then the request shall include a statement to that effect, pursuant to § 1301.12(f). Any request that does not seek a waiver or reduction of fees shall constitute an agreement of the requester to pay any and all fees (of up to $25) that may apply to the request, unless or until a request for waiver is sought and granted. The requester also may specify in the request an upper limit (of not less than $25) that the requester is willing to pay to process the request.
(i) Any request for waiver or reduction of fees should be filed together with or as part of the FOIA request, or at a later time prior to the Council incurring costs to process the request.
(ii) A waiver request submitted after the Council incurs costs will be considered in accordance with § 1301.12(f); however, the requester must agree in writing to pay the fees already incurred if the waiver is denied.
(7) If a requester seeks expedited processing of a request, then the request must include a statement to that effect as is required by § 1301.7(c).
(c)
(d)
(a)
(b)
(c)
(1) In the case of a record originated by a federal agency subject to the FOIA, refer the responsibility for responding to the request regarding that record to the originating agency to determine whether to disclose it; and
(2) In the case of a record originated by a state agency, respond to the request after giving notice to the originating state agency and a reasonable opportunity to provide input or to assert any applicable privileges.
(d)
(a)
(b)
(2) The Council may provide a requester in its complex track with an opportunity to limit the scope of the request to qualify for faster processing within the specified limits of the simple track(s).
(c)(1)
(2)
(i) A request for expedited processing shall be made in writing or via the Internet and submitted as part of the initial request for records. When a request for records includes a request for expedited processing, both the envelope and the request itself must be clearly marked “Expedited Processing Requested.” A request for expedited processing that is not clearly so marked, but satisfies the requirements in § 1301.7(c)(2)(ii) and (iii), may nevertheless be granted.
(ii) A request for expedited processing shall contain a statement that demonstrates a compelling need for the requester to obtain expedited processing of the requested records. A “compelling need” may be established under the standard in either paragraph (c)(2)(ii)(A) or (B) of this section by demonstrating that:
(A) Failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual. The requester shall fully explain the circumstances warranting such an expected threat so that the Council may make a reasoned determination that a delay in obtaining the requested records would pose such a threat; or
(B) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. A person “primarily engaged in disseminating information” does not include individuals who are engaged only incidentally in the dissemination of information. The standard of “urgency to inform” requires that the records requested pertain to a matter of current exigency to the American general public and that delaying a response to a request for records would compromise a significant recognized interest to and throughout the American general public. The requester must adequately explain the matter or activity and why the records sought are necessary to be provided on an expedited basis.
(iii) The requester shall certify the written statement that purports to demonstrate a compelling need for expedited processing to be true and correct to the best of the requester's knowledge and belief. The certification must be in the form prescribed by 28 U.S.C. 1746: “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on [date].”
(3)
(4)
(5)
(d)
(1) Make one reasonable demand to the requester for clarifying information about the request and toll the twenty-day time period while it awaits the clarifying information; or
(2) Toll the twenty-day time period while awaiting receipt of the requester's response to the Council's request for clarification regarding the assessment of fees.
(e)
(2)
(3)
(i) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(iii) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request, or among two or more components or component offices having substantial subject matter interest therein.
(4)
(a)
(1) A brief description of the request;
(2) The applicable request tracking number;
(3) The date of receipt of the request, as determined in accordance with § 1301.5(c); and
(4) A confirmation, with respect to any fees that may apply to the request pursuant to § 1301.12, that the requester has sought a waiver or reduction in such fees, has agreed to pay any and all applicable fees, or has specified an upper limit (of not less than $25) that the requester is willing to pay in fees to process the request.
(b)
(2)
(3)
(i) State the exemptions relied on in not granting the request;
(ii) If technically feasible, indicate the volume of information redacted (including the number of pages withheld in part and in full) and the exemptions under which the redaction is made at the place in the record where such redaction is made (unless providing such indication would harm an interest protected by the exemption relied upon to deny such material);
(iii) Set forth the name and title or position of the responsible official;
(iv) Advise the requester of the right to administrative appeal in accordance with § 1301.11 and specify the official or office to which such appeal shall be submitted; and
(v) Advise the requester of the right to seek assistance from the FOIA Public Liaison or seek dispute resolution services offered by the Office of Government Information Services.
(4)
(a)
(b)
(a)
(b)
(1)
(2)
(3)
(c)
(d)
(e)
(1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(2) The Council has reason to believe that the information may be protected from disclosure under Exemption 4 because disclosure could reasonably be expected to cause substantial competitive harm to the submitter.
(f)
(2) When notice is given to a submitter under this section, the Council shall advise the requester that such notice has been given to the submitter. The requester shall be further advised that a delay in responding to the request may be considered a denial of access to records and that the requester may proceed with an administrative appeal or seek judicial review, if appropriate. However, the Council shall invite the requester to agree to an extension of time so that the Council may review the submitter's objection to disclosure.
(g)
(1) A statement of the reasons for which the submitter's disclosure objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date which is not less than ten (10) days (exclusive of Saturdays, Sundays, and legal public holidays) after the notice of the final decision to release the requested information has been provided to the submitter. Except as otherwise prohibited by law, notice of the final decision to release the requested information shall be forwarded to the requester at the same time.
(h)
(i)
(1) The Council determines that the information shall not be disclosed;
(2) The information lawfully has been published or otherwise made available to the public; or
(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600 (3 CFR, 1987 Comp., p. 235).
(a)
(1) To deny access to records in whole or in part (as provided in § 1301.8(b)(4));
(2) To assign a particular fee category to the requester (as provided in § 1301.12(c));
(3) To deny a request for a reduction or waiver of fees (as provided in § 1301.12(f)(7));
(4) That no records could be located that are responsive to the request (as provided in § 1301.8(b)(5)); or
(5) To deny a request for expedited processing (as provided in § 1301.7(c)(5)).
(b)
(c)
(1) Be made in writing or, as set forth on the Council's Web site, via the Internet;
(2) Be clearly marked on the appeal request and any envelope that encloses it with the words “Freedom of Information Act Appeal” and addressed to Financial Stability Oversight Council, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington DC 20220;
(3) Set forth the name of and contact information for the requester, including a mailing address, telephone number, and, if available, an email address at which the Council may contact the requester regarding the appeal;
(4) Specify the date of the initial request and date of the letter of initial determination, and, where possible, enclose a copy of the initial request and the initial determination being appealed; and
(5) Set forth specific grounds for the appeal.
(d)
(e)
(1) If it is decided that the appeal is to be denied (in whole or in part) the requester shall be—
(i) Notified in writing of the denial;
(ii) Notified of the reasons for the denial, including the FOIA exemptions relied upon;
(iii) Notified of the name and title or position of the official responsible for the determination on appeal;
(iv) Provided with a statement that judicial review of the denial is available in the United States District Court for the judicial district in which the requester resides or has a principal place of business, the judicial district in which the requested records are located, or the District of Columbia in accordance with 5 U.S.C. 552(a)(4)(B); and
(v) Provided with notification that mediation services may be available to the requester as a non-exclusive alternative to litigation through the Office of Government Information Services in accordance with 5 U.S.C. 552(h)(3).
(2) If the Council grants the appeal in its entirety, the Council shall so notify the requester and promptly process the request in accordance with the decision on appeal.
(f)
(a)
(b)
(1)
(i) $.15 per page, up to 8
(ii) Photographs, films, and other materials—actual cost of duplication.
(iii) Other types of duplication services not mentioned above—actual cost.
(iv) Material provided to a private contractor for copying shall be charged to the requester at the actual cost charged by the private contractor.
(2)
(i)
(ii)
(3)
(4)
(5)
(i) Certifying that records are true copies; and
(ii) Sending records by special methods (such as by express mail, etc.).
(c)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(d)
(1)
(2)
(3)
(4)
(e)
(1) Services were performed without charge;
(2) The cost of collecting a fee would be equal to or greater than the fee itself;
(3) The fees were waived or reduced in accordance with paragraph (f) of this section;
(4) The Council fails to comply with any time limit under § 1301.7 or § 1301.11; provided that:
(i) If unusual circumstances (as that term is defined in § 1301.7(e)) apply to the processing of the request and the Council has provided a timely notice to the requester in accordance with § 1301.7(e)(1), then a failure to comply with such time limit shall be excused for an additional ten days;
(ii) If unusual circumstances (as that term is defined in § 1301.7(e)) apply to the processing of the request, more than 5,000 pages are necessary to respond to the request, the Council has provided a timely written notice to the requester in accordance with § 1301.7(e)(2), and the Council has discussed with the requester via written mail, electronic mail, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with paragraph § 1301.7(e)(2), then the Council may charge a requester a fee; and
(iii) If a court has determined that exceptional circumstances exist, then a failure to comply with such time limit shall be excused for the length of time provided by the court order; or.
(5) The requester is an educational or noncommercial scientific institution or a representative of the news media (as described in paragraphs (c)(2)(ii) through (iv) of this section), then the Council shall not assess the duplication fees.
(f)
(i) Requests such waiver or reduction of fees in writing and submits the written request to the Council together with or as part of the FOIA request, or at a later time consistent with § 1301.5(b)(7) to process the request; and
(ii) Demonstrates that the fee reduction or waiver request is in the public interest because:
(A) Furnishing the information is likely to contribute significantly to public understanding of the operations or activities of the government; and
(B) Furnishing the information is not primarily in the commercial interest of the requester.
(2) To determine whether the requester has satisfied the requirements of paragraph (f)(1)(ii)(A) of this section, the Council shall consider:
(i) The subject of the requested records must concern identifiable operations or activities of the Federal Government, with a connection that is direct and clear, not remote or attenuated;
(ii) The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding;
(iii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.
(iv) The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent.
(3) To determine whether the requester satisfies the requirement of paragraph (f)(1)(ii)(B) of this section, the Council shall consider:
(i) Any commercial interest of the requester (with reference to the definition of “commercial use” in § 1301.12(c)(2)(i)), or of any person on whose behalf the requester may be
(ii) Whether the public interest is greater in magnitude than that of any identified commercial interest in disclosure. The Council ordinarily shall presume that, if a news media requester satisfies the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the requirements for a waiver or reduction of fees, a waiver or reduction shall be granted for those records.
(5) Determination of request to reduce or waive fees: The Council shall notify the requester in writing regarding its determinations to reduce or waive fees.
(6) Effect of denying request to reduce or waive fees: If the Council denies a request to reduce or waive fees, then the Council shall advise the requester, in the denial notification letter, that the requester may incur fees as a result of processing the request. In the denial notification letter, the Council shall advise the requester that the Council will not proceed to process the request further unless the requester, in writing, directs the Council to do so and either agrees to pay any fees that may apply to processing the request or specifies an upper limit (of not less than $25) that the requester is willing to pay to process the request. If the Council does not receive this written direction and agreement/specification within thirty (30) days of the date of the denial notification letter, then the Council shall deem the FOIA request to be withdrawn.
(7) Appeals of denials of requests to reduce or waive fees: If the Council denies a request to reduce or waive fees, then the requester shall have the right to submit an appeal of the denial determination in accordance with § 1301.11. The Council shall communicate this appeal right as part of its written notification to the requester denying the fee reduction or waiver request. The requester shall clearly mark its appeal request and any envelope that encloses it with the words “Appeal for Fee Reduction/Waiver.”
(g)
(2) If the requester fails to state a limit and the costs are estimated to exceed $250, the requester shall be notified of the estimated costs, broken down by search, review and duplication fees, and must pay such amount prior to the processing of the request, or provide satisfactory assurance of full payment if the requester has a history of prompt payment of FOIA fees. Alternatively, the requester may reformulate the request in such a way as to constitute a request for responsive records at a reduced fee.
(3) The Council reserves the right to request advance payment after a request is processed and before records are released.
(4) If a requester previously has failed to pay a fee within thirty (30) calendar days of the date of the billing, the requester shall be required to pay the full amount owed plus any applicable interest, and to make an advance payment of the full amount of the estimated fee before the Council begins to process a new request or the pending request.
(5) When the Council acts under paragraphs (g)(1) through (4) of this section, the administrative time limits of twenty (20) days (excluding Saturdays, Sundays, and legal public holidays) from receipt of initial requests or appeals, plus extensions of these time limits, shall begin only after any applicable fees have been paid (in the case of paragraph (g)(2), (3), or (4)), a written agreement to pay fees has been provided (in the case of paragraph (g)(1)), or a request has been reformulated (in the case of paragraph (g)(1) or (2)).
(h)
(i)
(j)
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve the State Implementation Plan (SIP) submission, submitted by the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), on March 13, 2014, for inclusion into the Tennessee SIP. This final action pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO
This rule will be effective December 28, 2016
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2015–0154. All documents in the docket are listed on the
Michele Notarianni, 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. Ms. Notarianni can be reached via electronic mail at
On June 2, 2010, (75 FR 35520, June 22, 2010), EPA promulgated a revised primary SO
EPA is acting upon the SIP submission from Tennessee that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO
EPA received one set of comments on the March 10, 2016, proposed rulemaking to approve portions of Tennessee's 2010 1-hour SO
With regard to the requirement for emission limitations in section 110(a)(2)(A), EPA has interpreted this to mean, for purposes of infrastructure SIP submissions, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may elect to impose as part of such SIP submission. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013, (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to
The Commenter makes general allegations that Tennessee does not have sufficient protective measures to prevent SO
In
The decision in
At issue in
EPA does not believe any of these court decisions addressed required measures for infrastructure SIPs and believes nothing in the opinions addressed whether infrastructure SIP submissions must contain emission limitations or measures to ensure attainment and maintenance of the NAAQS.
Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that “Each plan must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.” The Commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . .” 51 FR 40656. Thus, the Commenter contends that “the provisions of 40 CFR 51.112 are not limited to nonattainment SIPs; the regulation instead applies to infrastructure SIPs, which are required to attain and maintain the NAAQS in all areas of a state, including those not designated nonattainment.”
Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “Part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SO
As discussed in the proposed rule, EPA finds that the Tennessee 2010 1-hour SO
The Commenter also cites to a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding the need for 1-hour SO
Further, the Commenter's citation to a prior EPA discussion on emission limitations required in PSD permits (from EPA's Environmental Appeals Board decision and EPA's letter to Kansas' permitting authority) pursuant to part C of the CAA is neither relevant nor applicable to infrastructure SIP submissions under CAA section 110. In addition, and as previously discussed, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to an attainment plan SIP submission required pursuant to part D attainment planning and is likewise not relevant to the analysis of infrastructure SIP requirements. As for the Commenter's evaluation of TDEC's position regarding averaging times, as described in Response 7, this action is not the appropriate context to address the adequacy of various averaging periods for the 2010 1-hour SO
Regarding the air dispersion modeling conducted by the Commenter pursuant to AERMOD for the TVA Allen and TVA Gallatin Power Plants, EPA is not in this action making a determination regarding the air quality status in the area where these EGUs are located, and is not evaluating whether emissions applicable to these EGUs are adequate to attain and maintain the NAAQS. Consequently, the EPA does not find the modeling information relevant for review of an infrastructure SIP for purposes of section 110(a)(2)(A). When additional areas in Tennessee are designated under the 2010 1-hour SO
In conclusion, EPA disagrees with the Commenter's statements that EPA must disapprove Tennessee's infrastructure SIP submission because it does not establish specific enforceable SO
EPA acknowledges the Commenter's concern for the interstate transport of air pollutants and agrees in general with the Commenter that sections 110(a)(1) and (a)(2) of the CAA generally require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses cross-state air pollution under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the Commenter's argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole.
EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve, or conditionally approve, individual elements of Tennessee's infrastructure SIP submissions for the 2010 1-hour SO
The Commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court's April 2014 decision in
EPA has no obligation at this time to issue a FIP pursuant to 110(c)(1) to address Tennessee's obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds Tennessee failed to make a required submission addressing the element or the State has made such a submission but it is incomplete, or EPA disapproves a SIP submission addressing that element. Until either occurs, EPA does not have the obligation to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the Commenter's contention that it must issue a FIP for Tennessee to address 110(a)(2)(D)(i)(I) for the 2010 1-hour SO
With the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is taking final action to approve Tennessee's infrastructure submission submitted on March 13, 2014, for the 2010 1-hour SO
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
• 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, 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 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.
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 January 27, 2017. 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, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
On September 14, 2015, the Environmental Protection Agency (EPA) proposed revisions to the federal Clean Water Act (CWA) human health criteria applicable to waters under the State of Washington's jurisdiction to ensure that the criteria are set at levels that will adequately protect Washington residents, including tribes with treaty-reserved rights, from exposure to toxic pollutants. EPA promulgated Washington's previous criteria for the protection of human health in 1992 as part of the National Toxics Rule (NTR) (amended in 1999 for Polychlorinated Biphenyls (PCBs)), using the Agency's recommended criteria values at the time. EPA derived those previously applicable criteria using a fish consumption rate (FCR) of 6.5 grams per day (g/day) based on national surveys. The best available data now demonstrate that fish consumers in Washington consume much more fish than 6.5 g/day. There are also new data and scientific information available to update the toxicity and exposure parameters used to calculate human health criteria. On August 1, 2016, the State of Washington adopted and submitted human health criteria for certain pollutants, reflecting some of these new data and information. Concurrent with this final rule, EPA is taking action under CWA 303(c) to approve in part, and disapprove in part, the human health criteria submitted by Washington. For those criteria that EPA disapproved, EPA is finalizing federal human health criteria in this final rule.
This final rule is effective on December 28, 2016.
EPA has established a docket for this action under Docket ID No. EPA–HQ–OW–2015–0174. All documents in the docket are listed on the
Erica Fleisig, Office of Water, Standards and Health Protection Division (4305T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 566–1057; email address:
This final rule is organized as follows:
Entities such as industries, stormwater management districts, or publicly owned treatment works (POTWs) that discharge pollutants to waters of the United States under the State of Washington's jurisdiction could be indirectly affected by this rulemaking, because federal water quality standards (WQS) promulgated by EPA are applicable to CWA regulatory programs, such as National Pollutant Discharge Elimination System (NPDES) permitting. Citizens concerned with water quality in Washington could also be interested in this rulemaking. Categories and entities that could potentially be affected include the following:
In developing this final rule, EPA carefully considered the public comments and feedback received from interested parties. EPA originally provided a 60-day public comment period after publishing the proposed rule in the
Over 60 organizations and individuals submitted comments on a range of issues. EPA also received over 400 letters from individuals associated with mass letter writing campaigns. Some comments addressed issues beyond the scope of the rulemaking, and thus EPA did not consider them in finalizing this rule. In each section of this preamble, EPA discusses certain public comments so that the public is aware of the Agency's position. For a full response to these and all other comments, see EPA's Response to Comments document in the official public docket.
CWA section 101(a)(2) establishes as a national goal “water quality which provides for the protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water, wherever attainable.” These are commonly referred to as the “fishable/swimmable” goals of the CWA. EPA
CWA section 303(c) (33 U.S.C. 1313(c)) directs states to adopt WQS for their waters subject to the CWA. CWA section 303(c)(2)(A) and EPA's implementing regulations at 40 CFR part 131 require, among other things, that a state's WQS specify appropriate designated uses of the waters, and water quality criteria that protect those uses. EPA's regulations at 40 CFR 131.11(a)(1) provide that “[s]uch criteria must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use. For waters with multiple use designations, the criteria shall support the most sensitive use.” In addition, 40 CFR 131.10(b) provides that “[i]n designating uses of a water body and the appropriate criteria for those uses, the state shall take into consideration the water quality standards of downstream waters and ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters.”
States are required to review applicable WQS at least once every three years and, if appropriate, revise or adopt new standards (CWA section 303(c)(1)). Any new or revised WQS must be submitted to EPA for review and approval or disapproval (CWA section 303(c)(2)(A) and (c)(3)). If EPA disapproves a state's new or revised WQS, the CWA provides the state 90 days to adopt a revised WQS that meets CWA requirements, and if it fails to do so, EPA shall promptly propose and then within 90 days promulgate such standard unless EPA approves a state replacement WQS first (CWA section 303(c)(3) and (c)(4)(A)). CWA section 303(c)(4)(B) authorizes the Administrator to determine that a new or revised standard is needed to meet CWA requirements. Upon making such a determination, the CWA specifies that EPA shall promptly propose, and then within 90 days promulgate, any such new or revised standard unless prior to such promulgation, the state has adopted a revised or new WQS that EPA determines to be in accordance with the CWA.
Under CWA section 304(a), EPA periodically publishes criteria recommendations for states to consider when adopting water quality criteria for particular pollutants to protect the CWA section 101(a)(2) goal uses. In 2015, EPA updated its 304(a) recommended criteria for human health for 94 pollutants.
In 1992, EPA promulgated the NTR at 40 CFR 131.36, establishing chemical-specific numeric criteria for 85 priority toxic pollutants for 14 states and territories (states), including Washington, that were not in compliance with the requirements of CWA section 303(c)(2)(B). When states covered by the NTR subsequently adopted their own criteria for toxic pollutants that EPA approved as consistent with the CWA and EPA's implementing regulations, EPA amended the NTR to remove those criteria for those states.
On September 14, 2015, EPA made a CWA 303(c)(4)(B) determination that new or revised WQS for the protection of human health in Washington were necessary to meet the requirements of the CWA, and proposed revised human health criteria for the state (see 80 FR 55063). At that time, Washington had not yet adopted its own criteria for the protection of human health.
Several commenters provided comments on the timing of EPA's rule, and the relationship between EPA's federal rulemaking and the state rulemaking process. These comments are now, for the most part, mooted by EPA's finalization of its federal rule and action on the state's submittal. For additional responses to specific comments, see EPA's Response to Comment document in the docket for this rule.
Human health criteria are designed to minimize the risk of adverse cancer and non-cancer effects occurring from lifetime exposure to pollutants through the ingestion of drinking water and consumption of fish and shellfish obtained from inland and nearshore waters (by nearshore waters, EPA refers to waters out to three miles from the coast). EPA's practice is to establish a human health 304(a) recommended criterion for both drinking water and consumption of fish and shellfish from inland and nearshore waters combined, and a separate human health criterion based only on ingestion of fish and shellfish from inland and nearshore waters. This latter criterion applies in cases where the designated uses of a waterbody include supporting fish and shellfish for human consumption but not drinking water supply sources (
The criteria are based on two types of biological endpoints: (1) Carcinogenicity and (2) systemic toxicity (
EPA's 304(a) national recommended human health criteria are typically based on the assumption that carcinogenicity is a “non-threshold phenomenon,” which means that there are no “no-effect” levels, because even extremely small doses are assumed to cause a finite increase in the incidence of cancer. Therefore, EPA calculates 304(a) human health criteria for carcinogenic effects as pollutant concentrations corresponding to lifetime increases in the risk of developing cancer.
If the pollutant is not considered to have the potential for causing cancer in humans (
A dose-response assessment is required to understand the quantitative relationships between exposure to a pollutant and the onset of human health effects. EPA evaluates dose-response relationships derived from animal toxicity and human epidemiological studies to derive dose-response metrics. For carcinogenic toxicological effects, EPA uses an oral CSF to derive human health criteria. The oral CSF is an upper bound, approximating a 95 percent confidence limit, on the increased cancer risk from a lifetime oral exposure to a stressor. For non-carcinogenic effects, EPA uses the RfD to calculate human health criteria. A RfD is an estimate of a daily oral exposure of an individual to a substance that is likely to be without an appreciable risk of deleterious effects during a lifetime. A RfD is typically derived from a laboratory animal dosing study in which a no-observed-adverse-effect level (NOAEL), lowest-observed-adverse-effect level (LOAEL), or benchmark dose can be obtained. Uncertainty factors are applied to reflect the limitations of the data. EPA's Integrated Risk Information System (IRIS)
EPA's latest 304(a) national human health criteria use a default drinking water intake rate of 2.4 liters per day (L/day) and default rate of 22 g/day for consumption of fish and shellfish from inland and nearshore waters, multiplied by pollutant-specific bioaccumulation factors (BAFs) to account for the amount of the pollutant in the edible portions of the ingested species. EPA's 2000 Methodology for deriving human health criteria emphasizes using, when possible, measured or estimated BAFs, which account for chemical accumulation in aquatic organisms from all potential exposure routes.
EPA's national default drinking water intake rate of 2.4 L/day represents the per capita estimate of combined direct and indirect community water ingestion at the 90th percentile for adults ages 21 and older.
Although EPA uses these default values to calculate national 304(a) recommended human health criteria, EPA's 2000 Methodology notes a preference for the use of local data to calculate human health criteria (
When deriving human health criteria for non-carcinogens and nonlinear carcinogens, EPA recommends including a RSC factor to account for sources of exposure other than drinking water and fish and shellfish from inland and nearshore waters, so that the pollutant effect threshold (
In 1992, EPA did not establish human health criteria in the NTR for some priority toxic pollutants because, as stated in the preamble to the final rule at 57 FR 60848, December 22, 1992, EPA had no 304(a) recommendations for those pollutants at the time. EPA now has 304(a) recommendations for 99 priority toxic pollutants listed pursuant to CWA section 307(a)(1) (85 for which EPA established criteria in the NTR, plus 14 additional pollutants).
After consideration of all comments received on EPA's proposed rule, and EPA's CWA 303(c) action on Washington's submittal, EPA is finalizing 144 new and revised Washington-specific criteria for priority toxic pollutants in this rule. For arsenic, dioxin and thallium, EPA is not revising Washington's existing criteria from the NTR at this time, as explained below and in EPA's Response to Comments document in the docket for the final rule. For those priority pollutants for which EPA does not have 304(a) national recommended criteria, and are therefore not included in Washington's submittal or this final rule, EPA expects that Washington will continue to apply its existing narrative toxics criterion in the state's WQS at WAC 173–201A–260(2)(a).
Several commenters raised concerns about the scientific defensibility of EPA's proposed human health criteria for arsenic, and one commenter raised similar concerns about EPA's proposed criteria for 2,3,7,8–TCDD (dioxin). Additionally, after EPA proposed revised human health criteria for thallium in Washington, EPA further evaluated the scientific uncertainty around the appropriate RfD for thallium. EPA carefully considered all of these comments and information regarding these three pollutants, along with the comments that articulated it is important for Washington to have protective numeric criteria in place for priority toxic pollutants such as arsenic and dioxin. Given the scientific uncertainty regarding aspects of the science upon which the proposed human health criteria for arsenic, dioxin, and thallium were based, EPA is withdrawing its proposal of revised criteria for these three pollutants at this time and leaving the existing criteria from the NTR in effect for CWA purposes.
This rule revises the criteria that EPA promulgated for Washington in the NTR (with the exception of criteria for arsenic, dioxin, and thallium, and criteria that EPA approved in Washington's August 1, 2016 submittal), and establishes new human health criteria for 8 additional chemicals for which EPA now has 304(a) recommended criteria (and for which EPA did not approve Washington's submitted criteria): Selenium, Zinc, 1,2-Trans-Dichloroethylene, Acenaphthene, Butylbenzyl Phthalate, 2-Chloronaphthalene, 1,1,1-Trichloroethane, and 1,2,4-Trichlorobenzene. In 2001, EPA
A few commenters expressed concern that Washington would not have the data or implementation guidance to properly implement a fish tissue criterion for methylmercury, and requested that EPA leave the NTR total mercury criteria in effect in Washington. The fish tissue methylmercury criterion reflects EPA's 2000 Methodology, the best available science, and supersedes all previous 304(a) human health mercury criteria recommendations published by EPA (except for the waters of the Great Lakes System), including the 304(a) recommended criteria that served as the basis for the total mercury criteria that EPA promulgated for Washington in the NTR. EPA recommends a fish tissue water quality criterion for methylmercury for many reasons. A fish tissue water quality criterion integrates spatial and temporal complexity that occurs in aquatic systems and affects methylmercury bioaccumulation. For this pollutant, a fish tissue criterion is more closely tied to the goal of protecting human health because it is based directly on the dominant human exposure route for methylmercury in the U.S., which is consumption of fish and shellfish. The concentration of methylmercury is also generally easier to quantify in fish tissue than in water and is less variable in fish and shellfish tissue over the time periods in which WQS are typically implemented in water quality-based controls, such as NPDES permits. Finally, fish consumption advisories for mercury are also based on the amount of methylmercury in fish tissue.
This final rule does not change or supersede any criteria that EPA previously promulgated for other states in the NTR, nor does it change any other elements of the NTR such as EPA's original basis for promulgation. For clarity in organization, EPA is withdrawing Washington from the NTR at 40 CFR 131.36 and incorporating the Washington-specific criteria in this rule (as well as the existing NTR criteria for arsenic, dioxin and thallium) into 40 CFR 131.45 so there is a single comprehensive set of federally promulgated criteria for Washington.
This rule applies to waters under the State of Washington's jurisdiction, and not to waters within Indian country,
Under the Supremacy Clause of the U.S. Constitution, federal treaties have the same legal force as federal statutes.
In determining whether WQS satisfy the CWA and EPA's regulations, and when setting criteria for the protection of human health, it is necessary to consider other applicable laws, such as federal treaties (
The majority of waters under the jurisdiction of the State of Washington are subject to federal treaties with tribes.
The parties to the treaties all recognized the importance of the fishing right for the tribes' subsistence, ceremonial, as well as commercial purposes.
At the treaty negotiations, a primary concern of the tribes, whose way of life was so heavily dependent upon harvesting anadromous fish, was that they have freedom to move about to gather food, particularly salmon, . . . at their usual and accustomed fishing places. . . . Subsequent to the execution of the treaties and in reliance thereon, the members of the [treaty tribes with reserved fishing rights in Washington] have continued to fish for subsistence, sport, and commercial purposes at their usual and accustomed places. Such fishing provided and still provides an important part of their livelihood, subsistence and cultural identity. The Indian cultural identification with fishing is primarily dietary, related to the subsistence fishery, and secondarily associated with religious ceremonies and commercial fishing.
Relevant case law, including Supreme Court precedents, unequivocally confirms that the treaty-reserved right to take fish includes the right to take fish for subsistence purposes.
As explained above, the Stevens-Palmer Treaties provide tribes the right to exercise subsistence fishing practices on waters throughout the State of Washington. EPA concludes that the purpose for which tribes reserved such fishing rights through treaties with the U.S. has important implications for water quality regulation under the CWA. Fundamentally, the tribes' ability to take fish for their subsistence purposes under the treaties would be substantially affected or impaired if it were not supported by water quality sufficient under the CWA to ensure that tribal members can safely eat the fish for their own subsistence.
Many areas where treaty-reserved fishing rights are exercised cannot be directly protected or regulated by tribal governments to ensure adequate water quality, and therefore the responsibility falls to the federal government (and the states) to ensure their protection. It is therefore appropriate and necessary for EPA (and states) to consider the tribal reserved rights within the framework of the CWA, to ensure water quality protection for treaty-reserved subsistence fishing rights. EPA's consideration of treaty-reserved fishing rights within the framework of the CWA leads to the conclusion, as described below, that the human health fishing uses for waters in Washington include subsistence fishing, as informed by the tribes' legally protected right to continue to take fish for subsistence purposes.
Consistent with EPA's September 14, 2015 proposed rule for Washington, in order to effectuate and harmonize treaty-reserved fishing rights with the CWA, EPA has determined that such rights must be appropriately considered when determining which criteria are sufficient to adequately protect Washington's designated uses. Looking at the treaty-reserved subsistence fishing right within the CWA water quality framework, the first step is to examine the use of the water(s) in question. The CWA generally assigns to a state the responsibility of determining the designated uses of its waters (subject to certain restrictions at 40 CFR 131.10),
Developing criteria to protect the fish and shellfish harvesting use, which includes subsistence fishing as informed by reserved fishing rights, necessarily involves identifying tribal members with reserved fishing rights as the target population for protection. EPA's conclusion to identify tribes as the target population is based on EPA's CWA implementing regulations requiring criteria to support the most sensitive use (
Per EPA's regulations at 40 CFR 131.11(a)(1), water quality criteria must contain sufficient parameters or constituents to protect the designated use, and for waters with multiple uses, the criteria must support the most sensitive use. In the case of Washington's human health-related uses, the most sensitive use is fish and shellfish harvesting, which, as explained above, EPA has interpreted to include or encompass a subsistence fishing component based on, and consistent with, the rights reserved to the tribes through the treaties. Developing water quality criteria to protect the subsistence fishing component of the fish or shellfish harvesting use necessarily involves identifying the population exercising that use.
EPA's decision to identify tribes as the target population is further supported by EPA guidance for developing water quality criteria to protect human health. As explained in EPA's 2000 Methodology, the choice of the particular population to protect is an important decision to make when setting human health criteria.
EPA recommends that priority be given to identifying and adequately protecting the most highly exposed population. Thus, if the State or Tribe determines that a highly exposed population is at greater risk and would not be adequately protected by criteria based on the general population, and by the national 304(a) criteria in particular, EPA recommends that the State or Tribe adopt more stringent criteria using alternative exposure assumptions.
EPA's approach in the 2000 Methodology, and its approach used for deriving national 304(a) recommended criteria, is for human health water quality criteria to provide a high level of protection for the general population (for example, FCRs designed to represent “the general population of fish consumers,” or a cancer risk level that “reflects an appropriate risk for the general population”), while recognizing that more highly exposed “subpopulations” may face greater levels of risk.
In light of the presence of the treaty-reserved fishing rights in Washington, interpreted by the U.S. Supreme Court to encompass, among other things, subsistence fishing, and EPA's interpretation of Washington's fish and shellfish harvesting use to include subsistence fishing, it is reasonable and appropriate to require that tribes with such rights be considered as the target general population for deriving criteria protective of the use rather than a sensitive subpopulation within the overall population of Washington. Treating tribes as the target general population will help derive water quality criteria sufficient under the CWA to ensure that the tribes' treaty-reserved right to take fish for subsistence purposes is not substantially affected or impaired. Therefore, the 2000 Methodology's recommendations on exposure for the target general population can be applied accordingly. EPA's conclusion to treat tribes as the target general population, as opposed to a subpopulation, is further supported by relevant case law interpreting the treaty-reserved fishing rights applicable in Washington; specifically the phrase “in common with all citizens of the territory.”
Treating tribes as the target population instead of a sensitive subpopulation also impacts another important input parameter used to derive human health criteria, the cancer risk level. For carcinogenic pollutants, EPA's 2000 Methodology recommends that states protect the general population to a level of incremental cancer risk no greater than one in one hundred thousand to one in one million (1 × 10
The data used to determine the FCR are critical to deriving criteria that will protect the subsistence fishing portion of the fish and shellfish harvesting designated use. EPA provides a recommended national default FCR for the general population but strongly recommends the use of local or regional data, where available, over default values.
CWA section 303(c)(2)(A) requires that water quality criteria be “based upon” applicable designated uses, and that such uses and criteria “shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this [Act].” The “purposes of this [Act]” are in section 101, and include, among other things, “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters” and “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” EPA's implementing water quality regulations at 40 CFR 131.11 require water quality criteria to be based on sound scientific rationale and sufficient to protect the designated use, regardless of whether that use is currently being met. A subsistence fishing designated use, by definition, represents a level of fish consumption that is adequate to provide subsistence, regardless of whether such consumption is occurring today. It is entirely consistent with the CWA and regulations for EPA to determine that to protect the designated use, it is necessary and appropriate to derive the human health criteria using a fish consumption rate that reflects a subsistence level of consumption that is not artificially suppressed as a result of concerns about pollution or fish contamination where such data are available.
Any fish consumption rate used in setting criteria to protect a subsistence fishing use must allow for the consumption of fish from local waters at levels that could sustain and be protective of members of the target population practicing a subsistence lifestyle. Water quality criteria derived
The importance of relying on an unsuppressed FCR, where data are available, is especially evident where the subsistence use is based in whole or in part on tribal treaty and other reserved subsistence fishing rights. This is because if human health criteria are set at a level that assumes only suppressed fish consumption, the waters will only be protected to support that level of suppressed fish consumption and thus never fully support—and potentially even may directly impair—the tribes' legal right to take fish for subsistence purposes. Accordingly, where adequate data are available to clearly demonstrate what the current unsuppressed FCR is for the relevant target population, the selected FCR must reflect that value. In the absence of such data, states, tribes, and EPA could consider upper percentile FCRs of local contemporary fish consumption surveys (such as the 95th or 99th percentile), heritage FCR data for the target population, and/or FCRs that provide for a subsistence fishing lifestyle. Consultation with tribes is important to ensure that all data and information relevant to this issue are considered.
Although treaties do not cover all waters in Washington, they cover the vast majority of the state's waters. Additionally, where treaty and non-treaty reserved rights apply on waters downstream of waters without reserved fishing rights, upstream WQS must provide for the attainment and maintenance of downstream WQS in accordance with EPA's regulations at 40 CFR 131.10(b). Based on a GIS analysis included in the docket for this final rulemaking, EPA concluded that greater than 90 percent of waters in Washington are covered by treaty rights and/or are upstream of waters with such rights or waters in Oregon (see section III.C.a). For any remaining waters in Washington, where reserved rights do not apply and that are not upstream of waters with such rights or waters in Oregon, it would be administratively burdensome to develop separate criteria to apply to such a small subset of waters, and would be difficult to implement separate criteria with a patchwork of protection among these areas when administering the WQS, NPDES permitting, and other programs. Therefore, EPA applies these final criteria to all waters under Washington's jurisdiction.
Many commenters supported EPA's decisions to derive criteria protective of the tribal population exercising their treaty-reserved fishing rights in Washington as the target general population, and to apply the resulting criteria to all waters under Washington's jurisdiction. Many other commenters did not support these decisions, and argued that EPA did not have a scientific or legal basis to interpret Washington's designated uses to encompass subsistence fishing and to treat the tribal population with treaty-reserved fishing rights as the target general population for protection under such use. For additional responses to these comments, see EPA's Response to Comment document in the docket for this rule.
In Washington there are 24 tribes with treaty-reserved fishing rights, rights that encompass the right to fish for subsistence purposes, and several local and regional FCR surveys and heritage tribal consumption reports with widely varying estimates of tribal FCRs in Washington (for tables of relevant FCRs, see EPA's Response to Comment document in the docket for this rule). Available heritage FCRs range from 401 to 995 g/day, and contemporary survey FCRs range from 63 to 214 g/day (mean FCRs) and from 113 to 489 g/day (90th percentile FCRs). The discrepancy between contemporary and heritage FCRs suggests that current FCRs for certain tribal consumers in Washington may be suppressed.
The Washington tribes have generally agreed that 175 g/day is acceptable for deriving protective criteria at this time, when accompanied by other protective input parameters to calculate the criteria. However, EPA recognizes that some tribes have raised concerns as to whether a FCR of 175 g/day reasonably reflects current unsuppressed consumption rates of tribes within the State of Washington, based on the best currently available information. A FCR of 175 g/day approximates the 95th percentile consumption rate of surveyed tribal members from the CRITFC study
Additionally, Oregon, much of which is downstream from Washington (or cross-stream in the Columbia River where it forms the border between the two states), used a FCR of 175 g/day to derive statewide human health criteria, which EPA approved in 2011. Use of this FCR to derive Washington's criteria will thus help ensure the attainment and maintenance of downstream WQS in Oregon.
Many commenters supported EPA's selected FCR, as well as the Agency's position that it is important to consider suppression effects on the FCR in general, and necessary and appropriate to do so where subsistence fishing is a reserved right and encompassed by the designated use of the waters. Some
EPA derives final human health criteria for carcinogens in Washington using a cancer risk level of one in one million (10
To derive final human health criteria for each state in the NTR, EPA selected a cancer risk level based on each state's policy or practice regarding what risk level should be used when regulating carcinogens in surface waters. In its official comments on EPA's proposed NTR in 1992, Washington asked EPA to promulgate human health criteria using a cancer risk level of 10
Subsequent to promulgating the NTR, EPA issued its 2000 Methodology, which states that when promulgating water quality criteria for states and tribes, EPA intends to use the 10
In addition, use of a cancer risk rate of 10
Finally, as discussed in section III.C.a, many of Washington's rivers are in the Columbia River Basin, upstream of Oregon's portion of the Columbia River. Oregon's criteria are based on a FCR of 175 g/day and a cancer risk level of 10
Many commenters supported EPA's selection of a 10
EPA recommends using a RSC for non-carcinogens and nonlinear carcinogens to account for sources of exposure other than drinking water and consumption of inland and nearshore fish and shellfish (see section II.C.d). In 2015, after evaluating information on chemical uses, properties, occurrences, releases to the environment and regulatory restrictions, EPA developed chemical-specific RSCs for non-carcinogens and nonlinear carcinogens ranging from 0.2 (20 percent) to 0.8 (80 percent) following the Exposure Decision Tree approach described in EPA's 2000 Methodology.
Several commenters supported EPA's use of RSCs to account for other sources of pollutant exposure. Several others disagreed, arguing that water quality criteria under the CWA cannot control or consider sources of exposure other than from drinking water and eating fish and shellfish, so human health criteria should not account for these sources. Many of the commenters, in addition to criticizing the concept of RSCs as overly-conservative, argued that EPA was double-counting exposure to anadromous fish (which EPA considers marine in the national dataset) by both including them in the FCR and using the pollutant-specific RSCs that EPA pairs with an inland and nearshore-only
Additionally, after further evaluation of the proposed revised human health criteria for antimony, EPA determined that the existing 304(a) national recommended criteria for antimony (last updated in 2002) use a pollutant-specific RSC of 0.4. EPA intended to apply a 0.2 RSC as a protective approach only where pollutant-specific RSCs were not already developed, which is not the case for antimony.
While the selected FCR of 175 g/day does not include all marine fish (
One way to adjust the RSC values to account for inclusion of marine fish in the FCR is to examine the ratio of the national data characterizing all fish consumption rates versus inland and nearshore-only fish consumption rates derived from the NHANES dataset, and apply this ratio to the proportion of the RfD reserved for inland and nearshore fish consumption in the RSC. This approach assumes that the pollutant concentrations in anadromous fish are the same as the pollutant concentrations in inland and nearshore fish, which is the same assumption inherent in including multiple fish categories in the FCR for criteria calculation. This approach further assumes that the ratio of all fish to inland and nearshore fish from NHANES data approximates the ratio of inland, nearshore, and anadromous fish to just inland and nearshore fish from CRITFC data. At the 90th percentile rate of consumption, the national adult consumption rate from NHANES data for all fish is 53 g/day and 22 g/day for inland and nearshore-only fish, or a ratio of 2.4. Applying this to a RSC of 0.2 yields 0.48, or 0.5 rounding to a single decimal place. Because the selected FCR includes some but not all marine species, EPA decided to use this approach to adjust the RSC values. However, EPA only adjusted RSC values to 0.5 for criteria calculations previously using a RSC between 0.2 and 0.5.
There are important considerations in assigning a RSC, such as the total number of potential exposure routes from sources other than fish consumption, which compels caution in using this approach in all cases. As such, EPA decided to retain RSC values of 0.5 and above, recognizing the compelling need to account for the other potential exposure sources, including marine fish not accounted for in the FCR of 175 g/day, consistent with the logic and procedures used in establishing the national 304(a) criteria recommendations. The Exposure Decision Tree in EPA's 2000 Methodology only recommends using a RSC above 0.5 when there are no significant known or potential uses/sources other than the source of concern (Box 7, Figure 4–1 in EPA's 2000 Methodology) or there are sufficient data available on each source to characterize the exposure to those sources (Box 8C, Figure 4–1). Neither of these conditions are met for most of the pollutants in the final rule for Washington. EPA is not adjusting the RSCs for pollutants that already have national recommended RSCs greater than or equal to 0.5 (2–Chloronaphthalene (0.8), Endrin (0.8), gamma-BHC/Lindane (0.5), and methylmercury (2.7 × 10
EPA calculates final human health criteria for Washington using a body weight of 80 kg, which represents the average weight of a U.S. adult and is consistent with EPA's 2015 updated national default body weight (see section II.C.c).
EPA calculates final human health criteria for Washington using a drinking water intake rate of 2.4 L/day, consistent with EPA's 2015 updated national default drinking water intake rate (see section II.C.c).
As part of EPA's 2015 updates to its 304(a) recommended human health criteria, EPA conducted a systematic search of eight peer-reviewed, publicly available sources to obtain the most current toxicity values for each pollutant (RfDs for non-carcinogenic effects and CSFs for carcinogenic effects).
In general, commenters were supportive of EPA using the latest and most scientifically defensible toxicity values to derive human health criteria for Washington. Some commenters expressed concern that where EPA did not update its 304(a) national recommended human health criteria for particular pollutants in 2015, the toxicity values from the existing 304(a) criteria for those pollutants were no longer valid. In particular, those commenters expressed concern about the CSFs for arsenic and PCBs, and the RfD for methylmercury, and argued that EPA should not revise Washington's criteria for those pollutants until toxicity factors are updated in the future. Unlike the situation with the toxicity factors for arsenic, dioxin and thallium (see section III.A), there is not sufficient scientific uncertainty surrounding the CSF for PCBs or the RfD for methylmercury to warrant delaying revision to Washington's human health criteria for these pollutants. For detailed responses to the comments, see EPA's Response to Comment document in the docket for this rule.
For the 2015 national 304(a) human health criteria update, EPA estimated chemical-specific BAFs using a framework for deriving national BAFs described in EPA's 2000 Methodology.
Many commenters supported EPA's choice to use the latest and most scientifically defensible BAFs to derive human health criteria for Washington, and to use BCFs only when BAFs were not available for a given pollutant. Other commenters asserted that BCFs are no less scientifically defensible than BAFs, and that EPA did not provide sufficient information regarding how it developed BAFs in 2015 for commenters to fully evaluate EPA's proposed approach.
EPA's 2000 Methodology recommends use of BAFs that account for uptake of a contaminant from all sources by fish and shellfish, rather than BCFs that only account for uptake from the water column. EPA's 2015 national recommended BAFs are based on peer-reviewed, publicly available data and were developed consistent with EPA's 2000 Methodology and its supporting documents. EPA provided the basis for its 2015 BAFs in individual pollutant-specific criteria documents. The final human health criteria for Washington are consistent with EPA's 2000 Methodology, which makes clear that BAFs are a more scientifically defensible representation of bioaccumulation than BCFs. For detailed responses to the comments, see EPA's Response to Comment document in the docket for this rule.
EPA finalizes 144 human health criteria for 74 different pollutants (72 organism-only criteria and 72 water-plus-organism criteria) to protect the applicable designated uses of Washington's waters (see Table 1). The water-plus-organism criteria in column C1 and the methylmercury criterion in column C2 of Table 1 are the applicable criteria for any waters that include the Domestic Water (domestic water supply) use defined in Washington's WQS (WAC 173–201A–600). The organism-only criteria in column C2 of Table 1 apply to waters that do not include the Domestic Water (domestic water supply) use and that Washington defines at WAC 173–201A–600 and 173–201A–610 as the following: Fresh waters—Harvesting (fish harvesting), and Recreational Uses; Marine waters—Shellfish Harvesting (shellfish—clam, oyster, and mussel—harvesting), Harvesting (salmonid and other fish
These new and revised human health criteria apply for CWA purposes in addition to any existing criteria already applicable to Washington's waters, including the state's narrative toxics criteria statement at WAC 173–201A–260(2)(a), and those human health criteria that Washington submitted on August 1, 2016, and EPA approved concurrent with this final rule.
EPA replicates in 40 CFR 131.45 the same general rules of applicability for human health criteria as in 40 CFR 131.36(c), with one exception. For waters suitable for the establishment of low flow return frequencies (
Under the CWA, Congress gave states primary responsibility for developing and adopting WQS for their navigable waters (CWA section 303(a)-(c)). Although EPA revises and establishes new human health criteria for Washington in this final rule, Washington continues to have the option to adopt and submit to EPA human health criteria for the pollutants in this final rule, consistent with CWA section 303(c) and EPA's implementing regulations at 40 CFR part 131.
In its September 14, 2015 proposed rule, EPA proposed that if Washington adopted and submitted human health criteria, and EPA approved those criteria before finalizing its federal rule, EPA would not proceed with finalizing those criteria and Washington's approved criteria would be solely applicable for CWA purposes. EPA did not receive any comments opposing this provision, thus EPA is proceeding with such an approach. In this final rule, EPA is withdrawing Washington from the NTR at 40 CFR 131.36, and, with the exception of criteria for which EPA has approved Washington's criteria, EPA is incorporating the Washington-specific criteria in this rule (as well as the existing NTR criteria for arsenic, dioxin
Additionally, in its September 14, 2015 proposed rule, EPA proposed that if Washington adopted and submitted human health criteria after EPA finalized its rule, once EPA approved Washington's WQS, the pollutant-specific or site-specific EPA-approved criteria in Washington's WQS would become the solely effective criteria for CWA purposes and EPA's promulgated criteria for those pollutants or for that site would no longer apply. A few commenters supported this provision, where Washington's criteria for specific pollutants or sites become the only CWA-effective criteria upon EPA's approval, without any delay caused by EPA's withdrawal of the corresponding federal criteria. A few other commenters did not support this provision, and asked that EPA either delete the provision, or make clear that criteria adopted by the state would have to be at least as stringent as the federal criteria for EPA to approve and make the state criteria effective for CWA purposes. Upon further consideration of comments received on its proposed rule, EPA decided not to finalize this provision. Pursuant to 40 CFR 131.21(c), EPA's federally promulgated WQS are and will be applicable for purposes of the CWA until EPA withdraws those federally promulgated WQS. EPA would undertake such a rulemaking to withdraw the federal criteria if and when Washington adopts and EPA approves corresponding criteria that meet the requirements of section 303(c) of the CWA and EPA's implementing regulations at 40 CFR part 131.
Washington has considerable discretion to implement these revised and new federal human health criteria through various water quality control programs including the NPDES program, which limits discharges to waters except in compliance with a NPDES permit. EPA's regulations at 40 CFR 131.14 authorize states and authorized tribes to adopt WQS variances to provide time to achieve the applicable WQS. 40 CFR part 131 defines WQS variances at 131.3(o) as time-limited designated uses and supporting criteria for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable conditions during the term of the WQS variances. WQS variances adopted in accordance with 40 CFR part 131 allow states and authorized tribes to address water quality challenges in a transparent and predictable way. Variances help states and authorized tribes focus on making incremental progress in improving water quality, rather than pursuing a downgrade of the underlying water quality goals through a designated use change, when the designated use is not attainable throughout the term of the variance due to one of the factors listed in 40 CFR 131.14. EPA's regulations at 40 CFR 122.47 provide the requirements when states and authorized tribes wish to include permit compliance schedules in their NPDES permits if dischargers need additional time to meet their water quality-based limits based on the applicable WQS. EPA's updated regulations at 40 CFR 131.15 require any state or authorized tribe wishing to use permit compliance schedules to also include provisions authorizing the use of permit compliance schedules after appropriate public involvement to ensure that a decision to allow permit compliance schedules derives from and complies with the applicable WQS. (80 FR 51022, August 21, 2015).
40 CFR 131.10 specifies how states and authorized tribes establish, modify or remove designated uses for their waters. 40 CFR 131.11 specifies the requirements for establishing criteria to protect designated uses, including criteria modified to reflect site-specific conditions. In the context of this rulemaking, a site-specific criterion (SSC) is an alternative value to the federal human health criteria that could be applied on a watershed, area-wide, or waterbody-specific basis that meets the regulatory test of protecting the designated use, being scientifically defensible, and ensuring the protection and maintenance of downstream WQS. A SSC may be more or less stringent than the otherwise applicable federal criterion. A SSC may be appropriate when further scientific data and analyses can bring added precision to express the concentration of a particular pollutant that protects the human health-related designated use in a particular waterbody.
A few commenters supported EPA's acknowledgement of the flexibilities that Washington has available when implementing the final criteria in this rule, while others commented that these tools allow Washington to delay or avoid implementing the criteria. EPA did not propose to change, nor does this final rule change, any of the flexibilities already afforded to Washington by EPA's regulations to modify or remove designated uses, adopt variances, issue compliance schedules, or establish site-specific criteria. These implementation tools are important for making incremental progress and allowing the time for adaptive management when designated uses and associated criteria are difficult to attain. Washington may continue to use any of these regulatory flexibilities when implementing the final federal human health criteria.
EPA's final human health criteria apply to waters that Washington has designated for the following: Fresh waters—Harvesting (fish harvesting), Domestic Water (domestic water supply), and Recreational Uses; Marine waters—Shellfish Harvesting (shellfish—clam, oyster, and mussel—harvesting), Harvesting (salmonid and other fish harvesting, and crustacean and other shellfish—crabs, shrimp, scallops, etc.—harvesting), and Recreational Uses (see WAC 173–201A–600 and WAC 173–201A–610). If Washington removes the Domestic Water use but retains any of the other above designated uses for any particular waterbody affected by this final rule, and EPA finds that removal to be consistent with CWA section 303(c) and EPA's implementing regulations at 40 CFR part 131, then the federal organism-only criteria will apply in place of the federal water-plus-organism criteria. If Washington removes designated uses such that none of the above uses apply to any particular waterbody affected by this final rule and adopts the highest attainable use, as defined by 40 CFR 131.3(m), consistent with 40 CFR 131.10(g), and EPA finds that removal to be consistent with CWA section 303(c) and EPA's implementing regulations at 40 CFR part 131, then the federal human health criteria will no longer apply to that waterbody. Instead, any criteria associated with the newly designated highest attainable use would apply to that waterbody.
EPA's final human health criteria apply to use designations that Washington has already established. Concurrent with this final rule, EPA approved revisions to Washington's variance and compliance schedule authorizing provisions. Washington may use its EPA-approved variance procedures (see WAC 173–201A–420) to establish time-limited designated uses and criteria to apply for the purposes specified in 40 CFR 131.14 as it pertains
As discussed in section III.E, if Washington adopts and EPA approves site-specific criteria that fully meet the requirements of section 303(c) of the CWA and EPA's implementing regulations at 40 CFR part 131, EPA will undertake a rulemaking to withdraw the corresponding federal criteria.
Under the CWA, water quality criteria are set on the basis of the latest scientific knowledge. EPA is not required under the CWA nor obligated under Executive Orders 12866 and 13563 to conduct an economic analysis of the criteria. Costs cannot be considered in establishing water quality criteria as part of WQS. Nonetheless, EPA conducted a cost analysis for the criteria in this final rule for the purpose of transparency and presents this information reflecting the potential economic effects of the rule.
These WQS may serve as a basis for development of NPDES permit limits. Washington has NPDES permitting authority, and retains considerable discretion in implementing standards. EPA evaluated the potential costs to NPDES dischargers associated with state implementation of EPA's final criteria. This analysis is documented in
Any NPDES-permitted facility that discharges pollutants for which the revised human health criteria are more stringent than the applicable aquatic life criteria (or for which human health criteria are the only applicable criteria) could potentially incur compliance costs. The types of affected facilities could include industrial facilities and POTWs discharging wastewater to surface waters (
EPA identified 406 point source facilities that could ultimately be affected by this final rule. Of these potentially affected facilities, 73 are major dischargers and 333 are minor dischargers. EPA did not include general permit facilities in its analysis because data for such facilities are limited, and flows are usually negligible. Of the potentially affected facilities, EPA evaluated a sample of 17 major facilities. Minor facilities are unlikely to incur costs as a result of implementation of the rule, because minor facilities are typically those that do not discharge toxics in toxic amounts and discharge less than 1 million gallons per day (mgd). Although lower human health criteria could potentially change this categorization, EPA did not have effluent data on toxic pollutants to evaluate minor facilities for this analysis. Table 2 summarizes these potentially affected facilities by type and category.
EPA evaluated the two major municipal facilities with design flows greater than 100 mgd and a large industrial refinery, to attempt to capture the facilities with the potential for the largest costs. For the remaining major facilities, EPA evaluated a random sample of facilities to represent discharger type and category. For all sample facilities, EPA evaluated existing baseline permit conditions, reasonable potential to exceed human health criteria based on the final rule, and potential to exceed projected effluent limitations based on the last three years of effluent monitoring data (if available). In instances of exceedances of projected effluent limitations under the final criteria, EPA determined the likely compliance scenarios and costs. Only compliance actions and costs that would be needed above the baseline level of controls are attributable to the final rule.
EPA assumed that dischargers will pursue the least cost means of compliance with WQBELs. Incremental compliance actions attributable to the final rule may include pollution prevention, end-of-pipe treatment, and alternative compliance mechanisms (
Based on the results for 17 sample facilities across 8 industrial and municipal categories,
If the revised criteria result in an incremental increase in impaired waters, resulting in the need for TMDL development, there could also be some costs to nonpoint sources of pollution. Using available ambient monitoring data, EPA compared pollutant concentrations to the baseline and final criteria, identifying waterbodies that may be incrementally impaired (
If the net increase in potential impairments is any indication of the potential increase in the number of TMDLs, then the total administrative costs for TMDL development could be in the range of $2.7 million to $3.0 million based on national average single-cause single-waterbody TMDL development costs from U.S. EPA (2001; updated to 2014 dollars). However, these costs may be reduced if Ecology develops multi-cause or multi-waterbody TMDLs. If these costs are spread over 8 to 15 years, at a discount rate of 3 percent, the annualized costs of developing TMDLs are $229,000 to $422,000.
Combining the potential facility compliance costs and TMDL administrative costs results in total annual costs of $355,000 to $572,000, at a 3 percent discount rate.
It has been determined that this final rule 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). The final rule does not establish any requirements directly applicable to regulated entities or other sources of toxic pollutants. However, these WQS may serve as a basis for development of NPDES permit limits. Washington has NPDES permitting authority, and retains considerable discretion in implementing standards. In the spirit of Executive Order 12866, EPA evaluated the potential costs to NPDES dischargers associated with state implementation of EPA's final criteria. This analysis,
This action does not impose any direct new information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. EPA has the authority to promulgate WQS in any case where the Administrator determines that a new or revised standard is necessary to meet the requirements of the CWA. EPA-promulgated standards are implemented through various water quality control programs including the NPDES program, which limits discharges to navigable waters except in compliance with an NPDES permit. The CWA requires that all NPDES permits include any limits on discharges that are necessary to meet applicable WQS. Thus, under the CWA, EPA's promulgation of WQS establishes standards that the state implements through the NPDES permit process. The state has discretion in developing discharge limits, as needed to meet the standards. As a result of this action, the State of Washington will need to ensure that permits it issues include any limitations on discharges necessary to comply with the standards established in the final rule. In doing so, the state will have a number of choices associated with permit writing. While Washington's implementation of the rule may ultimately result in new or revised permit conditions for some dischargers, including small entities, EPA's action, by itself, does not impose any of these requirements on small entities; that is, these requirements are not self-implementing.
This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538 for state, local, or tribal governments or the private sector. As these water quality criteria are not self-implementing, EPA's action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of UMRA.
This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that could significantly or uniquely affect small governments.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national
This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. In the State of Washington, there are 29 federally recognized Indian tribes. To date, nine of these Indian tribes have been approved for TAS for CWA sections 303 and 401.
EPA consulted with federally recognized tribal officials under EPA's Policy on Consultation and Coordination with Indian Tribes early in the process of developing this rule to permit them to have meaningful and timely input into its development. In February and March 2015, EPA held tribes-only technical staff and leadership consultation sessions to hear their views and answer questions of all interested tribes on the proposed rule. Representatives from approximately 23 tribes and four tribal consortia participated in two leadership meetings held in March 2015. EPA and tribes have also met regularly since November 2012 to discuss Washington's human health criteria at both the tribal leadership level and technical staff level. The tribes have repeatedly asked EPA to promulgate federal human health criteria for Washington if the state did not do so in a timely and protective manner. At these meetings, the tribes consistently emphasized that the human health criteria should be derived using at least a minimum FCR value of 175 g/day, a cancer risk level of 10
In subsequent coordination with tribes, EPA received a letter on August 5, 2016, from the Northwest Indian Fisheries Commission disagreeing with EPA's potential adjustments to the RSC from the proposed rule issued on September 14, 2015 to the final rule as a result of public comments. The tribes expressed concern that less stringent human health criteria as a result of the RSC adjustment would result in lower protection of designated uses and limit the ability to exercise tribal treaty rights, especially in light of a FCR that underestimates tribal consumption. EPA considered this information carefully before finalizing this rule, but for the reasons stated above, decided to adjust the RSC to account for inclusion of some marine fish in the FCR. This results in protective criteria that account for other routes of exposure in addition to drinking water and fish and shellfish from inland and nearshore waters and is consistent with EPA's guidance.
This rule is not subject to Executive Order 13045, because it is not economically significant as defined in Executive Order 12866, and because the environmental health or safety risks addressed by this action do not present a disproportionate risk to children.
This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
This final rulemaking does not involve technical standards.
This action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. Conversely, this action identifies and ameliorates disproportionately high and adverse human health effects on minority populations and low-income populations in Washington. EPA developed the human health criteria included in this final rule specifically to protect Washington's designated uses, using the most current science, including local and regional information on fish consumption. Applying these criteria to waters in the State of Washington will afford a greater level of protection to both human health and the environment.
This action is subject to the CRA, and 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, Indians-lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water pollution control.
For the reasons set forth in the preamble, EPA amends 40 CFR part 131 as follows:
33 U.S.C. 1251
(a)
(b)
(c)
(2) The criteria established in this section are subject to Washington's general rules of applicability in the same way and to the same extent as are other federally promulgated and state-adopted numeric criteria when applied to the same use classifications in paragraph (d) of this section.
(i) For all waters with mixing zone regulations or implementation procedures, the criteria apply at the appropriate locations within or at the boundary of the mixing zones; otherwise the criteria apply throughout the waterbody including at the end of any discharge pipe, conveyance or other discharge point within the waterbody.
(ii) The state must not use a low flow value below which numeric non-carcinogen and carcinogen human health criteria can be exceeded that is less stringent than the harmonic mean flow for waters suitable for the establishment of low flow return frequencies (
(iii) If the state does not have such a low flow value for numeric criteria, then none will apply and the criteria in paragraph (b) of this section herein apply at all flows.
(d)
(i) Fresh waters—
(A) Miscellaneous uses: Harvesting (Fish harvesting);
(B) Recreational uses;
(C) Water supply uses: Domestic water (Domestic water supply);
(ii) Marine waters—
(A) Miscellaneous uses: Harvesting (Salmonid and other fish harvesting, and crustacean and other shellfish (crabs, shrimp, scallops, etc.) harvesting);
(B) Recreational uses;
(C) Shellfish harvesting: Shellfish harvest (Shellfish (clam, oyster, and mussel) harvesting)
The source of these uses is Washington Administrative Code 173–201A–600 for Fresh waters and 173–201A–610 for Marine waters.
(2) For Washington waters that include the use classification of Domestic Water, the criteria in column C1 and the methylmercury criterion in column C2 of Table 1 in paragraph (b) of this section apply. For Washington waters that include any of the following use classifications but do not include the use classification of Domestic Water, the criteria in column C2 of Table 1 in paragraph (b) of this section apply: Harvesting (fresh and marine waters), Recreational Uses (fresh and marine waters), and Shellfish Harvesting.
Environmental Protection Agency (EPA).
Direct final rule.
Under the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments, States must develop and implement permit programs for Municipal Solid Waste Landfills (MSWLFs) and seek an adequacy determination by the Environmental Protection Agency (EPA). This rule documents EPA's determination that Washington's MSWLF permit program is adequate to ensure compliance with Federal MSWLF requirements.
This direct final rule will become effective February 27, 2017 without further notice, unless EPA receives adverse comments on or before January 27, 2017. If written adverse comments are received, the EPA will publish a timely withdrawal of the rule in the
Submit your comments, identified by Docket ID No. EPA–R10–RCRA–2016–0629 by one of the following methods:
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U.S. EPA Region 10, 1200 Sixth Avenue, Suite 900, Mailcode: AW–150, Seattle, Washington, 98101 Attn: Mr. Domenic Calabro. Telephone: (206) 553–6640.
On October 9, 1991, the Environmental Protection Agency (EPA) promulgated the “Solid Waste Disposal Facility Criteria: Final Rule” (56 FR 50978). That rule established part 258 of Title 40 of the Code of Federal Regulations (CFR). The criteria set out in 40 CFR part 258 include location restrictions and standards for design, operation, groundwater monitoring, corrective action, financial assurance, and closure and post-closure care for MSWLFs. The 40 CFR part 258 criteria establish minimum Federal standards that take into account the practical capability of owners and operators of MSWLFs while ensuring that these facilities are designed and managed in a manner that is protective of human health and the environment. Section 4005(c)(1)(B) of subtitle D of the Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984, requires States to develop and implement permit programs to ensure that MSWLFs comply with the 40 CFR part 258 criteria. RCRA section 4005(c)(1)(C) requires EPA to determine whether the permit programs that States develop and implement for these facilities are adequate.
To fulfill this requirement to determine whether State permit programs that implement the 40 CFR part 258 criteria are adequate, EPA promulgated the State Implementation Rule (SIR) (63 FR 57025, Oct. 23, 1998). The SIR, which established part 239 of Title 40 of the CFR, has the following four purposes: (1) Lay out the requirements that State programs must satisfy to be determined adequate; (2) confirm the process for EPA approval or partial approval of State MSWLF permit programs; (3) provide the procedures for withdrawal of such approvals; and (4) establish a flexible framework for modifications of approved programs.
Only those owners and operators located in States with approved permit programs for MSWLFs can use the site-specific flexibility provided by 40 CFR part 258, to the extent the State permit program allows such flexibility. Every standard in the 40 CFR part 258 criteria is designed to be implemented by the owner or operator with or without oversight or participation by EPA or the State regulatory agency. States with approved programs may choose to require facilities to comply with the 40 CFR part 258 criteria exactly, or they may choose to allow owners and operators to use site-specific alternative approaches to meet the Federal criteria. The flexibility that an owner or operator may be allowed under an approved State program can provide a significant reduction in the burden associated with complying with the 40 CFR part 258
To receive a determination of adequacy for a MSWLF permit program under the SIR, a State must have enforceable standards for new and existing MSWLFs. These State standards must be technically comparable to the 40 CFR part 258 criteria. In addition, the State must have the authority to issue a permit or other notice of prior approval and conditions to all new and existing MSWLFs in its jurisdiction. The State also must provide for public participation in permit issuance and enforcement, as required in RCRA section 7004(b). Finally, the State must demonstrate that it has sufficient compliance monitoring and enforcement authorities to take specific action against any owner or operator that fails to comply with an approved permit program. EPA expects States to meet all of these requirements for all elements of a permit program before it gives full approval to a State's program.
On April 9, 1993, Washington submitted an application to obtain a partial program adequacy determination for the State's MSWLF permit program under Section 4005 of RCRA. EPA reviewed Washington's application and published a determination of partial program adequacy on March 31, 1994 (FR Vol. 59, No. 62) for those portions of the MSWLF permit program that were adequate to ensure compliance with the revised Federal MSWLF criteria. Washington made amendments to Chapter 173–351 of the Washington Administrative Code, which became effective in November 2012 and November 2015. On June 16, 2016, Washington submitted to EPA an amended application which incorporated the amendments, seeking a determination of full program adequacy for Washington's MSWLF permitting program. The amended application included a detailed description of changes made to Washington's MSWLF permitting program since the March 31, 1994 EPA determination of partial program adequacy. Specifically, Washington addressed the following portions of its MSWLF permit program that were not approved in the March 31, 1994 determination of partial program adequacy:
(1) Revised the definitions of
(2) Eliminated equivalent and arid liner designs in the state rule, retained composite liner requirements, and incorporated an option for alternate liner design, consistent with federal regulations.
(3) Revised the rules to require monitoring for total metals in groundwater.
(4) Adopted revisions to Appendix 3 of WAC 173–351–990 to include two hazardous organic constituents: 2,3,7,8-Tetrachlorodibenzo- p-dioxin - [CAS 1746–01–6] and alpha, alpha-Dimethylphenethylamine [CAS 122–09–8]. This revision affects landfills that are required to perform assessment monitoring under the rule, and is necessary to be consistent with federal rules in 40 CFR part 258.
(5) Adopted new post-closure care period criteria, which are based on potential risk to human and environmental receptors, per 40 CFR part 258.61(b).
(6) Made revisions to allow for issuance of Research, Development, and Demonstration (RD&D) landfill permits, pursuant to the 2004 rulemaking by EPA (69 FR 13242, March 22, 2004).
Washington Assistant Attorney General, Jonathan C. Thompson, certified in a letter dated June 10, 2016 that the regulations cited in the Washington Department of Ecology's Amended Application for Municipal Solid Waste Facilities Program Determination of Adequacy were enacted and full effective at the time of the application and will continue to be when the state's permit program is fully approved.
In addition to those portions of the State's MSWLF permit program that were approved on March 31, 1994, EPA has determined that the State's revised MSWLF permit program will ensure adequacy with the Federal criteria in 40 CFR part 258. In addition, Washington has demonstrated that its MSWLF permit program contains specific provisions for public participation, compliance monitoring, and enforcement. After reviewing Washington's amended application, EPA has concluded that Washington's MSWLF permit program meets all of the statutory and regulatory requirements established by RCRA. Accordingly, Washington is granted a determination of full program adequacy for its MSWLF permitting program.
By finding that Washington's MSWLF permit program is adequate, EPA does not intend to affect the rights of Federally-recognized Indian Tribes in Washington, nor does it intend to limit the existing rights of the State of Washington. RCRA section 4005(a) provides that citizens may use the citizen suit provisions of RCRA section 7002 to enforce the 40 CFR part 258 criteria independent of any State enforcement program.
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.
This action does not impose any new Information Collection Request (ICR) burden under the PRA. The purpose of this action is to approve amendments to Washington's MSWLF permitting program which result in it meeting all of the statutory and regulatory requirements established by RCRA. The OMB has previously approved the information collection activities contained in the ICR for 40 CFR part 239, Requirements for State Permit Program Determination of Adequacy and part 258, MSWLF Criteria. This action does not impose any additional reporting requirements.
EPA certifies that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This rule will not create any additional burden for small entities. Small entities are not required to take any action as a consequence of this rule, and this action will not have a significant impact on a substantial number of small entities. We have therefore concluded that this
This action does not contain any unfunded mandate 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 the private sector. The costs involved in this action are imposed only by voluntary participation in a federal program.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. The EPA has concluded that this action will have no new tribal implications, nor would it present any additional burden on the tribes. It will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. 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. Washington has incorporated those requirements from the Federal MSWLF landfill criteria (40 CFR part 258) not found in Washington's existing program and EPA has determined that Washington's program includes terms and conditions that are at least as protective as the MSWLF landfill criteria for municipal solid waste landfills, to assure protection of human health and the environment.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The purpose of this action is to approve amendments to Washington's MSWLF permitting program which result in it meeting all of the statutory and regulatory requirements established by RCRA. The EPA believes that the human health and environmental risk addressed by this action will not have a new disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations.
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 procedure, Intergovernmental relations, Waste treatment and disposal.
Environmental protection, Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control.
This action is issued under the authority of section 2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6945 and 6949(a).
Environmental Protection Agency (EPA).
Final rule.
EPA is adding a hexabromocyclododecane (HBCD) category to the list of toxic chemicals subject to reporting under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and section 6607 of the Pollution Prevention Act (PPA). EPA is adding this chemical category to the EPCRA section 313 list because EPA has determined that HBCD meets the EPCRA section 313(d)(2)(B) and (C) toxicity criteria. Specifically, EPA has determined that HBCD can reasonably be anticipated to cause developmental and reproductive effects in humans and is highly toxic to aquatic and terrestrial organisms. In addition, based on the available bioaccumulation and persistence data, EPA has determined that HBCD should be classified as a persistent, bioaccumulative, and toxic (PBT) chemical and assigned a 100-pound reporting threshold.
EPA has established a docket for this action under Docket ID No. EPA–HQ–TRI–2015–0607. All documents in the docket are listed on
You may be potentially affected by this action if you manufacture, process, or otherwise use HBCD. 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:
• Facilities included in the following NAICS manufacturing codes (corresponding to Standard Industrial Classification (SIC) codes 20 through 39): 311*, 312*, 313*, 314*, 315*, 316, 321, 322, 323*, 324, 325*, 326*, 327, 331, 332, 333, 334*, 335*, 336, 337*, 339*, 111998*, 211112*, 212324*, 212325*, 212393*, 212399*, 488390*, 511110, 511120, 511130, 511140*, 511191, 511199, 512220, 512230*, 519130*, 541712*, or 811490*.
• Facilities included in the following NAICS codes (corresponding to SIC codes other than SIC codes 20 through 39): 212111, 212112, 212113 (corresponds to SIC code 12, Coal Mining (except 1241)); or 212221, 212222, 212231, 212234, 212299 (corresponds to SIC code 10, Metal Mining (except 1011, 1081, and 1094)); or 221111, 221112, 221113, 221118, 221121, 221122, 221330 (Limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce) (corresponds to SIC codes 4911, 4931, and 4939, Electric Utilities); or 424690, 425110, 425120 (Limited to facilities previously classified in SIC code 5169, Chemicals and Allied Products, Not Elsewhere Classified); or 424710 (corresponds to SIC code 5171, Petroleum Bulk Terminals and Plants); or 562112 (Limited to facilities primarily engaged in solvent recovery services on a contract or fee basis (previously classified under SIC code 7389, Business Services, NEC)); or 562211, 562212, 562213, 562219, 562920 (Limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921
• Federal facilities.
To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in part 372, subpart B of Title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
EPA is adding an HBCD category to the list of toxic chemicals subject to reporting under EPCRA section 313 and PPA section 6607. EPA is adding this chemical category to the EPCRA section 313 list because EPA has determined that HBCD meets the EPCRA section 313(d)(2)(B) and (C) toxicity criteria. EPA is also adding the HBCD category to the list of chemicals with special concern (see 40 CFR 372.28(a)(2)) and establishing a 100-pound reporting threshold.
This action is issued under EPCRA sections 313(d) and 328, 42 U.S.C. 11023
Section 313 of EPCRA, 42 U.S.C. 11023, requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels to report their environmental releases and other waste management quantities of such chemicals annually. These facilities must also report pollution prevention and recycling data for such chemicals, pursuant to section 6607 of the PPA, 42 U.S.C. 13106. Congress established an initial list of toxic chemicals that comprised 308 individually listed chemicals and 20 chemical categories.
EPCRA section 313(d) authorizes EPA to add or delete chemicals from the list and sets criteria for these actions. EPCRA section 313(d)(2) states that EPA may add a chemical to the list if any of the listing criteria in EPCRA section 313(d)(2) are met. Therefore, to add a chemical, EPA must demonstrate that at least one criterion is met, but need not determine whether any other criterion is met. Conversely, to remove a chemical from the list, EPCRA section 313(d)(3) dictates that EPA must demonstrate that none of the criteria in EPCRA section 313(d)(2) are met. The listing criteria in EPCRA section 313(d)(2)(A)–(C) are as follows:
• The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases.
• The chemical is known to cause or can reasonably be anticipated to cause in humans: Cancer or teratogenic effects, or serious or irreversible reproductive dysfunctions, neurological disorders, heritable genetic mutations, or other chronic health effects.
• The chemical is known to cause or can be reasonably anticipated to cause, because of its toxicity, its toxicity and persistence in the environment, or its toxicity and tendency to bioaccumulate in the environment, a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Administrator, to warrant reporting under this section.
EPA often refers to the EPCRA section 313(d)(2)(A) criterion as the “acute human health effects criterion;” the EPCRA section 313(d)(2)(B) criterion as the “chronic human health effects criterion;” and the EPCRA section 313(d)(2)(C) criterion as the “environmental effects criterion.”
EPA published in the
As discussed in the proposed rule June 2, 2016 (81 FR 35275) (FRL–9943–55), EPA proposed to add HBCD which is a cyclic aliphatic hydrocarbon consisting of a 12-membered carbon ring with 6 bromine atoms attached (molecular formula C
As EPA stated in the proposed rule June 2, 2016 (81 FR 35275) (FRL–9943–55), EPA proposed to add the HBCD category to the list of chemicals of special concern (see 40 CFR 372.28(a)(2)). There are several chemicals and chemical categories on the EPCRA section 313 chemical list that have been classified as chemicals of special concern because they are PBT chemicals. In a final rule published in the
As discussed in the proposed rule June 2, 2016 (81 FR 35275) (FRL–9943–55), HBCD has been shown to cause developmental effects at doses as low as 146.3 milligrams per kilogram per day (mg/kg/day) lowest-observed-adverse-effect level (LOAEL) in male rats. Developmental effects have also been observed with a benchmark dose lower bound confidence limit (BMDL) of 0.056 mg/kg/day (benchmark dose (BMD) of 0.18 mg/kg/day) based on effects in female rats and a BMDL of 0.46 mg/kg/day (BMD of 1.45 mg/kg/day) based on effects in male rats. HBCD also causes reproductive toxicity at doses as low 138 mg/kg/day (LOAEL) in female rats. Based on the available developmental and reproductive toxicity, EPA stated that HBCD can be reasonably anticipated to cause moderately high to high chronic toxicity in humans. EPA stated that the evidence was sufficient for listing the HBCD category on the EPCRA section 313 toxic chemical list pursuant to EPCRA section 313(d)(2)(B) based on the available developmental and reproductive toxicity data.
As also discussed in the proposed rule, HBCD has been shown to be highly toxic to both aquatic and terrestrial species with acute aquatic toxicity values as low as 0.009 milligrams per liter (mg/L) and chronic aquatic toxicity values as low as 0.0042 mg/L. HBCD is highly toxic to terrestrial species as well with observed toxic doses as low as 0.51 and 2.1 mg/kg/day. In addition to being highly toxic, HBCD is also bioaccumulative and persistent in the environment, which further supports a high concern for the toxicity to aquatic and terrestrial species. EPA stated that HBCD meets the EPCRA section 313(d)(2)(C) listing criteria on toxicity alone but also based on toxicity and bioaccumulation as well as toxicity and persistence in the environment. Therefore, EPA stated that the evidence is sufficient for listing the HBCD category on the EPCRA section 313 toxic chemical list pursuant to EPCRA section 313(d)(2)(C) based on the available ecological toxicity data as well as the bioaccumulation and persistence data.
EPA stated in the proposed rule that the available bioaccumulation and persistence data for HBCD support a classification of HBCD as a PBT chemical June 2, 2016 (81 FR 35275) (FRL–9943–55). HBCD has been shown to be highly bioaccumulative in aquatic species and to also biomagnify in aquatic and terrestrial food chains. While there is limited data on the half-life of HBCD in soil and sediment, the best available data supports a determination that the half-life of HBCD in soil and sediment is at least 2 months. This determination is further supported by the data from environmental monitoring studies, which indicate that HBCD has significant persistence in the environment. The widespread presence of HBCD in numerous terrestrial and aquatic species also supports the conclusion that HBCD has significant persistence in the environment. Therefore, consistent with EPA's established policy for PBT chemicals (See 64 FR 58666, October 29, 1999) (FRL–6389–11) EPA proposed to establish a 100-pound reporting threshold for the HBCD category.
EPA received three comments on the proposed rule, two from individuals (Refs. 1 and 2) and one from a coalition of environmental and public interest groups and individuals (the coalition) (Ref. 3). All commenters supported the addition of the HBCD category to the EPCRA section 313 toxic chemical list. However, in their comments the coalition stated that HBCD is highly bioaccumulative and highly persistent and based on EPA's PBT classification criteria, a reporting threshold of 10 pounds should be established for the HBCD category. EPA provided the following background information in the proposed rule:
“In a final rule published in the
EPA agrees with the commenter that HBCD is highly bioaccumulative but does not agree that HBCD meets the established criteria for highly persistent. The commenter stated that “While half-life data is limited, several studies estimate the half-life in sediment and soil to be greater than 120 days, while one study estimates a half-life of 190 days in abiotic sediment.” The study that the commenter cited as estimating a half-life of 190 days in abiotic sediment was Davis
“Additionally, the Davis
A better-conducted subsequent study by the same authors Davis
EPA is finalizing the addition of an HBCD category to the EPCRA section 313 list of toxic chemicals. EPA has determined that HBCD meets the listing criteria under EPCRA section 313(d)(2)(B) and (C). The HBCD category will be defined as: Hexabromocyclododecane (This category includes only those chemicals covered by the CAS numbers listed here)
EPA is also finalizing the addition of the HBCD category to the list of chemicals with special concern (see 40 CFR 372.28(a)(2)) and establishing a 100-pound reporting threshold. EPA has determined that the data support classifying the HBCD category as a PBT chemical category with a 100-pound reporting threshold.
The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not itself physically located in the docket. For assistance in locating these other documents, please consult the person listed under
1. Comment submitted by M. Clark. July 22, 2016. EPA–HQ–TRI–2015–0607–0217.
2. Anonymous public comment. July 31, 2016. EPA–HQ–TRI–2015–0607–0218.
3. Comment submitted by E. Gartner, Staff Attorney, Earthjustice
4. Davis, J.W., Gonsior, S.J., Marty, G.T.,
5. Davis, J.W., Gonsior, S.J., Markham, D.A.,
6. USEPA, OCSPP. 2016. Economic Analysis of the Final Rule to add HBCD to the List of TRI Reportable Chemicals. August 10, 2016.
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 under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
This action does not contain any new information collection requirements that require additional approval by OMB under the PRA, 44 U.S.C. 3501
OMB has approved the reporting and recordkeeping requirements related to Forms A and R, supplier notification, and petitions under OMB Control number 2025–0009 (EPA Information Collection Request (ICR) No. 1363) and those related to trade secret designations under OMB Control 2050–0078 (EPA ICR No. 1428). As provided in 5 CFR 1320.5(b) and 1320.6(a), 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 relevant to EPA's regulations are listed in 40 CFR part 9 or 48 CFR chapter 15, and displayed on the information collection instruments (
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601
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. This action is not subject to the requirements
This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 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 (65 FR 67249, November 9, 2000). This action relates to toxic chemical reporting under EPCRA section 313, which primarily affects private sector facilities. Thus, Executive Order 13175 does not apply to this action.
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2–202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards and is therefore not subject to considerations under section 12(d) of NTTAA, 15 U.S.C. 272 note.
EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action does not address any human health or environmental risks and does not affect the level of protection provided to human health or the environment. This action adds an additional chemical to the EPCRA section 313 reporting requirements. By adding a chemical to the list of toxic chemicals subject to reporting under section 313 of EPCRA, EPA would be providing communities across the United States (including minority populations and low income populations) with access to data which they may use to seek lower exposures and consequently reductions in chemical risks for themselves and their children. This information can also be used by government agencies and others to identify potential problems, set priorities, and take appropriate steps to reduce any potential risks to human health and the environment. Therefore, the informational benefits of the action will have positive human health and environmental impacts on minority populations, low-income populations, and children.
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, Community right-to-know, Reporting and recordkeeping requirements, and Toxic chemicals.
Therefore, 40 CFR chapter I is amended as follows:
42 U.S.C. 11023 and 11048.
The additions read as follows:
(a) * * *
(2) * * *
(c) * * *
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
Because the Environmental Protection Agency (EPA) received comments that could be construed as adverse, the EPA is withdrawing the direct final rule issued on September 30, 2016, to extend the implementation date for certain facilities subject to the EPA's final rule establishing pretreatment standards under the Clean Water Act (CWA) for discharges of pollutants into publicly-owned treatment works (POTWs) from unconventional oil and gas extraction.
Effective November 28, 2016, the EPA withdraws the direct final rule published September 30, 2016 (81 FR 67191).
For more information, see EPA's Web site:
On September 30, 2016, the EPA published a direct final rule that extended the implementation date for certain facilities to meet the requirements of the final pretreatment standards rule for unconventional oil and gas extraction. (81 FR 67191; September 30, 2016). In that direct final rule, the EPA stated that if we received adverse comments by October 31, 2016, the EPA would publish a timely withdrawal and address the comments in a final rule based on the proposed rule also published on September 30, 2016. (81 FR 67266; September 30, 2016).
The direct final rule specifically indicated that “EPA will not consider any comment submitted on the direct final rule published today on any topic other than the appropriateness of an extension of the compliance date; any other comments will be considered to be outside the scope of this rulemaking.” (81 FR 67192; September 30, 2016). Commenters supported the compliance date being extended; the EPA did not receive any comments opposing the extension of the compliance date, and thus maintains that there were no adverse comments on the direct final rule. As indicated in the direct final rule, the EPA considers any comments on topics other than the extension of the compliance date—including comments submitted on the applicability of the underlying final pretreatment standards rule—to be outside the scope of this rulemaking. However, to the extent that any of the comments could be broadly interpreted as seeking an alternative compliance period, and thus arguably within scope, the EPA, in its discretion, is withdrawing the direct final rule and instead will issue a final action to address the compliance date, which will be based on the parallel proposed rule also published on September 30, 2016. (81 FR 67266; September 30, 2016). For purposes of this withdrawal, compliance date and implementation date are used interchangeably. As stated in the parallel proposal, we will not
institute a second comment period on this proposed action.
Withdrawal of this direct final rule removes the extension of the compliance date for the subset of facilities identified in the direct final rule. It does not withdraw, or otherwise impact, the underlying final pretreatment standards rule for unconventional oil and gas extraction, which continues to apply to all facilities that meet the definition of “unconventional” in that rule.
Environmental protection, Pretreatment, Waste treatment and disposal, Water pollution control, Unconventional oil and gas extraction.
Accordingly, the direct final rule, published in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements accountability measures (AMs) for the recreational sector of greater amberjack in the exclusive economic zone (EEZ) of the South Atlantic for the current
This rule is effective from 12:01 a.m., local time, November 30, 2016, until 12:01 a.m. local time, on March 1, 2017.
Mary Vara, NMFS Southeast Regional Office, telephone: 727–824–5305, email:
The snapper-grouper fishery of the South Atlantic includes greater amberjack and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The recreational ACL for South Atlantic greater amberjack is 1,167,837 lb (529,722 kg), round weight, as specified at 50 CFR 622.193(k)(2)(i). The fishing year for South Atlantic greater amberjack is from March 1 through the end of February (50 CFR 622.7(d)). Under 50 CFR 622.193(k)(2)(i), when landings of the greater amberjack recreational sector reach, or are projected to reach, the recreational ACL, NMFS is required to close the recreational sector for greater amberjack by filing a notification to that effect with the Office of the Federal Register.
NMFS has determined that the recreational ACL in the current fishing year that is from March 1, 2016, through the end of February 2017, has been reached. Therefore, this temporary rule implements an AM to close the recreational sector for greater amberjack in the South Atlantic for the remainder of the current fishing year. As a result, the recreational sector for greater amberjack in the South Atlantic EEZ will close effective 12:01 a.m., local time, November 30, 2016, until March 1, 2017, the start of the next fishing year.
During the recreational closure, the bag and possession limits for greater amberjack in or from the South Atlantic EEZ are zero. The prohibition on possession in the South Atlantic onboard a vessel for which a valid Federal charter vessel/headboat permit for South Atlantic snapper-grouper has been issued applies regardless of whether greater amberjack were harvested in state or Federal waters.
On October 4, 2016, NMFS closed the commercial sector of greater amberjack in the South Atlantic because the sector had reached the commercial quota (equivalent to the commercial ACL) (81 FR 67215, September 30, 2016). Because the commercial sector for South Atlantic greater amberjack has already closed for the remainder of the current fishing year, all harvest of South Atlantic greater amberjack will end on November 30, 2016. Both the commercial and recreational sectors will reopen on March 1, 2017, the start of the next fishing year.
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of South Atlantic greater amberjack and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.193(k)(2)(i) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the recreational sector for greater amberjack constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the AM itself has been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect greater amberjack. Prior notice and opportunity for public comment would require time and would potentially allow the recreational sector to further exceed the recreational ACL.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements an accountability measure (AM) for the hogfish recreational sector in the exclusive economic zone (EEZ) of the South Atlantic for the 2016 fishing year through this temporary rule. NMFS estimates recreational landings from the 2016 fishing year have reached the recreational annual catch limit (ACL) for hogfish. Therefore, NMFS closes the recreational sector for hogfish in the South Atlantic EEZ on November 30, 2016, through the remainder of the 2016 fishing year. This closure is necessary to protect the hogfish resource in the South Atlantic.
This rule is effective 12:01 a.m., local time, November 30, 2016, until 12:01 a.m., local time, January 1, 2017.
Mary Vara, NMFS Southeast Regional Office, telephone: 727–824–5305, email:
The snapper-grouper fishery of the South Atlantic includes hogfish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The recreational ACL for hogfish is 85,355 lb (38,716 kg) round weight. In accordance with regulations at 50 CFR 622.193(u)(2)(i), NMFS is required to close the recreational sector for hogfish when the recreational ACL has been reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register.
NMFS has determined that the 2016 hogfish recreational ACL has been reached. Therefore, this temporary rule implements an AM to close the recreational sector for hogfish in the South Atlantic for the remainder of the 2016 fishing year. As a result, the recreational sector for hogfish in the South Atlantic EEZ will be closed effective 12:01 a.m., local time, November 30, 2016, until January 1, 2017, the start of the next fishing year.
During the recreational closure, the bag and possession limits for hogfish in or from the South Atlantic EEZ are zero. The recreational sector for hogfish will reopen on January 1, 2017.
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of hogfish in the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.193(u)(2)(i) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and public comment.
This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the recreational sector for hogfish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the AMs established by the Comprehensive ACL Amendment (77 FR 15916, March 16, 2012) and located at 50 CFR 622.193(u)(2)(i) have already been subject to notice and public comment. All that remains is to notify the public of the recreational closure for hogfish for the remainder of the 2016 fishing year. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect the hogfish resource, since time for notice and public comment will allow for continued recreational harvest and further exceedance of the recreational ACL.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 787–9 airplanes. This proposed AD was prompted by a determination that a certain bolt used on the outboard clevis of the ram air turbine (RAT) forward support fitting might not be long enough to allow for proper installation of the RAT. This proposed AD would require inspection of the forward support fitting of the RAT and replacement if cracking is found, and installation of a longer shoulder bolt. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by January 12, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740; telephone 562–797–1717; Internet
You may examine the AD docket on the Internet at
Kelly McGuckin, Aerospace Engineer, Systems and Equipment Branch, ANM–130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6490; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
During production, a determination was made that the shoulder bolt used on the outboard clevis of the RAT forward support fitting might not be long enough to allow for proper installation of the RAT; therefore, the clevis of the joint could be clamped together, resulting in reduced fatigue life and possible fracture of the clevis. The RAT system supplies an emergency source of hydraulic power to operate the minimum flight controls necessary for flight, and an emergency source of electrical power in the case of a dual non-restartable engine loss. Fracture of the clevis of the forward support fitting of the RAT could result in the RAT departing the airplane during a dual non-restartable engine loss, and consequent loss of control of the airplane. The RAT departing the airplane could also result in injury to maintenance crews during periodic RAT ground tests.
We reviewed Boeing Alert Service Bulletin B787–81205–SB290031–00, Issue 001, dated March 25, 2016. The service information describes procedures for inspecting for cracking of the clevis of the forward support fitting of the RAT, installing a longer shoulder bolt, and replacing the forward support fitting with a new fitting if any cracking is found. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously. For information on the
We estimate that this proposed AD affects 2 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements of the forward support fitting that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by January 12, 2017.
None.
This AD applies to The Boeing Company Model 787–9 airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787–81205–SB290031–00, Issue 001, dated March 25, 2016.
Air Transport Association (ATA) of America Code 29; Hydraulic power.
This AD was prompted by a determination that the shoulder bolt used on the outboard clevis of the ram air turbine (RAT) might not be long enough to allow for proper installation of the RAT; therefore, the clevis of the joint could be clamped together, resulting in reduced fatigue life and possible fracture of the clevis. We are issuing this AD to prevent fracture of the clevis of the forward support fitting of the RAT, which could result in the RAT departing the airplane during a dual non-restartable engine loss, and consequent loss of control of the airplane, or injury to maintenance crews during periodic RAT ground tests.
Comply with this AD within the compliance times specified, unless already done.
Within 12,000 flight hours or 24 months after the effective date of this AD, whichever occurs first: Do a high frequency eddy current inspection for cracking of the clevis of the forward support fitting of the RAT, and install a longer shoulder bolt, in accordance
This paragraph provides credit for the actions specified in paragraph (g) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (h)(1), (h)(2), (h)(3), or (h)(4) of this AD.
(1) Boeing Message TBC–ANA–15–0272–01B, dated September 22, 2015.
(2) Boeing Message TBC–ANZ–15–0016–06B, dated October 14, 2015.
(3) Boeing Message TBC–CAL–15–0089–01B, dated September 22, 2015.
(4) Boeing Message TBC–VAA–15–0089–01B dated September 22, 2015.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact Kelly McGuckin, Aerospace Engineer, Systems and Equipment Branch, ANM–130S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6490; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740; telephone 562–797–1717; Internet
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations that relate to the establishment of dollar-value last-in, first-out (LIFO) inventory pools by certain taxpayers that use the inventory price index computation (IPIC) pooling method. The proposed regulations provide rules regarding the proper pooling of manufactured or processed goods and wholesale or retail (resale) goods. The proposed regulations would affect taxpayers who use the IPIC pooling method and whose inventory for a trade or business consists of manufactured or processed goods and resale goods.
Comments and requests for a public hearing must be received by February 27, 2017.
Send submissions to: CC:PA:LPD:PR (REG–125946–10), Room 5205, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG–125946–10), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Natasha M. Mulleneaux, (202) 317–7007; concerning submission of comments and requests for a public hearing, Regina Johnson, (202) 317–6901 (not toll-free numbers).
Section 472 of the Internal Revenue Code permits a taxpayer to account for inventories using the LIFO method of accounting. The LIFO method of accounting for goods treats inventories on hand at the end of the year as consisting first of inventory on hand at the beginning of the year and then of inventories acquired during the year.
Section 1.472–8(a) of the Income Tax Regulations (26 CFR part 1) provides that any taxpayer may elect to determine the cost of its LIFO inventories using the dollar-value method, provided such method is used consistently and clearly reflects income. The dollar-value method of valuing LIFO inventories is a method of determining cost by using “base-year” cost expressed in terms of total dollars rather than the quantity and price of specific goods as the unit of measurement. The “base-year” cost is the aggregate of the cost (determined as of the beginning of the tax year for which the LIFO method is first adopted) of all items in a pool.
Pooling is central to the operation of the dollar-value LIFO method. Pooling requires costs related to different inventory products to be grouped into one or more inventory pools. To determine whether there is an increment or liquidation in a pool for a particular taxable year, the end of the year inventory of the pool expressed in terms of base-year cost is compared with the beginning of the year inventory of the pool expressed in terms of base-year cost. The regulations prescribe rules for determining whether the number and composition of the pools used by the taxpayer are appropriate. The rules vary depending upon whether the taxpayer is engaged in the activity of manufacturing or processing or the activity of wholesaling or retailing.
The general pooling rules applicable to dollar-value LIFO taxpayers are in § 1.472–8(b) and (c). These paragraphs provide separate pooling principles for taxpayers engaged in the manufacturing or processing of goods (§ 1.472–8(b)), and for taxpayers engaged in the wholesaling or retailing of goods purchased from others (§ 1.472–8(c)).
Section 1.472–8(b)(1) requires a manufacturer or processor to establish one pool for each natural business unit (natural business unit pooling method) unless the manufacturer or processor elects under § 1.472–8(b)(3) to establish multiple pools. Further, § 1.472–8(b)(2) provides that where a manufacturer or processor is also engaged in the wholesaling or retailing of goods purchased from others, the wholesaling or retailing operations with respect to such purchased goods shall not be considered a part of any manufacturing or processing unit. Additionally, § 1.472–8(b)(1) requires that where the manufacturer or processor is also engaged in the wholesaling or retailing of goods purchased from others, any pooling of the LIFO inventory of such purchased goods for wholesaling and retailing operations shall be determined in accordance with § 1.472–8(c).
In
A manufacturer or processor using the natural business unit pooling method may elect to use the multiple pooling method described in § 1.472–8(b)(3) for inventory items that are not within a natural business unit. Alternatively, a manufacturer or processor that does not use the natural business unit pooling method may elect to use the multiple pooling method. Under the multiple pooling method, generally each pool should consist of a group of inventory items that are substantially similar. Thus, raw materials that are substantially similar should be pooled together. Similarly, finished goods and goods-in-process should be placed in pools classified by major classes or types of goods.
Section 1.472–8(c)(1) requires wholesalers, retailer, jobbers, and distributors to establish inventory pools by major lines, types, or classes of goods. Mirroring § 1.472–8(b)(1), § 1.472–8(c)(1) requires that where a wholesaler or retailer is also engaged in the manufacturing or processing of goods, the pooling of the LIFO inventory for the manufacturing or processing operations must be determined in accordance with § 1.472–8(b).
In general, any taxpayer that elects to use the dollar-value LIFO method to value LIFO inventories may elect to use the IPIC method to compute the base-year cost and determine the LIFO value of a dollar-value pool for a trade or business. A taxpayer that elects to use the IPIC method of determining the value of a dollar-value LIFO pool for a trade or business may also elect to establish dollar-value pools, for those items accounted for using the IPIC method, using the IPIC pooling method provided in § 1.472–8(b)(4) and (c)(2). Section 1.472–8(b)(4) governs the application of the IPIC pooling method to manufacturers and processors that elect to use the IPIC method for a trade or business. Section 1.472–8(c)(2) governs the application of the IPIC pooling method to wholesalers, retailers, jobbers, and distributors that elect to use the IPIC method for a trade or business.
For manufacturers and processors using the IPIC pooling method under § 1.472–8(b)(4), pools may be established for those items accounted for using the IPIC method based on the 2-digit commodity codes (that is, major commodity groups) in Table 9 (formerly Table 6) of the Producer Price Index Detailed Report (PPI Detailed Report), which is published monthly by the United States Bureau of Labor Statistics (BLS). A taxpayer establishing IPIC pools under § 1.472–8(b)(4) may combine IPIC pools that comprise less than 5 percent of the total inventory value of all dollar-value pools to form a single miscellaneous IPIC pool. If the resulting miscellaneous IPIC pool is less than 5 percent of the total inventory value of all dollar-value pools, the taxpayer may combine the miscellaneous IPIC pool with its largest IPIC pool.
For retailers using the IPIC pooling method under § 1.472–8(c)(2), pools may be established for those purchased items accounted for using the IPIC method based on either the general expenditure categories (that is, major groups) in Table 3 of the Consumer Price Index Detailed Report (CPI Detailed Report), published monthly by BLS, or the 2-digit commodity codes (that is, major commodity groups) in Table 9 of the PPI Detailed Report. For wholesalers, jobbers, or distributors using the IPIC pooling method under § 1.472–8(c)(2), pools may be established for those items accounted for using the IPIC method based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. A taxpayer establishing IPIC pools under § 1.472–8(c)(2) may combine pools that comprise less than 5 percent of the total inventory value of all dollar-value pools to form a single miscellaneous IPIC pool. If the resulting miscellaneous IPIC pool is less than 5 percent of the total inventory value of all dollar-value pools, the taxpayer may combine the miscellaneous IPIC pool with its largest IPIC pool.
Each of the 5-percent rules provided in § 1.472–8(b)(4) or (c)(2) is a method of accounting. Thus, a taxpayer may not change to, or cease using either 5-percent rule without obtaining the prior consent of the Commissioner. Whether a specific IPIC pool or the miscellaneous IPIC pool satisfies the applicable 5-percent rule must be determined in the year of adoption or year of change (whichever is applicable) and redetermined every third taxable year. Any change in pooling required or permitted under a 5-percent rule is also a change in method of accounting. A taxpayer must secure the consent of the Commissioner before combining or separating pools. The general procedures under section 446(e) and § 1.446–1(e) that a taxpayer must follow to obtain the consent of the Commissioner to change a method of accounting for federal income tax purposes are contained in Rev. Proc. 2015–13, 2015–5 I.R.B. 419 (or its successors), as modified by Rev. Proc. 2015–33, 2015–24 I.R.B. 1067. See § 601.601(d)(2)(ii)(b).
The general pooling rules of § 1.472–8(b) and (c) provide that where a taxpayer is engaged in both a manufacturing or processing activity and a wholesaling or retailing activity, separate pooling rules apply to the separate activities, and goods purchased for resale may not be included in the same pool as manufactured or purchased goods. On the other hand, the IPIC pooling rules address circumstances where a trade or business consists entirely of a manufacturing, processing, retailing, or wholesaling activity. The Treasury Department and the IRS have become aware of confusion concerning how the IPIC pooling rules apply where a taxpayer is engaged in both a manufacturing or processing activity and a wholesaling or retailing
The proposed regulations amend the IPIC pooling rules to clarify that those rules are applied consistently with the general LIFO pooling rule that manufactured or processed goods and resale goods may not be included in the same dollar-value LIFO pool. This general rule is intended to limit cost transference, an inherent problem with pooling. Cost transference may occur, among other circumstances, when inventory items from separate economic activities (for example, manufacturing and resale activities) are placed in the same pool and may cause misallocation of cost or distortion of income.
Accordingly, the proposed regulations clarify that an IPIC-method taxpayer who elects the IPIC pooling method described in § 1.472–8(b)(4) or (c)(2) and whose trade or business consists of both manufacturing or processing activity and resale activity may not commingle the manufactured or processed goods and the resale goods within the same IPIC pool.
Specifically, the proposed regulations provide that a manufacturer or processor using the IPIC pooling method under § 1.472–8(b)(4) that is also engaged, within the same trade or business, in wholesaling or retailing goods purchased from others may elect to establish dollar-value pools for the manufactured or processed items accounted for using the IPIC method based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. If the manufacturer or processor makes this election, the manufacturer or processor must also establish pools for its resale goods in accordance with § 1.472–8(c)(2) (that is, based on the general expenditure categories in Table 3 of the CPI Detailed Report in the case of a retailer or the 2-digit commodity codes in Table 9 of the PPI Detailed Report in the case of a retailer, wholesaler, jobber, or distributor).
If the manufacturer or processor chooses to use the 5-percent method of pooling, manufactured or processed IPIC pools (IPIC pools consisting of manufactured or processed goods) of less than 5 percent of the total current year cost of all dollar-value pools may be combined to form a single miscellaneous IPIC pool of manufactured or processed goods. The manufacturer or processor may also combine resale IPIC pools (IPIC pools consisting of resale goods) of less than 5 percent of the total value of inventory to form a single miscellaneous IPIC pool of resale goods. If the miscellaneous IPIC pool of manufactured or processed goods is less than 5 percent of the total value of inventory, the manufacturer or processor may combine the miscellaneous IPIC pool of manufactured or processed goods with its largest manufactured or processed IPIC pool. The miscellaneous IPIC pool of resale goods may not be combined with any other IPIC pool.
The proposed regulations also provide that a wholesaler, retailer, jobber, or distributor using the IPIC pooling method under § 1.472–8(c)(2) that is also engaged, within the same trade or business, in manufacturing or processing activities may elect to establish dollar-value pools for the resale goods accounted for using the IPIC method in accordance with § 1.472–8(c)(2) (that is, based on the general expenditure categories in Table 3 of the CPI Detailed Report in the case of retailer or the 2-digit commodity codes in Table 9 of the PPI Detailed Report in the case of a wholesaler, retailer, jobber, or distributor). If the wholesaler, retailer, jobber, or distributor makes this election, it must also establish pools for its manufactured or processed goods based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report.
If the wholesaler, retailer, jobber, or distributor chooses to use the 5-percent method of pooling, resale IPIC pools of less than 5 percent of the total value of inventory may be combined to form a single miscellaneous IPIC pool of resale goods. The wholesaler, retailer, jobber, or distributor may also combine the IPIC pools of manufactured or processed goods of less than 5 percent of the total value of inventory to form a single miscellaneous IPIC pool of manufactured or processed goods. If the resale miscellaneous IPIC pool is less than 5 percent of the total value of inventory, the wholesaler, retailer, jobber, or distributor may combine the resale miscellaneous IPIC pool with the largest resale IPIC pool. The miscellaneous IPIC pool of manufactured or processed goods may not be combined with any other IPIC pool.
The Treasury Department and the IRS specifically request comments on the requirement that a taxpayer engaged in both manufacturing and resale activities within the same trade or business is required to use IPIC pooling for both activities.
These proposed regulations modify § 1.472–8(b), (c), and (e)(3) to update references from Table 6 (Producer price indexes and percent changes for commodity groupings and individual items, not seasonally adjusted) to Table 9 (Producer price indexes and percent changes for commodity and service groupings and individual items, not seasonally adjusted) because of BLS changes in the PPI Detailed Report.
These proposed regulations also modify § 1.472–8(e)(3)(ii) to remove the exception to the trade or business requirement for taxpayers using the Department Store Inventory Price Indexes because BLS discontinued publishing these indexes after December 2013.
These regulations are proposed to apply for taxable years ending on or after the date the regulations are published as final regulations in the
Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, these proposed regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Treasury Department and the IRS request comments on all aspects of the proposed rules. All comments will be available at
A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public
The principal author of these regulations is Natasha M. Mulleneaux of the Office of the Associate Chief Counsel (Income Tax & Accounting). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.472–8 also issued under 26 U.S.C 472. * * *
The revisions read as follows:
(b) * * *
(4)
(ii)
(iii)
(iv)
(i) Taxpayer is engaged in the trade or business of manufacturing products A, B, and C. In order to cover temporary shortages, Taxpayer also purchases a small quantity of identical products for resale to customers. Taxpayer treats its manufacturing and resale activities as a single trade or business. Taxpayer uses the IPIC method described in paragraph (e)(3) of this section. Pursuant to its election, Taxpayer establishes dollar-value pools for the manufactured items under paragraph (b)(4)(i) of this section, based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. Taxpayer also establishes dollar-value pools for the items purchased for resale under paragraph (b)(4)(ii) of this section, based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. Taxpayer does not choose to use the 5-percent rules under paragraphs (b)(4)(i) and (ii) of this section.
(ii) Even though Taxpayer has manufactured items and resale items that share the same 2-digit commodity codes,
(i) The facts are the same as in
(ii) For purposes of applying the 5-percent rules to Taxpayer's manufacturing operations under paragraph (b)(4)(i) of this section, because Pools B and C each comprise less than 5 percent of the total current-year cost of all dollar-value pools, Pools B and C may be combined to form a single miscellaneous pool of manufactured or processed goods (new Pool G).
(iii) For purposes of applying the 5-percent rules to Taxpayer's resale operations under paragraph (b)(4)(ii) of this section, because Pools E and F each comprise less than 5 percent of the total current-year cost of all dollar-value pools, Pools E and F may be combined to form a single miscellaneous pool of resale goods (new Pool H).
(iv) Because Pool G comprises less than 5 percent of the total current-year cost of all dollar-value pools, under paragraph (b)(4)(i) of this section, Pool G may be combined with Pool A, the largest IPIC pool of manufactured goods.
(v) Although Pool H also comprises less than 5 percent of the total current-year cost of all dollar-value pools, under paragraph (b)(4)(ii) of this section, Pool H may not be combined with Pool A, the largest pool of manufactured goods, or Pool D, the largest pool of resale goods.
(c) * * *
(2)
(ii)
(iii)
(iv)
(i) Taxpayer is engaged in the trade or business of wholesaling products A, B, and C. Taxpayer also manufactures a small quantity of identical products for sale to customers. Taxpayer treats its wholesaling and manufacturing activities as a single trade or business. Taxpayer uses the IPIC method described in paragraph (e)(3) of this section. Pursuant to its election, Taxpayer establishes dollar-value pools for the wholesale items purchased for resale under paragraph (c)(2)(i) of this section, based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. Taxpayer also establishes dollar-value pools for the manufactured items under paragraph (c)(2)(ii) of this section, based on the 2-digit commodity codes in Table 9 of the PPI Detailed Report. Taxpayer does not choose to use the 5-percent rules under paragraphs (c)(2)(i) and (ii) of this section.
(ii) Even though Taxpayer has resale and manufactured items that share the same 2-digit commodity codes, under paragraph (c)(2)(iii) of this section, Taxpayer's resale goods may not be included in the same IPIC pool as its manufactured goods.
(ii) For purposes of applying the 5-percent rules to Taxpayer's wholesaling operations under paragraph (c)(2)(i) of this section, because Pools K and Pool L each comprise less than 5 percent of the total current-year cost of all dollar-value pools, Pools K and L may be combined to form a single miscellaneous pool of wholesale goods (new Pool P).
(iii) For purposes of applying the 5-percent rules to Taxpayer's manufacturing operations under paragraph (c)(2)(ii) of this section, because Pools N and O each comprise less than 5 percent of the total current-year cost of all dollar-value pools, Pools N and O may be combined to form a single miscellaneous pool of manufactured goods (new Pool Q).
(iv) Because Pool P comprises less than 5 percent of the total current-year cost of all dollar-value pools, under paragraph (c)(2)(i) of this section, Pool P may be combined with Pool J, the largest IPIC pool of resale goods.
(v) Although Pool Q also comprises less than 5 percent of the total current-year cost of all dollar-value pools, under paragraph (c)(2)(ii) of this section, Pool Q may not be combined with Pool J, the largest pool of resale goods, or Pool M, the largest pool of manufactured goods.
(e) * * *
(3) * * *
(ii)
(v)
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submitted by the State of Maryland. This revision pertains to a provision establishing new volatile organic compound (VOC) content limits and standards for architectural and industrial maintenance (AIM) coatings available for sale and use in Maryland. This action is being taken under the Clean Air Act (CAA).
Written comments must be received on or before December 28, 2016.
Submit your comments, identified by Docket ID No. EPA–R03–OAR–2016–0454 at
Irene Shandruk, (215) 814–2166, or by email at
In 2001, the Ozone Transport Commission (OTC), in collaboration with the Ozone Transport Region (OTR) states, developed several emission reduction measures, including a VOC model rule for AIM coatings (known as the Phase I AIM model rule), which addressed VOC reductions in the OTR. In 2004, consistent with the OTC Phase I AIM model rule, Maryland adopted COMAR 26.11.33—
The Phase I AIM model rule was replaced with an amended OTC model rule in 2011 (known as the Phase II AIM model rule). The Phase II AIM model rule was developed for states that needed additional VOC emission
On June 27, 2016, the Maryland Department of the Environment (MDE) submitted to EPA a SIP revision containing new AIM regulations .01 through .08 under COMAR 26.11.39—
EPA's review of this material indicates that Maryland's new regulations for AIM coatings under COMAR 26.11.39 are based on the OTC's Phase II AIM model rule and establish more stringent VOC content limits and requirements for certain AIM coating categories compared to COMAR 26.11.33. Therefore, these new regulations should lead to additional VOC reductions from this category. Additionally, Maryland's new AIM coating regulations are more stringent than the federal standards found at 40 CFR 59, subpart D—
In this proposed 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 Maryland's new regulations for AIM coatings under COMAR 26.11.39. EPA has made, and will continue to make, these materials generally available 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, 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 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 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 pertaining to Maryland's new regulations for AIM coatings under COMAR 26.11.39, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a section 111(d)/129 plan submitted by the State of Maryland for existing hospital/medical/infectious waste incineration (HMIWI) units. The section 111(d)/129 plan contains revisions to a previously-approved state plan for existing HMIWI units and was submitted as a result of the October 6, 2009 promulgation of federal new source performance standards (NSPS) and emission guidelines for HMIWI
Written comments must be received on or before December 28, 2016.
Submit your comments, identified by Docket ID No. EPA–R03–OAR–2016–0053 at
Mike Gordon, (215) 814–2039, or by email at
Section 129 of the CAA requires EPA to establish performance standards and emission guidelines for various types of new and existing solid waste incineration units. Section 129(b)(2) requires states to submit to EPA for approval section 111(d)/129 plans that implement and enforce the promulgated emission guidelines. Section 129(b)(3) requires EPA to promulgate a federal plan (FP) within two years from the date on which the emission guidelines, or revision to the emission guidelines, is promulgated. The FP is applicable to affected facilities when the state has failed to receive EPA approval of the section 111(d)/129 plan. The FP remains in effect until the state submits and receives EPA approval of its section 111(d)/129 plan. State submittals under CAA sections 111(d) and 129 must be consistent with the relevant emission guidelines, in this instance 40 CFR part 60, subpart Ce, and the requirements of 40 CFR part 60, subpart B and part 62, subpart A. Section 129 of the CAA regulates air pollutants that include organics (dioxins/furans), carbon monoxide, metals (cadmium, lead, and mercury), hydrogen chloride, sulfur dioxide, nitrogen oxides, and particulate matter (which includes opacity).
On January 10, 2013, the Maryland Department of the Environment (MDE) submitted revisions to its section 111(d)/129 plan for HMIWI units that was previously approved by EPA on September 5, 2000 (65 FR 53608). The revisions address EPA's October 6, 2009 final rule (74 FR 51367) and April 4, 2011 amendments (76 FR 18407) for Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators, 40 CFR part 60, subparts Ec and Ce. Included with Maryland's plan are amendments to Code of Maryland Regulations (COMAR) 26.11.08, entitled “Control of Incinerators,” specifically regulations .01, .02, and .08–1 and adoption/amendments to new regulation .08–2. EPA's proposed approval of Maryland's HMIWI revisions amends state HMIWI regulations .01, .02, .08–1, and .08–2 of COMAR 26.11.08 to comport with the corresponding federal regulations. Unrevised portions of the previous state plan approved on September 5, 2000 remain in place.
EPA has reviewed the Maryland section 111(d)/129 plan submittal in the context of the requirements of 40 CFR part 60, subparts B, Ec and Ce, and part 62, subpart A. EPA has determined that the submitted section 111(d)/129 plan meets the above-cited requirements. Thus, EPA proposes to approve the above the submitted plan. EPA's proposed approval in this action is limited to the regulations addressing HMIWI units as identified by Maryland in its section 111(d)/129 plan submittal under COMAR 26.11.08, specifically, regulations .01, .02, .08–1, and .08–2.
EPA is proposing to approve the Maryland section 111(d)/129 plan for HMIWI units submitted pursuant to 40 CFR part 60, subpart Ce because the plan is at least as stringent as requirements in 40 CFR part 60, subpart Ce. Therefore, EPA is proposing to amend 40 CFR part 62, subpart V to reflect this action. The scope of the proposed approval of the section 111(d)/129 plan is limited to the provisions of 40 CFR parts 60 and 62 for existing HMIWI units, as referenced in the emission guidelines, subpart Ce.
The EPA Administrator continues to retain authority for several tasks affecting the regulation of HMIWI units, as stipulated in 40 CFR 60.32e(k) and 60.50c(i). This retention of authority includes the granting of waivers for performance tests.
In reviewing section 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this 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 (Public Law 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or
• 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 for existing HMIWI units within the State of Maryland does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the section 111(d)/129 plan is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
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.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
Under the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments, States must develop and implement permit programs for Municipal Solid Waste Landfills (MSWLF) and seek an adequacy determination by the Environmental Protection Agency (EPA). This proposed rule documents EPA's determination that Washington's MSWLF permit program is adequate to ensure compliance with Federal MSWLF requirements.
Comments on this proposed action must be received in writing on or before January 27, 2017.
Submit your comments, identified by Docket ID No. EPA–R10–RCRA–2016–0622 by one of the following methods:
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•
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U.S. EPA Region 10, 1200 Sixth Avenue, Suite 900, Mailcode: AW–150, Seattle, Washington, 98101, Attn: Mr. Domenic Calabro. Telephone: (206) 553–6640.
In the Rules and Regulations section of this issue of the
Environmental protection, Administrative practice and procedure, Intergovernmental relations, Waste treatment and disposal.
Environmental protection, Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control.
This action is issued under the authority of section 2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6945 and 6949(a).
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is amending existing regulations regarding the export and import of hazardous wastes from and into the United States. EPA is making these changes to improve protection of public health with respect to hazardous wastes by ensuring public accessibility and transparency of export and import documentation. Specifically, the proposed revisions of the existing regulations will require exporters of hazardous waste and receiving facilities recycling or disposing hazardous waste from foreign sources to maintain a single publicly accessible Web site (“Export/Import Web site”) to which documents can be posted regarding the confirmation of receipt and confirmation of completed recovery or disposal of individual hazardous waste import and export shipments. These proposed changes will improve information on the movement and disposition of hazardous wastes, and will enable interested members of the community and the government to
Comments must be received on or before January 27, 2017. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before December 28, 2016.
Submit your comments, identified by Docket ID No. EPA–HQ–OLEM–2016–0492 at
Laura Coughlan, Materials Recovery and Waste Management Division, Office of Resource Conservation and Recovery (5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (703) 308–0005; email:
The information presented in this preamble is organized as follows:
EPA's authority to promulgate this rule is found in sections 1002, 2002(a), 3001–3004, and 3017 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6901 et. seq., 6905, 6912, 6921–6927, 6930, 6934, 6935, 6937, 6938, 6939, and 6974.
The internet posting requirements in this action generally affect two (2) groups: (1) All persons who export (or arrange for the export) of hazardous waste for recycling or disposal, including those hazardous wastes subject to the alternate management standards for (a) universal waste for recycling or disposal, (b) spent lead-acid batteries (SLABs) being shipped for reclamation, (c) industrial ethyl alcohol being shipped for reclamation, (d) hazardous waste samples of more than 25 kilograms being shipped for waste characterization or treatability studies, and (e) hazardous recyclable materials being shipped for precious metal recovery; and (2) all recycling and disposal facilities who receive imports of such hazardous wastes for recycling or disposal. The application of these confidentiality determinations to certain export, import, and transit documents affects the groups described previously in addition to exporters of cathode ray tubes (CRTs). Potentially affected entities may include, but are not limited to:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. If you have questions regarding the applicability of this proposed rule to a particular entity, consult the person listed in the
This rule proposes two types of amendments. First, EPA is proposing certain amendments to the current RCRA regulations in part 262 governing exports and imports of hazardous waste in order to improve protection of public health and the environment by strengthening the public accessibility and transparency of documentation to better monitor proper compliance with EPA's hazardous waste regulations and help ensure that hazardous waste shipments are properly received and disposed. To achieve these goals, EPA is proposing to require internet posting of
Second, EPA is also proposing confidentiality determinations with respect to CBI claims for the individual documents and compiled data for the following types of export and import documents, which will hereinafter be referred to as aforementioned “documents related to the export, import, and transit of hazardous waste and export of excluded cathode ray tubes (CRTs)”:
(1) Documents related to the export of Resource Conservation and Recovery Act (RCRA) hazardous waste under 40 CFR part 262, subpart H, including but not limited to the notifications of intent to export, contracts submitted in response to requests for supplemental information from countries of import or
(2) Documents related to the import of hazardous waste, under 40 CFR part 262, subpart H, including but not limited to contracts and notifications of intent to import hazardous waste into the U.S. from foreign countries or U.S. importers;
(3) Documents related to the confirmation of receipt and confirmation of recovery or disposal of hazardous waste exports and imports, under 40 CFR part 262, subpart H;
(4) Documents related to the transit of hazardous waste, under 40 CFR part 262, subpart H, including notifications from U.S. exporters of intent to transit through foreign countries, or notifications from foreign countries of intent to transit through the U.S.;
(5) Documents related to the export of cathode ray tubes (CRTs), under 40 CFR part 261, subpart E, including but not limited to notifications of intent to export CRTs;
(6) Documents related to the export of non-crushed spent lead acid batteries (SLABs) with intact casings, under 40 CFR part 266 subpart G, including but not limited to notifications of intent to export SLABs;
(7) Submissions from transporters under 40 CFR part 263, or from treatment, storage or disposal facilities under 40 CFR parts 264 and 265, related to exports or imports of hazardous waste, including but not limited to receiving facility notices of the need to arrange alternate management or return of an import shipment under 40 CFR 264.12(a)(3) and 265.12(a)(3); and
(8) Documents related to the export and import of RCRA universal waste under 40 CFR part 273, subparts B, C, D, and F.
We propose to apply confidentiality determinations such that no CBI claims may be asserted by any person with respect to any of the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs. EPA's determination that revisions to the export/import regulations are needed is bolstered by the concerns and recommendations in both the 2013 Commission for Environmental Cooperation (CEC) report on export and recycling of spent lead-acid batteries (SLABs) within North America (“Hazardous Trade? An Examination of US-generated Spent Lead-acid Battery Exports and Secondary Lead Recycling in Mexico, the United States and Canada”) and the 2015 EPA Office of Inspector General (OIG) report on hazardous waste imports (“EPA Does Not Effectively Control or Monitor Imports of Hazardous Waste”). Based on its findings, the CEC report recommended that the U.S. require the use of manifests for each international shipment of SLABs, require exporters to obtain a confirmation of recovery from foreign recycling facilities, explore establishing an electronic export annual report, and better share export and import data between environmental and border agencies. For a more complete discussion of the CEC report and EPA's related analysis, see Section VII of the Hazardous Waste Export-Import Revisions proposed rule (80 FR 63304). The 2015 EPA OIG report recommended that EPA improve the oversight of hazardous waste imports, including tracking of all hazardous waste import shipments. Copies of the CEC and EPA OIG reports can be found in the Docket for the Hazardous Waste Export-Import Revisions proposed rule (Docket ID No. EPA–HQ–RCRA–2015–0147, documents EPA–HQ–RCRA–2015–0147–0009 and EPA–HQ–RCRA–2015–0147–0011, respectively), and copies have been placed in the docket for this proposed rule.
EPA is particularly interested in input on this proposed action from persons who export hazardous waste or CRTs and those persons who receive imported hazardous waste, including those persons receiving imported or exporting hazardous wastes managed under the special management standards in 40 CFR part 266 (
EPA is proposing to modify the reporting and recordkeeping requirements for exporters of hazardous waste and receiving facilities of hazardous waste imports such that, prior to the electronic import-export reporting compliance date to be established in a future, separate
EPA is proposing that the required documents be posted as read-only, publicly accessible, downloadable images. Examples of acceptable document formats include, but are not limited to, Portable Document Format (PDF), Joint Photographic Experts Group (JPEG), and Graphics Interchange Format (GIF). If a publicly available Web site is not available, exporters and receiving facilities must develop a publicly accessible Web site to post the required documents. If a company has more than one physical site from which it exports hazardous waste or receives hazardous waste imports for recycling or disposal, the company must clearly group the posted documents by individual physical facility site. In addition, the documents for each physical site must be clearly organized by the consent number relevant to each export or import shipment. The company's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The documents and their respective file names posted to the Export/Import Web site must clearly identify the type of document, EPA ID number of the exporting or receiving facility, the consent number associated with the shipment, and the related shipment number (
• Exporter confirmation of receipt: EX_Conf_Receipt_[EPA ID No.]_[Consent No.]_[Shipment No.]
• Exporter confirmation of recovery or disposal: EX_Conf_Recovery_[EPA ID No.]_[Consent No.]_[Shipment No.]
• Receiving facility confirmation of receipt: RF_Conf_Receipt_[EPA ID No.]_[Consent No.]_[Shipment No.]
• Receiving facility confirmation of recovery or disposal: RF_Conf_Recovery_[EPA ID No.]_[Consent No.]_[Shipment No.]
EPA requests comment on the recommended organizational aspects of the Web site, and the proposed standard file name format, including whether the proposed standard file name format should be mandatory.
EPA is proposing that the documents posted to the Export/Import Web site must be publicly accessible on the Web site by the first of March of each year
EPA is also proposing confidentiality determinations and will no longer accept future CBI claims for the individual aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs. Our rationale is explained in the following paragraphs.
To date, our records indicate that EPA has received three assertions of confidentiality, one from Horizon Environment, Inc. in 2004 and two from Johnson Controls Battery Group, Inc. in 2011 and 2012 for certain information contained in hazardous waste export documents. In all three cases, the Agency determined that the information claimed as confidential was not entitled to confidential treatment, as explained in the following paragraphs.
Horizon Environment, Inc. and Johnson Controls Battery Group, Inc. asserted claims of confidentiality for certain hazardous waste export documents that were responsive to a request to EPA under the Freedom of Information Act (FOIA). Horizon's claims related to export notices, and Johnson Controls' claims related to annual reports.
Exemption 4 of the Freedom of Information Act (FOIA) exempts from disclosure “trade secrets and commercial information obtained from a person and privileged or confidential” (see 5 U.S.C. § 552(b)(4)). In order for information to meet the requirements of Exemption 4, EPA must find that the information is either (1) a trade secret; or (2) commercial or financial information obtained from a person and privileged or confidential (commonly referred to as “Confidential Business Information” (CBI)).
The two companies' confidentiality claims did not assert that the information was a trade secret, nor did they provide information about how the Agency's release of this information would identify a plan, formula, process, or device. The companies also did not demonstrate how disclosure of the information would identify or reveal a trade secret. Consequently, EPA found that the information did not constitute a trade secret.
In order to qualify as CBI under Exemption 4, the information must be “privileged or confidential.” Both companies claimed the information to be confidential, but did not claim that the information was privileged. Information that is required to be submitted to the Government is confidential if its “disclosure would be likely either (1) to impair the Government' s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.”' Critical Mass, 975 F.2d at 878 (quoting
In terms of competitive harm, as set forth in EPA's regulations at 40 CFR 2.208, required business information is entitled to confidential treatment if: The business has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business's competitive position. After careful consideration of the arguments submitted by both companies, EPA concluded that neither claim explained specifically how disclosure of the information in the submissions would likely cause substantial competitive harm to the companies, and therefore did not support the claim of competitive harm. Accordingly, EPA concluded that release of this was not likely to cause substantial harm to the companies' competitive positions.
As a result of these analyses, EPA found that the information claimed as confidential was not a trade secret or CBI and, therefore, was not within the scope of Exemption 4 of the FOIA. Based on EPA's analysis and decision in the confidentiality claims asserted by these two companies for their hazardous waste export notices and annual reports, EPA expects to apply a similar analysis and reach a similar decision with respect to these types of documents as well as the other aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs that would be submitted to EPA by other companies. Therefore, EPA proposes to make a confidentiality determination in this rule that all of the aforementioned documents are not confidential.
In addition, EPA has issued an annual
As discussed previously, EPA's regulations at 40 CFR 2.208 state that, in order for business information to be entitled to confidential treatment, the Agency must have determined that such claims meet several criteria.
EPA believes that the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs do not meet several of the criteria listed in 40 CFR 2.208. Our rationale is explained in the following paragraphs.
EPA believes that any CBI claim that might be asserted with respect to the individual selected hazardous waste documents would be extremely difficult to sustain under the substantive CBI criteria set forth in the Agency's CBI regulations (40 CFR part 2, subpart B). For example, to make a CBI claim, a business must satisfactorily show that it has taken reasonable measures to protect the confidentiality of the information, and that it intends to continue to take such measures. The selected hazardous waste documents submitted to the Agency are also shared with several commercial entities while they are being processed and used. As
Furthermore, to substantiate a CBI claim, a business must also show that the information is not, and has not been, reasonably obtainable without the business's consent by other persons (other than governmental bodies) by use of legitimate means (other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding). As described previously, the selected hazardous waste documents are shared with several commercial entities throughout the chain of custody of a hazardous waste shipment. Therefore, information contained in these documents is relatively easily accessible to other parties without the business's explicit consent.
For these reasons, EPA believes that any CBI claim that might be asserted with respect to the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs would be difficult to sustain under the substantive CBI criteria (40 CFR part 2, subpart B).
Finally, EPA has established precedent in applying confidentiality determinations to RCRA hazardous waste documents. On February 7, 2014, EPA published the Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System; Electronic Manifests final rule which made a categorical determination for individual RCRA hazardous waste manifest records. In EPA's Notice of Data Availability and Request for Comment on the Agency's Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System (73 FR 10204) published on February 26, 2008, EPA concluded that information contained in individual manifested records is essentially public information and therefore is not eligible under federal law for treatment as CBI. The effect of this decision was that EPA made a categorical determination that it will not accept any CBI claims that might be asserted in connection with processing, using, or retaining individual paper or electronic manifests. Because the information contained in RCRA manifests is largely similar to the information contained in individual hazardous waste export and import documents, such as the name, address, and other information about the generator, transporter, and destination or receiving facility, EPA believes that the decision to apply categorical determinations for electronic manifests further supports the proposed confidentiality determination in this action for the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded cathode ray tubes (CRTs) and related aggregate information.
Based on our analysis of the CBI criteria in 40 CFR part 2, subpart B, the absence of successful confidentiality claims by the original submitters of information and the lack of assertions of confidentiality submitted by affected businesses other than original submitters in response to the annual
EPA requests comment on our proposed confidentiality determination to prospectively exclude the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs from eligibility for CBI claims. In addition, the Agency believes that these documents do not qualify for the FOIA exemption for personal privacy, and thus the names of company employees or independent contractors that appear in these documents would not be exempt from public release. These documents do not qualify for the personal privacy exemption because the aforementioned documents submitted to the Agency are also shared with several commercial entities while they are being processed and used. As such, such persons whose names appear in these documents have no expectation of privacy. EPA requests public comment on this position.
EPA proposes not to make publicly accessible the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs during the previous calendar year until March 1 of the succeeding year, except as required by applicable federal law, because EPA considers that these documents are still not in final form. Access would be limited while the data are being collected and verified, as data are processed, and exceptions or discrepancies are being resolved. This decision would not impact any CBI claims or any determinations made in the past by EPA in resolving CBI claims related to the export, import, and transit of hazardous waste and export of excluded CRTs.
EPA requests comment on our proposed confidentiality determination that the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs, and data compiled from such documents, would be excluded from CBI claims and made releasable on an annual basis, except as required by applicable federal law. EPA also requests comment on whether requiring that internet posting of confirmations of receipt and confirmations of recovery or disposal by March 1 of each year is an appropriate timeframe for the documents to be considered in final form.
EPA understands that the waste management industry may be concerned that the aggregation of the data contained in the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs may enable competitors to obtain more immediate and efficient access to customer information, thus potentially creating competitive consequences not previously experienced under the current paper system. Exemption 4 of the Freedom of Information Act (FOIA) exempts from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential” (5 U.S.C. 552(b)(4)). In order for information to meet the requirements of Exemption 4, EPA must find that the information is either (1) a trade secret; or (2) commercial or financial information obtained from a person and privileged or confidential (commonly referred to as “Confidential Business Information' (“CBI”)). Since the individual aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs would not be eligible for CBI treatment for the reasons discussed previously, it is a novel issue for EPA whether requests under FOIA for data aggregated from multiple selected records would require special handling by EPA under the FOIA exemption for confidential business information.
Therefore, EPA is seeking public comment on how, if at all, EPA should address any future FOIA requests for aggregate data from the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs. First, EPA needs information on how substantial the harm would be to a company's competitive position if aggregate data from multiple manifests could be obtained from EPA under a FOIA request. How would this situation differ quantifiably from the current situation where a FOIA request can be made for several of the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs and the requester must then aggregate the relevant data in each of these manifests for himself or herself?
Given our uncertainty about the adverse effects or competitive harm to waste management businesses that would submit hazardous waste export and import documents to EPA, we seek comment on whether the release of aggregated data would adversely impact waste management businesses. In particular, we ask that the waste management industry substantiate their concerns, if any, that the aggregation of manifest data and the subsequent disclosure of that data would somehow release their company's confidential business information and thus cause substantial competitive harm to them.
If EPA were to determine that the waste management industry concerns for the disclosure of aggregate information are legitimate and that they are not sufficiently addressed by the approach described previously in this proposal, then we could develop another approach to mitigate the ability to efficiently create customer lists from aggregated data. We therefore request comment on how EPA should design and implement an approach to protect the disclosure of aggregate data of competitive value, if such an approach were appropriate. For example, what are the indicators of aggregated requests (
If, however, EPA were to determine that the release of aggregate information would not be entitled to confidentiality, EPA would make publicly available such aggregate information in addition to individual documents discussed previously.
The proposed internet posting requirements do not affect the current recordkeeping requirements for retaining paper copies of the export confirmations of receipt, export confirmations of completing recovery or disposal, import confirmations of receipt, and import confirmations of completing recovery or disposal. These paper documents must be retained by exporters and receiving facilities for a period of at least three (3) years.
EPA's hazardous waste export and import regulations were originally promulgated in 1986, and have been revised multiple times. For more information about these requirements and revisions that are being published in this issue of the
Under the newly revised requirements in 40 CFR parts 262, 264 and 265, as amended in EPA's Hazardous Waste Export-Import Revisions Final Rule (found in the “Rules and Regulations” section of this
• Import notices for hazardous waste in cases where country of export does not control as hazardous waste export and EPA has not received notice from country of export (40 CFR 262.84(b));
• Export exception reports for hazardous waste (40 CFR 262.83(h), in lieu of exception reporting required under 40 CFR 262.42);
• Receiving facility notifications of the need to arrange alternate management or the return of an import shipment of hazardous waste (262.84(f)(6), 264.12(a)(4)(ii), 265.12(a)(4)(ii)).
As of the electronic import-export reporting compliance date, per the newly revised requirements in 40 CFR parts 262, 264 and 265, as amended in EPA's Hazardous Waste Export-Import Revisions Final Rule (found in the “Rules and Regulations” section of this
(a) Export confirmations of receipt using movement document (submittal by foreign recovery facility required per contract requirements, 40 CFR 262.83(d)(xv) and 262.83(f)(4));
(b) Export confirmations of completing recovery or disposal (submittal by foreign recovery facility required per contract requirements, 40 CFR 262.83(f)(5));
(c) Import confirmations of receipt using movement document (40 CFR 262.84(d)(xv), 264.12(a)(2), 264.71(d), 265.12(a)(2), 265.71(d));
(d) Import confirmations of completing recovery or disposal (40 CFR 262.84(g), 264.12(a)(4)(i), 265.12(a)(4)(i)).
To facilitate accessibility and transparency of documentation concerning import and export shipments of hazardous waste that are received and completely recovered or disposed of during the period prior to the electronic import-export reporting compliance date, EPA is proposing that exporters and receiving facilities of hazardous waste maintain a publicly accessible Web site (“Export/Import Web site”) to which the four confirmation documents listed previously in (a), (b), (c), and (d) would be posted. EPA believes that easier access to this information will allow EPA and the public to better monitor exporters' and importers' compliance with EPA's hazardous waste regulations and help verify that hazardous waste shipments are properly received and disposed.
EPA believes the internet is currently the most convenient and widely
EPA's proposal requires exporters and receiving facilities of hazardous waste to maintain a Web site to which information can be posted regarding the confirmation of receipt and confirmation of completed recovery or disposal of individual hazardous waste export and import shipments. The Web site is an appropriate means for ensuring public access to the required information while the Agency develops the electronic submittal capabilities of WIETS. EPA intends for such postings to the exporter or receiving facility's Web site to be a temporary requirement to be superseded on the electronic import-export reporting compliance date when they will be required to electronically submit the confirmations to WIETS.
The confirmation of receipt is a copy of the signed and dated international movement document that must accompany a consented hazardous waste shipment from the starting site in the country of export to the destination site in the country of import. To confirm receipt of the shipment, U.S. exporters must ensure that copies of the signed movement document (
The confirmation of recovery or disposal documents the completion of final management (
As described previously, the confirmation of receipt and confirmation of recovery or disposal are important requirements that document the receipt and final disposition of individual hazardous waste export and import shipments. With regards to exports, the confirmations are the only records documenting that hazardous waste shipments are properly received and managed in the foreign country importing the waste. EPA believes that public access to these documents on the Web sites of exporters and receiving facilities of hazardous waste from foreign sources facilitates the tracking and monitoring compliance of hazardous waste shipments in accordance with EPA's hazardous waste regulations and helps verify that hazardous waste shipments are properly received and disposed.
As discussed in the previous section, EPA proposes to apply confidentiality determinations to the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs. Based on our analysis of the CBI criteria provided in Section I.E. of this proposed rule, we conclude that the information contained in the aforementioned documents related to the export, import, and transit of hazardous waste and export of excluded CRTs is essentially public information. Therefore, we propose that no CBI claims may be asserted with respect to any of the aforementioned documents, including hazardous waste export and import confirmations of receipt and confirmations of recovery or disposal.
Each confirmation of receipt and confirmation of recovery or disposal posted to the company Web sites of hazardous waste exporters and receiving facilities of hazardous waste from foreign sources must be publicly available for a period of at least three years following the date on which the document was first required to be posted to the Web site. The proposed internet posting requirements do not affect the current recordkeeping requirements for retaining paper copies of the export confirmations of receipt, export confirmations of completing recovery or disposal, import confirmations of receipt, and import confirmations of completing recovery or disposal. These paper documents must be retained by exporters and receiving facilities for a period of at least three (3) years.
After the electronic import-export reporting compliance date when confirmations will be submitted electronically, the requirement to post these copies and to make them publicly available for three years does not apply.
EPA is proposing a confidentiality determination to exclude hazardous waste export, import, and transit documents and CRT export documents from confidentiality claims.
EPA is proposing to modify the reporting and recordkeeping requirements for exporters of hazardous waste and receiving facilities such that, prior to the future electronic import/export reporting compliance date, regulated parties are required to maintain a single, publicly accessible Web site (“Export/Import Web site”) containing readable, read-only, publicly accessible, downloadable images of the following documents: Export confirmations of receipt; export confirmations of recovery or disposal; import confirmations of receipt; and import confirmations of recovery or disposal. The exporter's Web site must be titled “Hazardous Waste Export/Import Regulations Compliance Documents.”
Each document posted to the Export/Import Web site must be publicly accessible on the Web site by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal received by the exporter or sent out by the receiving facility during the previous calendar year. Each confirmation must be publicly available for a period of at least three years following the date on which the document was first required to be posted to the Web site. This requirement to post these copies and to make them publicly available for three years does not apply, however, after the electronic import-export reporting compliance date. The documents must clearly identify the EPA ID number of the exporter or receiving facility, the consent number associated with the shipment, and the shipment number relative to the total number of allowable shipments for the consent number. These documents must be retained by exporters or receiving facilities for a period of at least three (3) years.
EPA is proposing to modify the reporting and recordkeeping requirements for the owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source such that, prior to the future electronic import-export reporting compliance date, regulated parties will be required to maintain a single, publicly available Web site containing readable, read-only, publicly accessible, downloadable images of the following documents: Import confirmations of receipt and import confirmations of recovery or disposal. The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” Each document posted to the Export/Import Web site must be publicly accessible on the Web site by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be publicly available for a period of at least three years following the date on which the document was first required to be posted to the Web site. (This requirement to post these copies and to make them publicly available for three years does not apply, however, after the electronic import-export reporting compliance date.) These documents must be retained by the receiving facilities for a period of at least three (3) years.
EPA is proposing to modify the reporting and recordkeeping requirements for the owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source such that, prior to the future electronic import-export reporting compliance date, regulated parties will be required to maintain a single, publicly available Web site containing readable, read-only, publicly accessible, downloadable images of the following documents: Import confirmations of receipt and import confirmations of recovery or disposal documents. The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” Each document posted to the Export/Import Web site must be publicly accessible on the Web site by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be publicly available for a period of at least three years following the date on which the document was first required to be posted to the Web site. This requirement to post these copies and to make them publicly available for three years does not apply, however, after the electronic import-export reporting compliance date. These documents must be retained by the receiving facilities for a period of at least three (3) years.
EPA is proposing to modify the reporting and recordkeeping requirements for the owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source such that, prior to the future electronic import-export reporting compliance date, regulated parties will be required to maintain a single, publicly available Web site containing readable, read-only, publicly accessible, downloadable images of the import confirmations of receipt. The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” Each document posted to the Export/Import Web site must be publicly accessible on the Web site by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be publicly available for a period of at least three years following the date on which the document was first required to be posted to the Web site. This requirement to post these copies and to make them publicly available for three years does not apply, however, after the electronic import-export reporting compliance date. These documents must be retained by the receiving facilities for a period of at least three (3) years.
The Agency's economic assessment conducted in support of this proposed action evaluates costs, cost savings, benefits, and other impacts, such as environmental justice, children's health, unfunded mandates, regulatory takings, and small entity impacts. To conduct this analysis, we developed and
This economic analysis assesses the costs and cost savings of the proposed rule. It estimates the unit costs for each provision of the rule and applies these values to the number of affected entities, and it employs a “model entity” approach to estimate the cost and cost savings associated with the proposed rule, applying average costs by entity type (
The analysis conducted for this proposal is a simple cost assessment. We do not attempt to estimate the social costs and benefits associated with this action. This is consistent with Executive Order 12866, which requires a full Regulatory Impact Analysis only for actions having an estimated impact on society of greater than $100 million per year.
Regulated parties will incur costs to familiarize itself with the requirements of the rule and comply with each of the provisions described in the summary of the proposed rule and changes. The most significant costs to industry under the proposed rule are associated with the posting of the required documents to the Export/Import Web site until the electronic submittal capabilities of WIETS are fully developed.
As a result of the rule, the annualized costs to regulated parties are estimated to be about $99,309 if the electronic submittal capabilities of WIETS are developed in 2018 and estimated to be about $333,993 if the electronic submittal capabilities of WIETS are developed in 2022, using a 7 percent discount rate.
There are a number of qualitative benefits associated with this proposed rule.
During the interim period, the rule will:
• Achieve greater transparency and public accessibility of export and import documentation;
• Improve the public's ability to acquire information regarding the quantities of U.S. hazardous waste exports and imports;
• Help monitor proper compliance with EPA's hazardous waste regulations and verify that hazardous waste shipments are properly received and disposed.
Under section 3006 of RCRA, EPA may authorize qualified States to administer their own hazardous waste programs in lieu of the federal program within the State. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized States have primary enforcement responsibility. The standards and requirements for State authorization are found at 40 CFR part 271. Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that State. The federal requirements no longer applied in the authorized State, and EPA could not issue permits for any facilities in that State, since only the State was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the State was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized State until the State adopted the federal requirements as State law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized States at the same time that they take effect in unauthorized States. EPA is directed by the statute to implement these requirements and prohibitions in authorized States, including the issuance of permits, until the State is granted authorization to do so. While States must still adopt HSWA related provisions as State law to retain final authorization, EPA implements the HSWA provisions in authorized States until the States do so.
Authorized States are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. RCRA section 3009 allows the States to impose standards more stringent than those in the federal program (see also 40 CFR 271.1). Therefore, authorized States may, but are not required to, adopt federal regulations, both HSWA and non-HSWA, that are considered less stringent than previous federal regulations.
Because of the federal government's special role in matters of foreign policy, EPA does not authorize States to administer Federal import/export functions in any section of the RCRA hazardous waste regulations. This approach of having Federal, rather than State, administering of the import/export functions promotes national coordination, uniformity and the expeditious transmission of information between the United States and foreign countries.
Although States do not receive authorization to administer the Federal government's export functions in the previous 40 CFR part 262 subpart E, import functions in the previous 40 CFR part 262 subpart F, import/export functions in the previous or revised 40 CFR part 262 subpart H, or the import/export relation functions in any other section of the RCRA hazardous waste regulations, State programs are still required to adopt the provisions in this rule to maintain their equivalency with the Federal program (see 40 CFR 271.10(e)).
This proposed rule contains amendments to the revised 40 CFR part 262 subpart H. The rule also contains related amendments to 40 CFR parts 260, 262, 264, 265, and 267, all of which are more stringent.
The States that have already adopted 40 CFR part 262 subparts E, F and H, 40 CFR parts 263, 264, 265, and any other import/export related regulations, and that will be adopting the revisions in the Hazardous Waste Export-Import Revisions Final Rule, published in the “Rules and Regulations” section of this
When a State adopts the import/export provisions in this rule (if final), they must not replace Federal or international references or terms with State references or terms.
The provisions of this rule, if final, will take effect in all States on the effective date of the rule, since these import and export requirements will be
Additional information about these statutes and Executive Orders can be found at
This proposed rule is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. The EPA prepared an economic analysis of the potential costs and benefits associated with this action. This analysis, titled “Regulatory Impact Analysis: Internet Posting and Confidentiality Determinations for Hazardous Waste Export and Import Documents Proposed Rule,” is available in the docket. Interested persons, including those persons currently importing and exporting hazardous waste, are encouraged to read and comment on the accuracy of the assumptions and the burden estimates presented in this document (
The information collection activities in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2557.01. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.
This action proposes that exporters of hazardous waste and receiving facilities of hazardous waste post read-only, publicly accessible, downloadable images of required documents to a single publicly accessible Web site to be developed and maintained by each regulated party.
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.
Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to
EPA certifies 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 exporters of hazardous waste and receiving facilities of hazardous waste from foreign sources. The Agency has determined that approximately 22 percent of exporters and approximately 25 percent of facilities receiving hazardous waste from foreign sources, are small entities, generating an average revenue of approximately $41 million and $8 million annually. The cumulative average cost of this proposed action will not exceed one percent of annual revenues for any one entity. Details of this analysis are presented in Section 5.2 of “Regulatory Impact Analysis: Internet Posting and Confidentiality Determinations for Hazardous Waste Export and Import Documents Proposed Rule,” which is available in the docket.
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. Further, UMRA does not apply to the portions of this action concerning application of OECD import and export procedures because those portions are necessary for the national security or the ratification or implementation of international treaty obligations (
This action does not have federalism implications because the state and local governments do not administer the export and import requirements under RCRA. 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. No exporters, importers or transporters affected by this action are known to be owned by Tribal governments or located within or adjacent to Tribal lands. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2–202 of the Executive Order. 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. The requirements in this action should prevent mismanagement
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action is designed to increase the accessibility and transparency of documentation of individual hazardous waste import and export shipments.
Executive Order 13659, titled “Streamlining the Export/Import Process for America's Businesses” (79 FR 10657, February 25, 2014), establishes federal executive policy on improving the technologies, policies, and other controls governing the movement of goods across our national borders. This proposed action strengthens the accessibility and transparency of documentation by requiring public internet posting of confirmation of receipt and confirmation of recovery or disposal of individual export and import shipments of hazardous wastes prior to the future electronic import-export reporting compliance date EPA will establish in a separate
Environmental protection, CRTs, Exports, Hazardous materials transportation, Hazardous waste, Imports, Labeling, Packaging and containers, Reporting and recordkeeping requirements, Transits.
Environmental protection, Hazardous waste, Exports, Imports, Reporting and recordkeeping requirements.
Environmental protection, Hazardous waste, Imports, Reporting and recordkeeping requirements.
Environmental protection, Hazardous waste, Imports, Reporting and recordkeeping requirements.
Environmental protection, Hazardous waste, Imports, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, title 40, chapter 1 of the Code of Federal Regulations is proposed to be amended as follows.
42 U.S.C. 6905, 6912(a), 6921–27, 6930, 6934, 6935, 6937, 6938, 6939, and 6974.
(b) Except as provided under paragraphs (c) and (d) of this section, any person who submits information to EPA in accordance with parts 260 through 266 and 268 of this chapter may assert a claim of business confidentiality covering part or all of that information by following the procedures set forth in § 2.203(b) of this chapter. Information covered by such a claim will be disclosed by EPA only to the extent, and by means of the procedures, set forth in part 2, Subpart B, of this chapter.
(d)(1) After [final rule effective date], no claim of business confidentiality may be asserted by any person with respect to information contained in cathode ray tube export documents prepared, used and submitted under §§ 261.39(a)(5) and 261.41(a) of this chapter, and with respect to information contained in hazardous waste export, import, and transit documents prepared, used and submitted under §§ 262.82(c), 262.83, 262.84, 264.12(a), 264.71(d), 265.12(a), 265.71(d), and 267.71(d), whether submitted to EPA electronically or in paper format.
(2) EPA will make any cathode ray tube export documents prepared, used and submitted under §§ 261.39(a)(5) and 261.41(a) of this chapter, and any hazardous waste export, import, and transit documents prepared, used and submitted under §§ 262.82(c), 262.83, 262.84, 264.12(a), 264.71(d), 265.12(a), 265.71(d), and 267.71(d) of this chapter available to the public under this section when these electronic or paper documents are considered by EPA to be releasable and final. These submitted electronic and paper documents related to hazardous waste exports, imports and transits and cathode ray tube exports are considered by EPA to be public documents and are considered to be final documents on March 1 of the calendar year after the related cathode ray tube exports or hazardous waste exports, imports, or transits were made.
42 U.S.C 6906, 6912, 6922–6925, 6937, and 6938.
(i) * * *
(4) Prior to the electronic import-export reporting compliance date, the exporter must post copies of the export confirmations of receipt and confirmations of recovery or disposal that the exporter receives to the exporter's publicly accessible Web site (Export/Import Web site). The exporter's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The posted copies must be clearly readable, read-only, publicly accessible, and downloadable, and the file names of each copy must clearly identify the document type, EPA ID number of the facility, and consent number associated with the shipment. Each copy must be posted no later than by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal received by the exporter during the previous calendar year. Each confirmation must be maintained on the exporter's Web site for at least three (3)
(h) * * *
(5) Prior to the electronic import-export reporting compliance date, the receiving facility must post copies of the import confirmations of receipt and confirmations of recovery or disposal that the receiving facility sends to the foreign exporter to the receiving facility's publicly accessible Web site (Export/Import Web site). The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The posted copies must be clearly readable, read-only, publicly accessible, and downloadable, and the file names of each copy must clearly identify the document type, EPA ID number of the facility, and consent number associated with the shipment. Each copy must be posted no later than by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be maintained on the receiving facility's Web site for at least three (3) years from the date it was initially required to be posted. This requirement to post these copies does not apply after the electronic import-export reporting compliance date.
42 U.S.C. 6905, 6912(a), 6924, and 6925.
(d) Prior to the electronic import-export reporting compliance date, the owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must post copies of the import confirmations of receipt and confirmations of recovery or disposal that the facility sends to the foreign exporter to the facility's publicly accessible Web site (Export/Import Web site). The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The posted copies must be clearly readable, read-only, publicly accessible, and downloadable, and the file names of each copy must clearly identify the document type, EPA ID number of the facility, and consent number associated with the shipment. Each copy must be posted no later than by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be maintained on the receiving facility's Web site for at least three (3) years from the date it was initially required to be posted. This requirement to post these copies does not apply after the electronic import-export reporting compliance date.
42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 6935, 6936, and 6937.
(d) Prior to the electronic import-export reporting compliance date, the owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must post copies of the import confirmations of receipt and confirmations of recovery or disposal that the facility sends to the foreign exporter to the facility's publicly accessible Web site (Export/Import Web site). The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The posted copies must be clearly readable, read-only, publicly accessible, and downloadable, and the file names of each copy must clearly identify the document type, EPA ID number of the facility, and consent number associated with the shipment. Each copy must be posted no later than by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be maintained on the receiving facility's Web site for at least three (3) years from the date it was initially required to be posted. This requirement to post these copies does not apply after the electronic import-export reporting compliance date.
42 U.S.C. 6902, 6912(a), 6924–6926, and 6930.
(e) Prior to the electronic import-export reporting compliance date, the facility that receives hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must post copies of the import confirmations of receipt and confirmations of recovery or disposal that the facility sends to the foreign exporter to the facility's publicly accessible Web site (Export/Import Web site). The receiving facility's Web site must be titled “Hazardous Waste Export/Import Rule Compliance Documents.” The posted copies must be clearly readable, read-only, publicly accessible, and downloadable, and the file names of each copy must clearly identify the document type, EPA ID number of the facility, and consent number associated with the shipment. Each copy must be posted no later than by the first of March of each year and include all of the confirmations of receipt and confirmations of recovery or disposal sent out by the receiving facility during the previous calendar year. Each confirmation must be maintained on the receiving facility's Web site for at least three (3) years from the date it was initially required to be posted. This requirement to post these copies does not apply after the electronic import-export reporting compliance date.
Environmental Protection Agency (EPA).
Proposed rule.
Under the Toxic Substance Control Act (TSCA), EPA is proposing a significant new use rule (SNUR) for two alkylpyrrolidones:
Comments must be received on or before January 27, 2017.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2015–0387, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
You may be potentially affected by this action if you manufacture, process, or distribute in commerce chemical substances and mixtures. 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:
• Ship Building and Repairing (NAICS code 336611).
• Aircraft Manufacturing (NAICS code 336411).
• Museums (NAICS code 712110).
• Independent Artists, Writers, and Performers (NAICS code 711510).
• Reupholster and Furniture Repair (NAICS code 811420).
• Automotive Body Paint and Interior Repair Maintenance (NAICS code 811121).
• Flooring Contractors (NAICS code 238330).
• Painting and Wall Covering Contractors (NAICS code 238320).
• Adhesive Tape Manufacturing (NAICS code 339113).
• Adhesive Manufacturing (NAICS code 325520).
• Denture Adhesive Manufacturing (NAICS code 325620).
• Basic Chemical Manufacturing (NAICS code 325411).
• Pharmaceutical and Medicine Manufacturing (NAICS code 32541).
• Printing Ink Manufacturing (NAICS code 325910).
• Textile Leather Manufacturing (NAICS code 316998).
• Textile Manufacturing (NAICS code 325613).
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Persons who import any chemical substance governed by a final SNUR are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements and the corresponding regulations at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this proposed rule on or after December 28, 2016 are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)), (see 40 CFR 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
If you have any questions regarding the applicability of this action to a particular entity, consult the technical information contact listed under
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2) (see Unit IV.). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture (including import) or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)(i)). TSCA furthermore prohibits such manufacturing or processing from commencing until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination (15 U.S.C. 2604(a)(1)(B)(ii)). As described in Unit V., the general SNUR provisions are found at 40 CFR part 721, subpart A.
EPA is proposing a SNUR for two alkylpyrrolidones: N-ethylpyrrolidone (NEP) and N-isopropylpyrrolidone (NiPP). The proposed significant new uses are any use of NiPP and any use of NEP except for the ongoing uses as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives. The
This proposed SNUR would require persons that intend to manufacture (including import) or process any of these chemicals for a significant new use, consistent with the requirements at 40 CFR 721.25, to notify EPA at least 90 days before commencing such manufacture or processing. This proposed SNUR would furthermore preclude the commencement of such manufacturing or processing until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination.
This proposed SNUR is necessary to ensure that EPA receives timely advance notice of any future manufacturing or processing of NEP and NiPP for new uses that may produce changes in human and environmental exposures, and to ensure that an appropriate determination (relevant to the risks of such manufacturing or processing) has been issued prior to the commencement of such manufacturing or processing. Today's action is furthermore necessary to ensure that, in the event that EPA determines: (1) That the significant new use presents an unreasonable risk under the conditions of use (without consideration of costs or other nonrisk factors, and including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA); (2) that the information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the significant new use; (3) that in the absence of sufficient information, the manufacture, processing, distribution in commerce, use, or disposal of the substance, or any combination of such activities, may present an unreasonable risk (without consideration of costs or other nonrisk factors, and including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA), or (4) that there is sufficient potential for environmental release or human exposure (as defined in TSCA section 5(a)(3)(B)(ii)(II)), then manufacturing or processing for the significant new use cannot proceed until EPA has responded to the circumstances by taking the required actions under sections 5(e) or 5(f) of TSCA.
The two chemical substances subject to this proposed SNUR are structurally similar to and have similar physical-chemical properties to N-methylpyrrolidone (NMP), which EPA identified for risk evaluation as part of its Work Plan for Chemical Assessment under TSCA. Because of structural and physical-chemical similarity to NMP (Ref. 1, 2), these chemicals are expected to exhibit toxicity similar to NMP. The rationale and objectives for this proposed SNUR are explained in Unit III.
EPA has evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers and processors of the chemical substances included in this proposed rule. This analysis (Ref. 3), which is available in the docket, is discussed in Unit IX., and is briefly summarized here.
In the event that a SNUN is submitted, costs are estimated to be less than $8,900 per SNUN submission for large business submitters and $6,500 for small business submitters. These estimates include the cost to prepare and submit the SNUN and the payment of a user fee. The proposed SNUR would require first-time submitters of any TSCA section 5 notice to register their company and key users with the CDX reporting tool, deliver a CDX electronic signature to EPA, and establish and use a Pay.gov E-payment account before they may submit a SNUN, for a cost of approximately $200 per firm. However, these activities are only required of first time submitters of section 5 notices. In addition, for persons exporting a substance that is the subject of a SNUR, a one-time notice to EPA must be provided for the first export or intended export to a particular country, which is estimated to be approximately $80 per notification.
This proposed SNUR would apply to two alkylpyrrolidones: NiPP (Chemical Abstract Services Registry Number (CASRN) 3772–26–7) for any use, and to NEP (CASRN 2687–91–4) for any use except for the ongoing uses as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives.
In order to identify production volumes and uses of NEP and NiPP, EPA reviewed published literature including IHS' Chemical Economics Handbook, National Institute of Health's (NIH) Household Product Database, EPA's Chemical/Product Categorical Data (CPcat) database, the Consumer Product Information Database, the most recent data available from EPA's Chemical Data Reporting (CDR) program, general
There are no known ongoing uses of NiPP as of November 17, 2016, the date of public release/web posting of this proposal.
NEP is an organic solvent used as a substitute for NMP because of its similar solvent properties and very similar chemical structure (Ref. 1). NiPP is also a structurally similar analog with physical-chemical properties similar to NMP (Ref. 2). These two chemical
EPA has identified developmental effects as a key endpoint of concern from NMP exposure. Specifically, EPA has identified a number of biologically relevant, consistent, and sensitive developmental effects due to exposure to NMP through the oral and dermal routes, including decreased fetal and pup body weight, delayed ossification, skeletal malformations, and increased fetal and pup mortality (Ref. 8, 9, 10).
Study data are available on NEP and the developmental effects and malformations observed in the animal studies of NEP are similar to those observed in NMP studies (Ref. 1). For example, NEP exposure through oral and dermal routes is associated with adverse effects on fetal body weight, post-implantation loss (specifically late resorptions following oral exposures), and malformations. NEP exposure is also associated with skeletal malformations by oral route and cardiovascular malformation by oral and dermal routes in the animal studies (Ref. 1).
NMP is well absorbed following dermal exposures, such as during use of coating, paint stripping or cleaning products (Ref. 11, 12). Since NEP and NiPP are analogs of NMP, these chemical substances are expected to have similar routes of exposure. Dermal exposure and absorption, which includes dermal absorption from the vapor phase, typically contributes significantly to human exposure. Prolonged exposures to neat (
Given the similarity of their physical-chemical properties to those of NMP, NEP, and NiPP can be used in ways similar to NMP resulting in potential dermal and inhalation exposures.
EPA is concerned about the potential for adverse health effects of NEP and NiPP based on data on the adverse health effects of NEP and because these chemicals are analogs of NMP that have similar physical-chemical properties and are therefore expected to or have been shown to have similar toxicological properties.
As discussed in Unit II, based on an extensive review of available information, EPA has determined that, at the time of publication of this proposed rule NiPP is not used for any use, and that NEP has ongoing uses as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives (Ref. 3). EPA has concluded that action on these chemical substances is warranted and therefore any manufacturing or processing of NiPP for any use, and manufacture or processing of NEP for any use except for the ongoing uses as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives, would be a significant new use.
Consistent with EPA's past practice for issuing SNURs under TSCA section 5(a)(2), EPA's decision to propose a SNUR for a particular chemical use need not be based on an extensive evaluation of the hazard, exposure, or potential risk associated with that use. If a person decides to begin manufacturing or processing any of these chemicals for the use, the notice to EPA allows the Agency to evaluate the use according to the specific parameters and circumstances surrounding the conditions of use.
Based on the considerations in Unit III.A., EPA wants to achieve the following objectives with regard to the significant new use(s) of NEP and NiPP that are designated in this proposed rule:
1. EPA would receive notice of any person's intent to manufacture or process the chemical substances for the described significant new use before that activity begins.
2. EPA would have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing the chemical substances for the described significant new use.
3. EPA would be able to either determine that the prospective manufacture or processing is not likely to present an unreasonable risk, or to take necessary regulatory action associated with any other determination, before the described significant new use of the chemical substance occurs.
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors including:
1. The projected volume of manufacturing and processing of a chemical substance.
2. The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
3. The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
4. The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors.
To determine what would constitute a significant new use of NEP or NiPP, as discussed in this unit, EPA considered relevant information about the toxicity or expected toxicity of these substances, likely human exposures and environmental releases associated with possible uses, and the four factors listed in section 5(a)(2) of TSCA. EPA has preliminarily determined as significant new uses: Any use of NiPP and any use of NEP except for the ongoing uses as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives. Because NiPP is not used, and NEP is not currently used except as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives, EPA believes any new use could increase the magnitude and duration of human exposure to these chemical substances. Exposure to NEP or NiPP may lead to adverse developmental health effects.
General provisions for SNURs appear under 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule.
Provisions relating to user fees appear at 40 CFR part 700. According to 40 CFR 721.1(c), persons subject to SNURs must comply with the same notice requirements and EPA regulatory procedures as submitters of Premanufacture Notices (PMNs) under TSCA section 5(a)(1)(A). In particular,
Persons who export or intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations that interpret TSCA section 12(b) appear at 40 CFR part 707, subpart D. Persons who import a chemical substance identified in a final SNUR are subject to the TSCA section 13 import certification requirements, codified at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Those persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B.
EPA designates November 17, 2016 (the date of public release/web posting of this proposal) as the cutoff date for determining whether the new use is ongoing. This designation varies slightly from EPA's past practice of designating the date of
Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified as of November 17, 2016 would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and wait until all TSCA prerequisites for the commencement of manufacture or processing have been satisfied. Consult the
EPA recognizes that TSCA section 5 does not usually require developing new information (
In the absence of a section 4 test rule covering the chemical substance, persons are required to submit only information in their possession or control and to describe any other information known to or reasonably ascertainable by them (15 U.S.C. 2604(d); 40 CFR 721.25, and 40 CFR 720.50). However, as a general matter, EPA recommends that SNUN submitters include information that would permit a reasoned evaluation of risks posed by the chemical substance during its manufacture, processing, use, distribution in commerce, or disposal. EPA encourages persons to consult with the Agency before submitting a SNUN. As part of this optional pre-notice consultation, EPA would discuss specific information it believes may be useful in evaluating a significant new use.
Submitting a SNUN that does not itself include information sufficient to permit a reasoned evaluation may increase the likelihood that EPA will either respond with a determination that the information available to the Agency is insufficient to permit a reasoned evaluation of the health and environmental effects of the significant new use or, alternatively, that in the absence of sufficient information, the manufacture, processing, distribution in commerce, use, or disposal of the chemical substance may present an unreasonable risk of injury.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs and define the terms of any potentially necessary controls if the submitter provides detailed information on human exposure and environmental releases that may result from the significant new uses of the chemical substance.
EPA recommends that submitters consult with the Agency prior to submitting a SNUN to discuss what information may be useful in evaluating a significant new use. Discussions with the Agency prior to submission can afford ample time to conduct any tests that might be helpful in evaluating risks posed by the substance. According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710–25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 721.25 and 40 CFR 720.40. E–PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers and processors of the chemical substance included in this proposed rule (Ref. 3). In the event that a SNUN is submitted, costs are estimated at approximately $8,900 per SNUN submission for large business submitters and $6,500 for small business submitters. These estimates include the cost to prepare and submit the SNUN, and the payment of a user fee. Businesses that submit a SNUN would be subject to either a $2,500 user fee required by 40 CFR 700.45(b)(2)(iii), or, if they are a small business with annual sales of less than $40 million when combined with those of the parent company (if any), a reduced user fee of $100 (40 CFR 700.45(b)(1)). EPA's complete economic analysis is available in the public docket for this proposed rule (Ref. 3).
Under section 12(b) of TSCA and the implementing regulations at 40 CFR part 707, subpart D, exporters must notify EPA if they export or intend to export
Before proposing this SNUR, EPA considered the following alternative regulatory action: Promulgate a TSCA Section 8(a) Reporting Rule.
Under a TSCA section 8(a) rule, EPA could, among other things, generally require persons to report information to the Agency when they intend to manufacture or process a listed chemical for a specific use or any use. However, for NEP and NiPP, the use of TSCA section 8(a) rather than SNUR authority would have several limitations. First, if EPA were to require reporting under TSCA section 8(a) instead of TSCA section 5(a), that action would not ensure that EPA receives timely advance notice of any future manufacturing or processing of NEP and NiPP for new uses that may produce changes in human and environmental exposures. Nor would it ensure that an appropriate determination (relevant to the risks of such manufacturing or processing) has been issued prior to the commencement of such manufacturing or processing. Furthermore, a TSCA section 8(a) rule would not ensure that, in the event that EPA determines: (1) That the significant new use presents an unreasonable risk under the conditions of use (without consideration of costs or other nonrisk factors, and including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA); (2) that the information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the significant new use; (3) that in the absence of sufficient information, the manufacture, processing, distribution in commerce, use, or disposal of the substance, or any combination of such activities, may present an unreasonable risk (without consideration of costs or other nonrisk factors, and including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by EPA), or (4) that there is sufficient potential for environmental release or human exposure (as defined in TSCA section 5(a)(3)(B)(ii)(II)), then manufacturing or processing for the significant new use cannot proceed until EPA has responded to the circumstances by taking the required actions under sections 5(e) or 5(f) of TSCA.
In addition, EPA may not receive important information from small businesses, because such firms generally are exempt from TSCA section 8(a) reporting requirements (see TSCA sections 8(a)(1)(A) and 8(a)(1)(B)). In view of the level of health concerns about NEP and NiPP if used for a proposed significant new use, EPA believes that a TSCA section 8(a) rule for this substance would not meet EPA's regulatory objectives.
EPA has used scientific information, technical procedures, measures, methods, protocols, methodologies, and models consistent with the best available science, as applicable. These information sources supply information relevant to whether a particular use would be a significant new use, based on relevant factors including those listed under TSCA section 5(a)(2). As noted in Unit III, EPA's decision to propose a SNUR for a particular chemical use need not be based on an extensive evaluation of the hazard, exposure, or potential risk associated with that use.
The clarity and completeness of the data, assumptions, methods, quality assurance, and analyses employed in EPA's decision are documented, as applicable and to the extent necessary for purposes of this proposed significant new use rule, in Unit II and in the references noted above. EPA recognizes, based on the available information, that there is variability and uncertainty in whether any particular significant new use would actually present an unreasonable risk. For precisely this reason, it is appropriate to secure a future notice and review process for these uses, at such time as they are known more definitely. The extent to which the various information, procedures, measures, methods, protocols, methodologies or models used in EPA's decision have been subject to independent verification or peer review is adequate to justify their use, collectively, in the record for a significant new use rule
EPA welcomes comment on all aspects of this proposed rule. EPA based its understanding of the use profile of these chemicals on the published literature, the 2012 Chemical Data Reporting submissions, market research, and review of Safety Data Sheets. To confirm EPA's understanding, the Agency is requesting public comment on all aspects of this proposed rule, including EPA's understanding that NiPP is not currently used, and NEP is not used except as a reactant, in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives. In providing comments on an ongoing use of NEP and NiPP, it would be helpful if you provide sufficient information for EPA to substantiate any assertions of use. EPA does not have specific information on the concentration by weight of NEP currently being used in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives. If this information were available, EPA could better characterize the use. As such, EPA requests comment on the concentration by weight of NEP currently being used in silicone seal remover, coatings, consumer and commercial paint primer, and adhesives.
1.
2.
The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under
1. ECHA, Committee for Risk Assessment. Annex 1 Background document to the Opinion proposing harmonised classification and labelling at Community level of
2. Vandeputte, Bart; Moonen, Kristof; and Roose, Peter. Use of improved
3. EPA. Economic Analysis of the Proposed Significant New Use Rule for Alkylpyrrolidones. March 31, 2016.
4. BASF. N-Ethylpyrrolidone-2 (NEP) Technical Data Sheet. July 2009. Available at
5. EPA. Chemical and Product Categories (CPCat) Database. Accessed September 2015. Available at
6. BASF Corp Germany. N-Ethylpyrrolidone. Accessed August 2016. Available at
7. EPA. Downloadable of the Non-Confidential Chemical Reporting Data (CDR) Database. Downloaded July 2014.
8. Sitarek, K., J. Stekiewicz, and W. Wasowicz. 2012. Evaluation of Reproductive Disorders in Female Rats Exposed to N-Methyl-2-Pyrrolidone. Birth Defects Research (Part B), 95, 195–201.
9. Saillenfait, A. M., F. Gallissot, I. Langonne, and J. P. Sabate. 2002. Developmental Toxicity of NMethyl-2-Pyrrolidone Administered Orally to Rats. Food Chemistry and Toxicology, 40(11), 1705–1712.
10. Hass, U., S. P. Lund, and J. Elsner. 1994. Effects of Prenatal Exposure to N-Methylpyrrolidone on Postnatal Development and Behavior in Rats. Neurotoxicology and Teratology, 16(3), 241–249.
11. Bader, M., R. Wrbitzky, M. Blaszkewicz, M. Schaper, and C. van Thriel. 2008. Human Volunteer Study on the Inhalational and Dermal Absorption of N-Methyl-2-Pyrrolidone (NMP) from the Vapour Phase. Archives of Toxicology, 82(1), 13–20.
12. Keener, S., R. Wrbitzky, and M. Bader. 2007. Human Volunteer Study on the Influence of Exposure Dilution of Dermally Applied N-Methyl-2-Pyrrolidone (NMP) on the Urinary Elimination of NMP Metabolites. International Archives of Occupational and Environmental Health, 80(4), 327–334.
13. EPA. Significant New Uses of Certain Chemical Substances; Final Rule. RIVM, 2013).
This proposed SNUR is not a “significant regulatory action” and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
This action does not impose any new information collection burden under the PRA, 44 U.S.C. 3501
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under the PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in Title 40 of the CFR, after appearing in the
Pursuant to section 605(b) of the RFA, 5 U.S.C. 601
A SNUR applies to any person (including small or large entities) who intends to engage in any activity described in the rule as a “significant new use.” By definition of the word “new” and based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities. Since this SNUR will require a person who intends to engage in such activity in the future to first notify EPA by submitting a SNUN, no economic impact will occur unless someone files a SNUN to pursue a significant new use in the future or forgoes profits by avoiding or delaying the significant new use. Although some small entities may decide to conduct such activities in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemical substances, the Agency receives only a handful of notices per year. During the six year period from 2005–2010, only three submitters self-identified as small in their SNUN submission (Ref. 3). EPA believes the cost of submitting a SNUN is relatively small compared to the cost of developing and marketing a chemical new to a firm or marketing a new use of the chemical and that the requirement to submit a SNUN generally does not have a significant economic impact.
Therefore, EPA believes that the potential economic impact of complying with this proposed SNUR is not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published as a final rule on August 8, 1997 (62 FR 42690) (FRL–5735–4), the Agency presented its general determination that proposed and final SNURs are not expected to have a significant economic impact on a substantial number of small entities.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reason to
This action will not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it will not have substantial direct effect on 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 (65 FR 67249, November 9, 2000), because it will not have any effect on tribal governments, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this action does not address environmental health or safety risks, and EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2–202 of the Executive Order.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have any effect on energy supply, distribution, or use.
This rulemaking does not involve any technical standards, and is therefore not subject to considerations under section 12(d) of NTTAA, 15 U.S.C.272 note.
This action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action does not affect the level of protection provided to human health or the environment.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, it is proposed that 40 CFR chapter I be amended as follows:
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(2) The significant new uses are:
(i) For
(ii) For
(b) [Reserved]
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
NHTSA is proposing to require placing a label on the passenger side sun visor of light-duty vehicles that provides information about how to submit a safety-related motor vehicle defect complaint to NHTSA. This rulemaking also proposes updating the required information in 49 CFR 575.6 for defect reporting information in owner's manuals through the addition of the text developed for this proposal. This proposal responds to the mandate in the Moving Ahead for Progress in the 21st Century Act of 2012 (MAP–21) that manufacturers be required to affix, in the glove compartment or in another readily accessible location on the vehicle, a sticker, decal, or other device that provides, in simple and understandable language, information about how to submit a safety-related motor vehicle defect complaint to NHTSA; and prominently print the information described above within the owner's manual.
Comments must be received on or before January 27, 2017. See the
You may submit your comments, identified by Docket ID No. NHTSA–2015–0096, by any of the following methods:
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•
•
○ Docket Management Facility, M–30, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Ground Floor, Rm. W12–140, Washington, DC 20590, Attention Docket ID No. NHTSA–2015–0096.
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○ Department of Transportation, 1200 New Jersey Avenue SE., West Building, Ground Floor, Rm. W12–140, Washington, DC 20590, Attention
For technical issues: Hisham Mohamed, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366–0307.
For legal issues: Ryan Hagen, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366–2992.
This rulemaking proposes to require placing a sticker, decal, or other device that provides, in simple and understandable language, information about how to submit a safety-related motor vehicle defect complaint to NHTSA on the passenger side sun visor. The agency believes that the sun visor is not only the most accessible of the locations considered, but also it is the most prominent location, which would allow for the most informational benefit to consumers. This rulemaking also proposes updating the defect reporting information manufactures are required to include in owner's manuals. This rulemaking proposes to move the requirement to a different section of the CFR.
The benefits of the proposed rule, although not quantifiable, are anticipated to include: (1) improved messaging and information to consumers on how to submit a safety-related motor vehicle defect complaint to NHTSA; (2) increased consumer involvement in the motor vehicle defect reporting process; (3) reduced time between consumer awareness of a possible motor vehicle defect and industry response; (4) cost savings to the consumer through improved and timely defect-related response by the manufacturer; (5) reduction in the risk and incidence of injuries and fatalities attendant with the possible safety-related motor vehicle defect; (6) decreased motor vehicle property damage; (7) improvement in agency data-collection on potential safety problems in motor vehicles and motor vehicle equipment, and resultant decisions on whether to open an investigation; and, (8) cost savings to the industry by providing motor vehicle manufacturers with information that they may not yet have identified and gathered. While NHTSA believes that the benefits of this proposed rule would outweigh the costs, NHTSA notes that this rulemaking is required by statute and the agency is not required to determine that it is cost-beneficial.
The Moving Ahead for Progress in the 21st Century Act of 2012 (MAP–21)
Section 31306 of MAP–21 amended section 32302(d) of Chapter 323, Title 49, of the United States Code (U.S.C.). Chapter 323 codifies consumer information requirements initially established by the Motor Vehicle Information and Cost Savings Act of 1972 (Pub. L. 92–513). Section 31306 of MAP–21 requires that NHTSA develop a rulemaking to require passenger motor vehicle manufacturers (1) to affix, in the glove compartment or in another readily accessible location on the vehicle, a sticker, decal, or other device that provides, in simple and understandable language, information about how to submit a safety-related motor vehicle defect complaint to NHTSA; and (2) to prominently print the information described above by placing the text in Bold letters within the owner's manual. Section 31306 specifies that the above information must not be placed on the label required under section 3 of the Automobile Information Disclosure Act (15 U.S.C. 1232).
The agency has interpreted Section 31306 as directing DOT (by delegation, NHTSA) to determine a readily accessible location in a passenger motor vehicle for the required information to be affixed (considering the glove compartment as one option), and to ensure that the information is conveyed in simple and understandable language via a sticker, decal, or other device. NHTSA believes that the determinations of whether to require (1) a particular location for the sticker, decal, or other device, (2) specified language to be used by all manufacturers, or (3) a particular location for the information in the owner's manual, are left to the agency's discretion. We have interpreted the terms “sticker, decal, or other device,” to be various forms of the term “label.” Thus, we use the term “label” throughout this proposal to refer to the various ways a manufacturer could place the required information on the vehicle. We believe this could be fulfilled either through an adhesive method, such as a label generally refers to, or through a printing method, where
This rulemaking satisfies this mandate by proposing to require manufacturers to place a label on the passenger side sun visor that provides concise information on how to submit a safety-related defect complaint to NHTSA. This rulemaking also proposes to require manufacturers to print the same information in the owner's manual.
Motor vehicle safety is defined as “the performance of a motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle, and against unreasonable risk of death or injury in an accident, and includes non-operational safety of a motor vehicle.”
The National Traffic and Motor Vehicle Safety Act of 1966
(1) learns the vehicle or equipment contains a defect and decides in good faith that the defect is related to motor vehicle safety; or
(2) decides in good faith that the vehicle or equipment does not comply with an applicable motor vehicle safety standard prescribed under this chapter.
Section 30119(d) provides notification procedures. Section 30120(a) of 49 U.S.C. provides that when notification is required under section 30118(c), the remedy shall be without charge when the vehicle or equipment is presented for remedy. NHTSA regulations at 49 CFR part 573 “Defects and noncompliance responsibility and reports,” and Part 577 “Defects and noncompliance notification” implement these statutory requirements.
Pursuant to 49 U.S.C. 30165, a manufacturer who violates any of the above-mentioned statutory or regulatory provisions is liable to the Government for a civil penalty. Until 1997 the maximum civil penalty was $1,000 per violation up to a maximum of $800,000 for a related series of violations. By a separate statutorily mandated regulation, since 1997 NHTSA has adjusted the § 30165 civil penalties upward for inflation. 49 CFR part 578. The Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, (Pub. L. 106–414), enacted in 2000 in light of the Firestone/Ford controversy, amended the Safety Act by, inter alia, raising those maximum civil penalties to $5,000 per violation and $15,000,000 for a related series of violations, and added criminal penalties (49 U.S.C. 30170) for violations of reporting requirements. MAP–21, enacted in 2012, increased the maximum civil penalty for a related series of violations to $35,000,000. The Fixing America's Surface Transportation Act (FAST Act), Public Law 114–94 (Dec. 4, 2015), increased maximum civil penalties to $21,000 per violation and $105,000,000 for a related series of violations. The increases in maximum civil penalties in the FAST Act become effective on the date on which the Secretary of Transportation certifies that NHTSA has completed a rulemaking to provide an interpretation of the penalty factors in 49 U.S.C. 30165. The higher civil penalty maximums in the Part 578, MAP–21, and the FAST Act amendments are not retroactive to violations that occurred before their enactments.
To obtain information about potential safety defects in vehicles and equipment, NHTSA's Office of Defects Investigation (ODI) receives data from a variety of sources including vehicle and equipment manufacturers, dealers, and consumer advocacy groups and forums. However, ODI relies heavily on information received from consumers who experience issues with their vehicles and equipment. ODI receives, on average, between 40,000 and 50,000 complaints from consumers each year.
If a consumer thinks that his/her vehicle or equipment may have a safety-related defect, reporting it to NHTSA is an important first step to take to get the situation remedied and help make the nation's roads safer. If the agency receives similar reports from a number of consumers about the same product, this could indicate that a safety-related defect exists that could warrant the opening of an investigation. However, an analysis of one complaint may also lead to an investigation depending on the type of defect that is reported. In order to make it convenient for consumers to report any suspected safety-related defects to NHTSA, the agency offers three ways to file such complaints.
NHTSA operates the United States Department of Transportation's Vehicle Safety Hotline telephone service to collect accurate and timely information from consumers on vehicle safety problems. Consumers can call 1–888–327–4236 or 1–800–424–9393 toll-free from anywhere in the United States, Puerto Rico, and the Virgin Islands to register complaints or receive recall information about a vehicle. The Hotline also has Spanish-speaking representatives and offers a dedicated number, 1–800–424–9153, for use by persons with hearing impairments.
When a consumer calls the Hotline to report a vehicle-related safety issue, the consumer is asked to provide certain critical information that NHTSA technical staff needs to evaluate the problem.
Consumers can also report a vehicle safety issue to NHTSA online at its vehicle safety Web site:
A consumer can also report a defect by sending a letter to the agency via U.S. mail.
In March 2013, NHTSA launched its SaferCar mobile application that allows consumers to access important vehicle safety information from their mobile devices.
Manufacturers are currently required to include the following text in all passenger vehicle owner's manuals:
NHTSA notes that this required text uses an outdated mailing address. The correct mailing address is: U.S. Department of Transportation, National Highway Traffic Safety Administration, Office of Defects Investigation (NEF–100), 1200 New Jersey Avenue SE., Washington, DC 20590.
The currently required text also does not advise vehicle users of the ability to file a complaint on the safercar.org Web site, or through the new safercar.gov mobile application.
NHTSA first considered whether to require a particular location for the label containing defect reporting language, or whether to leave the location up to the manufacturer's discretion. Section 31306 does not specify whether the determination of location is to be made by the agency or the manufacturer. NHTSA acknowledges that differing vehicles designs may mean that the most accessible location for a label in a particular vehicle also differs. We also considered that there may be benefits to providing flexibility to manufacturers by allowing them to make the location determination. The agency believes that increased compliance flexibility often has the potential to lower costs while preserving manufacturer ability to design to consumer preferences. In this case, however, the benefits to increased manufacturer flexibility are believed to be minimal. The base estimated costs of implementing this proposal are believed to be low, and the agency does not believe that additional flexibility would be able to provide any significant further cost savings. In addition, the purpose of requiring such a label is to ensure that consumers encounter the information; to the extent that a manufacturer seeks to “blend” the label into preexisting vehicle designs, we believe this may detract from the purpose of the requirement.
On the other hand, we believe a standardized location for defect reporting information would best further the purpose of Section 31306 by increasing the accessibility of the information through repeat consumer exposure and expectations. We anticipate that once the consumer has encountered the information in a particular vehicle location, he or she would be more likely to associate the information with the location and be able to access it again at a point when it is sought (such as after a safety incident has occurred or a defect suspected). Therefore, we are proposing to require a particular location for placement of the language by all manufacturers.
NHTSA identified five locations on a vehicle where the placement of a label is likely to be practicable and the information displayed likely to be accessible to a consumer. The five options thus considered in this proposal are: (1) the passenger's sun visor; (2) the glove compartment; (3) the edge of the driver's door; (4) the driver's side B-pillar, and (5) the headliner above the sun visor. Section 31306 of MAP–21 (“. . . affix, in the glove compartment or in another readily accessible location on the vehicle . . .”) appears to suggest that the glove compartment may be the best location for the label, however, the selection of the location is left to the agency's discretion.
Merriam-Webster dictionary defines “accessible” as “capable of being reached, easy to communicate, capable of being influenced, capable of being used or seen, or capable of being understood or appreciated.”
First, NHTSA considered the glove compartment for prominence and accessibility, as this location was specifically suggested by Congress. We believe this location may have been suggested because of the common practice of storing documents such as the vehicle owner's manual, registration, and insurance information, which a driver is likely to reference in the event of an accident or problem with the vehicle. In addition, glove compartments face the vehicle occupants and are generally within a few feet of eye level, which may make information displayed within one more prominent than it would be in locations that are behind or to side of occupants, or further from eye level.
However, the agency believes that the variety in current designs of glove
Next, NHTSA considered the passenger's side sun visor. This location was considered accessible and prominent, as it is situated in front of vehicle occupants not far from eye level. The suitability of this location for labels has previously been leveraged by the agency for both air bag labels and vehicle rollover labels.
The air bag label, established under FMVSS 208 (Occupant Crash Protection), requires manufacturers to affix an air bag warning label to the sun visor at each seating position that is equipped with an inflatable restraint.
S4.5.1(b)
c) Definitions. Utility vehicles means multipurpose passenger vehicles (other than those which are passenger car derivatives) which have a wheelbase of 110 inches or less and special features for occasional off-road operation.
S4.5.1(b)(5) Limitations on additional labels. (i) Except for the information on an air bag maintenance label placed on the sun visor pursuant to S4.5.1(a) of this standard, or on a utility vehicle warning label placed on the sun visor that conforms in content, form, and sequence to the label shown in Figure 1 of 49 CFR 575.105, no other information shall appear on the same side of the sun visor to which the sun visor air bag warning label is affixed.
(ii) Except for the information in an air bag alert label placed on the sun visor pursuant to S4.5.1(c) of this standard, or on a utility vehicle warning label placed on the sun visor that conforms in content, form, and sequence to the label shown in Figure 1 of 49 CFR 575.105, no other information about air bags or the need to wear seat belts shall appear anywhere on the sun visor.
NHTSA considered that the label for information on how to contact NHTSA with a vehicle safety defect complaint could be affixed on the passenger's sun visor on the opposite side from the air bag warning label, which would allow for sufficient separation of the two labels. As each label would contain concise information, we believe that such separation from the pictogram of the air bag label would be sufficient to ensure that both labels display information prominently. We note that a similar setup exists on the driver side sun visor of utility vehicles, which bears either the air bag label on one side and the rollover warning label on the other side of the visor, or both labels on the same side. The agency is not aware of any negative impacts from the placement of two labels on one visor on those vehicles.
NHTSA next considered the driver's side b-pillar or edge of the driver's door. In its tire safety information final rule,
Finally, NHTSA considered the headliner above the sun visor. Like the sun visor, the headliner is a relatively accessible and prominent location, being in front of the vehicle occupants and not far from eye level. A label on either the headliner or the “back” side of the visor would only be visible when the visor was in the “open” (not stowed) position. As the headliner currently does not contain labels, a potential benefit to using this space for the defect label would be to avoid any confusion or crowding of information.
However, a label on the back side of the visor would appear closer to eye level when the visor was in the open position. NHTSA is also concerned that the potential use of the driver's side headliner may introduce a crowding issue in utility vehicles, which would now have three informational labels in the same area on the driver's side (this could defeat any spacing benefit assumed for avoiding the use of the sun visor). In addition, the use of the visor for existing label requirements may make it more likely that a vehicle occupant would associate the visor with vehicle safety-related reference information and thus check it in the event of a safety problem. For these reasons, the agency believes a label on the headliner may be less prominent than one on the visor itself.
For the above reasons, of the five locations considered, the agency's preferred alternative for placement of the sticker, decal, or other device is the passenger side sun visor. The agency also recognizes that the headliner above the sun visor may have similar benefits to the visor without some of the disadvantages of the visor. Therefore, the headliner is currently considered a close second to the preferred alternative.
NHTSA invites comments on whether the passenger side sun visor is indeed the best easily accessible location for a label, as well as whether the agency should have considered additional locations within the vehicle. Commenters should provide detail on
NHTSA also considered whether to require specified language to be printed on the label, or whether to leave the choice of language up to the vehicle manufacturer. Section 31306 of MAP–21 does not specify whether the choice of actual content is to be made by the agency or by the manufacturer. Given that information on how to submit a safety-related defect complaint is relatively straightforward, and does not vary by vehicle type or design, we do not see a benefit to leaving the choice of language up to the manufacturer. Conversely, we believe that requiring standardized language could prevent confusion or inaccuracies that customized language could produce. Further, standardized language may have the benefit of creating a phrase association for vehicle users that could help them remember which agency to contact with a safety-related concern whether or not they remember where the contact information is located within their vehicle. For these reasons, NHTSA is proposing standardized language for the decal, label, or other device.
Next, NHTSA considered proposed content for the labels. Information on how to reach NHTSA with potential vehicle safety defect complaints is currently written in all passenger vehicle owner's manuals. Manufacturers are currently required to include the following text in all passenger vehicle owner's manuals:
Section 31306 of MAP–21 states that the label information must be “in simple and understandable language.” Given the currently required language, NHTSA interprets one purpose of the new requirement as relaying the same basic information to vehicle users in a more straightforward and condensed manner appropriate for a sticker or label. With that in mind, NHTSA developed the following proposed language for the consumer information label:
NHTSA believes the above proposed language would be easily readable and comprehensible, and that by sticking to brief, standardized content, the proposed device would effectively inform consumers of how to file a potential vehicle safety defect. The agency believes that longer strings of information in this context are unnecessary, and may detract from a vehicle user's ability to internalize the information presented. The simple listing format above is intended to make it less likely that a vehicle user would miss the key message of the label or device.
NHTSA requests comment on the language, including whether it provides the necessary information on how to contact NHTSA with vehicle safety-related complaints, and whether it is simple and understandable. Should the commenter have additional or revised language to propose, the agency requests detail as to what additional or revised language is recommended and how it is likely to fulfill the statutory purpose better than the proposed text.
NHTSA believes the intent of Section 31306 of MAP–21 was to provide consumers with easily accessible and understandable information on how to contact the agency with any vehicle safety-related defects and complaints. NHTSA does not believe that the requirements under this rule are intended to increase a manufacturer burden beyond communicating the basic information on how to contact the agency with a vehicle safety-related defect complaint.
With that in mind, NHTSA is proposing the following simple design requirements for the label, which are similar to the design requirements of the air bag warning label and the rollover warning label:
• The title must be in a bold black text.
• The message area must be white with black text.
• The pictograms must be black with a white background.
• The label must be appropriately sized so that it is legible, visible and prominent to the driver.
NHTSA believes that these requirements communicate the information as intended in the statute in an accessible, readable, and comprehensive manner. NHTSA believes that a simple black and white label would effectively communicate the necessary information, and that requiring color on labels could create an unnecessary financial burden to some manufacturers. In regard to the font for the label, NHTSA is not proposing either a particular font face, font size, or case for the label. In existing label requirements (
NHTSA seeks comments on the proposed design of the label, including the current recommendation to keep the label in black and white without additional colors. If a comment requests that the labels have color, either on the background and/or in the content including text, the commenter should provide a detailed explanation as to the benefit such changes would provide to the consumer. NHTSA also seeks comment on the proposed content, as to whether the information is adequate to inform consumers on what actions to take should they feel they have a safety-related problem with their vehicle, and whether there is any undue burden that vehicle manufacturers may face under this proposal that the agency should consider.
NHTSA considered whether to develop unique language for owner's manuals on how to submit a defect complaint, whether to use the same language in the manual as is required for the label, or whether to simply update the currently required owner's manual information with NHTSA's new address and SaferCar mobile application.
NHTSA believes that the clearest way to read Section 31306(d)(1)(B) of MAP–21 (“prominently print the information described in [the label requirement] within the owner's manual”) is that Congress intended for the same essential information displayed in the label to be available in the owner's manual, but not necessarily that the label be exactly reproduced in the owner's manual. If Congress had intended for the label to be printed in both places, we believe it would have indicated so more directly by combining the two requirements, rather than refer to the required information more broadly as that “described in” the label requirement. Further, we believe that the greater space offered in owner's manuals allows for additional explanatory statements that may be useful to a consumer seeking more information on the defects reporting process.
For the above reasons, NHTSA is proposing the following language for the owner's manual requirement:
If you believe that your vehicle has a defect which could cause a crash or could cause injury or death, you should immediately inform the National Highway Traffic Safety Administration (NHTSA) in addition to notifying [INSERT NAME OF MANUFACTURER].
If NHTSA receives similar complaints, it may open an investigation, and if it finds that a safety defect exists in a group of vehicles, it may order a recall and remedy campaign. However, NHTSA cannot become involved in individual problems between you, your dealer, or [INSERT NAME OF MANUFACTURER].
To contact NHTSA, you may call the Vehicle Safety Hotline toll-free at 1–888–327–4236 (TTY: 1–800–424–9153); go to
NHTSA is not proposing design requirements for the owner's manual information, beyond that it must be printed in a font size no smaller than 10 point type. NHTSA is also not proposing to require the owner's manual information to be printed in a particular section of the manual. We recognize that there may be some increased consumer exposure benefit to requiring the information to be printed in a standard design, and/or on a particular page of the manual. However, in the event of a safety-related issue with their vehicle, we believe it is common for a vehicle user to consult the table of contents within the manual for direction on their particular issue, and thus would be informed of where to find the information on how to submit a defect complaint. We also believe that manufacturers would be capable of fulfilling the statutory requirement to print the information prominently without the potential burden of redesigning their manual layouts to incorporate a standardized placement.
NHTSA is also proposing to move the required language currently located in 49 CFR part 575.6 to 49 CFR 575.501 in order keep these like requirements in the same place. This section will provide manufacturers with the required safety-related defect reporting information in the owner's manual. As noted above, the current requirement does not include the most up-to-date reporting information, including the Safercar mobile application, and we believe that Congress developed the new owner's manual requirement with the intent that it would subsume the existing regulation.
NHTSA requests comment on the proposal to use an updated version of the currently required owner's manual information, including whether this
In determining estimated industry costs associated with this proposal, the agency investigated potential “ball-park” production cost and labor cost for labels and owner's manual information.
For purposes of the label cost estimate, NHTSA estimates the one-time cost and recurring annual cost associated with producing a new, adhesive-type label that is separate from existing labels. NHTSA estimates that the one-time cost per manufacturer for development of the label is $22.67, assuming one hour of labor. The labor cost estimate is based on the Bureau of Labor Statistics Motor Vehicle Manufacturing average hourly wage of production workers.
We estimate the annual costs for producing the label as follows. NHTSA assumes a per-label cost of $0.04 and a labor value of $0.09 per label. To arrive at a labor value of $0.09, we estimate the average assembly line worker salary
NHTSA developed the following cost estimates for the development and printing in simple and understandable language within the owner's manual, information about how to submit a safety-related motor vehicle defect complaint to the National Highway Traffic Safety Administration. See Table 3. The cost of printing the page the size of the required text is estimated at $0.04. Multiplying $0.04 by 16.5 million vehicles results in an estimated annual cost to vehicle manufacturers of $660,000 for printing the page in the owner's manual. The one-time cost to manufacturers for the information in the owner's manual is negligible.
The estimated total annual recurring cost to vehicle manufacturers is $2.8 million ($2.15 million label cost + $0.66 million owner's manual cost).
As information on the effects of making defect reporting information more accessible to vehicle users is not available, the benefits of this proposed rule are not quantifiable. However, NHTSA believes that there would be several qualitative benefits of this action. Some of the anticipated benefits would fall to vehicle users. These benefits could be direct (improved consumer awareness and involvement) or indirect (fewer vehicle safety incidents or accidents across particular model types on account of an expanded or quickened defect reporting and response process). Other anticipated benefits would fall to agency and the industry in the form of efficiencies gained by closing information gaps. The anticipated benefits of this proposal include:
(1) Improved messaging and information to consumers on how to submit a safety-related motor vehicle defect complaint to NHTSA;
(2) increased consumer involvement in the motor vehicle defect reporting process;
(3) reduced time between consumer awareness of a possible motor vehicle defect and industry response;
(4) cost savings to the consumer through improved and timely defect-related response by the manufacturer;
(5) reduction in the risk and incident of injuries and fatalities attendant with the possible safety-related motor vehicle defect;
(6) decrease in motor vehicle property damage;
(7) improvement in agency data-collection on potential safety problems in motor vehicles and motor vehicle equipment, and resultant decisions on whether to open an investigation; and,
(8) cost savings to the industry by providing motor vehicle manufacturers with information that they may not yet have identified and gathered.
The agency believes that the benefits of this proposal would be higher than the costs. NHTSA requests comment on the benefits described here, and on any additional benefits and/or ways to quantify benefits.
In adding the 32302(d) requirements under MAP–21, Congress did not amend the existing compliance and civil penalty provisions in 49 U.S.C. Chapter 323; therefore, NHTSA tentatively concludes that those provisions apply for regulations promulgated under 32302(d).
49 U.S.C. 32308(a) states, in relevant part, that a person commits a violation of Chapter 323 if that person fails to provide the Secretary of Transportation (by delegation, the Administrator of NHTSA) with information requested in carrying out Chapter 323, or fails to comply with the applicable regulations prescribed under Chapter 323. 32308(b) prescribes a civil penalty of not more than $1,000 for each violation of 32308(a).
The proposed compliance date for label and owner's manual requirements is the first model year that occurs more than one year following the publication date of a final rule implementing this proposal. The compliance date adheres to the provision in Section 31306(d)(2) of MAP–21, which states that the above requirements “shall apply to passenger motor vehicles manufactured in any model year beginning more than 1 year after the date on which a final rule is published.” NHTSA believes the lead time proposed for the label may be necessary; however, early compliance would be encouraged. With regard to owner's manual information, NHTSA believes this amount of lead time is more than necessary. First, the agency is proposing standardized language. Additionally, in most cases, owner's manual information is developed, reviewed, and approved in an entirely digital environment, which significantly reduces lead time. Moreover, the agency is aware that some manufacturers have moved, or are in the process of moving, to full digital delivery of owner's manual information, where owner's manual information is delivered via a digital video disc (DVD) or some other digital format.
NHTSA seeks comment on whether the proposed lead time is reasonable. If a commenter wishes the agency to provide additional lead time, NHTSA requests that the commenter provide specific explanations for why more lead time might be needed for which elements of the proposal. For example, if a commenter sought more lead time for the owner's manual requirements, NHTSA seeks any relevant details of the owner's manual publication process and associated timing, along with current and future media that would be used for the owner's manual information.
NHTSA requests comment on all aspects of this proposed rule. This section describes how you can participate in this process.
Your comments must be written and in English. To ensure that your comments are correctly filed in the docket, please include the Docket Number NHTSA–2015–0096 in your comments. Your comments must not be more than 15 pages long.
If you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using the Optical Character Recognition (OCR) process, thus allowing the agency to search and copy certain portions of your submissions.
Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at
When submitting comments, please remember to:
• Identify the rulemaking by docket numbers and other identifying information (subject heading,
• Follow directions—the agencies may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
Make sure to submit your comments by the comment period deadline identified in the
NHTSA has considered the impact of this rulemaking action under Executive Orders 12866 and 13563 and the Department of Transportation's regulatory policies and procedures. This action is not significant and therefore was not subject to review by OMB under Executive Order 12866. The benefits and costs of this proposal are described above. Because the proposed rule would, if adopted, would not be economically significant, the agency has not prepared a separate Preliminary Regulatory Evaluation.
We estimate these proposed requirements would cost each small vehicle manufacturer approximately $0.13 per vehicle, or far less than 1% of the cost of one of these vehicles, and would therefore not appear to constitute a significant economic impact. Thus, NHTSA certifies that this rule, if adopted, would not have a significant impact on a substantial number of small entities.
NHTSA does not believe that there would be sufficient federalism implications to warrant the preparation of a federalism assessment.
Pursuant to Executive Order 12988, “Civil Justice Reform,”
For the purposes of the National Environmental Policy Act, NHTSA has determined that implementation of this rulemaking action would not have any significant impact on the quality of the human environment.
The proposed rule does not implicate any information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
NHTSA has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law (
Executive Orders 12866 and 13563 require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
• Have we organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that is not clear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rule easier to understand?
Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comments (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For more information on DOT's implementation of the Privacy Act, please visit:
Consumer protection, Motor vehicle safety, Reporting and recordkeeping requirements, Tires.
For the foregoing reasons, NHTSA proposes to amend 49 CFR part 575 as follows:
49 U.S.C. 32302, 32304A, 30111, 30115, 30117, 30123, 30166, 30181, 30182, 30183, and 32908, Pub. L. 104–414, 114 Stat. 1800, Pub. L. 109–59, 119 Stat. 1144, Pub. L. 110–140, 121 Stat. 1492, Pub. L. 112–141, 126 Stat. 405, 15 U.S.C. 1232(g); delegation of authority at 49 CFR 1.95.
49 U.S.C. 30101
(a)
(b)
(c)
(A) The title must be in a bold black text.
(B) The message area must have a white background and black text.
(C) The pictograms must be black with a white background.
(D) The label must be appropriately sized so that it is legible, visible, and prominent to the driver.
(ii) When the safety defect reporting label required by paragraph (c)(1)(i) of this section and the air bag alert label required by S4.5.1(c) of 49 CFR 571.208 are affixed to the same side of the passenger's sun visor, the pictogram of the air bag alert label must be separated
(A) The labels must be located such that the shortest distance from any of the lettering or graphics on the safety defect reporting label to any of the lettering or graphics on the air bag alert label is not less than 3 cm, or
(B) If the safety defect reporting and air bag alert labels are each surrounded by a continuous solid-lined border, the shortest distance from the border of the safety defect reporting label to the border of the air bag alert label must be not less than 1 cm.
(iii) At the option of the manufacturer, the requirement in paragraph (c)(1)(i) of this section for a permanently affixed label may instead be met by permanent marking and molding of the required information onto the specified location.
(2)
If you believe that your vehicle has a defect which could cause a crash or could cause injury or death, you should immediately inform the National Highway Traffic Safety Administration (NHTSA) in addition to notifying [INSERT NAME OF MANUFACTURER]. To contact NHTSA, you may call the Vehicle Safety Hotline toll-free at 1–888–327–4236 (TTY: 1–800–424–9153); go to
If NHTSA receives similar complaints, it may open an investigation, and if it finds that a safety defect exists in a group of vehicles, it may order a recall and remedy campaign. However, NHTSA cannot become involved in individual problems between you, your dealer, or [INSERT NAME OF MANUFACTURER].
(ii) The manufacturer must specify in the table of contents of the owner's manual the location of the statement required in paragraph (c)(2)(i). The heading in the table of contents must state “Reporting Safety Defects.”
Issued in Washington, DC.
Fish and Wildlife Service, Interior.
Revised proposed rule; reopening of public comment period.
We, the U.S. Fish and Wildlife Service, notify the public that we are making changes to our July 6, 2012, proposed rule to list the hyacinth macaw
The comment period for the proposed rule published July 6, 2012 (77 FR 39965) is reopened. We will accept comments received on or before January 27, 2017.
You may submit comments by one of the following methods:
(1)
(2)
Janine Van Norman, Chief, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: ES, Falls Church, VA 22041; telephone 703–358–2171. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339.
Before a plant or animal species can receive the protection provided by the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531
If adopted as proposed, this action will list the hyacinth macaw as a threatened species in the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h), and will allow the import and export of certain hyacinth macaws into and from the United States and certain acts in interstate commerce without a permit under the Act. This action is authorized by the Act.
Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made solely on the basis of the best scientific and commercial data available. Therefore, we request comments or information from other concerned governmental agencies, the scientific community, industry, and any other interested parties concerning this revised proposed rule. We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) New or expanding populations; and
(b) Estimates for new and expanding populations.
(2) Deforestation rates in areas where the hyacinth macaw occurs.
(3) Conservation actions or plans that address either the hyacinth macaw or deforestation in areas where the hyacinth occurs; as well as the status of those actions and plans (level of implementation, success, challenges, etc.).
(4) Availability of nesting cavities.
(5) The factors that are the basis for making a listing determination for a species or subspecies under section 4(a)(1) of the Act (16 U.S.C. 1531
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
(6) The potential effects of climate change on the subspecies and its habitat.
(7) The proposed rule under section 4(d) of the Act that will allow the import and export of certain hyacinth macaws into and from the United States and certain acts in interstate commerce without a permit under the Act.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination.
Section 4(b)(5) of the Act requires the Service to hold a public hearing on this proposal, if requested within 45 days of publication of the notice. At this time, we do not have a public hearing scheduled for this revised proposed rule. The main purpose of most public hearings is to obtain public testimony or comment. In most cases, it is sufficient to submit comments through the Federal eRulemaking Portal, described above in
In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited peer review on our July 6, 2012, proposed rule. In accordance with our August 22, 2016 memorandum updating and clarifying the role of peer review of listing actions under the Act, we will solicit the expert opinions of at least three appropriate and independent specialists for peer review of this proposed rule. The purpose of such review is to ensure that decisions are based on scientifically sound data, assumptions, and analysis. We will send peer reviewers copies of this revised proposed rule immediately following publication in the
On January 31, 2008, the Service received a petition dated January 29, 2008, from Friends of Animals, as represented by the Environmental Law Clinic, University of Denver, Sturm College of Law, requesting that we list 14 parrot species, including the hyacinth macaw, under the Act. The petition clearly identified itself as a petition and included the requisite information required in the Code of Federal Regulations (50 CFR 424.14(a)). On July 14, 2009 (74 FR 33957), we published a 90-day finding in which we determined that the petition presented substantial scientific and commercial information to indicate that listing may be warranted for 12 of the 14 parrot species, including the hyacinth macaw. We initiated the status review to determine if listing each of the 12 species as a threatened species or endangered species under the Act is warranted, and initiated an information collection period to allow all interested parties an opportunity to provide information on the status of these 12 species of parrots.
On October 24 and December 2, 2009, the Service received 60-day notices of intent to sue from Friends of Animals
On July 21, 2010, a settlement agreement was approved by the Court, in which the Service agreed to submit to the
On September 16, 2011, the Court granted a request to extend the November 30, 2011, deadline allowing the Service to submit 12-month findings for the four remaining species, including hyacinth macaw, to the
Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). Under section 4(a)(1) of the Act, a species may be determined to be an endangered or a threatened species based on any of the following five factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
We fully considered the comments and information we received from the public and peer reviewers. We also conducted a search for information that became available since our 2012 proposed rule. We made some technical corrections and included additional information on the work being done by the Hyacinth Macaw Project. Based on new information, we also reevaluated impacts to the species from deforestation and predation. Based on our evaluation of this new information, we are proposing to list the hyacinth macaw as a threatened species under the Act. We summarize below the information on which we based our evaluation of the five factors provided in section 4(a)(1) of the Act. We are also proposing a rule under section 4(d) of the Act that defines the prohibitions and exceptions that apply to hyacinth macaws.
The hyacinth macaw (hyacinth) is the largest bird of the parrot family, Family Psittacidae, (Guedes and Harper 1995, p. 395; Munn
The hyacinth macaw experiences late maturity, not reaching first reproduction until 8 or 9 years old (Guedes 2009, p. 117). Hyacinths are monogamous and faithful to nesting sites; a couple may reproduce for more than a decade in the same nest. They nest from July to January in tree cavities and, in some parts of its range, cliff cavities (Tortato and Bonanomi 2012, p. 22; Guedes 2009, pp. 4, 5, 12; Pizo
Hyacinth macaws naturally have a low reproductive rate, a characteristic common to all parrots, due, in part, to asynchronous hatching. Although hyacinths lay two eggs, usually only one chick survives (Guedes 2009, p. 31; Faria
At one time, hyacinths were widely distributed, occupying large areas of Central Brazil into the Bolivian and Paraguayan Pantanal (Guedes 2009, pp. xiii, 11; Pinho and Nogueira 2003, p. 30; Whittingham
Prior to the arrival of Indians and Europeans to South America, there may have been between 100,000 and 3 million hyacinth macaws (Munn
Although the 2003 estimate indicates a substantial increase in the Pantanal population, the methods or techniques used to estimate the population are not described; therefore, the reliability of the estimation techniques, as well as the accuracy of the estimated increase, are not known (Santos, Jr. 2013, pers. comm.). Despite the uncertainty in the estimated population increase, the Pantanal is the stronghold for the species and has shown signs of recovery since 1990, most likely as a response to conservation projects (BLI 2014a, unpaginated; Antas
Hyacinths use a variety of habitats in the Pará, Gerais, and Pantanal regions. Each region features a dry season that prevents the growth of extensive closed-canopy tropical forests and maintains the more open habitat preferred by this species. In Pará, the species prefers palm-rich várzea (flooded forests), seasonally moist forests with clearings, and savannas. In the Gerais region, hyacinths are located within the Cerrado biome, where they inhabit dry open forests in rocky, steep-sided valleys and plateaus, gallery forests (a stretch of forest along a river in an area of otherwise open country), and
Hyacinths have a specialized diet consisting of the fruits of various palm species, which are inside an extremely hard nut that only the hyacinth can easily break (Guedes and Harper 1995, p. 400; Collar
In each of the three regions where hyacinths occur, they use only a few specific palm species. In Pará, hyacinths have been reported to feed on
Hyacinths also have specialized nesting requirements. As a secondary tree nester, they require large, mature trees with preexisting tree holes to provide nesting cavities large enough to accommodate them (Tortato and Bonanomi 2012, p. 22; Guedes 2009, pp. 4, 5, 12; Pizo
In 1989, the hyacinth was listed on the Official List of Brazilian Fauna Threatened with Extinction by the Brazilian Institute of Environment and Natural Resources (IBAMA), the government agency that controls the country's natural resources (Lunardi
From 2000 to 2013, this species was classified as “endangered” by the IUCN. However, in 2014, the hyacinth was downlisted to “vulnerable” because evidence suggested that it had not declined as rapidly as previously thought. A “vulnerable” taxon is considered to be facing a high risk of extinction in the wild, whereas an “endangered taxon is considered to be facing a very high risk of extinction in the wild (BLI 2014a, unpaginated). The hyacinth macaw is also listed as Appendix I on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) list. Species included in CITES Appendix I are considered threatened with extinction, and international trade is permitted only under exceptional circumstances, which generally precludes commercial trade.
Most of the information on the hyacinth macaw is from the Pantanal region, as this is the largest and most studied population. The species occurs only marginally within Bolivia and Paraguay as extensions from the Brazilian Pantanal population, and there is little information on the species in those countries. We found little information on the status of the Pará and Gerais populations; therefore, we evaluated impacts to these populations by a broader region (
Parrots in general have traits that predispose them to extinction (Lee 2010, p. 3; Thiollay 2005, p. 1121; Guedes 2004a, p. 280; Wright
Natural ecosystems across Latin America are being transformed due to economic development, international market demands, and government policies. In Brazil, demand for soybean oil and soybean meal has increased, causing land conversion to significantly increase to meet this demand (Barona
Pará is one of the Brazilian states that constitute the Amazon biome (Greenpeace 2009, p. 2). This biome contains more than just the well-known tropical rainforests; it also encompasses other ecosystems, including floodplain forests and savannas. Between 1995 and 2009, conversion of floodplain forests in the Amazon region to cattle ranching expanded significantly and was the greatest cause of deforestation (da Silva 2009, p. 3; Lucas 2009, p. 1; Collar
Cattle ranching has been present in the várzea (floodplain forests) of the Amazon for centuries (Arima and Uhl, 1997, p. 433). However, since the late 1970s, state subsidies and massive infrastructure development have facilitated large-scale forest conversion and colonization for cattle ranching (Barona
Although the immediate cause of deforestation in the Amazon was predominantly the expansion of pasture between 2000 and 2006 (Barona
In the Brazilian North region, including Pará, cattle occupy 84 percent of the total area under agricultural and livestock uses. This area, on average, expanded 9 percent per year over 10 years causing 70–80 percent of deforestation (Nepstad
Pará has long been known as the epicenter of illegal deforestation (Dias and Ramos 2012, unpaginated) and has one of the highest deforestation rates in the Brazilian Amazon (Portal Brasil 2010, unpaginated). From 1988 to 2015, the state lost 139,824 km
Given the role cattle ranching plays in national and international markets and the profitability of ranching, significant expansion of cattle herds in the Brazilian Amazon has continued (Walker
The Gerais region is within the Cerrado biome, a 2-million-km
Approximately 50 percent of the original Cerrado vegetation has been lost due to conversion to agriculture and pasture, although estimates range up to 80 percent, and the area continues to suffer high rates of habitat loss (Grecchi
Since 2008, annual monitoring of deforestation in the Cerrado has taken place through a government program that monitors each of the Brazilian biomes. Although the annual rate of deforestation is generally decreasing, satellite monitoring of the area indicates a slow and steady increase in deforested area (MMA 2015, p. 9) (Table 2).
The remaining natural vegetation of the Cerrado is highly fragmented (only 20 percent of the original biome is considered intact) and continues to be pressured by conversion for soy plantations and extensive cattle ranching (WWF–UK 2011c, p. 21; WWF–UK 2011b, p. 2; Carvalho
Given that the Cerrado is the most desirable biome for agribusiness expansion and contains approximately 40 million ha (98.8 million ac) of “environmental surplus” that could be legally deforested (See discussion of Brazil's Forest Code, below) (Soares-Filho
The Pantanal is a 140,000-km
Manduvi, the tree that hyacinth macaws almost exclusively use for nesting in this region, grow in cordilleras, which constitute only 6 percent of the vegetative area of the Pantanal (van der Meer 2013, p. 6; Pizo
Since 2002, regular monitoring of land use and vegetative cover in the Upper Paraguay Basin, which includes the Pantanal, has taken place. While the annual rate of deforestation is decreasing, satellite monitoring of the area indicates a slow and steady increase in deforested area (Table 3).
When clearing land for pastures, palm trees are often left, as the cattle will feed on the palm nuts (Pinho and Nogueira 2003, p. 36). In fact, hyacinths occur near cattle ranches and feed off the palm nuts eliminated by the cattle (Juniper and Parr 1998, p. 417; Yamashita 1997, pp. 177, 179; Guedes and Harper 1995, pp. 400–401; Collar
Other activities associated with cattle ranching, such as the introduction of exotic foraging grasses, grazing, burning, compaction, and fragmentation, can negatively impact the nesting trees of the hyacinth macaw (Guedes 2013, unpaginated; Guedes and Vicente 2012, pp. 149–150; Santos Jr.
In addition to the direct removal of trees and the impact of fire on recruitment of manduvi trees, cattle themselves have impacted the density of manduvi seedlings in the Pantanal. Cattle forage on and trample manduvi seedlings, affecting the recruitment of this species to a size large enough to accommodate hyacinths (Pizo
Because the hyacinth is highly specialized in both diet and nesting sites, it is particularly vulnerable to the loss of these resources and extinction (Faria
Its specialized diet makes hyacinth macaws vulnerable to changes in food availability. Inadequate nutrition can contribute to poor health and reduced reproduction in parrots generally (McDonald 2003 In Lee 2010, p. 6). Changes in fruit availability are known to decrease reproduction in hyacinths (Guedes 2009, pp. 42–43, 44). In Pará and the Gerais region, where food sources are threatened, persistence of the species is a concern given that one of the major factors thought to have contributed to the critically endangered status of the Lear's macaw (
Hyacinths can tolerate a certain degree of human disturbance at their breeding sites (Pinho and Noguiera 2003, p. 36); however, the number of usable cavities increases with the age of the trees in the forest (Newton 1994, p. 266), and clearing land for agriculture and cattle ranching, cattle trampling and foraging, and burning of forest habitat result in the loss of mature trees with natural cavities of sufficient size and a reduction in recruitment of native species, which could eventually provide nesting cavities.
A shortage of nest sites can jeopardize the persistence of the hyacinth macaw by constraining breeding density, resulting in lower recruitment and a gradual reduction in population size (Santos Jr.
Although a species may survive the initial shock of deforestation, the resulting lack of food resources and breeding sites may reduce the viability of the population and make the species vulnerable to extinction (Sodhi
In response to the loss of its nesting tree, hyacinths in the Gerais region now use rock crevices for nesting. Hyacinths have been reported in various trees species and even on cliffs on the border of the Pantanal; however, the majority of their nests are in Brazil nut (in Pará) and manduvi (in the Pantanal) (see
In general, wildlife species and their nests, shelters, and breeding grounds are subject to Brazilian laws designed to provide protection (Clayton 2011, p. 4; Snyder
Brazil's Forest Code, passed in 1965, is a central component of the nation's environmental legislation; it dictates the minimum percentage and type of woodland that farmers, timber companies, and others must leave intact on their properties (Barrionuevo 2012, unpaginated; Boadle 2012, unpaginated). Since 2001, the Forest Code has required landowners to conserve native vegetation on their rural properties. This requirement includes setting aside a Legal Reserve that comprises 80 percent of the property if it is located in the Amazon and 20 percent in other biomes. The Forest Code also designated environmentally sensitive areas as Areas of Permanent Preservation (APPs) to conserve water resources and prevent soil erosion. APPs include Riparian Preservation Areas, to protect riverside forest buffers, and Hilltop Preservation Areas to protect hilltops, high elevations, and steep slopes (Soares-Filho
For years this law was widely ignored by landowners and not enforced by the government, as evidenced by the high deforestation rates (Leahy 2011, unpaginated; Pearce 2011, unpaginated; Ratter
In 2011, reforms to Brazil's Forest Code were debated in the Brazilian Senate. The reforms were favored by the agricultural industry but were greatly opposed by environmentalists. At that time, the expectation of the bill being passed resulted in a spike in deforestation (Darlington 2012, unpaginated; Moukaddem 2011, unpaginated; WWF–UK 2011a, unpaginated). In 2012, a new Forest Code was passed; although the new reforms were an attempt at a compromise between farmers and environmentalists, many claim the new bill reduces the total amount of land required to be maintained as forest and will increase deforestation, especially in the Cerrado (Soares-Filho
Environmentalists oppose the new law due to the complexity of the rule, challenges in implementation, and a lack of adequate protection of Brazil's forests. The new Forest Code carries over conservation requirements for Legal Reserves and Riparian Preservation Areas. However, changes in the definition of Hilltop Preservation Areas reduced their total area by 87 percent. Additionally, due to more flexible protections and differentiation between conservation and restoration requirements, Brazil's environmental debt (areas of Legal Reserve and Riparian Preservation Areas deforested illegally before 2008 that, under the previous Forest Code, would have required restoration at the landowner's expense) was reduced by 58 percent (Soares-Filho et al. 2014, p. 363). The legal reserve debt was forgiven for “small properties,” which ranged from 20 ha (49 ac) in southern Brazil to 440 ha (1,087 ac) in the Amazon; this provision has resulted in approximately 90 percent of Brazilian rural properties qualifying for amnesty.
Further reductions in the environmental debt resulted from: (1) Reducing the Legal Reserve restoration requirement from 80 percent to 50 percent in Amazonian municipalities that are predominately occupied by protected areas; (2) including Riparian Preservation Areas in the calculation of the Legal Reserve area (total area they are required to preserve); and (3) relaxing Riparian Preservation Area restoration requirements on small properties. These new provisions effectively reduced the total amount of land farmers are required to preserve and municipalities and landowners are required to restore. Reductions were uneven across states and biomes, with the Amazon and Cerrado biomes being two of the three biomes most affected and vulnerable to deforestation.
Altogether, provisions of the new Forest Code have reduced the total area to be restored from approximately 50 million ha (123.5 million ac) to approximately 21 million ha (51.8 million ac) (Soares-Filho
Although the Forest Code reduces restoration requirements, it introduces new mechanisms to address fire management, forest carbon, and payments for ecosystem services, which could reduce deforestation and result in environmental benefits. The most important mechanism may be the Environmental Reserve Quota (ERQ). The ERQ is a tradable legal title to areas with intact or regenerating native vegetation exceeding the Forest Code requirements. It provides the opportunity for landowners who, as of July 2008 did not meet the area-based conservation requirements of the law, to instead “compensate” for their legal reserve shortages by purchasing surplus compliance obligations from properties that would then maintain native vegetation in excess of the minimum legal reserve requirements. This mechanism could provide forested lands with monetary value, creating a trading market. The ERQ could potentially reduce 56 percent of the Legal Reserve debt (Soares-Filho
The new Forest Code requires landowners to take part in a Rural Environmental Registry System, a mapping and registration system for rural properties that serves as a means for landowners to report their compliance with the code in order to remain eligible for state credit and other government support. On May 6, 2014, the Ministry for the Environment published a regulation formally implementing the Rural Environmental Registry and requiring all rural properties be enrolled by May 2015. However, on May 5, 2015, the deadline was extended to May 4, 2016. According to information provided by the Ministry for the Environment, at that time 1,407,206 rural properties had been registered since the New Code became effective. This number covers an area of 196,767,410 hectares and represents 52% of all rural areas in Brazil for which registration is mandatory (Filho
It is unclear whether the Brazilian Government will be able to effectively enforce the new law (Barrionuevo 2012, unpaginated; Boadle 2012, unpaginated; Greenpeace 2012, unpaginated). The original code was largely ignored by landowners and not enforced, leading to Brazil's high rates of deforestation (Boadle 2012, unpaginated). Although Brazil's deforestation rates declined between 2005 and 2010, 2011 marked the beginning of an increase in rates due
Additionally, State laws designed to protect the habitat of the hyacinth macaw are in place. To protect the main breeding habitat of the hyacinth macaw, Mato Grosso State Senate passed State Act 8.317 in 2005, which prohibits the cutting of manduvi trees, but not others. Although this law protects nesting trees, other trees around nesting trees are cut, exposing the manduvi tree to winds and storms. Manduvi trees end up falling or breaking, rendering them useless for the hyacinths to nest in (Santos Jr. 2008, p. 135; Santos Jr.
Although laws are in place to protect the forests of Brazil, lack of supervision and lack of resources prevent these laws from being properly implemented (Guedes 2012, p. 3). Ongoing deforestation in the Amazon, Cerrado, and Pantanal are evidence that existing laws are not being adequately enforced. Without greater enforcement of laws, deforestation will continue to impact the hyacinth macaw and its food and nesting resources.
Habitat loss for the hyacinth macaw continues despite regulatory mechanisms intended to protect Brazil's forests. As described above, the hyacinth's food and nesting trees are removed for agriculture and cattle ranching and fire is used to clear land and maintain pastures. The original Forest Code was not properly enforced and, thus was not adequately protective. It is questionable whether the new Forest Code will be effectively enforced. Regardless of enforcement, given the provisions of the new Forest Code, some level of deforestation is highly likely to continue and will continue to compromise the status of the species.
Changes in Brazil's climate and associated changes to the landscape may result in additional habitat loss for the hyacinth macaw. Across Brazil, temperatures are projected to increase and precipitation to decrease (Carabine and Lemma 2014, p. 11; Siqueira and Peterson 2003, p. 2). The latest Intergovernmental Panel on Climate Change assessment estimates temperature changes in South America by 2100 to range from 1.7 to 6.7 °C (3.06 to 12.06 °F) under medium and high emission scenarios and 1 to 1.5 °C (1.8 to 2.7 °F) under a low emissions scenario (Magrin
Temperature increases in Brazil are expected to be greatest over the Amazon rainforest, where Pará is located, with models indicating a strong warming and drying of this region during the 21st Century, particularly after 2040 (Marengo
Previous work has indicated that, under increasing temperature and decreasing rainfall conditions, the rainforest of the Amazon could be replaced with different vegetation. Some models have predicted a change from forests to savanna-type vegetation over parts of, or perhaps the entire, Amazon in the next several decades (Magrin
Temperatures in the Cerrado, which covers the Gerais region, are also predicted to increase; the maximum temperature in the hottest month may increase by 4 °C (7.2 °F) and by 2100 may increase to approximately 40 °C (104 °F) (Marini
Projections based on a 30-year average (2040–2069) indicate serious effects to Cerrado tree diversity in coming decades (Marini
Of the potential impacts of predicted climate-driven changes on bird distribution, extreme temperatures seemed to be the most important factor limiting distribution, revealing their
Whether species will or will not adapt to new conditions is difficult to predict; synergistic effects of climate change and habitat fragmentation, or other factors, such as biotic interactions, may hasten the need for conservation even more (Marini
We do not know how the habitat of the hyacinth macaw may change under these conditions, but we can assume some change will occur. The hyacinth macaw is experiencing habitat loss due to widespread expansion of agriculture and cattle ranching. Climate change has the potential to further decrease the specialized habitat needed by the hyacinth macaw; the ability of the hyacinth macaw to cope with landscape changes due to climate change is questionable given the specialized needs of the species. Furthermore, one of the factors that affected reproductive rates of hyacinths in the Pantanal was variations in temperature and rainfall (Guedes 2009, p. 42). Hotter, drier years, as predicted under different climate change scenarios, could result in greater impacts to hyacinth reproduction due to impacts on the fruit and foraging for the hyacinth macaw and competition with other bird and mammal species for limited resources (See
In Pará and the Gerais region, hunting removes individual hyacinth macaws vital to the already small populations (Brouwer 2004, unpaginated; Collar
Because the hyacinth macaw populations in Pará and the Gerais region are estimated at only 1,000–1,500 individuals, combined, the removal of any individuals from these small populations has a negative effect on reproduction and the ability of the species to recover. Any continued hunting for either meat or the sale of feather art is likely to contribute to the decline of the hyacinth macaw in these regions, particularly when habitat conversion is also taking place.
Hunting, capture, and trade of animal species is prohibited without authorization throughout the range of the hyacinth macaw (Clayton 2011, p. 4; Snyder
As described above, the specialized nature and reproductive biology of the hyacinth macaw contribute to low recruitment of juveniles and decrease the ability to recover from reductions in population size caused by anthropogenic disturbances (Faria
In the Pantanal, competition for nesting sites is intense. The hyacinth nests almost exclusively in manduvi trees; however, there are 17 other bird species, small mammals, and honey bees (
A 10-year study conducted in the Miranda region of the Pantanal concluded that the majority of hyacinth macaw nests (63 percent) failed, either
The remaining eggs that were considered lost during the 10-year study of the Miranda region did not hatch due to infertility, complications during embryo development, inexperience of young couples that accidentally smash their own eggs while entering and exiting the nest, breaking by other bird and mammal species wanting to occupy the nesting cavity, and broken trees and flooding of nests (Guedes 2009, p. 75).
Guedes (2009, pp. 66, 79) also found in the 10-year study of the Miranda region that, of the nests that successfully produced chicks, 49 percent experienced a total or partial loss of chicks. Of these, 62 percent were lost due to starvation, low temperature, disease or infestation by ectoparasites, flooding of nests, and breaking of branches. Thirty-eight percent were lost due to predation of chicks by carnivorous ants (
Variations in temperature and rainfall were also found to be factors affecting reproduction of the hyacinth in the Pantanal (Guedes 2009, p. 42). Years with higher temperatures and lower rainfall can affect the production of fruits and foraging and, therefore, lead to a decrease in reproduction of hyacinths the following year (Guedes 2009, pp. 42–43, 44). This outcome is especially problematic for a species that relies on only two species of palm nuts as a source of food. Competition with other bird and mammal species may also increase during these years. Acuri are available year round, even during times of fruit scarcity, making it a resource many other species also depend on during unfavorable periods (Guedes 2009, p. 44). Additionally, the El Niño event during the 1997–98 breeding season caused hotter, wetter conditions favoring breeding, but survival of the chicks was reduced. In 1999, a longer breeding period was observed following drier, colder conditions caused by the La Niña that same year; however, 54 percent of the eggs were lost that year (Guedes 2009, p. 43).
The main biodiversity protection strategy in Brazil is the creation of Protected Areas (National Protected Areas System) (Federal Act 9.985/00) (Santos Jr. 2008, p. 134). Various regulatory mechanisms (Law No. 11.516, Act No. 7.735, Decree No. 78, Order No. 1, and Act No. 6.938) in Brazil direct Federal and State agencies to promote the protection of lands and govern the formal establishment and management of protected areas to promote conservation of the country's natural resources (ECOLEX 2007, pp. 5–7). These mechanisms generally aim to protect endangered wildlife and plant species, genetic resources, overall biodiversity, and native ecosystems on Federal, State, and privately owned lands (
The states where the hyacinth macaw occurs contain 53 protected areas (Parks.it nd, unpaginated); however, the species occurs in only 3 of those areas (BLI 2014b, unpaginated; Collar
Many challenges limit the effectiveness of the protected areas system. Brazil is faced with competing priorities of encouraging development for economic growth and resource protection. In the past, the Brazilian Government, through various regulations, policies, incentives, and subsidies, has actively encouraged settlement of previously undeveloped lands, which facilitated the large-scale habitat conversions for agriculture and cattle-ranching that occurred throughout the Amazon, Cerrado, and Pantanal biomes (WWF–UK 2011b, p. 2; WWF 2001, unpaginated; Arima and Uhl, 1997, p. 446; Ratter
The Ministry of Environment is working to increase the amount of protected areas in the Pantanal and Cerrado regions; however, the Ministry of Agriculture is looking at using an additional 1 million km
Of 53 designated protected areas within the states in which the hyacinth macaw occurs, it is found in only 3 National Parks; none of which are effectively protected (Rogers 2006, unpaginated; Ridgely 1981, p. 238). The hyacinth macaw continues to be hunted in Pará and the Gerais region, and habitat loss due to agricultural expansion and cattle ranching is occurring in all three regions. Therefore, it appears that Brazil's protected areas system does not adequately protect the hyacinth macaw or its habitat.
In addition to national and state laws, the Brazilian Government and nongovernmental organizations have developed plans for protecting the forests of Brazil. In 2009, Brazil announced a plan to cut deforestation rates by 80 percent by 2020 with the help of international funding; Brazil's plan calls on foreign countries to fund $20 billion U.S. dollars (USD) (Marengo
Brazil's Ministry of Environment and The Nature Conservancy have worked together to implement the Farmland Environmental Registry to curb illegal deforestation in the Amazon. This program was launched in the states of Mato Grosso and Pará; it later became the model for the Rural Environmental Registry that monitors all of Brazil for compliance with the Forest Code. This plan helped Paragominas, a municipality in Pará, be the first in Brazil to come off the government's blacklist of top Amazon deforesters. After 1 year, 92 percent of rural properties in Paragominas had been entered into the registry, and deforestation was cut by 90 percent (Dias and Ramos 2012, unpaginated; Vale 2010, unpaginated). In response to this success, Pará launched its Green Municipalities Program in 2011. The purpose of this project is to reduce deforestation in Pará by 80 percent by 2020 and strengthen sustainable rural production. To accomplish this goal, the program seeks to create partnerships between local communities, municipalities, private initiatives, IBAMA, and the Federal Public Prosecution Service and focus on local pacts, deforestation monitoring, implementation of the Rural Environmental Registry, and structuring municipal management (Veríssimo
Awareness of the urgency in protecting the biodiversity of the Cerrado biome is increasing (Klink and Machado 2005, p. 710). The Brazilian Ministry of the Environment's National Biodiversity Program and other government-financed institutes such as the Brazilian Environmental Institute, Center for Agriculture Research in the Cerrado, and the National Center for Genetic Resources and Biotechnology, are working together to safeguard the existence and viability of the Cerrado. Additionally, nongovernmental organizations such as Fundaço Pró-Natureza, Instituto Sociedade População e Natureza, and World Wildlife Fund have provided valuable assessments and are pioneering work in establishing extractive reserves (Ratter
A network of nongovernmental organizations, Rede Cerrado, has been established to promote local sustainable-use practices for natural resources (Klink and Machado 2005, p. 710). Rede Cerrado provided the Brazilian Ministry of the Environment recommendations for urgent actions for the conservation of the Cerrado. As a result, a conservation program was established to integrate actions for conservation in regions where agropastoral activities were especially intense and damaging (Klink and Machado 2005, p. 710). Conservation International, The Nature Conservancy, and World Wildlife Fund have worked to promote alternative economic activities, such as ecotourism, sustainable use of fauna and flora, and medicinal plants, to support the livelihoods of local communities (Klink and Machado 2005, p. 710). Although these programs demonstrate awareness of the need for protection and efforts in protecting the Cerrado, we have no details on the specific work or accomplishments of these programs, or how they would affect, or have affected, the hyacinth macaw and its habitat.
The Brazilian Government, under its Action Plan for the Prevention and Control of Deforestation and Burning in the Cerrado—Conservation and Development (2010), committed to recuperating at least 8 million ha (20 million ac) of degraded pasture by the year 2020, reducing deforestation by 40 percent, decreasing forest fires, expanding sustainable practices, and monitoring remaining natural vegetation. It also planned to expand the areas under protection in the Cerrado to 2.1 million ha (5 million ac) (Ribeiro
In 1990, the Hyacinth Macaw Project (Projecto Arara Azul) began with support from the University for the Development of the State (Mato Grosso do Sul) and the Pantanal Region (Brouwer 2004, unpaginated; Guedes 2004b, p. 28; Pittman 1999, p. 39). This program works with local landowners, communities, and tourists to monitor the hyacinth macaw, study the biology of this species, manage the population, and promote its conservation and ensure its protection in the Pantanal (Santos Jr. 2008, p. 135; Harris
In nests with a history of unsuccessful breeding, the Hyacinth Macaw Project has also implemented chick management, with the approval of the Committee for Hyacinth Macaw Conservation coordinated by IBAMA. Hyacinth macaw eggs are replaced with chicken eggs, and the hyacinth eggs are incubated in a field laboratory. After hatching, chicks are fed for a few days, and then reintroduced to the original nest or to another nest with a chick of the same age. This process began to increase the number of chicks that survived and fledged each year (Brouwer 2004, unpaginated; Guedes 2004a, p. 281; Guedes 2004b, p. 9).
Awareness has also been raised with local cattle ranchers. Attitudes have begun to shift, and ranchers are proud of having macaw nests on the property. Local inhabitants also served as project collaborators (Guedes 2004a, p. 282; Guedes 2004b, p. 10). This shift in attitude has also diminished the threat of illegal trade in the Hyacinth Macaw Project area (Brouwer 2004, unpaginated).
The Hyacinth Macaw Project has contributed to the increase of the hyacinth population in the Pantanal since the 1990s (Harris
Nest boxes can have a marked effect on breeding numbers of many species on a local scale (Newton 1994, p. 274), and having local cattle ranchers appreciate the presence of the hyacinth macaw on their land helps diminish the effects of habitat destruction and illegal trade. However, the Hyacinth Macaw Project area does not encompass the entire Pantanal region. Although active management has contributed to the increase in the hyacinth population, and farmers have begun to protect hyacinth macaws on their property, land conversion for cattle ranching continues to occur in the Pantanal. The recruitment of the manduvi tree has been severely reduced, and is expected to become increasingly rare in the future, due to ongoing damage caused by cattle grazing and trampling of manduvi saplings, as well as the burning of pastures for maintenance. If this activity continues, the hyacinth's preferred natural cavities will be severely limited and the species will completely rely on the installation of artificial nest boxes, which is currently limited to the Hyacinth Macaw Project area. Furthermore, survival of hyacinth eggs and chicks are being impacted by predation, competition, climate variations, and other natural factors. Even with the assistance of the Hyacinth Macaw Project, only 35 percent of eggs survive to the juvenile stage.
The hyacinth macaw is protected under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), an international agreement between governments to ensure that the international trade of CITES-listed plant and animal species does not threaten species' survival in the wild. Under this treaty, CITES Parties (member countries or signatories) regulate the import, export, and re-export of specimens, parts, and products of CITES-listed plant and animal species. Trade must be authorized through a system of permits and certificates that are provided by the designated CITES Management Authority of each CITES Party. Brazil, Bolivia, and Paraguay are Parties to CITES.
The hyacinth macaw is currently listed in Appendix I of CITES. An Appendix-I listing includes species threatened with extinction whose trade is permitted only under exceptional circumstances, which generally precludes commercial trade. The import of an Appendix-I species generally requires the issuance of both an import and export permit. Import permits for Appendix-I species are issued only if findings are made that the import would be for purposes that are not detrimental to the survival of the species and that the specimen will not be used for primarily commercial purposes (CITES Article III(3)). Export permits for Appendix-I species are issued only if findings are made that the specimen was legally acquired and trade is not detrimental to the survival of the species, and if the issuing authority is satisfied that an import permit has been granted for the specimen (CITES Article III(2)).
The import of hyacinth macaws into the United States is also regulated by the Wild Bird Conservation Act (WBCA) (16 U.S.C. 4901
In the 1970s and 1980s, substantial trade in hyacinth macaws was reported, but actual trade was likely significantly greater given the amount of smuggling, routing of birds through countries not parties to CITES, and internal consumption in South America (Collar
Based on CITES trade data obtained from United Nations Environment Programme—World Conservation Monitoring Center (UNEP–WCMC) CITES Trade Database, from the time the hyacinth macaw was uplisted to CITES Appendix I in October 1987 through 2011, and taking into account that several records appear to be overcounts due to slight differences in the manner in which the importing and exporting countries reported their trade, international trade involved 2,030 specimens, including 1,804 live birds. Of the 2,030 specimens, 106 (4.6 percent) were exported from Bolivia, Brazil, or Paraguay (the range countries of the species). With the information given in the UNEP–WCMC database, from 1987 through 2011, only 24 of the 1,804 live hyacinth macaws reported in trade were reported as wild-sourced, 1,671 were reported as captive bred or captive born, 35 were reported as pre-Convention, and 74 were reported with the source as unknown.
Since our 2012 proposed rule published, CITES trade data from the UNEP–WCMC CITES Trade Database for the years 2012 through 2014 has become available. From 2012 through 2014 (the most recent year for which data is available from the WCMC–UNEP database), a total of 250 hyacinth macaw specimens, including 193 live birds, is reported in international trade in the WCMC–UNEP database. Except for five scientific samples imported by Switzerland in 2012, none of the other specimens were reported as being wild caught; all were either recorded as captive bred or captive born. Twenty live wild-caught hyacinth macaws are recorded as having been imported by Turkey from Cameroon in 2012; at the time of writing, we are still waiting for information from Turkey as to whether this data is accurate, and if so, whether this was lawful or unlawful trade.
We found little additional information on illegal trade of this species in international markets. One study found that illegal pet trade in Bolivia continues to involve CITES-listed species; the authors speculated that similar problems exist in Peru and Brazil (Herrera and Hennessey 2007, p. 298). In that same study, 11 hyacinths were found for sale in a Santa Cruz market from 2004 to 2007 (10 in 2004 and 1 in 2006) (Herrera and Hennessey 2009, pp. 233–234). Larger species, like the hyacinth, were frequently sold for transport outside of the country, mostly to Peru, Chile, and Brazil (Herrera and Hennessey 2009, pp. 233–234). During a study conducted from 2007 to 2008, no hyacinths were recorded in 20 surveyed Peruvian wildlife markets (Gastañaga
Although illegal trapping for the pet trade occurred at high levels during the 1980s, trade has decreased significantly from those levels. International trade of parrots was significantly reduced during the 1990s as a result of tighter enforcement of CITES regulations, stricter measures under EU legislation, and adoption of the WBCA, along with adoption of national legislation in various countries (Snyder
Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. As required by the Act, we conducted a review of the status of the species and considered the five factors in assessing whether the hyacinth macaw is in danger of extinction throughout all or a significant portion of its range (endangered) or likely to become endangered within the foreseeable future throughout all or a significant portion of its range (threatened). We examined the best scientific and commercial information available regarding factors affecting the status of the hyacinth macaw. We reviewed the petition, information available in our files, and other available published and unpublished information.
In considering what factors may constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to the factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine if it may drive or contribute to the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined by the Act.
Hyacinth macaws have a naturally low reproductive rate. Not all hyacinth chicks fledge young and, due to the long period of chick dependence, hyacinths breed only every 2 years. In the Pantanal population, the largest population of hyacinth macaws, only 15–30 percent of adults attempt to breed each year; it may be that as small or an even smaller percentage in Pará and Gerais attempt to breed. Additionally, feeding and habitat specializations are good predictors of a bird species' risk of extinction; because the hyacinth macaw has specialized food and nest site needs, it is at higher risk of extinction from the anthropogenic stressors described above.
Across its range, the hyacinth macaw is losing habitat, including those essential food and nesting resources, to expanding agriculture and cattle ranching. Pará has long been the epicenter of illegal deforestation primarily caused by cattle-ranching. Large-scale forest conversion for colonization and cattle ranching has accelerated due to state subsidies, infrastructure development, favorable climate in Pará, lower prices for land, and expansion of soy cultivation in other areas that has led to displacement of pastures into parts of Pará. Although deforestation rates decreased between 2009 and 2012, Amazon deforestation increased between 2012 and 2013 with the greatest increase occurring in Pará.
In the Gerais region, more than 50 percent of the original Cerrado vegetation has been lost due to conversion to agriculture and pasture. Although annual deforestation rates have decreased, there is a slow and steady increase in the amount of deforested area. Remaining Cerrado vegetation continues to be lost to conversion for soy plantations and extensive cattle ranching. Projections for coming decades show the largest
The greatest cause of habitat loss in the Pantanal is the expansion of cattle ranching. Only 6 percent of the Pantanal landscape is cordilleras, higher areas where the manduvi occur. These upland forests, including potential nesting trees, are often removed and converted to pastures for grazing during the flooding season; however, palm species used by hyacinths for food are usually left, as cattle also feed on the palm nuts. While deforestation rates between 2002 and 2014 indicate a decrease in the annual deforestation rate, there continues to be a slow and steady increase in the area deforested. Fire is also a common method for renewing pastures, controlling weeds, and controlling pests in the Pantanal. Fires become uncontrolled and are known to impact patches of manduvi. Fires can help in the formation of cavities, but too frequent fires can prevent trees from surviving to a size capable of providing suitable cavities and can cause a high rate of tree loss. Five percent of manduvi trees are lost each year due to deforestation, fires, and storms.
In addition to the direct removal of trees and the impact of fire on forest establishment, cattle impact forest recruitment. Intense livestock activity can affect seedling recruitment via trampling and grazing. Cattle also compact the soil such that regeneration of forest species is severely reduced. This type of repeated disturbance can lead to an ecosystem dominated by invasive trees, grasses, bamboo, and ferns. Manduvi, which contain the majority of hyacinth nests, are already limited in the Pantanal; only 5 percent of the existing adult manduvi trees in south-central Pantanal and 10.7 percent in the southern Pantanal contain suitable cavities for hyacinth macaws. Evidence of severely reduced recruitment of manduvi trees suggests that this species of tree, of adequate size to accommodate the hyacinth macaw, is not only scarce now, but likely to become increasingly scarce in the future.
Deforestation also reduces the availability of food resources. The species' specialized diet makes it vulnerable to changes in food availability. Another
Deforestation for agriculture and cattle ranching, cattle trampling and foraging, and burning of forest habitat result in the loss of mature trees with natural cavities of sufficient size and a reduction in recruitment of native species, which could eventually provide nesting cavities. A shortage of nest sites can jeopardize the persistence of the hyacinth macaw by constraining breeding density, resulting in lower recruitment and a gradual reduction in population size. This situation may lead to long-term effects on the viability of the hyacinth macaw population, especially in Pará and the Pantanal where persistence of nesting trees is compromised. While the Hyacinth Macaw Project provides artificial nest alternatives, such nests are only found within the project area.
Loss of essential tree species also negatively impacts the hyacinth macaw by increasing competition for what is already a shortage of suitable nest sites. In the Pantanal, the hyacinth nests almost exclusively in manduvi trees. The number of manduvi old and large enough to provide suitable cavities is already limited. Additionally, there are 17 other bird species, small mammals, and honey bees that also use manduvi cavities. Competition has been so fierce that hyacinths were unable to reproduce as it resulted in an increase in egg destruction and infanticide. As the number of suitable trees is further limited, competition for adequate cavities to accommodate the hyacinth macaw will certainly increase, reducing the potential for hyacinth macaws to reproduce.
In the Gerais region, hyacinth macaws mostly nest in rock crevices, most likely a response to the destruction of nesting trees. Although it is possible that hyacinths could use alternative nesting sites in Pará and the Pantanal, deforestation in these regions would impact alternative nesting trees, as well as food sources, resulting in the same negative effect on the hyacinth macaw. Furthermore, competition for limited nesting and food resources would continue.
Climate change models have predicted increasing temperatures and decreasing rainfall throughout most of Brazil. There are uncertainties in this modeling, and the projections are not definitive outcomes. How a species may adapt to changing conditions is difficult to predict. We do not know how the habitat of the hyacinth macaw may vary under these conditions, but we can assume some change will occur. The hyacinth macaw is experiencing habitat loss due to widespread expansion of agriculture and cattle ranching. Effects of climate change have the potential to further decrease the specialized habitat needed by the hyacinth macaw; the ability of the hyacinth macaw to cope with landscape changes due to climate change is questionable given the specialized needs of the species. Furthermore, hotter, drier years, as predicted under different climate change scenarios, could result in greater impacts to hyacinth reproduction due to impacts on the fruit and foraging for the hyacinth macaw and competition with other bird and mammal species for limited resources.
In addition to direct impacts on food and nesting resources and hyacinth macaws themselves, several other factors affect the reproductive success of the hyacinth. Information indicates that hyacinths in Pará and Gerais are hunted as a source of protein and for feathers to be used in local handicrafts. Although we do not have information on the numbers of macaws taken for these purposes, given the small populations in these two regions, any loss of potentially reproducing individuals could have a devastating effect on the ability of those populations to increase. Additionally, in the Pantanal, predation, variations in temperature and rainfall, and ectoparasites all contribute to loss of eggs and chicks, directly affecting the reproductive rate of hyacinth macaws.
Brazil has various laws to protect its natural resources. Despite these laws and plans to significantly reduce deforestation, expanding agriculture and cattle ranching has contributed to increases in deforestation rates in some years and deforested areas continue to increase each year. Additionally, hunting continues in some parts of the hyacinth macaw's range despite laws prohibiting this activity. Without effective implementation and enforcement of environmental laws, deforestation and hunting will continue.
Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” After analyzing the species' status in light of the five factors discussed above, we find the hyacinth macaw is a “threatened species” as a result of the following: Continued deforestation and reduced recruitment of forests (Factor A), hunting (Factor B), predation and disease (Factor C), competition (Factor
In total, there are approximately 6,500 hyacinth macaws left in the wild, dispersed among 3 populations. Two of the populations, Pará and Gerais, contain just 1,000–1,500 individuals, combined. The current overall population trend for the hyacinth macaw is reported as decreasing, although there are no reports of extreme fluctuations in the number of individuals. The hyacinth population has grown in the Pantanal; however, the growth is not sufficient to counter the continued and predicted future anthropogenic disturbances on the hyacinth macaw. Because the hyacinth macaw has specialized food and nest site needs, it is at higher risk of extinction from anthropogenic stressors described above. Additionally, the hyacinth macaw has relatively low recruitment of juveniles, which decreases the ability of a population to recover from reductions caused by anthropogenic disturbances. Hyacinths may not have a high enough reproduction rate and may not survive in areas where nest sites and food sources are destroyed.
In our 2012 proposed rule, we found that the hyacinth macaw was in danger of extinction (an endangered species) based on estimates indicating the original vegetation of the Amazon, Cerrado, and Pantanal, including the hyacinth's habitat, would be lost between the years 2030 and 2050 due to deforestation, combined with its naturally low reproductive rate, highly specialized nature, hunting, competition, and effects of climate change. Deforestation rates in Pará decreased between 2013 and 2014 by 20 percent, and rates remained stable in 2015. More recent estimates of deforestation indicate annual deforestation rates in the Cerrado and Pantanal have decreased by approximately 40 and 37 percent, respectively. If these rates are maintained or are further reduced, the loss of all native habitat from these areas, including the species of trees needed by the hyacinth for food and nesting, and the hyacinth's risk of extinction is not as imminent as predicted. Therefore, we do not find that the hyacinth macaw is currently in danger of extinction. However, the hyacinth macaw remains a species particularly vulnerable to extinction due to the interaction between continued habitat loss and its highly specialized needs for food and nest trees. Given land-use trends, lack of enforcement of laws, and predicted landscape changes under climate change scenarios, the persistence of essential food and nesting resources and, therefore the hyacinth macaw, is of concern.
Threats to the hyacinth macaw and remaining habitat, and declines in the population are expected to continue throughout its range in the foreseeable future. What habitat remains is at risk of being lost due to ongoing deforestation. Pará is one of the states where most of Brazil's agriculture expansion is taking place. Modeled future deforestation is concentrated in this area. The Cerrado is the most desirable biome for agribusiness expansion and contains approximately 40 million ha (98.8 million ac) of “environmental surplus” that could be legally deforested, therefore, this region will likely continue to suffer deforestation. Ninety-five percent of the Pantanal is privately owned, 80 percent of which is used for cattle ranches. Clearing land to establish pasture is perceived as the economically optimal land use while land not producing beef is often perceived as unproductive. Furthermore, potential nesting sites are rare and will become increasingly rare in the future. Continued loss of remaining habitat may lead to long-term effects on the viability of the hyacinth macaw, as hyacinth macaws may not have a high enough reproductive rate to survive where nest sites are destroyed. Additionally, any factors that contribute to the loss of eggs and chicks ultimately reduce reproduction and recruitment of juveniles into the population and the ability of those populations to recover. Therefore, long-term survival of this species is a concern. On the basis of the best scientific and commercial information, we find that the hyacinth macaw meets the definition of a “threatened species” under the Act, and we are listing the hyacinth macaw as threatened throughout its range.
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” We published a final policy interpreting the phrase “Significant Portion of its Range” (SPR) (79 FR 37578, July 1, 2014). The final policy states that (1) if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service or the National Marine Fisheries Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.
We found the hyacinth macaw likely to become endangered within the foreseeable future throughout its range. Therefore, no portions of the species' range are “significant” as defined in our SPR policy, and no additional SPR analysis is required.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and interest groups, and individuals.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. These prohibitions, at 50 CFR 17.21 and 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to “take” (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or to attempt any of these) within the United States or upon the high seas; import or export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.
The purposes of the Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in the Act (16 U.S.C. 1531(b)). When a species is listed as endangered, certain actions are prohibited under section 9 of the Act and our regulations at 50 CFR 17.21. These include, among others, prohibitions on take within the United States, within the territorial seas of the United States, or upon the high seas; import; export; and shipment in interstate or foreign commerce in the course of a commercial activity. Exceptions to the prohibitions for endangered species may be granted in accordance with section 10 of the Act and our regulations at 50 CFR 17.22.
The Act does not specify particular prohibitions and exceptions to those prohibitions for threatened species. Instead, under section 4(d) of the Act, the Secretary, as well as the Secretary of Commerce depending on the species, was given the discretion to issue such regulations as deemed necessary and advisable to provide for the conservation of such species. The Secretary also has the discretion to prohibit by regulation with respect to any threatened species any act prohibited under section 9(a)(1) of the Act. Exercising this discretion, the Service has developed general prohibitions in the Act's regulations (50 CFR 17.31) and exceptions to those prohibitions (50 CFR 17.32) that apply to most threatened species. Under 50 CFR 17.32, permits may be issued to allow persons to engage in otherwise prohibited acts for certain purposes.
Under section 4(d) of the Act, the Secretary, who has delegated this authority to the Service, may also develop specific prohibitions and exceptions tailored to the particular conservation needs of a threatened species. In such cases, the Service issues a 4(d) rule that may include some or all of the prohibitions and authorizations set out in 50 CFR 17.31 and 17.32, but which also may be more or less restrictive than the general provisions at 50 CFR 17.31 and 17.32. For the hyacinth macaw, the Service is using our discretion to propose a 4(d) rule.
If the proposed 4(d) rule is adopted, we will incorporate all prohibitions and provisions of 50 CFR 17.31 and 17.32, except that import and export of certain hyacinth macaws into and from the United States and certain acts in interstate commerce will be allowed without a permit under the Act, as explained below.
The proposed 4(d) rule will apply to all commercial and noncommercial international shipments of live and dead hyacinth macaws and parts and products, including the import and export of personal pets and research samples. In most instances, the proposed 4(d) rule will adopt the existing conservation regulatory requirements of CITES and the WBCA as the appropriate regulatory provisions for the import and export of certain hyacinth macaws. The import and export of birds into and from the United States, taken from the wild after the date this species is listed under the Act; conducting an activity that could take or incidentally take hyacinth macaws; and foreign commerce will need to meet the requirements of 50 CFR 17.31 and 17.32, including obtaining a permit under the Act. However, the 4(d) rule proposes to allow a person to import or export either: (1) A specimen held in captivity prior to the date this species is listed under the Act; or (2) a captive-bred specimen, without a permit issued under the Act, provided the export is authorized under CITES and the import is authorized under CITES and the WBCA. If a specimen was taken from the wild and held in captivity prior to the date this species is listed under the Act, the importer or exporter will need to provide documentation to support that status, such as a copy of the original CITES permit indicating when the bird was removed from the wild or museum specimen reports. For captive-bred birds, the importer would need to provide either a valid CITES export/re-export document issued by a foreign Management Authority that indicates that the specimen was captive bred by using a source code on the face of the permit of either “C,” “D,” or “F.” For exporters of captive-bred birds, a signed and dated statement from the breeder of the bird, along with documentation on the source of their breeding stock, would document the captive-bred status of U.S. birds.
The proposed 4(d) rule will apply to birds captive-bred in the United States and abroad. The terms “captive-bred” and “captivity” used in the proposed 4(d) rule are defined in the regulations at 50 CFR 17.3 and refer to wildlife produced in a controlled environment that is intensively manipulated by man from parents that mated or otherwise transferred gametes in captivity. Although the proposed 4(d) rule requires a permit under the Act to “take” (including harm and harass) a hyacinth macaw, “take” does not include generally accepted animal husbandry practices, breeding procedures, or provisions of veterinary care for confining, tranquilizing, or anesthetizing, when such practices, procedures, or provisions are not likely to result in injury to the wildlife when applied to captive wildlife.
We assessed the conservation needs of the hyacinth macaw in light of the broad protections provided to the species under CITES and the WBCA. The hyacinth macaw is listed in Appendix I under CITES, a treaty which contributes to the conservation of the species by monitoring international trade and ensuring that trade in Appendix I species is not detrimental to the survival of the species (see
Under the proposed 4(d) rule, a person may deliver, receive, carry, transport, or ship a hyacinth macaw in interstate commerce in the course of a commercial activity, or sell or offer to sell in interstate commerce a hyacinth macaw without a permit under the Act. At the same time, the prohibitions on take under 50 CFR 17.21 would apply under this proposed 4(d) rule, and any interstate commerce activities that could
Persons in the United States have imported and exported captive-bred hyacinth macaws for commercial purposes and one body for scientific purposes, but trade has been very limited (UNEP–WCMC 2011, unpaginated). We have no information to suggest that interstate commerce activities are associated with threats to the hyacinth macaw or would negatively affect any efforts aimed at the recovery of wild populations of the species. Therefore, because acts in interstate commerce within the United States have not been found to threaten the hyacinth macaw, the species is otherwise protected in the course of interstate commercial activities under the take provisions and foreign commerce provisions contained in 50 CFR 17.31, and international trade of this species is regulated under CITES, we find this proposed 4(d) rule contains all the prohibitions and authorizations necessary and advisable for the conservation of the hyacinth macaw.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. This rulemaking will not impose new recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.
We have determined that we do not need to prepare an environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted under section 4(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in the
A list of all references cited in this document is available at
The primary authors of this notice are staff members of the Branch of Foreign Species, Ecological Services Program, U.S. Fish and Wildlife Service.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended on July 6, 2012, at 77 FR 39965 and on April 7, 2016, at 81 FR 20302, as set forth below:
16 U.S.C. 1361–1407; 1531–1544; 4201–4245; unless otherwise noted.
(h) * * *
(c) The following species in the parrot family: Salmon-crested cockatoo
(1) Except as noted in paragraphs (c)(2) and (c)(3) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to these species.
(2)
(ii)
(E)
United States African Development Foundation.
Notice of meeting.
The U.S. African Development Foundation (USADF) will hold its quarterly meeting of the Board of Directors to discuss the agency's programs and administration.
The meeting date is Wednesday, November 30, 2016, 9:00 a.m. to 12:00 p.m.
The meeting location is 1400 I St NW., Suite 1000, Washington, DC 20005.
Jason Parker, 202–233–8800.
Public Law 96–533 (22 U.S.C. 290h).
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 are required regarding (1) 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; (2) the accuracy of the agency's estimate of burden 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 those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by December 28, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725–17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments are requested regarding (1) 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; (2) the accuracy of the agency's estimate of burden 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 those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by December 28, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
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.
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Aquaculture Surveys. Revision to burden hours will be needed due to changes in NASS estimates programs, target population sizes, sampling designs, and/or content of questionnaires.
Comments on this notice must be received by January 27, 2017 to be assured of consideration.
You may submit comments, identified by docket number 0535–0150, by any of the following methods:
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R. Renee Picanso, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720–4333. Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS—OMB Clearance Officer, at (202) 690–2388 or at
The trout survey includes inventory counts, sales (dollars, pounds, and quantities), percent of product sold by outlet at the point of first sale, number of fish raised for release into open waters, and losses. The catfish surveys include inventory counts, water surface acreage used for production, sales (dollars, pounds, and quantities), and losses.
• Twenty-five states are in the Trout Production Survey. In January, data are collected in the selected states that produce and either sell or distribute trout. State, federal, tribal, and other facilities where trout are raised for conservation, restoration, or recreational purposes are included in the survey.
• Nine states are in the Catfish Production Survey. Data are collected from farmers in January for inventory, water surface acreage, and previous year sales. In addition, farmers in the three major catfish producing states are surveyed in July for mid-year inventory and water surface acreage.
• The surveys conducted in Florida, Hawaii, and Pennsylvania are conducted under cooperative agreements with each of these states.
• All of the surveys conducted under this approval will have voluntary reporting, with the exception of the Pennsylvania survey. The Pennsylvania State Government requires producers to respond to this survey.
The Catfish Feed Deliveries and Catfish Processing surveys that are present in the current information collection were discontinued due to budget sequestration in 2013. The information that was collected by these two surveys is now being collected and published by the Catfish Institute in their bimonthly publication
The Pennsylvania aquaculture census is being conducted to obtain basic data on aquaculture production per Section 4217 of the Pennsylvania Agriculture Act of 1998, which states that, “Persons licensed shall submit annually a summary report of sales specifying the amount or weight of each species sold and gross receipts.”
Comments: 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 will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, technological or other forms of information technology collection methods. All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
Rural Business-Cooperative Service, USDA.
Notice.
This notice invites Community Development Financial Institutions to apply for the position of National Fund Manager for the Healthy Food Financing Initiative (HFFI), which was authorized under Section 4206 of the Agricultural Act of 2014 (2014 Farm Bill).
Applications are due by 4:00 p.m. Eastern Standard Time on December 28, 2016.
Submit complete applications to: James Barham, Agricultural Economist, Rural Business-Cooperative Service, U.S. Department of Agriculture, Stop 3254, 1400 Independence Avenue SW., Washington, DC 20250–0783; james.barham@wdc.usda.gov.
On February 7, 2014, the Agricultural Act of 2014 (Pub. L. 113–79) (2014 Farm Bill) was signed into law. Section 4206 of the 2014 Farm Bill established the Healthy Food Financing Initiative (HFFI). The purposes of the HFFI are to improve access to healthy foods in underserved areas, to create and preserve quality jobs, and to revitalize low-income communities by providing loans and grants to eligible fresh, healthy food retailers to overcome the higher costs and initial barriers to entry in underserved areas.
A key component to the successful implementation of the HFFI is the National Fund Manager (NFM). The primary roles of the NFM, as identified in the 2014 Farm Bill, will be to raise private capital, provide financial and technical assistance to partnerships, and fund eligible projects to support retailers and their supply chains that bring fresh, healthy food into underserved areas.
HFFI was designed as a three-agency initiative. Since the Department of Treasury and the Department of Health and Human Services already have HFFI activities underway through existing programs, in standing up HFFI at USDA, the Agency and the NFM will take great care to ensure appropriate cooperation and coordination to achieve the goals of HFFI. Until Federal funds are appropriated for this HFFI program, the NFM will pay for its own administrative, fundraising, and management costs; USDA will not be responsible for such costs. Those costs may be covered through private fundraising agreements or other third party sources. If and when Federal funds are made available, Section 4206 permits them to be used to cover administrative expenses of the NFM in an amount not to exceed 10 percent of the Federal funds provided.
To be eligible to be the National Fund Manager, the applicant must meet each of the following conditions:
• The applicant must be a Community Development Financial Institution (CDFI) certified by the U.S. Department of the Treasury Department CDFI Fund.
• The applicant must have been in existence on February 7, 2014, and must still be in existence on the date the CDFI applies for the NFM position.
The Agency envisions that the NFM will have a variety of roles and responsibilities to help ensure the success of the HFFI program. The following presents the general roles and responsibilities of the NFM currently envisioned by the Agency. The final roles and responsibilities will be identified in an appropriate agreement as agreed upon between the successful applicant and the Agency. The roles and responsibilities may vary depending on whether Federal funds are appropriated for the HFFI program.
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○ Periodic reports on outcome metrics;
○ Percentage of the number of projects funded each Federal fiscal year that are located in a rural area; (rural area as used in this notice means any area other than (i) a city or town that has a population of greater than 50,000 inhabitants; and (ii) any urbanized area contiguous and adjacent to a city or town described in clause (i)).
○ A copy of its CDFI Fund Annual Certification and Data Collection Report Form submitted to the Department of Treasury; and
○ An annual report with a synopsis of each project receiving funding under the HFFI program.
The NFM will be expected to actively publicize the HFFI program to appropriate communities and priority populations. In addition, the NFM will be expected to help build the capacity of potential applications, partners, and peers. The specific role of the NFM in this area will be negotiated between the Agency and the NFM.
CDFIs must submit all of the information identified in this section of the notice to be considered for the NFM position. When submitting your application, be mindful of the scoring criteria identified in Section V, Scoring Information, of this notice to ensure your application is fully responsive.
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• For revolving loan funds and other products that provide loans, describe the CDFI's relationship to and role in each revolving loan fund (
• For grants to fund projects, identify the size of the grant and any terms and conditions associated with the use of the grant funds.
• For technical assistance, describe the types of technical assistance and to whom the technical assistance was provided. In addition, describe the types of Technical Assistance that you would provide, if selected as the NFM, to benefit underserved areas with low- and moderate-income populations; rural communities; women- and minority-owned businesses; and local or regional food systems.
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Describe the CDFI's history of collaboration with the U.S. Department of Agriculture and other governmental (
If selected as the NFM, describe your plans to reach out to underserved areas with low- and moderate-income populations, rural communities, women- and minority-owned businesses, and businesses that support local or regional food systems. Include examples where you have implemented any of these approaches and provide an assessment of why they were or were not successful. If not successful, describe what can be done to improve their effectiveness.
As the NFM, describe the roles that both national organizations and local healthy food stakeholders would play in supporting the HFFI program. Describe your approach to collaborating with these stakeholders to facilitate HFFI investments.
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If you are selected as the NFM, describe the strategy you will use to raise private capital in support of this HFFI program and your strategy for making successful HFFI investments. Be
6.
Describe your contracting (including subcontracting) experience relevant to the types of assistance to be provided through the HFFI program. This might include such activities as contracting for support of servicing loan or grant awards or for the provision of specific types of technical assistance. For each contracting effort described, identify the purpose/scope of the contract, its size and duration, and the party or parties with whom you contracted. Please provide any additional contracting-related information you believe is relevant to the role of the NFM.
Discuss the keys to being a successful NFM and for the HFFI program to succeed. Describe barriers to making HFFI successful and how, if you are selected, you will overcome them. Additionally, describe any innovative techniques that you have used successfully and how, if you are selected, you will use them to improve implementation of the HFFI program.
7.
Discuss the strategies you would use, if you are selected as the NFM, to ensure the successful implementation of the HFFI program in rural areas.
8.
9.
Discuss metrics you would use, if selected as NFM, to evaluate whether and to what extent the projects funded have met the objectives of the HFFI program.
10.
Describe the greatest financial and logistical challenges facing local and regional food systems and how, if you are selected as the NFM, you would address those challenges to successfully incorporate projects that support local and regional food systems into the HFFI program.
All responses must be in English. Applications must not exceed 30 pages, excluding resumes and current audited financial statements. Applications must use 12-point font of any type, and may be either single- or double-spaced. Application material must be printable by electronic media on one side of the paper. Do not include formatting that requires large megabyte support.
Responses to either the mailing address or the email address identified under the
The following describes how the Agency will score complete, eligible applications for the NFM position. In general, providing specific examples under all of the criteria will help boost an applicant's score.
The more experience the NFM has with similar projects and the types of assistance for implementing the HFFI program, the better the NFM will be able to implement and manage the program. Therefore, an applicant's score under this criterion will be commensurate with the applicant's experience in and understanding of:
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Experience across all types of assistance envisioned under the HFFI program and experience that is more evenly spread across the types (rather than being concentrated in one type of assistance) will help boost an applicant's score.
If people do not know about the HFFI program, few will apply and the HFFI program will not be successful. Therefore, it is critical that there is a good roll-out of the HFFI program. Further, successful collaboration with such entities as national food access organizations will be valuable to the success of the HFFI program. A CDFI with good, established relations is more likely to be able to leverage that experience for better program implementation.
Outreach and collaboration will be primary responsibilities of the NFM (although the Agency will assist and the Agency expects that national food access organizations will also provide valuable assistance).
In evaluating applicants for the NFM position, the Agency will score applications commensurate with the applicant's:
• Approaches to reaching out to underserved areas with low- and moderate-income populations, rural communities, tribal communities, women- and minority-owned businesses, and local or regional food systems that will be served by the HFFI program and the effectiveness of such approaches;
• Successful collaboration with CDFIs, national food access organizations, and other stakeholders to market such programs;
• Proven track record in working with federal agencies, including the U.S. Department of Agriculture; and
• Vision of the role that national organizations and other healthy food stakeholders should play in support of the HFFI program, its approach to accessing these stakeholders, and how the NFM will work with them in order to facilitate HFFI investments.
The ability of the NFM to raise private capital will be critical to funding HFFI projects. In addition, the Agency anticipates that the HFFI program will be a large program, and the experience of the NFM in successfully managing and administering large amounts of capital in a cost-efficient manner will be important.
An applicant's score under this criterion will be commensurate with the applicant's:
• Experience in raising significant amount of private capital;
• Experience in successfully managing large pools of capital in a cost-efficient manner, including management fees; and
• Approach for raising private capital for this HFFI effort and for making successful HFFI investments, especially in rural areas.
An applicant's score under this criterion will be commensurate with qualifications of the applicant's management team (including experience related to financial management, healthy foods, experience with the U.S. Department of Agriculture and other federal agencies and offices), demonstration of the CDFI's financial stability, how long the CDFI has been in existence, and the CDFI's strategy for being a successful National Fund Manager. In addition to the material supplied by the applicant, the Agency may use current Department of the Treasury data on the CDFI to assess the applicants' financial stability. By applying for this position, the applicant is consenting to the Department of the Treasury's release of such information to the Agency for the purpose of evaluating your application.
The NFM may enter into contracts in order to better implement the HFFI program (
Demonstrating an understanding of barriers faced by HFFI and successful and innovative approaches to overcome such barriers will help boost an applicant's score. Management experience relevant to healthy foods, especially in connection with public-private partnerships; underserved areas with low- and moderate-income populations; rural communities; tribal communities; and women- and minority-owned businesses will also help boost the applicant's score under this criterion.
There are unique challenges to providing funding and technical assistance to rural communities. To be most effective as the NFM, the applicant should have substantial experience is providing funding and/or technical assistance to rural communities. An applicant's score under this criterion will be commensurate with the amount of the applicant's experience with rural communities and its approach to ensure successful implementation of the HFFI program in rural areas.
Under this criterion, the Agency will award points commensurate with the applicant's percentages of rural projects and the applicant's reasonable justification for those percentages. The Agency will require the selected NFM to meet or exceed this percentage in the third Federal fiscal year and each Federal fiscal year thereafter.
• If the applicant commits to funding 50 percent or higher of the total number of projects in rural areas in the third Federal fiscal year, the Agency will award up to 20 points.
• If the applicant commits to funding between at least 25 percent and up to 50 percent of the total number of projects in rural areas in the third Federal fiscal year, the Agency will award up to 10 points.
• If the applicant commits to funding less than 25 percent of the total number of projects in rural areas in the third Federal fiscal year, the Agency will award 0 points.
Being able to evaluate the performance of the HFFI program will require the collection and analysis of program outcome metrics. In selecting the NFM, the Agency will score applicants commensurate with (1) their experience in creating outcome metrics applicable to HFFI (or similar) projects or similar projects to include developing, tracking, and reporting project performance targets and metrics, especially with regards to projects associated with healthy food projects; and (2) their recommendation of outcome metrics for evaluating the extent that projects funded have met the statutory objectives of the HFFI program.
Supporting local and regional supply chains promises to multiply the economic impact of the HFFI program, and ensure that it increases access to the healthiest foods. But, as with providing assistance to rural communities, there are unique challenges associated with projects that support local and regional supply chains. To be most effective as the NFM, the CDFI should have tangible experience providing funding and/or technical assistance to projects in local and regional food systems and have an understanding of the financial and logistical challenges facing local and regional food systems, especially as they pertain to low-income consumers' access to staple foods, creating quality jobs, and other support of community economic development. An applicant's score under this criterion will be commensurate with the amount of the applicant's experience in this area and understanding of the challenges facing local and regional food systems.
The Agency will rank applicants based on their scores, with the highest
The Agency will notify, in writing, each applicant as to whether or not they were selected as the NFM. Applicants not selected for the NFM position will be provided appeal rights.
The Agency will enter into an appropriate Agreement with the selected applicant. The Agency will work with the selected applicant to clearly define the NFM's roles and responsibilities in accordance with this notice and section 4206. The Agreement will detail final provisions between the selected applicant and the Agency. If the Agency cannot reach agreement with the selected applicant on the terms and conditions for the Agreement, the Agency will approach the next best applicant to become the NFM.
If you wish further information concerning this Notice and the solicitation of the NFM, please contact: James Barham, Agricultural Economist, 202–690–1411,
In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Persons with disabilities who require alternative means of communication for program information (
To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD–3027, found online at
(1)
(2)
(3)
USDA is an equal opportunity provider, employer, and lender.
United States Commission on Civil Rights.
Notice of commission business 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 (FACA), that a Business Meeting of the U.S. Commission on Civil Rights will be convened at 11 a.m. on Friday, December 2, 2016.
Friday, December 2, 2016, at 11 a.m. EST.
National Place Building, 1331 Pennsylvania Ave. NW., 11th Floor, Suite 1150, Washington, DC 20425 (Entrance on F Street NW.).
Brian Walch, Communications and Public Engagement Director. Telephone: (202) 376–8371; TTY: (202) 376–8116; Email:
This business meeting is open to the public. If you would like to listen to the business meeting, please contact the above for the call-in information.
Economic Development Administration, Department of Commerce.
Notice and Opportunity for Public Comment.
Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
On July 22, 2016, GE Renewables North America, LLC submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board for its facility within Subzone 249A, in Pensacola, Florida.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Effective October 21, 2016.
The Department of Commerce (the Department) is notifying the public that the Court of International Trade's (the Court's) final judgment in this case is not in harmony with the Department's final results and is therefore rescinding the antidumping administrative review with respect to Baoding Mantong Fine Chemistry Co. Ltd. (Baoding Mantong).
Madeline Heeren or Brian Davis, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–9179 or (202) 482–7924, respectively.
On April 8, 2013, the Department published the
In its decision in
Because there is now a final court decision, the Department is amending the
In the event the Court's ruling is not appealed or, if appealed, upheld by a final and conclusive court decision, the Department will instruct the U.S. Customs and Border Protection to assess antidumping duties on unliquidated entries of subject merchandise based on the rescission of the review with respect to Baoding Mantong.
Since the
This notice is issued and published in accordance with sections 516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on aluminum extrusions from the People's Republic of China (PRC). The period of review (POR) is May 1, 2014 through April 30, 2015. These final results cover 46 companies for which an administrative review was initiated and not rescinded. The Department selected the following companies as mandatory respondents: Guangzhou Jangho Curtain Wall System Engineering Co., Ltd. and Jangho Curtain Wall Hong Kong Ltd. (collectively, Jangho) and Guang Ya Aluminium Industries Co., Ltd., Foshan Guangcheng Aluminium Co., Ltd., Kong Ah International Company Limited, and Guang Ya Aluminium Industries (Hong Kong) Ltd. (collectively, Guang Ya Group); Guangdong Zhongya Aluminium Company Limited, Zhongya Shaped Aluminium (HK) Holding Limited, and Karlton Aluminum Company Ltd. (collectively, Zhongya); and Xinya Aluminum & Stainless Steel Product Co., Ltd. (Xinya) (collectively, Guang Ya Group/Zhongya/Xinya). The Department finds that Jangho, Guang Ya Group/Zhongya/Xinya, and 23 other companies subject to this review did not demonstrate eligibility for a separate rate, and, accordingly, are to be considered part of the PRC-wide entity. We also determine for these final results that two companies, Xin Wei Aluminum Company Limited and Permasteelisa Hong Kong Limited, had no shipments during the POR. Finally, we find that eight companies, including JMA (HK) Company Limited (JMA), continue to be eligible for a separate rate.
Effective November 28, 2016.
Deborah Scott or Mark Flessner, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–2657 or (202) 482–6312, respectively.
The Department initiated this review on July 1, 2015.
These final results cover 46 companies for which an administrative review was initiated and not rescinded.
The merchandise covered by the
Imports of the subject merchandise are provided for under the following categories of the Harmonized Tariff Schedule of the United States (HTSUS): 8481.90.9060, 8481.90.9085, 9031.90.9195, 8424.90.9080, 9405.99.4020, 9031.90.90.95, 7616.10.90.90, 7609.00.00, 7610.10.00, 7610.90.00, 7615.10.30, 7615.10.71, 7615.10.91, 7615.19.10, 7615.19.30,
The subject merchandise entered as parts of other aluminum products may be classifiable under the following additional Chapter 76 subheadings: 7610.10, 7610.90, 7615.19, 7615.20, and 7616.99, as well as under other HTSUS chapters. In addition, fin evaporator coils may be classifiable under HTSUS numbers: 8418.99.80.50 and 8418.99.80.60. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this
All issues raised in the case and rebuttal briefs filed by parties in this review are addressed in the Issues and Decision Memorandum, which is incorporated herein by reference. A list of the issues which parties raised, and to which we respond in the Issues and Decision Memorandum, follows in the appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically
The Department reconsidered the necessity of applying adverse facts available (AFA), pursuant to sections 776(a) and (b) of the Tariff Act of 1930 (the Act), in the
In our
The separate rate for non-selected companies is normally the amount equal to the weighted average of the calculated weighted-average dumping margins established for mandatory respondents, excluding any margins that are zero,
In the
For purposes of these final results, the Department finds that Jangho and Guang Ya Group/Zhongya/Xinya are not eligible for a separate rate and are part of the PRC-wide entity. For a full explanation,
In addition, the Department found in the
Under the Department's policy regarding conditional review of the PRC-wide entity, the PRC-wide entity will not be under review unless a party specifically requests, or the Department self-initiates, a review of the entity.
Because no mandatory respondent established eligibility for an adjustment under section 777A(f) of the Act for countervailable domestic subsidies, the Department, for these final results, did not make an adjustment pursuant to section 777A(f) of the Act for countervailable domestic subsidies for the separate-rate recipients.
Pursuant to section 772(c)(1)(C) of the Act, the Department made an adjustment for countervailable export subsidies for the separate-rate recipients. Specifically, we adjusted the assigned separate rate by deducting the simple average of the countervailable export subsidies determined for the individually examined respondents in the 2013 countervailing duty administrative review.
For the PRC-wide entity, since the entity is not currently under review, no adjustments were warranted to its rate, as it is not subject to change.
The Department determines that the following weighted-average dumping margins exist for the 2014–2015 POR:
Additionally,
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review in the
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the companies eligible for a separate rate, the cash deposit rate will that listed above in the section “Final Results of Review;” (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the exporter-specific rate published for the most-recently completed segment of this proceeding in which the exporter was reviewed; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be that established for the PRC-wide entity, which is 33.28 percent;
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties and/or countervailing duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties and/or countervailing duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. 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 the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an expedited review of the countervailing duty (CVD) order on supercalendered paper (SC paper) from Canada. The period of expedited review (POR) is January 1, 2014, through December 31, 2014. We preliminarily determine that Irving Paper Limited received countervailable subsidies during the POR. We also preliminarily determine that Catalyst Paper received
Effective November 28, 2016.
Nicholas Czajkowski or Toby Vandall, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1395 and (202) 482–1664, respectively.
The product covered by this order is SC paper. A full description of the scope of the order is contained in the Preliminary Decision Memorandum, which is hereby adopted by this notice.
On December 10, 2015, the Department issued a countervailing duty order on SC paper from Canada.
We calculated a CVD rate for each producer/exporter of the subject merchandise that requested an expedited review.
As a result of this review, we preliminarily determine the countervailable subsidy rates to be:
The Department will disclose to parties to this proceeding the calculations performed in connection with these preliminary results within five days publication of this notice.
Unless the deadline is extended pursuant to 19 CFR 351.214(h)(i)(2), the Department will issue the final results of this expedited review, including the results of its analysis of issues raised in any written briefs, within 90 days after the date of publication of these preliminary results.
Pursuant to section 19 CFR 351.214(k)(iii), the final results of this expedited review will not be the basis for the assessment of countervailing duties. Upon issuing the final results, the Department intends to instruct Customs and Border Protection (CBP) to collect cash deposits of estimated countervailing duties for the companies subject to this expedited review, at the rates shown above, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this expedited review. These cash deposit requirements, when imposed, shall remain in effect until further notice. Pursuant to 19 CFR 351.214(k)(iv), however, if either Catalyst and/or Irving has a final estimated net subsidy rate that is zero or
This determination is issued and published pursuant to sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.214(h) and (k).
List of Topics Discussed in the Preliminary Decision Memorandum
I. Summary
II. Background
III. Scope of the Order
IV. Subsidies Valuation
V. Analysis of Programs
VI. Disclosure and Public Comment
VII. Conclusion
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Mid-Atlantic Fishery Management Council (Council) will hold public meetings of the Council and its Committees.
The meeting will be held on Monday December 12 through Thursday, December 15, 2016. For agenda details, see
The meetings will be held at: Royal Sonesta Harbor Court, 550 Light Street, Baltimore, MD 21202, telephone: (410) 234–0550.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526–5255.
The following items are on the agenda, though agenda items may be addressed out of order (changes will be noted on the Council's Web site when possible).
Discuss Council awards and process and MAFMC/NEFMC joint management issue.
Review Committee and Advisory Panel input and adopt alternatives for the public hearing document.
Review public comments and select final preferred alternatives.
Final action.
Review Committee recommendations and select final preferred alternatives.
Receive a presentation on Dusky Shark Management Measures and consider developing Council comments.
Meeting with the Atlantic States Marine Fisheries Commission's Summer Flounder, Scup, and Black Sea Bass Boards.
Review initial analysis and Monitoring Committee and Advisory Panel comments.
Review and discuss commercial/recreational allocation model results and peer review summary.
Update progress, discuss amendment timeline and action plan.
Review Monitoring Committee and Advisory Panel recommendations, adopt recommendations for 2017 management measures, BSB discussion on state-by-state recreational performance relative to regional targets and ASMFC Addendum for summer flounder (Board action).
Review and adopt 2017 Implementation Plan.
The day will conclude with brief reports from the National Marine Fisheries Service's GARFO and the Northeast Fisheries Science Center, NOAA's Office of General Counsel, the ASMFC, the New England and South Atlantic Fishery Council's liaisons and the Regional Planning Body Report. The Council will also receive the Council's Executive Director's Report, the Science Report, Committee Reports, and discuss any continuing and/or new business.
Although other non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens act, provided that the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Saunders, (302) 526–5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of standard prices and fee percentage.
NMFS publishes standard prices and fee percentages for cost recovery for the Amendment 80 Program, the American Fisheries Act (AFA) Program, the Aleutian Islands Pollock (AIP) Program, and the Western Alaska Community Development Quota (CDQ) groundfish and halibut Programs. The fee percentage for 2016 is 0.37 percent for the Amendment 80 Program, 0.10 percent for the AFA inshore cooperatives, 0.10 percent for the AFA catcher/processor sector, 0.17 percent for the AFA mothership cooperative, 0 percent for the AIP program, and 0.29 percent for the CDQ groundfish and halibut Programs. This action is intended to provide the 2016 standard prices and fee percentages to calculate the required payment for cost recovery fees due by December 31, 2016.
Effective November 28, 2016.
Carl Greene, Fee Coordinator, 907–586–7105.
Section 304(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) authorizes and requires the collection of cost recovery fees for limited access privilege programs and the CDQ Program. Cost recovery fees recover the actual costs directly related to the management, data collection, and enforcement of the programs. Section 304(d) of the Magnuson-Stevens Act mandates that cost recovery fees not exceed three percent of the annual ex-vessel value of fish harvested by a program subject to a cost recovery fee, and that the fee be collected either at the time of landing, filing of a landing report, or sale of such fish during a fishing season or in the last quarter of the calendar year in which the fish is harvested.
NMFS manages the Amendment 80 Program, AFA Program, and AIP Program as limited access privilege programs. On January 5, 2016, NMFS published a final rule to implement cost recovery for these three limited access privilege programs and the CDQ groundfish and halibut programs (81 FR 150). The designated representative (for the purposes of cost recovery) for each program is responsible for submitting the fee payment to NMFS on or before the due date of December 31 of the year in which the landings were made. The total dollar amount of the fee due is determined by multiplying the NMFS published fee percentage by the ex-vessel value of all landings under the program made during the fishing year. NMFS publishes this notice of the fee percentages for the Amendment 80, AFA, AIP, and CDQ groundfish and halibut fisheries in the
The fee liability is based on the ex-vessel value of fish harvested in each program. For purposes of calculating cost recovery fees, NMFS calculates a standard ex-vessel price (standard price) for each species. A standard price is determined using information on landings purchased (volume) and ex-vessel value paid (value). For most groundfish species, NMFS annually summarizes volume and value information for landings of all fishery species subject to cost recovery in order to estimate a standard price for each species. The standard prices are described in U.S. dollars per pound for landings made during the year. The standard prices for all species in the Amendment 80, AFA, AIP, and CDQ groundfish and halibut programs are listed in Table 1. Each landing made under each program is multiplied by the appropriate standard price to arrive at an ex-vessel value for each landing. These values are summed together to arrive at the ex-vessel value of each program (fishery value).
NMFS calculates the fee percentage each year according to the factors and methods described in Federal regulations at 50 CFR 679.33(c)(2), 679.66(c)(2), 679.67(c)(2), and 679.95(c)(2). NMFS determines the fee percentage that applies to landings made during the year by dividing the total costs directly related to the management, data collection, and enforcement of each program (direct program costs) during the year by the fishery value. NMFS captures direct program costs through an established accounting system that allows staff to track labor, travel, contracts, rent, and procurement. For 2016, the direct program costs were tracked from February 4, 2016 (the effective date of the rule), to September 30, 2016 (the end of the fiscal year). In subsequent years, direct program costs will be calculated based on a full fiscal year. NMFS will provide an annual report that summarizes direct program costs for each of the programs in early 2017. NMFS calculates the fishery value as described under the section “Standard Prices.”
The Amendment 80 Program allocates total allowable catches (TACs) of groundfish species, other than Bering Sea pollock, to identified trawl catcher/
For most Amendment 80 species, NMFS annually summarizes volume and value information for landings of all fishery species subject to cost recovery in order to estimate a standard price for each fishery species. For rock sole, NMFS calculates a separate standard price for two periods—January 1 through March 31, and April 1 through October 31. The volume and value information is obtained from the First Wholesale Volume and Value Report, and the Pacific Cod Ex-Vessel Volume and Value Report.
Using the fee percentage formula described above, the estimated percentage of direct program costs to fishery value for the 2016 calendar year is 0.37 percent for the Amendment 80 Program. For 2016, NMFS applied the fee percentage to each Amendment 80 species landing that was debited from an Amendment 80 cooperative quota allocation between February 4 and December 31 to calculate the Amendment 80 fee liability for each Amendment 80 cooperative. The 2016 fee payments must be submitted to NMFS on or before December 31, 2016. Payment must be made in accordance with the payment methods set forth in 50 CFR 679.95(a)(3)(iv).
The AFA allocates the Bering Sea directed pollock fishery TAC to three sectors—catcher/processor, mothership, and inshore. Each sector has established cooperatives to harvest the sector's exclusive allocation. These cooperatives are responsible for paying the fee for Bering Sea pollock landed under the AFA. Cost recovery requirements for the AFA sectors are at 50 CFR 679.66.
NMFS calculates the standard price for pollock using the most recent annual value information reported to the Alaska Department of Fish & Game for the Commercial Operator's Annual Report and compiled in the Alaska Commercial Fisheries Entry Commission Gross Earnings data for Bering Sea pollock. Due to the time required to compile the data, there is a one-year delay between the gross earnings data year and the fishing year to which it is applied. For example, NMFS used 2015 gross earnings data to calculate the standard price for 2016 pollock landings.
Using the fee percentage formula described above, the estimated percentage of direct program costs to fishery value for the 2016 calendar year is 0.10 percent for the AFA inshore sector, 0.10 percent for the AFA catcher/processor sector, and 0.17 percent for the AFA mothership sector. For 2016, NMFS applied the fee percentage to each AFA inshore cooperative, AFA mothership cooperative, and AFA catcher/processor sector landing of Bering Sea pollock debited from its AFA pollock fishery allocation between February 4 and December 31 to calculate the AFA fee liability for each AFA cooperative. The 2016 fee payments must be submitted to NMFS on or before December 31, 2016. Payment must be made in accordance with the payment methods set forth in 50 CFR 679.66(a)(4)(iv).
The AIP Program allocates the Aleutian Islands directed pollock fishery TAC to the Aleut Corporation, consistent with the Consolidated Appropriations Act of 2004 (Pub. L. 108–109), and its implementing regulations. Annually, prior to the start of the pollock season, the Aleut Corporation provides NMFS with the identity of its designated representative for harvesting the Aleutian Islands directed pollock fishery TAC. The same individual is responsible for the submission of all cost recovery fees for pollock landed under the AIP Program. Cost recovery requirements for the AIP Program are at 50 CFR 679.67.
NMFS calculates the standard price for pollock using the most recent annual value information reported to the Alaska Department of Fish & Game for the Commercial Operator's Annual Report and compiled in the Alaska Commercial Fisheries Entry Commission Gross Earnings data for Aleutian Islands pollock. Due to the time required to compile the data, there is a one-year delay between the gross earnings data year and the fishing year to which it is applied. For example, NMFS used 2015 gross earnings data to calculate the standard price for 2016 pollock landings.
For the 2016 fishing year, the Aleut Corporation did not select any participants to harvest or process the Aleutian Islands directed pollock fishery TAC, and most of that TAC was reallocated to the Bering Sea directed pollock fishery TAC. Using the fee percentage formula described above, the estimated percentage of direct program costs to fishery value for the 2016 calendar year is 0 percent for the AIP Program.
The CDQ Program was implemented in 1992 to provide access to BSAI fishery resources to villages located in Western Alaska. Section 305(i) of the Magnuson-Stevens Act identifies 65 villages eligible to participate in the CDQ Program and the six CDQ groups to represent these villages. CDQ groups receive exclusive harvesting privileges of the TACs for a broad range of crab species, groundfish species, and halibut. NMFS implemented a CDQ cost recovery program for the BSAI crab fisheries in 2005 (70 FR 10174, March 2, 2005) and published the cost recovery fee percentage for the 2016/2017 crab fishing year on July 14, 2016 (81 FR 45458). This notice provides the cost recovery fee percentage for the CDQ groundfish and halibut programs. Each CDQ group is subject to cost recovery fee requirements for landed groundfish and halibut, and the designated representative of each CDQ group is responsible for submitting payment for their CDQ group. Cost recovery requirements for the CDQ Program are at 50 CFR 679.33.
For most CDQ groundfish species, NMFS annually summarizes volume and value information for landings of all fishery species subject to cost recovery in order to estimate a standard price for each fishery species. The volume and value information is obtained from the First Wholesale Volume and Value Report and the Pacific Cod Ex-Vessel Volume and Value Report. For CDQ halibut and fixed-gear sablefish, NMFS calculates the standard prices using information from the Individual Fishing Quota (IFQ) Ex-Vessel Volume and Value Report, which collects information on both IFQ and CDQ volume and value.
Using the fee percentage formula described above, the estimated percentage of direct program costs to fishery value for the 2016 calendar year is 0.29 percent for the CDQ groundfish and halibut programs. For 2016, NMFS applied the calculated CDQ fee percentage to all CDQ groundfish and halibut landings made between February 4 and December 31 to calculate the CDQ fee liability for each CDQ group. The 2016 fee payments must be submitted to NMFS on or before December 31, 2016. Payment must be
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Caribbean Fishery Management Council (Council) will hold its 158th meeting.
The meeting will be held on December 13–14, 2016. The Council will convene on Tuesday, December 13, 2016, from 9 a.m. to 5:30 p.m., and will reconvene on Wednesday, December 14, 2016, from 9 a.m. to 5 p.m.
The Frenchman's Reef & Morning Star Marriott Beach Resort, 5 Estate Bakkeroe, St. Thomas, USVI
Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918, telephone (787) 766–5926.
The Council will hold its 158th regular Council Meeting to discuss the items contained in the following agenda:
The established times for addressing items on the agenda may be adjusted as necessary to accommodate the timely completion of discussion relevant to the agenda items. To further accommodate discussion and completion of all items on the agenda, the meeting may be extended from, or completed prior to the date established in this notice.
The meeting is open to the public, and will be conducted in English. Fishers and other interested persons are invited to attend and participate with oral or written statements regarding agenda issues.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be subjects for formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice, and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918, telephone (787) 766–5926, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the U.S. Department of the Navy (Navy) to incidentally harass, by Level A and Level B harassment, marine mammals during construction activities associated with a waterfront improvement project at the Portsmouth Naval Shipyard (Shipyard) in Kittery, Maine.
This authorization is effective from January 1, 2017 through December 31, 2017.
Rob Pauline, Office of Protected Resources, NMFS, (301) 427–8401.
An electronic copy of the Navy'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:
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.
Under section 101(a)(5)(D), NMFS after providing notice and opportunity for public comment may authorize such incidental taking by harassment only, for periods of not more than one year, pursuant to the mitigation, monitoring, and reporting requirements contained within an IHA. 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 February 17, 2016, NMFS received an application from the Navy for the taking of marine mammals incidental to a waterfront improvement project. NMFS determined that the application was adequate and complete on April 1, 2016. The Navy is proposing to restore and modernize waterfront infrastructure associated with Dry Docks 1 and 3 at the Shipyard in Kittery, York County, Maine. The proposed action will include two waterfront improvement projects, structural repairs to Berths 11, 12, and 13, and replacement of the Dry Dock 3 caisson. The waterfront improvement projects will be constructed between October 2016 and October 2022, with in-water work expected to begin no earlier than January 2017. The requested IHA will be effective from January 1, 2017 through December 31, 2017. According to the project schedule work during the IHA period will only cover work occurring at Berth 11.
Use of vibratory and impact pile driving for pile installation and removal as well as drilling is expected to produce underwater sound at levels that have the potential to result in limited injury and behavioral harassment of marine mammals. The term “pile driving” throughout this document includes vibratory driving, impact pile driving, vibratory pile extraction as well as pile drilling unless specified otherwise. Take, by Level B Harassment, may impact individuals of five species of marine mammals including harbor porpoise (
In August 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance). This new Guidance established new
In this case, the Navy initially submitted a request for authorization on February 17, 2016, which NMFS found adequate and complete on April 1, 2016. The Navy requires issuance of the authorization in order to ensure that this critical national security infrastructure project is able to meet its necessary start date. The Guidance indicates that there is a greater likelihood of auditory injury for phocid pinnipeds (
In this analysis, we considered the potential for small numbers of harbor porpoises, harbor seals, and gray seals to incur auditory injury and found that it would not impact our determinations, including negligible impact determination. In summary, we have considered the new Guidance and believe that the likelihood of injury is adequately addressed in the analysis contained herein and appropriate mitigation measures are in place in the IHA.
The Navy is proposing to restore and modernize infrastructure associated with Dry Docks 1 and 3 at the Shipyard in Kittery, York County, Maine (See Figure 1–1 in the Application). The proposed action will include two waterfront improvement projects, structural repairs to Berths 11, 12, and 13 and replacement of the Dry Dock 3 caisson.
The purpose of the proposed action is to modernize and maximize dry dock capabilities for performing current and future missions efficiently and with maximum flexibility. The need for the proposed action is to correct deficiencies associated with the pier structure at Berths 11, 12, and 13 and the Dry Dock 3 caisson and concrete seats to ensure that the Shipyard can continue to support its primary mission to service, maintain, and overhaul submarines. By supporting the Shipyard's mission, the proposed action will assist in meeting the larger need for the Navy to provide capabilities for training and equipping combat-capable naval forces ready to deploy worldwide. Proposed activities included as part of the waterfront improvement project with potential to affect marine mammals within the waterways adjacent to the Shipyard include vibratory and impact pile driving, vibratory extraction and pile drilling operations in the project area.
In-water construction associated with the proposed action will occur in phases over a six-year construction period. In-water construction is scheduled to begin in January 2017 and be completed by October 2022. This IHA is for the first year of in-water construction from January 1, 2017 to December 31, 2017. No seasonal limitations will be imposed on the construction timeline. This IHA covers all in-water construction planned for Berth 11 structural repairs. The Navy intends to apply for sequential IHAs to cover each of the subsequent years of construction.
Table 1 below summarizes the in-water construction activities scheduled to take place during the timeframe covered by this IHA. Note that the proposed
The Shipyard is located along the Piscataqua River in Kittery, Maine (see Figure 1 in the application). The Shipyard occupies the whole of Seavey Island, encompassing 1.16 kilometers (km)
This IHA covers the Navy's planned in-water construction activities that will occur during the first year of construction, including completion of the king pile and concrete shutter panel bulkhead at Berth 11. Additional applications will be submitted for each subsequent year of in-water construction at Berths 11, 12, and 13 as well as for the replacement of the Dry Dock 3 caisson.
Piles of differing sizes will be utilized during construction activities including: 25-inch steel sheet piles driven by vibratory hammer; 14-inch steel H-type piles driven using impact hammer; 15-inch timber piles installed via vibratory hammer to reconstruct dolphins at the corner; and 36-inch steel H-type piles. Additionally, 14-inch steel H-type piles will be used to align and construct the trestle that will be extracted using vibratory hammer and 15-inch timber fender piles will be extracted using a vibratory hammer (see Table 1). The number of piles that can be driven per day varies for different project elements and is subject to change based on site conditions at the time. All activities covered under the issued IHA will occur at Berth 11.
At the beginning of the in-water work, existing timber piles will be removed from the berth faces and from the timber dolphin at the western end of the berth. The contractor will either construct a temporary construction trestle or place a jack-up barge alongside the berths to provide additional construction workspace. Pile driving and extraction will also be needed to construct and disassemble the temporary construction trestle if the construction contractor selects this method over use of a jack-up barge, which will require no pile driving. The trestle system has been included in this analysis in order to model a conservative, worst-case scenario. If a jack-up barge is used instead of a trestle system, less pile driving will be needed, resulting in fewer marine mammal takes than predicted in this application.
For the proposed king pile and concrete shutter panel bulkhead (see Figures 2–1 and 2–2 in Application), the contractor will likely create templates and work in increments along the berth from the trestle or jack-up barge. For example, an approximately 50-foot-long template will allow installation of about 10 king piles and 20 sheet piles (along segments of the berths where sheet piles will be installed). The work will consist of setting a template (including temporary piles and horizontal members), which could take one or two days. Then the contractor will drill the rock sockets, which will take about one day per socket. One king pile per day will be driven and they will be regularly spaced along the berths and grouted into sockets.
The concrete shutter panels will then be installed in stacks between the king piles along most of the length of Berth 11. Installation of the concrete piles is not included in the noise analysis because no pile driving will be required. Along an approximately 4.8 m (16 ft) section at the eastern end of Berth 11A and an additional 30.8 m (101 ft) between Berths 11A and 11B, the depth to bedrock is greater, thus allowing a conventional sheet-pile bulkhead to be constructed. The steel sheet-piles will be driven to bedrock using a vibratory hammer. Sheet piles installed with a vibratory hammer also will be used to construct “returns,” which will be shorter bulkheads connecting the new bulkheads to the existing bulkhead under the pier. Installation of the sheeting with a vibratory hammer is estimated to take less than one hour per pair of sheets. The contractor will probably install two sheets at a time and so the time required install the sheeting (10 pairs = 20 sheets) using vibratory hammers will only be about 8 hours per 10 pairs of sheets. Time requirements for all other pile types were estimated based on information compiled from ICF Jones and Strokes and Illingworth and Rodkin, Inc. (2012).
If sufficient construction funds are available, the Navy may install a king pile and concrete shutter panel
The Navy will also install steel H-type sister piles at the location of the inboard portal crane rail beam at Berth 11, including Berth 11C. The sister piles will provide additional support for the portal crane rail system and restore its load-bearing capacity. The sister piles will be driven into the bedrock below the pier, in water generally less than 10 ft deep, using an impact hammer. The timing of this work depends on operational schedules at the berths. The sister piles may be installed either before or after the bulkheads are constructed.
A notice of NMFS' proposal to issue an IHA to the Navy was published in the
Five marine mammal species, including one cetacean and four pinnipeds, may inhabit or transit the waters near the Shipyard in the lower Piscataqua River during the specified activity. These include the harbor porpoise (
A detailed description of species likely to be affected by the Navy's project, including brief introductions to the species and relevant stocks, as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
The effects of underwater noise from pile driving, drilling, and extraction activities for the Navy's project have the potential to result in injury to and behavioral harassment of marine mammals in the vicinity of the action area. The
The main impact associated with the Navy's waterfront improvement project will be temporarily elevated sound levels and the associated direct effects on marine mammals. The project will not result in permanent impacts to habitats used directly by marine mammals, such as haulout sites, but may have potential short-term impacts to food sources such as forage fish and minor impacts to the immediate substrate during installation and removal of piles during the project. These potential effects are discussed in detail in the
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. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat (50 CFR 216.104(a)(11)). For this project, the Navy worked with NMFS to develop the following mitigation measures to minimize the potential impacts to marine mammals in the project vicinity. The primary purposes of these mitigation measures are to minimize sound levels from the activities, avoid unnecessary exposure to elevated sound levels, and to monitor marine mammals within designated zones of influence corresponding to NMFS' Level A and B harassment thresholds which are depicted in Tables 3 and 4 found later in the
In addition to the measures described later in this section, the Navy will employ the following standard mitigation measures:
During all in-water construction other than pile-driving (
All shutdown and disturbance zones will initially be based on the distances from the source that were predicted for each threshold level. However, threshold distances may be changed as necessary depending on results from the required hydroacoustic monitoring. This may require a modification to the issued IHA.
NMFS has established various mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. We included measures in the IHA which consider the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's measures, as well as other measures considered by NMFS, our determination is that the mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that would 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.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in the probability of detecting marine mammals, both within the mitigation zone (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 levels of pile driving that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;
3. An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (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 received level, distance from source, and other pertinent information);
Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other 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; and
5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
The Navy will implement in situ acoustic monitoring efforts to measure SPLs from in-water construction activities. The Navy will collect and evaluate sound level measurements for 10 percent of the pile-driving activities conducted, sufficient to confirm measured contours associated with the acoustic zones of influence (ZOI). The Navy will conduct acoustic monitoring at the source (33 feet) and, where the potential for Level A harassment exists (out to 340 meters for harbor porpoises and out to 155 m for gray and harbor seals for impact pile driving), at a second representative monitoring location at an intermediate distance between the cetacean and pinniped shutdown zones (75 m for impact, 55 m for vibratory). In conjunction with measurements of SPLs, shutdown monitoring locations, Level A monitoring locations there will also be intermittent verification for impact driving or pile driving and extraction to determine the actual distances to the Level B 160 dB re rms (impact) and 120 re rms (vibratory) isopleths. Acoustic measurements will continue during subsequent years of in-water construction for the Project. The Navy shall initiate acoustic monitoring and submit preliminary findings to NMFS within 45 days of commencement of pile driving activities.
The Navy will collect sighting data and behavioral responses to construction for marine mammal species observed in the region of activity during the period of construction. Monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. NMFS requires that the observers have no other construction-related tasks while conducting monitoring. Qualified observers are trained biologists, with the following minimum qualifications:
• Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and
• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
The Navy will monitor the shutdown zone and Level A zone before, during, and after pile driving activities. The Level B zone will be monitored during two-thirds of pile driving. Based on NMFS requirements, the Marine Mammal Monitoring Plan shall include the following procedures:
• A minimum of two marine mammal observers (MMOs) will be in place during all pile-driving operations. MMOs designated by the contractor will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to equipment operators. The MMOs shall be separated and spread out, looking in opposite directions across the ZOIs;
• The individuals shall scan the waters within each monitoring zone activity using big-eye binoculars (25× or equivalent), hand held binoculars (7×) and visual observation;
• Monitoring distances will be measured with range finders;
• Bearing to animals will be determined using a compass;
• The MMOs shall have no other construction-related tasks while conducting monitoring and will be trained on the observation zones, species identification, how to observe, and how to fill out the data sheets by the Navy Natural Resources Manager prior to any pile driving activities;
• The Navy shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, acoustical monitoring team prior to the start of all pile driving activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. All personnel working in the project area will watch the Navy's Marine Species Awareness Training video. An informal guide will be included with the monitoring plan to aid in identifying species if they are observed in the vicinity of the Project area;
• Monitoring shall take place from 15 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activity. Pre-activity monitoring shall be conducted for 15 minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving may commence when observers have declared the shutdown zone clear of marine mammals;
• Pile driving shall only take place when the entire shutdown and Level A zones are visible and can be adequately monitored. If conditions (
• If a marine mammal approaches or enters the shutdown zone, all pile driving activities at that location shall be halted. If pile driving is halted or delayed at a specific location due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal; and
• Shutdown will occur if a species for which authorization has not been granted or for which the authorized numbers of takes have been met approaches or is observed within the Level B harassment zone. The Navy will then contact NMFS immediately.
MMOs will use NMFS' approved data forms. Among other pieces of information, the Navy will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. At a minimum, the following information will be collected on the sighting forms:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Weather parameters (
• Water conditions (
• Species, numbers, and, if possible, sex and age class of marine mammals;
• Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
• Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
• Locations of all marine mammal observations; and
• Other human activity in the area.
The Navy will provide NMFS with a draft monitoring report within 90 days after completion of pile driving activities or 60 days prior to any subsequent authorization, whichever is sooner. A monitoring report is required before another authorization can be issued to the Navy. This report will detail the monitoring protocol, summarize the acoustic and marine mammal data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments. The report will include data and information listed in Section 13.3 of the application.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner not authorized by the IHA (
• Time, date, and location (latitude/longitude) of the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities will not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with the Navy to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Navy will not be able to resume their activities until notified by NMFS via letter, email, or telephone.
In the event that the Navy discovers an injured or dead marine mammal, and the lead MMO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that the Navy discovers an injured or dead marine mammal, and the lead MMO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
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).”
All anticipated takes will be from impact and vibratory pile driving and involve PTS (Level A) and temporary changes in behavior (Level B). The proposed notice of authorization (81 FR 52614) describes Level A and Level B impacts, including PTS. Low level responses to sound (
Specific understanding of the activity and the effected species are necessary to predict the severity of impacts and the likelihood of fitness impacts. However, we start with the estimated number of takes, understanding that additional analysis is needed to understand what those takes mean. Given the many uncertainties in predicting the quantity and types of impacts of sound on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound, taking the duration of the activity into consideration. This practice provides a good sense of the number of instances of take, but potentially overestimates the numbers of individual marine mammals taken. In particular, for stationary activities, it is more likely that some smaller number of individuals may accrue a number of incidences of harassment per individual than for each incidence to accrue to a new individual, especially if those individuals display some degree of residency or site fidelity and the impetus to use the site (
The Navy has requested authorization for the incidental taking of small numbers of harbor porpoises, harbor seals, gray seals, hooded seals and harp seals near the Shipyard that may result from pile driving during construction activities associated with waterfront improvement project. We described applicable sound thresholds for determining Level B effects to marine mammals before describing the information used in estimating the sound fields; the available marine mammal density or abundance information; and the method of estimating potential incidents of take in detail in our
The new Guidance indicates that there is a greater likelihood of auditory injury for phocid pinnipeds (
No sound is expected to fully attenuate to the 120 dB rms threshold for vibratory pile driving because topographic features (
Animals do occasionally haul-out on rocks/jetties and could be flushed into the water. However, it is assumed that any hauled out animals within the disturbance zone will also enter the water and be exposed to underwater noise. Therefore, to avoid possible double-counting, acoustic disturbance to pinnipeds resulting from airborne sounds from pile driving was not considered.
The take calculations presented here relied on the best data currently available for marine mammal populations within close proximity to the Piscataqua River. There are not population data for any marine mammal species specifically within the Piscataqua River, therefore, the population data used are from the most recent NMFS Stock Assessment Reports (SAR) for the Atlantic Ocean. The most recent SAR population number was used for each species. The specific SAR used is discussed within each species take calculation in Sections 6.6.1 through 6.6.5 of the application. The formula was developed for calculating take due to pile driving, extraction, and drilling and applied to the species-specific noise-impact threshold. The formula is founded on the following assumptions:
• All piles to be installed will have a noise disturbance distance equal to the pile that causes the greatest noise disturbance;
• Pile driving could potentially occur every day of the in-water work window; however, it is estimated no more than a few hours of pile driving will occur per day; and
• An individual can only be taken once per day due to sound from pile driving, whether from impact or vibratory pile driving.
The conservative assumption is made that all pinnipeds within the ZOI will be underwater during at least a portion of the noise generating activity and, hence, exposed to sound at the predicted levels.
The calculation for marine mammal takes is estimated by the following unless stated otherwise:
The calculation n * ZOI produces an estimate of the abundance of animals that could be present in the area of exposure per day. The abundance is then multiplied by the total number of days of pile driving to determine the take estimate. Because the estimate must be a whole number, this value was rounded up.
The ZOI impact area is the estimated range of impact on marine mammals during in-water construction. The ZOI is the area in which in-water sound will exceed designated NMFS thresholds. The formula for determining the area of a circle (π
Harbor porpoises may be present in the project area during spring, summer, and fall, from April to December. Based on density data from the Navy Marine Species Density Database (NMSDD), their presence is highest in spring, decreases in summer, and slightly increases in fall. Average density for the predicted seasons of occurrence was used to determine abundance of animals that could be present in the area for exposure, using the equation abundance = n * ZOI. Estimated abundance for harbor porpoises was 0.96 animals per day generated from the equation (0.9445 km
To estimate potential take from beyond the 75 m shutdown zone out to 340 m (isopleth for full Level A injury zone), the density of harbor porpoises in the area of the full Level A injury zone (0.354673 km
Gray seals may be present year-round in the project vicinity, with constant densities throughout the year. Gray seals are less common in the Piscataqua River than the harbor seal.
As with gray seals, NMFS originally used density data from NMSDD to calculate exposures for the proposed
To estimate potential take from past the 75 m shutdown zone to 155 m (isopleth for full Level A injury zone), the density of gray seals as provided by the NMSDD in the area of the full Level A injury zone (0.0716314 km
Harbor seals may be present year-round in the project vicinity, with constant densities throughout the year. Harbor seals are the most common pinniped in the Piscataqua River near the Shipyard. In the proposed
To estimate potential take from past the 75 m shutdown zone to 155 m (isopleth for full Level A injury zone), the density of harbor seals in the area of the full Level A injury zone (0.0716314 km
Harp seals may be present in the Project vicinity during the winter and spring, from January through February. In general, harp seals are observed far less frequently than the harbor seal and gray seal in the Piscataqua River. These animals are conservatively assumed to be present within the underwater Level B harassment zone during each day of in-water pile driving. Average density for the predicted seasons of occurrence was used to determine abundance of animals that could be present in the area for exposure, using the equation abundance = n * ZOI. Abundance for harp seals was 0.0118/day (0.9945 km
Hooded seals may be present in the project vicinity during the winter and spring, from January through May, though their exact seasonal densities are unknown. In general, hooded seals are much rarer than the harbor seal and gray seal in the Piscataqua River. Anecdotal sighting information indicates that two hooded seals were observed from the Shipyard in August 2009, but no other observations have been recorded (Trefry, November 20, 2015). Information on the average density for hooded seals was not available. Given the low likelihood of occurrence NMFS is conservatively authorizing a total of 5 hooded seal Level B takes and no Level A takes.
The total number of takes authorized for the five marine mammal species that may occur within the Navy's project area during the duration of in-water construction activities are presented in Table 5.
Negligible impact is “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” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the discussion of our analyses applies to all the species listed in Table 2. There is little information about the nature of severity of the impacts or the size, status, or structure of any affected species or stock that would lead to a different analysis for this activity. Pile driving and pile extraction activities associated with the Navy project as outlined previously have the potential to injure, disturb or displace marine mammals. Specifically, the specified activities may result in Level B harassment (behavioral disturbance) for all species authorized for take, from underwater sound generated from pile driving. Level A injury may also occur to limited numbers of three marine mammal species. Takes could occur if individuals of these species are present in the Level A and Level B ensonified zones when pile driving activities are under way.
Any takes from Level A harassment will potentially be in the form of PTS and may affect small numbers of harbor porpoise, harbor seal, and gray seal. As described previously, because of the proximity to the source in which the animals would have to approach, or the longer time in which they would need to stay in a farther proximity to the source (four hours at the outer perimeter of Level A zone), we believe this unlikely, but have acknowledged it could occur—however, any PTS incurred as a result of this activity would not be expected to be of a severe degree. That would necessitate even more time in the vicinity of the source, which is considered unlikely given required mitigation and general anticipated behaviors of avoidance around loud sounds. Furthermore, death is unlikely for all authorized species as the Navy will enact required monitoring and mitigation measures and sound levels generated from the specified activities are not anticipated to cause mortality. The Navy will monitor shutdown and Level A zones during all pile driving activities, which will limit potential injury to these species. The Navy will also record all occurrences of marine mammals in specified Level A zones. In this analysis, we considered the potential for limited numbers of harbor porpoise, harbor seal and gray seal to incur auditory injury and found that it would not change our previous determinations.
Any takes from Level B harassment will be due to behavioral disturbance. The potential for these outcomes is greatly reduced through the implementation of the following planned mitigation measures. The Navy will employ a “soft start” when initiating impact driving activities. Given sufficient “notice” through use of soft start, marine mammals are expected to move away from a pile driving source. The Navy will monitor shutdown and disturbance zones where the likelihood of marine mammal detection by trained observers is high under the environmental conditions described for waters around the project area. Shutdowns will occur if animals come within 10 meters of operational activities other than pile driving to avoid injury, serious injury, or mortality. Furthermore, the Navy's proposed activities are highly localized impacting a small portion of the Piscataqua River which is only a subset of the ranges of species for which take is authorized.
The project also is not expected to have significant adverse effects on marine mammal habitat, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” section in the proposed
Exposures to elevated sound levels produced during pile driving activities may cause brief startle reactions or short-term behavioral modification by the animals. Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
In summary, the negligible impact analysis is based on the following: (1) The possibility of mortality is reasonably considered discountable; (2) the area of potential impacts is highly localized; (3) anticipated incidents of Level B harassment consist of temporary modifications in behavior; (4) anticipated incidences of Level A harassment would be in the form of a small degree of PTS to limited numbers of three species; (5) the absence of any significant habitat within the project area, including rookeries, or known areas or features of special significance for foraging or reproduction; and (6) the anticipated efficacy of the required mitigation measures in reducing the effects of the specified activity. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals. The specified activity is not expected to impact rates of recruitment or survival of marine mammal species or stocks. Therefore, based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that the total marine mammal take from the Navy's proposed waterfront improvement project will have a negligible impact on the affected marine mammal species or stocks.
Table 6 illustrates the numbers of animals that could be exposed to Level A and Level B harassment thresholds from work associated with the waterfront improvement project. The analyses provided represents that the numbers of authorized Level A and Level B takes account for <0.01% of the populations of these stocks that could be affected. These are small numbers of marine mammals relative to the sizes of the affected species and population stocks under consideration.
Based on the methods used to estimate take, and taking into consideration the implementation of the mitigation and monitoring measures, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks will 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 and none are authorized to be taken in the IHA. Therefore, NMFS determined that issuance of the IHA has no effect on ESA-listed species and section 7 consultation under the ESA was not required to issue the IHA
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As a result of these determinations, NMFS has issued an IHA to the Navy for a waterfront improvement project at the Portsmouth Naval Shipyard in Kittery, Maine, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Puerto Rico Fishers Spiny Lobster Data Collection Initiative will meet in December in St. Thomas, USVI.
The meeting will be held on December 13, 2016, from 7:30 p.m. to 9:30 p.m.
The meeting will be held at the The Frenchman's Reef & Morning Star Marriott Beach Resort, 5 Estate Bakkeroe, St. Thomas, USVI.
Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918–1903, telephone (787) 766–5926.
The Puerto Rico Fishers Spiny Lobster Data Collection Initiative will meet to discuss the items contained in the following agenda:
The meeting objective is to discuss the following questions:
1. What are the data needed to adequately populate assessment models (data limited to data rich models)
2. What data are currently being collected,
3. What data are important, and
4. What new data are needed to improve the Data Collection System and Analyses
The meeting is physically accessible to people with disabilities. For more information or request for sign language interpretation and other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918–1903, telephone (787) 766–5926, at least 5 days prior to the meeting date.
The United States Patent and Trademark Office (USTPO) 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).
Once submitted, the request will be publicly available in electronic format through reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.
Further information can be obtained by:
•
•
Written comments and recommendations for the proposed information collection should be sent on or before December 28, 2016 to Kimberly R. Keravouri, OMB Desk Officer, via email to
The Committee for the Implementation of Textile Agreements.
Determination to add a product in unrestricted quantities to Annex 3–B of the U.S.-Colombia TPA.
The Committee for the Implementation of Textile Agreements (“CITA”) has determined that certain 100% rayon twill challis fabric, as specified below, is not available in commercial quantities in a timely manner in the territory of either the United States or Colombia. The product will be added to the list in Annex 3–B of the U.S.-Colombia TPA in unrestricted quantities.
Laurie Mease, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482–2043.
The U.S.-Colombia TPA; Section 203(o)(4) of the United States-Colombia Trade Promotion Agreement Implementation Act (“U.S.-Colombia TPA Implementation Act”), Public Law 112–42 (October 21, 2011); the Statement of Administrative Action, accompanying the U.S.-Colombia TPA Implementation Act; and Presidential Proclamation No. 8818, 77 FR 29519 (May 18, 2012).
The U.S.-Colombia TPA provides a list in Annex 3–B for fabrics, yarns, and fibers that the Parties to the U.S.-Colombia TPA have determined are not available in commercial quantities in a timely manner in the territory of any Party. The U.S.-Colombia TPA and the U.S.-Colombia TPA Implementation Act provide that this list may be modified when the President of the United States determines that a fabric, yarn, or fiber is not available in commercial quantities in a timely manner in the territory of any Party or if no interested entity objects to the request.
The U.S.-Colombia TPA Implementation Act requires the President to establish procedures governing the submission of a request and providing opportunity for interested entities to submit comments and supporting evidence before a commercial availability determination is made. In Presidential Proclamation 8818, the President delegated to CITA the authority under section 203(o)(4) of the U.S.-Colombia TPA Implementation Act for modifying the Annex 3–B list. Pursuant to this authority, on November 6, 2012, CITA published interim procedures it would follow in considering requests to modify the Annex 3–B list of products determined to be not commercially available in the territory of either the United States or Colombia (
In accordance with section 203(o)(4) of the U.S.-Colombia TPA Implementation Act, and section 8(c)(2) of CITA's procedures, as no interested entity submitted a Response objecting to the Request and providing an offer to supply the subject product, CITA has determined to add the specified fabric to the list in Annex 3–B of the U.S.-Colombia TPA.
The subject product has been added to the list in Annex 3–B of the U.S.-Colombia TPA in unrestricted quantities. A revised list has been posted on the dedicated Web site for U.S.-Colombia TPA Commercial Availability proceedings.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to and Deletions from the Procurement List.
The Committee is proposing to add products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products and services previously furnished by such agencies.
COMMENTS MUST BE RECEIVED ON OR BEFORE: 12/25/2016.
Committee for Purchase From People Who Are Blind or Severely
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products and services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following products and services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
The following products and services are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and Deletions from the Procurement List.
This action adds products to the Procurement List that will be furnished by the nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products and services from the Procurement List previously furnished by such agencies.
Effective December 25, 2016.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202–4149.
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 10/7/2016 (81 FR 69789–69790), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of the qualified nonprofit agency to provide the products and impact of the additions on the current or most recent contractors, the Committee has determined that the products listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will furnish the products to the Government.
2. The action will result in authorizing a small entity to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the products proposed for addition to the Procurement List.
Accordingly, the following products are added to the Procurement List:
On 10/14/2016 (81 FR 71086–71087), 10/21/2016 (81 FR 72784–72785), and 10/28/2016 (81 FR 75050), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the products and services deleted from the Procurement List.
Accordingly, the following products and services are deleted from the Procurement List:
Department of the Army, DoD.
Notice of open meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Western Hemisphere Institute for Security Cooperation (WHINSEC) Board of Visitors. This meeting is open to the public.
The WHINSEC Board of Visitors will meet from 8:00 a.m. to 12:30 p.m. on Thursday, December 15, 2016.
Western Hemisphere Institute for Security Cooperation, Bradley Hall, 7301 Baltzell Avenue, Building 396, Fort Benning, GA 31905.
Mr. Richard Procell, Acting Executive Secretary for the Committee, in writing at USACGSC, 100 Stimson Avenue, Fort Leavenworth, KS 66027–2301, by email at
The committee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), 41 CFR 102–3.140(c), and 41 CFR 102–3.150.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Pam Young, DSCA/SE&E–RAN, (703) 697–9107.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 16–58 with attached Policy Justification and Sensitivity of Technology.
(i)
(ii)
(iii)
ACMI (P5) Training Pods, Reece Pods (DB–110), Conformal Fuel Tanks (CFTs), Identification Friend/Foe (IFF) system, AN/AVS–9 Night Vision Goggles (NVG), ARC–210 UHF/UVF radios, LAU–118(v)1/A, LAU–117–AV2A, associated ground support, training materials, mission critical resources and maintenance support equipment, the procurement for various weapon support and test equipment spares, technical publications, personnel training, simulators, and other training equipment, U.S. Government and contractor engineering, technical and logistics support services; and other related elements of logistical and program support.
(iv)
(v)
(vi)
(vii)
(viii)
The Government of Qatar requested to purchase seventy-two (72) F–15QA multi-role fighter aircraft and associated weapons package; the provision for continental United States based Lead-in-Fighter-Training for the F–15QA; associated ground support;, training materials; mission critical resources and maintenance support equipment; the procurement for various weapon support and test equipment spares; technical publications; personnel training; simulators and other training equipment; U.S. Government and contractor engineering; technical and logistics support services; and other related elements of logistical and program support. The estimated total program value is $21.1 billion.
This proposed sale enhances the foreign policy and national security of the United State by helping to improve the security of a friendly country and strengthening our strategically important relationship. Qatar is an important force for political stability and economic progress in the Persian Gulf region. Our mutual defense interests anchor our relationship and the Qatar Emiri Air Force (QEAF) plays a predominant role in Qatar's defense.
The proposed sale improves Qatar's capability to meet current and future enemy air-to-air and air-to-ground threats. Qatar will use the capability as a deterrent to regional threats and to strengthen its homeland defense. Qatar will have no difficulty absorbing these aircraft into its armed forces.
The proposed sale of this aircraft, equipment, training, and support services will not alter the basic military balance in the region.
The prime contractor will be Boeing Corporation of Chicago, IL. The Purchaser typically requests offsets. Any offset agreement will be defined in negotiations between the purchaser and the contractor. Additional contractors include:
Implementation of this sale requires the assignment of approximately 24 additional U.S. Government and approximately 150 contractor representatives to Qatar.
There is no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. This sale involves the release of sensitive technology to Qatar. The F–15QA weapons system is classified up to SECRET. The F–15QA aircraft uses the F–15E airframe and features advanced avionics and other technologically sensitive systems. The F–15QA contains the General Electric F–110–GE–129; an AN/APG–82(V)l Active Electronically Scanned Array (AESA) radar; internal and external electronic warfare and self-protection equipment; identification, friend or foe (IFF) system; operational flight program; and software computer programs.
2. Sensitive and classified (up to SECRET) elements of the proposed F–15QA include hardware, accessories, components, and associated software: AESA radar, Digital Electronic Warfare Suite (DEWS), Missile Warning System (MWS), Non-Cooperative Threat Recognition (NCTR), Advanced Display Core Processor (ADCP) II, the AN/AAQ–33 SNIPER targeting system, Joint Helmet Mounted Cueing System (JHMCS), Infrared Search and Track system (IRST), APX–114/119 IFF, Link-16 Datalink Terminals, ARC–210 UHF/VHF, DB–110, EGI, AN/AVS–9 Night Vision Goggles (NVG), and associated air-to-air and air-to-ground weapons. Additional sensitive areas include operating manuals and maintenance technical orders containing performance information, operating and test procedures, and other information related to support operations and repair. The hardware, software, and data identified are classified to protect vulnerabilities, design and performance
3. The AN/APG–82(V) 1 is an AESA radar upgrade for the F–15. It includes higher processor power, higher transmission power, more sensitive receiver electronics, and synthetic aperture radar, which creates higher-resolution ground maps from a greater distance than existing mechanically scanned array radars. The upgrade features an increase in detection range of air targets, increases in processing speed and memory, as well as significant improvements in all modes. The highest classification of the radar is SECRET.
4. DEWS provides passive radar warning, wide spectrum radio frequency jamming, and control and management of the entire electronic warfare (EW) system. It is an internally mounted suite. The commercially developed system software and hardware is UNCLASSIFIED. The system is classified SECRET when loaded with a U.S. derived EW database.
5. The AAR–57(v)2 uses electro-optical sensors to warn the aircrew of threatening missile launch and approach which is integrated within DEWS. This system detects and performs data hand-off so countermeasures can be automatically dispensed. The system, hardware components and software, are classified up to SECRET.
6. The ADCP II is the F–15 aircraft central computer. It serves as the hub for all aircraft subsystems and avionics data transfer. The hardware and software are classified SECRET.
7. The SNIPER (AN/AAQ–33) targeting system is UNCLASSIFIED and contains technology representing the latest state-of-the-art in electro-optical clarity and haze and low light targeting capability. Information on performance and inherent vulnerabilities is classified SECRET. Software (object code) is classified CONFIDENTIAL. Overall system classification is SECRET.
8. The LANTIRN (AN/AAQ–13) is a navigation pod and provides high-speed penetration and precision attack assistance in all flying conditions. The pod uses a terrain-following radar and a fixed infrared sensor to display an image of the terrain in front of the aircraft on a heads-up display. System components, countermeasures and vulnerabilities are classified up to SECRET. Overall system classification is SECRET.
9. The AN/AAS–42 IRST system is a long-wave, high resolution, passive, infrared sensor system that searches and detects heat sources within its field of regard. The AN/AAS–42 is classified CONFIDENTIAL, components and subsystems range from UNCLASSIFIED to CONFIDENTIAL, and technical data and other documentation are classified up to SECRET.
10. A combined transponder interrogator system is UNCLASSIFIED unless Mode IV or V operational evaluator parameters, which are SECRET, are loaded into the equipment.
11. An advanced Link-16 command, control, communications, and intelligence (C3I) system incorporating high-capacity, jam-resistant, digital communication links is used for exchange of near real-time tactical information, including both data and voice, among air, ground, and sea elements. The terminal hardware, publications, performance specifications, operational capability, parameters, vulnerabilities to countermeasures, and software documentation are classified CONFIDENTIAL. The classified information to be provided consists of that which is necessary for the operation, maintenance, and repair (through intermediate level) of the data link terminal, installed systems, and related software.
12. JHMCS is a modified HGU–55/P helmet that incorporates a visor-projected Heads Up Display to cue weapons and aircraft sensors to air and ground targets. This system projects visual targeting and aircraft performance information on the back of the helmet's visor, enabling the pilot to monitor this information without interrupting his field of view through the cockpit canopy. This provides improvement for close combat targeting and engagement. Hardware is UNCLASSIFIED.
13. The AN/AVS–9 NVG is a 3rd generation aviation NVG offering higher resolution, high gain, and photo response to near infrared. Hardware is UNCLASSIFIED, and technical data and documentation to be provided are UNCLASSIFIED.
14. The ARC–210 UHF/VHF secure radios with HAVE QUICK II is a voice communications radio system that can operate in either normal, secure, or jam-resistant modes. It can employ cryptographic technology that is classified SECRET. Classified elements include operating characteristics, parameters, technical data, and keying material.
15. The DB–110 is a tactical airborne reconnaissance system. This capability permits reconnaissance missions to be conducted from very short range to long range by day or night. It is an under-the-weather, podded system that produces high resolution, dual-band electro optical and infrared imagery. The DB–110 system is UNCLASSIFIED.
16. Embedded GPS INS (EGI) is a navigation platform that combines an inertial sensor assembly with a fixed reception pattern antenna (FRPA) GPS receiver and a common Kalman filter. The EGI system is the primary source for position information. The EGI is UNCLASSIFIED. The GPS crypto variable keys needed for highest GPS accuracy are classified up to SECRET.
17. Software, hardware, and other data and information, which is classified or sensitive, is reviewed prior to release to protect system vulnerabilities, design data, and performance parameters. Some end-item hardware, software, and other data identified above are classified at the CONFIDENTIAL and SECRET level. Potential compromise of these systems is controlled through management of the basic software programs of highly sensitive systems and software-controlled weapon systems on a case-by-case basis.
18. The following munitions are part of the F–15QA configuration:
19. AIM–9X Sidewinder missile is an air-to-air guided missile that employs a passive infrared target acquisition system that features digital technology and micro miniature solid-state electronics. The AIM–9X tactical and captive air training missile (CATM) guidance units are subsets of the overall missile. The AIM–9X is overall classified CONFIDENTIAL; major components and subsystems range from UNCLASSIFIED to CONFIDENTIAL. However, technical data and other documentation are classified up to SECRET.
20. The AIM–9X is launched from the aircraft using a LAU–128 guided missile launcher. The LAU–128 provides mechanical and electrical interface between missile and aircraft. The LAU–128 system is UNCLASSIFIED.
21. AIM–120C7 Advanced Medium Range Air-to-Air Missile (AMRAAM) is a guided missile featuring digital technology and micro-miniature solid-state electronics. AMRAAM capabilities include look-down/shoot-down, multiple launches against multiple targets, resistance to electronic countermeasures, and interception of high-and low-flying and maneuvering targets. The AMRAAM is classified CONFIDENTIAL; major components and subsystems range from UNCLASSIFIED to CONFIDENTIAL. However, technical data and other documentation are classified up to SECRET.
22. The AIM–120C7 is launched from the aircraft using a LAU–128 guided
23. Joint Direct Attack Munition (JDAM) is an air-to-ground weapon with a guidance tail kit that converts unguided free-fall bombs into accurate, adverse weather “smart” munitions. With the addition of a laser guidance nose kit, the JDAM provides a capability to engage moving targets. The GPS-only guided JDAMs are GBU–38/31 (500 and 2000lbs respectively) and the Laser/OPS guided JDAMs are GBU–54/56 for the 500 and 2000lbs variants. The JDAM is UNCLASSIFIED; technical data for JDAM is classified up to SECRET. Overall system classification is SECRET.
24. JDAMs use the Global Positioning System (GPS) Precise Positioning System (PPS), which provides for a more accurate capability than the commercial version of GPS. Countries approved for GPS PPS will be provided Group Unique Variable (GUV) keys or unique country keys.
25. The AGM–154 is a family of low-cost standoff weapons that are modular in design and incorporate either a sub-munition or a unitary warhead. Potential targets for Joint Standoff Weapon (JSOW) range from soft targets, such as troop concentration, to hardened point targets like bunkers. AGM–154C is used by the US Navy, Marine Corps, and Air Force, and allows aircraft to attack well-defended targets in day, night, and adverse weather conditions. AGM–154C is a penetrator weapon that carries a BROACH warhead and pay load.
26. AGM–154 uses the Global Positioning System (GPS) Precise Positioning System (PPS), which provides for a more accurate capability than the commercial version of GPS.
27. The AGM–84L–1 Harpoon is a non-nuclear tactical weapon system currently in service in the U.S. Navy and in 28 other foreign nations. It provides a day, night, and adverse weather, standoff air-to-surface capability. Harpoon Block II is an effective Anti-Surface Warfare missile.
28. AGM–84L–l uses the Global Positioning System (GPS) Precise Positioning System (PPS), which provides for a more accurate capability than the commercial version of GPS. The following Harpoon components being conveyed by the proposed sale that are considered sensitive and are classified CONFIDENTIAL include: IIR seeker, INS, OPP software and, missile operational characteristics and performance data. The overall system classification is SECRET.
29. The AGM–65H/K Maverick is an air-to-ground close air support missile with a lock on before launch day or night capability. The H model uses an optical device guidance system that has the capability to penetrate haze and provides high contrast and longer range target identification. The K model uses the same guidance with a heavyweight penetrator warhead. Maverick hardware is UNCLASSIFIED. The SECRET aspects of the Maverick system are tactics, information revealing its vulnerability to countermeasures, and counter-countermeasures. Manuals and technical documents that are necessary for operational use and organizational maintenance are classified CONFIDENTIAL. Performance and countermeasure design are SECRET. Overall system classification is SECRET.
30. The AGM–65 is launched from the aircraft using a LAU–117 guided missile launcher. The LAU–117 provides the mechanical and electrical interface between missile and aircraft. The LAU–117 system is UNCLASSIFIED.
31. The AGM–88 High Speed Anti-Radiation Missiles (HARM) weapon system is an air-to-ground missile intended to suppress or destroy land or sea-based radar emitters associated with enemy air defenses and provides tactical air forces with a kinetic countermeasure to enemy radar-directed, surface-to-air missiles, and air defense artillery weapons systems. Destruction or suppression of enemy radars denies the enemy the use of air defense systems and therefore improving the survivability of our tactical aircraft. General capabilities, performance characteristics and support requirements are classified up to CONFIDENTIAL. The overall system classification is SECRET.
32. The AGM–88 is launched from the aircraft using a LAU–118 guided missile launcher. The LAU–118v l/A provides the mechanical and electrical interface between missile and aircraft. The LAU–118 system is UNCLASSIFIED.
33. M61Al 20mm Vulcan Cannon: The 20mm Vulcan cannon is a six barreled automatic cannon chambered with 20x120mm ammunition with a cyclic rate of fire from 2,500–6,000 shots per minute. This weapon is a hydraulically powered air-cooled gatlin gun used to damage/destroy aerial targets, suppress/incapacitate personnel targets and damage or destroy moving and stationary light materiel targets. The M61Al and its components are UNCLASSIFIED.
34. Qatar is both willing and able to protect United States classified military information. Qatari physical and document security standards are equivalent to U.S. standards. Qatar demonstrated its willingness and capability to protect sensitive military technology and information released to its military in the past. Qatar is firmly committed to its relationship with the United States and to its promise to protect classified information and prevent its transfer to a third party. This sale is needed in furtherance of USG foreign policy and national security interests by helping to improve the security of a vital partner in the CENTCOM AOR.
35. If a technologically advanced adversary were to obtain knowledge of the specific hardware or software source code in this proposed sale, the information could be used to develop countermeasures which might reduce weapon system effectiveness or be used in the development of systems with similar or advance capabilities. The benefits to be derived from this sale in the furtherance of the U.S. foreign policy and national security objectives, as outlined in the Policy Justification, outweigh the potential damage that could result if the sensitive technology were revealed to unauthorized persons.
36. All defense articles and services listed in this transmittal are authorized for release and export to the Government of Qatar.
Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics), Department of Defense (DoD).
Federal advisory committee meeting notice.
The Department of Defense is publishing this notice to announce the following Federal advisory committee meeting of the Government-Industry Advisory Panel. This meeting is open to the public.
The meeting will be held from 9:00 a.m. to 5:00 p.m. on Tuesday and Wednesday, December 13–14, 2016. Public registration will begin at 8:45 a.m. on each day. For entrance into the meeting, you must meet the necessary requirements for entrance into the Pentagon. For more detailed information, please see the following link:
Pentagon Library, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301–1155. The meeting will be held in Room M2. The Pentagon Library is located in the Pentagon Library and Conference Center (PLC2) across the Corridor 8 bridge.
LTC Andrew Lunoff, Office of the Assistant Secretary of Defense (Acquisition), 3090 Defense Pentagon, Washington, DC 20301–3090, email:
Minor changes to the agenda will be announced at the meeting. All materials will be posted to the FACA database after the meeting.
Individuals requiring special accommodations to access the public meeting or seeking additional information about public access procedures, should contact LTC Lunoff, the committee DFO, at the email address or telephone number listed in the
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Pam Young, DSCA/SA&E/RAN, (703) 697–9107.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 16–21 with attached Policy Justification and Sensitivity of Technology.
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* as defined in Section 47(6) of the Arms Export Control Act.
The Government of Kuwait has requested to purchase thirty-two (32) F/A–18E aircraft, with F414–GE–400 engines; eight (8) F/A–18F aircraft, with F414–GE–400 engines; eight (8) spare F414–GE–400 engines and twenty-four (24) engine modules; forty-one (41) AN/APG–79 Active Electronically Scanned Array (AESA) Radars; forty-four (44) M61A2 20mm Gun Systems; forty-five (45) AN/ALR–67(V)3 Radar Warning Receivers; two hundred and forty (240) LAU–127E/A Guided Missile Launchers; forty-five (45) AN/ALE–47 Airborne Countermeasures Dispenser Systems; twelve (12) AN/AAQ–33 SNIPER Advanced Targeting Pods; forty-eight (48) Joint Helmet Mounted Cueing Systems (JHMCS); forty-five (45) AN/ALQ–214 Radio Frequency Counter-Measures Systems; forty-five (45) AN/ALE–55 Towed Decoys; forty-eight (48) Link-16 Systems; eight (8) Conformal Fuel Tanks; and fourteen (14) AN/ASQ–228 ATFLIR Systems. Also included in the sale are ARC–210 radio (aircraft); Identification Friend or Foe (IFF) systems; AN/AVS–9 Night Vision Goggles (NVG); Launchers (LAU- 115D/A, LAU–116B/A, LAU-l 18A); Command Launch Computer (CLC) for Air to Ground Missile 88 (AGM–88); ANAV/MAGR GPS Navigation; Joint Mission Planning System (JMPS); aircraft spares; Aircraft Armament Equipment (AAE); support equipment; aircrew/maintenance training; contractor engineering technical service; logistics technical services; engineering technical services; other technical assistance; contractor logistics support; flight test services; storage and preservation; aircraft ferry; Repair of Repairable (RoR); support systems and associated logistics; training aides and devices; spares; technical data Engineering Change Proposals; avionics software support; software; technical publications; engineering and program support; U.S. Government and contractor engineering; technical and logistic support services. The estimated total program cost is $10.1 billion.
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a Major Non-NATO Ally that has been, and continues to be, an important force for political and economic progress in the Middle East. Kuwait is a strategic partner in maintaining stability in the region. The acquisition of the F/A–18E/F Super Hornet aircraft will allow for greater interoperability with U.S. forces, providing benefits for training and possible future coalition operations in support of shared regional security objectives.
The proposed sale of the F/A- l8E/F Super Hornet aircraft will improve Kuwait's capability to meet current and future warfare threats. Kuwait will use the enhanced capability to strengthen its homeland defense. The F/A–18E/F Super Hornet aircraft will supplement and eventually replace the Kuwait Air Force's aging fighter aircraft. Kuwait will have no difficulty absorbing this aircraft into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractors will be The Boeing Company, St. Louis, Missouri; Northrop Grumman in Los Angeles, California; Raytheon Company in El Segundo, California; and General Electric in Lynn, Massachusetts. Offsets agreements associated with this proposed sale are expected; however, specific agreements are undetermined and will be defined during negotiations between the purchaser and contractor. Kuwait requires contractors to satisfy an offset obligation equal to 35 percent of the main contract purchase price for any sale of defense articles in excess of three million Kuwait Dinar, (approximately $10 million USD).
Implementation of this proposed sale will require the assignment of contractor representatives to Kuwait on an intermittent basis over the life of the case to support delivery of the F/A–18E/F Super Hornet aircraft and provide support and equipment familiarization.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
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1. The F/A–18E/F Super Hornet is a single and two-seat, twin-engine, multi-mission fighter/attack aircraft that can operate from either aircraft carriers or land bases. The F/A–18 fills a variety of roles: air superiority, fighter escort, suppression of enemy air defenses, reconnaissance, forward air control, close and deep air support, and day and night strike missions. The F/A–18E/F Weapons System is classified SECRET.
2. The AN/APO–79 Active Electronically Scanned Array (AESA) Radar System is classified SECRET. The radar provides the F/A–18 aircraft with all-weather, multi-mission capability for performing air-to-air and air-to-ground targeting and attack. Air-to-air modes provide the capability for all-aspect target detection, long-range search and track, automatic target acquisition, and tracking of multiple targets. Air-to-surface attack modes provide high-resolution ground mapping navigation, weapon delivery, and sensor cueing. The system component hardware (Antenna, Transmitter, Radar Data Processor, and Power Supply) is UNCLASSIFIED. The Receiver-Exciter hardware is CONFIDENTIAL. The radar Operational Flight Program (OFP) is classified SECRET. Documentation provided with the AN/APO–79 radar set is classified SECRET.
3. The AN/ALR–67(V)3 Electric Warfare Countermeasures Receiving Set is classified CONFIDENTIAL. The AN/ALR–67(V)3 provides the F/A–18F aircrew with radar threat warnings by detecting and evaluating friendly and hostile radar frequency threat emitters and providing identification and status information about the emitters to on-board Electronic Warfare (EW) equipment and the aircrew. The OFP and User Data Files (UDF) used in the AN/ALR- 67(V)3 are classified SECRET. Those software programs contain threat parametric data used to identify and establish priority of detected radar emitters.
4. The AN/ALE–47 Countermeasures Dispensing System is classified SECRET. The AN/ALE–47 is a threat-adaptive dispensing system that dispenses chaff, flares, and expendable jammers for self-protection against airborne and ground-based Radio Frequency and Infrared threats. The AN/ALE–47 Programmer is classified CONFIDENTIAL. The OPP and Mission Data Files used in the AN/ALE–47 are classified SECRET. Those software programs contain algorithms used to calculate the best defense against specific threats.
5. The AN/ALQ–214 is an advanced air-borne Integrated Defensive Electronic Countermeasures (IDECM) programmable modular automated system capable of intercepting, identifying, processing received radar signals (pulsed and continuous) and applying an optimum countermeasures technique in the direction of the radar signal, thereby improving individual aircraft probability of survival from a variety of surface-to-air and air-to-air RF threats. The ALQ- 214 was designed to operate in a high-density Electromagnetic Hostile Environment with the ability to identify and counter a wide variety of multiple threats, including those with Doppler characteristics. Hardware within the AN/ALQ–214 is classified CONFIDENTIAL.
6. The Identification Friend or Foe (IFF) Combined Interrogator/Transponder (CIT) with the Conformal Antenna System (CAS) is classified SECRET. The CIT is a complete MARK–XIIA identification system compatible with (IFF) Modes l, 2, 3/A, C4 and 5 (secure).
7. The Joint Helmet Mounted Cueing System (JHMCS) is a modified HGU–55/P helmet that incorporates a visor-projected Heads-Up Display (HUD) to cue weapons and aircraft sensors to air and ground targets. In close combat, a pilot must currently align the aircraft to shoot at a target. JHMCS allows the pilot to simply look at a target to shoot Hardware is UNCLASSIFIED; technical data and documents are classified up to SECRET.
8. The AN/AAQ–33 SNIPER Pod is a multi-sensor, electro-optical targeting pod incorporating infrared, low-light television camera, laser range-finder/target designator, and laser spot tracker. It is used to provide navigation and targeting for military aircraft in adverse weather and using precision-guided weapons such as laser-guided bombs. It offers much greater target resolution and imagery accuracy than previous systems. The AN/AAQ–33 is UNCLASSIFIED.
9. The Joint Mission Planning System (JMPS) is SECRET. JMPS will provide mission planning capability for support of military aviation operations. The JMPS will be tailored to the specific releasable configuration for the F/A–18 Super Hornet.
10. The AN/AVS–9 NVG is a 3rd generation aviation NVG offering higher resolution, high gain, and photo response to near infrared. Hardware is UNCLASSIFIED, and technical data and documentation to be provided are UNCLASSIFIED.
11. The AN/ALE–55 towed decoy improves aircraft survivability by providing an enhanced, coordinated onboard/off-board countermeasure response to enemy threats. When threat libraries are installed, the AN/ALE–55 is classified SECRET.
12. Link-16 is a secure data and voice communication network. The system provides enhanced situational communication awareness, positive identification of participants within the network, secure fighter-to-fighter connectivity, and secure voice capability. It can be classified up to CONFIDENTIAL.
13. The LAU–127E/A Guided Missile Launchers is designed to enable F/A–18 aircraft to carry and launch missiles. It provides the electrical and mechanical interface between the missile and launch aircraft as well as the two-way data transfer between missile and cockpit controls and displays to support preflight orientation and control circuits to prepare and launch the missile. The LAU–127E/A is UNCLASSIFIED.
14. ANAV Global Positioning System (GPS) is a 24-channel Selective Availability Anti- Spoofing Module (SAASM) based pulse-per-second GPS receiver built for next generation GPS technology.
15. Command Launch Computer (CLC) is an electronics subsystem installed on the airframe to interface with the AGM–88 NBIC HARM Missile. The CLC and associated software package are compatible with all AGM–88 A/B/C missiles. The CLC receives target data from the missile and onboard avionics, processes the data for display to the aircrew to the appropriate display, determines target priority, and collects aircraft data for pre-launch hand-off to the AGM–88 HARM missile.
16. The AN/ASQ–228 Advanced Targeting Forward-Looking Infrared (ATFLIR) is a multi-sensor, electro-optical targeting pod incorporating thermographic camera, low-light television camera, target laser rangefinder/laser designator, and laser spot tracker developed and manufactured by Raytheon. It is used to provide navigation and targeting for military aircraft in adverse weather and using precision-guided munitions such as laser-guided bombs.
17. A determination has been made that the Government of Kuwait, can provide substantially the same degree of protection for the classified and
18. This sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the Policy Justification.
19. All defense articles and services listed in this transmittal have been authorized for release and export to the Government of Kuwait.
Office of the Under Secretary of Defense for Acquisition, Technology and Logistics, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by January 27, 2017.
You may submit comments, identified by docket number and title, by any of the following methods:
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To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Assistant Secretary of Defense, (Energy, Installations, & Environment) 3400 Defense Pentagon, Suite 5C646, ATTN: Phyllis Newton, Washington, DC 20301–3400 or call 703–571–9060.
Respondents are eligible Department of Defense and U.S. Coast Guard homeowners serving or employed at or near military installations which were ordered closed or partially closed, realigned, or were ordered to reduce the scope of operations under the Base Realignment and Closure (BRAC) authority. Respondents will use the prescribed form to apply for HAP financial assistance when affected by a BRAC announcement, or a wound, injury, or illness incurred while in the line of duty, or the surviving spouse of a fallen warrior. Although the completion of the application is voluntary, failure to provide the requested information will hinder the verification of employment and homeowner information and may result in delay or denial of HAP benefits provided under the law.
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before December 28, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Antoinette Clark, 202–453–7121.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
SocїVolta Inc. (SocїVolta or Applicant) has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before December 28, 2016.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE–20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585–0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C.§ 824a(e)).
On November 10, 2016, DOE received an application from SocїVolta for authority to transmit electric energy from the United States to Canada as a power marketer for five years using existing international transmission facilities. SocїVolta has applied for market-based rate authority from the Federal Energy Regulatory Commission (FERC) to engage in the sale and purchase of electric energy to and from Independent System Operators and Regional Transmission Organizations.
In its application, SocїVolta states that it does not own or operate any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that SocїVolta proposes to export to Canada would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by SocїVolta have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning SocїVolta's application to export electric energy to Canada should be clearly marked with OE Docket No. EA–433. An additional copy is to be provided directly to Ruta Kalvaitis Skučas, Pierce Atwood LLC, 1875 K. St., Suite 700, Washington, DC 20006.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Office of Fossil Energy, Department of Energy.
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during October 2016, it issued orders granting authority to import and export natural gas, to export liquefied natural gas (LNG), vacating authority, denying request for rehearing, and denying motion for opinion and order on application. These orders are summarized in the attached appendix and may be found on the FE Web site at
They are also available for inspection and copying in the U.S. Department of Energy (FE–34), Division of Natural Gas Regulation, Office of Regulation and International Engagement, Office of Fossil Energy, Docket Room 3E–033, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586–9478. The Docket Room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
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 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 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:
This is a supplemental notice in the above-referenced proceeding Stored Solar J&WE, LLC`s application for market-based rate authority, with an accompanying rate tariff, 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 December 12, 2016.
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 are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic 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
Environmental Protection Agency (EPA).
Notice.
EPA is required under the Toxic Substances Control Act (TSCA) to publish in the
Comments identified by the specific case number provided in this document, must be received on or before December 28, 2016.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2016–0485, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitters of the actions addressed in this document.
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This document provides receipt and status reports, which cover the period from October 3, 2016 to October 31, 2016, and consists of the PMNs and TMEs both pending and/or expired, and the NOCs to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
Under TSCA, 15 U.S.C. 2601
Anyone who plans to manufacture or import a new chemical substance for a non-exempt commercial purpose is required by TSCA section 5 to provide EPA with a PMN, before initiating the activity. Section 5(h)(1) of TSCA authorizes EPA to allow persons, upon application, to manufacture (includes import) or process a new chemical substance, or a chemical substance subject to a significant new use rule (SNUR) issued under TSCA section 5(a), for “test marketing” purposes, which is referred to as a test marketing exemption, or TME. For more information about the requirements applicable to a new chemical go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
As used in each of the tables in this unit, (S) indicates that the information in the table is the specific information provided by the submitter, and (G) indicates that the information in the table is generic information because the specific information provided by the submitter was claimed as CBI.
For the 36 PMNs received by EPA during this period, Table 1 provides the following information (to the extent that such information is not claimed as CBI): The EPA case number assigned to the PMN; The date the PMN was received by EPA; the projected end date for EPA's review of the PMN; the submitting manufacturer/importer; the potential uses identified by the manufacturer/importer in the PMN; and the chemical identity.
For the 12 NOCs received by EPA during this period, Table 3 provides the following information (to the extent that such information is not claimed as CBI): The EPA case number assigned to the NOC; the date the NOC was received by EPA; the projected date of commencement provided by the submitter in the NOC; and the chemical identity.
15 U.S.C. 2601
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), “Reporting and Recordkeeping Requirements for National Volatile Organic Compound Emission Standards for Automobile Refinish Coatings” (EPA ICR No. 1765.08, OMB Control No. 2060–0353) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before December 28, 2016.
Submit your comments, referencing Docket ID No. EPA–HQ–OAR–2003–0120, to (1) the EPA online using
The EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Ms. Kim Teal, Office of Air and Radiation, Office of Air Quality Planning and Standards, Mail Code D243–04, Research Triangle Park, North Carolina 27711; telephone number: (919) 541–5580; fax number: (919) 541–5450; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
United States Environmental Protection Agency (EPA).
Notice of final agency action.
This notice announces that the Maricopa County Air Quality Department (MCAQD) issued a final permit decision to Arizona Public Service (APS) for a major modification of a Clean Air Act Prevention of Significant Deterioration (PSD) permit (Permit No. PSD16–01). The PSD permit decision authorizes a major modification at the Ocotillo Power Plant, located in Tempe, Arizona, primarily for the purposes of constructing five simple cycle natural gas-fired combustion turbines, including ancillary equipment. The MCAQD is authorized to issue PSD permit decisions pursuant to a delegation agreement with the EPA, in which the MCAQD “stands in the shoes” of the EPA when administering certain elements of the PSD permitting program. This MCAQD-issued PSD permit decision is considered to be a federally-issued PSD permit decision, and serves as a final agency action by the EPA.
The MCAQD issued a final PSD permit decision for the Ocotillo Power Plant on September 9, 2016. The permit became effective on that date. Pursuant to section 307(b)(1) of the Clean Air Act, 42 U.S.C. 7607(b)(1), judicial review of this final permit decision, to the extent it is available, may be sought by filing a petition for review in the United States Court of Appeals for the Ninth Circuit within 60 days of November 28, 2016.
Documents relevant to the above-referenced permit are available for public inspection during normal business hours at the following addresses:
(1) Maricopa County Air Quality Department, 1001 North Central Avenue, Suite 124, Phoenix, Arizona 85004. To arrange for viewing of these documents, please call (602) 506–6010 or visit online at
(2) U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, California 94105–3901. To arrange for viewing of these documents, call Eugene Chen at (415) 947–4304,
Eugene Chen, EPA Region 9, (415) 947–4304,
The MCAQD issued a final PSD permit to APS on March 22, 2016, authorizing a major modification to the Ocotillo Power Plant. EPA regulations at 40 CFR 124.19 provided an opportunity for administrative review by the EPA's EAB of this initial permit decision.
The EPA's EAB received one petition for review of the permit, and on September 1, 2016, the EAB issued an Order denying the petition for review.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “Pesticide Environmental Stewardship Program Annual Measures Reporting” (EPA ICR No. 2415.03, OMB Control No. 2070–0188) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before December 28, 2016.
Submit your comments, referencing Docket ID Number EPA–HQ–OPP–2016–0078, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Lily G. Negash, Office of Pesticide Programs,
Supporting documents which explain in detail the information that EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
While most PESP members are entities that are pesticide end-users, several others are organizations which focus on training, educating, or influencing pesticide users. To become a PESP member, a pesticide user entity or an organization submits an application and a five-year strategy. The strategy outlines how environmental and human health risk reduction goals will be achieved through IPM implementation or education. The program encourages PESP members to track progress towards IPM goals such as: Reductions in unnecessary use of pesticides, cost reductions, and knowledge shared about IPM methodologies. Entities participating in PESP also benefit from technical assistance, and through incentives for achievements at different levels.
PESP is EPA's non-regulatory approach to meeting the goals of the Pollution Prevention Act (PPA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Food Quality Protection Act (FQPA) to reduce pesticide risks in agricultural and non-agricultural settings. Section 2(b) of the PPA of 1990, 42 U.S.C. 13101(b), sets forth “the national policy of the United States that pollution should be prevented or reduced at the source whenever feasible.” Section 3 defines source reduction as any practice that “reduces the amount of any hazardous substance . . . released into the environment” and “reduces the hazards to public health and the environment associated with the release of such substances.”
Section 3 of FIFRA requires EPA to regulate pesticides to prevent “unreasonable adverse effects” on human health and the environment. Further, FQPA of 1996 (7 U.S.C. 136r–1) requires the U.S. Department of Agriculture and EPA to implement programs in research, demonstration, and education to support the adoption of IPM, make information on IPM widely available to pesticide users, use IPM techniques in carrying out pest management activities, as well as promote IPM through procurement, regulatory policies and other activities.
Environmental Protection Agency(EPA).
Notice of the designation of a new equivalent method for monitoring ambient air quality.
Notice is hereby given that the Environmental Protection Agency (EPA) has designated, in accordance with 40 CFR part 53, one new equivalent method for measuring concentrations of nitrogen dioxide (NO
Robert Vanderpool, Exposure Methods and Measurement Division (MD–D205–03), National Exposure Research Laboratory, U.S. EPA, Research Triangle Park, North Carolina 27711. Email:
In accordance with regulations at 40 CFR part 53, the EPA evaluates various methods for monitoring the concentrations of those ambient air pollutants for which EPA has established National Ambient Air Quality Standards (NAAQSs) as set forth in 40 CFR part 50. Monitoring methods that are determined to meet specific requirements for adequacy are designated by the EPA as either reference or equivalent methods (as applicable), thereby permitting their use under 40 CFR part 58 by States and other agencies for determining compliance with the NAAQSs. A list of all reference or equivalent methods that have been previously designated by EPA may be found at
The EPA hereby announces the designation of one new equivalent method for measuring concentrations of NO
The new equivalent method for NO
EQNA–1016–241, “Teledyne Advanced Pollution Instrumentation Model T200P chemiluminescence Nitrogen Oxides Analyzer,” operated on any full scale range between 0–50 ppb and 0–1000 ppb, with a PTFE filter element or a Kynar® DFU installed in the filter assembly, with any range mode (Single or Dual), at any operating temperature in the range of 15°C to 35°C, with the high efficiency photolytic converter, with software Temperature and Pressure compensation ON, in accordance with the associated instrument manual; and with or without any of the following options: Zero/Span valves, internal Zero/Span permeation oven (IZS), Nafion-type sample gas conditioner, external communication and data monitoring interfaces; and the NumaView
This application for an equivalent method determination for this candidate method was received by the Office of Research and Development on September 19, 2016. This analyzer is commercially available from the applicant, Teledyne Advanced Pollution Instrumentation, Inc., 9480 Carroll Park Drive, San Diego, CA 92121–2251.
A representative test analyzer has been tested in accordance with the applicable test procedures specified in 40 CFR part 53, as amended on October 26, 2015. After reviewing the results of those tests and other information submitted by the applicant, EPA has determined, in accordance with Part 53, that this method should be designated as an equivalent method.
As a designated equivalent method, this method is acceptable for use by states and other air monitoring agencies under the requirements of 40 CFR part 58, Ambient Air Quality Surveillance. For such purposes, this method must be used in strict accordance with the operation or instruction manual associated with the method and subject to any specifications and limitations (
Use of the method also should be in general accordance with the guidance and recommendations of applicable sections of the “Quality Assurance Handbook for Air Pollution Measurement Systems, Volume I,” EPA/600/R–94/038a and “Quality Assurance Handbook for Air Pollution Measurement Systems, Volume II, Ambient Air Quality Monitoring Program,” EPA–454/B–13–003, (both available at
Consistent or repeated noncompliance with any of these conditions should be reported to: Director, Exposure Methods and Measurement Division (MD–E205–01), National Exposure Research Laboratory, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711.
Designation of this equivalent method is intended to assist the States in establishing and operating their air quality surveillance systems under 40 CFR part 58. Questions concerning the commercial availability or technical aspects of the method should be directed to the applicant.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, 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 the renewal of existing information collections, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). Currently, the FDIC is soliciting comment on renewal of the information collections described below.
Comments must be submitted on or before January 27, 2017.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Jennifer Jones, at the FDIC address above.
Proposal to renew the following currently approved collections of information:
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Comments are invited on: (a) Whether the collections of information are necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collections, including 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 collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Federal Election Commission.
Thursday, December 1, 2016 at 10:00 a.m.
999 E Street NW., Washington, DC (Ninth Floor)
This meeting will be open to the public.
Draft Advisory Opinion 2016–20: Christoph Mlinarchik, JD, CFCM.
Proposed Amendments to Directive 52.
Proposed Final Audit Report on the Utah Republican Party (A13–16).
2016 Legislative Recommendations.
Management and Administrative Matters.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shelley E. Garr, Deputy Secretary, at (202) 694–1040, at least 72 hours prior to the meeting date.
Judith Ingram, Press Officer, Telephone: (202) 694–1220.
Notice is given that a Complaint has been filed with the Federal Maritime Commission (Commission) by Connie Lane Christy and Christy Collection International Inc. on behalf of The Annie Grace Foundation for the Children of Bali Indonesia, hereinafter “Complainants,” against Air 7 Seas Transport Logistics Inc., hereinafter “Respondent.” Complainants alleges that Respondent is an ocean freight forwarder located in California.
Complainant alleges that Respondent has violated the Shipping Act of 1984 in connection with a shipment of personal effects shipped from Charleston, South Carolina to Bali, Indonesia. Complainants allege they entered into a contract for “door to door” service, but such service was not provided, the goods were never delivered and are now “lost”. Complainant seeks reparations of $520,000 “for the loss of goods, and the loss of the efforts involved in forming this Foundation.”
Complainants allege that “the service performed as an Ocean Freight Forwarder were in violation of definitions set forth in that Act.” The complainant requests “the courts judgement in this case.”
The full text of the complaint can be found in the Commission's Electronic Reading Room at
This proceeding has been assigned to the Office of Administrative Law Judges. The initial decision of the presiding officer in this proceeding shall be issued by November 21, 2017 and the final
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 December 22, 2016.
A. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480–0291:
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B. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101–2566. Comments can also be sent electronically to
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The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 12, 2016.
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Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Theresa Kingsberry Program Support Specialist, Federal Trade Commission Premerger Notification Office Bureau of Competition, Room CC–5301, Washington, DC 20024, (202) 326–3100.
By direction of the Commission.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Theresa Kingsberry, Program Support Specialist, Federal Trade Commission Premerger Notification Office Bureau of Competition, Room CC–5301, Washington, DC 20024, (202) 326–3100.
By direction of the Commission.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by January 24, 2017.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
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Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by December 28, 2016.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs,
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
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The goal of the Initial Request for State Medicaid Implemented Moratorium form is to provide a uniform application process that all of the states may follow so that CMS is able to administer the Medicaid or Children's Health Insurance Program moratorium process in a standardized and repeatable manner. This form creates a standardized process so that moratoria decisions are being made with the same criteria each time.
A previous notice provided the opportunity for public comment on the proposed Phase 1 recruitment and sampling process (FR V.81, 4/8/2016). This notice is specific to the Phase 2 data collection activities: (1) baseline and (2) 18-month follow-up data collection. Data collection includes child interviews and direct assessments, as well as caregiver and caseworker interviews. The overall goal is to maintain the strengths and continuity of the prior surveys while better positioning the study to address changes in the child welfare population.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 330 C Street SW., Washington, DC 20201, Attn: OPRE Reports Clearance Officer. Email address:
The Department specifically requests comments on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice of availability.
Under the Federal Food, Drug, and Cosmetic Act (the FD&C Act), the Food and Drug Administration (FDA or Agency) is required to report annually in the
Cathryn C. Lee, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6484, Silver Spring, MD 20993–0002, 301–796–0700; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993–0002, 240–402–7911.
A PMR is a study or clinical trial that an applicant is required by statute or regulation to conduct postapproval. A PMC is a study or clinical trial that an applicant agrees in writing to conduct postapproval, but that is not required by statute or regulation. PMRs and PMCs can be issued upon approval of a drug
FDA can require application holders to conduct postmarketing studies and clinical trials:
• To assess a known serious risk, assess signals of serious risk, or identify an unexpected serious risk related to the use of a drug product (section 505(o)(3) of the FD&C Act (21 U.S.C. 355(o)(3)), as added by the Food and Drug Administration Amendments Act of 2007 (FDAAA)).
• Under the Pediatric Research Equity Act (PREA), to study certain new drugs for pediatric populations, when these drugs are not adequately labeled for children. Under section 505B(a)(3) of the FD&C Act (21 U.S.C. 355c), the initiation of these studies may be deferred until required safety information from other studies in adults has first been submitted and reviewed.
• To verify and describe the predicted effect or other clinical benefit for drugs approved in accordance with the accelerated approval provisions in section 506(c)(2)(A) of the FD&C Act (21 U.S.C. 356(c)(2)(A)) (§§ 314.510 and 601.41 (21 CFR 314.510 and 601.41)).
• For a drug that was approved on the basis of animal efficacy data because human efficacy trials are not ethical or feasible (§§ 314.610(b)(1) and 601.91(b)(1)). PMRs for drug products approved under the animal efficacy rule
Under the regulations (§§ 314.81(b)(2)(vii) and 601.70), applicants of approved drugs are required to submit annually a report on the status of each clinical safety, clinical efficacy, clinical pharmacology, and nonclinical toxicology study or clinical trial either required by FDA or that they have committed to conduct, either at the time of approval or after approval of their new drug application (NDA), abbreviated new drug application (ANDA), or biologics license application (BLA). Applicants are required to report to FDA on these requirements and commitments made for NDAs and ANDAs under § 314.81(b)(2)(viii). The status of PMCs concerning chemistry, manufacturing, and production controls and the status of other studies or clinical trials conducted on an applicant's own initiative are not required to be reported under §§ 314.81(b)(2)(vii) and 601.70 and are not addressed in this report. Furthermore, section 505(o)(3)(E) of the FD&C Act requires that applicants report periodically on the status of each required study or clinical trial and each study or clinical trial “otherwise undertaken * * * to investigate a safety issue * * * .”
An applicant must report on the progress of the PMR/PMC on the anniversary of the drug product's approval
The status of the PMR/PMC must be described in the ASR according to the terms and definitions provided in §§ 314.81 and 601.70. For its own reporting purposes, FDA has also established terms to describe when the conditions of the PMR/PMC have been met, and when it has been determined that a PMR/PMC is no longer necessary.
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In addition to the above statuses, PMRs/PMCs may also be characterized as closed or open.
If an applicant fails to comply with the original schedule for completion of postmarketing studies or clinical trials required under section 505(o)(3) of the FD&C Act (
Section 505B(a)(3)(B) of the FD&C Act, as amended by the Food and Drug Administration Safety and Innovation Act, authorizes FDA to grant an extension of the deferred pediatric assessments that are required under PREA.
FDA may take enforcement action against applicants who are noncompliant with or otherwise fail to conduct studies and clinical trials required under FDA statutes and regulations (see, for example, sections 505(o)(1), 502(z), and 303(f)(4) of the FD&C Act (21 U.S.C. 355(o)(1), 352(z), and 333(f)(4))).
Databases containing information on PMRs/PMCs are maintained at the Center for Drug Evaluation and Research (CDER) and the Center for Biologics Evaluation and Research (CBER). The information in these databases is periodically updated as new PMRs/PMCs are issued, upon FDA review of PMR/PMC ASRs or other PMR/PMC correspondence, upon receipt of final reports from completed studies and clinical trials, and after the final reports are reviewed and FDA determines that the PMR/PMC has been fulfilled, or when FDA determines that the PMR/PMC is either no longer feasible or would no longer provide useful information. Because applicants typically report on the status of their PMRs/PMCs annually, and because updating the status of PMRs/PMCs in FDA's databases involves FDA review of received information, there is an inherent lag in updating the data (that is, the data are not real time). FDA strives to maintain as accurate information as possible on the status of PMRs/PMCs.
Both CDER and CBER have established policies and procedures to help ensure that FDA's data on PMRs/PMCs are current and accurate. When identified, data discrepancies are addressed as expeditiously as possible and/or are corrected in later reports.
FDA also maintains an online searchable and downloadable database that contains information about PMRs/PMCs that is
This report is published to fulfill the annual reporting requirement under section 506B(c) of the FD&C Act. Information in this report covers any PMR/PMC that was made, in writing, at the time of approval or after approval of an application or a supplement to an application (see section I.A), and summarizes the status of PMRs/PMCs in fiscal year (FY) 2015 (FY2015) (
This report reflects combined data from CDER and CBER. Information summarized in the report includes the following: (1) The number of applicants with open PMRs/PMCs;
Numbers published in this report and in the supplemental report on FDA's Web site cannot be compared with the numbers resulting from searches of the publicly accessible and downloadable database. This is because this report incorporates data for all PMRs/PMCs in FDA databases as of the end of the fiscal year, including PMRs/PMCs undergoing review for accuracy. The publicly accessible and downloadable database includes a subset of PMRs/PMCs, specifically those that, at the time of data retrieval, either had an open status or were closed within the past 12 months. In addition, the status information in this report is updated annually while the downloadable database is updated quarterly (
This report provides information on PMRs/PMCs as of September 30, 2015 (
An applicant may have multiple approved drug products, and an approved drug product may have multiple PMRs and/or PMCs. Table 1 shows that as of September 30, 2015, there were 269 unique applicants with open PMRs/PMCs under 856 unique NDAs and BLAs. There were 194 unique NDA applicants (and 716 associated applications) and 75 unique BLA applicants (and 140 associated applications) with open PMRs/PMCs.
As previously mentioned, applicants must submit an ASR on the progress of each open PMR/PMC within 60 days of the anniversary date of U.S. approval of the original application or an alternate reporting date that was granted by FDA (§§ 314.81 and 21 CFR 601.70).
Table 3 shows that as of September 30, 2015, most open PMRs (88 percent for NDAs and 91 percent for BLAs) and most open PMCs (69 percent for NDAs and 78 percent for BLAs) were progressing on schedule.
Table 4 shows that as of September 30, 2015, the majority of PMRs were pending (53 percent (535/1,010) of open NDA PMRs and 45 percent (100/223) of open BLA PMRs). PREA PMRs and FDAAA PMRs comprised 53 percent (336/635) and 43 percent (270/635) of pending PMRs, respectively. The next largest category of open and on-schedule PMRs comprised those that were ongoing (29 percent (288/1,010) of NDA PMRs and 36 percent (80/223) of BLA PMRs).
Table 5 provides additional information on the status of open and off-schedule (
In certain situations, the original PMR schedules were adjusted for unanticipated delays in the progress of the study or clinical trial (
Table 6 provides the status of open on-schedule and off-schedule PMCs and shows that as of September 30, 2015, the largest category of all open NDA PMCs were those that were pending (36 percent; 71/197). Most of the open BLA PMCs were ongoing at the end of FY2015 (39 percent; 80/204). Off-schedule PMCs accounted for 31 percent (62/197) of open NDA PMCs and 22 percent (45/204) of open BLA PMCs. The majority of off-schedule NDA and BLA PMCs were delayed according to the original schedule milestones.
Table 7 provides details about PMRs and PMCs that were closed (released or fulfilled) within FY2015. The majority of closed PMRs were fulfilled (69 percent of NDA PMRs and 90 percent of BLA PMRs at the end of FY2015). Similarly, the majority of closed PMCs within FY2015 were fulfilled.
Tables 8 and 9 show the distribution of the statuses of PMRs/PMCs as of September 30, 2015, presented by the year that the PMR/PMC was established
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by December 28, 2016.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202–395–7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North 10A63, 11601 Landsdown St., North Bethesda, MD 20852,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Sections 1104, 1302, 3301, 3304, 3320, 3361, 3393, and 3394 of Title 5 of the United States Code authorize Federal Agencies to rate applicants for Federal jobs. Collecting applications for the Medical Device Fellowship Program will allow FDA's Center for Devices and Radiological Health (CDRH) to easily and efficiently elicit and review information from students and health care professionals who are interested in becoming involved in CDRH activities. The process will reduce the time and cost of submitting written documentation to the Agency and lessen the likelihood of applications being misrouted within the Agency mail system. It will assist the Agency in promoting and protecting the public health by encouraging outside persons to share their expertise with CDRH.
In the
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the names of the members who will serve on its Performance Review Board (PRB). The purpose of the PRB is to provide fair and impartial review of senior executive service (SES), senior professional and Title 42 SES Equivalents performance appraisals, bonus recommendations, and pay adjustments.
Effective November 7, 2016.
Abu Sesay, Office of Human Resources Executive and Resources Management Staff, Food and Drug Administration, Three White Flint North, 05D04, 11601 Landsdown St., North Bethesda, MD 20852, 240–402–0440,
This action is being taken pursuant to 5 U.S.C. 4314(c)(4), which requires that members of performance review boards be appointed in a manner to ensure consistency, stability, and objectivity in performance appraisals and requires that notice of the appointment of an individual to serve as a member be published in the
The following persons will serve on FDA's Performance Review Board, which oversees the evaluation of performance appraisals of FDA's senior executives: James Sigg, PRB Chair and member; Tania Tse, PRB Officiator; Glenda Barfell; Vincent Bunning; Mary Beth Clarke; Tracey Forfa; Leslie Kux; Deanna Murphy; Lynne Rice; and Richard Turman.
Health Resources and Service Administration (HRSA), Department of Health and Human Services (HHS).
Notice of meeting.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), notice is hereby given that a meeting is scheduled for Advisory Committee on Interdisciplinary, Community-Based Linkages (ACICBL). This meeting will be open to the public. Information about the ACICBL and the agenda for this meeting can be obtained by accessing the following Web site:
The meeting will be held on December 8, 2016 (10:00 a.m.–4:00 p.m.).
This meeting will be held via webinar and teleconference. Webinar information can be found on the Web site at:
• The conference call-in number is 1–800–619–2521. The passcode is: 9271697.
• The Webinar link is
Anyone requesting information regarding the ACICBL should contact Dr. Joan Weiss, Designated Federal Official, within the Bureau of Health Workforce, Health Resources and Services Administration, in one of three ways: (1) Send a request to the following address: Dr. Joan Weiss, Designated Federal Official, Bureau of Health Workforce, Health Resources and Services Administration, 5600 Fishers Lane, Room 15N39, Rockville, Maryland 20857; (2) call (301) 443–0430; or (3) send an email to
The ACICBL provides advice and recommendations to the Secretary of HHS (Secretary) concerning policy, program development, and other matters of significance related to interdisciplinary, community-based training grant programs authorized under sections 750–759, Title VII, Part D of the Public Health Service (PHS) Act, as amended by the Affordable Care Act. The following sections of the PHS Act are included under Part D: 751—Area Health Education Centers; 752—Continuing Educational Support for Health Professionals Serving in Underserved Communities; 753—Geriatrics Workforce Enhancement; 754—Quentin N. Burdick Program for Rural Interdisciplinary Training; 755—Allied Health and Other Disciplines; 756—Mental and Behavioral Health Education and Training, and 759—Program for Education and Training in Pain Care.
Per the PHS Act section 757(d)(2), the Committee is responsible for publishing an annual report describing “the activities of the Committee, including findings and recommendations made by the Committee concerning the activities under this part.” The members of the ACICBL will discuss how they would like to proceed with and structure the statutorily mandated 17th report. They will also finalize the statutorily mandated 16th Annual Report to the Secretary and Congress on “Enhancing Community-Based Training Sites: Challenges and Opportunities.”
Members of the public will have the opportunity to provide comments. Oral comments will be honored in the order they are requested and may be limited as time allows. Requests to make oral comments or provide written comments to the ACICBL should be sent to Dr. Joan Weiss, Designated Federal Official, using the address and phone number above at least 3 days prior to the meeting.
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services.
Notice.
NIOSH gives notice of a decision to evaluate a petition to designate a class of employees from Metals & Controls Corp. in Attleboro,
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, National Institute for Occupational Safety and Health, 1090 Tusculum Avenue, MS C–46, Cincinnati, OH 45226–1938, Telephone 877–222–7570. Information requests can also be submitted by email to
42 CFR 83.9–83.12.
Pursuant to 42 CFR 83.12, the initial proposed definition for the class being evaluated, subject to revision as warranted by the evaluation, is as follows:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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.
15 U.S.C. 3719.
In recognition of Native American Heritage Month, the Tribal Health Research Office in the Division of Program Coordination, Planning, and Strategic Initiatives, in the Office of the Director of the National Institutes of Health (NIH), announces the “Storytelling about Health and Wellness in American Indian and Alaska Native Communities” Challenge. The goal of this Challenge is to develop a brief digital story (
The Challenge begins November 28, 2016.
Please contact NIH's Tribal Health Research Office at
To commemorate Native American Heritage Month, the NIH wishes to celebrate the use of storytelling to convey stories of health and wellness. The AI/AN population has long experienced a disparity in certain health conditions compared with other Americans. AI/AN communities have higher rates of diseases and disorders across several areas of health such as: diabetes, chronic liver disease, certain cancers, mental health, and substance use (
The NIH invites the public to participate in this challenge to share stories about: (1) How heritage and tradition leads to health and wellness in AI/AN communities; and (2) how future research can improve the health of American Indians and Alaska Natives. The videos will augment the agency's ongoing efforts to inform a strengthened research portfolio that advances AI/AN research needs. This challenge is also designed to attract more interest and attention to the research needs of these communities and communicate these needs in a culturally appropriate manner.
1. To be eligible to win a prize under this Challenge, the Contestant—
a. Shall have registered to participate in the Challenge under the rules promulgated by the NIH as published in this notice;
b. Shall have complied with all the requirements set forth in this notice;
c. In the case of a private entity, shall be incorporated in and maintain a primary place of business in the United States, and in the case of an individual, whether participating singly or in a group, shall be a citizen or permanent resident of the United States;
d. May not be a federal entity; Tribal governments and employees are eligible to submit;
e. May not be a federal employee acting within the scope of the employee's employment and, further, in the case of Department of Health and Human Services employees, may not work on their submission(s) during assigned duty hours. Federal employees seeking to participate in this Challenge outside the scope of their employment should consult their ethics official prior to developing their submission;
f. May not be an employee of the NIH, a member of the technical evaluation panel or judge of the Challenge, or any other party involved with the design, production, execution, or distribution of the Challenge or the immediate family of such a party (
2. Federal grantees may not use federal funds to develop their Challenge submissions.
3. Federal contractors may not use federal funds from a contract to develop their Challenge submissions or to fund efforts in support of their Challenge submissions.
4. Submissions must not infringe upon any copyright or any other rights of any third party.
5. By participating in this Challenge, a Contestant agrees to assume any and all risks and waive claims against the federal government and its related entities (as defined in the COMPETES Act), except in the case of willful misconduct, for any injury, death, damage, or loss of property, revenue, or profits, whether direct, indirect, or consequential, arising from participation in this Challenge, whether the injury, death, damage, or loss arises through negligence or otherwise.
6. Based on the subject matter of the Challenge, the type of work that it will possibly require, as well as an analysis of the likelihood of any claims for death, bodily injury, property damage, or loss potentially resulting from Challenge participation, Contestants are not required to obtain liability insurance or demonstrate financial responsibility in order to participate in this Challenge.
7. By participating in this Challenge, each Contestant agrees to indemnify the federal government against third-party claims for damages arising from or related to Challenge activities.
8. A Contestant shall not be deemed ineligible because the individual or entity used federal facilities or consulted with federal employees during the Challenge if the facilities and employees are made available to all Contestants participating in the Challenge on an equitable basis.
9. By participating in this Challenge, each Contestant grants to the NIH irrevocable, paid-up, royalty-free, nonexclusive worldwide license to post, link to, share, and display publicly on the web the submitted document. Each participant will retain all other intellectual property rights in their submissions, as applicable.
10. The NIH reserves the right to (a) cancel, suspend, modify the Challenge, and/or (b) not award any prizes if no entries are deemed worthy.
11. Each Contestant agrees to follow all applicable federal, state, and local laws, regulations, and policies.
12. Each Contestant participating in this Challenge must comply with all terms and conditions of these rules, and participation in this Challenge constitutes each such participant's full and unconditional agreement to abide by these rules. Winning is contingent upon fulfilling all requirements herein.
Submissions are limited to a video that may not exceed five minutes. Winning entries may be posted on the NIH Web site. Submissions must be substantially free of scientific jargon and understandable by viewers without scientific/technical backgrounds. The video must include at least one member of a federally recognized tribe(s) and address the following:
• A brief historical background that puts the story in context. For example, what is the traditional or cultural practice? How does it contribute to health and wellness in AI/AN populations?
• A description of how this tradition or culture affects people's lives. The impact could be lives saved, suffering reduced, fewer visits to health care facilities, adopting a healthier lifestyle, and similar such benefits. How is this practice promoted within tribal populations?
• Information about the unmet health and wellness needs of AI/AN communities. What is the unmet need? Is there an understanding of what interventions or actions may help address these needs?
• A discussion of how biomedical or behavioral research can further Tribal health and wellness. What are the current gaps in Tribal health research and opportunities for improving health in AI/AN communities? What are some of the barriers or challenges in closing these gaps? How would addressing them reduce mortality, improve quality of life, or otherwise positively affect Tribal communities? The video must convey the research question of interest as part of a holistic picture of Tribal health or AI/AN communities.
Contestants may submit more than one entry. However, the cultural and traditional practices and research described in each submission must be distinct. If a Contestant enters substantially similar submissions, as determined by the NIH, the agency may disqualify the later entries or require the Contestant to choose one entry to enter into the Challenge.
Contestants must include a link to a public or unlisted video on YouTube.com, Vimeo.com, or other internet accessible site. The submission may be disqualified if the video is commercially promotional, contains inappropriate material or language, or presents material unrelated to this challenge, as determined by the NIH. A video must:
• Be in English, if dialogue is present. Use of Native language is encouraged but must include an English caption or other method of translation to English.
• Be no longer than five minutes. The NIH recognizes that there may be a desire to prepare a longer video. However, any part of a video exceeding five minutes will be disregarded as part of the judging process.
• Not include copyrighted material, such as music or photos, unless the Contestant has obtained written permission to use such material.
• Not include proprietary information.
• Include captioning or submission of a written transcript in English for any video with dialogue, to ensure the video can be understood by viewers with disabilities.
○ The video must remain posted at the URL submitted with the entry for at least one year after the Challenge closes. The video (or the link to it) may be displayed publicly on the NIH Web site.
○ Before posting a video online, a Contestant must obtain consent from anyone appearing in the video. If a minor appears in the video, the contestant must obtain consent from the minor's parent or legal guardian.
The award-approving official will be the NIH Deputy Director for Program Coordination, Planning, and Strategic Initiatives. The winners will be notified by email, telephone, or mail after the date of the judging. Prizes awarded under this Challenge will be paid by electronic funds transfer and may be subject to federal income taxes. The NIH will comply with the Internal Revenue Service withholding and reporting requirements, where applicable.
• Quality, clarity, and historical accuracy. Is the information presented accurately and clearly?
• Impact. Is the story educational, inspiring, and persuasive? Does it clearly convey how the culture or tradition being practiced promotes health and wellness? Does it clearly convey where research could continue to improve health and well-being?
• Originality. The Challenge submission cannot have been previously published.
• Digital technology. Does the video effectively use lighting, sound, and editing to tell the story? Is the dialogue clear and easy to understand? Do visual effects (if any) contribute to the message or detract from it? Does the video convey the intended message in the five minute limit? Is the video of sufficient quality to be posted on the Web? Is captioning or English translation available?
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.
The Substance Abuse and Mental Health Services Administration (SAMHSA) has submitted the following request (see below) for emergency OMB review under the Paperwork Reduction Act (44 U.S.C. Chapter 35). OMB approval has been requested by January 12, 2017. A copy of the information collection plans may be obtained by calling the SAMHSA Reports Clearance Officer at (240) 276–1243.
The Substance Abuse and Mental Health Services Administration (SAMHSA) is requesting an emergency Office of Management and Budget (OMB) review and approval of the Notification of Intent to Use Schedule III, IV, or V Opioid Drugs for the Maintenance and Detoxification Treatment of Opiate Addiction by a “Qualifying Other Practitioner. The Notification of Intent would allow SAMHSA to determine whether other practitioners are eligible to prescribe certain approved narcotic treatment medications for the maintenance or detoxification treatment of opioid addiction.
This Notification of Intent is a result of the Comprehensive Addiction and Recovery Act (Pub. L. 114–198), which was signed into law on July 22, 2016. The law establishes criteria for nurse practitioners (NPs) and physician assistants (PAs) to qualify for a waiver to prescribe covered medications. To be eligible for a waiver, the NP or PA must: be licensed under State law to prescribe schedule III, IV, or V medications for the treatment of pain; fulfill qualification requirements in the law for training and experience; and fulfill qualification requirements in the law for appropriate supervision by a qualifying physician. SAMHSA has the responsibility to receive, review, approve, or deny waiver requests.
Practitioners who meet the statutory requirements will be eligible to prescribe only those opioid treatment medications that are controlled in Schedules III, IV, or V, under the Controlled Substance Act (CSA), that are specifically approved by the Food and Drug Administration (FDA) for the treatment of opioid addiction, and are not the subject of an “adverse determination.” The only medications that currently fulfill these requirements are ones that contain the active ingredient buprenorphine.
Given the severity of the opioid epidemic, SAMHSA is requesting an emergency OMB approval. Emergency OMB approval will enable NPs and PAs to dramatically increase access to buprenorphine among individuals with opioid use disorder.
The following table is the estimated hour burden:
Written comments and recommendations concerning the proposed information collection should be sent by January 12, 2017 to the SAMHSA Desk Officer at the Office of Information and Regulatory Affairs, OMB. To ensure timely receipt of comments, and to avoid potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, commenters are encouraged to submit their comments to OMB via email to:
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276–1243.
The Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Behavioral Health Statistics and Quality (CBHSQ) is requesting a revision to the National Mental Health Services Survey (N–MHSS) (OMB No. 0930–0119), which expires on February 28, 2017. The N–MHSS provides annual national and state-level data on the number and characteristics of mental health treatment facilities in the United States and biennial national and state-level data on the number and characteristics of persons treated in these facilities.
The N–MHSS will provide updated information about facilities for SAMHSA's online Behavioral Health Treatment Services Locator (see:
This request for a revision seeks to change the content of the currently approved abbreviated N–MHSS (
(1) collection of information from the total N–MHSS universe of mental health treatment facilities during 2017, 2018, and 2019; and
(2) collection of information on newly identified facilities throughout the year as they are identified so that new facilities can quickly be added to the online Locator.
The survey mode for both data collection activities will be web with telephone follow-up. A paper questionnaire will also be available to facilities who request one.
The database resulting from the N–MHSS will be used to update SAMHSA's online Behavioral Health Treatment Services Locator and to produce an electronic version of a national directory of mental health facilities, for use by the general public, behavioral health professionals, and treatment service providers. In addition, a data file derived from the survey will be used to produce a summary report providing national and state-level outcomes. The summary report and a public-use data file will be used by researchers, mental health professionals, State governments, the U.S. Congress, and the general public.
The request for OMB approval will include a request to conduct an abbreviated N–MHSS-Locator survey in 2017 and 2019, and the full-scale N–MHSS in 2018.
The following table summarizes the estimated annual response burden for the N–MHSS:
Written comments and recommendations concerning the proposed information collection should be sent by December 28, 2016 to the SAMHSA Desk Officer at the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). To ensure timely receipt of comments, and to avoid potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, commenters are encouraged to submit their comments to OMB via email to:
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed project or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276–1243.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Substance Abuse and Mental Health Services Administration (SAMHSA) Center for Substance Abuse Prevention (CSAP) is requesting approval from the Office of Management and Budget (OMB) for a new data collection,
The case studies collection is part of a larger effort to evaluate the impact of the “
For this evaluation, SAMHSA intends to measure knowledge and attitudes before and after a focused campaign outreach effort in areas that have not previously had significant exposure to the campaign. Participants in the evaluation will be recruited from a middle school community, and will include parents/caregivers and students. School administrators and partnering organization(s), such as parent organizations and/or local prevention organizations will assist in the dissemination of campaign materials and data collection efforts. There will be two sites selected for the case studies—one site will serve as the experimental group and the other site will serve as the control group. The experimental group will be exposed to the “Talk. They Hear You.” messages using standard campaign materials and dissemination strategies, which will be coordinated through a local partner organization. The control group will not be intentionally exposed to the campaign materials. The case studies will include baseline surveys of parents/caregivers and children of middle-school age in both the experimental and control communities, followed by exposure to campaign materials in the experimental community, and post-exposure surveys of parents and children in both communities. Additionally, SAMHSA will conduct 30 interviews with parents and caregivers following the post-exposure surveys at the experimental site to obtain more detailed information about the specific impact of the campaign.
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 15E57–B, 5600 Fishers Lane, Rockville, MD 20857
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Lien Notice (CBP Form 3485). CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before December 28, 2016 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Paperwork Reduction Act Officer, U.S. Customs and Border Protection, Regulations and Rulings, Office of Trade, 90 K Street NE., 10th Floor, Washington, DC 20229–1177, or via email (
This proposed information collection was previously published in the
U.S. Customs and Border Protection, Department of Homeland Security.
60-Day Notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Passenger and Crew Manifest (Advance Passenger Information System). CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before January 27, 2017 to be assured of consideration.
All submissions received must include the OMB Control Number 1651–0088 in the subject box, the agency name. To avoid duplicate
(1) Email. Submit comments to:
(2) Mail. Submit written comments to CBP PRA Officer, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, Economic Impact Analysis Branch, 10th Floor, 90 K St NE., Washington, DC 20229–1177.
Requests for additional PRA information should be directed to Paperwork Reduction Act Officer, U.S. Customs and Border Protection, Regulations and Rulings, Office of Trade, 90 K Street NE., 10th Floor, Washington, DC 20229–1177, or via telephone (202) 325–0123. Please note contact information provided here is solely for questions regarding this notice. Individuals seeking information about other CBP programs please contact the CBP National Customer Service Center at 877–227–5511, (TTY) 1–800–877–8339, or CBP Web site at
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual cost burden to respondents or record keepers from the collection of information (total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for OMB approval. All comments will become a matter of public record. In this document, CBP is soliciting comments concerning the following information collection:
APIS is authorized under the Aviation and Transportation Security Act, Public Law 107–71. Under this statute, air carriers operating a passenger flight in foreign air transportation to the United States must electronically transmit to CBP a passenger and crew manifest containing specific identifying data elements and any other information that DHS determines is reasonably necessary to ensure aviation safety. The specific passenger and crew identifying information required by statue consists of the following: Full name; date of birth; gender; citizenship; document type; passport number; country of issuance and expiration date; and alien registration number where applicable. The APIS regulatory requirements are specified in 19 CFR 122.49a, 122.49b, 122.49c, 122.75a, 122.75b, and 122.22. These provisions lists all the required APIS data.
Respondents submit their electronic manifest either through a direct interface with CBP, or using eAPIS which is a web-based system that can be accessed at
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers (CDSOA) (CBP Form 7401). CBP is proposing that this information collection be extended with a change to the burden hours. There is no change to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before December 28, 2016 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Paperwork Reduction Act Officer, U.S. Customs and Border Protection, Regulations and Rulings, Office of Trade, 90 K Street NE., 10th Floor, Washington, DC 20229–1177, or via email (
This proposed information collection was previously published in the
A notice is published in the
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of North Carolina (FEMA–4285–DR), dated October 10, 2016, and related determinations.
Effective November 3, 2016.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2833.
The notice of a major disaster declaration for the State of North Carolina is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 10, 2016.
Anson, Chatham, Northampton, Richmond, and Scotland Counties for Individual Assistance and assistance for debris removal and emergency protective measures (Categories A and B), including direct federal assistance under the Public Assistance program.
Carteret and Perquimans Counties for Individual Assistance (already designated for assistance for debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The effective date of February 17, 2017 which has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
I. Non-watershed-based studies:
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before February 27, 2017.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA–B–1652, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables. For communities with multiple ongoing Preliminary studies, the studies can be identified by the unique project number and Preliminary FIRM date listed in the tables. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management 4Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The effective date of March 7, 2017 which has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
I. Watershed-based studies:
II. Non-watershed-based studies:
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before February 27, 2017.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA–B–1655, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables. For communities with multiple ongoing Preliminary studies, the studies can be identified by the unique project number and Preliminary FIRM date listed in the tables. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
I. Watershed-based studies:
II. Non-watershed-based studies:
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before February 27, 2017.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA–B–1657, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646–7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables. For communities with multiple ongoing Preliminary studies, the studies can be identified by the unique project number and Preliminary FIRM date listed in the tables. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
I. Non-watershed-based studies:
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of North Carolina (FEMA–4285–DR), dated October 10, 2016, and related determinations.
Effective November 10, 2016.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2833.
The notice of a major disaster declaration for the State of North Carolina is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 10, 2016.
Franklin County for Public Assistance, including direct federal assistance.
Anson, Bladen, Chatham, Cumberland, Halifax, Hoke, Johnston, Lee, Nash, Richmond, Scotland, and Wake Counties for Public assistance [Categories C–G] (already designated for Individual Assistance and assistance for debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of North Carolina (FEMA–4285–DR), dated October 10, 2016, and related determinations.
Effective October 24, 2016.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2833.
Notice is hereby given that the incident period for this disaster is closed effective October 24, 2016.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of North Carolina (FEMA–3380–EM), dated October 7, 2016, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2833.
Notice is hereby given that the incident period for this emergency is closed effective October 24, 2016.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
U.S. Immigration and Customs Enforcement, Department of Homeland Security.
60-Day notice of information collection for review; Forms No. 73–028; ICE Mutual Agreement between Government and Employers (IMAGE); OMB Control No. 1653–0048.
The Department of Homeland Security, U.S. Immigration and Customs Enforcement (USICE) is submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published in the
Written comments and suggestions regarding items contained in this notice and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), PRA Clearance Officer, U.S. Immigration and Customs Enforcement, 801 I Street NW., Mailstop 5800, Washington, DC 20536–5800.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Colette Pollard, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
202–402–3400. This is not a toll-free number. Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877–8339.
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A. The
This notice is soliciting comments from members of the public and affected
(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.
Office of the Chief Information Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 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 P. Guido, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Anna P. Guido at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
The total burden hours are estimated at 5,428 hours annually. The weighted average burden per response is 0.39 hours or 23.4 minutes.
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.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Colette Pollard, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A. 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,
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Inez C. Downs, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410; email Inez C. Downs at
This notice informs the public that HUD is seeking approval from OMB for 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.
Office of the Chief Information Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 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 P. Guido, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Anna P. Guido at
Copies of available documents submitted to OMB may be obtained from Ms. Guido.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A. The
A. Overview of Information Collection
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.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), received an application from the Thunder Basin Grasslands Prairie Ecosystem Association (Thunder Basin Association) for an Enhancement of Survival permit (permit) under the Endangered Species Act of 1973, as amended (ESA), associated with implementation of a Candidate Conservation Agreement with Assurances (CCAA) for eight species (Covered Species) in specified areas in northeastern Wyoming and southeastern Montana (Coverage Area). The CCAA would implement a Conservation Strategy developed by the Thunder Basin Association for farm and ranch operations, certain recreational activities, oil and gas activities, and surface/in-situ mining activities on enrolled non-Federal lands in the Coverage Area. The Association also proposes that the Conservation Strategy be implemented on Federal lands administered by the Bureau of Land Management (BLM) and U.S. Forest Service (USFS) in the Coverage Area through two additional agreements, a Candidate Conservation Agreement (CCA) and Conservation Agreement (CA), that would also be administered by the Association. The intent of the CCAA and associated CCA and CA is to provide non-Federal landowners and BLM and USFS pemittees/lessees in the Coverage Area with the opportunity to voluntarily conserve the Covered Species and their habitats on enrolled properties while carrying out their operations in a manner that would contribute to precluding the need to list any of these species.
Pursuant to the National Environmental Policy Act (NEPA), we have prepared a draft environmental assessment (EA) that analyzes the potential impacts of issuance of the permit and implementation of the proposed CCAA, as well as the potential impacts of other Federal entities entering into the companion CCA and CA. The draft EA also analyzes the potential impacts of two alternatives to the consolidated proposed action, including a no action alternative. The permit application, the draft CCAA and draft EA are available for public review, and we seek public comment on these documents and potential issuance of the permit associated with the CCAA. Because the draft CCA and CA are part of the proposed action addressed in the draft EA, we have also made these draft agreements available for public review.
Written comments must be submitted by December 28, 2016.
To request further information or submit written comments, please use one of the following methods, and note that your information request or comments are in reference to the Thunder Basin CCAA.
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Field Supervisor, Wyoming Ecological Services Field Office (see
We received an application from the Thunder Basin Grasslands Prairie Ecosystem Association (Thunder Basin Association or Association) for an enhancement of survival permit (permit) under section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The Conservation Strategy developed by the Thunder Basin Association proposes to address landscape conservation in the Covered Area in the context of two primary ecotypes, sagebrush steppe and the shortgrass prairie, and their associated at-risk Covered Species. The Covered Species found in the sagebrush steppe ecotype are greater sage-grouse (
Pursuant to the National Environmental Policy Act (42 U.S.C. 4321
A CCAA is an agreement between the Service and one or more non-Federal entities in which private and other non-Federal landowners voluntarily agree to manage lands they enroll in the CCAA to remove or reduce threats to species that are proposed for listing under the ESA, that are candidates for listing, or that may become candidates for listing. In return for managing their lands to the benefit of the species covered by the CCAA, participating property owners receive assurances that no additional conservation measures or land, water or resource use restrictions will be imposed under the ESA on covered activities on enrolled lands should any of the covered species ever be listed under the ESA. The Service provides these assurances through an Enhancement of Survival permit, issued pursuant to section 10(a)(1)(A) of the ESA for a specific number of years, that becomes effective if a species covered by the CCAA and permit is listed. Under the permit, participating landowners also receive authorization for take that is incidental to activities covered by the CCAA. In a case such as this, in which a third-party would administer the CCAA, the permit is issued to the third-party administrator, the Thunder Basin Association here, and permit coverage extends to non-Federal landowners who enroll in the CCAA through a Certificate of Inclusion (CI) and comply with the requirements stated in the CCAA and their respective CIs. Additional permit application requirements and issuance criteria for CCAAs are found in the Code of Federal Regulations (CFR) at 50 CFR 17.22(d) and 17.32(d), respectively, as well as 50 CFR part 13. Please also see our joint policy on CCAAs, which we published in the
As described above, the Thunder Basin Association has also proposed implementing its Conservation Strategy in the Coverage Area through two additional agreements, the CCA and CA, which are integrated with the CCAA and the Association's administration of that agreement. In general, CCAs and CAs are voluntary conservation agreements between the Service and one or more public or private parties that identify specific conservation measures that the participants will voluntarily undertake to conserve the species covered by the agreements. CCAs are typically developed with Federal agencies to address one or more threats on Federal lands to candidate species and species that are likely to become candidates, and are particularly helpful in ensuring consistent application of a conservation strategy in situations, such as occur in the Coverage Area, where private activities occur on a mix of non-Federal and Federal lands. Because Federal agencies have special obligations for the conservation of listed species under section 7 of the ESA, CCAs for activities conducted on Federal lands do not include the assurances, incidental take authorization and permit that are available to participants in a CCAA, all of whom by definition are non-Federal entities. A CA, in turn, may involve non-Federal and/or private parties, but also does not provide assurances, take authorization or a permit to agreement participants. In both types of agreements, the Service works with its partners to identify threats to candidate species, plan the measures needed to address the threats and conserve these species, identify Federal permittees/licensees or others willing to participate in the CCA or CA, develop agreements with these parties, and design and implement conservation measures and monitor their effectiveness.
Under the proposed CCAA and the incorporated Conservation Strategy, members of the Thunder Basin Association who enroll non-Federal lands in the CCAA (Participants) would implement conservation measures that avoid, minimize, and mitigate impacts to the Covered Species and their habitats from activities covered by the CCAA (Covered Activities), which are general farm and ranch operations, certain recreational activities, oil and gas activities and surface/in-situ mining activities, as well as the conservation measures to be implemented for these activities under the CCAA. The Service would issue the permit to the Thunder Basin Association, which would administer the CCAA and enroll the Participants as provided in the CCAA. The CCAA and associated permit would be in effect for 30 years. The Coverage Area would encompass the five northeastern Wyoming counties of Campbell, Converse, Crook, Niobrara, and Weston, along with two qualifying peripheral properties located in Sheridan County, Wyoming, and the Montana counties of Big Horn, Powder River, and Rosebud.
Through issuance of the enhancement of survival permit to the Thunder Basin Association, the Service would provide
The Secretary of the Interior has delegated to the Service the authority to approve or deny a section 10(a)(1)(A) permit in accordance with the ESA. To act on Thunder Basin Association's permit application, we must determine that the CCAA meets the issuance criteria specified in the ESA and at 50 CFR 17.22 and 17.32, as well as at 50 CFR part 13. These criteria include a finding that the proposed CCAA complies with the requirements of our CCAA Policy (64 FR 32726; June 17, 1999). The Service has proposed changes to the CCAA Policy and Regulation (FWS/NOAA Fisheries policy notice at Docket No. [FWS–HQ–ES–2015–0177; May 4, 2016]; FWS regulations notice at Docket No. [FWS–HQ–ES–2015–0171; May 4, 2016]. When determining whether this CCAA complies with the requirements of our CCAA Policy, we will use the most recent finalized CCAA Policy.
The issuance of a section 10(a)(1)(A) permit is a Federal action subject to NEPA compliance, including the Council on Environmental Quality regulations for implementing the procedural provisions of NEPA (40 CFR 1500–1508; 516 DM 6.2B). The Service's decision on whether to enter into the CCAA, CCA and CA, so that the Conservation Strategy can be implemented on non-Federal and Federal lands subject to these agreements, is also a Federal action subject to NEPA compliance. The Association's draft CCAA and related application for the Enhancement of Survival permit, as well as the companion CCA and CA it proposes, are not eligible for categorical exclusion under NEPA. We have prepared a draft EA to further analyze the direct, indirect, and cumulative impacts of the proposed CCAA and permit, the CCA and the CA, including their proposed implementation of the Conservation Strategy, on the quality of the human environment and other natural resources. In compliance with NEPA, we analyzed the potential impacts of this proposed action and a reasonable range of alternatives in the draft EA. Based on these analyses and any new information resulting from public comment on the proposed action, we will determine if issuance of the permit and approval of the underlying CCAA and related CCA and CA would cause any significant impacts to the human environment. After reviewing public comments, we will evaluate whether the proposed action and alternatives in the draft EA are adequate to support a finding of no significant impact under NEPA. We now make the draft EA available for public inspection online or in person at the Service offices listed in
You may submit your comments and materials by one of the methods listed in the
All comments and materials we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personally identifiable information (PII) in your comments, you should be aware that your entire comment—including your PII—may be made publicly available at any time. While you can ask us in your comment to withhold your PII from public review, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we use in preparing the EA, will be available for public inspection by appointment, during normal business hours, at our Wyoming Field Office (see
After completion of the EA based on consideration of public comments, we will determine whether adoption of the proposed action, entry into the proposed CCAA, CCA and CA and issuance of the permit associated with the CCAA, warrants a finding of no significant impact or whether an environmental impact statement should be prepared. We will evaluate the proposed agreements and their incorporated Conservation Strategy, as well as any comments we receive, to determine whether to enter into the agreements. We will also use our evaluation and any comments we receive to help determine whether implementation of the proposed CCAA would meet the requirements for issuance of a permit under section 10(a)(1)(A) of the ESA. Further, we will evaluate whether the proposed permit action and underlying CCAA, in addition to the CCA and CCA, would comply with section 7 of the ESA by conducting an intra-Service section 7 consultation. We will consider the results of this consultation, in combination with the above findings, in our final analysis to determine whether or not to issue a permit to the Thunder Basin Association and enter into a CCAA, CCA, and CA. We will not make our final decision until after the end of the 30-day public comment period, and we will fully consider all comments we receive during the public comment period.
We provide this notice in accordance with the requirements of section 10 of the ESA (16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) announces the availability of the Record of Decision (ROD) for the Approved Resource Management Plan (RMP) Amendment for the Roan Plateau planning area in Garfield and Rio Blanco Counties, Colorado. The BLM Director signed the ROD on November 16, 2016, which constitutes the final decision of the BLM and makes the Approved RMP effective immediately.
Copies of the ROD/Approved RMP Amendment are available upon request at the BLM Colorado River Valley Field Office, 2300 River Frontage Road, Silt, CO 81652; at the BLM White River Field Office, 220 East Market Street, Meeker, CO 81641; or via the Internet at
Greg Larson, Project Manager, at 970–876–9000; Colorado River Valley Field Office (see address above), or
The planning area, which is in west-central Colorado, includes approximately 73,602 acres of land (Federal surface, Federal mineral estate, or both). It is located primarily in Garfield County with a small portion in southern Rio Blanco County. The Roan Plateau RMP Amendment amends the Glenwood Springs and White River RMPs to address resource management decisions within the planning area. The BLM prepared the Roan Plateau Proposed RMP Amendment/Final Supplemental Environmental Impact Statement (EIS) to evaluate a range of management decisions for resources, resource uses, and special designations within the planning area, and to respond to a June 22, 2012, ruling by the United States District Court for the District of Colorado remanding the 2007 Roan Plateau RMP Amendment. The Court set aside the 2007 Roan Plateau RMP Amendment and remanded the matter to the BLM for further action in accordance with the Court's decision.
In particular, the Court found that the Final EIS supporting the 2007 Roan Plateau RMP Amendment was deficient insofar as it: (i) Failed to sufficiently address the “Community Alternative” that various local governments, environmental organizations and individual members of the public recommended; (ii) Failed to sufficiently address the cumulative air quality impacts of the 2007 RMP Amendment in conjunction with anticipated oil and gas development on private lands outside the Roan Plateau planning area; and (iii) Failed to adequately address the issue of potential ozone impacts from proposed oil and gas development. Based on the Court's ruling and new information available since the BLM developed the 2007 Final EIS, the BLM determined that a new RMP Amendment and supplemental analysis under NEPA were warranted.
Additionally, the parties involved in the litigation reached a settlement agreement in November 2014. In the settlement agreement, the BLM agreed to consider an alternative that included closing certain lands on top of the Roan Plateau to new oil and gas leasing while keeping other lands in the planning area open for leasing, exploration, and development subject to certain conditions. As part of the settlement agreement, the BLM cancelled 17 leases held by Bill Barrett Corporation.
The Roan Plateau Approved RMP Amendment adopts the Settlement Alternative that was identified in the November 2014 settlement agreement. The Approved RMP Amendment contains management actions to meet desired resource conditions for fluid minerals management; social and economic impacts; riparian habitat; recreation; and air, water and ecological resources. The Approved RMP Amendment also addresses decisions regarding Wild and Scenic Rivers, Areas of Critical Environmental Concern, and lands with wilderness characteristics. Greater Sage-Grouse decisions in the Approved RMP Amendment are consistent with the Northwest Colorado Greater Sage-Grouse RMP Amendment ROD.
The BLM's Preferred Alternative (the Settlement Alternative) for the Draft RMP Amendment/Draft Supplemental EIS was carried forward into the Proposed RMP Amendment/Final Supplemental EIS published on July 1, 2016. The BLM did not receive any protests on the Proposed RMP Amendment/Final Supplemental EIS and the Govenor did not identify any inconsistencies with State or local plans, policies or programs during the Governor's consistency review.
As a result, the BLM made only minor editorial modifications in preparing the Approved RMP Amendment. These modifications provide further clarification of some of the decisions, and are discussed in Section 1.3 of the Approved RMP Amendment/ROD. The Approved RMP Amendment/ROD also includes certain implementation decisions that are immediately appealable under 43 CFR part 4. These decisions involve the desgination of the following individual travel routes—TRR–IMP–01, TRR–IMP–02, and TRR–IMP–03.
Any party adversely affected by these route designation decisions may appeal within 30 days of publication of this Notice of Availability pursuant to 43 CFR, part 4, subpart E. The appeal should state the specific route(s), as identified in Chapter 2 of the Approved RMP Amendment/ROD, on which the decision is being appealed. The appeal must be filed with the Colorado River Valley Field Manager at the above listed address. Please consult the appropriate regulations (43 CFR, part 4, subpart E) for further appeal requirements.
40 CFR 1506.6.
Bureau of Land Management, Interior.
Notice.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the
A person who meets the conditions for protesting an LUP Amendment outlined in 43 CFR 1610.5–2 and wishes to file a protest must file the protest within 30 days of the date that the Environmental Protection Agency publishes its Notice of Availability (NOA) in the
Copies of the Final EIS and proposed LUP Amendments have been sent to Federal, Tribal, State, and local governments potentially affected by the proposed Project, to public libraries in the area, and to interested parties that previously requested a DVD copy. Copies of the Final EIS and Proposed LUP Amendments are also available for public inspection at the locations identified in the Supplementary Information section of this notice. Interested persons may also review the Final EIS and Proposed LUP Amendments and supporting documents on the internet at
All protests must be in writing and mailed to one of the following addresses:
Tamara Gertsch, National Project Manager, Bureau of Land Management, Vale District Office, P.O. Box 655, Vale, OR 97918; by telephone at 307–775–6115; or email to
For information about the United States Forest Services' (USFS) involvement, contact Arlene Blumton, USFS Project Lead by telephone at 541–962–8522; email:
Idaho Power Company filed a right-of-way (ROW) application with the BLM to construct, operate, and maintain the Project, which is an approximately 300-mile-long (depending on the route selected) overhead, single-circuit, 500-kilovolt (kV), alternating-current electric transmission line with additional ancillary facilities. The Project would connect at its northern terminus with the Longhorn Substation proposed by Bonneville Power Administration (BPA), approximately four miles northeast of the city of Boardman in Morrow County, Oregon, to the existing Hemingway Substation, near the city of Melba in Owyhee County, Idaho. When completed, the Project would provide additional electrical load capacity between the Pacific Northwest region and the Intermountain region of southwestern Idaho. The Project also would alleviate existing transmission constraints and ensure sufficient electrical capacity to meet present and forecasted customer needs as described in Idaho Power Company's 2015 Integrated Resource Plan available online at
The requested right-of-way width is 250 feet for its entire length, except for a section about 7 miles long that will replace an existing 69kV transmission line, requiring a 90-foot-wide right-of-way within and parallel to the eastern boundary of the Naval Weapons Systems Training Facility (NWSTF) Boardman, as well as a 0.9-mile-long section that will require a 125-foot-wide right-of-way to relocate an existing 230-kv transmission line.
The Project would take approximately 2 to 3 years to construct and would consist of the following permanent facilities:
• A single-circuit 500-kV electric transmission line (including structures and conductors, and other associated facilities) between the proposed Longhorn Substation and the existing Hemingway Substation;
• Associated access roads and access control gates;
• Communication regeneration sites every 40 miles;
• Removal of approximately 15 miles of the existing Boardman to Tap 69-kV transmission line; and
• The re-routing of 0.3 miles of the existing Quartz to Tap 230-kV transmission line.
The BLM may issue a separate short-term right-of-way grant for temporary facilities, including temporary access roads, and geotechnical investigation (also analyzed in the Final EIS) for a period of five years.
Alternative routes considered in the Final EIS cross Federal, State, and private lands. Indian reservations are not crossed; however, lands of Native American concern are within the Project area.
Under Title V of FLPMA, the BLM considers applications for ROWs on BLM-administered lands and must determine whether to grant, grant with modifications, or deny ROW applications. Title V of FLPMA also provides direction to the USFS in responding to applications for special-use authorizations on lands it administers. The BLM is the designated lead Federal agency for preparing the EIS as defined at 40 CFR § 1501.5. The USFS is a cooperating agency because the proposed Project may require a special-use authorization across USFS lands. Additional cooperating agencies include Federal, State, and local agencies.
In accordance with NEPA, the BLM prepared a Draft EIS for the ROW application for the proposed Project using an interdisciplinary approach in order to consider a variety of resource issues and concerns identified during internal, interagency and public scoping. An NOA for the Draft EIS for the Project was published by the U.S. Environmental Protection Agency in the
• Mitigation;
• Opposition to, or support for, specific route alignments;
• Impacts on sensitive biological resources, including sage-grouse and special status plant species;
• Impacts on the Oregon National Historic Trail (NHT) and other resources in the National Trail System;
• Methods of analysis not clearly explained; and
• Difficulty in comparing alternatives.
The BLM incorporated the comments received on the Draft EIS, where appropriate, to clarify the analysis presented in the Final EIS. Based on comments received on the Draft EIS, the BLM made revisions to update the resource data used to analyze the alternatives in the EIS and added route variations in response to comments and input from cooperating agencies. Comments on the Draft EIS offered recommendations for routing options as variations of sections of the longer alternative routes. The BLM evaluated each route variation option and many of the routing options were carried forward as sections of alternative routes in the Final EIS; only a few were considered, but eliminated from detailed analysis in the Final EIS. Consistent with agency requirements, a systematic approach was used to compare alternatives by analyzing potential impacts and mitigation.
The Final EIS organizes the alternatives into six segments that are based generally on similar geography, natural features, drainages, resources, and/or land uses. Each segment examines multiple alternative routes for those segments, and some of the alternative routes have one or more smaller localized variations. This effort evaluated 24 alternative routes and 40 variations totaling approximately 850 miles in detail, along with a No Action Alternative.
Under the No Action Alternative, neither the BLM right-of-way nor the USFS special-use permit would be granted. As a result, the transmission line and ancillary facilities would not be constructed, and the BLM would not amend its land use plans.
The Final EIS identifies the Agency-Preferred Alternative route, which is approximately 293 miles long. Approximately 34 miles (12 percent) of the Agency-Preferred Alternative route is located within designated utility corridors. The Agency-Preferred Alternative route is co-located with existing transmission lines and pipelines for a distance of approximately 90 miles (31 percent) of the total length of 293 miles. The Agency-Preferred Alternative crosses approximately 100 miles of Federal land, 3 miles of State land, and 190 miles of private land. Although no Indian reservations are crossed, lands of Native American concern are within the Project area.
Segment 1 of the Agency-Preferred Alternative begins in Oregon. There are a few small, isolated parcels of land administered by the BLM; however, the NWSTF Boardman is administered by the Navy. The route exits the proposed Longhorn Substation to the south, crossing the boundary of the NWSTF Boardman at the northeastern corner and parallels the eastern boundary of the NWSTF Boardman on the west side of Bombing Range Road for approximately 7 miles. At that point, the route crosses to the east side of Bombing Range Road, thereby avoiding the Resource Natural Area B, a Resource Management Area, and traditional cultural properties on the NWSTF Boardman. The route proceeds across Bombing Range Road for approximately 350 feet where the route intersects with and the parallels along the east side of Bombing Range Road to the south for approximately 3.6 miles before joining the Applicant's Proposed Action Alternative. From there, the route heads south to join the southern route variation proposed by Morrow and Umatilla counties. The northern portion of the Agency-Preferred Alternative was developed through collaboration with the Navy and Morrow and Umatilla counties and: (1) Repurposes an existing use area currently occupied by the BPA 69-kV transmission line on the NWSTF Boardman (on the west side of and parallel to Bombing Range Road), (2) avoids airspace conflicts by complying with the Navy's requested 100-foot height restriction for transmission lines along Bombing Range Road, (3) avoids and/or minimizes effects on areas planned for potential wind-farm development, and (4) minimizes effects on high-value agricultural lands. The Agency-Preferred Alternative may require mitigation of effects on Washington ground squirrel habitat, traditional cultural properties, and the Oregon NHT.
Where the Agency-Preferred Alternative crosses Navy-administered land, the BLM has analyzed environmental impacts to allow the Navy to tier to the Final EIS in support of its decision whether to grant the necessary authorizations for the removal of the existing BPA 69-kV transmission line and for the construction, operation, and maintenance of the proposed 500-kV transmission line across the 7 miles of military-withdrawn land.
The BLM identified the east-west section of the southern route as the Agency-Preferred Alternative for a number of reasons. This route minimizes effects on areas of potential windfarm development and existing active agricultural lands, and avoids effects on the traditional cultural landscape (associated with the area to the north). In the southernmost portion of Segment 1, on the Wallowa-Whitman National Forest, the USFS identified its preference for use of the designated utility corridor, and endorsed the route as the USFS Agency-Preferred Alternative on the Forest. There are a few small, isolated parcels of BLM-administered lands in Segment 1.
In Segment 2, no lands administered by the BLM are crossed. The Agency-Preferred Alternative route in Segment 2 is the a combination of Variation S2–A2 on the Wallowa-Whitman National Forest, the Glass Hill Alternative with Variation S2–D2, and Variation S2–F2 along the southern portion of Segment 2. The USFS's preference on the Wallowa-Whitman National Forest in this northern portion of the Segment 2 is to co-locate more closely with the existing 230-kV transmission line within the USFS-designated utility corridor to the extent practicable (Variation S2–A2). The intent is to minimize vegetation removal and surface disturbance by using the existing service roads associated with the existing 230-kV transmission line. Continuing on to the southeast, the Agency-Preferred Alternative route follows the Glass Hill Alternative using the Variation S2–D2 (recommended in comments on the Draft EIS). In the area of Glass Hill, this route does not parallel existing linear facilities, but is west of and the farthest from the City of La Grande, Oregon. This option ensures the route is farthest from associated land uses, cultural resources (primarily historic sites) and the Oregon NHT and associated sites. Also, the Glass Hill Alternative avoids some high-value soils (for potential agriculture). Use of Variation S2–D2 would also result in the avoidance of the high elevation (unique ecology) land on Cowboy Ridge, reducing potential visual resource impacts on the Morgan Lake recreation area.
Along the southern portion of Segment 2, the agency preference is (1) to parallel the existing 230-kV transmission line (Variation S2–F2); (2) avoid potential effects on center-pivot and other irrigated agricultural land, and (3) reduce effects on greater sage-
The Agency-Preferred Alternative in Segment 3 crosses interspersed private land and BLM-administered lands. In the northern portion of Segment 3, the Agency-Preferred Alternative is co-located to parallel more closely an existing 230-kV transmission line. This alternative route has been identified as the Agency-Preferred Alternative because the route (1) parallels existing linear facilities along its entire length (existing 230-kV line along the northern portion and existing 138-kV line along the southernmost portion of the variation), (2) avoids and/or minimizes effects on greater sage-grouse Priority Habitat, (3) avoids and/or minimizes effects on irrigated agriculture, (4) minimizes impacts on a large gravel operation, and (5) was recommended by and developed in collaboration with Baker County and other local stakeholders. From the National Historic Oregon Trail Interpretive Center (NHOTIC), the proposed transmission line would be collocated with the existing 230-kV transmission line and existing agricultural development west of the center. The BLM identified specific mitigation that would minimize visual impacts from the NHOTIC, including a requirement for weathered H-Frame construction.
At the southern end of Segment 3, the Agency-Preferred Alternative parallels an existing 138-kV transmission line for much of its length, avoids irrigated agriculture, avoids greater sage-grouse Priority Habitat, and avoids the Straw Ranch 1 parcel of the Oregon Trail Area of Critical Environmental Concern (ACEC). In addition, in the southern portion of Segment 3, the Agency-Preferred Alternative is a route-variation option developed in coordination with Baker County to reduce: Impacts on irrigated agriculture, impacts on greater sage-grouse General Habitat, the number of freeway crossings, and visual impacts on the Chimney Creek portion of the Oregon Trail ACEC.
The Agency-Preferred Alternative in Segment 4 is a mix of private and Federal land-ownership. This alternative route parallels an existing 138-kV transmission line, and then parallels Interstate 84 to the area west of Farewell Bend. The northern portion of the Agency-Preferred Alternative is within both a West-wide Energy Corridor and BLM-designated utility corridor in the area of Farewell Bend. The alternative route then turns south then southwest to (1) avoid crossing most greater sage-grouse Priority Habitat and (2) and avoid an area of irrigated agriculture of particular concern to local stakeholders. However, there would be impacts on a broad cultural landscape that includes important pre-contact and historic cultural resources extending from the Farewell Bend area to the south as well as cultural and recreational resources associated with the Oregon NHT. These impacts would be addressed as part of mitigation requirements for the project.
The Agency-Preferred Alternative in Segment 5 crosses land administered by the BLM with some private land interspersed. The Agency-Preferred Alternative (1) uses a variation to avoid impacts on lands with wilderness characteristics in the Double Mountain area; (2) avoids impacts on an Owyhee River Below the Dam ACEC; (3) uses portions of the BLM-designated utility corridor along the southern portion of Segment 5; and (4) minimizes habitat fragmentation, impacts on cultural resources, and avoids impacts on an area of the Owyhee River determined by the BLM to be suitable for designation as a National Wild and Scenic River.
The Agency-Preferred Alternative in Segment 6 consists of mixed Federal and private land ownership in the northwestern portion of the segment. The Agency-Preferred Alternative avoids crossing certain private lands at the request of Owyhee County where land-owner permission is required and has not been given. This route also provides more distance from a large cultural resource area known as Graveyard Point. Moving into Idaho, the Agency-Preferred Alternative uses the West-wide Energy Corridor on BLM-administered land to preserve space for future use of the corridor.
The BLM has developed the Final EIS consistent with relevant laws, regulations, and policies, including those guiding agency decisions that may have an impact on resources and their values, services, and functions. The BLM also has considered in the Final EIS measures to mitigate the impacts and, if the BLM approves the ROW application, the BLM will apply the mitigation hierarchy (avoid; minimize; rectify, reduce, or eliminate over time; and compensate) as identified by the Council on Environmental Quality (40 CFR 1508.20) and recent policies on mitigation, including the Presidential Memorandum on Mitigation (Nov. 3, 2015), Secretary of the Interior's Secretarial Order 3330 (Oct. 31, 2013), Department of the Interior's Departmental Manual, 600 DM 6, and BLM's Draft Manual 1794—“Regional Mitigation.” The Project's siting and design, required design features, Project, mitigation measures identified in the Final EIS, and all associated implementation plans have been developed in consideration of the full mitigation hierarchy to avoid, minimize, rectify, or reduce impacts over time, and last, to compensate for unavoidable impacts on important, scarce, or sensitive resources. The priority is to mitigate impacts at the site of the activity through impact avoidance, minimization, rectification, and reduction. If these types of mitigation measures are not sufficient to adequately address anticipated direct, indirect, and cumulative impacts, the BLM will require additional measures to address these impacts, including through compensatory mitigation where appropriate.
Copies of the Final EIS are available for public inspection during normal business hours at the following locations in Oregon:
• BLM Baker RMP:
o In Segment 3, the 250-feet-wide right-of-way for the Project in VRM Class II lands in Burnt River Canyon (23 acres) would be modified from Class II to Class IV.
• BLM SEORMP—Segment 3
○ In Segment 3, the 250-feet-wide right-of-way for the Project in VRM Class III lands in the vicinity of the National Historic Oregon Trail ACEC (51 acres) would be modified from Class III to Class IV.
○ In Segment 5, the 250-feet-wide right-of-way in VRM Class II lands outside and north of the Owyhee River Below the Dam ACEC (20 acres) would be amended from Class II to Class IV.
Instructions for filing a protest with the Director regarding the proposed BLM LUP Amendments can be found in the “Dear Reader” letter of the Final EIS, available at
USFS Land Use Plan Amendments. Depending on the route alternative selected, LUP Amendments proposed by the USFS are needed for the portions of the Project crossing USFS-administered lands that do not conform to the Wallowa-Whitman National Forest Land and Resource Management Plan (LRMP). For the Agency Preferred-Alternative, instances where the Project is not in conformance with applicable LRMP standards and guidelines include USFS visual quality objectives; LRMP direction for Eastside Screens; and LRMP direction for managing anadromous fish-producing watersheds (direction commonly known as PACFISH) and fish-producing watersheds (direction commonly known as INFISH). For the Agency-Preferred Alternative, the aspects of the Project that do not conform to current USFS LRMP management direction include:
• VQOs crossed by the 250-feet-wide right-of-way for the Project on the Wallowa-Whitman National Forest will be modified from the current objective class (Modified, Partial Retention and Retention) to Maximum Modification.
• LRMP direction for Eastside Screens will be amended to allow sale of timber associated with the Project to proceed without characterizing patterns of stand structure and comparing to the Historic Range of Variability, as required by the Interim Ecosystem Standards (Scenario A). Associated wildlife standards also would be amended for the Project.
• LRMP direction for managing PACFISH and INFISH will be amended to allow timber harvest in riparian habitat conservation areas (associated with Project) and allow issuance of a special-use authorization for the Project.
Before including your phone number, email address, or other personal identifying information in your protest, you should be aware that your entire protest—including personal identifying information—may be made publicly available at any time. While you may ask the BLM in your protest to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice.
The Peabody Museum of Natural History, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects, sacred objects, and/or objects of cultural patrimony. Lineal descendants or representatives of any Indian tribe or
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Peabody Museum of Natural History at the address in this notice by December 28, 2016.
Professor David Skelly, Director, Yale Peabody Museum of Natural History, P.O. Box 208118, New Haven, CT 06520–8118, telephone (203) 432–3752.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Peabody Museum of Natural History, Yale University, New Haven, CT that meet the definition of unassociated funerary objects, sacred objects, and/or objects of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In the late 19th century, six cultural items were collected in southwestern Alaska. Three of the cultural items were collected circa 1896–1899, placed on deposit at the Peabody Museum of Natural History in 1928, and formally donated to the Peabody Museum of Natural History in 1992. The remaining three cultural items were collected prior to 1880 when they were donated to the Peabody Museum of Natural History. The six cultural items are: One headdress, two bone necklaces, one ivory amulet, one bone drinking tube, and one oyster catcher rattle.
In June 2015, representatives from the Central Council of the Tlingit and Haida Indian Tribes of Alaska identified the six cultural items as part of a shaman's outfit/paraphernalia (collectively the “Six Shaman's Objects”) and historic and contemporary scholars support this identification. Historic and contemporary scholars also state that Tlingit shamans were traditionally placed in above-ground grave houses along with their outfit/paraphernalia.
In the late 19th century, one Chilkat robe and one Chilkat Woodworm pipe were collected from southwestern Alaska and in 1902 they were donated to the Peabody Museum of Natural History. In 1928 or 1929 one Raven rattle was collected from southwestern Alaska and was subsequently donated to the Peabody Museum of Natural History in 1966. In 1931, one Chilkat robe, was purchased in Juneau, Alaska and donated to the Peabody Museum of Natural History. During consultation, representatives from the Central Council of the Tlingit and Haida Indian Tribes of Alaska identified the first Chilkat robe as depicting the Sea Monster crest, which belongs to the
The representatives stated that, according to tribal custom, no individual could have legally alienated the Four Clan Objects from their respective clans. In addition, the representatives stated that members of the
Officials of the Peabody Museum of Natural History have determined:
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•
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Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Professor David Skelly, Director, Yale Peabody Museum of Natural History, P.O. Box 208118, New Haven, CT 06520–8118, telephone (203) 432–3752, by December 28, 2016. After that date, if no additional claimants have come forward, transfer of control of the unassociated funerary objects, sacred objects, and/or objects of cultural patrimony to the Central Council of the Tlingit and Haida Indian Tribes of Alaska may proceed.
The Peabody Museum of Natural History is responsible for notifying the Central Council of the Tlingit and Haida Indian Tribes of Alaska that this notice has been published.
National Park Service, Interior.
Notice.
The Hood Museum of Art, Dartmouth College has completed an inventory of human remains in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Hood Museum of Art, Dartmouth College. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Hood Museum of Art, Dartmouth College at the address in this notice by December 28, 2016.
Kathleen P. O'Malley, Hood Museum of Art, Dartmouth College, 6 East Wheelock Street, Hanover, NH 03755, telephone (603) 646–3853, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Hood Museum of Art, Dartmouth College, Hanover, NH. The human remains were removed from Hood's Landing, Marion County, TN.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Hood Museum of Art professional staff in consultation with representatives of the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, The Muscogee (Creek) Nation, and the United Keetoowah Band of Cherokee Indians in Oklahoma.
In August of 1932, human remains representing, at minimum, one individual were removed from an “Indian mound” at Hood's Landing in Marion County, TN, one-quarter mile west of the Oxbow by Robert M. Bear of the Education Department at Dartmouth College. The human remains were donated to the Dartmouth College Museum and subsequently transferred to the Department of Anthropology, Dartmouth College in 1939. In 1993, in compliance with NAGPRA, officials of the Hood Museum of Art took control of the human remains and included them in an Inventory of Native American Human Remains in the Possession of the Hood Museum of Art at Dartmouth College that are considered to be Culturally Unidentifiable. No known individuals were identified. No associated funerary objects are present.
Officials of the Hood Museum of Art, Dartmouth College have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on osteological evidence as determined by professors in the Physical Anthropology Department at Dartmouth College and collection history.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and the United Keetoowah Band of Cherokee Indians in Oklahoma.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and the United Keetoowah Band of Cherokee Indians in Oklahoma.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, and the United Keetoowah Band of Cherokee Indians in Oklahoma.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Kathleen P. O'Malley, Hood Museum of Art, Dartmouth College, 6 East Wheelock Street, Hanover, NH 03755, telephone (603) 646–3853, email
The Hood Museum of Art is responsible for notifying the Cherokee Nation, Eastern Band of Cherokee Indians, The Chickasaw Nation, The Muscogee (Creek) Nation, and the United Keetoowah Band of Cherokee Indians in Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before October 29, 2016, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by December 13, 2016.
Comments may be sent via U.S. Postal Service to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202–371–6447.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before October 29, 2016. Pursuant to section 60.13 of 36 CFR Part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
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.
60.13 of 36 CFR Part 60.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping and countervailing duty investigations Nos. 701–TA–565 and 731–TA–1341 (Preliminary) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of hardwood plywood from China, provided for in heading 4412 of the Harmonized Tariff Schedule of the United States, that are alleged to be sold in the United States at less than fair value and alleged to be subsidized by the Government of China. Unless the Department of Commerce extends the time for initiation, the Commission must reach a preliminary determination in antidumping and countervailing duty investigations in 45 days, or in this case by January 3, 2017. The Commission's views must be transmitted to Commerce within five business days thereafter, or by January 10, 2017.
Mary Messer ((202) 205–3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting
For further information concerning the conduct of these investigations and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on October 26, 2016, under the Tariff Act of 1930, on behalf of Celanese International Corporation and Celanese Sales U.S. Ltd., both of Irving,Texas, and Celanese IP Hungary Bt, of Hungary.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205–2560.
The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain high-potency sweeteners, processes for making same, and products containing same by reason of infringement of certain claims of U.S. Patent No. 9,024,016 (“the '016 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainants request that the Commission institute an investigation and, after the investigation, issue a general exclusion order, or in the alternative a limited exclusion order, and cease and desist orders.
Authority: 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 (2016).
Scope of Investigation: Having considered the complaint, the U.S. International Trade Commission, on November 21, 2016, Ordered That—
(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 high-potency sweeteners, processes for making same, and products containing same by reason of infringement of one or more of claims 1–3 and 10 of the '016 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(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
(3) 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.
Office on Violence Against Women, Department of Justice.
60-day notice.
The Department of Justice, Office on Violence Against Women (OVW) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until January 27, 2017.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Cathy Poston, Office on Violence Against Women, at 202–514–5430 or
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencys estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the
(1)
(2)
(3)
(4)
The purpose of this new information collection is to provide a worksheet for documenting the amount of matching funds required at the closeout of a specific fiscal year award under the STOP Formula Grant Program. The type of questions on the worksheet will include award number, award amount, amount of funds sub-awarded to victim service providers for victim services or to tribes.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond/reply: It is estimated that it will take the approximately 51 respondents approximately ten minutes to complete a STOP Formula Grant Program match documentation worksheet.
(6) An estimate of the total public burden (in hours) associated with the collection: The total annual hour burden to complete the data collection forms is 8.5 hours, that is 51 STOP State Administrators completing an assessment tool one time with an estimated completion time being ten minutes.
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Ventilation Plan and Main Fan Maintenance Record,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before December 28, 2016.
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–MSHA, 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 sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to maintain PRA authorization for the MSHA Ventilation Plan and Main Fan Maintenance Record information collection. An underground mine usually presents a harsh and hostile working environment. Pursuant to statutory authority, the MSHA has issued regulations under which a mine operator is required to prepare a written plan of the mine ventilation system. The plan must be updated at least annually. Upon written request of the MSHA District Manager, the plan or revisions must be submitted to the MSHA for review and comment. In addition, the main ventilation fans for an underground mine must be maintained according to either manufacturers' recommendations or a written periodic schedule. Upon request of an authorized representative of the Secretary of Labor, this fan maintenance schedule must be made available for review. The records help ensure compliance with the standard and may serve as a warning mechanism for possible ventilation problems before they occur. The MSHA codified the regulations at 30 CFR 57.8520 and –.8525. Federal Mine Safety and Health Act of 1977 section 103(h) authorizes 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.
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,
Mine Safety and Health Administration, Labor.
Request for public comments.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed collections of information in accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3506(c)(2)(A). This program helps to assure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments on the information collection for Application for Waiver of Surface Sanitary Facilities' Requirements (Pertaining to Coal Mines).
All comments must be received on or before January 27, 2017.
Comments concerning the information collection requirements of this notice may be sent by any of the methods listed below.
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Sheila McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at
Section 103(h) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 813(h), authorizes MSHA to collect information necessary to carry out its duty in protecting the safety and health of miners.
Title 30 CFR 71.400 through 71.402 and 75.1712–1 through 75.1712–3 require coal mine operators to provide bathing facilities, clothing change rooms, and sanitary flush toilet facilities in a location that is convenient for use of the miners. If the operator is unable to meet any or all of the requirements, he/she may apply for a waiver. Title 30 CFR 71.403, 71.404, 75.1712–4, and
Waivers for surface mines may be granted by the District Manager for a period not to exceed one year. If the waiver is granted, surface mine operators may apply for annual extensions of the approved waiver. Waivers for underground mines may be granted by the District Manager for the period of time requested by the underground mine operator as long as the circumstances that were used to justify granting the waiver remain in effect. Waivers are not transferable to a successor coal mine operator.
MSHA is soliciting comments concerning the proposed information collection related to Application for Waiver of Surface Sanitary Facilities' Requirements (Pertaining to Coal Mines). MSHA is particularly interested in comments that:
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
• Evaluate the accuracy of MSHA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Suggest methods to 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,
The information collection request will be available on
The public may also examine publicly available documents at USDOL—Mine Safety and Health Administration, 201 12th South, Suite 4E401, Arlington, VA 22202–5452. Sign in at the receptionist's desk on the 4th floor via the East elevator.
Questions about the information collection requirements may be directed to the person listed in the
This request for collection of information contains provisions for Application for Waiver of Surface Sanitary Facilities' Requirements (Pertaining to Coal Mines). MSHA has updated the data with respect to the number of respondents, responses, burden hours, and burden costs supporting this information collection request.
Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Women's Business Council.
Notice of open public meeting.
The National Women's Business Council December Public Meeting will be held on Wednesday, December 7, 2016, from 2:00 p.m. to 4:00 p.m. EST.
The meeting will be held virtually via teleconference and webinar.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), the U.S. Small Business Administration (SBA) announces the meeting of the National Women's Business Council. The National Women's Business Council conducts research on issues of importance and impact to women entrepreneurs and makes policy recommendations to the SBA, Congress, and the White House on how to improve the business climate for women.
This meeting is the 1st quarter meeting for Fiscal Year 2017. The program will include remarks from the Council Chair Carla Harris, updates on the Council's work from Council Members, and a public discussion on the Council's latest research report on supplier diversity. Time will be reserved at the end of the webinar for participants to address Council Members with questions, comments, or feedback.
The meeting is open to the public; advance notice of attendance is requested. To RSVP and confirm attendance, the general public should email
For more information, please visit the National Women's Business Council Web site at
U.S. Nuclear Regulatory Commission.
Request for resumes.
The U.S. Nuclear Regulatory Commission (NRC) seeks qualified candidates for the Advisory Committee on Reactor Safeguards (ACRS). Submit resumes to Jamila Perry and Alesha Bellinger, ACRS, Mail Stop T2E26, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, or email
The ACRS is a part-time advisory group, which is statutorily mandated by the Atomic Energy Act of 1954, as amended. ACRS provides independent expert advice on matters related to the safety of existing and proposed nuclear power plants and on the adequacy of proposed reactor safety standards. Of primary importance
See the NRC Web site at
Consistent with the requirements of the Federal Advisory Committee Act, the Commission seeks candidates with diverse backgrounds, so that the membership on the Committee is fairly balanced in terms of the points of view represented and functions to be performed by the Committee. Candidates will undergo a thorough security background check to obtain the security clearance that is mandatory for all ACRS members. The security background check will involve the completion and submission of paperwork to NRC. Candidates for ACRS appointments may be involved in or have financial interests related to NRC-regulated aspects of the nuclear industry. However, because conflict-of-interest considerations may restrict the participation of a candidate in ACRS activities, the degree and nature of any such restriction on an individual's activities as a member will be considered in the selection process.
Each qualified candidate's financial interests must be reconciled with applicable Federal and NRC rules and regulations prior to final appointment. This might require divestiture of securities or discontinuance of certain contracts or grants. Information regarding these restrictions will be provided upon request. As a part of the Stop Trading on Congressional Knowledge Act of 2012, which bans insider trading by members of Congress, their staff, and other high-level federal employees, candidates for appointments will be required to disclose additional financial transactions.
A resume describing the educational and professional background of the candidate, including any special accomplishments, publications, and professional references should be provided. Candidates should provide their current address, telephone number, and email address. All candidates will receive careful consideration. Appointment will be made without regard to factors such as race, color, religion, national origin, sex, age, or disabilities. Candidates must be citizens of the United States and be able to devote approximately 100 days per year to Committee business, but may not be compensated for more than 130 calendar days. Resumes will be accepted until December 28, 2016.
For the Nuclear Regulatory Commission.
Pursuant to delegation by the Commission,
This proceeding involves a challenge to, inter alia, an amendment request that would transfer the beneficial interest in the Power Authority of the State of New York (PASNY) Master Decommissioning Trust, including all rights and obligations thereunder, held by PASNY for Indian Point Nuclear Generating Unit No. 3 in Westchester County, New York, and the James A. Fitzpatrick Nuclear Power Plant in Oswego County, New York, to Entergy Nuclear Operations, Inc. (ENO). On November 1, 2016, Susan H. Shapiro filed a hearing request (dated September 15, 2016) on behalf of the Indian Point Safe Energy Coalition, et al., that relates to a September 27, 2016
The Board is comprised of the following Administrative Judges:
All correspondence, documents, and other materials shall be filed in accordance with the NRC E-Filing rule.
Nuclear Regulatory Commission.
License renewal application; notice of opportunity to request a hearing and petition for leave to intervene; order imposing procedures.
The U.S. Nuclear Regulatory Commission (NRC) is considering an application for the renewal of Facility Operating License No. R–129, which authorizes the University of Texas at Austin (the licensee) to operate the Nuclear Engineering Teaching Laboratory (NETL) Training, Research, Isotope Production, General Atomics (TRIGA) Research Reactor at a maximum steady-state thermal power of 1.1 megawatts (MW). The NETL research reactor is a TRIGA-fueled research reactor located at the J.J. Pickle Research Campus, in Austin, Texas. If approved, the renewed license would authorize the licensee to operate the NETL TRIGA Research Reactor up to a steady-state thermal power of 1.1 MW for an additional 20 years from the date of issuance of the renewed license. Because the license renewal application contains sensitive unclassified non-safeguards information (SUNSI), an order imposes procedures to obtain access to SUNSI for contention preparation.
A request for a hearing or petition for leave to intervene must be filed by January 27, 2017. Any potential party as defined in § 2.4 of title 10 of the
Please refer to Docket ID NRC–2016–0241 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods.
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• 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.
Michael Balazik, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–2856; email:
The NRC is considering an application for the renewal of Facility Operating License No. R–129, which authorizes the licensee to operate the NETL TRIGA Research Reactor at a maximum steady-state thermal power of 1.1 MW. The renewed license would authorize the licensee to operate the NETL TRIGA Research Reactor up to a steady-state thermal power of 1.1 MW for an additional 20 years from the date of issuance of the renewed license.
By letter dated December 11, 2011, and as supplemented by various letters referenced in Section IV, “Availability of Documents,” of this notice, the NRC received an application from the licensee filed pursuant to 10 CFR 50.51(a) to renew Facility Operating License No. R–129 for the NETL research reactor. The application contains SUNSI.
Based on its initial review of the application, the NRC staff determined that the licensee submitted sufficient information in accordance with 10 CFR 50.33 and 50.34 and that the application is acceptable for docketing. The current docket, Docket No. 50–602, for Facility Operating License No. R–129 will be retained. The docketing of the renewal application does not preclude requests for additional information as the review proceeds, nor does it predict whether the Commission will grant or deny the licensee's application. Prior to a decision to renew the license, the Commission will make findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations.
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and a petition to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309(d), a petition shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
The petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and request permission to cross-examine witnesses, consistent with the NRC's regulations, policies, and procedures.
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii).
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by January 27, 2017. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who does not wish, or is not qualified, to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
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 (hereinafter “petition”), and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a petition. Submissions should be in Portable Document Format (PDF). Additional guidance on PDF submissions is available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
The Commission will issue a notice or order granting or denying a hearing request or intervention petition, designating the issues for any hearing that will be held and designating the Presiding Officer. A notice granting a hearing will be published in the
Documents related to this action, including the license renewal application and other supporting documentation, are available to interested persons as indicated.
Portions of the license renewal application and its supporting documents contain SUNSI. These portions will not be available to the public. Any person requesting access to SUNSI must follow the procedures described in the Order below.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing SUNSI.
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555–0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly-available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the dates the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline. This provision does not extend the time for filing a request for a hearing and petition to intervene, which must comply with the requirements of 10 CFR 2.309.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and need for access, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requestor may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) officer if that officer has been designated to rule on information access issues.
H. Review of Grants of Access. A party other than the requestor may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have proposed contentions meeting the specificity and basis requirements in 10 CFR part 2. Attachment 1 to the Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
FINRA is proposing to (i) adopt new Supplementary Material to Rule 5210 to address two specific types of disruptive quoting and trading activity, as further described below and (ii) amend the FINRA Rule 9800 Series to permit FINRA to initiate an expedited proceeding to take prompt action for violations of the new Supplementary Material.
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 IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA is proposing two rule changes
As a national securities association registered pursuant to Section 15A of the Act, FINRA is required to be organized and to have the capacity to enforce compliance by its members and persons associated with its members with, among other things, the Act, the rules and regulations thereunder, and FINRA Rules.
The process described above, from the initial identification of potentially disruptive, manipulative, or improper quoting and trading activity to a final resolution of the matter, can often take up to several years.
In recent years, several cases have been brought and resolved by FINRA and other self-regulatory organizations (“SROs”) that involved allegations of wide-spread market manipulation, much of which was ultimately being conducted by foreign persons and entities over which neither FINRA nor other SROs had direct jurisdiction. In each case, the conduct involved a pattern of disruptive quoting and trading activity indicative of manipulative layering
The proposed rule change therefore adds Supplementary Material .03 to FINRA Rule 5210 (Publication of Transactions and Quotations) to explicitly prohibit members from engaging in or facilitating the disruptive quoting and trading activities set forth in the rule.
The proposed rule change defines two types of prohibited activities and states that, for purposes of the rule, disruptive quoting and trading activity would include a “frequent pattern or practice” of these activities. As is the case with BATS Rule 12.15, the prohibited activities do not include an express intent element.
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Similar to Interpretation and Policy .02 to BATS Rule 12.15, Supplementary Material .03 also makes clear that the order of the events indicating the pattern does not change the applicability of the rule and that these types of disruptive quoting and trading activity can occur regardless of the venue(s) on which the activity is conducted.
In addition to the new Supplementary Material describing the prohibited trading and quoting activity, the proposed rule change provides FINRA with authority to issue, on an expedited basis, a permanent cease and desist order (“PCDO”) under FINRA's existing TCDO rules for violations of Supplementary Material .03 to FINRA Rule 5210.
Under the current TCDO rules, FINRA can initiate a TCDO proceeding under the Rule 9800 Series when respondents are alleged to have violated certain specific rules,
The proposed process for issuing a PCDO for violations of Supplementary Material .03 to Rule 5210 closely follows the existing TCDO procedures in the Rule 9800 Series. Specifically, like a TCDO, under the proposed amendments to FINRA's procedural rules, the following provisions would apply to a PCDO proceeding for alleged violations of the new Supplementary Material .03 to Rule 5210:
• Only FINRA's Chief Executive Officer (or such other senior officer as the CEO may designate) may initiate a PCDO proceeding under the rule;
• The PCDO proceeding is initiated by service of a notice, effective upon service, stating whether FINRA is requesting that the respondent take action or refrain from certain action, and the notice must be accompanied by a declaration of facts, a memorandum of points and authorities, and a proposed order containing the required elements of an order;
• A hearing is conducted by a Hearing Panel,
• The Hearing Panel must issue a written decision no later than ten days after receipt of the hearing transcript;
• The PCDO must set forth the alleged violation and the significant market disruption or investor harm that is likely to result without the issuance of an order and describe in reasonable detail the act or acts the respondent is to take or refrain from taking;
• The PCDO is effective upon service and remains effective and enforceable unless modified, set aside, limited, or revoked pursuant to the rule;
• Any time after the respondent is served with a PCDO, a party to the proceeding may apply to the Hearing Panel to have the order modified, set aside, limited, or suspended, and the Hearing Panel must generally respond to any such request in writing within ten days after receipt of the request;
• FINRA can initiate an expedited proceeding pursuant to FINRA Rules 9556 and 9559 for violations of a PCDO;
• Sanctions issued under the rule constitute final and immediately effective disciplinary sanctions thus allowing the respondent to appeal the PCDO to the SEC; however, filing an application for review with the SEC does not stay the effectiveness of the PCDO unless the SEC otherwise orders;
• The issuance of the PCDO does not alter FINRA's ability to further investigate the matter or later sanction the member pursuant to its standard disciplinary process for violations of
The proposed rule change does include two notable differences between the proposed process for a PCDO for violation of Supplementary Material .03 to Rule 5210 and FINRA's existing TCDO process. First, under the proposed rule change, a PCDO would be imposed if the Hearing Panel finds: (1) By a preponderance of the evidence that the alleged violation specified in the notice occurred and (2) that the conduct or continuation thereof is likely to result in significant market disruption or significant harm to investors. The standard of proof for TCDOs is a likelihood of success on the merits, which is a lower standard than the preponderance standard.
Unlike BATS Rule 12.15, under which the respondent is suspended unless and until it takes or refrains from taking the act or acts described in the suspension order, the proposed rule change, like FINRA's current TCDO process, would require a subsequent expedited proceeding for violation of the PCDO before a respondent could be suspended from FINRA membership. This approach is similar to FINRA's existing TCDO authority, and FINRA believes it is preferable given the broader impact a FINRA suspension would have on a firm's operations versus a suspension by an individual exchange.
As noted above, FINRA is proposing to adopt rules substantially similar to the BATS rules recently approved by the SEC combined with FINRA's existing TCDO rules. Similar to the concerns expressed by BATS in its rule filing, FINRA is concerned that it has no expedited means by which it can prevent disruptive quoting and trading activity from continuing to occur after it has been identified without resorting to a formal disciplinary proceeding which can often take years to complete. Moreover, during the pendency of a disciplinary proceeding, the conduct often continues to take place. By contrast, an expedited proceeding like that recently approved for BATS, and similar to the FINRA TCDO provisions already in place to prevent ongoing fraud or conversion of customer funds, can preclude the activity in a significantly more expeditious manner while still ensuring that respondents have adequate procedural protections in place.
The proposed rule change would enhance investor protection and market integrity by allowing FINRA to issue PCDOs on an expedited basis to stop certain disruptive and manipulative activity and prevent ongoing fraud in an expeditious manner. FINRA anticipates that the issuance of PCDOs under the proposed rule change would be limited to those extreme circumstances where an expedited proceeding is the only means by which FINRA can stop ongoing violative conduct.
FINRA has filed the proposed rule change for immediate effectiveness. The implementation date will be 30 days after the date of the filing.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
Pursuant to the proposal, FINRA will have a mechanism to promptly initiate expedited proceedings in the event it believes that it has sufficient proof that a violation of Supplementary Material .03 to Rule 5210 has occurred and is ongoing. FINRA believes the proposed rule change would enhance investor protection and market integrity by allowing FINRA to issue PCDOs to stop the defined types of disruptive and manipulative activity and prevent ongoing fraud in an expeditious manner.
FINRA also believes that the proposal is consistent with the public interest, the protection of investors, or otherwise in furtherance of the purposes of the Act because the proposal helps to strengthen FINRA's ability to carry out its oversight and enforcement responsibilities as a self-regulatory organization in cases where awaiting the conclusion of a full disciplinary proceeding is unsuitable in view of the potential harm to other members and their customers if conduct is allowed to continue. As explained above, FINRA notes that, like BATS Rule 12.15, it has defined the prohibited disruptive quoting and trading activity by modifying the traditional definitions of layering and spoofing to eliminate an express intent element. FINRA believes this modification is necessary for the protection of investors so that ongoing disruptive quoting and trading activity does not occur while a more formal disciplinary proceeding is conducted, which can take several years to complete. Through this proposal, FINRA does not intend to modify the definitions of spoofing and layering that have generally been used by FINRA and other regulators in connection with actions like those cited above.
FINRA further believes that the proposal is consistent with Section 15A(b)(8) of the Act, which requires that the rules of a national securities association “provide a fair procedure for the disciplining of members and persons associated with members.”
FINRA believes that following the existing procedures under its TCDO rules to issue a PCDO under the proposed rule change provides a fair procedure for disciplining members and persons associated with members. FINRA recognizes that the proposed rule change lowers the threshold necessary to stop activity consistent with the patterns described above and potentially suspend, or otherwise sanction, member firms engaging in such activity.
Finally, FINRA also believes the proposal is consistent with Section 15A(h)(1) 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 has undertaken an economic impact assessment, as set forth below, to analyze the regulatory need for the proposed rulemaking and its potential economic impacts, including the anticipated costs and benefits associated with the proposed rule change.
As discussed above, FINRA has developed a comprehensive surveillance program that allows it to identify potentially disruptive quoting and trading activity almost in real-time. However, under the current rules, it can often take FINRA up to several years to stop potentially disruptive activity. FINRA believes that there are certain clear cases of disruptive activity, or cases where the potential harm to investors is so large, in which FINRA should be able to stop the disruptive behavior and the associated ongoing investor harm from continuing in an expeditious manner. The proposed rule change defines and prohibits specific types of disruptive quoting and trading activity and gives FINRA the authority to initiate an expedited proceeding and issue a PCDO to take prompt action against these potentially harmful activities.
The proposed rule change would enhance investor protection and market integrity by allowing FINRA to issue cease and desist orders to stop certain disruptive and manipulative activity and prevent ongoing fraud or conversion of customer funds in an expeditious manner. FINRA anticipates that the issuance of cease and desist orders under the proposed rule change would be limited to those extreme circumstances where an expedited proceeding is the only means by which FINRA can stop ongoing violative conduct. While the expedited proceedings would be limited to extreme cases with clear violations, FINRA believes that the proposed rule would allow FINRA to initiate and resolve the proceedings sooner, in which case the potential benefits can be substantial in just a single case where investors are being harmed.
FINRA does not believe that the proposed rule change would impose material costs on member firms as the underlying conduct is already prohibited by existing rules. Further, FINRA anticipates that any costs would likely be minimal relative to the substantial investor protection benefits that may arise from just a single case where investors are being harmed significantly.
FINRA recognizes that the proposed rule change lowers the threshold necessary to stop activity consistent with the patterns described above and suspend member firms engaging in such activity.
Similarly, FINRA also considered the possibility that in response to the proposed rule, firms may avoid legitimate activities that may be appear to fall within the trading scenarios discussed above to avoid regulatory and enforcement related costs. If such a response is large, it might manifest itself in the provision of liquidity in the relevant market. FINRA believes the controls discussed above, particularly those associated with providing opportunities to the firms to explain their trading strategy prior to any regulatory action, would largely mitigate this risk.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may
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.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission Equity Market Structure Advisory Committee will hold a public meeting on Tuesday, November 29, 2016, in the Multipurpose Room, LL–006 at the Commission's headquarters, 100 F Street NE., Washington, DC.
The meeting will begin at 9:30 a.m. (EST) and will be open to the public. Seating will be on a first-come, first-served basis. Doors will be open at 9:00 a.m. Visitors will be subject to security checks. The meeting will be webcast on the Commission's Web site at
On November 8, 2016, the Commission published notice of the Committee meeting (Release No. 34–79257), indicating that the meeting is open to the public and inviting the public to submit written comments to the Committee. This Sunshine Act notice is being issued because a majority of the Commission may attend the meeting.
The agenda for the meeting will focus on recommendations and updates from the four subcommittees.
For further information, please contact Brent J. Fields from the Office of the Secretary at (202) 551–5400.
On August 15, 2016, the New York Stock Exchange LLC (“NYSE”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
Pursuant to Commission Rule of Practice 431,
Accordingly, it is ordered, pursuant to Rule of Practice 431, that by December 7, 2016, any party or other person may file any additional statement.
It is further ordered that the November 18, 2016 order approving the proposed rule change (SR–NYSE–2016–55) shall remain stayed pending further order of the Commission.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend the Fee Schedule on the BOX Market LLC (“BOX”) options facility. Changes to the Fee Schedule pursuant to this proposal will be effective November 11, 2016. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet 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 the Fee Schedule for trading on BOX. Specifically, the Exchange proposes to revise certain qualification thresholds in Sections I.B.1 of the BOX Fee Schedule, Primary Improvement Order and I.B.2 of the BOX Fee Schedule, the BOX Volume Rebate (“BVR”). Changes to the Fee Schedule pursuant to this proposal will be effective November 11, 2016.
Under the tiered fee schedule for Primary Improvement Orders, the Exchange assesses a per contract execution fee to all Primary Improvement Order executions where the corresponding PIP or COPIP Order is from the account of a Public Customer. Percentage thresholds are calculated on a monthly basis by totaling the Initiating Participant's Primary Improvement Order volume submitted to BOX, relative to the total national Customer volume in multiply-listed options classes. The Exchange proposes to adjust the percentage thresholds in Tiers 4 and 5. Specifically, the Exchange proposes to change Tier 4 from “0.500% to 0.949%” to “0.500% to 0.799%” and Tier 5 from “0.950% and Above” to “0.800% and Above.” The Exchange notes that it is not proposing any changes to the fees within the Primary Improvement Order fee structure and the quantity submitted will continue to be calculated on a monthly basis by totaling the Initiating Participant's Primary Improvement Order volume submitted to BOX, relative to the total national Customer volume in multiply-listed options classes.
Next, the Exchange proposes to adjust certain percentage thresholds within the BVR. Under the BVR, the Exchange offers a tiered per contract rebate for all Public Customer PIP Orders and COPIP Orders of 100 and under contracts that do not trade solely with their contra order. Percentage thresholds are calculated on a monthly basis by totaling the Participant's PIP and COPIP volume submitted to BOX, relative to the total national Customer volume in multiply-listed options classes. The Exchange proposes to adjust the percentage thresholds in Tiers 3 and 4. Specifically, the Exchange proposes to change Tier 3 from “0.340% to 0.949%” to “0.340% to 0.799%” and Tier 4 from “0.950% and Above” to “0.800% and Above.” The Exchange notes that is it not proposing any changes to the fees within the BVR. The quantity submitted will continue to be calculated on a monthly basis by totaling the Participant's PIP and COPIP volume submitted to BOX, relative to the total national Customer volume in multiply-listed options classes.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act, in general, and Section 6(b)(4) and 6(b)(5)of the Act,
BOX believes it is reasonable, equitable and not unfairly discriminatory to adjust the monthly Percentage Thresholds of National Customer Volume in Multiply-Listed Options Classes. The volume thresholds with their tiered fees and rebates are meant to incentivize Participants to direct order flow to the Exchange to obtain the benefit of the lower fee or higher rebate, which in turn benefits all market participants by increasing liquidity on the Exchange.
The Exchange believes the proposed amendments to the Primary
The Exchange also believes the proposed amendments to the BVR in Section I.B.2 of the BOX Fee Schedule are reasonable, equitable and not unfairly discriminatory. The BVR was adopted to attract Public Customer order flow to the Exchange by offering these Participants incentives to submit their Public Customer PIP and COPIP Orders to the Exchange and the Exchange believes it is appropriate to now amend the BVR. The Exchange believes it is equitable and not unfairly discriminatory to amend the BVR, as all Participants have the ability to qualify for a rebate, and rebates are provided equally to qualifying Participants. Other exchanges employ similar incentive programs;
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 is simply proposing to amend certain percentage thresholds for Auction Transaction fees and rebates in the BOX Fee Schedule. The Exchange believes that the volume based rebates and fees increase intermarket and intramarket competition by incenting Participants to direct their order flow to the exchange, which benefits all participants by providing more trading opportunities and improves competition on the Exchange.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend the rule change if it appears to the Commission that the action is necessary or appropriate in the public interest, for the protection of investors, or would otherwise further the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
By letter dated November 21, 2016 (the “Letter”), Global OTC requested that the Securities and Exchange Commission (the “Commission”) grant a limited exemption from rule 15c2–11 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in connection with the publication or submission for publication of quotations for a covered over-the-counter (“OTC”) equity security (an “OTC Security” or, plural, “OTC Securities”) in the interdealer quotation system (“IDQS”) operated by Global OTC (“Global OTC IDQS”). Specifically, Global OTC seeks an exemption to permit broker-dealers, consistent with the approach described below, to publish or submit for
Rule 15c2–11, with certain exceptions, requires that a broker-dealer that publishes or submits for publication quotations for OTC Securities in a quotation medium gather, review, and preserve certain specified information and have a reasonable basis under the circumstances for believing that the information is accurate in all material respects and was obtained from reliable sources.
The Letter represents that the concerns the Commission raised in adopting rule 15c2–11 would not be implicated if exemptive relief, subject to the conditions below, were granted to broker-dealers publishing or submitting for publication quotations in Global OTC IDQS. Specifically, Global OTC describes in the Letter an approach based on transferability of piggyback eligibility from one IDQS to another IDQS to allow a broker-dealer to avail itself of the piggyback exception when quoting in Global OTC IDQS any OTC Security that (1) qualifies for the piggyback exception in another IDQS, or (2) is initially quoted in Global OTC IDQS based on the relief provided in this Order and then establishes and maintains piggyback eligibility under rule 15c2–11(f)(3)(i) based on quotations (exclusive of any identified customer interests) in Global OTC IDQS. Global OTC represents that this approach would assist investors in OTC Securities by increasing competition, promoting fair and orderly markets, and providing redundancy in the event of systems failures by having an additional IDQS in which to continuously quote OTC Securities that already are eligible for the piggyback exception in another IDQS.
Based on the facts and representations made in the Letter, we find that it is appropriate in the public interest, and is consistent with the protection of investors, to grant, and hereby grant, broker-dealers a limited exemption from rule 15c2–11 to permit a broker-dealer to publish or submit for publication quotations in Global OTC IDQS, or in any other IDQS,
The conditions of this Order are designed to extend the rule 15c2–11(f)(3)(i) exception to broker-dealers that are publishing or submitting for publication quotations for already-quoted OTC Securities that are currently piggyback eligible under rule 15c2–11(f)(3) in an IDQS other than an IDQS in which piggyback eligibility has been established, while at the same time limiting the scope of relief by excluding from eligibility certain OTC Securities. The first condition limits the applicability of relief to an IDQS that meets the requirements to be an IDQS as defined in the rule
This Order does not expand the number of OTC Securities that are already quoted pursuant to the exception from the requirements of rule 15c2–11 contained in rule 15c2–11(f)(3); rather, this Order extends the rule 15c2–11(f)(3)(i) exception to quotations for these already-quoted OTC Securities published by broker-dealers in an IDQS other than the IDQS in which piggyback eligibility is established if, and only if, the requirements of Rule 15c2–11(f)(3)(i) are otherwise satisfied and the conditions of this Order are met. As such, we do not believe that the transfer of piggyback eligibility for these already-quoted OTC Securities under rule 15c2–11(f)(3), from one IDQS to another IDQS, as conditioned in this Order, constitutes a fraudulent, manipulative, or deceptive practice comprehended within the purpose of rule 15c2–11.
It is hereby ordered, pursuant to Exchange Act rule 15c2–11(h), that broker-dealers are exempt from the requirements of rule 15c2–11 solely to permit broker-dealers to publish or submit for publication quotations in Global OTC IDQS or in any similarly situated IDQS for an OTC Security that is piggyback eligible under rule 15c2–11(f)(3) in another IDQS, subject to the following conditions:
1. The IDQS meets the requirements to be an IDQS as defined in the rule
2. The IDQS permits a broker-dealer to commence publishing or submitting for publication quotations in such IDQS for the OTC Security, in reliance on this Order, only if (a) the OTC Security is piggyback eligible under rule 15c2–11(f)(3) in another IDQS;
3. Once a broker-dealer commences publishing or submitting for publication quotations in the IDQS for the OTC Security in accordance with condition 2, such IDQS permits broker-dealers to continue publishing or submitting for publication quotations in such IDQS for the OTC Security only if the OTC Security continues to be piggyback eligible under rule 15c2–11(f)(3) in another IDQS
4. The IDQS establishes, maintains, and enforces policies and procedures reasonably designed to ensure compliance with this Order.
5. The IDQS maintains books and records sufficient to demonstrate that such IDQS is complying with the terms of this Order, and such IDQS promptly provides such records to Commission staff upon request.
This Order is subject to modification or revocation at any time the Commission determines that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act. In addition, persons relying on this Order are directed to the anti-fraud and anti-manipulation provisions of the federal securities laws, particularly section 10(b) of the Exchange Act and rule 10b-5 thereunder. Responsibility for compliance with these and any other applicable provisions of the federal securities laws must rest with the persons relying on this Order. This Order should not be considered a view with respect to any other question that the publication or submission for publication of quotations in reliance on this Order may raise, including, but not limited to, the applicability of other federal or state laws to such activity.
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 NYSE Arca Rule 7.1 (Trading Sessions) to permit the Chief Executive Officer of the Exchange or his or her designee to take certain actions in connection with the trading of securities on the Exchange; (b) NYSE Arca Equities Rule 7.1 (Hours of Business) to permit the President of NYSE Arca Equities or his or her designee to take certain actions in connection with the trading of securities on the NYSE Arca Equities marketplace; and (c) NYSE Arca Rule 7.2 (Holidays) and NYSE Arca Equities Rule 7.2 (Holidays) to remove a reference to presidential election days. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend (a) NYSE Arca Rule 7.1 (Trading Sessions) to permit the Chief Executive Officer (“CEO”) of the Exchange or his or her designee to take certain actions in connection with the trading of securities on the Exchange; (b) NYSE Arca Equities Rule 7.1 (Hours of Business) to permit the President of NYSE Arca Equities or his or her designee to take certain actions in connection with the trading of securities on the NYSE Arca Equities marketplace; and (c) NYSE Arca Rule 7.2 (Holidays) and NYSE Arca Equities Rule 7.2 (Holidays) to remove a reference to presidential election days.
The Exchange believes the proposed changes to NYSE Arca Rule 7.1 and NYSE Arca Equities Rule 7.1 would make such rules more reflective of the organizational structure of the Exchange and NYSE Arca Equities. At the same time, the proposed rule changes would ensure that the Boards of Directors of NYSE Arca and of NYSE Arca Equities (each, a “Board”) continue to have the authority to take action they deem necessary or appropriate in particular situations.
The first paragraph of NYSE Arca Rule 7.1 provides that, unless otherwise ruled by the Board of the Exchange or its designee, the Exchange shall be open for the transaction of business daily except on Saturdays and Sundays, and that the hours at which trading sessions shall open and close shall be established by the Board or its designee. Commentary .01 to Rule 7.1 notes that, except under unusual conditions as may be determined by the Board or its designee, hours during which transactions in options on individual securities may be made on the Exchange shall correspond to the normal hours for business set forth in the rules of the primary exchange listing the securities underlying the options.
The Exchange proposes to amend the first paragraph of NYSE Arca Rule 7.1 to provide that, except as may be
The Exchange proposes to add new paragraphs (c), (d), and (e) to NYSE Arca Rule 7.1. These proposed changes are based on NYSE Rule 51(b) and (c) and NYSE MKT Rule 51(b)–(d)—Equities. New paragraph (c) would provide that, except as may be otherwise determined by the NYSE Arca Board, the CEO of the Exchange or his or her designee may halt or suspend trading in some or all securities traded on the Exchange; extend the hours for the transaction of business on the Exchange; close some or all Exchange facilities; determine the duration of any such halt, suspension or closing undertaken; or determine to trade securities on the Exchange's disaster recovery facility.
New paragraph (d) would provide that the CEO or his or her designee shall take any of the actions described in new paragraph (c) only when he or she deems such action to be necessary or appropriate for the maintenance of a fair and orderly market, or the protection of investors or otherwise in the public interest, due to extraordinary circumstances such as:
• Actual or threatened physical danger, severe climatic conditions, civil unrest, terrorism, acts of war, or loss or interruption of facilities utilized by the Exchange,
• a request by a governmental agency or official, or
• a period of mourning or recognition for a person or event.
New paragraph (e) would require that the CEO or his or her designee notify the NYSE Arca Board of actions taken pursuant to the rule, except for a period of mourning or recognition for a person or event, as soon thereafter as is feasible.
The Exchange proposes that the commentary to NYSE Arca Rule 7.1 be amended by deleting “under unusual conditions” and a reference to the Board's designee, and by adding a reference to the authority of the CEO or his or her designee under new subparagraph (c).
Finally, the Exchange proposes to change the name of NYSE Arca Rule 7.1 from “Trading Sessions” to “Hours of Business,” which would make it consistent with NYSE Arca Equities Rule 7.1.
The first paragraph of NYSE Arca Equities Rule 7.1 provides that, unless otherwise ruled by the NYSE Arca Equities Board, the Corporation shall be open for the transaction of business daily except on Saturdays and Sundays, and the hours at which trading sessions shall open and close shall be established by the NYSE Arca Equities Board. NYSE Arca Equities Rule 7.1 does not provide for a Board designee.
The Exchange proposes to amend the first paragraph of NYSE Arca Equities Rule 7.1 to provide that, except as may be otherwise determined by the NYSE Arca Equities Board as to particular days, the Corporation shall be open for the transaction of business on every business day. The Exchange proposes to remove the current exclusion of Saturdays and Sundays because Saturdays and Sundays are not business days and therefore no exclusion is needed. Finally, the amended paragraph would provide that the hours at which trading sessions shall open and close may be specified by Exchange rule, as well as by the Board. The two paragraphs of the present rule would become paragraphs (a) and (b). These proposed rule changes are based in part on NYSE Rule 51(a) and NYSE MKT Rule 51(a)—Equities.
The Exchange proposes to add a new subparagraph (c) to provide that, except as may be otherwise determined by the NYSE Arca Equities Board, the President of the Corporation or his or her designee may halt or suspend trading in some or all securities traded on the Corporation; extend the hours for the transaction of business on the Corporation; close some or all Corporation facilities; determine the duration of any such halt, suspension or closing; or determine to trade securities on the Exchange's disaster recovery facility. These proposed changes are based on NYSE Rule 51(b) and NYSE MKT Rule 51(b)—Equities.
New subparagraphs (d) and (e) would subject the President or his or her designee to the same limitations and reporting requirements as in proposed NYSE Arca Rule 7.1(d) and (e), which are based on NYSE Rule 51(b) and (c) and NYSE MKT Rule 51(b)–(d)—Equities.
Currently, NYSE Arca Rule 7.1 and NYSE Arca Equities Rule 7.1 require Board action if extraordinary circumstances arise. However, the Boards may not be able to convene and act quickly, thereby delaying any potential response. Pursuant to their respective bylaws, at least half of the directors on the NYSE Arca and NYSE Arca Equities Boards are Public Directors.
Current NYSE Arca Rule 7.1 partially addresses this concern by allowing the NYSE Arca Board to name designees. However, use of a designee requires that the Board make the delegation before any unusual conditions arise. Further, NYSE Arca Rule 7.1 does not set any limits on when designees may act under the rule, unlike proposed paragraphs (c) and (d). Accordingly, the Exchange proposes to delete the references to a Board designee in the first paragraph of
The Exchange believes designating by rule that the CEO of the Exchange, President of NYSE Arca Equities, or their designees may take certain actions in extraordinary circumstances would make NYSE Arca Rule 7.1 and NYSE Arca Equities Rule 7.1 more reflective of the organizational structure of the Exchange and NYSE Arca Equities. As described above, the CEO, President, or their designees would be able to take such action only when they deem it to be necessary or appropriate for the maintenance of a fair and orderly market, or the protection of investors or otherwise in the public interest, due to extraordinary circumstances.
The proposed amendments would ensure that the NYSE Arca and NYSE Arca Equities Boards continue to have the authority to take action they deem necessary or appropriate in particular situations. In addition, as proposed, the amended rules would ensure that the Boards would remain informed, by requiring the CEO or President to notify the relevant Board of actions taken pursuant to the authority granted under the rule, with the exception of a period of mourning or recognition for a person or event, as soon thereafter as is feasible.
The proposed changes would have the additional benefit of bringing NYSE Arca Rule 7.1 and NYSE Arca Equities Rule 7.1 into greater conformity with the rules of the NYSE and NYSE MKT.
The Exchange notes that the trading rules of Bats BZX Exchange, Inc., Bats BYX Exchange, Inc., Bats EDGX Exchange, Inc., and Bats EDGA Exchange, Inc. also provide that the CEO of the relevant exchange may halt, suspend trading in any and all securities traded on the exchange, close some or all exchange facilities, and determine the duration of any such halt, suspension, or closing, when he deems such action necessary for the maintenance of fair and orderly markets, the protection of investors, or otherwise in the public interest. The lists of special circumstances set out in such trading rules are substantially similar to those in NYSE Rule 51 and NYSE MKT Rule 51—Equities.
The last sentence in the first paragraph of NYSE Arca Rule 7.2 provides that the Board will determine whether to open the Exchange on presidential election days. Similarly, the last sentence in the first paragraph of NYSE Arca Equities Rule 7.2 provides that the Board will determine whether to open NYSE Arca Equities on presidential election days. The Exchange proposes to delete both sentences.
The existing sentences are worded as if the Exchange and NYSE Arca Equities will be closed on presidential election days unless the Board determines otherwise. The Exchange believes the wording is potentially confusing to investors, because the Exchange and NYSE Arca Equities are generally open on presidential election days. Accordingly, the Exchange proposes to delete the language. The proposed edits will not affect the Board's ability to close the Exchange or NYSE Arca Equities for a presidential election day, as it would continue to have authority to do so under Rule 7.1.
The Exchange believes that the proposed rule changes are consistent with Section 6(b) of the Act,
The Exchange believes that the proposed changes to NYSE Arca Rule 7.1 and NYSE Arca Equities Rule 7.1 would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest, and enable the Exchange to be so organized as to have the capacity to be able to carry out the purposes of the Act, because they would make NYSE Arca Rule 7.1 and NYSE Arca Equities Rule 7.1 more reflective of the organizational structure of the Exchange and NYSE Arca Equities. In this manner, they would strengthen the ability of the Exchange and NYSE Arca Equities to respond appropriately and in a timely fashion to extraordinary circumstances, even if the relevant Board is unable to convene. However, unlike present NYSE Arca Rule 7.1, which puts no limits on when the Board's designees may act, the proposed amended rules would ensure that the CEO, President, or their designees, as applicable, would be able to take action only when he or she deems such action to be necessary or appropriate for the maintenance of a fair and orderly market, or the protection of investors or otherwise in the public interest, due to extraordinary circumstances.
The Exchange believes that the proposed changes to NYSE Arca Rule 7.2 and NYSE Arca Equities Rule 7.2 would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest, and enable the Exchange to be so organized as to have the capacity to be able to carry out the purposes of the Act, because they would remove sentences that are worded as if the Exchange and NYSE Arca Equities will be closed on presidential election days unless the Board determines otherwise. The Exchange believes the wording is potentially confusing to investors, because the Exchange and NYSE Arca Equities are generally open on presidential election days. Accordingly, the Exchange proposes to delete the language.
In addition, the Exchange believes that the proposed rule changes to [sic] would remove impediments to, and perfect the mechanisms of, a free and open market and a national market
For these reasons, the Exchange believes that the proposal is consistent with the Act.
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 Exchange Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with the administration and functioning of the Exchange and its subsidiary NYSE Arca Equities.
No written comments were solicited or received with respect to the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b–4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 September 22, 2016, The Nasdaq Stock Market LLC (“Nasdaq” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposed to amend Rule IM–5900–7 to adjust the timing of when complimentary services are provided to listed acquisition companies under that rule. Under the current rules, except as described below, Nasdaq generally does not permit the initial or continued listing of a company that has no specific business plan or that has indicated that its business plan is to engage in a merger or acquisition with an unidentified company or companies. However, in the case of a company whose business plan is to complete an initial public offering (“IPO”) and engage in a merger or acquisition with one or more unidentified companies within a specific period of time (an “Acquisition Company”), Nasdaq will permit the listing on the Nasdaq Global Market or Capital Market if the company meets all applicable initial listing requirements, as well as the additional conditions described in Nasdaq Rule IM–5101–2 (Listing of Companies Whose Business Plan is to Complete One or More Acquisitions).
As set forth in Rule IM–5900–7, the Exchange offers certain complimentary services to companies newly listing on the Nasdaq Global and Global Select Markets in connection with an IPO, upon emerging from bankruptcy, or in connection with a spin-off or carve-out from another company (“Eligible New Listings”) and to companies that switch their listing from the New York Stock Exchange (“NYSE”) to the Global or Global Select Markets (“Eligible Switches”).
Currently, pursuant to Rule IM–5900–7, the services offered include a whistleblower hotline (with a retail value of approximately $4,000 annually), an investor relations Web site (with a retail value of approximately $16,000 annually), disclosure services for earnings or other press releases (with a retail value ranging from $15,000 to $20,000 annually, depending on the company's market capitalization and whether it is an Eligible New Listing or an Eligible Switch), audio webcasting (with a retail value of approximately $6,500 annually), market analytic tools (with a retail value ranging from approximately $29,000 to $51,000 annually, depending on the number of users granted access), and may include market advisory tools such as stock surveillance (with a retail value of approximately $51,000 annually), global targeting (with a retail value of approximately $40,000 annually), monthly ownership analytics and event driven targeting (with a retail value of approximately $46,000 annually), and an annual perception study (with a retail value of approximately $35,000 annually).
The Exchange has now proposed to amend Rule IM–5900–7 to provide that an Acquisition Company will no longer be deemed to be an Eligible New Listing or an Eligible Switch at the time of its initial listing, but instead will be deemed to be an Eligible New Listing at such time as it has completed a Business Combination and lists such merged company on the Global or Global Select Market in conjunction with that Business Combination.
Under the proposal, for purposes of providing complimentary services under IM–5900–7 to certain listed companies, the Exchange would treat a company previously listed on the Nasdaq Capital Market as listing on the Global or Global Select Market in conjunction with a Business Combination if it files an application to list on the Global or Global Select Market before completing the combination and demonstrates compliance with all applicable criteria within 60 days of completing the Business Combination. According to the Exchange, this additional 60-day period may be required, in some cases, to allow time for the issuance of shares in the transaction and then for the newly formed entity to obtain information from third parties to demonstrate compliance with the shareholder and public float requirements of Nasdaq's Global or Global Select Market.
Under the proposed rules, if the Acquisition Company is listed on the Global Market at the time it completes a Business Combination and remains listed on the Global Market or transfers to the Global Select Market, the complimentary period for services under IM–5900–7 would commence on the date of such Business Combination.
Finally, the Exchange proposed to make various non-substantive technical and conforming revisions to its Rules.
The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the requirements of Section 6 of the Act.
The Commission believes that it is consistent with the Act for the Exchange to adjust the timing of when Acquisition Companies are eligible to receive complimentary services under IM–5900–7 from the time of initial listing of the Acquisition Company on the Global Market in connection with an IPO or with switching their listing from the NYSE,
In addition, the Exchange stated that in many cases Acquisition Companies will consider transferring to a new listing venue at the time they complete a Business Combination, and that the proposed rule change will enable the Exchange to compete to retain these companies by offering them a package of complimentary services that assists their transition to becoming a traditional public operating company.
The Exchange also recognized that not all Acquisition Companies will complete a Business Combination and that some listed Acquisition Companies will therefore never become eligible for the complimentary services under IM–5900–7.
As noted in the previous order approving IM–5900–7, Section 6(b)(5) of the Act does not require that all issuers be treated the same; rather, the Act requires that the rules of an Exchange not unfairly discriminate between issuers.
The Commission also believes that it is consistent with the Act for the Exchange to allow the complimentary period for a particular service to begin on the date of first use if an Acquisition Company that has completed a Business Combination begins to use the service within 30 days after the date of the Business Combination. The Exchange stated in its filing that, in its experience, it can take companies a period of time to review and complete necessary contracts and training for the complimentary services under IM–5900–7 following their becoming eligible for those services and that allowing this modest 30 day period, if the company needs it, will help to ensure that the company will have the benefit of the full period permitted under the rule to actually use the services, thus giving companies the full intended benefit.
The Commission believes that it is consistent with the Act for the Exchange to define a company listing on Nasdaq's Global or Global Select Markets in conjunction with a Business Combination to include a company that is listed on the Capital Market at the time of the Business Combination if it both filed an application to list on the Global or Global Select Market before completing the Business Combination and demonstrates compliance with all applicable criteria for the Global or Global Select Market within 60 days of completing the Business Combination, and to provide that the period of complimentary services for such a company will commence on the date of its listing on the Global or Global Select Market. The Exchange represented that, in its experience, such a company may need a period of as long as 60 days to obtain information from third parties to demonstrate compliance with the listing
In addition, the Exchange stated that beginning the complimentary period for a company in this situation on the date of its listing on the Global or Global Select Market (rather than on the date of the Business Combination as is the case for companies listed on Global Market at the time of the Business Combination) is consistent with the period provided to other Eligible New Listings and Eligible Switches under the current rules, which begins on the date of listing.
Based on the foregoing, the Commission believes that the Exchange has provided a sufficient basis for treating a company listed on the Capital Market at the time it completes a Business Combination as listing on the Global or Global Select Market in conjunction with a Business Combination if it files an application to list on the Global or Global Select Market before completing the combination and demonstrates compliance with all applicable criteria within 60 days of completing the Business Combination, and for beginning the complimentary period for a company in this situation on the date of its listing on the Global or Global Select Market rather than on the date of the Business Combination, and that these changes do not unfairly discriminate among issuers and are therefore consistent with Section 6(b)(5) of the Act.
The Commission also believes that the Exchange is responding to competitive pressures in the market for listings in making this proposal. Specifically, the Exchange has represented that, in many cases, an Acquisition Company will consider transferring to a new listing venue when it completes a Business Combination and that the proposed rule change would allow it to compete to retain these companies by offering them a package of complimentary services that assists their transition to being a traditional public company.
Finally, the Commission finds that it is consistent with Section 6(b)(5) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Kansas (FEMA—4287—DR), dated 10/20/2016.
Incident: Severe Storms and Flooding.
Incident Period: 09/02/2016 through 09/12/2016.
11/15/2016.
Physical Loan Application Deadline Date: 12/19/2016.
Economic Injury (EIDL) Loan Application Deadline Date: 07/20/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of KANSAS, dated 10/20/2016, is hereby amended to include the following areas as adversely affected by the disaster.
Primary Counties: PHILLIPS.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the Commonwealth of Virginia (FEMA–4291–DR), dated 11/15/2016.
Incident: Hurricane Matthew.
Incident Period: 10/07/2016 through 10/15/2016.
11/15/2016. Physical Loan Application Deadline Date: 01/17/2017.
Economic Injury (EIDL) Loan Application Deadline Date: 08/15/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 11/15/2016, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 149818 and for economic injury is 149828.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Economic Injury Disaster Loan (EIDL) declaration for the State of California, dated 02/02/2016.
Incident: Ocean Conditions Resulting in the Delayed Commercial Dungeness Crab Season and Closure of Commercial Rock Crab Fishery.
Incident Period: 11/06/2015 and continuing through 11/02/2016.
11/16/2016.
EIDL Loan Application Deadline Date: 11/02/2016.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of an Economic Injury declaration for the State of California, dated 02/02/2016 is hereby amended to establish the incident period for this disaster as beginning 11/06/2015 and continuing through 11/02/2016.
All other information in the original declaration remains unchanged.
Acting under the authority of and in accordance with section 1(b) of E.O. 13224 of September 23, 2001, as amended by E.O. 13268 of July 2, 2002, and E.O. 13284 of January 23, 2003, I hereby determine that the individual known as Abdullah Ahmed al-Meshedani, aka Abdullah Ahmed al-Mashhadani, aka Abdullah Ahmad al-Mashhadani, aka Abu Qassim, aka, Abu Kassem, aka Abu al-Qasem, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of E.O. 13224 that prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of E.O. 13224 of September 23, 2001, as amended by E.O. 13268 of July 2, 2002, and E.O. 13284 of January 23, 2003, I hereby determine that the person known as Jorge Quispe Palomino, also known as Comrade Raul, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of E.O. 13224 that prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously, I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of E.O. 13224 of September 23, 2001, as amended by E.O. 13268 of July 2, 2002, and E.O. 13284 of January 23, 2003, I hereby determine that the person known as Tarcela Loya Vilchez, also known as Comrade Olga, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of E.O. 13224 that prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously, I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 30 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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You must include the DS form number, information collection title, and OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Danielle Canfield, Directorate of Defense Trade Controls, Department of State, who may be reached at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
The Directorate of Defense Trade Controls (DDTC), Bureau of Political-Military Affairs, U.S. Department of State, in accordance with the Arms Export Control Act (AECA) (22 U.S.C. 2751
In accordance with ITAR Part 127, DDTC maintains a robust program to ensure compliance with the AECA and ITAR. As a part of this program, DDTC encourages the voluntary disclosure of potential violations of the AECA, ITAR, and any regulation, order, or authorization issued thereunder. The information disclosed is analyzed to determine whether administrative action concerning any violation is warranted; the voluntary nature of such a disclosure may be considered a mitigating factor in determining the administrative penalties, if any, which may be imposed. Failure to report a violation may result in circumstances detrimental to U.S. national security and foreign policy interests and will be considered as an adverse factor in determining the appropriate disposition of such violations. Also, the activity in question might merit referral to the Department of Justice for consideration of whether criminal prosecution is warranted. In such cases, DDTC will notify the Department of Justice of the voluntary nature of the disclosure, but the Department of Justice is not required to give that fact any weight.
The ITAR also imposes a duty to notify DDTC of potential violations of the AECA and ITAR in certain instances. In accordance with ITAR §§ 123.17(j), 126.1(e)(2), 126.16(h)(8) and (n), and 127.17(h)(8) and (n), any person involved in or with knowledge of activities identified or prohibited by these sections must notify DDTC of the violations or produce documents and information, respectively.
In certain circumstances, DDTC may also request or direct a registrant or another party to disclose details about a particular transaction or program based on information it receives from partner federal agencies or other sources. The information required for a directed disclosure is largely the same as that requested in a voluntary disclosure and must be sufficient for DDTC to determine the precise nature of the violation, the circumstances surrounding it, and any remediation efforts that have been put in place.
ITAR § 127.12 enunciates the information which should accompany a disclosure. Historically, respondents to this information collection submitted their disclosures to DDTC in writing via hard copy documentation. However, as part of an IT modernization project designed to streamline the collection and use of information by DDTC, a form has been developed for the submission of disclosures. This will allow both DDTC and respondents submitting a disclosure to more easily track and analyze submissions. This method of submission is discussed in detail below.
On June 20, 2016, DDTC published a
Several commenters opined that the DS–7787 form should merely function as a cover sheet for disclosure submissions in order to allow submitters to use a more narrative format to notify DDTC of potential violations. DDTC notes that the intended use of the form is to utilize uniform data fields for greater search and analytics capabilities and readability in the case management system; the unlimited-character text boxes associated with each data field will allow ample room for narratives to be included in the submission and therefore this comment was not accepted. DDTC does recognize, however, that the need exists for a mechanism to allow submitters to explain ancillary information, and will add an “Additional Relevant Information” text box and the ability to upload supporting documentation to the form. However, DDTC stresses that this does not absolve submitters of the responsibility to use the form as the primary vehicle for declaring violations.
Other comments concerned the burden associated with the form, which DDTC reasons to be an average of 10 hours per submission. These commenters argued that a 10-hour burden is inadequate to capture the amount of effort that is required by certain complex disclosures; DDTC appreciates these comments but replies that 10 hours is an average figure, and while some disclosures are very complex, the vast majority of disclosures declared on an annual basis are discrete instances which take far less than 10 hours per response. Therefore, DDTC believes 10 hours to be an accurate representation of the total average burden per response.
Several commenters also requested that the instructions be revised to, among others, define which fields of the form are mandatory; explain how to determine the number of violations; clarify what information is required for “related disclosures,” “discovery date,” and “relevant Department of State license(s) or authorization(s)”; describe the disclosure method for companies and individuals under a consent agreement or similar reporting arrangement; and describe the method of submission of the form. DDTC appreciates all of these comments and has re-worked the instructions based on this feedback; the instructions are posted and available for review along with the revised form on DDTC's Web site at
Another commenter noted that the form does not discuss how to make a disclosure that involves classified information. DDTC has addressed this guidance in the revised instructions and stresses that classified information should never be included on the DS–7787. Similarly, guidance on making a disclosure related to a country proscribed by ITAR § 126.1 has also been included in the instructions.
Multiple commenters also asked that the form be updated to accept submissions from third parties such as an outside counsel. DDTC notes that the ITAR requires an empowered official, as defined in ITAR § 120.25, to certify the disclosure, but that outside counsel may be listed as a point-of-contact for the
In a similar vein, some commenters requested clarification on how to disclose violations that involve a sub-licensee or subcontractor, and also how non-U.S. entities (
One commenter also requested that DDTC work with its counterpart bureau in the Department of Commerce to develop a joint disclosure form. The commenter argued that since the Obama Administration's Export Control Reform (ECR) initiative has transferred oversight of dozens of commodities from the U.S. Munitions List (USML) to the Department of Commerce's Export Administration Regulations (EAR), a joint form would capture instances where a violation occurred prior to a commodity being moved from the USML to the EAR. DDTC replies that the DS–7787 will exist beyond the ECR initiative, and submitters are required to explain the violation in detail on the form, during which time any ECR distinctions should be made.
Similarly, several commenters remarked that DDTC should include a field to allow respondents to include “mitigating information” regarding the particular matter they are disclosing. DDTC notes that the form, as written, contains all of the information required by ITAR § 127.12. Additionally, as addressed above, DDTC has added a field for additional relevant information on the form, and notes that this would be the appropriate place to enter mitigating and/or aggravating information that does not more properly fit into another field. The respondent is encouraged to provide as much detail of remedial measures and mitigating factors as they are able throughout the existing fields; however, determinations of exactly what constitutes “mitigating information” are made solely by DDTC; therefore, such a separate field will not be added to the form.
One commenter also requested DDTC to address the information protection and data security elements of the case management system. Recognizing the sensitivity of the data submitted in a disclosure, the system will meet all current government standards for data security and the Privacy Act of 1974. Individual users will also be required to create a unique username and password to access the system and submit information over an encrypted connection. Similarly, DDTC will protect information from public disclosure to the extent permitted by law; DDTC encourages submitters to clearly mark proprietary information in accordance with the Department of State guidelines at 22 CFR 171.12.
One commenter requested that the form include a question to declare whether a disclosure involves Major Defense Equipment (MDE), which DDTC has incorporated into the form.
This information will be collected by electronic submission. Respondents will be required to enroll in DDTC's online system and will be issued an appropriate credential based on the business the user will be transacting. Lower assurance matters (such as initial registration in the system) will require a secure username and password. Matters requiring higher assurance will require multi-factor credentials, such as a certificate based login.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before December 19, 2016.
Send comments identified by docket number FAA–2016–5813 using any of the following methods:
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Dan Ngo, (202) 267–4264 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before December 19, 2016.
Send comments identified by docket number FAA–2014–0352 using any of the following methods:
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Dan Ngo, (202) 267–4264, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before December 19, 2016.
Send comments identified by docket number FAA–2014–0367 using any of the following methods:
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Dan Ngo, (202) 267–4264 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before December 19, 2016.
Send comments identified by docket number FAA–2016–9367 using any of the following methods:
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Dan Ngo, (202) 267–4264, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before December 19, 2016.
Send comments identified by docket number FAA–2016–9422 using any of the following methods:
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Dan Ngo, (202) 267–4264 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14, Code of Federal Regulations (14 CFR). The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before December 19, 2016.
You may send comments identified by docket number FAA–2013–0582 using any of the following methods:
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Mark Forseth, ANM–113, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057–3356, email
This notice is published pursuant to 14 CFR 11.85.
Federal Highway Administration (FHWA), DOT.
Notice; request for comments.
The FHWA is requesting comments on a proposed revision of form FHWA–1273—“Required Contract Provisions Federal-Aid Construction Contracts.” This form includes certain contract provisions that are required on all Federal-aid construction projects. The revisions are necessary to provide consistency with the current policies of FHWA and other Federal agencies.
Comments must be received on or before December 28, 2016.
All comments should include the docket number that appears in the heading of this document and may be submitted in the following ways:
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Comments are posted without changes or edits to
Gerald Yakowenko, Office of Program Administration, (202) 366–1562,
An electronic copy of this document may be downloaded from the
As provided in 23 CFR 633.103, Form FHWA–1273 includes contract provisions and proposal notices that are required by regulations promulgated by FHWA or other Federal agencies. The provisions include non-discrimination, prevailing wage rates, subcontracting, job-site safety, and other important requirements that must be included in every Federal-aid construction project. According to 23 CFR 633.104(a), FHWA will update the form as regulatory revisions occur. Since the form was last revised on May 1, 2012, a number of policy revisions have occurred. The revisions that are being proposed by FHWA to Form FHWA–1273 will bring the form up to date with the current requirements. The proposed revisions are being made for the following reasons:
• The U.S. Department of Labor, Office of Federal Contract Compliance (OFCCP) issued a final rule on December 9, 2014, which revised the Equal Employment Opportunity requirements for Federal and federally assisted projects. We propose to implement minor revisions in Sections II and III—
• Revisions are proposed to Section II.10 as follows: This section is retitled as “Assurance Required,” the assurance required by 49 CFR 26.13(b) is included verbatim, and incorporation by reference is provided for the Title VI assurance required by U.S. DOT Order 1050.2A Appendices A and E.
• A revision is proposed to the first paragraph of Section IV to address the “treatment of projects” provision in 23 U.S.C. 133(i), which requires that all projects (excluding those funded under the recreational trail set-aside) be treated as if on a Federal-aid highway.
• Revisions are proposed to Section IX—
• Revisions are proposed to Section X—
• We propose to add a new Section XII—
• Minor grammatical and formatting revisions are proposed throughout the document for clarity and to be consistent with 2 CFR part 200.
The proposed revision to Form FHWA–1273 will incorporate the changes noted above as well as other important changes to the required contract provisions. A list of the proposed changes and a marked-up version of the changes are available at the following Web site:
The FHWA anticipates issuing a second notice responding to the comments received and requiring the use of the revised form for all Federal-aid projects advertised 60 days after the publication date of the second notice.
23 U.S.C. 112; 23 CFR 633; 49 CFR 1.85.
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Notice of Safety Advisory.
FRA is issuing Safety Advisory 2016–02 out of concern for the number of railroad and railroad contractor fatalities that occur when roadway workers perform certain activities that fall outside the scope of FRA's safety regulations, but within the purview of the U.S. Occupational Safety and Health Administration's (OSHA) regulations. FRA is issuing this Safety Advisory to remind railroads and railroad contractors, and their employees (including roadway workers) of the importance of identifying hazardous conditions at job locations, conducting thorough job safety briefings to discuss the hazardous conditions, and taking appropriate actions to mitigate those conditions. This Safety Advisory reminds railroads, railroad contractors, and their respective employees that OSHA's job safety regulations may apply to certain roadway worker activities and makes recommendations for hazard recognition strategies and challenge procedures that could improve roadway worker safety while roadway workers are engaged in activities subject to OSHA's regulations. FRA considers this Safety Advisory responsive to the National Transportation Safety Board's (NTSB) Recommendations R–14–33, R–14–35, and R–14–36.
Mr. Joseph E. Riley, Track Specialist, Track Division, Office of Technical Oversight, FRA, 1200 New Jersey Avenue SE., Mail Stop 25, Washington, DC 20590, (202) 493–6357.
On April 3, 2016, two National Railroad Passenger Corporation (Amtrak) employees were killed in Chester, Pennsylvania, when an Amtrak train struck a backhoe on that track. Although the NTSB has not concluded its
On June 10, 2016, FRA published two final rules addressing roadway worker safety. One of the rules amends FRA's Roadway Worker Protection (RWP) regulations (49 CFR part 214, subpart C), while the second rule revises FRA's alcohol and drug regulations (49 CFR part 219).
The final rule, “Railroad Workplace Safety; Roadway Worker Protection Miscellaneous Revisions (RRR)” (RWP Final Rule), resolves miscellaneous interpretive issues, codifies certain FRA technical bulletins, adopts new requirements governing redundant signal protections and the movement of roadway maintenance machines over certain types of track, and amends certain qualification requirements for roadway workers.
The final rule, “Control of Alcohol and Drug Use: Coverage of Maintenance of Way (MOW) Employees and Retrospective Regulatory Review-Based Amendments” (MOW Final Rule), broadens the scope of FRA's alcohol and drug regulations to cover MOW employees.
On March 17, 2016, FRA published Safety Advisory 2016–01 addressing the movement of roadway maintenance machines over highway-rail grade crossings. In Safety Advisory 2016–01, FRA emphasized the importance of compliance with railroad operating rules over highway-rail grade crossings and the need for railroad employees and contractors operating those machines to maintain situational awareness.
As discussed above, FRA has taken a number of recent steps to better protect roadway workers when those roadway workers are engaged in activities subject to FRA's safety jurisdiction. When those employees are engaged in activities outside the scope of FRA's safety regulations, they may be required to comply with OSHA's regulations, such as 29 CFR part 1910 (Occupational Safety and Health Standards) and 29 CFR 1926 (Safety and Health Regulations for Construction). Specifically, railroads and railroad contractors may be required to implement policies and procedures mandated by OSHA relating to the working conditions for roadway workers.
Between January 1, 2000 and December 31, 2015, over 60 roadway worker fatalities occurred while the roadway workers performed work not covered by FRA's safety regulations. This leads FRA to believe railroads and railroad contractors, as well as their employees, may fail to recognize potential hazards outside of those directly governed by FRA's rail safety regulations and may fail to develop and implement appropriate risk mitigation actions.
During the NTSB's September 24, 2014, hearing regarding the 2013 MOW and signal employee fatalities, the NTSB reminded the rail industry that, in certain situations, OSHA's regulations apply to railroads and railroad contractors, including OSHA's requirements that employees: (1) Conduct hazard assessments to identify and address existing conditions that pose safety hazards; (2) conduct job safety briefings prior to every work activity; and (3) conduct additional job briefings if significant changes occur during the course of the work.
Although FRA's safety regulations require on-track safety job briefings prior to an employee fouling track,
Railroads and railroad contractors should consider having a workable strategy for identifying safety hazards that exist in their work environments and for eliminating or addressing such safety hazards. Railroads and railroad contractors should therefore consider developing and implementing annual training for their roadway workers in various hazard recognition techniques. Whenever a hazard or risk is identified, a roadway worker should stop, look around, and analyze the situation for potential harm. Recognizing every situation for its potential danger may be
Examples of contributing factors or actions roadway workers may face or engage in that may have been a factor in one or more roadway worker fatalities since 2000 while the roadway workers were performing work not covered by FRA regulations include, but are not limited to: Ascending or descending; falling objects; electrocution; an unanticipated energy release; slips, trips and falls; hoisting or lowering an object; off-track equipment striking roadway workers; collisions between roadway maintenance machines and standing trains; highway vehicle collisions (vehicle to vehicle); highway vehicles striking roadway workers; and environmental-related hazards (swarming bees, mudslides, heat stroke, flash floods, etc.).
FRA and the railroad industry have witnessed success using the Good Faith Challenge Procedures found in FRA's regulations
Recommendations: In light of the above discussion, and in an effort to improve job safety briefings, improve the identification and mitigation of potential safety hazards existing in the working environments of roadway workers, and reduce the number of injuries and fatalities occurring when roadway workers are engaged in activities outside the scope of FRA's safety regulations, FRA recommends railroads and railroad contractors:
1. Develop hazard-recognition strategies identifying and addressing existing conditions posing actual or potential safety hazards, emphasizing the contributing factors or actions involved in roadway worker-related fatalities occurring since 2000.
2. Provide annual training to roadway workers on the use of hazard-recognition strategies developed by the railroad or the railroad contractor.
3. Institute procedures for mandatory job safety briefings compliant with OSHA's regulations prior to initiating any roadway worker activity. Consistent with OSHA's regulations, roadway workers should use hazard-recognition procedures to identify potential hazards in their job briefings and then determine the appropriate measures to mitigate the identified hazards. If an unforeseen situation develops during work performance, roadway workers should stop working and conduct a second job briefing to determine the appropriate means of mitigating the new hazard.
4. Develop and apply Good Faith Challenge Procedures for all roadway workers who, in good faith, believe a task is unsafe or an identified hazard has not been mitigated.
FRA encourages railroad and railroad contractor industry members to take actions consistent with the preceding recommendations and any other actions that may help ensure the safety of roadway workers. Although the primary purpose of this Safety Advisory is for railroads and railroad contractors to apply these recommendations to activities that fall outside the scope of FRA's safety regulations, FRA also encourages the industry to apply these recommendations to activities FRA's regulations govern.
FRA may modify this Safety Advisory, issue additional safety advisories, or take other appropriate actions necessary to ensure the safety of the Nation's railroads, including pursuing other corrective measures under its safety laws and regulations.
Federal Transit Administration (FTA), DOT.
Notice of policy guidance.
The Federal Transit Administration (FTA) hereby establishes policy guidance for documenting compliance with the private enterprise participation requirements under the Moving Ahead for Progress in the 21st Century Act (MAP–21). It also includes additional clarifications under the Fixing America's Surface Transportation (FAST) Act. Because the policy guidance requirement reiterates existing statutes and regulations and imposes no new requirements on recipients, FTA is not soliciting public comment on this policy guidance.
Effective Date: This policy guidance will be effective January 12, 2017.
For policy guidance questions, Kimberly Gayle, Office of Budget and Policy, telephone: 202–366–1429; or email:
The FTA is issuing this policy guidance pursuant to Section 20013(d) of the Moving Ahead for Progress in the 21st Century Act (MAP–21) (Pub. L. 112–141). Section 20013(d) requires the Secretary of Transportation to publish policy guidance regarding how recipients of Federal financial assistance under 49 U.S.C. chapter 53 can best document compliance with the requirements for private enterprise participation in public transportation planning and transportation improvement programs contained in sections 5303(i)(6), 5306(a), and 5307(b)
Section 5303(i)(6) requires that each metropolitan planning organization (MPO) provide interested parties, including private providers of transportation, with a reasonable opportunity to comment on the metropolitan transportation plan (MTP). The Fixing America's Surface Transportation (FAST) Act (Pub. L. 114–94) amended this section to include the following private providers: “intercity bus operators, employer-based commuting programs, such as a carpool program, vanpool program, transit benefit program, parking cash-out program, shuttle program, or telework program.” In addition, MPOs must develop a participation plan that defines
Section 5306(a) provides that a plan or program required by 49 U.S.C. 5303, 5304, or 5305 must encourage, to the maximum extent feasible, the participation of private enterprise (Note: 49 U.S.C. 5305 simply provides formula funding for the planning programs and does not establish procedural requirements.) 49 U.S.C. 5307(b) requires recipients of Urbanized Area Formula Grants to develop, in consultation with interested parties, including private transportation providers, a proposed program of projects (POP) for activities to be financed.
The FTA and the Federal Highway Administration (FHWA) recently promulgated a joint final rule (Joint Planning Rule) to update their regulations governing the development of MTPs and programs for urbanized areas, long-range statewide transportation plans and programs, and the congestion management process, as well as revisions related to the use of and reliance on planning products developed during the planning process for project development and the environmental review process. 81 FR 34049 (May 27, 2016), codified at 23 CFR part 450 and 49 CFR part 613. The regulatory changes implement amendments that MAP–21 and the FAST Act made to the metropolitan transportation planning and statewide and non-metropolitan planning processes.
Subpart C of the Joint Planning Rule implements 49 U.S.C. 5303 Metropolitan transportation planning. Each MPO must develop a Transportation Improvement Program (TIP) for the metropolitan planning area that provides all interested parties with a reasonable opportunity to comment on the proposed TIP in accordance with a documented participation plan that defines a process for providing individuals, affected public agencies, representatives of public transportation employees, public ports, freight shippers, providers of freight transportation services, private providers of transportation (including intercity bus operators, employer-based commuting programs, such as carpool programs, vanpool programs, transit benefit programs, parking cash-out programs, shuttle programs, or telework programs), representatives of users of public transportation, representatives of users of pedestrian walkways and bicycle transportation facilities, representatives of the disabled, and other interested parties with reasonable opportunities to be involved in the metropolitan transportation planning process. 23 CFR 450.316(a), 450.326(b). When an MPO submits a proposed TIP to FTA and FHWA as part of the Statewide Transportation Improvement Program (STIP) approval process outlined in 23 CFR part 450, subpart B, the MPO must certify that the metropolitan transportation planning process is being carried out in accordance with all applicable requirements, including 49 U.S.C. 5303. This self-certification must be made at least every four years per 23 CFR 450.336.
Subpart B of the Joint Planning Rule implements 49 U.S.C. 5304 Statewide and metropolitan transportation planning. Each state must undertake a transportation planning process and develop a long-range statewide transportation plan and STIP, which must be submitted, at least every four years, to FTA and FHWA for joint approval. When a state submits a STIP, it must certify that the transportation planning process is being carried out in accordance with all applicable requirements.
In implementing the statewide transportation planning process, States must develop and use a documented public involvement process that,
Section 5307(b) requires recipients of urbanized area formula grants to develop a POP in consultation with interested parties, including private transportation providers. Recipients must then publish the proposed POP to provide affected individuals, private transportation providers and local elected officials an opportunity to examine and submit comments on the proposed POP and performance of the recipient. Recipients also must provide an opportunity for a public hearing. In preparing the final POP, recipients must consider comments and views received, especially those of private transportation providers. A recipient of Section 5307 funds must, in each fiscal year in which it requests such funds, submit a final POP and must certify that it has complied with Section 5307(b).
FTA Circular 9030.1E, “Urbanized Area Formula Program: Program Guidance and Application Instructions (January 16, 2014), includes guidance that recipients may satisfy the requirements of Section 5307(b) by following the procedures of the public involvement process outlined in the FTA/FHWA planning regulations. The Circular advises that a recipient that chooses to integrate the metropolitan planning process with the development of the POP should coordinate with the MPO and ensure that the public knows that the recipient is using the public participation process associated with TIP development to satisfy the public hearing requirements of Section 5307(b).
FTA has determined that the best way to document compliance with the private enterprise participation provisions of 49 U.S.C. 5303(i)(6), 5306(a) and 5307(b) is to comply with the public participation requirements imposed by the recently promulgated Joint Planning Rule. FTA's recipients will continue to submit the applicable certifications required by Subparts B and C of the Joint Planning Rule and 49 U.S.C. 5307 through the annual certifications and assurances process. In addition, recipients must retain, and provide to FTA when requested, documentation of participation by interested parties in the metropolitan and statewide planning processes, and evidence of compliance with participation plans and POPs, as applicable, that are developed as part of the 49 U.S.C. 5303 and 5304 metropolitan and statewide planning processes and the 49 U.S.C. 5307 Urbanized Area Formula Grant process.
Accordingly, recipients shall document compliance with the private sector participation provisions through the existing regulatory process implementing Federal planning requirements. FTA will verify
Maritime Administration, U.S. Department of Transportation.
Notice of availability; notice of public hearing; request for comments.
The Maritime Administration (MARAD), in cooperation with the U.S. Coast Guard (USCG) and the Federal Energy Regulatory Commission (FERC), announces: (1) The schedule and locations of public hearings; and (2) the availability of the Final Environmental Impact Statement (EIS) for the Delfin LNG, LLC (Delfin LNG) deepwater port license application for the exportation of natural gas.
A Notice of Application that summarized the original Delfin LNG deepwater port license application was published in the
The proposed Delfin LNG deepwater port would be located in Federal waters within the Outer Continental Shelf (OCS) approximately 37.4 to 40.8 nautical miles off the coast of Cameron Parish, Louisiana.
The proposed Delfin LNG deepwater port incorporates onshore components, which are subject to FERC jurisdiction. These facilities are described in the section of this Notice titled “FERC Application.”
Publication of this notice begins a 45-day comment period, requests public participation in the environmental impact review process, provides information on how to participate in the process and announces final public hearings in Cameron, Louisiana and Beaumont, Texas. The Final EIS complies with the Deepwater Port Act of 1974, as amended (33 United States Code (U.S.C.) 1501
Pursuant to the criteria provided in the DWPA, both Louisiana and Texas have been designated as Adjacent Coastal States (ACS) for this application.
MARAD and USCG will hold two public hearings in connection with the license application's Final EIS. The first public hearing will be held in Cameron, Louisiana, on December 13, 2016, from 6 p.m. to 8 p.m. The second public hearing will be held in Beaumont, Texas, on December 14, 2016, from 6 p.m. to 8 p.m. Each public hearing will be preceded by an open house from 4:30 p.m. to 5:30 p.m. The public hearing may end later than the stated time, depending on the number of persons who wish to make a comment on the record. Additionally, material you submit in response to the request for comments must reach
Federal and State agencies must also submit comments, recommended conditions for licensing, or letters of no objection by Friday, January 12, 2017, or 45 days after publication of this notice in the
MARAD must issue a Record of Decision (ROD) to approve, approve with conditions, or deny the deepwater port license application, within 90 days following the final license hearing, on or prior to March 14, 2017.
The open house and public hearing in Cameron, Louisiana will be held at the Johnson Bayou Community Center, 5556 Gulf Beach Highway, Cameron, LA, 70631; telephone: 337–569–2454. Free parking is available at the Community Center. The open house and public hearing in Beaumont, Texas will be held at the Holiday Inn Beaumont Plaza, 3950 Walden Road, Beaumont, Texas 77705; telephone: 409–842–5995. Free parking is available at the Holiday Inn Beaumont Plaza.
The license application, comments, supporting information and the Final EIS are available for viewing at the
We encourage you to submit comments electronically through the Federal eRulemaking Portal at
Mr. Roddy Bachman, USCG, telephone: 202–372–1451, email:
We request public comments on the Final EIS and the application. We also encourage attendance at the open houses and public hearings; however, the public hearing is not the only opportunity you have to comment. You may submit comments electronically at any time, as described in above in
Regardless of the method you use to submit comments or material, all submissions will be posted, without change, to the Federal Docket Operations Facility Web site (
The open houses, public hearings and docket comments will be used by MARAD to inform the Maritime Administrator's decision making process, including the ROD and any conditions that may be placed on a subsequent license to own, construct and operate a deepwater port.
You are invited to learn about the proposed Delfin LNG deepwater port at either of the informational open houses and to comment at the public hearings on the proposed action and the environmental impact analysis contained in the Final EIS. Speakers may register upon arrival and will be recognized in the following order: (1) Elected officials; (2) public agency representatives; then (3) individuals or groups in the order in which they registered. In order to accommodate all speakers, speaker time may be limited, hearing hours may be extended, or both. Speakers' transcribed remarks will be included in the public docket. You may also submit written material for inclusion in the public docket. Written material must include the author's name. We ask attendees to respect the hearing process in order to ensure a constructive information-gathering session. Please do not bring signs or banners inside the hearing venue. The presiding officer will use his/her discretion to conduct the hearing in an orderly manner.
Public hearing locations are wheelchair accessible; however, attendees who require special assistance such as sign language interpretation or other reasonable accommodation, should notify the USCG (see
On May 8, 2015, as supplemented on June 19, 2015, MARAD and USCG received an application from Delfin LNG for all Federal authorizations required for a license to own, construct and operate a deepwater port for the export of natural gas. The proposed deepwater port would be located in Federal waters approximately 37.4 to 40.8 nautical miles off the coast of Cameron Parish, Louisiana. Louisiana and Texas were designated as ACSs for the Delfin LNG license application. A Notice of Application was published in the
On July 29, 2015, a NOI to Prepare an EIS and Notice of Public Meetings was published in the
In anticipation of the amended license application, MARAD and USCG issued a regulatory “stop-clock” letter to Delfin LNG on September 18, 2015. That letter commenced a regulatory “stop-clock,” effective September 18, 2015, which remained in effect until MARAD and USCG received the amended license application and determined it contained sufficient information to continue the Federal review process. On November 19, 2015, Delfin LNG submitted its amended license application to MARAD and USCG and a Notice of Receipt of Amended Application was published in the
Working in coordination with participating Federal and State agencies, MARAD and USCG commenced processing the amended license application and completed the Draft EIS. A NOA and Notice of Public Meetings for the Draft EIS was published in the
The Final EIS, application materials and associated comments are currently available for public review at the Federal docket Web site:
USCG and MARAD are co-lead Federal agencies for the preparation of the Final EIS; MARAD is the Federal licensing agency (action agency). The proposed action requiring environmental review is the Federal licensing of the proposed deepwater port described in the “Summary of the License Application” below. The alternatives to licensing the proposed port are: (1) Licensing with conditions (including conditions designed to mitigate environmental impact) and (2) denying the application, which, for purposes of environmental review, is the “no-action” alternative. These alternatives are more fully discussed in the Final EIS. You can address any questions about the proposed action or the Final EIS to USCG or MARAD project managers identified in
Delfin LNG has applied for a MARAD-issued license to construct, own, operate and eventually decommission a deepwater port in the Gulf of Mexico to liquefy domestically-sourced natural gas for export. Exports are proposed to both Free Trade Agreement nations and non-Free Trade Agreement nations, in accordance with the Department of Energy export license approvals.
The proposed Delfin LNG deepwater port has both onshore and offshore components. The proposed Delfin LNG deepwater port would be located in Federal waters within the OCS West Cameron (WC) Area, West Addition Protraction Area (Gulf of Mexico) approximately 37.4 to 40.8 nautical miles off the coast of Cameron Parish, Louisiana, in water depths ranging from approximately 64 to 72 feet (19.5 to 21.9 meters). The Delfin LNG deepwater port would consist of four semi-permanently moored Floating Liquefied Natural Gas Vessels (FLNGVs) located as follows: No. 1 (29°8′13.1″ N/93°32′2.2″ W), No. 2 (29°6′13.6″ N/93°32′42.4″ W), No. 3
The onshore components in Cameron Parish, Louisiana are described specifically in an application originally submitted to FERC (see FERC Application). The onshore components of the Delfin LNG deepwater port would consist of constructing and operating a new natural gas compressor station, gas supply header and a metering station at an existing gas facility. The proposal would require: (1) Reactivation of approximately 1.1 miles of existing 42-inch pipeline, formerly owned by UTOS, which runs from Transcontinental Gas Pipeline Company Station No. 44 (Transco Station 44) to the mean highwater mark along the Cameron Parish Coast; (2) installation of 120,000 horsepower of new compression; (3) construction of 0.25 miles of 42-inch pipeline to connect the former UTOS line to the new meter station; and (4) construction of 0.6 miles of twin 30-inch pipelines between Transco Station 44 and the new compressor station.
Onshore pipeline quality natural gas from the interstate grid would be sent to the existing, but currently idle, 42-inch UTOS pipeline. The gas transported through the UTOS pipeline would then bypass the existing manifold platform located at WC 167 via a newly installed pipeline segment, 700 feet in length, connecting to the existing 42-inch HIOS pipeline.
The bypass of the WC 167 platform would be trenched so that the top of the pipe is a minimum of 3 feet below the seafloor. From the bypass, the feed gas would then be transported further offshore using the HIOS pipeline portion leased by Delfin LNG between WC 167 and High Island A264 OCS lease block. The existing UTOS and HIOS pipelines transect OCS Lease Blocks WC 314, 318, 319, 327 and 335, and would transport feed gas from onshore to offshore (one-directional flow). Delfin LNG proposes to install four new lateral pipelines along the HIOS pipeline, starting approximately 16.0 nautical miles south of the WC 167 platform. Each subsea lateral pipeline would be 30 inches in diameter and approximately 6,400 feet in length, extending from the HIOS pipeline to the Delfin LNG deepwater port. The maximum allowable operating pressure of the pipeline system (UTOS, bypass, HIOS and laterals) would be 1,250 pounds per square inch gauge (psig).
The FLNGVs would receive pipeline quality natural gas via the laterals and TYMS, and then, using onboard liquefaction equipment, cool it sufficiently to completely condense the gas and produce LNG. The produced LNG would be stored in International Maritime Organization (IMO) type B, prismatic, independent LNG storage tanks aboard each of the FLNGVs. Each vessel would have a total LNG storage capacity of 210,000 cubic meters (m
An offloading mooring system would be provided on each FLNGV to moor an LNG tanker side-by-side for cargo transfer of LNG through loading arms or cryogenic hoses using ship-to-ship transfer procedures. LNG tankers would be moored with pilot and tug assist. The FLNGVs would be equipped with fenders and quick-release hooks to facilitate mooring and unmooring operations. The offloading system would be capable of accommodating standard LNG tankers with nominal cargo capacities up to 170,000 m
The FLNGVs would be self-propelled vessels and have the ability to disconnect from the TYMS and set sail to avoid hurricanes or to facilitate required inspections, maintenance and repairs.
In the nominal design case, based on an estimated availability of 92 percent and allowance for consumption of feed gas during the liquefaction process, each of the four FLNGVs would produce approximately 146 billion standard cubic feet per year (Bscf/y) of gas (approximately 3.0 million metric tonnes per annum [MMtpa]) for export in the form of LNG. Together, the four FLNGVs are designed to have the capability to export 585 Bscf/y of gas (approximately 12.0 MMtpa).
As detailed engineering and equipment specification advances during the design process and operating efficiencies are gained post-commissioning, the liquefaction process could perform better than this nominal design case. It is anticipated that LNG output could improve to as much as 657.5 Bscf/y in the optimized design case (approximately 13.2 MMtpa) which is the amount Delfin LNG is requesting authorization to export.
The proposed Delfin LNG deepwater port would take a modular implementation approach to allow for early market entry and accommodate market shifts. Offshore construction activities are proposed to begin at the end of the first quarter of 2018 and would be completed in four stages, with each stage corresponding to the commissioning and operation of an FLNGV. The anticipated commissioning of FLNGV 1 is the third quarter of 2019 with start-up of commercial operation of FLNGV 1 by the end of 2019. It is anticipated that FLNGVs 2 through 4 would be commissioned 12 months apart. Following this schedule and barring unforeseen events, the Delfin LNG deepwater port would be completed and all four FLNGVs would be fully operational by the summer of 2022.
Should a license be issued, the Delfin LNG deepwater port would be designed, fabricated, constructed, commissioned, maintained, inspected and operated in accordance with applicable codes and standards and with USCG oversight as regulated under Title 33, Code of Federal Regulations (CFR), subchapter NN–Deepwater Ports (33 CFR 148, 149 and 150). This includes applicable waterways management and regulated navigations areas, maritime safety and security requirements, risk assessment and compliance with domestic and international laws and regulations for vessels that may call at the port.
On May 8, 2015, Delfin LNG filed its original application with FERC requesting authorizations pursuant to the Natural Gas Act and 18 CFR part 157 for the onshore components of the proposed deepwater port terminal including authorization to use the
On November 19, 2015, High Island Offshore System, LLC filed an application (FERC Docket No. CP16–20–000) to abandon certain offshore facilities in the Gulf of Mexico, including its 66-mile-long mainline, an offshore platform and related facilities (“HIOS Repurposed Facilities”). Accordingly, on November 19, 2015, Delfin LNG filed an amended application in FERC Docket No. CP15–490–001 to use the HIOS Repurposed Facilities and to revise the onshore component of its deepwater port project. On December 1, 2015, FERC issued a
The amended FERC application specifically discusses the onshore facility and adjustments to the onshore operations that would involve reactivating approximately 1.1 miles of the existing UTOS pipeline; the addition of four new onshore compressors totaling 120,000 horsepower of new compression; activation of associated metering and regulation facilities; the installation of new supply header pipelines (which would consist of 0.25 miles of new 42-inch-diameter pipeline to connect the former UTOS line to the new meter station); and 0.6 miles of new twin 30-inch-diameter pipelines between Transco Station 44 and the new compressor station site.
Additional information regarding the details of Delfin LNG's original and amended application to FERC is on file and open to public inspection. Project filings may be viewed at the
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
33 U.S.C. 1501
By Order of the Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Notice of receipt of petition and decision granting partial relief.
On May 16, 2016, TK Holdings Inc. (Takata) filed a defect information report (DIR), in which it determined that a defect existed in certain passenger-side air bag inflators that it manufactured, including passenger inflators that it supplied to General Motors, LLC (GM) for use in certain GMT900 vehicles. GM has petitioned the Agency for a decision that, because of differences in inflator design and vehicle integration, the equipment defect determined to exist by Takata is inconsequential as it relates to motor vehicle safety in the GMT900 vehicles, and that GM should therefore be relieved of its notification and remedy obligations.
The closing date for comments is September 14, 2017.
Interested persons are invited to submit written data, views, and arguments regarding this petition for inconsequentiality. Comments must refer to the docket and notice number cited in the title of this notice and be submitted by one of the following methods:
•
•
•
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You may call the Docket at (202) 366–9324.
Note that all comments received will be posted without change to
The petition, supporting materials, and all comments received before the close of business on the closing date indicated above will be filed in the docket and will be considered. Comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will also be published in the
For legal issues: Elizabeth Mykytiuk, Office of the Chief Counsel, NCC–100, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: (202) 366–5263).
For general information regarding NHTSA's investigation into Takata air bag inflator ruptures and the related recalls:
On May 4, 2016, NHTSA issued, and Takata agreed to, an Amendment to the November 3, 2015 Consent Order (the “Amendment”), under which Takata is bound to declare a defect in all frontal driver and passenger air bag inflators that contain a phase-stabilized ammonium nitrate (PSAN)-based propellant and do not contain a moisture-absorbing desiccant. Such defect declarations will be made on a rolling basis.
The Takata filing triggered GM's obligation to file a DIR for the affected GM vehicles.
On November 15, 2016, GM petitioned the Agency, under 49 U.S.C. 30118(d), 30120(h) and 49 CFR part 556, for a decision that, because of differences in inflator design and vehicle integration, the equipment defect determined to exist by Takata is inconsequential as it relates to motor vehicle safety in the GMT900 vehicles.
As an initial matter, GM requests that NHTSA, in its enforcement discretion, accept and consider the Petition even though it was filed outside the regulatory filing deadline.
GM has requested that NHTSA waive the 30-day filing requirement in light of GM's transparency with the Agency, including communications occurring before and contemporaneous with the May 2016 DIR filings.
Finally, GM communicated its intent to file such a petition in the attachment to its May 2016 DIRs when it stated, “GM will conduct a recall of its airbag inflators covered by the May 2016 Takata DIRs, unless GM is able to prove to NHTSA's satisfaction that the inflators in its vehicles do not pose an unreasonable risk to safety.”
For the foregoing reasons, NHTSA will grant GM's request and accept the filing of its Petition outside of the 30-day deadline. NHTSA is granting this extraordinary relief because of the unique circumstances surrounding the Takata recall and the particular facts and circumstances of this case. This decision should not be considered precedent in any other case. The Agency will continue to enforce the 30-day filing deadline for inconsequentiality petitions, including any others that may be filed by GM in connection with future Takata recalls.
GM's Petition involves certain “GMT900” vehicles that contain the covered passenger inflators (designated as inflator types “SPI YP” and “PSPI–L YD”).
• In Zone A, model year 2007–2011 GMT900 vehicles. Zone A comprises the following states and U.S. territories: Alabama, California, Florida, Georgia, Hawaii, Louisiana, Mississippi, South Carolina, Texas, Puerto Rico, American Samoa, Guam, the Northern Mariana Islands (Saipan), and the U.S. Virgin Islands.
• In Zone B, certain model year 2007–2008 GMT900 vehicles. Zone B comprises the following states: Arizona, Arkansas, Delaware, District of Columbia, Illinois, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Virginia, and West Virginia.
According to the Petition, GM's engineering analysis supports the conclusion that the covered passenger inflators in the subject GMT900 vehicles are currently performing as designed, and will likely continue to perform as designed for a number of years—
As an initial matter, GM notes in its Petition that Takata submitted the May 16, 2016 equipment DIRs without evidence of any incidents of inflator rupture in the SPI YP or PSPI–L YD variants that are used only in GMT900 vehicles. Petition at p. 2. GM has been studying the long-term performance of the covered passenger inflators and has conducted an analysis of the ballistic performance of the covered passenger inflators.
GM further states that the covered passenger inflators are not used by any other original equipment manufacturer and that those inflators have a number of unique design features that influence burn rates and internal ballistic dynamics, including greater vent-area-to-propellant-mass ratios, steel end caps, and thinner propellant wafers.
Finally, GM states its belief that the covered passenger inflators will not present a risk of rupture in the longer term. To supplement its internal analysis, GM has retained a third-party expert, Orbital ATK, to conduct a long-term aging study that will estimate the service life expectancy of the covered passenger inflators in the GMT900 vehicles.
GM implicitly acknowledges that its data, information, and views are not yet sufficient for the Agency to grant its inconsequentiality petition. Given the status of GM's engineering analysis and the results of testing conducted to date, and in order to fully-analyze the performance of these inflators over the long-term, the company has requested that NHTSA allow GM until August 31, 2017 to complete its engineering analysis and inflator aging studies.
GM asserts that it has made a threshold showing that its inflators are safe in the short term or, at a minimum, will not present an unreasonable risk to safety during the period that the Petition is pending.
The Agency acknowledges that GM has produced probative evidence to support its inconsequentiality claim. The testing and data collected by GM to date—while not yet sufficient—tends to support GM's Petition, at least with respect to the short-term safety of the covered passenger inflators. Based upon the data GM has developed and presented to date, NHTSA believes that in the coming months this evidence could ultimately grow and develop to support GM's position with respect to the long-term safety of the covered passenger inflators. Presently, however, the evidence GM has presented is not yet sufficient to prove (by a preponderance of the evidence) their long-term safety. Based upon the evidence and analysis GM has presented to date, and its plan to develop and analyze additional data, NHTSA agrees that GM's request for additional time is reasonable and supported by the testing and data collected to date.
Moreover, although a pending inconsequentiality petition tolls GM's obligation to provide a remedy, NHTSA does not believe consumers will be significantly impacted by the requested deferral. As explained above, GM has been working toward an alternative remedy in the event it should become necessary, and expects that remedy to be available in June 2017. The length of the requested deferral is through August 2017. Therefore, if NHTSA ultimately were to deny this Petition at the conclusion of GM's engineering analysis, no significant delay in the availability of remedy parts would result.
For these reasons, NHTSA will grant the requested relief, and allow GM an opportunity to provide more evidence and a fuller record upon which the Agency can make its determination. Subject to the conditions that follow, GM shall have until August 31, 2017 to present all data, views, and arguments supporting this Petition, including additional analysis and testing results, through a supplement or amendment, which shall be published in the docket. GM shall be required to provide NHTSA with monthly updates on GM's engineering analysis, Orbital ATK's study, and any other data, analysis, or test results GM develops in its effort to support its inconsequentiality claim. In addition, GM shall provide the Agency with a non-confidential summary of each update that will be made available through the public docket. During this time, any interested person may also submit written data, views, and arguments regarding this Petition. Following the conclusion of the requested deferral—
NHTSA reserves the right to deny this Petition at any time prior to August 31, 2017, in the event necessary to mitigate an unreasonable risk to safety within the meaning of the Safety Act, based upon,
Accordingly, NHTSA hereby gives notice of its receipt of GM's Petition for Inconsequentiality and Request for Deferral of Determination Regarding Certain GMT900 Vehicles Equipped with Takata “SPI YP” and “PSPI–L YD” Passenger Inflators. And it is hereby ORDERED that:
1. GM's request to file an inconsequentiality petition for DIRs 16V–381 and 16V–383 beyond the 30-day deadline is GRANTED;
2. The period for public comment on GM's Petition shall run from the publication of this decision through September 14, 2017;
3. GM's request for a deferral of the Agency's decision so that it may have additional time to present evidence and analysis in support of this Petition is GRANTED, and GM's time for the development and presentation of further evidence, data, and information is extended to August 31, 2017;
4. GM shall provide NHTSA with monthly updates on its engineering analysis, Orbital ATK's study, and any other data, analysis, or test results the company develops in its effort to support this Petition, and GM shall provide the Agency with a non-confidential summary of each update that will be added to the public docket; and
5. NHTSA retains the right to rule on the Petition at any time before August 31, 2017 (
49 U.S.C. 30101,
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of Voluntary Information-Sharing System Working Group Meeting.
This notice announces a public meeting of the newly created Voluntary Information-Sharing System (VIS) Working Group. The VIS Working Group will convene to discuss administrative procedures and consider the development of a voluntary information-sharing system.
The VIS Working Group will meet on Monday, December 19, 2016, from 8:30 a.m. to 5:00 p.m., EST.
The meeting will not be web cast; however, any documents presented will be available on the meeting Web site and posted on the E-Gov Web site:
The meeting will be held at a location yet to be determined in the Washington, DC Metropolitan area. The meeting location, agenda and any additional information will be published on the following VIS Working Group and registration page at:
This meeting will be open to the public. Members of the public who wish to attend in person are asked to register at:
If you wish to receive confirmation of receipt of your written comments, please include a self-addressed, stamped postcard with the following statement: “Comments on PHMSA–2016–0128.” The Docket Clerk will date stamp the postcard prior to returning it to you via the U.S. mail.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
The public meeting will be physically accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, are asked to notify Cheryl Whetsel at
For information about the meeting, contact Cheryl Whetsel by phone at 202–366–4431 or by email at
The VIS Working Group is a newly created advisory committee established in accordance with Section 10 of the Protecting our Infrastructure of Pipelines and Enhancing Safety (PIPES) Act of 2016 (Pub. L. 114–183), the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., App. 2, as amended), and 41 CFR 102–3.50(a).
The VIS Working Group will consider and provide recommendations to the Secretary as specifically outlined in section 10 of Public Law 114–183:
(a) The need for, and the identification of, a system to ensure that dig verification data are shared with in-line inspection operators to the extent consistent with the need to maintain proprietary and security-sensitive data in a confidential manner to improve pipeline safety and inspection technology;
(b) Ways to encourage the exchange of pipeline inspection information and the development of advanced pipeline inspection technologies and enhanced risk analysis;
(c) Opportunities to share data, including dig verification data between operators of pipeline facilities and in-line inspector vendors to expand knowledge of the advantages and disadvantages of the different types of in-line inspection technology and methodologies;
(d) Options to create a secure system that protects proprietary data while encouraging the exchange of pipeline inspection information and the development of advanced pipeline inspection technologies and enhanced risk analysis;
(e) Means and best practices for the protection of safety- and security-sensitive information and proprietary information; and
(f) Regulatory, funding, and legal barriers to sharing the information described in paragraphs (a) through (d).
The Secretary will publish the VIS Working Group's recommendations on a publicly available DOT Web site. The VIS Working Group will fulfill its purpose once its recommendations are published online.
The agenda will be published on the PHMSA Web site.
Office of the Secretary, U.S. Department of Transportation
Notice and request for comments
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments on this notice must be received by December 28, 2016.
Interested persons are invited to submit comments regarding this proposal to the DOT/OST Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, Docket Library, Room 10102, 725 17th Street, NW., Washington, DC 20503, or by email to
Tami L. Wright, Associate Director, Equal Employment Opportunity Complaints and Investigations Division
The U.S. 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 take this opportunity to comment on proposed and/or continuing 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), U.S. Department of the Treasury, is soliciting comments concerning the Certification of Material Events Form.
Written comments must be received on or before January 27, 2017 to be assured of consideration.
Submit your comments via email to David Meyer, Certification, Compliance Monitoring and Evaluation (CCME) Program Manager, CDFI Fund, at
David Meyer, CCME Program Manager, CDFI Fund, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC. 20220. The Certification of Material Events Form may be obtained from the CDFI Fund's Web site at
12 U.S.C. 4701
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 take this opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Fiscal Service within the Department of the Treasury is soliciting comments concerning the Request to Reissue U.S. Savings Bonds to a Personal Trust.
Written comments should be received on or before January 27, 2017 to be assured of consideration.
Direct all written comments and requests for further information to Bureau of the Fiscal Service, Bruce A. Sharp, 200 Third Street A4–A, Parkersburg, WV 26106–1328, or
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
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 take this opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. Currently the Bureau of the Fiscal Service within the Department of the Treasury is soliciting comments concerning the Minority Bank Deposit Program (MBDP) Certification Form for Admission.
Written comments should be received on or before January 27, 2017 to be assured of consideration.
Direct all written comments and requests for further information to Bureau of the Fiscal Service, Bruce A. Sharp, 200 Third Street A4–A, Parkersburg, WV 26106–1328, or
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 take this opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Fiscal Service within the Department of the Treasury is soliciting comments concerning the Application By Survivors for Payment of Bond or Check Issued Under the Armed Forces Leave Act of 1946, as amended.
Written comments should be received on or before January 27, 2017 to be assured of consideration.
Direct all written comments and requests for further information to Bureau of the Fiscal Service, Bruce A. Sharp, 200 Third Street A4–A, Parkersburg, WV 26106–1328, or
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before January 27, 2017.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Brian McCarthy at (202) 461–6345.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501–3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
a. Application for Supportive Services Grants VA Form 10–10072
b. Participant Satisfaction Survey, VA Form 10–10072a
c. Quarterly Grantee Performance Report, VA Form 10–10072b
d. Renewal Application. VA Form 10–10072c
e. Applicant Budget Template Worksheet
f. FY16 Financial Report
g. Grantee Certification
By direction of the Secretary.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is amending existing regulations regarding the export and import of hazardous wastes from and into the United States. EPA is making these changes to: Provide greater protection to human health and the environment by making existing export and import related requirements more consistent with the current import-export requirements for shipments between members of the Organization for Economic Cooperation and Development (OECD); enable electronic submittal to EPA of all export and import-related documents (
This final rule is effective on December 31, 2016. The compliance dates for the various new and updated provisions in this action can be found in section II.D. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of December 31, 2016.
The EPA has established a docket for this action under Docket ID No. EPA–HQ–RCRA–2015–0147. All documents in the docket are listed on the
Laura Coughlan, Materials Recovery and Waste Management Division, Office of Resource Conservation and Recovery (5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (703) 308–0005; email address:
The information presented in this preamble is organized as follows:
The revisions to export and import requirements in this action generally affect four (4) groups: (1) All persons
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. If you have questions regarding the applicability of this final rule to a particular entity, consult the person listed in the
EPA's authority to promulgate this rule is found in sections 1002, 2002(a), 3001–3004, and 3017 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6901 et.seq., 6912, 6921–6924, and 6938.
On October 19, 2015, EPA proposed revisions to the current RCRA regulations governing imports and exports of hazardous waste and certain other materials in part 262 in order to improve protection of public health and the environment (80 FR 63284). First, we proposed to consolidate the hazardous waste import and export regulations so that one set of protective requirements, equivalent to the regulations currently in title 40 of the Code of Federal Regulations (CFR) Part 262 Subpart H implementing the Organization for Economic Cooperation and Development (OECD) Council Decision controlling transboundary movements of recyclable hazardous waste, would apply to all imports and exports of hazardous waste. Second, we proposed to mandate electronic reporting to EPA to make the process more efficient and to enable increased sharing of hazardous waste import and export data with state programs, the general public, and individual hazardous waste exporters and importers. Third, we proposed to require validation of the consent to export as part of the electronic export information submitted to U.S. Customs and Border Protection (CBP) to provide for more efficient compliance monitoring of hazardous waste export shipments. Fourth, we proposed to require matching of waste stream level consent numbers with waste streams listed on the Resource Conservation and Recovery Act (RCRA) hazardous waste manifests for import and export shipments. Lastly, we proposed to require EPA identification (ID) numbers for those recognized traders
The comment period for the proposed rule closed on December 18, 2015. The Agency received thirteen unique sets of comments in response to its October 19, 2015 proposal. Of the thirteen unique comments, three were submitted anonymously, one was submitted by the State of Hawaii's Hazardous Waste Section, three were submitted by individual companies, two were submitted by transportation industry associations, three were submitted by waste treatment related industry associations, and one was submitted by a battery industry association. Most commenters supported requiring OECD procedures for all hazardous waste imports and exports and the proposed electronic reporting requirements. But a few commenters expressed varying levels of concern about the readiness of EPA's Waste Import Export Tracking System (WIETS), and the time needed to learn to use the completed system prior to being required to submit documents using the system. In addition, questions were raised by one commenter concerning how the Automated Export System, EPA's WIETS, and EPA's e-Manifest system would work together. After considering all the submitted comments, and recognizing that the modifications to EPA's WIETS are not yet completed, we are finalizing the revisions largely as proposed, but with several additional features that affect the timing of various provisions. First, we have established a transition period to minimize the impacts of applying OECD procedures and EPA ID requirements to those existing export and import shipments occurring under the terms of a consent issued by EPA prior to the effective date of this action. This will
Proposed changes to clarify and streamline requirements and convert paper submittals to electronic submittals arose in part from the Agency's periodic retrospective reviews of existing regulations, as called for by Executive Order 13563. Other proposed revisions to replace the paper process for export shipments at the port with an electronic process were needed in order to fulfill the direction set forth in Executive Order 13659 concerning the electronic management of international trade data by the U.S. Government as part of the International Trade Data System (ITDS). Lastly, EPA proposed making all hazardous waste imports and exports subject to the OECD procedures to address concerns and recommendations to strengthen individual shipment oversight in both the 2013 Commission for Environmental Cooperation
As discussed in the proposed rule, EPA proposed applying OECD procedures to strengthen its oversight of such transboundary shipments of hazardous waste, as the harmonized OECD and Basel procedures are widely accepted as the international standard of control for such shipments. Transboundary waste shipments have a higher risk of being misdirected due to the increased number of custodial transfers, and the entry and exit procedures (and associated temporary storage) at the ports and border crossings for the countries of export, transit and import. Transboundary waste shipments to unapproved destination facilities are at the highest risk of mismanagement.
Under OECD-based procedures, prior notice and consent is required if either the exporting or importing country control the hazardous waste shipment as an export or import of hazardous waste. This allows the country or countries that control the shipment as hazardous waste to review the proposed import or export for compliance with domestic laws and regulations prior to any actual shipment. In cases where the proposed shipment would not comply with domestic laws or regulations or where there might be an issue with the proposed receiving facility, the importing country may deny consent, thus preventing a shipment to a facility that does not have the capacity to manage the waste properly.
For example, a foreign company recently proposed to ship unused methyl bromide to the U.S. for recycling, but import of methyl bromide into the U.S. for anything other than destruction is prohibited under the Clean Air Act. In a separate notice, a different foreign company proposed to ship SLABs to a facility in the U.S. for recycling, but the destination facility listed in the notice was not authorized to recycle SLABs. In each of the examples, EPA being able to review the proposed import for compliance with U.S. laws and regulations prior to any actual shipment prevented shipments that would have not complied with one or more regulations from entering the country. Preventing such non-compliant hazardous waste shipments through requiring consent for all hazardous waste imports is more efficient than trying to inspect all incoming shipments at every port, consistent with EPA's NextGen principles
In cases where only one of the countries control the proposed shipment as an import or export shipment of hazardous waste, the OECD procedures are to be followed by the country that controls the shipment as an import or export of hazardous waste. This ensures that the country is able to review the proposed import or export prior to actual shipment, and that the proper transport and management of the individual waste shipment occurs as approved.
When the proposed shipment would comply with domestic laws or regulations and the importing country consents, an international movement document must accompany the shipment from the starting site in the country of export to the destination site in the country of import, and copies of the signed movement document must be sent by the destination facility to the exporter and to the countries of export, import, and transit that respectively control the shipment as an export, import or transit of hazardous waste to confirm receipt of the shipment. Such confirmation reduces the risk of a shipment being misdirected to a country or facility not approved to receive the shipments for disposal or recovery. The confirmation of receipt also highlights any incident where the shipment is interrupted or misdirected, as the exporter and competent authorities will not receive the confirmation from the approved destination facility within expected timeframes. Lastly, the confirmation of receipt provides documentation for both the exporter and the countries of import and export that the shipment in fact went to the approved recycling or disposal facility.
Once received at the approved facility, management (
As discussed in Section II(B)(4) of the proposed rule, historically the overwhelming majority of the hazardous waste import and export shipments into and out of the United States occur with Canada and Mexico, both of which are member countries of the OECD. Canadian regulations already require U.S. exporters and receiving facilities to comply with OECD requirements through contract terms, and Canadian regulations requires Canadian exporters to comply with OECD requirements, including notice and consent, if the United States controls the planned shipment as an import of hazardous waste. More recently, only 26 export shipments and 111 import shipments out of the 54,152 hazardous waste import and export shipments in 2011 were between the United States and non-OECD countries. Only 84 import shipments out of the 53,376 hazardous waste import and export shipments in 2014 were between the United States and non-OECD countries. Additionally, almost all of the specific non-OECD countries from which the United States received import shipments in 2011 or 2014 (
EPA notes that the OECD recovery and disposal operations include operations that would not be generally allowable under domestic RCRA management requirements. The definitions of disposal operations and recovery operations in § 262.81 reflect the complete OECD list of operations, and several operations listed solely in Canadian import-export regulations to accurately harmonize operations listed in notices with those of Canada and other OECD countries. If the recovery or disposal operation listed in a notice proposing shipment of a hazardous waste to the U.S. for recovery or disposal is not allowed under RCRA, EPA will object to the notice on that basis. The inclusion of the complete list of OECD and Canadian-specific recovery and disposal operations in § 262.81 does not make such operations allowable within the United States if RCRA does not allow such management.
Lastly, EPA would like to re-affirm that the existing U.S.-Canada bilateral agreement, the U.S.-Mexico bilateral agreement, and the three import-only bilateral agreements between the United States and Malaysia, Costa Rica, and the Philippines remain in place and are not affected by these revisions. While the revisions change the applicable requirements for hazardous waste shipments with these countries, these additional requirements are fully consistent with the bilateral agreements.
This section provides a brief overview of this final rule and describes the major ways in which this rule differs from the proposal. For a more detailed description and justification of the changes in this final rule, see Section III of this preamble.
Largely as proposed, this final rule removes and reserves 40 CFR part 262 Subparts E and F, and expands the applicability of a reorganized and clarified 40 CFR part 262 Subpart H to all hazardous waste transboundary shipments, including those import and export shipments of universal waste managed under 40 CFR part 273 (or the authorized State equivalent) and specific hazardous wastes (
However, in contrast to the proposed rule, any existing export and import shipments with consents issued prior to the effective date of this action will only be required to comply with the terms of the consent and the original Part 262 subparts E or F based requirements in effect at the time the consents were issued until the relevant consent periods expire. The requirement for recognized traders arranging for import or export to obtain EPA ID numbers will be similarly phased in, in that those traders with consents issued prior to the effective date of this action will be able to continue managing the shipments occurring under those consents without having to immediately obtain an EPA ID number, and recognized traders will only be required to obtain an EPA ID number prior to arranging for any new or renewed consents to import or export hazardous waste on or after the effective date of this action.
Also in contrast to the proposed rule, electronic reporting to EPA using EPA's WIETS, or its successor system, will be phased in over a period of time to give EPA more time to complete and fully test a number of the electronic documents prior to requiring their use. Only electronic submittal of new export notices for hazardous waste or cathode ray tubes (CRTs) for recycling using EPA's WIETS will be required on the effective date of this action. Export annual reports for hazardous waste and CRTs for recycling will be required to be electronically submitted after a full calendar year of electronic-only AES filing has been required. The one-calendar-year period is necessary
Largely as proposed, EPA is requiring electronic filing in AES for each export shipment. However, the future AES filing compliance date will be announced in a separate
The revisions to RCRA hazardous waste manifest-related requirements for hazardous waste export and import shipments are also being finalized largely as proposed with only a few changes. Exporters and receiving facilities will be required to list the consent number for each waste listed in the manifest from the effective date of this action, but the regulatory text no longer specifies exactly where on the manifest the consent numbers must be added. Also in contrast with the proposed rule, the final rule has removed the inadvertently proposed duplicate submittal of paper import manifests to both the e-Manifest system and EPA's International Compliance Assurance Division so that submittal of paper import manifests to EPA's International Compliance Assurance Division is required only until the receiving facility can mail the manifest to the e-Manifest system per §§ 264.71(a)(2)(v)/265.71(a)(2)(v). EPA is not finalizing the regulatory language proposed in §§ 262.83(a)(5) and (6). These provisions had included instructions for the exporter to obtain a confirmation of receipt from the foreign facility and for the exporter to provide direction to the transporter in cases when the shipment was rejected by the foreign facility. This regulatory language had been in the original manifest instructions under 40 CFR part 262 subpart E. However, EPA is elsewhere finalizing similar requirements such that §§ 262.83(a)(5) and (6) are redundant. Specifically, § 262.83(d)(2)(xv) requires the exporter to direct the foreign facility to confirm receipt of each shipment, § 262.83(f)(3)(i) requires contract terms to direct the foreign facility to inform the exporter if the shipment cannot be managed according to the consent, § 262.83(e) requires the exporter to arrange for the return of the waste as needed, and § 262.83(h) requires the exporter to file an exception report as needed. Lastly, the proposed deletion of the requirement for transporters to give a copy of the signed and dated manifest to the U.S. customs official at the point of departure from the United States has been amended to reflect the transition period prior to the AES filing compliance date during which the exporter may choose to either electronically file EPA information in AES or follow the existing paper-based process at the port. During the transition period, exporters will be required to inform the transporter whether they have chosen to follow paper-based processes so that the transporter will know whether he or she is required to give a copy of the paper manifest to the U.S. customs official. On or after the electronic AES filing compliance date, no transporter will be required to give a copy of a paper manifest to the U.S. customs official.
Finally, at this time EPA is not finalizing any limits to the number of hazardous waste codes that can be listed to characterize a hazardous waste in export notices, import notices, or export annual reports due to concerns raised by commenters (see response to comment document for more details).
This final rule is effective on December 31, 2016. Section 3010(b) of RCRA allows EPA to promulgate a rule with an effective date shorter than six months when other good cause is found and published with the regulation. Under Executive Order 13659, agencies are required to have capabilities, agreements, and other requirements in place by December 31, 2016, to utilize the ITDS and supporting systems, such as the Automated Export System or its successor system, as the primary means of receiving from users the standard set of data and other relevant documentation (exclusive of applications for permits, licenses, or certifications) required for the release of imported cargo and clearance of cargo for export. In order to comply with Executive Order 13659, the effective date must therefore be December 31, 2016.
EPA is, however, cognizant of the impact these changes will have on those companies or individuals currently exporting or importing hazardous waste
Hazardous waste exporters with existing consents, or their authorized agents, will be required to file the additional information into AES, or its successor system, for each export shipment initiated on or after the future AES filing compliance date in accordance with the existing pre-departure filing deadlines in 15 CFR 30.4(b). Exporters of excluded cathode ray tubes for recycling will be subject to similar AES filing conditions for each export shipment initiated on or after the AES filing compliance date. For export shipments occurring prior to the AES filing compliance date, hazardous waste exporters will have to either ensure compliance with the existing paper-based process at the port or use the AES electronic filing procedures. For hazardous waste exporters choosing to use the paper-based process prior to the AES filing compliance date, paper documentation of consent (
With respect to electronically submitting import and export related documents to EPA using WIETS or its successor system, actual implementation depends upon when the EPA's system will be ready (
Export notices requesting initial consent or renewal of consent for hazardous wastes and for CRTs proposed to be exported for recycling will be required to be submitted to EPA electronically using EPA's WIETS on the effective date of this action.
Export annual reports for hazardous wastes and for CRTs exported for recycling will be required to be submitted to EPA electronically using EPA's WIETS by March 1 of the year after the AES filing compliance date, as all exporters will have been required to file in AES, or its successor system, for at least the previous calendar year. For hazardous waste export annual reports submitted prior to that date, exporters will be required to submit either a paper export annual report or, for those exporters who chose to comply with the optional AES electronic filing requirements for all export shipments made the previous calendar year, an electronic export annual report using EPA's WIETS. For CRT export annual reports submitted prior to March 1 of the year after the AES filing compliance date, exporters will be required to submit a paper export annual report to EPA.
Because EPA has not yet completed the electronic versions of the export exception report, export confirmation of receipt, export confirmation of recovery or disposal, import notification, import confirmation of receipt, import confirmation of recovery or disposal, or the receiving facility notification of the need to arrange alternate management or return of an import shipment, electronic submittal of these documents will not be required until a future electronic import-export reporting compliance date that will be announced in a separate
The compliance dates for the various major provisions with respect to import and export shipments occurring under consents issued by EPA prior to the effective date of this action are summarized in the table below:
As discussed in the previous section, existing export or import shipments occurring under the terms of a consent issued prior to the effective date of this action are not required to comply with the OECD-based requirements in the newly expanded and reorganized Part 262 subpart H, and instead must continue to comply with the terms of the consent and the requirements that applied at the time the consent was issued until the consent expires. Prior to the expiration of the consent period, any exporter wishing to submit an export notice requesting new consent or a renewal of a previous consent must register in EPA's CDX, obtain an EPA ID number if he or she is a recognized trader that does not already have one, and establish or amend a contract or equivalent arrangement between all parties to require all the OECD-based requirements prior to submitting the export notice electronically. Any importer must similarly register in EPA's CDX, obtain an EPA ID number if he or she is a recognized trader that does not already have one, and establish or amend a contract or equivalent arrangement between all parties to require all the OECD-based requirements prior to the expiration of the consent issued to the foreign exporter. Lastly, receiving facilities that do not also act as an exporter or as an importer must register in EPA's CDX prior to the electronic import-export reporting compliance date in order to electronically submit to EPA import confirmations of receipt, import confirmations of recovery or disposal, and receiving facility notifications of the need to arrange alternate management or the return of an individual import shipment.
Assuming the exporter obtains consent to export on or after the effective date of this action, the exporter must prepare and provide an international movement document containing all the items listed in § 262.83(d) for each export shipment, require that the movement document accompanies each shipment all the way from the shipment starting point in the U.S. to the receiving facility in the country of import, and that all required signatures are obtained. If the shipment starting point is different from the exporter's address, the movement document must list both the exporter's and the shipment origination information (
If the shipment is accepted by the foreign facility for recovery or disposal, the exporter's contract must require the foreign facility to confirm completion of recovering or disposing of the waste in the shipment as soon as possible but no later than thirty (30) days after completing recovery or disposal of the shipment, and no later than one (1) year from the shipment's delivery to the foreign facility. The exporter's contract must also require that the foreign facility send such confirmations to the exporter, the country of import, and on or after the future electronic import-export reporting compliance date, to EPA using EPA's WIETS. If the foreign facility is solely performing an interim recovery or disposal operation prior to final recovery or disposal at a final facility, the contract must require the foreign facility to promptly forward copies of confirmations of recovery or disposal that it receives in turn from the final facility to the exporter, the country of import, and on or after the future electronic import-export reporting compliance date, to EPA using EPA's WIETS. By March 1 of each year, the exporter must submit an annual report summarizing all the shipments made during the previous calendar year. All records must be kept by the exporter for at least three (3) years. Records submitted electronically may be kept in the user's account in WIETS, but must be made available to EPA or an authorized state inspector upon request. No exporter may be held liable for the inability to produce such documents for inspection under this section if the exporter can demonstrate that the inability to produce the document is due exclusively to technical difficulty with WIETS for which the exporter bears no responsibility.
With respect to import shipments, a contract or equivalent arrangement between all parties to require all the OECD-based requirements must be established prior to any submittal of a notice. In most cases, prior notice is submitted and the eventual consent is issued to the foreign exporter rather than the importer. At the time the consent is sent back to the foreign exporter via the country of export, EPA will send a copy of import consent documentation to the receiving facility as well. But for cases where the country of export does not control the shipment as an export of hazardous waste, for whatever reason, the importer will be required to submit a notice directly to EPA requesting consent for the shipments to occur. EPA will issue the consent in such cases to the importer, and will send a copy of the consent documentation to the receiving facility as well. Just as with export shipments, the shipments must be accompanied by an international movement document and the receiving facility must both confirm receipt and confirm recovery or disposal of the waste shipment. If the country of export does not control the shipment as an export of hazardous waste, the receiving facility does not have to send the confirmations of receipt or the confirmations of recovery or disposal to the country of export. If the receiving facility cannot accept the waste shipment, it must notify the foreign exporter, the importer (if different from the receiving facility), and EPA of the need to arrange alternate management or the return of the import shipment. In cases of return, EPA will then notify the country of export of the need for the return within 90 days.
If the receiving facility is solely performing interim recovery or disposal operations prior to final recovery or disposal at another facility, the receiving facility must promptly send confirmations of final recovery or disposal it receives from the final facility to the foreign exporter, to the country of export if it controls the shipment as an export of hazardous waste, and on or after the future electronic import-export reporting compliance date, to EPA.
Under Executive Order 13659, EPA and CBP must have the capabilities, agreements, and requirements in place to utilize electronic processes in AES, or its successor system, in place of existing paper processes at the port or border crossing required to clear export shipments for departure. Under existing paper processes for shipments occurring under consents issued prior to the effective date of this action, transporters of hazardous waste export shipments must carry paper documentation that the exporter has received consent to export the wastes in the shipment, in the form of either EPA's AOC letter for export shipments to Canada, Chile, Mexico, or any non-OECD country, or a movement document for export shipments to all other OECD countries. In addition, for manifested hazardous waste shipments the transporter must give a copy of the signed and dated RCRA manifest to the U.S. customs official at the point of departure. Under the new electronic procedures in AES, or its successor system, exporters will file the following EPA data in the AES, along with the other information required under 15 CFR 30.6:
Of the items listed previously, only the “EPA license code”, “EPA consent number”, “RCRA hazardous waste manifest tracking number”, “EPA net quantity”, and “EPA net quantity units of measurement” are not already required to be filed in AES under the U.S. Census Bureau's Foreign Trade Regulations (FTR). Of these five items, one item is only required if the waste is subject to RCRA manifesting requirements and two of the remaining items are only required in cases where the commodity classification number-based quantity reporting does not require that the quantity of the commodity in the shipment be reported in weight or volumetric units (
As discussed in the previous section, EPA is establishing a transition period under which exporters may choose to comply with either the electronic AES filing procedures or the paper-based procedures at the port. Exporters choosing to use the paper process at the port must provide the paper documentation of consent to the initial transporter, along with a paper RCRA manifest if the shipment is required to be manifested, and must instruct the transporter via email, mail or fax to give a copy of the signed and dated RCRA manifest to the U.S. customs official at the port or border crossing. Exporters choosing to use electronic AES filing procedures must file the EPA data listed above in AES as part of their electronic export information in AES, obtain an ITN number, provide the ITN number to the initial transporter, and if providing the transporter with a paper RCRA manifest, confirm to the transporter that no manifest must be given to the U.S. customs official at the port by manually crossing out the sentence instructing transporters to do so in the Instructions for the International Block on the RCRA manifest.
EPA will coordinate with CBP on the selection of the future AES filing compliance date, but we anticipate that it will likely be at the start of a calendar year to ensure a full calendar year of AES filing data for the first year to enable EPA to build draft export annual reports in EPA's WIETS for electronic review and submittal by exporters. EPA will announce the future AES filing compliance date in a separate
As discussed in the previous section, EPA has not yet completed or tested out electronic versions of the export exception report, export confirmation of receipt, export confirmation of recovery or disposal, import notification, import confirmation of receipt, import confirmation of recovery or disposal, or the receiving facility notification of the need to arrange alternate management or return of an import shipment. Electronic submittal of these documents is therefore not required until a future electronic import-export reporting compliance date that EPA will establish in a separate
As of December 31, 2016, exporters of cathode ray tubes for recycling (40 CFR 261.39(a)(5)(ii)) or RCRA-regulated hazardous wastes (40 CFR 262.83(b)) must complete and submit hazardous waste export notices using EPA's WIETS. EPA's Central Data Exchange (CDX) is the agency entry point for the agency electronic reporting. EPA's WIETS can be accessed by logging into EPA's CDX. As part of the one-time CDX registration process, individual
A separate
As discussed in the previous section, exporters and receiving facilities will be required to list the consent number for each waste matched to each waste listed in the hazardous waste manifest from the effective date of this action but the regulatory text in 262.83(c)(3), 264.71(a)(3)(i), 265.71(a)(3)(i), and 267.71(a)(6), respectively, does not specify exactly where on the manifest the consent numbers must be added. If additional space is needed to list the consent numbers for each waste on the paper manifest, a continuation sheet (EPA Form 8700–22A) should be used. EPA is not specifying where on the manifest to list the consent number for each waste in order to give the exporters and receiving facilities more flexibility in listing the numbers on paper manifests, and to give EPA more flexibility in determining how best to design data entry of the consent numbers in the e-Manifest currently under development. Unlike the other requirements in this rule that are based on the OECD procedures, these new requirements apply even to existing hazardous waste export and import shipments occurring under the terms of a consent issued prior to the effective date of this action.
Specific to hazardous waste import shipments, receiving facilities continue to be required to submit paper import manifests to EPA's International Compliance Assurance Division (ICAD) within thirty (30) days of shipment delivery, but the text in §§ 264.71(a)(3)(ii), 265.71(a)(3)(ii), and 267.71(a)(6)(ii) now clarifies that submittal to EPA ICAD is required only until the receiving facility can mail the paper manifest to the e-Manifest system per §§ 264.71(a)(2)(v) or 265.71(a)(2)(v).
Specific to hazardous waste export shipments, EPA is not finalizing the regulatory language proposed in §§ 262.83(a)(5) and (6). These provisions had included instructions for the exporter to obtain a confirmation of receipt from the foreign facility and for the exporter to provide direction to the transporter in cases when the shipment was partially or wholly rejected by the foreign facility. This regulatory language had been in the original manifest instructions under 40 CFR part 262 subpart E. However, EPA is elsewhere finalizing similar requirements such that §§ 262.83(a)(5) and (6) are redundant. Specifically, § 262.83(d)(2)(xv) requires the exporter to direct the foreign facility to confirm receipt of each shipment, § 262.83(f)(3)(i) requires contract terms to direct the foreign facility to inform the exporter if the shipment cannot be managed according to the consent, 262.83(e) requires the exporter to arrange for the return of the waste as needed, and 262.83(h) requires the exporter to file an exception reports as needed. In addition, the proposed deletion of the requirement for transporters to give a copy of the signed and dated manifest to the U.S. customs official at the point of departure from the United States has been amended to reflect the transition period prior to the AES filing compliance date during which the exporter may choose to either electronically file EPA information in AES or follow the existing paper-based process at the port. During the transition period, exporters will be required to inform the transporter via mail, email or fax whether they have chosen to follow paper-based processes so that the transporter will know whether or not he or she is required to carry paper documentation of consent (
Under this action, recognized traders arranging for export or import will be required to obtain an EPA ID number prior to arranging for import or export on or after the effective date of this final rule per § 262.12. As with the application of OECD procedures, recognized traders will not have to obtain an EPA ID number to continue managing import and export shipments occurring under the terms of a consent issued by EPA prior to the effective date of this final rule. But any recognized trader must have an EPA ID number prior to requesting a new or renewed
This action updates the IBR source material in § 260.11(g)(1) for the OECD amber and green waste lists, and their associated waste codes, which are used to identify a waste. The OECD waste lists, entitled “List of Wastes Subject to the Green Control Procedures” and “List of Wastes Subject to Amber Control Procedures,” are set forth in Appendix 3 and Appendix 4, respectively, of the OECD Decision. The most current waste lists from the OECD Decision have been consolidated and incorporated in Annex B and C of the 2009 “Guidance Manual for the Control of Transboundary Movements of Recoverable Wastes.” Sections 262.82(a), 262.83(b)(1)(xi), 262.83(d)(2)(vi), 262.83(g)(4)(iii), 262.84(b)(1)(xi), and 262.84(d)(2)(vi) reference the IBR material in the revised § 260.11(g)(1). The material is available for inspection at: The U.S. Environmental Protection Agency, Docket Center Public Reading Room, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC 20004 (Docket # EPA–HQ–RCRA–2015–0147) and may be obtained from the Organization for Economic Cooperation and Development, Environment Directorate, 2 rue André Pascal, F–75775 Paris Cedex 16, France. The material is also available online (for free) at
A number of technical level corrections to citations previously referencing Part 262 Subparts E or F were made to reflect applying the expanded Part 262 Subpart H. For a full list of the corrections, please see Section III of the proposed rule or the regulatory text in this action.
In order to improve information on the movement and disposition of hazardous wastes, and to enable interested members of the community and the government to benefit from the provision of publicly accessible data, EPA intends to separately propose that U.S. exporters and U.S. receiving facilities be required to post the confirmations of receipt and confirmations of recovery or disposal that they receive for export shipments and import shipments respectively to a public company Web site until the exporters and receiving facilities are required to submit such confirmations electronically to EPA's WIETS on or after the future electronic reporting compliance date that EPA will establish in a separate
Under section 3006 of RCRA, EPA may authorize qualified States to administer their own hazardous waste programs in lieu of the federal program within the State. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized States have primary enforcement responsibility. The standards and requirements for State authorization are found at 40 CFR part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that State. The federal requirements no longer applied in the authorized State, and EPA could not issue permits for any facilities in that State, since only the State was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the State was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized State until the State adopted the federal requirements as State law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized States at the same time that they take effect in unauthorized States. EPA is directed by the statute to implement these requirements and prohibitions in authorized States, including the issuance of permits, until the State is granted authorization to do so. While States must still adopt HSWA related provisions as State law to retain final authorization, EPA implements the HSWA provisions in authorized States until the States do so.
Authorized States are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. RCRA section 3009 allows the States to impose standards more stringent than those in the federal program (see also 40 CFR 271.1). Therefore, authorized States may, but are not required to, adopt federal regulations, both HSWA and non-HSWA, that are considered less stringent than previous federal regulations.
Because of the federal government's special role in matters of foreign policy, EPA does not authorize States to administer Federal import/export functions in any section of the RCRA hazardous waste regulations. This approach of having Federal, rather than State, administering of the import/export functions promotes national coordination, uniformity and the expeditious transmission of information between the United States and foreign countries.
Although States do not receive authorization to administer the Federal government's export functions in 40 CFR part 262 subpart E, import functions in 40 CFR part 262 subpart F, import/export functions in 40 CFR part 262 subpart H, or the import/export relation functions in any other section of the RCRA hazardous waste regulations, State programs are still required to adopt the provisions in this rule to maintain their equivalency with the Federal program (see 40 CFR 271.10(e) which will also be amended in this rule).
This rule contains many amendments to 40 CFR part 262 subpart H, both for clarity and organization, and replaces the regulations that are currently in 40 CFR part 262 subparts E and F with the more stringent 40 CFR part 262 subpart H regulations. The rule also contains conforming import and export-related
The States that have already adopted 40 CFR part 262 subparts E, F and H, 40 CFR part 263, 40 CFR part 264, 40 CFR part 265, and any other import/export related regulations must adopt the revisions to those provisions in this final rule. But only States that have previously adopted the optional CRT conditional exclusion in 40 CFR 261.39, or the optional exclusions for samples in 40 CFR 261.4(d) and 40 CFR 261.4(e) are required to adopt the revisions related to those exclusions in this final rule.
When a State adopts the import/export provisions in this rule (if final), they must not replace Federal or international references or terms with State references or terms.
The provisions of this rule will take effect in all States on the effective date of the rule, since these import and export requirements will be administered by the Federal government as a foreign policy matter, and will not be administered by States.
Additional information about these statutes and Executive Orders can be found at
This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review, because it may raise novel legal or policy issues [3(f)(4)] arising out of legal mandates, although it is not economically significant. Any changes made in response to OMB recommendations have been documented in the docket. The EPA prepared a regulatory impact analysis of the potential costs and benefits associated with this action. This analysis, titled “Regulatory Impact Analysis: EPA's Hazardous Waste Export-Import Revisions Final Rule,” is available in the docket.
This rule is projected to result in aggregate annualized costs (
In addition to calling for assessment of regulatory costs, the Executive Order also requires Federal agencies to assess benefits and, “recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” As described in Chapter 3 of the RIA, monetization of all the rule's benefits is not possible given limitations in the available data. The analysis, however, estimates that the rule will lead to quantifiable annualized cost savings of $0.7 million using a discount rate of 3 percent or 7 percent associated with the relaxation of certain requirements and Agency benefits associated with the electronic submission of notices, annual reports, and other documents. Cost savings to industry represent approximately 66 percent of this total. In addition, the rule would lead to certain benefits that cannot be quantified. These include increased efficiency and convenience of electronic submission, enhanced tracking of hazardous waste transportation recognized trader activities, increased regulatory efficiency, consistency with trade requirements for OECD countries, reduction of risks associated with the treatment and disposal of hazardous wastes, and improved ability to acquire information regarding exports and imports of hazardous waste.
The information collection activities in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2519.02, OMB ICR Control Number 2050–0214. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.
The requirements covered in this ICR are necessary for EPA to oversee the international trade of hazardous wastes. EPA is promulgating the above regulatory changes/amendments under the authority of Sections 1006, 1007, 2002(a), 3001 through 3010, 3013 through 3015, and 3017 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6905, 6906, 6912, 6921 through 6930, 6934, and 6938.
The Office of Enforcement and Compliance Assurance, U.S. EPA, uses the information provided by each U.S. exporter, receiving facility, transporter, and recognized trader to determine compliance with the applicable RCRA regulatory provisions. In addition, the information is used to determine the number, origin, destination, and type of exports from and imports to the U.S. for tracking purposes and for reporting to the OECD. This information also is used to assess the efficiency of the program.
Most of the information required by the regulations covered by this ICR is not available from any source but the respondents. In certain occasions, such as the notification of intent to export hazardous waste, EPA allows the primary exporter to submit one notice that covers activities over a period of twelve months.
Except as described below, this rule does not result in the collection of duplicate data. Although some of the information required for the hazardous waste manifest and the movement document is substantively the same, up to six pieces of additional information are required for the movement document. In addition, these two documents serve different purposes. A signed copy of the hazardous waste manifest, which is not valid beyond U.S. borders, is sent back to the U.S. exporter when the shipment leaves the U.S. to verify pertinent information, including point of departure, date of departure, destination, and contents of the shipment. The movement document must accompany the shipment until it reaches the foreign recovery facility. The signed movement document is subsequently returned to EPA and the U.S. exporter to acknowledge receipt of the shipment.
In certain cases, some of the information on the tracking document also may be collected in the Automated Export System (AES), or successor system. An AES filing is required for all shipments that are valued over $2,500 per Schedule B number or when a license is required. However, the information currently contained in the AES is not adequate for EPA's purpose of tracking and identifying the export of hazardous waste from the U.S. For example, the wastes are identified by tariff codes that are less precise than the waste codes required by the tracking document.
Section 3007(b) of RCRA and 40 CFR part 2, subpart B, which defines EPA's
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 exporters, importers, transporters, and recognized traders. The Agency has determined that between 22 and 25 percent of exporters, importers, and recognized traders, and approximately 80 percent of transporters, are small entities, for a total of 555 small entities, may experience an impact between 0.1 and 0.3 percent of annual revenues. Thus, the average costs of the rule, on a per entity basis, is expected to be less than one percent of annual revenues for any regulated entity. Details of this analysis are presented in the document titled “Regulatory Impact Analysis: EPA's Hazardous Waste Export-Import Revisions Final Rule,” which is available in the docket.
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. Further, UMRA does not apply to the portions of this action concerning application of OECD import and export procedures because those portions are necessary for the national security or the ratification or implementation of international treaty obligations (
This action does not have federalism implications because the state and local governments do not administer the export and import requirements under RCRA. 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. No exporters, importers or transporters affected by this action are known to be owned by Tribal governments or located within or adjacent to Tribal lands. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2–202 of the Executive Order. 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. The procedural requirements in this action should prevent mismanagement of hazardous wastes in foreign countries and better document proper management of imported hazardous wastes in the United States.
This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This action will have little to no effect on the supply, distribution, or use of energy, as this action is intended to prevent mismanagement of hazardous wastes in foreign countries and better document proper management of imported hazardous wastes in the United States.
This rulemaking does not involve technical standards.
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 this action should prevent mismanagement of hazardous wastes in foreign countries and better document proper management of imported hazardous wastes in the United States. Specifically, this action is designed to increase tracking of individual hazardous waste import and export shipments, improve regulatory efficiency and improve information collection on imports and exports of hazardous wastes subject to RCRA notice and consent requirements.
Executive Order 13659, titled “Streamlining the Export/Import Process for America's Businesses” (79 FR 10657, February 25, 2014), establishes federal executive policy on improving the technologies, policies, and other controls governing the movement of goods across our national borders. It directs participating agencies to have capabilities, agreements, and other requirements in place by December 31, 2016, to utilize the ITDS and supporting systems as the primary means of receiving from users the standard set of data and other relevant documentation (exclusive of applications for permits, licenses, or certifications) required for the release of imported cargo and clearance of cargo for export. To meet the requirement of
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 procedure, Confidential business information, Hazardous waste, Incorporation by reference.
Environmental protection, Hazardous materials, Intergovernmental relations, Recycling, Waste treatment and disposal.
Environmental protection, Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, International organizations, Labeling, Packaging and containers, Recycling, Reporting and recordkeeping requirements.
Environmental protection, Exports, Hazardous materials transportation.
Environmental protection, Hazardous waste, Imports, Packaging and containers, Reporting and recordkeeping requirements.
Environmental protection, Hazardous waste, Imports, Packaging and containers, Reporting and recordkeeping requirements.
Environmental protection, Exports, Hazardous recyclable materials, Imports, Precious metal recovery, Recycling, Spent lead-acid batteries, Waste treatment and disposal.
Environmental protection, Hazardous waste, Imports, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Hazardous materials transportation, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
Environmental protection, Exports, Imports, Universal waste.
For the reasons stated in the preamble, EPA amends title 40, chapter 1 of the Code of Federal Regulations as follows:
42 U.S.C. 6905, 6912(a), 6921–6927, 6930, 6934, 6935, 6937, 6938, 6939, and 6974.
(g) The following materials are available for purchase from the Organization for Economic Cooperation and Development, Environment Directorate, 2 rue André Pascal, F–75775 Paris Cedex 16, France.
(1) Guidance Manual for the Control of Transboundary Movements of Recoverable Wastes, copyright 2009, Annex B: OECD Consolidated List of Wastes Subject to the Green Control Procedure and Annex C: OECD Consolidated List of Wastes Subject to the Amber Control Procedure, IBR approved for §§ 262.82(a), 262.83(b),(d), and (g), and 262.84(b) and (d) of this chapter.
(2) [Reserved]
42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 6938.
The revisions and additions read as follows:
(d) * * * (1) Except as provided in paragraphs (d)(2) and (4) of this section, a sample of solid waste or a sample of water, soil, or air, which is collected for the sole purpose of testing to determine its characteristics or composition, is not subject to any requirements of this part or parts 262 through 268 or part 270 or part 124 of this chapter or to the
(4) In order to qualify for the exemption in paragraphs (d)(1)(i) and (ii) of this section, the mass of a sample that will be exported to a foreign laboratory or that will be imported to a U.S. laboratory from a foreign source must additionally not exceed 25 kg.
(e) * * * (1) Except as provided in paragraphs (e)(2) and (4) of this section, persons who generate or collect samples for the purpose of conducting treatability studies as defined in 40 CFR 260.10, are not subject to any requirement of 40 CFR parts 261 through 263 or to the notification requirements of Section 3010 of RCRA, nor are such samples included in the quantity determinations of 40 CFR 261.5 and 262.34(d) when:
(4) In order to qualify for the exemption in paragraph (e)(1)(i) of this section, the mass of a sample that will be exported to a foreign laboratory or testing facility, or that will be imported to a U.S. laboratory or testing facility from a foreign source must additionally not exceed 25 kg.
(a) * * *
(3) * * *
(i) Industrial ethyl alcohol that is reclaimed except that exports and imports of such recyclable materials must comply with the requirements of 40 CFR part 262, subpart H.
(5) Hazardous waste that is exported or imported for purpose of recovery is subject to the requirements of 40 CFR part 262, subpart H.
(a) * * *
(5) * * *
(ii) Notifications must be submitted electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system.
(v) The export of CRTs is prohibited unless all of the following occur:
(A) The receiving country consents to the intended export. When the receiving country consents in writing to the receipt of the CRTs, EPA will forward an Acknowledgment of Consent to Export CRTs to the exporter. Where the receiving country objects to receipt of the CRTs or withdraws a prior consent, EPA will notify the exporter in writing. EPA will also notify the exporter of any responses from transit countries.
(B) On or after the AES filing compliance date, the exporter or a U.S. authorized agent must:
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(vi) When the conditions specified on the original notification change, the exporter must provide EPA with a written renotification of the change using the allowable methods listed in paragraph (a)(5)(ii) of this section, except for changes to the telephone number in paragraph (a)(5)(i)(A) of this section and decreases in the quantity indicated pursuant to paragraph (a)(5)(i)(C) of this section. The shipment cannot take place until consent of the receiving country to the changes has been obtained (except for changes to information about points of entry and departure and transit countries pursuant to paragraphs (a)(5)(i)(D) and (H) of this section) and the exporter of CRTs receives from EPA a copy of the Acknowledgment of Consent to Export CRTs reflecting the receiving country's consent to the changes.
(ix) Exporters must keep copies of notifications and Acknowledgments of Consent to Export CRTs for a period of three years following receipt of the Acknowledgment. Exporters may satisfy this recordkeeping requirement by retaining electronically submitted notifications or electronically generated Acknowledgements in the CRT exporter's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that such copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No CRT exporter may be held liable for the inability to produce a notification or Acknowledgement for inspection under this section if the CRT exporter can demonstrate that the inability to produce such copies are due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system for which the CRT exporter bears no responsibility.
(xi) Prior to one year after the AES filing compliance date, annual reports must be sent to the following mailing address: Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division, (Mail Code 2254A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460. Hand-delivered annual reports on used CRTs exported during 2016 should be sent to: Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division, (Mail Code 2254A), Environmental Protection Agency, Ariel Rios Bldg., Room 6144, 1200 Pennsylvania Ave. NW., Washington, DC. Subsequently, annual reports must be submitted to the office listed using the allowable methods specified in paragraph (a)(5)(ii) of this section. Exporters must keep copies of each annual report for a period of at least three years from the due date of the report. Exporters may satisfy this recordkeeping requirement by retaining electronically submitted annual reports in the CRT exporter's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that a copy is readily available for viewing and production if requested by any EPA or authorized state inspector. No CRT exporter may be held liable for the inability to produce an annual report for inspection under this section if the CRT exporter can demonstrate that the inability to produce the annual report is due
42 U.S.C 6906, 6912, 6922–6925, 6937, and 6938.
(d) Any person who exports or imports hazardous wastes must comply with § 262.12 and subpart H of this part.
(d) A recognized trader must not arrange for import or export of hazardous waste without having received an EPA identification number from the Administrator.
(b) * * * A separate annual report requirement is set forth at § 262.83(g) for hazardous waste exporters.
(a) The requirements of this subpart apply to transboundary movements of hazardous wastes.
(b) Any person (including exporter, importer, disposal facility operator, or recovery facility operator) who mixes two or more wastes (including hazardous and non-hazardous wastes) or otherwise subjects two or more wastes (including hazardous and non-hazardous wastes) to physical or chemical transformation operations, and thereby creates a new hazardous waste, becomes a generator and assumes all subsequent generator duties under RCRA and any exporter duties, if applicable, under this subpart.
In addition to the definitions set forth at 40 CFR 260.10, the following definitions apply to this subpart:
(1) D1 Release or Deposit into or onto land, other than by any of operations D2 through D5 or D12.
(2) D2 Land treatment, such as biodegradation of liquids or sludges in soils.
(3) D3 Deep injection, such as injection into wells, salt domes or naturally occurring repositories.
(4) D4 Surface impoundment, such as placing of liquids or sludges into pits, ponds or lagoons.
(5) D5 Specially engineered landfill, such as placement into lined discrete cells which are capped and isolated from one another and the environment.
(6) D6 Release into a water body other than a sea or ocean, and other than by operation D4.
(7) D7 Release into a sea or ocean, including sea-bed insertion, other than by operation D4.
(8) D8 Biological treatment not specified elsewhere in operations D1 through D12, which results in final compounds or mixtures which are discarded by means of any of operations D1 through D12.
(9) D9 Physical or chemical treatment not specified elsewhere in operations D1 through D12, such as evaporation, drying, calcination, neutralization, or precipitation, which results in final compounds or mixtures which are discarded by means of any of operations D1through D12.
(10) D10 Incineration on land.
(11) D11 Incineration at sea.
(12) D12 Permanent storage.
(13) D13 Blending or mixing, prior to any of operations D1 through D12.
(14) D14 Repackaging, prior to any of operations D1 through D13.
(15) D15 (or DC17 for transboundary movements with Canada only) Interim Storage, prior to any of operations D1 through D12.
(16) DC15 Release, including the venting of compressed or liquified gases, or treatment, other than by any of operations D1 to D12 (for transboundary movements with Canada only).
(17) DC16 Testing of a new technology to dispose of a hazardous waste (for transboundary movements with Canada only).
(1) R1 Use as a fuel (other than in direct incineration) or other means to generate energy.
(2) R2 Solvent reclamation/regeneration.
(3) R3 Recycling/reclamation of organic substances which are not used as solvents.
(4) R4 Recycling/reclamation of metals and metal compounds.
(5) R5 Recycling/reclamation of other inorganic materials.
(6) R6 Regeneration of acids or bases.
(7) R7 Recovery of components used for pollution abatement.
(8) R8 Recovery of components used from catalysts.
(9) R9 Used oil re-refining or other reuses of previously used oil.
(10) R10 Land treatment resulting in benefit to agriculture or ecological improvement.
(11) R11 Uses of residual materials obtained from any of the operations numbered R1 through R10 or RC14 (for transboundary shipments with Canada only).
(12) R12 Exchange of wastes for submission to any of the operations numbered R1 through R11 or RC14 (for transboundary shipments with Canada only).
(13) R13 Accumulation of material intended for any operation numbered R1 through R12 or RC14 (for transboundary shipments with Canada only).
(14) RC14 Recovery or regeneration of a substance or use or re-use of a recyclable material, other than by any of operations R1 to R10 (for transboundary shipments with Canada only).
(15) RC15 Testing of a new technology to recycle a hazardous recyclable material (for transboundary shipments with Canada only).
(16) RC16 Interim storage prior to any of operations R1 to R11 or RC14 (for transboundary shipments with Canada only).
(a)
(1)
(ii) Green wastes that are hazardous wastes are subject to the requirements of this subpart.
(2)
(A) For exports, the exporter must comply with § 262.83.
(B) For imports, the recovery or disposal facility and the importer must comply with § 262.84.
(ii) Amber wastes that are not hazardous wastes, but are considered hazardous by the other country are subject to the Amber control procedures in the country that considers the waste hazardous, and are not subject to the requirements of this subpart. All responsibilities of the importer or exporter shift to the foreign importer or foreign exporter in the other country that considers the waste hazardous unless the parties make other arrangements through contracts.
Some Amber list wastes are not listed or otherwise identified as hazardous under RCRA, and therefore are not subject to the requirements of this subpart. Regardless of the status of the waste under RCRA, however, other Federal environmental statutes (
(3)
The regulated community should note that some countries may require, by domestic law, that mixtures of different Green wastes be subject to the Amber control procedures.
(ii) A Green waste that is mixed with one or more Amber wastes, in any amount, de minimis or otherwise, or a mixture of two or more Amber wastes, such that the resulting waste mixture is hazardous waste is subject to the requirements of this subpart.
The regulated community should note that some countries may require, by domestic law, that a mixture of a Green waste and more than a de minimis amount of an Amber waste or a mixture of two or more Amber wastes be subject to the Amber control procedures.
(4) Wastes not yet assigned to an OECD waste list are eligible for transboundary movements, as follows:
(i) If such wastes are hazardous wastes, such wastes are subject to the requirements of this subpart.
(ii) If such wastes are not hazardous wastes, such wastes are not subject to the requirements of this subpart.
(b)
(2) The transboundary movement must be in compliance with applicable international transport agreements; and
These international agreements include, but are not limited to, the Chicago Convention (1944), ADR (1957), ADNR (1970), MARPOL Convention (1973/1978), SOLAS Convention (1974), IMDG Code (1985), COTIF (1985), and RID (1985).
(3) Any transit of hazardous waste through one or more countries must be conducted in compliance with all applicable international and national laws and regulations.
(c)
(d)
(e)
(1) For postal mail delivery, the Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division (2254A), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460.
(2) For hand-delivery, the Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division, Environmental Protection Agency, William Jefferson Clinton South Bldg., Room 6144, 12th St. and Pennsylvania Ave NW., Washington, DC 20004.
(a)
(1) The exporter complies with the contract requirements in paragraph (f) of this section;
(2) The exporter complies with the notification requirements in paragraph (b) of this section;
(3) The exporter receives an AOC from EPA documenting consent from the countries of import and transit (and original country of export if exporting previously imported hazardous waste);
(4) The exporter ensures compliance with the movement documents requirements in paragraph (d) of this section;
(5) The exporter ensures compliance with the manifest instructions for export shipments in paragraph (c) of this section; and
(6) The exporter or a U.S. authorized agent:
(i) For shipments initiated prior to the AES filing compliance date, does one of the following:
(A) Submits Electronic Export Information (EEI) for each shipment to the Automated Export System (AES) or its successor system, under the International Trade Data System (ITDS) platform, in accordance with 15 CFR 30.4(b), and includes the following items in the EEI, along with the other information required under 15 CFR 30.6:
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(B) Complies with a paper-based process by:
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(ii) For shipments initiated on or after the AES filing compliance date, submits Electronic Export Information (EEI) for each shipment to the Automated Export System (AES) or its successor system, under the International Trade Data System (ITDS) platform, in accordance with 15 CFR 30.4(b), and includes the following items in the EEI, along with the other information required under 15 CFR 30.6:
(A) EPA license code;
(B) Commodity classification code for each hazardous waste per 15 CFR 30.6(a)(12);
(C) EPA consent number for each hazardous waste;
(D) Country of ultimate destination code per 15 CFR 30.6(a)(5);
(E) Date of export per 15 CFR 30.6(a)(2);
(F) RCRA hazardous waste manifest tracking number, if required;
(G) Quantity of each hazardous waste in shipment and units for reported quantity, if required reporting units established by value for the reported commodity classification number are in units of weight or volume per 15 CFR 30.6(a)(15); or
(H) EPA net quantity for each hazardous waste reported in units of kilograms if solid or in units of liters if liquid, if required reporting units established by value for the reported commodity classification number are not in units of weight or volume.
(b)
(i) Exporter name and EPA identification number, address, telephone, fax numbers, and email address;
(ii) Foreign receiving facility name, address, telephone, fax numbers, email address, technologies employed, and the applicable recovery or disposal operations as defined in § 262.81;
(iii) Foreign importer name (if not the owner or operator of the foreign receiving facility), address, telephone, fax numbers, and email address;
(iv) Intended transporter(s) and/or their agent(s); address, telephone, fax, and email address;
(v) “U.S.” as the country of export name, “USA01” as the relevant competent authority code, and the intended U.S. port(s) of exit;
(vi) The ISO standard 3166 country name 2-digit code, OECD/Basel competent authority code, and the ports of entry and exit for each country of transit;
(vii) The ISO standard 3166 country name 2-digit code, OECD/Basel competent authority code, and port of entry for the country of import;
(viii) Statement of whether the notification covers a single shipment or multiple shipments;
(ix) Start and End Dates requested for transboundary movements;
(x) Means of transport planned to be used;
(xi) Description(s) of each hazardous waste, including whether each hazardous waste is regulated universal waste under 40 CFR part 273, or the state equivalent, spent lead-acid batteries being exported for recovery of lead under 40 CFR part 266, subpart G, or the state equivalent, or industrial ethyl alcohol being exported for reclamation under 40 CFR 261.6(a)(3)(i), or the state equivalent, estimated total quantity of each waste in either metric tons or cubic meters, the applicable RCRA waste code(s) for each hazardous waste, the applicable OECD waste code from the lists incorporated by reference in 40 CFR 260.11, and the United Nations/U.S. Department of Transportation (DOT) ID number for each waste;
(xii) Specification of the recovery or disposal operation(s) as defined in § 262.81.
(xiii) Certification/Declaration signed by the exporter that states:
I certify that the above information is complete and correct to the best of my knowledge. I also certify that legally enforceable written contractual obligations have been entered into and that any applicable insurance or other financial guarantee is or shall be in force covering the transboundary movement.
(2)
(3) Notifications listing interim recycling operations or interim disposal operations. If the foreign receiving facility listed in paragraph (b)(1)(ii) of this section will engage in any of the interim recovery operations R12 or R13 or interim disposal operations D13 through D15, or in the case of transboundary movements with Canada, any of the interim recovery operations R12, R13, or RC16, or interim disposal operations D13 to D14, or DC17, the notification submitted according to paragraph (b)(1) of this section must also include the final foreign recovery or disposal facility name, address, telephone, fax numbers, email address, technologies employed, and which of the applicable recovery or disposal operations R1 through R11 and D1 through D12, or in the case of transboundary movements with Canada, which of the applicable recovery or disposal operations R1 through R11, RC14 to RC15, D1 through D12, and DC15 to DC16 will be employed at the final foreign recovery or disposal facility. The recovery and disposal operations in this paragraph are defined in § 262.81.
(4)
(5) For cases where the proposed country of import and recovery or disposal operations are not covered under an international agreement to which both the United States and the country of import are parties, EPA will coordinate with the Department of State to provide the complete notification to country of import and any countries of transit. In all other cases, EPA will provide the notification directly to the country of import and any countries of transit. A notification is complete when EPA receives a notification which EPA determines satisfies the requirements of paragraph (b)(1)(i) through (b)(1)(xiii) of this section. Where a claim of confidentiality is asserted with respect to any notification information required by paragraphs (b)(1)(i) through (b)(1)(xiii) of this section, EPA may find the notification not complete until any such claim is resolved in accordance with 40 CFR 260.2.
(6) Where the countries of import and transit consent to the proposed transboundary movement(s) of the hazardous waste(s), EPA will forward an EPA AOC letter to the exporter documenting the countries' consents. Where any of the countries of import and transit objects to the proposed transboundary movement(s) of the hazardous waste or withdraws a prior consent, EPA will notify the exporter.
(7) Export of hazardous wastes for recycling or disposal operations that were originally imported into the United States for recycling or disposal operations in a third country is prohibited unless an exporter in the United States complies with the export requirements in § 262.83, including providing notification to EPA in accordance with paragraph (b)(1) of this section. In addition to listing all required information in paragraphs (b)(1)(i) through (b)(1)(xiii) of this section, the exporter must provide the original consent number issued for the initial import of the wastes in the notification, and receive an AOC from EPA documenting the consent of the competent authorities in new country of import, the original country of export, and any transit countries prior to re-export.
(8) Upon request by EPA, the exporter must furnish to EPA any additional information which the country of import requests in order to respond to a notification.
(c)
(1) In lieu of the name, site address and EPA ID number of the designated permitted facility, the exporter must enter the name and site address of the foreign receiving facility;
(2) In the International Shipments block, the exporter must check the export box and enter the U.S. port of exit (city and State) from the United States.
(3) The exporter must list the consent number from the AOC for each hazardous waste listed on the manifest, matched to the relevant list number for the hazardous waste from block 9b. If additional space is needed, the exporter should use a Continuation Sheet(s) (EPA Form 8700–22A).
(4) The exporter may obtain the manifest from any source that is registered with the U.S. EPA as a supplier of manifests (
(d)
(i) For shipments of hazardous waste within the United States solely by water (bulk shipments only), the exporter must forward the movement document to the last water (bulk shipment) transporter to handle the hazardous waste in the United States if exported by water.
(ii) For rail shipments of hazardous waste within the United States which start from the company originating the export shipment, the exporter must forward the movement document to the next non-rail transporter, if any, or the last rail transporter to handle the hazardous waste in the United States if exported by rail.
(2) The movement document must include the following paragraphs (d)(2)(i) through (xv) of this section:
(i) The corresponding consent number(s) and hazardous waste number(s) for the listed hazardous waste from the relevant EPA AOC(s);
(ii) The shipment number and the total number of shipments from the EPA AOC;
(iii) Exporter name and EPA identification number, address, telephone, fax numbers, and email address;
(iv) Foreign receiving facility name, address, telephone, fax numbers, email address, technologies employed, and the applicable recovery or disposal operations as defined in § 262.81;
(v) Foreign importer name (if not the owner or operator of the foreign receiving facility), address, telephone, fax numbers, and email address;
(vi) Description(s) of each hazardous waste, quantity of each hazardous waste in the shipment, applicable RCRA hazardous waste code(s) for each hazardous waste, applicable OECD waste code for each hazardous waste from the lists incorporated by reference in 40 CFR 260.11, and the United Nations/U.S. Department of Transportation (DOT) ID number for each hazardous waste;
(vii) Date movement commenced;
(viii) Name (if not exporter), address, telephone, fax numbers, and email of company originating the shipment;
(ix) Company name, EPA ID number, address, telephone, fax, and email address of all transporters;
(x) Identification (license, registered name or registration number) of means of transport, including types of packaging;
(xi) Any special precautions to be taken by transporter(s);
(xii) Certification/declaration signed and dated by the exporter that the information in the movement document is complete and correct;
(xiii) Appropriate signatures for each custody transfer (
(xiv) Each U.S. person that has physical custody of the hazardous waste from the time the movement commences until it arrives at the foreign receiving facility must sign the movement document (
(xv) As part of the contract requirements per paragraph (f) of this section, the exporter must require that the foreign receiving facility send a copy of the signed movement document to confirm receipt within three working days of shipment delivery to the exporter, to the competent authorities of the countries of import and transit, and for shipments occurring on or after the electronic import-export reporting compliance date, the exporter must additionally require that the foreign receiving facility send a copy to EPA at the same time using the allowable methods listed in paragraph (b)(1) of this section.
(e)
(f)
(2) Contracts or equivalent arrangements must specify the name and EPA ID number, where available, of paragraph (f)(2)(i) through (iv) of this section:
(i) The company from where each export shipment of hazardous waste is initiated;
(ii) Each person who will have physical custody of the hazardous wastes;
(iii) Each person who will have legal control of the hazardous wastes; and
(iv) The foreign receiving facility.
(3) Contracts or equivalent arrangements must specify which party to the contract will assume responsibility for alternate management of the hazardous wastes if their disposition cannot be carried out as described in the notification of intent to export. In such cases, contracts must specify that:
(i) The transporter or foreign receiving facility having actual possession or physical control over the hazardous wastes will immediately inform the exporter, EPA, and either the competent authority of the country of transit or the competent authority of the country of import of the need to make alternate management arrangements; and
(ii) The person specified in the contract will assume responsibility for the adequate management of the hazardous wastes in compliance with applicable laws and regulations including, if necessary, arranging the return of hazardous wastes and, as the case may be, shall provide the notification for re-export to the competent authority in the country of import and include the equivalent of the information required in paragraph (b)(1) of this section, the original consent number issued for the initial export of the hazardous wastes in the notification, and obtain consent from EPA and the competent authorities in the new country of import and any transit countries prior to re-export.
(4) Contracts must specify that the foreign receiving facility send a copy of the signed movement document to confirm receipt within three working days of shipment delivery to the exporter and to the competent authorities of the countries of import and transit. For contracts that will be in effect on or after the electronic import-export reporting compliance date, the contracts must additionally specify that the foreign receiving facility send a copy to EPA at the same time using the allowable methods listed in paragraph (b)(1) of this section on or after that date.
(5) Contracts must specify that the foreign receiving facility shall send a copy of the signed and dated confirmation of recovery or disposal, as soon as possible, but no later than thirty days after completing recovery or disposal on the waste in the shipment and no later than one calendar year following receipt of the waste, to the exporter and to the competent authority of the country of import. For contracts that will be in effect on or after the electronic import-export reporting compliance date, the contracts must additionally specify that the foreign receiving facility send a copy to EPA at the same time using the allowable methods listed in paragraph (b)(1) of this section on or after that date.
(6) Contracts must specify that the foreign importer or the foreign receiving facility that performed interim recycling operations R12, R13, or RC16, or interim disposal operations D13 through D15 or DC17, (recovery and disposal operations defined in 40 CFR 262.81) as appropriate, will:
(i) Provide the notification required in paragraph (f)(3)(ii) of this section prior to any re-export of the hazardous wastes to a final foreign recovery or disposal facility in a third country; and
(ii) Promptly send copies of the confirmation of recovery or disposal that it receives from the final foreign recovery or disposal facility within one year of shipment delivery to the final foreign recovery or disposal facility that performed one of recovery operations R1 through R11, or RC16, or one of disposal operations D1 through D12, DC15 or DC16 to the competent authority of the country of import. For contracts that will be in effect on or after the electronic import-export reporting compliance date, the contracts must additionally specify that the foreign facility send copies to EPA at the same time using the allowable method listed in paragraph (b)(1) of this section on or after that date.
(7) Contracts or equivalent arrangements must include provisions for financial guarantees, if required by the competent authorities of the country of import and any countries of transit, in accordance with applicable national or international law requirements.
Financial guarantees so required are intended to provide for alternate recycling, disposal or other means of sound management of the wastes in cases where arrangements for the shipment and the recovery operations cannot be carried out as foreseen. The United States does not require such financial guarantees at this time; however, some OECD Member countries and other foreign countries do. It is the responsibility of the exporter to ascertain and comply with such requirements; in some cases, persons or facilities located in those OECD Member countries or other foreign countries may refuse to enter into the necessary contracts absent specific references or certifications to financial guarantees.
(8) Contracts or equivalent arrangements must contain provisions requiring each contracting party to comply with all applicable requirements of this subpart.
(9) Upon request by EPA, U.S. exporters, importers, or recovery facilities must submit to EPA copies of contracts, chain of contracts, or equivalent arrangements (when the movement occurs between parties controlled by the same corporate or legal entity). Information contained in the contracts or equivalent arrangements for which a claim of confidentiality is asserted in accordance with 40 CFR 2.203(b) will be treated as confidential and will be disclosed by EPA only as provided in 40 CFR 260.2.
(g
(1) The EPA identification number, name, and mailing and site address of the exporter filing the report;
(2) The calendar year covered by the report;
(3) The name and site address of each foreign receiving facility;
(4) By foreign receiving facility, for each hazardous waste exported:
(i) A description of the hazardous waste;
(ii) The applicable EPA hazardous waste code(s) (from 40 CFR part 261, subpart C or D) for each waste;
(iii) The applicable waste code from the appropriate OECD waste list incorporated by reference in 40 CFR 260.11;
(iv) The applicable DOT ID number;
(v) The name and U.S. EPA ID number (where applicable) for each transporter used over the calendar year covered by the report; and
(vi) The consent number(s) under which the hazardous waste was shipped, and for each consent number, the total amount of the hazardous waste and the number of shipments exported during the calendar year covered by the report;
(5) In even numbered years, for each hazardous waste exported, except for hazardous waste produced by exporters of greater than 100kg but less than 1,000kg in a calendar month, and except for hazardous waste for which information was already provided pursuant to § 262.41:
(i) A description of the efforts undertaken during the year to reduce the volume and toxicity of the waste generated; and
(ii) A description of the changes in volume and toxicity of the waste actually achieved during the year in comparison to previous years to the extent such information is available for years prior to 1984; and
(6) A certification signed by the exporter that states:
I certify under penalty of law that I have personally examined and am familiar with the information submitted in this and all attached documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment.
(h)
(i) The exporter has not received a copy of the RCRA hazardous waste manifest (if applicable) signed by the transporter identifying the point of departure of the hazardous waste from the United States, within forty-five (45) days from the date it was accepted by the initial transporter, in which case the exporter must file the exception report within the next thirty (30) days;
(ii) The exporter has not received a written confirmation of receipt from the foreign receiving facility in accordance with paragraph (d) of this section within ninety (90) days from the date the waste was accepted by the initial transporter in which case the exporter must file the exception report within the next thirty (30) days; or
(iii) The foreign receiving facility notifies the exporter, or the country of import notifies EPA, of the need to return the shipment to the U.S. or arrange alternate management, in which case the exporter must file the exception report within thirty (30) days of notification, or one (1) day prior to the date the return shipment commences, whichever is sooner.
(2) Prior to the electronic import-export reporting compliance date, exception reports must be mailed or hand delivered to EPA using the addresses listed in § 262.82(e). Subsequently, exception reports must be submitted to EPA using the allowable methods listed in paragraph (b)(1) of this section.
(i)
(i) A copy of each notification of intent to export and each EPA AOC for a period of at least three (3) years from the date the hazardous waste was accepted by the initial transporter;
(ii) A copy of each annual report for a period of at least three (3) years from the due date of the report;
(iii) A copy of any exception reports and a copy of each confirmation of receipt (
(iv) A copy of each confirmation of recovery or disposal sent by the foreign receiving facility to the exporter for at least three (3) years from the date that the foreign receiving facility completed interim or final processing of the hazardous waste shipment.
(v) A copy of each contract or equivalent arrangement established per § 262.85 for at least three (3) years from the expiration date of the contract or equivalent arrangement.
(2) Exporters may satisfy these recordkeeping requirements by retaining electronically submitted documents in the exporter's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No exporter may be held liable for the inability to produce such documents for inspection under this section if the exporter can demonstrate that the inability to produce the document is due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system for which the exporter bears no responsibility.
(3) The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Administrator.
(a)
(2) In cases where the country of export does not require the foreign exporter to submit a notification and obtain consent to the export prior to shipment, the importer must submit a notification to EPA in accordance with paragraph (b) of this section.
(3) The importer must comply with the contract requirements in paragraph (f) of this section.
(4) The importer must ensure compliance with the movement documents requirements in paragraph (d) of this section; and
(5) The importer must ensure compliance with the manifest instructions for import shipments in paragraph (c) of this section.
(b)
(1) The importer is required to provide notification in English to EPA
(i) Foreign exporter name, address, telephone, fax numbers, and email address;
(ii) Receiving facility name, EPA ID number, address, telephone, fax numbers, email address, technologies employed, and the applicable recovery or disposal operations as defined in § 262.81;
(iii) Importer name (if not the owner or operator of the receiving facility), EPA ID number, address, telephone, fax numbers, and email address;
(iv) Intended transporter(s) and/or their agent(s); address, telephone, fax, and email address;
(v) “U.S.” as the country of import, “USA01” as the relevant competent authority code, and the intended U.S. port(s) of entry;
(vi) The ISO standard 3166 country name 2-digit code, OECD/Basel competent authority code, and the ports of entry and exit for each country of transit;
(vii) The ISO standard 3166 country name 2-digit code, OECD/Basel competent authority code, and port of exit for the country of export;
(viii) Statement of whether the notification covers a single shipment or multiple shipments;
(ix) Start and End Dates requested for transboundary movements;
(x) Means of transport planned to be used;
(xi) Description(s) of each hazardous waste, including whether each hazardous waste is regulated universal waste under 40 CFR part 273, or the state equivalent, spent lead-acid batteries being exported for recovery of lead under 40 CFR part 266, subpart G, or the state equivalent, or industrial ethyl alcohol being exported for reclamation under 40 CFR 261.6(a)(3)(i), or the state equivalent, estimated total quantity of each hazardous waste, the applicable RCRA hazardous waste code(s) for each hazardous waste, the applicable OECD waste code from the lists incorporated by reference in 40 CFR 260.11, and the United Nations/U.S. Department of Transportation (DOT) ID number for each hazardous waste;
(xii) Specification of the recovery or disposal operation(s) as defined in § 262.81; and
(xiii) Certification/Declaration signed by the importer that states:
I certify that the above information is complete and correct to the best of my knowledge. I also certify that legally enforceable written contractual obligations have been entered into and that any applicable insurance or other financial guarantee is or shall be in force covering the transboundary movement.
The United States does not currently require financial assurance for these waste shipments.
(2) Notifications listing interim recycling operations or interim disposal operations. If the receiving facility listed in paragraph (b)(1)(ii) of this section will engage in any of the interim recovery operations R12 or R13 or interim disposal operations D13 through D15, the notification submitted according to paragraph (b)(1) of this section must also include the final recovery or disposal facility name, address, telephone, fax numbers, email address, technologies employed, and which of the applicable recovery or disposal operations R1 through R11 and D1 through D12, will be employed at the final recovery or disposal facility. The recovery and disposal operations in this paragraph are defined in § 262.81.
(3)
(4) A notification is complete when EPA determines the notification satisfies the requirements of paragraph (b)(1)(i) through (xiii) of this section. Where a claim of confidentiality is asserted with respect to any notification information required by paragraphs (b)(1)(i) through (xiii) of this section, EPA may find the notification not complete until any such claim is resolved in accordance with 40 CFR 260.2.
(5) Where EPA and the countries of transit consent to the proposed transboundary movement(s) of the hazardous waste(s), EPA will forward an EPA AOC letter to the importer documenting the countries' consents and EPA's consent. Where any of the countries of transit or EPA objects to the proposed transboundary movement(s) of the hazardous waste or withdraws a prior consent, EPA will notify the importer.
(6) Export of hazardous wastes originally imported into the United States. Export of hazardous wastes that were originally imported into the United States for recycling or disposal operations is prohibited unless an exporter in the United States complies with the export requirements in § 262.83(b)(7).
(c)
(i) In place of the generator's name, address and EPA identification number, the name and address of the foreign generator and the importer's name, address and EPA identification number must be used.
(ii) In place of the generator's signature on the certification statement, the importer or his agent must sign and date the certification and obtain the signature of the initial transporter.
(2) The importer may obtain the manifest form from any source that is registered with the EPA as a supplier of manifests (
(3) In the International Shipments block, the importer must check the import box and enter the point of entry (city and State) into the United States.
(4) The importer must provide the transporter with an additional copy of the manifest to be submitted by the receiving facility to U.S. EPA in accordance with 40 CFR 264.71(a)(3) and 265.71(a)(3).
(5) In lieu of the requirements of § 262.20(d), where a shipment cannot be delivered for any reason to the receiving facility, the importer must instruct the transporter in writing via fax, email or mail to:
(i) Return the hazardous waste to the foreign exporter or designate another facility within the United States; and
(ii) Revise the manifest in accordance with the importer's instructions.
(d)
(i) For shipments of hazardous waste within the United States by water (bulk shipments only), the importer must forward the movement document to the last water (bulk shipment) transporter to handle the hazardous waste in the United States if imported by water.
(ii) For rail shipments of hazardous waste within the United States which start from the company originating the export shipment, the importer must forward the movement document to the next non-rail transporter, if any, or the last rail transporter to handle the hazardous waste in the United States if imported by rail.
(2) The movement document must include the following paragraphs (d)(2)(i) through (xv) of this section:
(i) The corresponding AOC number(s) and waste number(s) for the listed waste;
(ii) The shipment number and the total number of shipments under the AOC number;
(iii) Foreign exporter name, address, telephone, fax numbers, and email address;
(iv) Receiving facility name, EPA ID number, address, telephone, fax numbers, email address, technologies employed, and the applicable recovery or disposal operations as defined in § 262.81;
(v) Importer name (if not the owner or operator of the receiving facility), EPA ID number, address, telephone, fax numbers, and email address;
(vi) Description(s) of each hazardous waste, quantity of each hazardous waste in the shipment, applicable RCRA hazardous waste code(s) for each hazardous waste, the applicable OECD waste code for each hazardous waste from the lists incorporated by reference in 40 CFR 260.11, and the United Nations/U.S. Department of Transportation (DOT) ID number for each hazardous waste;
(vii) Date movement commenced;
(viii) Name (if not the foreign exporter), address, telephone, fax numbers, and email of the foreign company originating the shipment;
(ix) Company name, EPA ID number, address, telephone, fax, and email address of all transporters;
(x) Identification (license, registered name or registration number) of means of transport, including types of packaging;
(xi) Any special precautions to be taken by transporter(s);
(xii) Certification/declaration signed and dated by the foreign exporter that the information in the movement document is complete and correct;
(xiii) Appropriate signatures for each custody transfer (
(xiv) Each person that has physical custody of the waste from the time the movement commences until it arrives at the receiving facility must sign the movement document (
(xv) The receiving facility must send a copy of the signed movement document to confirm receipt within three working days of shipment delivery to the foreign exporter, to the competent authorities of the countries of export and transit, and for shipments received on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system.
(e)
(f)
(2) Contracts or equivalent arrangements must specify the name and EPA ID number, where available, of paragraph (f)(2)(i) through (iv) of this section:
(i) The foreign company from where each import shipment of hazardous waste is initiated;
(ii) Each person who will have physical custody of the hazardous wastes;
(iii) Each person who will have legal control of the hazardous wastes; and
(iv) The receiving facility.
(3) Contracts or equivalent arrangements must specify the use of a movement document in accordance with § 262.84(d).
(4) Contracts or equivalent arrangements must specify which party to the contract will assume responsibility for alternate management of the hazardous wastes if their disposition cannot be carried out as described in the notification of intent to export submitted by either the foreign exporter or the importer. In such cases, contracts must specify that:
(i) The transporter or receiving facility having actual possession or physical control over the hazardous wastes will immediately inform the foreign exporter and importer, and the competent authority where the shipment is located of the need to arrange alternate management or return; and
(ii) The person specified in the contract will assume responsibility for the adequate management of the hazardous wastes in compliance with applicable laws and regulations including, if necessary, arranging the return of the hazardous wastes and, as the case may be, shall provide the notification for re-export required in § 262.83(b)(7).
(5) Contracts must specify that the importer or the receiving facility that performed interim recycling operations R12, R13, or RC16, or interim disposal operations D13 through D15 or DC15 through DC17, as appropriate, will provide the notification required in § 262.83(b)(7) prior to the re-export of hazardous wastes. The recovery and disposal operations in this paragraph are defined in § 262.81.
(6) Contracts or equivalent arrangements must include provisions
Financial guarantees so required are intended to provide for alternate recycling, disposal or other means of sound management of the wastes in cases where arrangements for the shipment and the recovery operations cannot be carried out as foreseen. The United States does not require such financial guarantees at this time; however, some OECD Member countries or other foreign countries do. It is the responsibility of the importer to ascertain and comply with such requirements; in some cases, persons or facilities located in those countries may refuse to enter into the necessary contracts absent specific references or certifications to financial guarantees.
(7) Contracts or equivalent arrangements must contain provisions requiring each contracting party to comply with all applicable requirements of this subpart.
(8) Upon request by EPA, importers or disposal or recovery facilities must submit to EPA copies of contracts, chain of contracts, or equivalent arrangements (when the movement occurs between parties controlled by the same corporate or legal entity). Information contained in the contracts or equivalent arrangements for which a claim of confidentiality is asserted in accordance with 40 CFR 2.203(b) will be treated as confidential and will be disclosed by EPA only as provided in 40 CFR 260.2.
(g)
(1) Send copies of the signed and dated confirmation of recovery or disposal, as soon as possible, but no later than thirty days after completing recovery or disposal on the waste in the shipment and no later than one calendar year following receipt of the waste, to the foreign exporter, to the competent authority of the country of export, and for shipments recycled or disposed of on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system.
(2) If the receiving facility performed any of recovery operations R12, R13, or RC16, or disposal operations D13 through D15, or DC17, the receiving facility shall promptly send copies of the confirmation of recovery or disposal that it receives from the final recovery or disposal facility within one year of shipment delivery to the final recovery or disposal facility that performed one of recovery operations R1 through R11, or RC14 to RC15, or one of disposal operations D1 through D12, or DC15 to DC16, to the competent authority of the country of export, and for confirmations received on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The recovery and disposal operations in this paragraph are defined in § 262.81.
(h)
(i) A copy of each notification that the importer sends to EPA under paragraph (b)(1) of this section and each EPA AOC it receives in response for a period of at least three (3) years from the date the hazardous waste was accepted by the initial foreign transporter; and
(ii) A copy of each contract or equivalent arrangement established per paragraph (f) of this section for at least three (3) years from the expiration date of the contract or equivalent arrangement.
(2) The receiving facility shall keep the following records:
(i) A copy of each confirmation of receipt (
(ii) A copy of each confirmation of recovery or disposal that the receiving facility sends to the foreign exporter for at least three (3) years from the date that it completed processing the waste shipment;
(iii) For the receiving facility that performed any of recovery operations R12, R13, or RC16, or disposal operations D13 through D15, or DC17 (recovery and disposal operations defined in § 262.81), a copy of each confirmation of recovery or disposal that the final recovery or disposal facility sent to it for at least three (3) years from the date that the final recovery or disposal facility completed processing the waste shipment; and
(iv) A copy of each contract or equivalent arrangement established per paragraph (f) of this section for at least three (3) years from the expiration date of the contract or equivalent arrangement.
(3) Importers and receiving facilities may satisfy these recordkeeping requirements by retaining electronically submitted documents in the importer's or receiving facility's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No importer or receiving facility may be held liable for the inability to produce such documents for inspection under this section if the importer or receiving facility can demonstrate that the inability to produce the document is due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system for which the importer or receiving facility bears no responsibility.
(4) The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Administrator.
42 U.S.C. 6906, 6912, 6922–6925, 6937, and 6938.
The revisions read as follows:
(d) A transporter of hazardous waste that is being imported from or exported to any other country for purposes of recovery or disposal is subject to this Subpart and to all other relevant requirements of subpart H of 40 CFR part 262, including, but not limited to, 40 CFR 262.83(d) and 262.84(d) for movement documents.
(a) * * *
(2)
(c) The transporter must ensure that the manifest accompanies the hazardous waste. In the case of exports occurring under the terms of a consent issued by EPA to the exporter on or after December 31, 2016, the transporter must ensure that a movement document that includes all information required by 40 CFR 262.83(d) also accompanies the hazardous waste. In the case of imports occurring under the terms of a consent issued by EPA to the country of export or the importer on or after December 31, 2016, the transporter must ensure that a movement document that includes all information required by 40 CFR 262.84(d) also accompanies the hazardous waste.
(e) * * *
(2) A shipping paper containing all the information required on the manifest (excluding the EPA identification numbers, generator certification, and signatures) and, for exports or imports occurring under the terms of a consent issued by EPA on or after December 31, 2016, a movement document that includes all information required by 40 CFR 262.83(d) or 262.84(d) accompanies the hazardous waste; and
(f) * * *
(2) Rail transporters must ensure that a shipping paper containing all the information required on the manifest (excluding the EPA identification numbers, generator certification, and signatures) and, for exports or imports occurring under the terms of a consent issued by EPA on or after December 31, 2016, a movement document that includes all information required by 40 CFR 262.83(d) or 262.84(d) accompanies the hazardous waste at all times.
Intermediate rail transporters are not required to sign the manifest, movement document, or shipping paper.
(g) Transporters who transport hazardous waste out of the United States must:
(1) Sign and date the manifest in the International Shipments block to indicate the date that the shipment left the United States;
(2) Retain one copy in accordance with § 263.22(d);
(3) Return a signed copy of the manifest to the generator; and
(4) For paper manifests only,
(i) Send a copy of the manifest to the e-Manifest system in accordance with the allowable methods specified in 40 CFR 264.71(a)(2)(v); and
(ii) For shipments initiated prior to the AES filing compliance date, when instructed by the exporter to do so, give a copy of the manifest to a U.S. Customs official at the point of departure from the United States.
42 U.S.C. 6905, 6912(a), 6924, and 6925.
(a) The owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must submit the following required notices:
(1) As per 40 CFR 262.84(b), for imports where the competent authority of the country of export does not require the foreign exporter to submit to it a notification proposing export and obtain consent from EPA and the competent authorities for the countries of transit, such owner or operator of the facility, if acting as the importer, must provide notification of the proposed transboundary movement in English to EPA using the allowable methods listed in 40 CFR 262.84(b)(1) at least 60 days before the first shipment is expected to depart the country of export. The notification may cover up to one year of shipments of wastes having similar physical and chemical characteristics, the same United Nations classification, the same RCRA waste codes and OECD waste codes, and being sent from the same foreign exporter.
(2) As per 40 CFR 262.84(d)(2)(xv), a copy of the movement document bearing all required signatures within three (3) working days of receipt of the shipment to the foreign exporter; to the competent authorities of the countries of export and transit that control the shipment as an export and transit shipment of hazardous waste respectively; and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The original of the signed movement document must be maintained at the facility for at least three (3) years. The owner or operator of a facility may satisfy this recordkeeping requirement by retaining electronically submitted documents in the facility's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No owner or operator of a facility may be held liable for the inability to produce the documents for inspection under this section if the owner or operator of a facility can demonstrate that the inability to produce the document is due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system for which the owner or operator of a facility bears no responsibility.
(3) As per 40 CFR 262.84(f)(4), if the facility has physical control of the waste and it must be sent to an alternate facility or returned to the country of export, such owner or operator of the facility must inform EPA, using the allowable methods listed in 40 CFR 262.84(b)(1) of the need to return or arrange alternate management of the shipment.
(4) As per 40 CFR 262.84(g), such owner or operator shall:
(i) Send copies of the signed and dated confirmation of recovery or disposal, as soon as possible, but no later than thirty days after completing recovery or disposal on the waste in the shipment and no later than one calendar year following receipt of the waste, to the foreign exporter, to the competent authority of the country of export that controls the shipment as an export of hazardous waste, and for shipments recycled or disposed of on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system.
(ii) If the facility performed any of recovery operations R12, R13, or RC16, or disposal operations D13 through D15, or DC17, promptly send copies of the confirmation of recovery or disposal that it receives from the final recovery or disposal facility within one year of shipment delivery to the final recovery or disposal facility that performed one of recovery operations R1 through R11, or RC16, or one of disposal operations D1 through D12, or DC15 to DC16, to the competent authority of the country of export that controls the shipment as an export of hazardous waste, and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import
(a) * * *
(3) The owner or operator of a facility receiving hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must:
(i) Additionally list the relevant consent number from consent documentation supplied by EPA to the facility for each waste listed on the manifest, matched to the relevant list number for the waste from block 9b. If additional space is needed, the owner or operator should use a Continuation Sheet(s) (EPA Form 8700–22A); and
(ii) Send a copy of the manifest within thirty (30) days of delivery to EPA using the addresses listed in 40 CFR 262.82(e) until the facility can submit such a copy to the e-Manifest system per paragraph (a)(2)(v) of this section.
(d) As per 40 CFR 262.84(d)(2)(xv), within three (3) working days of the receipt of a shipment subject to 40 CFR part 262, subpart H, the owner or operator of a facility must provide a copy of the movement document bearing all required signatures to the foreign exporter; to the competent authorities of the countries of export and transit that control the shipment as an export and transit of hazardous waste respectively; and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The original copy of the movement document must be maintained at the facility for at least three (3) years from the date of signature. The owner or operator of a facility may satisfy this recordkeeping requirement by retaining electronically submitted documents in the facility's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No owner or operator of a facility may be held liable for the inability to produce the documents for inspection under this section if the owner or operator of a facility can demonstrate that the inability to produce the document is due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system, for which the owner or operator of a facility bears no responsibility.
42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 6935, 6936, and 6937.
(a) The owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must submit the following required notices:
(1) As per 40 CFR 262.84(b), for imports where the competent authority of the country of export does not require the foreign exporter to submit to it a notification proposing export and obtain consent from EPA and the competent authorities for the countries of transit, such owner or operator of the facility, if acting as the importer, must provide notification of the proposed transboundary movement in English to EPA using the allowable methods listed in 40 CFR 262.84(b)(1) at least 60 days before the first shipment is expected to depart the country of export. The notification may cover up to one year of shipments of wastes having similar physical and chemical characteristics, the same United Nations classification, the same RCRA waste codes and OECD waste codes, and being sent from the same foreign exporter.
(2) As per 40 CFR 262.84(d)(2)(xv), a copy of the movement document bearing all required signatures within three (3) working days of receipt of the shipment to the foreign exporter; to the competent authorities of the countries of export and transit that control the shipment as an export and transit shipment of hazardous waste respectively; and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The original of the signed movement document must be maintained at the facility for at least three (3) years. The owner or operator of a facility may satisfy this recordkeeping requirement by retaining electronically submitted documents in the facility's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No owner or operator of a facility may be held liable for the inability to produce the documents for inspection under this section if the owner or operator of a facility can demonstrate that the inability to produce the document is due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system, for which the owner or operator of a facility bears no responsibility.
(3) As per 40 CFR 262.84(f)(4), if the facility has physical control of the waste and it must be sent to an alternate facility or returned to the country of export, such owner or operator of the facility must inform EPA, using the allowable methods listed in 40 CFR 262.84(b)(1) of the need to return or arrange alternate management of the shipment.
(4) As per 40 CFR 262.84(g), such owner or operator shall:
(i) Send copies of the signed and dated confirmation of recovery or disposal, as soon as possible, but no later than thirty days after completing recovery or disposal on the waste in the shipment and no later than one calendar year following receipt of the waste, to the foreign exporter, to the competent authority of the country of export that controls the shipment as an export of hazardous waste, and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system.
(ii) If the facility performed any of recovery operations R12, R13, or RC16, or disposal operations D13 through D15, or DC17, promptly send copies of the confirmation of recovery or disposal that it receives from the final recovery or disposal facility within one year of shipment delivery to the final recovery or disposal facility that performed one of recovery operations R1 through R11, or RC16, or one of disposal operations D1 through D12, or DC15 to DC16, to the competent authority of the country of export that controls the shipment as an export of hazardous waste, and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The recovery and
(a) * * *
(3) The owner or operator of a facility that receives hazardous waste subject to 40 CFR part 262, subpart H from a foreign source must:
(i) Additionally list the relevant consent number from consent documentation supplied by EPA to the facility for each waste listed on the manifest, matched to the relevant list number for the waste from block 9b. If additional space is needed, the owner or operator should use a Continuation Sheet(s) (EPA Form 8700–22A); and
(ii) Send a copy of the manifest to EPA using the addresses listed in 40 CFR 262.82(e) within thirty (30) days of delivery until the facility can submit such a copy to the e-Manifest system per paragraph (a)(2)(v) of this section.
(d) As per 40 CFR 262.84(d)(2)(xv), within three (3) working days of the receipt of a shipment subject to 40 CFR part 262, subpart H, the owner or operator of a facility must provide a copy of the movement document bearing all required signatures to the foreign exporter; to the competent authorities of the countries of export and transit that control the shipment as an export and transit shipment of hazardous waste respectively; and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The original copy of the movement document must be maintained at the facility for at least three (3) years from the date of signature. The owner or operator of a facility may satisfy this recordkeeping requirement by retaining electronically submitted documents in the facility's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No owner or operator of a facility may be held liable for the inability to produce the documents for inspection under this section if the owner or operator of a facility can demonstrate that the inability to produce the document is due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system, for which the owner or operator of a facility bears no responsibility.
42 U.S.C. 1006, 2002(a), 3001–3009, 3014, 3017, 6905, 6906, 6912, 6921, 6922, 6924–6927, 6934, and 6937.
(b) Persons who generate, transport, or store recyclable materials that are regulated under this subpart are subject to the following requirements:
(1) Notification requirements under section 3010 of RCRA;
(2) Subpart B of part 262 (for generators), 40 CFR 263.20 and 263.21 (for transporters), and 40 CFR 265.71 and 265.72 (for persons who store) of this chapter; and
(3) For precious metals exported to or imported from other countries for recovery, 40 CFR part 262, subpart H and 265.12.
(a) * * *
42 U.S.C. 6902, 6912(a), 6924–6926, and 6930.
The revisions and additions read as follows:
(a) * * *
(4) Within 30 days after the delivery, send a copy of the manifest to the generator;
(5) Retain at the facility a copy of each manifest for at least three years from the date of delivery; and
(6) If a facility receives hazardous waste subject to 40 CFR part 262, subpart H from a foreign source, the receiving facility must:
(i) Additionally list the relevant consent number from consent documentation supplied by EPA to the facility for each waste listed on the manifest, matched to the relevant list number for the waste from block 9b. If additional space is needed, the receiving facility should use a Continuation Sheet(s) (EPA Form 8700–22A); and
(ii) Mail a copy of the manifest to EPA using the addresses listed in 40 CFR 262.82(e) within thirty (30) days of delivery until the facility can submit such a copy to the e-Manifest system per 40 CFR 264.71(a)(2)(v) or 265.71(a)(2)(v).
(d) As per 40 CFR 262.84(d)(2)(xv), within three (3) working days of the receipt of a shipment subject to 40 CFR part 262, subpart H, the owner or operator of a facility must provide a copy of the movement document bearing all required signatures to the foreign exporter; to the competent authorities of the countries of export and transit that control the shipment as an export and transit shipment of hazardous waste respectively; and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The original copy of the movement document must be maintained at the facility for at least three (3) years from the date of signature. The owner or operator of a facility may satisfy this recordkeeping requirement by retaining electronically submitted documents in the facility's account on EPA's Waste Import Export Tracking System (WIETS), or its successor system, provided that copies are readily available for viewing and production if requested by any EPA or authorized state inspector. No owner or operator of a facility may be held liable for the inability to produce the documents for inspection under this section if the owner or operator of a facility can demonstrate that the inability to produce the document is due exclusively to technical difficulty with EPA's Waste Import Export Tracking System (WIETS), or its successor system, for which the owner or operator of a facility bears no responsibility.
42 U.S.C. 6905, 6912(a), and 6926.
The additions read as follows:
(j) * * *
(2) * * *
(e) The State program shall provide requirements respecting international shipments which are equivalent to those at 40 CFR part 262 subpart H, other hazardous waste import and export regulations in 40 CFR parts 260, 262, 263, 264, 265, 266, 267 and 273, and exclusion conditions for export or import in 40 CFR part 261 to the extent that State has adopted such exclusion conditions, except that States shall not replace EPA or international references with State references.
(c) * * *
(4) For exports of hazardous waste, the state must require the transporter to refuse to accept hazardous waste for export if the exporter has not provided: A manifest listing the consent numbers for the hazardous waste shipment; a movement document for shipments occurring under consents issued by EPA on or after December 31, 2016; and on or after the AES filing compliance date, the ITN number for the hazardous waste shipment. The state must further require the transporter to carry a movement document and manifest with the shipment, as required; to sign and date the International Shipments Block of the manifest to indicate the date the shipment leaves the U.S.; to carry paper documentation of consent (
(i) * * *
(2) After listing the relevant consent number from consent documentation supplied by EPA to the facility for each waste listed on the manifest, matched to the relevant list number for the waste from block 9b, to EPA using the allowable methods listed in 40 CFR 262.84(b)(1) until the facility can submit such a copy to the e-Manifest system per 40 CFR 264.71(a)(2)(v) and 265.71(a)(2)(v).
42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.
A small quantity handler of universal waste who sends universal waste to a foreign destination is subject to the requirements of 40 CFR part 262, subpart H.
(a)
(b)
A large quantity handler of universal waste who sends universal waste to a foreign destination is subject to the requirements of 40 CFR part 262, subpart H.
A universal waste transporter transporting a shipment of universal waste to a foreign destination is subject to the requirements of 40 CFR part 262, subpart H.
(a) The owner or operator of a destination facility must keep a record of each shipment of universal waste received at the facility. The record may take the form of a log, invoice, manifest, bill of lading, movement document or other shipping document. The record for each shipment of universal waste received must include the following information:
Persons managing universal waste that is imported from a foreign country into the United States are subject to the requirements of 40 CFR part 262 subpart H and the applicable requirements of this part, immediately after the waste enters the United States, as indicated in paragraphs (a) through (c) of this section:
(a) A universal waste transporter is subject to the universal waste transporter requirements of subpart D of this part.
(b) A universal waste handler is subject to the small or large quantity handler of universal waste requirements of subparts B or C, as applicable.
(c) An owner or operator of a destination facility is subject to the destination facility requirements of subpart E of this part.
Environmental Protection Agency (EPA).
Final rule.
With this action, the United States Environmental Protection Agency (EPA) is finalizing revisions to the Resource Conservation and Recovery Act's (RCRA) hazardous waste generator regulatory program proposed on September 25, 2015. There are several objectives to these revisions. They include reorganizing the hazardous waste generator regulations to make them more user-friendly and thus improve their usability by the regulated community; providing a better understanding of how the RCRA hazardous waste generator regulatory program works; addressing gaps in the existing regulations to strengthen environmental protection; providing greater flexibility for hazardous waste generators to manage their hazardous waste in a cost-effective and protective manner; and making technical corrections and conforming changes to address inadvertent errors and remove obsolete references to programs that no longer exist. This final rule responds to the comments of EPA stakeholders, taking into consideration the mission of EPA and the goals of RCRA.
This final rule is effective on May 30, 2017. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of May 30, 2017.
The EPA has established a docket for this action under Docket ID No. EPA–HQ–RCRA–2012–0121. All documents in the docket are listed on the
Jim O'Leary, U.S. Environmental Protection Agency, Office of Resource Conservation and Recovery, (MC: 5304P), 1200 Pennsylvania Ave. NW., Washington, DC 20460, (703) 308–8827, (
The information presented in this preamble is organized as follows:
Entities potentially affected by this action include between 424,099 and 676,890 industrial entities that generate hazardous waste regulated under the RCRA Subtitle C regulations. Of this universe, between 353,441 and 591,809 are very small quantity generators (VSQGs),
As discussed in section XVI.A, the Regulatory Impact Analysis (RIA) for this action, available in the docket for this action, estimates the future annualized cost to industry to comply with the requirements is between $5.9 and $13.3 million (at a 7% discount rate). The estimated annualized benefits for entities opting to take advantage of two voluntary programs in the final rule (
The Hazardous Waste Generator Improvements Rule is expected to yield a variety of benefits as generators change several of their waste management practices to comply with the regulations. These benefits reflect the rule's focus on enhancing protection of human health and the environment while improving the efficiency of the RCRA hazardous waste generator standards. Ideally, the Agency would prefer to quantify and monetize the rule's total benefits. However, only some categories of benefits are quantifiable; sufficient data are not available to support a detailed quantitative analysis for a majority of the benefit categories. For example, the added flexibility from allowing a large quantity generator accumulating ignitable or reactive hazardous waste to obtain an approval from the authority having jurisdiction (AHJ) over the fire code for the 50-foot property line requirement at 40 CFR 265.176 (provided other safety requirements are met) is difficult to quantify. In addition, quantifying the benefits associated with emergency response due to changes in container labeling would require data on the annual number of emergencies at generator sites, the current risks associated with these incidents, the extent to which more detailed labeling would affect the procedures of emergency responders, and the reduction in risk associated with these changes. Detailed data on these items are not readily available. In this and in similar cases, the benefits are described qualitatively.
This final rule is not adding any new IBR material; however, EPA is reorganizing one of the existing requirements containing IBR material to make the regulation easier for the reader to follow. EPA is copying § 265.201(g)(2) to § 262.16(b)(3)(vii)(B). To accommodate this change, EPA is updating § 260.11(d)(1), which is the IBR reference section for these regulations, by adding a reference to § 262.16. The materials being incorporated by reference are for the National Fire Protection Association (NFPA), Flammable and Combustible Liquids Code (NFPA 30), 1977 and 1981. NFPA 30 addresses the fire and prevention codes associated with flammable and combustible liquids. The 1981 edition modifies Chapter 4, Container and Portable Tank Storage of the 1977 edition to address such areas as portable tanks, basement storage areas, cutoff rooms and attached buildings, indoor storage and general purpose warehouses. They are available for inspection through NFPA's Free Access site,
These regulations are promulgated under the authority of sections 2002, 3001, 3002, 3003, 3004, 3005, 3007, and 3010 of the Solid Waste Disposal Act of 1965, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6921, 6922, 6923, and 6924. This statute is commonly referred to as “RCRA.”
This final rule promulgates over 60 revisions and new provisions to the hazardous waste generator regulatory program. The primary intent of these provisions is to foster improved compliance by hazardous waste generators in the identification and management of the hazardous waste they generate and, as a result, improve protection of human health and the environment. Another major objective of this rule is to support the efficient implementation of the hazardous waste generator regulations by the states.
The Agency intends to achieve these objectives in several ways. For example, the most frequent comment the Agency received when it conducted a program evaluation of the hazardous waste generator regulatory program in 2004 was to improve the user-friendliness of the regulations. Prior to this action, the generator regulations were found in several parts of the Code of Federal Regulations (CFR). This final rule reorganizes and consolidates most of the generator regulatory program into 40 CFR part 262, with exceptions for very technical and lengthy regulations, such as the RCRA air emissions standards and the land disposal restriction requirements.
Another important component of this rule is to explain in greater detail how the hazardous waste generator regulations actually work. As explained later on, there are two types of regulatory standards for the hazardous waste generator program: Conditions that must be met in order to obtain an exemption from permitting (“conditions for exemption”) and requirements that apply to generators regardless of
This final rule also incorporates numerous clarifications to different components of the hazardous waste generator regulatory program made by the Agency through the years in
Similarly, this final rule clarifies that a generator can only be in one category for a calendar month and explains how to count the hazardous waste it generates (
From experience through the years, the Agency also has identified regulatory gaps resulting in either program inefficiencies or ineffectiveness. For example, prior to this final rule, large quantity generators (LQGs) were not required to notify EPA or most states when they close their facility. Without such information, implementing agencies did not have confirmation a whether or not the generators complied with specified closure performance standards. Generators also were not required to identify and communicate the hazards associated with the hazardous waste they generate and accumulate on-site, nor to ensure working relationships with local emergency authorities. This final rule addresses these concerns.
Similarly, prior to this rulemaking, SQGs were only required to submit a notification when they first identified themselves as a hazardous waste generator to obtain a RCRA identification number, and to be able to ship hazardous waste off-site to a permitted treatment, storage and disposal facility (TSDF). As a result, the Agency and many states databases for this universe of generators became unreliable because there was no notification if the generator went out of business, changed ownership, or changed their regulatory category. This final rule addresses this data gap by requiring SQGs to re-notify every four years.
With this final rule, the Agency also has responded to requests that additional flexibility be provided in the implementation of the program. For example, VSQGs will now be able to send their hazardous waste to LQGs under the control of the same person to allow consolidation and improved management of their hazardous waste. Another provision being added in this final rule will allow VSQGs and SQGs to maintain their existing regulatory category when they generate additional amounts of hazardous wastes as a result of an episodic event, provided they comply with specific conditions. This final rule also will allow an LQG to apply for a site-specific approval from the authority having jurisdiction (AHJ) over the fire code when they are unable to meet the 50 feet property line requirement for the accumulation of ignitable or reactive waste. Together, these provisions that add flexibility to the regulations better represent the real-world conditions that many of the smaller hazardous waste generators operate under and ensure and allow proper management of hazardous waste while under those conditions.
The RCRA hazardous waste generator regulatory program is primarily administered by the states, and therefore, its success is predicated in EPA supporting their inspection, enforcement and permitting activities. The Agency will work with the states to support their efforts in becoming authorized for these program revisions and will support both the regulated community and the implementing agencies in their efforts to comply with these new provisions.
For the most part, the regulations for hazardous waste generators have not changed significantly since 1980, except for three major modifications. First, as a result of the Hazardous and Solid Waste Amendments (HSWA) of 1984, EPA promulgated a rule that created three generator categories;
Second, also as a result of HSWA and the Land Disposal Restriction (LDRs) regulations,
Third, the Agency modified the Uniform Hazardous Waste Manifest regulations and associated manifest
In 2013, approximately 25,300 generators reported generating approximately 35.2 million tons of hazardous waste. Of the total number of reporting generators, approximately 20,800 were LQGs while 4,500 were non-LQGs, meaning these entities submitted a biennial report but did not report generating sufficient amounts of hazardous waste to be categorized as an LQG.
In 2013, LQGs generated approximately 35.2 million tons of hazardous waste in the aggregate. The 50 largest hazardous waste generators reported generating 29.2 million tons, or 83 percent of the total reported amount. While in total LQGs managed on average 13 waste streams (the mean), approximately 11,000 LQGs (or approximately 53 percent) managed 6 waste streams (the median) or less. Approximately 9600 LQGs (or approximately 46 percent) generated between 1 and 5 waste streams. These generators included sites from the waste treatment industry as well as academic and industrial laboratories. Overall, the Agency estimates that LQGs generate between 6 and 13 hazardous waste streams each year, which represents the median and mean number of wastes streams per LQG.
Of the 35.2 million tons of hazardous waste generated by LQGs in 2013, 33.4 million tons, or 95 percent, were generated in just five industrial sectors: Chemical manufacturing (NAICS 325); petroleum and coal products manufacturing (NAICS 324); waste management and remediation services (NAICS 562); primary metal manufacturing (NAICS 331); and mining (NAICS 212).
Unlike LQGs, who must submit a biennial report every two years describing the types and quantities of hazardous waste generated and its subsequent disposition, SQGs have not been required to provide such information to the Agency. Consequently, EPA lacks the level of detail for SQGs that is available for LQGs. However, based on a review of biennial report data provided by treatment, storage, and disposal facilities
Because VSQGs are not required to obtain a RCRA ID, the information available to the Agency is limited to those states that require their VSQGs to obtain a RCRA ID. Therefore, in estimating the size of the VSQG universe, the Agency developed a methodology that extrapolated the size of the VSQG universes based on the data available in those states that require VSQGs to obtain a RCRA ID. We first calculated the ratio of VSQGs to SQGs and VSQGs to LQGs in those states where information was available on the VSQG universe. Wethen used those ratios to estimate the size of a state's VSQG universe where VSQG information was unavailable. Using this methodology, EPA currently estimates the size of the VSQG universe to range from 353,400 to 591,800.
EPA is finalizing its proposal to reorganize the hazardous waste generator regulations to make the regulations more user-friendly, which EPA expects will improve generator compliance. The most frequent stakeholder comment EPA received as part of its 2004 Program Evaluation of the hazardous waste generator program was to improve the user-friendliness of the regulations. EPA proposed a reorganization on September 25, 2015 (80 FR 57918), and took comment on all aspects of that reorganization. The majority of the commenters supported EPA's proposal to reorganize the regulations, stating that they agreed with the Agency that the new framework is easier to understand, simpler, and will facilitate improved compliance by the regulated community. EPA also received some comments opposing the reorganization from commenters who were concerned that the changes would result in confusion for those who already understand the regulations and from commenters concerned about the cost of any necessary changes. After considering the comments, EPA has determined that reorganizing the regulations will result in a better, more straightforward set of regulations that is, on balance, easier for most people to understand, now and in the future of the generator program.
This section serves as an introduction and a reference to the new look and feel of the generator regulations. This section makes passing mention of many of the provisions and revisions that we cover in much more detail later in the preamble. EPA has organized this preamble to correspond with the new organization of the regulations, discussing each provision being changed in its new relative place within the structure of the generator regulations. In addition, after the discussion in this section of where each provision will be found in the reorganized regulations, all following citations to regulatory text in this final rule will use the new citations found in the promulgated regulatory text. If applicable, we are including a note at the end of each section to direct the reader to where the same provision was found before the reorganization.
EPA recognizes that the reorganization of these regulations may be a big adjustment for all those who use them, but has determined that the new structure makes better sense for a generator navigating through the system for the first time. Although many existing generators are familiar with the current regulations, every year many generators either enter the hazardous waste generator program or switch their generator category and therefore need to become familiar with their obligations. Similarly, an existing generator may need to examine a particular regulatory citation to ensure it is complying with the regulations correctly. The Agency believes that providing these generators with a user-friendly regulatory framework is an effective way to make the regulations easier to understand for those who need to comply with them.
EPA intends to work closely with the states and other implementing agencies as well as the regulated community, particularly during the initial implementation period. EPA's efforts
EPA is finalizing the following general organizational changes:
(1) Integrating the generator regulations in § 261.5 into the generator regulations at part 262 by moving § 261.5 (which contains the regulations applicable to VSQGs, counting of hazardous waste, and mixing of hazardous wastes with non-hazardous wastes);
(2) Separating the existing regulations at § 262.34 for SQGs, LQGs and SAAs into three new sections:
(a) Conditions for exemption for satellite accumulation areas (SAA) for small and large quantity generators,
(b) Conditions for exemption for an SQG that accumulates hazardous waste; and
(c) Conditions for exemption for an LQG that accumulates hazardous waste;
(3) Using subtitles in these new sections; and
(4) Where reasonable, incorporating the text of relevant part 265 regulations into these new sections, rather than merely cross referencing them, as was the former approach.
Historically, certain hazardous waste generator regulations have been located in a different part of the regulations (40 CFR 261.5) from the rest of the generator regulations (40 CFR part 262). Many of the commenters on the proposal confirmed what EPA had heard from stakeholders who stated that the location of § 261.5 was confusing and not user-friendly. Many commenters agreed that locating those requirements in part 262 to consolidate all the generator regulations in the same part was a useful revision that will alleviate much confusion in the regulated community and, in the process, will foster greater compliance with the regulations.
Specifically, EPA is moving the definition of a VSQG that generates non-acute hazardous waste at § 261.5(a) into the VSQG definition at § 260.10, moving § 261.5(c) through (e) about counting hazardous waste and § 261.5(h) though (j) about VSQGs mixing waste to a new section at § 262.13 titled “Generator category determination” and moving § 261.5(b) and (f) and (g) to a new section at § 262.14 titled “Conditions for exemption for a very small quantity generator.”
Section 261.5(a) was previously used to set forth the non-acute hazardous waste quantity limits for a VSQG and § 261.5(e) to provide quantity limits for generating acute hazardous waste and any residue or contaminated soil, waste, or other debris resulting from the cleanup of a spill of acute hazardous waste. Under the reorganized regulations, EPA now defines each category of generator at § 260.10, and, thus, § 261.5(a) and (e) are incorporated into those definitions.
Section 261.5(c) and (d) previously set forth the provisions for a hazardous waste generator to use in making its generator category determination. Every hazardous waste generator must because determine its generator category in order to identify which regulations are applicable to it. Because § 261.5(c) and (d) are applicable to all hazardous waste generators, it makes sense to move them into 40 CFR part 262, with the other hazardous waste generator regulations. To further aid in making the regulations more user friendly, the Agency has promulgated a new section for generator category determination at § 262.13, titled “Generator category determination.” This new section is thus located because, after a generator of a solid waste determines it has generated a hazardous waste (§ 262.11), the generator must then determine its hazardous waste generator category for the calendar month.
In addition, § 261.5(h) through (j), regarding the rules that apply for the mixing of hazardous waste with solid waste, including mixtures with used oil by VSQGs, have been relocated to § 262.13, making them independent requirements rather than conditions for exemption. This move is logical in the context of the reorganization because the outcome of any determination a VSQG makes about the consequences of mixing waste ultimately affect its generator category first. In addition, § 262.13 also contains a new citation to the mixing rule in § 261.3 and makes it clear that the mixing rule applies to SQGs and LQGs. These revisions to the generator regulations are all discussed in more depth later in this preamble.
Table 1—Crosswalk of Previous Citations to New Citations for Definitions and General Standards provides a summary of the crosswalk between the previous and new regulatory citations for determining a generator's category.
Previous sections 261.5(b) and (f) through (j) established the regulations for VSQGs when accumulating acute and non-acute hazardous waste, identified where the acute and non-acute hazardous waste may be managed off site, and explained the implications of mixing hazardous waste with solid waste or used oil. Since these regulations set forth conditions for exemption for VSQGs, similar to how the regulations found in previous § 262.34 set forth conditions for exemption for SQGs and LQGs, EPA is moving § 261.5(b) and (f) and (g) to the newly created § 262.14 titled, “Conditions for exemption for a very small quantity generator.” All the conditions for exemption for generators are now located parallel to one another in part 262. Section 262.14 also includes the VSQG landfill ban for liquids and a new VSQG consolidation provision by LQGs under the control of the same person.
In addition, VSQGs who episodically generate higher amounts of hazardous waste may follow the newly promulgated standards for episodic generation in part 262 subpart L in order to maintain their VSQG status while managing these higher amounts of hazardous waste. Table 2—Crosswalk of Previous Citations to New Citations for VSQGs provides a crosswalk between the previous and the new VSQG conditions for exemption.
SQGs and LQGs may accumulate their hazardous waste on site without complying with the storage facility permit and operating requirements, provided they follow all of the conditions for exemption established originally in § 262.34. Section 262.34 became difficult to navigate because the SQG and LQG conditions for exemption were intertwined and contained many cross-references to sections in 40 CFR part 265. Therefore, the Agency is dividing § 262.34 into three new sections at §§ 262.15, 262.16 and 262.17. Section 262.15 lays out the conditions for exemption for SQGs and LQGs operating an SAA, § 262.16 identifies conditions for exemption for SQGs, and § 262.17 identifies the conditions for exemption for LQGs.
Many generators use SAAs at their sites. These areas allow generators to accumulate hazardous waste near the point of generation under the control of the operator of the process generating the waste, which provides for efficiency and greater safety in the handling of hazardous waste. When the generator has accumulated 55 gallons of hazardous waste (or one quart of acute hazardous waste) in the SAA, the generator must then move the hazardous waste to the 90- or 180-day central accumulation area within three days. Under the old framework, the conditions for exemption for operating an SAA were located at § 262.34(c), between the hazardous waste accumulation conditions for LQGs and those for SQGs. This created confusion as to whether the provisions apply to LQGs only or to both SQGs and LQGs. In this final rule, the Agency is therefore moving 40 CFR 262.34(c) into its own section at § 262.15 titled, “Satellite accumulation area regulations for small and large quantity generators.”
Additionally, the Agency is copying the text in §§ 265.171, 265.172 and 265.173(a) (which previously were simply referenced in § 262.34(c)(1)(i)) into § 262.15 in order to eliminate cross-referencing and improve the user friendliness of the regulations. Table 3—Crosswalk of Previous Citations to New Citations for SAAs provides a summary of the crosswalk between previous and new regulations for SAAs.
As previously mentioned, the Agency is promulgating a new section 40 CFR 262.16 titled, “Conditions for exemption for a small quantity generator that accumulates hazardous waste.” This reorganization moves § 262.34(d) through (f) and (m) into § 262.16. Specifically, the Agency is moving the bulk of § 262.34(d) to § 262.16(b),
Table 4—Crosswalk of Previous Citations to New Citations for SQGs provides a summary of changes between the previous citations in the regulations and new citations for SQGs.
As previously mentioned, the Agency is promulgating a new section 40 CFR 262.17 titled, “Conditions for exemption for a large quantity generator that accumulates hazardous waste.” The Agency is moving § 262.34(a),(b),(g) through (i) and (m) into § 262.17. Specifically, the Agency is moving § 262.34(a) to § 262.17(a), moving § 262.34(b) to § 262.17(b), moving § 262.34(g) to § 262.17(c), moving § 262.34(h) to § 262.17(d), moving § 262.34(i) to § 262.17(e), and moving § 262.34(m) to § 262.16(g). EPA has also deleted paragraphs (j) through (l), which deal with Performance Track, since the program is no longer in operation. EPA has also added subtitles and eliminated some cross-references to part 265 in order to make the regulations easier to navigate.
d.
Table 5—Crosswalk of Previous Citations to New Citations for LQGs provides a summary of changes between the previous citations and the new citations for LQGs.
In the interest in keeping the generator regulations in a logical order for a generator proceeding through the process for the first time, EPA has relocated the previous § 262.12—EPA identification number—to § 262.18. Section 262.12 has been reserved to prevent confusion by anyone referring to old guidance documents. EPA believes this move will improve the flow of the hazardous waste generator regulations as it places the section addressing EPA identification number after § 262.13, which addresses how a generator determines its generator category. This sequence is appropriate because a hazardous waste generator must first determine its generator category in order to determine which regulations—including the requirement to obtain an EPA ID number—it must comply with. (For example, SQGs and LQGs must obtain an EPA identification number, but a VSQG does not).
In the final rule, EPA is not making any significant changes to the structure of the reorganization in the proposal. The majority of commenters supported the changes EPA proposed and stated the changes would make the regulations more clear to the majority of stakeholders.
One minor change from the proposal that EPA is making in this final rule is to relocate the regulations on mixing solid waste and hazardous waste from each generator category section into § 262.13 for the reasons discussed previously.
As part of the implementation of this final rule, EPA is planning outreach to all stakeholders to discuss the reorganization in particular. The reorganization of the regulations will require adjustment by all parties that rely on EPA's generator regulations and EPA is committed to easing that adjustment through guidance and training.
As part of the reorganization of the regulations and in an effort to make the generator regulations more accessible and easier to understand, EPA proposed to codify definitions for the three categories of hazardous waste generators (VSQG, SQG and LQG) and, in conjunction with those definitions, to also define “acute hazardous waste” and “non-acute hazardous waste” for the purposes of use in the definitions (80 FR 57925–6).
In the proposal, EPA noted that the term “small quantity generator” is codified in the regulations, but is outdated, whereas “conditionally exempt small quantity generator” and “large quantity generator” have been used within the RCRA hazardous waste community for several decades, but their exact definitions have not been codified. The regulations differentiate among the categories by stating the quantity of hazardous waste generated in a calendar month in each instance, leading to cumbersome phrasing throughout the text.
As a part of the codification of these definitions, EPA also proposed replacing “conditionally exempt small quantity generator,” the term for the smallest quantity category of generator, with “very small quantity generator.”
VSQGs are generators that generate 100 kilograms or less of non-acute hazardous waste and 1 kilogram or less of acute hazardous waste in a calendar month; SQGs are generators that generate greater than 100 kilograms of non-acute hazardous waste but less than 1,000 kilograms of non-acute hazardous waste and 1 kilogram or less of acute hazardous waste in a calendar month; and LQGs are generators that generate 1,000 kilograms or greater of non-acute hazardous waste and/or greater than 1 kilogram of acute hazardous waste in a calendar month. However, generators often fail to consider residues from the cleanup of a spill of acute hazardous waste or do not count both the non-acute and acute hazardous waste they generate in a calendar month. Codifying definitions for these terms clarifies what categories of waste must be considered in determining generator category.
EPA is finalizing the generator category definitions as proposed to incorporate all the various categories of hazardous wastes—that is, acute hazardous waste, non-acute hazardous waste, and residues for the cleanup of a spill of acute hazardous wastes. Users of the generator regulations will benefit from the inclusion of the definitions of terms that are commonly used throughout the program. As a part of these revisions, EPA is also finalizing the definitions for “acute hazardous waste” and “non-acute hazardous waste” and the replacement of “conditionally exempt small quantity generator” with “very small quantity generator.”
The generator category definitions are based solely on the amount of hazardous waste generated. While EPA acknowledges that accumulation limits may trigger different generator regulations, those accumulation limits do not affect a generator's generation category, which is based on how much hazardous waste is generated in a calendar month. Therefore, EPA is adding definitions for each of the generator categories to § 260.10.
A very small quantity generator is a generator who generates less than or equal to the following amounts in a calendar month: (1) 100 kilograms (220 lbs) of non-acute hazardous waste; and (2) 1 kilogram (2.2 lbs) of acute hazardous waste listed in § 261.31 or § 261.33(e); and (3) 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in § 261.31 or § 261.33(e).
A small quantity generator is a generator who generates the following amounts in a calendar month: (1) Greater than 100 kilograms (220 lbs) but less than 1,000 kilograms (2,200 pounds) of non-acute hazardous waste; and (2) less than or equal to 1 kilogram (2.2 lbs) of acute hazardous wastes listed in § 261.31 or § 261.33(e); and (3) less than or equal to 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in § 261.31 or § 261.33(e).
In the comments addressing these revisions, several commenters suggested that the use of the word “and” between the types of waste being considered in the definitions of VSQG and SQG would mean that a generator must generate all three types of waste to qualify for the generator category. EPA disagrees, noting that zero kilograms of acute hazardous waste would qualify as “less than or equal to 1 kilogram” and zero kilograms of residue from a spill would qualify as “less than or equal to 100 kilograms.” If these “and”s were changed to “or”s, as many of the commenters suggested, then a generator could, for instance, qualify as a VSQG just by having less than 1 kilogram of acute hazardous waste regardless of how much non-acute hazardous waste or residues it had generated.
EPA is also finalizing the proposal to replace “conditionally exempt small quantity generator” with “very small quantity generator” and is replacing all references in the regulations with this term. EPA will also be updating its materials and guidance to take into consideration the new term.
In addition, EPA is adding definitions to § 260.10 for the terms “acute hazardous waste” and “non-acute hazardous waste.” These terms are necessary because they are used in the definitions of the generator categories discussed above and because they have specific meanings within the hazardous waste generator program. The term acute hazardous waste is used for hazardous wastes that are particularly dangerous to human health and is defined as those hazardous wastes that meet the listing criteria in § 261.11(a)(2) and are therefore listed in § 261.31 and assigned the hazard code of (H) or are listed in § 261.33(e), also known as the RCRA P-list. In this rulemaking, any distinctions between acute and non-acute hazardous wastes are made only in the context of determining generator category. Otherwise, throughout the regulations, preamble, and guidance, the term “hazardous waste” refers to both acute and non-acute hazardous waste.
EPA is finalizing the definitions for the generator categories as proposed with no changes. EPA is finalizing the replacement of “conditionally exempt small quantity generator” with “very small quantity generator” with no changes. EPA is finalizing the definitions of acute and non-acute hazardous waste as proposed with no changes.
EPA is making some changes to another area of the regulations as a result of some comments that showed that there is confusion about how the accumulation limits for VSQGs operate. EPA received multiple comments stating that the accumulation limits for VSQGs of 1,000 kg of hazardous waste, 1 kg of acute waste or 100 kg of residues from cleanup of a spill of acute hazardous waste (in § 262.14) and for SQGs of 6,000 kg of hazardous waste (in § 262.16) should be part of the definitions of the generator categories in § 260.10 and a factor in making a generator category determination.
EPA maintains that although these limits are related to the generator definitions, particularly for SQGs, the accumulation limits are not part of the definition of a generator's category, but instead have operated as a separate provision. For SQGs, the accumulation limit has always been a condition for the exemption from permitting and certain other hazardous waste regulations, meaning that if the limit is violated, the generator is no longer exempt from these regulations. The generator category is, as is stated in the statute, based on the amount of waste generated “during a calendar month.”
If a VSQG exceeds the accumulation limit, the exemption can be maintained if the waste is managed under the more extensive conditions for exemption of a larger generator category, but the VSQG does not itself have to become an SQG or LQG. To maintain the exemption, VSQGs that accumulate more than 1,000 kg of non-acute hazardous waste must manage the waste under the conditions for exemption for SQGs, and VSQGs that accumulate more than 1 kg of acute waste or 100 kilograms of any residue from the cleanup of a spill of acute hazardous waste must manage the waste under the conditions for exemption of an LQG.
EPA based the language in the final rule on accumulation limits for VSQGs on the previous regulations in § 261.5(f)(2) and (g)(2), which state the same principle. However, in order to make it more clear how these provisions operate, EPA has included the exact provisions that would apply to the excess waste to clarify this provision in § 262.14(a)(3) and (4). In addition, EPA is clarifying here that when the amount of waste that is accumulated exceeds the accumulation limit, all the accumulated waste at the VSQG must be managed under the requirements for an LQG, as EPA stated in the preamble to the 1980 generator final rule at 45 FR 76621 (November 19): “The revised regulation also clarifies that once the accumulated amounts exceed
EPA received support from a variety of stakeholders on its proposal to promulgate definitions for the generator categories in the final rule. Many stakeholders agreed with EPA's assessment that officially defining the commonly-used terms for these generators in the regulations would be a helpful addition.
Some commenters offered additional suggestions, such as revising the SQG threshold to be greater than 100 kg and less than or equal to 1,000 kg to be easier to remember, to use “less than” (<) and “greater than” (>) signs in the regulations, to change the primary unit of measurement in the regulations to pounds from kilograms and to rely on monthly averages for waste generation rather than actual monthly amounts. EPA is not making changes to the regulations in response to these comments. Although EPA understands that the quantity limits in the regulations for SQGs are not exactly parallel to the other generator categories, EPA sees little or no benefit in making a change that shifts the generator category by a single kilogram of hazardous waste or a revision of the units of measurement in the regulations. Both these revisions would require administrative changes throughout the
Finally, EPA does not agree with the commenters who stated that it would be appropriate to allow a generator to average hazardous waste generation over several months and use the average to determine its generator category. Beyond the practical implementation concerns with this approach, and despite the commenters' argument that this approach would be consistent with the statute's intent, EPA has long interpreted the RCRA statement that a generator's category be based on the amount of waste generated “during a calendar month” at face value: The generator must know the quantity of hazardous waste it generates per month, not as an average of some sort, and be regulated accordingly.
EPA does agree with the comment that any acute hazardous waste cleaned up in debris is counted as part of the “residue or contaminated soil, water, or other debris resulting from the cleanup of a spill . . . of any acute hazardous waste” and is not counted separately as acute hazardous waste.
Regarding “conditionally exempt small quantity generators,” EPA received comments on the proposal arguing that the users of the term “conditionally exempt small quantity generator” are familiar with its meaning and do not need a revision and that states will need to update materials and forms with the new term, VSQG. EPA has determined that although the users of the regulation are familiar with this term as it is used currently, there is real value in revising it so that those who will be introduced to the RCRA generator program in the future can make more sense of the terms. As stated previously, EPA will be revising its own materials, as necessary, to account for the new term and will work with states to phase in the changed terminology over time.
As stated previously in the discussion of the definitions of the categories, when a generator is determining its generator category, it must consider three relevant types of hazardous waste: Hazardous waste (or “non-acute hazardous waste,” for purposes of this discussion), acute hazardous waste, and residues from the cleanup of a spill of acute hazardous waste. Historically, the RCRA hazardous waste regulations have not addressed situations involving combinations of wastes and Agency statements about this issue have been inconsistent. This situation led EPA to propose regulations to clarify a generator's category for a calendar month during which it generates any combination of non-acute hazardous waste, acute hazardous waste, and residues from the cleanup of a spill of acute hazardous waste.
EPA discussed its history of statements on this topic in the proposed rule at 80 FR 57927, noting examples of contradictory EPA statements that a generator can have just one category per calendar month and EPA statements that a generator can manage acute hazardous waste as one category of generator and non-acute hazardous waste as a different category of generator in the same calendar month.
EPA proposed a more practical approach that a generator can be in only one generator category in a calendar month and noted that many EPA Regions and states have taken this same approach in implementing the RCRA hazardous waste program.
2. What is EPA finalizing?
EPA is finalizing definitions of the generator categories that expressly state which generator category would apply to hazardous waste generators that generate a combination of non-acute hazardous waste, acute hazardous waste, and/or residues from the cleanup of spills of acute hazardous waste in a calendar month as discussed earlier in this section of the preamble.
In conjunction with these changes, EPA is finalizing a new section § 262.13 explaining how a generator determines its applicable generator category. This topic is fully discussed in section IX.C of this preamble.
EPA's decision to finalize this approach is based partially on developing a practical solution to situations where a generator generates, for example, acute and non-acute hazardous waste in the same month. This approach is analogous to situations in which a generator that generates only non-acute hazardous wastes counts its various hazardous wastes. In those situations, a generator must consider the total amount of all its different kinds of non-acute hazardous waste, not the amount of each type of hazardous waste (
We note that many EPA Regions and states have taken this same approach in implementing the RCRA hazardous waste program and many of the state agencies that commented on the proposed rule stated they were in support of these changes to the regulations for the reasons EPA described in the preamble to the proposed rule, particularly because of the inconsistencies in the guidance.
In practice, five waste generation scenarios exist with different combinations of acute hazardous waste, non-acute hazardous waste, and residues from the cleanup of spills of acute hazardous waste generated in a calendar month. These scenarios are summarized in Table 6—Generator Categories Based on Quantity of Waste Generated.
In three of the five possible scenarios, the generator is an LQG; in one scenario, the generator is an SQG; and in one scenario, the generator is a VSQG.
As the table indicates, in the first three scenarios, the generator is an LQG if it generates any of the following in a calendar month: More than 1 kilogram of acute hazardous waste, 1,000 kilograms or more of non-acute hazardous waste, or more than 100 kilograms of residues from the cleanup of a spill of acute hazardous waste. This is true regardless of the amount of waste generated in the other categories. This fact is made clear in the final regulatory definition of “LQG” by stating that a generator is an LQG if it generates “any” of the types of hazardous waste in the amounts listed and by using of the word “or” between (1), (2), and (3).
As an LQG, the generator must comply with the independent requirements for LQGs (specified in § 262.10) and the conditions for exemption for LQGs (specified in § 262.17), as well as any applicable conditions for exemption for SAAs at § 262.15.
In the fourth scenario, the generator is an SQG if, in a calendar month, it generates greater than 100 kilograms and less than 1,000 kilograms of non-acute hazardous waste and also 1 kilogram or less of acute hazardous waste and 100 kilograms or less of residues from the cleanup of a spill of acute hazardous waste.
As an SQG, the generator must comply with the independent requirements for SQGs (specified in § 262.10) and the conditions for the exemption for SQGs (specified in § 262.16), as well as any applicable conditions for exemption for SAAs at § 262.15.
Finally, in the fifth scenario, if a generator generates 1 kilogram or less of acute hazardous waste and 100 kilograms or less of non-acute hazardous waste and 100 kilograms or less of residue from the cleanup of a spill of acute hazardous waste, then the generator is a VSQG for that calendar month. The regulatory text expresses this scenario by using the word “and” between (1), (2), and (3) in the definition.
As a VSQG, the generator must comply with the independent requirements for VSQGs (specified in § 262.10) and the conditions for exemption for VSQGs (specified in § 262.14).
EPA is finalizing the definitions for the generator categories as proposed and has not made revisions to how it expects generators to determine their generator category when they generate acute and non-acute hazardous waste.
Some commenters who opposed EPA's proposal that a generator should manage all its waste under the same generator category argued this would be a change to how they are currently operating and that it is burdensome to operate a whole generator site as an LQG because of the existence of LQG levels of acute hazardous waste.
EPA recognizes commenters' concerns about disruption to, and burdens on, current operations. However, EPA has determined that if the definitions of the generator categories are going to depend on the amounts of hazardous waste generated, it does not, in the end, make practical sense to have a generator that is operating in more than one category. EPA notes that some comments stated that there will be a difference for those generators that have been managing acute hazardous waste in a separate area and only having a RCRA contingency plan for that area, but believes that those generators are LQGs and should be following the independent requirements and conditions for exemption for LQGs for all waste areas. Again, many states and EPA Regions commented that they are already interpreting the regulations in this way so EPA does not anticipate that these changes will have a major effect in program implementation. In fact, these revisions are making the regulations consistent with how most programs are operating currently.
In the proposal at 80 FR 57927, the Agency discussed defining the term “central accumulation area” (CAA) in § 260.10. LQGs may accumulate hazardous waste on site without a permit or complying with the interim status standards for up to 90 days, provided they comply with the conditions of § 262.17 and SQGs may do the same for up to 180 days, provided they comply with the conditions of § 262.16.
EPA is finalizing the definition of “central accumulation area” to mean any on-site hazardous waste accumulation area with hazardous waste accumulating in units subject to either § 262.16 (for small quantity generators) or § 262.17 (for large quantity generators).
EPA emphasizes again that we are defining the term “central accumulation area” only as a matter of convenience. It is helpful for both the regulated community and the implementers to use a common term when referring to locations where generators accumulate hazardous waste other than satellite accumulation areas. Furthermore, the term is helpful for EPA to use when writing regulations, preamble, and guidance. The addition of the term does not establish any new regulatory standards or burden on generators.
EPA also wants to emphasize that generators may continue to have more than one CAA on site, as long as all CAAs meet the conditions for accumulation of hazardous waste. We are making this clear in the definition by stating that a “central accumulation area” means
Further, the use of the word “central” does not denote a physical location or indicate that the generator must establish the CAA in a location that is centrally located within the site. The term “central” is used in the sense that many generators consolidate or
As a result of making this change for all of part 262, we are also removing the definition of “central accumulation area” from part 262 subpart K.
EPA is finalizing the definition for “central accumulation area” as proposed.
EPA received comments on the proposed revisions that expressed concern that the word “central” might be misconstrued to mean a generator might be limited to maintaining just one CAA or that the CAA might have to be in the center of the generator's property. Commenters suggested other terms, such as “generator accumulation area” or “hazardous waste accumulation area.” Although these terms would likely work equally well in many respects, “central accumulation area” is already commonly understood by many stakeholders. It has been in use for many years and has been in the regulations since the promulgation of the Academic Labs Rule. EPA has addressed the commenters concerns about the word “central” in the previous discussion and does not see a compelling reason to promulgate a term different than the one proposed.
As part of this rulemaking, EPA proposed to modify 40 CFR 261.6(c)(2) and require owners or operators of facilities that recycle hazardous waste without storing the wastes, or facilities that receive and partially reclaim hazardous wastes prior to producing a commodity-like material as described at § 260.31, to comply with the biennial reporting requirements at 40 CFR 265.75. This modification was primarily a clarification of the existing rules because the Agency was concerned, based on an analysis of biennial reports, that not all of these type facilities were completing a biennial report when they should have been doing so. Recycling facilities and partial reclamation facilities receiving manifested hazardous waste by a hazardous waste transporter are similar to permitted TSDFs that also must complete a biennial report. Without biennial report information, the Agency and states may have an incomplete picture of which facilities recycle hazardous waste and the quantities of regulated hazardous wastes that are recycled, impeding EPA and the states' ability to provide adequate oversight for those facilities.
The Agency believes that only a few recycling facilities will be affected by this change. Additionally, considering that most facilities already have sophisticated information systems to manage and track incoming shipments of hazardous waste, we believe the burden imposed on such facilities should be minimal if they are affected by this change.
The Agency is finalizing the proposal at § 261.6(c)(2). Owners or operators of facilities that receive and partially reclaim hazardous wastes into a commodity like material, or recycle regulated hazardous waste (
In an effort to ensure the universe of facilities affected by this new provision is aware of their obligation to complete and submit a biennial report, the Agency will highlight these changes in the Biennial Report Instructions and Forms and describe what facilities must do to complete and submit a report. Similarly, the Agency, as part of its outreach efforts for this new rule, will educate facilities about this new reporting requirement where appropriate.
Most commenters supported this provision but a few commenters questioned the utility of this provision. As stated previously, the Agency is
As previously discussed, one of the objectives of this rulemaking is to revise the hazardous waste generator regulations to make them more user-friendly and easily understood by both the regulated community and federal and state regulators. The hazardous waste generator regulations have long been located primarily in three different parts of the CFR (40 CFR parts 261, 262, and 265), making it sometimes difficult to determine what components of the regulations apply to different categories of hazardous waste generators.
The reorganization is addressing some of these problems by reducing the need to refer to separate parts of the regulations through consolidation of the generator regulations into part 262 and by organizing the regulations based on a generator's category so generators can more easily determine which regulations apply to them. As described in section VI, EPA is finalizing three new sections in part 262 subpart A to set forth the conditions for exemption for each of the categories of generators that accumulate waste on site and one new section to set forth the conditions for exemption for SAAs. These new sections are § 262.14 for VSQGs, § 262.15 for SAAs, § 262.16 for SQGs, and § 262.17 for exemption for LQGs.
In concert with the reorganization of the generator conditions for exemption for on-site accumulation of hazardous waste, EPA is adding regulatory language to more clearly explain how the regulations work for generators and to lay out which provisions apply to each of the different categories of generators. EPA is making additional changes to otherwise clarify the framework of the hazardous waste generator program, including the addition of § 262.1 and the revisions to § 262.10. EPA is also adding an explicit prohibition on sending hazardous waste to a facility that is not authorized to accept it and is removing outdated and unnecessary provisions.
Note that the changes to the regulatory text for § 262.10 in this action take into account the revisions being made as a part of the “Hazardous Waste Export-Import Revisions” Final Rule (Docket ID EPA–HQ–RCRA–2015–0147; FRL–9947–74–OLEM), including replacing the reference to § 262.12 in paragraph (d) with a reference to § 262.18 and referring to subpart H of part 262 for provisions on imports and exports of hazardous waste instead of to subparts E and F, which are being removed and reserved.
a.
b.
The difference between independent requirements and conditions for exemption lies in the nature of each type of provision and in the consequences that may result if each is not met. An “independent requirement” in part 262 is the common type of regulatory requirement one usually thinks of, equivalent to a law that can be broken: It is the statement of a duty that must be met, or else a violation of RCRA or the regulations has occurred that is subject to a penalty. In other words, in the context of 40 CFR part 262, an “independent requirement” is an unconditional requirement or demand that is imposed upon the generator and with which the generator must comply. Because the sole purpose of the independent requirement is to achieve or prohibit the stated behavior, event, or standard, the only potential legal consequence to the generator from failing to meet an independent requirement, is some form of enforcement action for violating that particular requirement (
Most important to the distinction between an “independent requirement” and a “condition for exemption” in part 262 is the fact that an independent requirement does not provide a mechanism for the generator to avoid having to comply with other requirements, such as the storage facility regulations in parts 264, 265 and 270.
Also important to note is that the “independent requirements” of part 262 are not legally tied to the accumulation of hazardous waste. These part 262 independent requirements are applicable and enforceable, and must be met, by a generator of hazardous waste, whether or not the generator actually accumulates hazardous waste on site. In that sense, they are “independent” of the conditions for exemption from storage facility regulation, which are only applicable to generators who also accumulate hazardous waste. The independent requirements of part 262 are therefore enforceable whether or not the generator has obtained, or is attempting to obtain, an exemption from the storage facility permit (or interim status) and operations requirements by meeting the conditions for that exemption in §§ 262.14, 262.15, 262.16, or 262.17.
An example of such an “independent requirement” is § 262.30, the pre-transport waste packaging requirement. This requirement is an unconditional demand, and failure to meet this requirement is subject to penalty or injunctive relief for violating § 262.30. The requirement applies without regard to whether the generator accumulates waste on site; and it applies and is enforceable regardless of whether the generator has an exemption from storage facility permit and operations regulations.
A condition for exemption, on the other hand, is a requirement that is contingent in nature: It is only necessary to meet the condition if the generator is using it to obtain an optional exemption from other requirements. A condition for exemption is not the common type of regulatory requirement that absolutely demands compliance under threat of penalty for violation of that requirement. Meeting a condition for exemption is required only if the generator wants an exemption, and then is “required” only in the sense that it is a necessary step to take in order to successfully obtain that optional exemption.
The primary legal consequence of
As an example, § 262.17 provides the conditions for the LQG exemption from storage facility regulation by stating that the LQG may accumulate hazardous waste on site without a permit or interim status, and without complying with storage facility operating requirements, provided it meets the conditions stated in that paragraph. The stated conditions for exemption in § 262.17 are the necessary steps the LQG can take to obtain the exemption, if it chooses to do so.
The distinction between part 262 independent requirements and part 262 conditions for exemption is also important because violation of an independent requirement (as discussed previously in this section), such as an SQG failing to obtain an EPA identification number, can result in a notice of violation and enforcement action for that particular independent requirement only. In contrast, noncompliance with a condition for exemption, such as an LQG accumulating hazardous waste for more than 90 days may result in an entity losing its storage facility exemptions and becoming the operator of a non-exempt storage facility subject to the applicable requirements for storage facilities in parts 124, 264 through 268, and 270.
The first part of the revisions EPA is finalizing contains the definitions for “independent requirement” and “condition of exemption,” so that the meaning of the terms will be clear as we have described them here. We use these terms throughout this preamble and the final regulations to distinguish between these two types of provisions for generators in part 262.
EPA is also finalizing the changes to § 262.10(a) with some revisions. Section 262.10(a) addresses the purpose, scope, and applicability of the hazardous waste generator regulations and contains both a list of which independent requirements apply to each generator category and also references to the later sections at which generators can find the full list of conditions for the applicable generator exemption. At the same time, § 262.10(a) distinguishes which generator provisions are independent requirements and which are conditions for a generator exemption.
The language in § 262.10(a) also continues to explain the significance of the conditional exemption from storage facility permit, interim status, and operating requirements by stating specifically that if the conditions for exemption (those requirements in § 262.14, 262.15, 262.16, or 262.17) are not met, then the generator will be subject to the permitting or interim facility provisions in parts 124, 264 through 268, 270, and section 3010 of RCRA.
The reaction to the proposed changes was mixed among the states. Many states agreed that the explanations of conditions for exemption from permitting for generators accurately describes how the generator regulations have operated all along and stated that including this explanation in a straightforward way in the regulations would be a benefit and would make the RCRA program more transparent to the regulated community. Some states, however, expressed concern that the new regulations would limit their flexibility in how they enforce the RCRA regulations within their states and were opposed to the changes for that reason.
Comments from industry stakeholders expressed great concern that the language EPA proposed represented a major shift in the Agency's enforcement paradigm to a draconian system of enforcement that would lead to an excessive number of violations and penalties. EPA disagrees with this comments and did not intend to create any sort of shift in EPA's enforcement actions. In response to these comments on the proposal, EPA has revised the final language to be clearer and to further explain the regulations.
In this final rule, EPA reiterates that the distinction between independent requirements for all generators and conditions for exemption from the storage facility regulations that are available to generators who are accumulating hazardous waste on site has always existed in the RCRA program. It has been the Agency's longstanding position that generators that do not comply with a condition of a generator exemption fail to qualify for the exemption and (if they have not qualified for a larger generator exemption) they would be considered an operator of a non-exempt storage facility, in addition to being a generator. The changes to § 262.10 in this rule do not constitute a substantive change to this long-standing position.
Thus, these revisions to the regulations make this distinction more clear to all generators by listing the independent requirements and conditions for exemption applicable to all hazardous waste generators based on their generator category. The reason for this change is to reduce confusion for the regulated community in the context of compliance and any enforcement actions.
Additionally, EPA is revising another part of § 262.10 in its effort to make the framework of the regulations more clear. Historically § 262.10(g) has stated that a generator is subject to the compliance requirements and penalties prescribed in section 3008 of [RCRA] if it does not comply with the requirements of part 262. However, this paragraph did not previously explain the distinction between the potential penalties for violating part 262 independent requirements and the consequences of not complying with the conditions for a generator exemption that are not subject to direct penalties. As a result, confusion has persisted over the legal consequences of failure to comply with the conditions for exemption and this confusion is reflected in the comments to our proposed rule.
Therefore, EPA is revising § 262.10(g) to make the legal framework clear to the regulated community. Section 262.10(g)(1) establishes that violation of an independent requirement, such as the hazardous waste determination
As a whole, EPA believes that these three sets of revisions—the new definitions in § 262.1 and the revisions to § 262.10(a) and (g)—will clarify EPA's longstanding position on how the RCRA generator program works and how the two types of requirements—independent requirements and conditions for exemption—interact and apply. As stated previously, EPA does not consider these revisions to the regulatory language as a change to the RCRA generator program because the regulations that were previously in § 262.34 (now in §§ 262.14–17) and the provisions for VSQGs that were in § 261.5
As explained in the preamble to the proposal, the clarifications regarding the distinction between independent generator requirements, and the conditions for exemption from storage facility regulations for generators that accumulate hazardous waste on site, do not alter the way the generator regulatory scheme has operated over the last 30 years. Similarly, the clarifications regarding the enforcement consequences of independent requirement violations and non-compliance with conditions for exemption do not signal a change from how most enforcement actions have been pursued when a generator has been found in noncompliance with a condition for exemption.
For violations of independent generator requirements, federal and state regulatory agencies continue to retain full enforcement discretion authority to determine whether an enforcement action is warranted and if so, what enforcement tools, including notices of violation, civil and criminal complaints, penalties and injunctive relief, are appropriate to address any detected violations.
Likewise, regulatory agencies retain the same discretion and authority regarding bringing various types of enforcement actions that they have always exercised in situations where non-compliance with conditions for exemptions have been detected. The clarifications in this rule do not mandate that regulatory agencies pursue enforcement actions where they previously would have exercised enforcement discretion in forgoing such actions. In addition, this final rule does not mandate charging and penalization of every violation of regulatory requirements that legally may result when a generator loses its exemption from the storage permit and operations requirements, when, for example, such action would be disproportionate to the seriousness of the generator's violations. EPA and states have always had, and continue to have, enforcement discretion to bring charges and seek penalties that accurately reflect the seriousness of the violations and their potential for harm.
In addition, we do note that when implementing the regulations, enforcement agencies can elect to cite violations based on the failure to obtain a permit in part 270; or on a specific requirement in the storage facility operations regulations in parts 264 and 265 that is a companion to the out-of-compliance condition found in part 262; or both; and/or other violations found in the operations regulations that are applicable to the generator as a result of the non-compliance.
EPA has also made a few changes to the language in § 262.10(a) since the proposal. Some commenters on the proposed rule suggested that we include a list of the independent requirements applicable to VSQGs in § 262.10(a)(1) to make the regulations parallel for VSQGs, SQGs, and LQGs. VSQGs have very few independent requirements, but a VSQG does have to make a waste determination and determine its generator category. EPA agrees with this comment and, therefore, we have inserted a new § 262.10(a)(1)(i) for VSQGs and listed these two independent requirements there.
In addition to that change, we also revised the language in § 262.10(a)(2) to clarify the language and to correct the list of parts that would be applicable to generators that fail to meet the conditions for exemption by deleting part 263 for transporters of hazardous waste and adding the permit requirements in part 270. EPA realized the proposed language was not consistent and, in some places, included references that would not be accurate.
EPA also made changes to the revisions in § 262.10(g) in response to comments that this language was confusing and too “legalistic.” It is important to EPA that the regulated community understand the concepts we are describing. Therefore, in § 262.10(g)(1), EPA revised the language to make it clear that the provision is focused on the independent requirements for generators that, by definition, appear in part 262 of the regulations and not requirements in other parts.
EPA also made changes to § 262.10(g)(2), which addresses noncompliance with conditions for exemption. Several comments stated that the language here was confusing. To address this concern, EPA revised the language in an attempt to clarify it for the average generator. The language now explains what might happen in the case of noncompliance in a more narrative fashion, stating what the consequences are of not qualifying for the exemption from the permitting regulations, as EPA has already described in this preamble. Finally, EPA revised the list of parts that apply to a generator that does not qualify for the exemption from the storage facility regulations, in order to be consistent with other places in the rule.
This provision is being added to the regulatory framework and not replacing §§ 262.18(c), 262.20(b), 262.40(a), as those provisions are aimed at other aspects of the generator program (for example, ensuring manifests are properly completed).
EPA received general support from most of the commenters on this provision, with one commenter stating that the provision was unnecessary. EPA believes that the provision is necessary, as it is a cornerstone of the generator program and should be explicitly stated in the regulations to ensure that all generators are aware of it.
When § 262.10(c) was initially promulgated on February 26, 1980, the hazardous waste generator regulations distinguished between the generators that sent hazardous waste to be managed off site and those that managed their hazardous waste on site. Generators that sent hazardous waste off site could manage it for 90 days in an accumulation area, but generators that managed hazardous waste on site were expected to manage it under their permits or under interim status regulations. The purpose of § 262.10(c) was to provide the list of requirements that generators managing hazardous waste were required to follow in addition to those permits or interim status requirements.
This distinction meant that the two types of generators had very different standards for the areas where newly generated hazardous waste was managed. Significantly, generators sending hazardous waste off site could easily make physical changes to their accumulation areas, whereas a similar generator managing hazardous waste on site under a permit had to go through the permit modification process to make the same kind of changes. EPA effectively eliminated the distinctions by revising these regulations (45 FR 76624, November 19, 1980 and 47 FR 1248, January 11, 1982). The final rule promulgated in January 11, 1982, made a change to § 262.10(c) that added the generator accumulation provisions at § 262.34 to the list of provisions that apply to a generator that treats, stores, or disposes of hazardous waste on site. Currently, the Agency does not make this distinction between generators that send waste for treatment off site and those that manage waste on site. This revision is therefore outdated and, thus, should be deleted and reserved.
The Laboratory XL Project was created for Boston College, the University of Massachusetts, and the University of Vermont, and was finalized in the
Under RCRA, generators are the first critical link in ensuring safe management of hazardous waste. They are the cradle in the cradle-to-grave RCRA system. The first and most important step in the regulations is for generators of solid waste (as defined at § 261.2) to determine whether their waste is also a hazardous waste by using § 262.11. If a generator fails to identify a hazardous waste as hazardous, it will not start the waste down the hazardous waste management path and the critical gateway to the RCRA Subtitle C safe management system will be missed. Such mismanagement of hazardous waste may result in damage to human health and/or the environment.
Thus, the success of the hazardous waste regulatory program depends, to a great extent, on generators making accurate hazardous waste determinations. However, as described in the proposal, EPA has observed through various efforts that generators struggle with this crucial first step with the estimated rates of non-compliance ranging from 20 to 30 percent.
Specifically, the proposed rule included revisions to the § 262.11 regulations that would (1) clarify that hazardous waste determinations must be accurate; (2) confirm that a generator's waste must be classified at its point of generation and, for wastes potentially exhibiting a hazardous characteristic, at any time during the course of its management when the properties of the wastes may change in such a way as to change the hazardous waste determination; (3) revise the language on how to make a determination for listed hazardous waste in § 262.11 to explain more fully how generators can make this kind of determination using generator knowledge; (4) explain more completely in the regulations at § 262.11 how a generator should evaluate its waste to determine whether the waste may exhibit one of the hazardous characteristics; (5) move the independent recordkeeping and retention requirements for hazardous waste determinations currently found at § 262.40(c) into § 262.11 to integrate this provision more directly into the hazardous waste determination regulations; (6) revise the hazardous waste determination recordkeeping regulations to require that SQGs and LQGs maintain records of any test results, waste analyses, or other determinations made in accordance with § 262.11 for at least three years, including waste determinations where a solid waste (as defined in § 261.2) is found not to be a RCRA hazardous waste (as defined in § 261.3); (7) revise the hazardous waste determination regulations by copying § 262.40(d) into § 262.11 to address situations where an enforcement action has been initiated and the period of record retention (
The Agency also requested comment regarding how best to emphasize the importance of accurate hazardous waste determinations and the length of time records must be maintained. Finally, EPA also asked for comment on the utility of developing an electronic decision making tool for hazardous waste determinations.
The Agency is finalizing the following changes to § 262.11:
(1) Requiring that a solid and hazardous waste determination must be accurate, and expanding on why this determination is important;
(2) Requiring that a hazardous waste determination for each solid waste must be made at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors such that its waste classification may have changed;
(3) Incorporating regulatory language that elaborates on how to make a hazardous waste determination for listed and characteristic hazardous waste;
(4) Referencing the applicable RCRA regulations for identifying possible exclusions or exemptions for the hazardous waste at in § 262.11(e).
(5) Moving the independent recordkeeping and retention requirements for hazardous waste determinations currently found at § 262.40(c) into § 262.11(f), with clarifications on what records must be kept; and
(6) Requiring SQGs and LQGs to identify the applicable RCRA waste codes for the hazardous waste they have generated, but clarifying that such identification must occur no later than immediately prior to shipping hazardous waste off site to a RCRA permitted treatment, storage and disposal facility in accordance with the requirements of § 262.32.
The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Nor is the EPA finalizing a requirement for SQGs and LQGs to maintain records of their hazardous waste determinations until the generator closes its site.
Finally, EPA requested feedback regarding the feasibility and effectiveness of developing electronic decision-making tools for hazardous waste determinations and whether such tools would be a helpful to generators. Based on comments, the Agency is not finalizing any provision related to electronic decision-making tools for hazardous waste determinations but will continue to explore feasibility in the future. The Agency took comment on a number of electronic tools and reporting options and has organized our discussions of all of these options in section XIII of this preamble. See this section for a more in-depth discussion regarding electronic waste determination decision tools and other electronic options.
EPA believes that waste determinations are of utmost importance and warrant this emphasis regarding accuracy. As one commenter stated, “Accurate waste determinations are required to ensure that each waste stream generated by a company is properly managed. Additionally, accurate waste determinations protect workers by making the company and the worker(s) aware of the dangers of the waste(s) being managed. Further, accurate waste determinations will ultimately lead to an accurate generator status determination.”
Some commenters argued that addition of the term “accurate” to the regulation would be superfluous, as the Agency's intent that hazardous waste determinations be accurate is self-evident, and that adding this term may even imply that other aspects of the RCRA program need not be accurately implemented. The Agency's intent is that all parts of the RCRA regulatory program be implemented in the manner required by the regulations. In adding the term “accurate” to the waste determination requirement of § 262.11, the Agency intends to emphasize the importance of this step in the waste management process. Inaccurate hazardous waste determinations will lead to violation of other RCRA regulatory requirements and mismanagement of the waste, which may result in damage to human health or the environment.
Another reason for including the language explaining a generator must make an accurate waste determination to ensure the wastes are properly managed is to clarify the applicability of § 262.11 in instances in which generators choose to manage their non-hazardous wastes as hazardous wastes. Even if the waste may not be hazardous, “over managing” the waste is acceptable and meets the requirements in § 262.11 because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. The practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.
In addition to concerns about the regulatory status of over-classified wastes, commenters also expressed concerns about generators using the best available information and still making an inaccurate determination because of the errors and omissions of others. Generators are, and always have been, ultimately responsible for making accurate hazardous waste determinations. Hiring a third party contractor, waste broker, or consultant, or reliance on information provided by suppliers does not transfer this responsibility to those third parties. While the Agency understands that reliance on third parties may sometimes result in an inaccurate waste determination, the responsibility remains with the generator. It would be prudent for the generators to practice due diligence and establish processes and procedures that ask questions of their suppliers and waste management companies to understand why their materials are hazardous or not.
One commenter mentioned that the term `accurate' also does not provide any guidance about how intensive or deep a generator's research must be to meet the intended standard. This commenter goes on to discuss that a five-minute review of a Safety Data Sheet (SDS) and product brochure may well be `accurate' but much too superficial to ensure the generator has considered all potentially hazardous attributes of the waste. The Agency disagrees with this commenter. Waste determinations are site specific and each generator must evaluate the amount of time and effort needed to make an accurate waste determination. In some cases, a review of an SDS may suffice because the identification of the constituents and their concentration ranges may make it clear whether the chemical is or is not a hazardous waste upon disposal. Conversely, the Agency can see a number of situations where a generator must conduct analysis and testing to meet this requirement. Regardless of the effort invested in making a hazardous waste determination, the Agency's intent is that the
Many commenters expressed concern with EPA's proposed requirement that hazardous waste determinations must be made at the point of generation. For many generators, the Agency believes making a hazardous waste determination on new wastes should be an infrequent evaluation. An analysis of 2013 biennial report data identified 46 percent of LQGs generated between one and five waste streams. Similarly, this same analysis found that overall LQGs generated a median of 6 hazardous waste streams and a mean of 13 hazardous waste streams.
Based on EPA's 2013 Hazardous Waste Determination Program Evaluation
We have and continue to recognize that situations will occur where a generator is not able to make an accurate waste determination based on knowledge alone, and the generator will need to send a representative sample of the waste to be tested. However, as the EPA has stated in the past, the generator must manage the waste as hazardous waste until the results of the test are received, and continue to manage it as
The Agency is also aware that many generators, such as academic and industrial laboratories, generate new or different waste streams frequently, and that making hazardous waste determinations for multiple waste streams is more difficult than when a generator has a small number of waste streams that seldom vary. However, EPA stresses that in the laboratory setting, it may be even more important to make accurate hazardous waste determinations at the point of generation, so that emergency scenarios involving mixing of incompatible wastes or other dangerous situations can be avoided and lab worker safety maintained. Whether a generator generates one new waste daily or annually, the process for making a hazardous waste determination is still the same. Through knowledge of the process or materials, and/or through testing, all generators must make a hazardous waste determination at the point of generation. The Agency would expect generators producing new wastes frequently to establish efficient processes to make those waste determinations, particularly to the extent they can use knowledge of the materials or feedstocks in the waste determination process.
Both the retail and laboratory sectors raised concerns about the undue waste determination burden from the large numbers of potentially hazardous wastes that might be generated at their sites. EPA realizes that both of these sectors operate differently from the traditional industrial hazardous waste generators. In fact, to address laboratory sector concerns, EPA developed an optional set of alternative standards in 40 CFR part 262 subpart K, entitled, “Alternative Requirements for Hazardous Waste Determination and Accumulation of Unwanted Material for Laboratories Owned by Eligible Academic Entities.” This rule was designed to account for the manner in which academic laboratories operate. In addition, a few years ago, the EPA began a review of how RCRA hazardous waste regulations apply to the retail sector in order to better understand retailers' challenges in complying with RCRA regulation. These efforts are on-going.
A few commenters disagreed with the proposal to add language clarifying that waste determinations must be made at the “point of generation,” arguing that the Agency has issued waste determinations in the past contradicting this policy. The Agency disagrees with this commenter. EPA has been consistent in its position that a waste determination must be made at the point of generation, unless for some unforeseen and rare circumstance, the determination must be made in a subsequent location. Without clarifying in the regulation that a waste determination must be made at the point of generation, the RCRA “cradle to grave” system could be easily circumvented, with generators and handlers able to delay the waste determination process until a convenient time and place, including by a subsequent handler who knows little about the waste.
However, in response to comments, the Agency is stating that existing guidance and memoranda addressing specific situations relating to the point of generation are not superseded by this final rule. Specific examples of such situations are discussed in the Agency's Response to Comment document found in the docket to this rule.
As part of finalizing § 262.11(a), the Agency is also finalizing the language that explicitly clarifies the waste determination policies identified and discussed in 1980 (45 FR 33095–96, May 19, 1980);
This implies that a generator's waste characterization obligations may continue beyond the determination made at the initial point of generation. In the case of a non-hazardous waste that may, at some point in the course of its management, exhibit a hazardous waste characteristic, there is an ongoing responsibility to monitor and reassess its regulatory status if changes occur that may cause the waste to become hazardous. Thus, the generator must monitor the waste for potential changes if there is reason to believe that the waste may physically or chemically change during management in a way that might cause the waste, or a portion of the waste, to become hazardous.
Many commenters were concerned that in practice, this provision would require them to constantly re-evaluate their wastes. However, the Agency stands by and is not changing this long-standing position. Generators have a responsibility to understand the properties of their waste, not only to make an accurate determination, but also to manage the waste properly. In many instances, the properties of the waste most likely will not change. But in other situations, exposure to the elements, or the very nature of the chemicals in the waste may cause its properties to change. Generators have a responsibility as part of the waste determination and waste management processes to be aware of those situations.
Similarly, in the proposal at § 262.11(d)(1), the Agency elaborated on the test methods generators may use to determine whether their wastes are hazardous. Included were test methods set forth in subpart C of part 261 or an equivalent method approved by the Administrator under § 260.21. The Agency, in its proposal, also stated under § 262.11(d)(2) that where a test method is specified in the regulation, the results of the regulatory test, when properly performed, are “definitive” for determining the regulatory status of the waste.
The Agency received numerous comments on this latter provision, with commenters expressing concerns that by stating a regulatory test, when properly performed, is “definitive” in determining a waste's regulatory status, EPA was also implying that use of generator knowledge was not definitive and less trustworthy as a means to make a hazardous waste determination. Several commenters went so far as to suggest the Agency, for all practical purposes, was eliminating the ability to use process knowledge for waste determinations and was requiring actual testing.
These commenters misinterpreted the proposed change. The Agency reaffirms that generators may use knowledge of their processes and of the materials used in the process, among other types of information (as described in the proposal preamble), to make a hazardous waste determination. In fact, generators can only use knowledge of their process and knowledge of the materials used in the production process to determine whether their waste meets any of the F-, K-, P- and U-waste listings.
Further, in determining whether wastes may exhibit a hazardous characteristic, EPA expects that most generators will use generator knowledge to make waste determinations, and this is appropriate provided that such knowledge results in an accurate determination. Where generator knowledge is inconclusive or uncertain, testing using the test methods described in part 261 subpart C, or equivalent methods approved by the Agency in § 260.21, will resolve any uncertainty. The results of such testing, when properly performed, are definitive because these tests are part of the regulatory definition for those parts of the hazardous characteristics that include them. The Agency is reversing the order of the proposed § 262.11(d)(1) and (d)(2) in the final regulations to clarify the roles of knowledge and testing in making hazardous waste determinations.
One commenter mentioned that while EPA has adopted the terminology “acceptable knowledge” in the rule from its waste analysis guidance, we have not identified what is unacceptable knowledge and we may be adding confusion to the process. While the Agency believes the term “acceptable knowledge” is clear, and has used it in discussing this topic in older
One commenter also suggested that the word “applicable” be inserted before “methods” in proposed § 262.11(d)(1) to read: “The person must test the waste according to the
Second, we are finalizing the proposed expanded language to better articulate the types of waste determination information that must be maintained as records of hazardous waste determinations made using
While the Agency is aware that some states interpret the words “other determinations” in the existing § 262.40(c) recordkeeping requirement to include non-hazardous waste determinations, as discussed in the proposed rule, EPA has not held, and continues to not hold, the same interpretation. By adding this language back into the final hazardous waste determination recordkeeping regulatory section rather than deleting it, as proposed, it is possible that those states will maintain their more stringent interpretation.
As discussed in more detail later on, EPA is not finalizing the requirement that generators maintain records of their non-hazardous waste determinations. However, the Agency will continue to recommend that generators document their non-hazardous waste determinations as a best management practice, particularly in situations where wastes contain known hazardous chemical attributes that could be mistaken for a hazardous waste.
Third, the Agency is finalizing the time period as proposed: Waste determination records must be maintained for at least three years. EPA asked for comment on extending the time period to the life of the facility and commenters were practically unanimous in opposing the extension, responding with various reasons why extending this time period is not practical, including the existence of a statute of limitations after which no enforcement actions can be brought against a generator, and the fact that once a production process changes and a particular waste is no longer generated, those records are not needed for the life of the facility.
EPA proposed to change when the three-year clock would start for this recordkeeping requirement to the date last generated. However, we are reverting to the original § 262.40(c) language that states that three years is measured from the date that the waste was last sent to on-site or off-site treatment, storage, or disposal. The few comments on this proposed change referred to previously existing regulatory language as if the commenters did not realize we had proposed a change. The Agency has reconsidered this issue and concludes that generators will have an easier time maintaining records of when their waste was sent for disposal rather than generated. Moreover, maintaining the status quo in the original regulations eliminates the need for generators to change operating procedures.
Fourth, the Agency is deleting the sentence regarding the co-mingling of wastes proposed at § 262.11(e). With the Agency addressing the mixing of solid with hazardous wastes by generators at § 262.13(f), this statement in § 262.11 is not needed.
Fifth, a few commenters suggested that types of information not be limited to those cited in the proposed rule at § 262.11(e). The Agency believes that the language in § 262.11(e) is very broad intentionally to capture any type of information used to support a hazardous waste determination. Thus, we believe that the examples provided are not all-inclusive and this is already implicit in the regulatory text and we have not made a change.
Finally, the Agency is reaffirming in preamble that inspectors have the existing authority to require a generator to perform a waste determination during an inspection to support their finding that the waste of concern is not a hazardous waste if no documentation exists.
EPA is limiting this requirement in the final rule to SQGs and LQGs because VSQGs have no requirement to label or mark their hazardous waste. Without this labeling or marking requirement, the Agency believes it is unnecessary for the VSQG to identify all applicable hazardous waste codes.
Currently, there is no direct or explicit regulatory linkage between the hazardous waste identification requirements of § 262.11 and hazardous waste manifesting requirements of subpart B of part 262 where RCRA waste codes must be identified. From stakeholder discussions, the EPA understands that some states interpret the hazardous waste determination process to include identifying the waste codes. We view this requirement to simply provide the connection between what wastes are in the container and what is on the hazardous waste manifest document. The Agency believes this linkage is important to program integrity and received support from commenters.
These commenters mentioned that the proposed identification of RCRA waste codes on containers at the time of the pre-transport requirements at § 262.32 provides another level of hazard communication for regulatory inspectors and emergency responders. They also suggested that this requirement decreases overall burden for generators, transporters and TSDFs because there will be fewer instances when a generator has failed to identify its hazardous waste, and therefore fewer cases where a designated facility needs to identify the hazardous waste or send the wastes back to the generator for proper identification. Similarly, this additional marking information also provides for quicker and more confident acceptance screening at the receiving facility.
Commenters opposing this requirement raised concerns about the increase in burden and potential conflicts with DOT requirements, such as with 49 CFR 172.401. EPA disagrees that this is an increase in burden. Generators have always had to identify hazardous waste codes for the manifest and many states already require waste codes on containers. Without EPA hazardous waste codes, TSDFs may not be able to treat the waste to meet LDR requirements. In terms of potential DOT conflicts, EPA's pre-shipment marking requirements in § 262.32 (where we are finalizing the marking of hazardous waste codes on containers) are designed to be in compliance with 49 CFR 172.304 and these regulations reference that the marking must be in compliance with the DOT regulations.
Other commenters raised the concern that adding waste codes to containers managed on site does not improve a generator's ability to properly manage that waste. EPA agrees with these comments that generators treating, storing, or disposing their hazardous waste on site do not need to identify the hazardous waste codes because they should have sufficient information already about their waste to ensure they meet the proper LDR requirements.
Finally, as discussed in more detail in the marking and labeling section IX.E, EPA is finalizing the requirement in
Numerous organizations voiced disapproval of the Agency's proposal to require SQGs and LQGs to document their non-hazardous waste determinations. Reasons included, but were not limited to, the following themes:
(1) The Agency has no legal authority to require such documentation because the Subtitle C regulations do not regulate non-hazardous wastes;
(2) There is no compelling reason to require such documentation because generators have a very strong incentive to ensure they have accurately classified their wastes, given that failure to do so can result in significant penalties for the illegal management of hazardous waste;
(3) The Agency failed to account for generators that generate numerous waste streams every day, such as the retail sector and academic and industrial laboratories; and
(4) The rule would create so much regulatory uncertainty that the only way to protect themselves against non-compliance would be to document every waste stream generated.
Counterbalancing these arguments were comments from other organizations supportive of the non-hazardous waste determination recordkeeping requirement with the following themes:
(1) Accurate waste determinations are difficult for regulators to verify if records are not kept, particularly for unknown waste that reasonably may display the attributes of a hazardous waste but for which there is no written evaluation showing it as non-hazardous;
(2) Unknown wastes must be assumed to be hazardous and managed accordingly unless and until evaluated to be otherwise;
(3) Recordkeeping costs are overstated. Businesses spend time and effort identifying and purchasing certain materials based on their characteristics so they should already have information about the nature of these materials;
(4) Lack of documentation of waste determinations leads to confusion when knowledge is lost during staff turnover and must be re-created by the replacement staff; and
(5) Most generators already keep this information as part of best practices.
The Agency concludes that many of these arguments, both in favor of and against the proposal, have some measure of validity. However, the Agency strongly recommends that as a best management practice, generators document their non-hazardous waste determinations, particularly in situations where the waste may display the attributes of a hazardous waste and where staff turnover may cause a worker to question the contents of a container. Most importantly, when situations warrant, inspectors have the authority to ask that a hazardous waste determination be performed by the generator in the absence of any documentation and the attributes of the waste suggest a potential problem.
Several commenters questioned the Agency's authority to require such documentation of non-hazardous waste determinations because the Subtitle C regulations do not regulate non-hazardous wastes. The commenters are incorrect. The Agency has the authority under sections 3007 and 2002 of RCRA to require such records be kept, but instead has chosen not to finalize our use of such authority in this case and rather follow an alternative approach.
Specifically, RCRA section 3007 allows us to gather information about any material when we have reason to believe that it may be a solid waste and possibly a hazardous waste within the meaning of RCRA section 1004(5). A generator will not know definitively whether a waste that has potential to be hazardous is hazardous or non-hazardous unless it identifies the waste and documents that identification, even if the waste turns out to be non-hazardous. Moreover, RCRA section 2002 also gives EPA authority to issue regulations necessary to carry out the purposes of RCRA. The intent of the proposed requirement to document non-hazardous waste determinations is to provide basic information to EPA about the potentially hazardous nature of the waste that is generated (even if it is ultimately determined to be non-hazardous) in order to ensure its proper management, enable regulatory agencies to monitor compliance adequately and to ensure appropriate environmental protection.
Several commenters also questioned the need for such documentation because generators have a very strong incentive to ensure they have accurately classified their wastes, given that failure to do so can result in significant penalties for the illegal management of hazardous waste. The Agency does not disagree with this argument, but in reality, not all generators are motivated to comply, given the high rate of non-compliance with making accurate hazardous waste determinations.
Other commenters, particularly in the retail and academic and industrial laboratory sectors, stated that the Agency failed to account for organizations with numerous waste streams generated every day when proposing documentation of non-hazardous waste determinations. The Agency was aware of and did identify several sectors (including these) in the proposal where this requirement had the potential to be more challenging, given the high number of waste streams generated. Also, the Agency sought comment on how best to address this potential burden. However, the Agency is not finalizing this provision.
A few commenters also stated that most generators already keep this information because their state requires it or because they realize the importance of systematically evaluating the waste streams they generate to ensure they are managing it properly. As stated previously, the Agency supports this non-hazardous waste determination recordkeeping practice by industry and recommends it as a best management practice.
The Agency did receive a number of comments supporting the proposal to require SQGs and LQGs to document their non-hazardous waste determinations. This support bolsters the Agency's conclusion that more work is needed to ensure generators make accurate hazardous waste determinations. At this time, in lieu of requiring such documentation, the Agency is considering initiating a dialogue with industry and states to identify the root causes of this problem and identify potential solutions. Such solutions may include establishing best management processes and practices, along with the possible development of generic decision tools or other technical assistance information that can assist generators with the process of
A generator must correctly count the quantity of hazardous waste that it generates in order to determine its generator category. During the development of the proposed rule, EPA determined that the extent of the counting requirements in the generator regulations at the time consisted of lists in § 261.5(c)–(d) and (h)–(j) of what materials must and must not be included when counting waste. These regulations did not address other counting considerations. EPA therefore proposed a new § 262.13 to describe how a generator determines its generator category, containing the previously existing language in § 261.5(c)–(d) as well as some specific steps to calculate an amount that includes the correct amounts of hazardous waste.
Elsewhere in the proposed rule, EPA proposed regulatory language for each of the categories of generators describing how the rules regarding mixing from § 261.5(h)–(j) would impact their generator categories and how to count mixtures of hazardous waste and solid waste. EPA is consolidating the discussion of counting hazardous waste from all these areas of the proposed rule into § 262.13 for the final rule in order to make these requirements easily understandable by the regulated community and thus improve compliance and consistency.
The introductory language of § 262.13 states that a generator must determine its generator category and that the category is based on the amount of hazardous waste that is generated in a calendar month. This requirement for a generator category to be based on a monthly generation amount is derived from the RCRA statute and is critical to the framework of the generator regulations.
In addition, EPA notes that a VSQG or an SQG that generates more hazardous waste in a particular calendar month than allowed in its generator category must make a determination that it now meets the higher generator category (if it is not covered by the episodic generation provisions discussed in section X of this preamble).
Paragraph (a) of § 262.13 presents basic procedures for counting hazardous waste generated in the calendar month, subtracting or excluding anything that is exempt and using the difference to determine the generator category. Paragraph (b) of § 262.13 specifically addresses the situation in which a generator generates any combination of non-acute hazardous waste, acute hazardous waste, and the residues from the cleanup of a spill of acute hazardous waste. This paragraph presents a series of steps for a generator to follow when determining its generator category to ensure it selects the appropriate category for the total amount and types of hazardous waste generated.
Sections 262.13(c) and (d) are existing provisions that EPA is moving from § 261.5(c) and (d) of the existing regulations with a few small wording changes to reinforce that category determinations are made monthly and do not otherwise represent a change in the generator regulations.
Section 262.13(e) completes the main process of counting by stating that based on the generator category that is determined under the steps laid out in the section, the generator should determine which of the sets of generator provisions apply to it.
Commenters also noted that although EPA included a Table 1 to § 262.13 in the regulations, the table was not referenced in the regulations. EPA therefore added references to Table 1 in the regulatory text in paragraphs (a) and (b). Also, in Table 1 in this section, we are deleting the first column of numbers that denoted which generation scenario was being represented by each row. This column was potentially useful in the preamble discussion, but served no purpose in the regulations and has been removed.
In addition, several commenters stated that although a generator's category is based on the amount of hazardous waste it generates in a calendar month, every generator need not make an exact category determination every month. The commenters argued that many generators have a very accurate sense of what category they are month-to-month because their processes generate consistent amounts of hazardous waste over time. Only those generators with generation amounts near the limit would have to count regularly to make the category determination. These commenters stated that many generators with categories that fluctuate from month-to-month choose to operate as LQGs full time and would, therefore, not need to count every month to determine generator category.
EPA agrees with the commenters and therefore has made revisions to the introductory language for the section to state that a generator is required to determine its generator category. The language continues to stress that a category is based on monthly generation
Finally, EPA added the language in § 262.13(e) upon determining that although the purpose of the section is to lead the generator through counting its hazardous waste for the purpose of determining the correct generator category, the proposed regulations did not include the final step in the process.
a.
b.
1. Moving the proposed relevant provisions of §§ 262.14(b), 262.16(d) and 262.17(f) applicable to mixtures of hazardous waste and solid waste to § 262.13(f). The act of mixing a solid waste and a hazardous waste is not the same as a generator accumulating hazardous waste, nor is the act of mixing in any way related to the conditions for exemption from permitting. The purpose of moving the requirements for mixtures to § 262.13 is to make generators aware of the regulations applicable to mixtures of hazardous waste and solid waste, and to accurately explain how the mixing of a hazardous waste with a solid waste may affect a generator's category determination for the calendar month.
2. Clarifying that a VSQG mixing hazardous waste with solid waste can remain subject to § 262.14, even though the mixture may exceed the VSQG quantity limits (either 100 kg per month generated or 1,000 kg accumulated on site at any one time) unless the mixture exhibits one or more of the characteristics of a hazardous waste. If the resultant mixture exhibits a hazardous waste characteristic, the VSQG must add the quantity from the resulting mixture with any other regulated hazardous waste generated in the calendar month and determine whether the total quantity generated exceeds the generator calendar month quantity identified in the definition of generator categories found in 40 CFR 260.10.
3. For both SQGs and LQGs:
a. Reemphasizing that both the hazardous waste portion of the resulting mixture and other amounts of hazardous waste generated in a calendar month must be counted towards a generator's category determination.
b. Making SQGs and LQGs aware of the § 268.3(a) prohibition of impermissible dilution of a hazardous waste with a solid waste to decharacterize the hazardous waste. The regulation at 40 CFR 268.3(a) states, “. . . no generator, transporter, handler, or owner or operator of a treatment, storage, or disposal facility shall in any way dilute a restricted waste or the residual from treatment of a restricted waste as a
c. Stating that SQGs and LQGs are subject to the regulations applicable to mixtures found in § 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i).
d. Stating that SQGs or LQGs that mix a characteristic hazardous waste with a solid waste to remove any hazardous characteristics are subject to the treatment standards found at § 268.40, as well as the “impermissible dilution” requirements in § 268.3.
4. For all generators, reminding them they must make a hazardous waste determination at § 262.11 when mixing a hazardous waste with a solid waste.
One commenter pointed out that the applicable regulations for mixtures are unrelated to the conditions for an exemption from operating without a permit and therefore, the requirements applicable to mixtures do not belong under §§ 262.14, 262.16, and 262.17. The Agency agrees these are valid
The regulations for VSQGs have moved, with some changes, from their previous location in § 261.5 to § 262.14 as part of the reorganization of the generator regulations. Although there are some changes to these regulations, they were mainly relocated from one part to the other. Please see section VI of this preamble for a discussion of the reorganization and for an overview of the new § 262.14.
This section discusses the final rules associated with the marking and labeling of hazardous waste accumulated on site by SQGs and LQGs in containers and tanks. This section also addresses the marking and labeling requirements for (1) hazardous waste transporters that store containers of hazardous waste at transfer facilities (see 40 CFR 263.12) and (2) TSDFs that store containers of hazardous waste under the storage prohibition of the land disposal restriction requirements at 40 CFR 268.50(a)(2)(i). Lastly, in this section, we discuss the application of EPA hazardous waste codes to containers prior to shipment off site to a designated facility.
The regulatory changes EPA proposed to the marking and labeling for waste accumulation units are designed to enhance three critical areas: Risk communication, emergency preparedness and prevention, and the accuracy of hazardous waste determinations. Although labeling may appear to be an inconsequential “paperwork” exercise, it is, in fact, vitally important to ensuring that waste is identified and managed properly. Without proper labeling, hazardous waste may be mismanaged as non-hazardous waste, or as the wrong type of hazardous waste, which could cause harm to human health and the environment. As one commenter stated, “The department appreciates the opportunity to revisit this important topic, as we believe [it] is of critical importance in both the prevention of releases and in ensuring that, in the event of a release, the response to the incident is appropriate for the materials being stored.”
Second, while the words “Hazardous Waste” on containers provide some measure of information regarding the contents, this information fails to describe the specific hazards of the contents and what risk these wastes could pose to human health and the environment. EPA believes it is important that employees, transporters, downstream handlers, emergency personnel, and EPA and state inspectors know as much as possible about the potential hazards of the contents in containers being accumulated, transported, and managed, whether on site and/or off site, so that the hazardous wastes are managed in an environmentally sound manner. Therefore, EPA proposed that SQGs and LQGs must indicate the hazards of the contents of the containers while giving them flexibility in how to comply with this new provision. That is, we proposed that generators could indicate the hazards of the contents of the container using any of several established methods, including, but not limited to an EPA hazardous waste characteristic(s) (ignitable, corrosive, reactive or toxic); a hazard class label consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling); a label consistent with the OSHA Hazard Communication Standard at 29 CFR 1910.1200; a chemical hazard label consistent with NFPA code 704; or a hazard pictogram consistent with the United Nations' Global Harmonized System (GHS). We also proposed that generators could also use any other marking or labeling commonly used nationwide in commerce that would alert workers and emergency responders to the nature of the hazards associated with the contents of the containers.
These proposed changes were designed to alert workers, emergency responders, and others to the potential hazards posed by the contents of a container. Identifying the hazard increases awareness to workers and others who might come into contact with the hazardous waste container and reduces potential risks to human health and the environment from container mismanagement. EPA reasoned that the pre-transport requirements of part 262 subpart C already require hazardous waste generators to comply with the DOT labeling/marking requirements of 49 CFR part 172. By requiring generators to include information on container labels while
In summary, EPA proposed to modify the marking and labeling regulations for SAAs to require SQGs and LQGs to mark containers with the following: (1) The words “Hazardous Waste”; (2) other words that identify the contents of the containers (examples which may include, but are not limited to the name of the chemical(s), such as “acetone” or “methylene dichloride,” or the type or class of chemical, such as “organic solvents” or “halogenated organic solvents” or, as applicable, the proper shipping name and technical name markings used to comply with DOT requirements at 49 CFR part 172 subpart D); and (3) an indication of the hazards of the contents of the container. Examples of hazards include, but are not limited to, the applicable hazardous waste characteristic(s) (
Some commenters had the misperception that we are requiring the use of DOT hazard class labels on containers during on-site accumulation. In actuality, the Agency is providing flexibility to generators in how they identify the hazards of the hazardous waste in the container, and using DOT hazard communication such as hazard class labels (or placards, if appropriate) is one option for complying with this requirement. In fact, one commenter supported EPA's approach of “giving generators options to accomplish this strengthened communication.”
A number of commenters also had the misperception that the requirement for identifying the hazards of the contents is duplicative with OSHA requirements and/or DOT requirements. On the contrary, EPA notes that the marking
On a separate but related matter, one commenter reminded EPA that OSHA has new regulations for hazard communication that align with the GHS system and that the regulated community needs to adjust to these before RCRA changes are adopted.
Finally, commenters asked EPA to clarify several aspects of the container marking and labeling requirements. First, one commenter asked us to specify that the labeling should occur at the initial point of generation.
The marking and labeling requirements for containers in CAAs are consistent and identical to the marking and labeling requirements for hazardous wastes accumulated in containers located in SAAs. For the reasons cited under the SAA discussion (
Third, the Agency changed the dating requirement for tanks at SQGs and LQGs so that instead of using logs, monitoring equipment or records to identify when the 180- or 90-day accumulation period begins, generators must use logs, monitoring equipment or other records to demonstrate that hazardous waste is either emptied or removed from the tank within 180 or 90 days, with the final regulations now addressing both batch and continuous flow processes. While the Agency discussed both types of processes in the preamble to the proposed rule, the regulatory text in the proposed rule failed to address continuous flow processes. SQGs and LQGs with batch process tanks must demonstrate that their tanks are emptied every 180 or 90 days, respectively. However, the Agency recognizes that when hazardous waste is accumulated in tanks with continuous flow processes it may not be possible for SQGs and LQGs to demonstrate that a tank is emptied every 180 or 90 days, respectively, from when the hazardous waste first entered the tank. Therefore, generators with tanks with a continuous flow process have flexibility in how to demonstrate that hazardous waste has been turned over (as opposed to emptied) in a tank. For a continuous flow process, this demonstration involves a generator identifying the estimated daily input or inflow of hazardous wastes into the tank, the estimated outflow from the tank, and the capacity of the tank to estimate how many days the hazardous waste will reside in the tank before exiting.
As an example, if a tank with a continuous flow process has a capacity of 10,000 gallons, an inflow of hazardous wastes of 1,000 gallons per day and an outflow estimated at 500 gallons per day, then the expected residence time of the hazardous waste in the tank would be 20 days. The residence time would be calculated by first subtracting the daily outflow from the daily inflow (1,000 − 500 = 500). Then the tank capacity would be divided by the difference between the outflow and the inflow (10,000/500 = 20). The resulting residence time is 20 days.
In the proposed rule, the Agency proposed marking and labeling requirements for generators accumulating hazardous waste on drip pads and in containment buildings. Upon review of comments and further evaluation, the Agency now believes the marking and labeling provisions for these type of units belongs more appropriately under the discussion of the waste accumulation regulations for these types of units. Therefore, for further discussion, the Agency directs the reader to section IX.G.—Accumulation of Hazardous Waste by SQGs and LQGs on Drip Pads and in Containment Buildings.
The Agency proposed these modifications to ensure hazardous wastes are appropriately labeled and marked throughout its cradle-to-grave management, including transportation to a RCRA-permitted or interim status TSDF or to another transfer facility. Similarly, this additional information on the container would alert workers and other handlers to the contents of the container and the potential hazards of the materials therein.
In proposing these changes, the Agency believed that, in almost all cases, containers received by the transfer facility would already be marked and labeled by the generator, and therefore, any additional burden on the transfer facility would be minimal. However, in the preamble to the proposed rule, the Agency identified other situations where a transporter would be required to initiate the marking and labeling of a container;
For lab packs, which typically contain many different wastes, we are providing an exception to the requirement to include EPA hazardous waste numbers if the lab packs will be incinerated. Specifically, lab packs that will be treated using the alternative treatment standard of incineration, as allowed by § 268.42(c), do not have to be marked or labeled with the EPA hazardous waste numbers. However, lab packs that contain D004 (arsenic), D005 (barium), D006 (cadmium), D007 (chromium), D008 (lead), D010 (selenium) or D011 (silver), the EPA hazardous waste number must be marked or labeled with the EPA hazardous waste numbers (or use electronic means may be used). These specific metals must be identified because § 268.42(c)(4) requires any incinerator residues from lab packs that contain any of these specific metals to undergo further treatment prior to land disposal.
Hazardous waste generators are allowed, though not required, to use SAAs, provided that the generators meet the conditions for their use. SAAs are designed to assist generators who generate and accumulate small amounts of hazardous waste in different areas of their facilities. Alternatively, SQGs and LQGs may choose to accumulate hazardous waste only in CAAs rather than in SAAs. If an SQG or LQG does choose to accumulate hazardous waste in an SAA, the generator may accumulate a limited amount of
The Agency proposed six changes to the regulations for SAAs, now found at § 262.15. These six proposed regulatory changes and the final regulatory changes are individually discussed here in detail. In addition to these six proposed regulatory changes, EPA discussed two additional issues in the preamble to the proposed rule: (1) Our intention to rescind a guidance memo regarding the accumulation of reactive (D003) hazardous waste at locations away from the point of generation and (2) examples to help generators better understand the term “under the control of the operator,” which is used in the SAA regulations. These proposed changes were in response to stakeholder requests for additional clarification, additional flexibility or increased environmental protection that have been expressed through the years in various interactions, including the 2004 Generator Initiative,
The Agency is finalizing these six proposed regulatory changes, with minor modifications, along with three additional minor changes. These nine regulatory changes are all summarized individually here, and six of the changes are discussed in further detail later on. First, SQGs and LQGs that accumulate hazardous waste in SAAs will now be required to comply with the special requirements for incompatible wastes found at § 265.177 (with minor revisions). Second, we are providing regulatory flexibility by providing limited exceptions to the regulation requiring generators to keep containers closed at all times (with minor revisions). Third, when maximum volumes are reached in SAAs, we are clarifying that generators will have three consecutive calendar days to remove the hazardous waste from the SAA or come into compliance with the CAA regulations. Fourth, we are providing additional flexibility to allow generators that accumulate acute hazardous waste in SAAs to choose between using a maximum accumulation volume (1 quart for liquids) or maximum accumulation weight (1 kg or 2.2 lbs for solids). Fifth, we are clarifying the regulations for situations when the maximum volume (or weight) is exceeded in an SAA. Sixth, containers used in SAAs will be subject to the strengthened marking and labeling standards (note these marking and labeling changes are the same as those for containers in CAAs and were discussed previously in section IX.E. of the preamble to this final rule). The seventh change being made to SAA regulations pertains to the applicability of preparedness, prevention and emergency procedures. The eighth change is a minor wording change in response to a comment from the Association of State and Territorial Solid Waste Management Officials (ASTSWMO).
With regard to the non-regulatory actions pertaining to SAAs that were discussed in the proposed rule, we are moving forward to rescind the January 13, 1988 memo that allowed a storage shed outside of a building where a reactive hazardous waste (D003) is initially generated to be considered an SAA.
We
Several commenters objected to the third requirement of § 265.177 in that they felt it unnecessary and impracticable to require that a container holding an incompatible hazardous waste in an SAA be separated from the other material by means of a dike, berm, wall, or other device. This proposed regulatory language was taken directly from the language in § 265.177, which applies to interim status TSDFs, as well as CAAs at SQGs and LQGs. The commenters argue that a dike, berm or wall would not be feasible in the confines of an SAA, which is only allowed to accumulate a maximum of 55 gallons of hazardous waste. The Agency agrees that most SAAs would not accommodate a dike, berm or wall. Although, the proposed regulatory language also allows for “other device[s],” to keep incompatibles segregated, the Agency has decided to replace the regulatory language “by means of a dike, berm, wall or other device” with the phrase “by any practical means” in order to address commenters' concerns. One commenter provided an example of what they do to avoid potential comingling of incompatible wastes in their CAA—they “. . . segregate incompatible wastes onto separate pallets in the 90-day accumulation area. Pallets holding incompatible wastes are separated by at least one pallet width (
EPA is making one additional minor revision to this section of the SAA regulations. We are removing the reference to piles, open tanks and surface impoundments. Containers are the only type of waste accumulation units allowed in SAAs. As previously noted, these regulations were copied from the interim status TSDF regulations, where these additional waste accumulation units are allowed. At the time of proposal, the Agency inadvertently overlooked this and is therefore making conforming changes as part of this rulemaking.
The previous regulations for generators accumulating hazardous waste in SAAs required containers accumulating hazardous waste to be kept closed, except when it is necessary to add or remove waste (§ 262.34(c)(1)(i), which referenced the container regulations for interim status TSDFs in § 265.173(a)). We proposed to modify this provision for SAAs, now found at § 262.15, in order to allow containers of hazardous waste in SAAs to remain open under limited circumstances. These changes pertain only to containers accumulating hazardous waste in SAAs; it will not affect the requirements for container management at CAAs or interim status TSDFs. Specifically, we proposed that containers of hazardous waste in SAAs may be open when it is necessary either for the operation of equipment to which the SAA container is attached or to prevent dangerous situations, such as the build-up of extreme pressure or heat, because closing a container can be more dangerous than keeping it open temporarily in those situations. Stakeholders had identified situations where keeping SAA containers closed can interfere with the operation of equipment when the container is attached directly to the equipment via piping or tubing. Stakeholders had also identified situations in which closing a container can be more dangerous than keeping it open temporarily; for example, when the hazardous waste is very hot. Therefore, EPA proposed to modify the regulations to allow containers to be vented in such situations. In 2008, the Agency finalized these limited exceptions to the closed container requirement as part of the Academic Laboratories rule (subpart K) and thought they would benefit other generators as well.
Nearly all commenters supported this proposed change. However, some state commenters were concerned the regulatory language was not sufficiently clear that this exception to requiring closed containers was intended for temporary situations only. In the preamble to the proposed rule, we indicated that the requirement to keep the container closed applies when the danger passes (
The previous SAA regulations at § 262.34(c)(2) stated that a generator who accumulates either hazardous waste or acutely hazardous waste must, with respect to that amount of excess waste, comply “within three days” with paragraph (a) of that section or other applicable provisions of the chapter. Over the years, the Agency was frequently asked what was meant by “three days.” As a result, the Agency proposed to amend the regulations to replace the term “three days” with “three calendar days,” as opposed to “three business days” or “three working days.” The Agency already clarified this term in a 2004 memo,
Comments on this issue were mixed, with some commenters supporting the codification of the policy, while others preferred that we allow the term “three days” to mean “three business days” or “three working days.” Still others suggested that we take this opportunity to lengthen the time frame to 5, 7, or even 10 days. Although many commenters argued that we should allow “three working days,” one commenter conceded that, “due to differences in business schedules, this becomes difficult to define in a rule.”
The SAA regulations impose maximum volumes of hazardous waste that may be accumulated in an SAA without a permit, or interim status, or complying with the central accumulation area standards for SQGs or LQGs. For non-acute hazardous waste, the maximum volume is 55 gallons. For acute hazardous waste, the maximum volume has been, until this rulemaking, 1 quart. When the SAA regulations were finalized in 1984, EPA explained that 55 gallons was selected for non-acute hazardous waste in part because it is the size of the most commonly used accumulation container.
Although some commenters did not see the need for the additional flexibility for the accumulation of acute hazardous waste in SAAs, most commenters supported the change, with a minor revision. Specifically, commenters suggested that, instead of allowing a generator to choose which unit to use, we should specify in the regulations that the 1 quart maximum for acute hazardous waste in an SAA should apply to liquids and the 1 kg maximum for acute hazardous waste in an SAA should apply to solids. We agree with these commenters and we are revising the final regulatory language for SAAs so that acute hazardous wastes that are liquids have a maximum volume of 1 quart, and acute hazardous wastes that are solids have a maximum mass of 1 kg (or 2.2 lbs). The maximum thresholds for acute hazardous wastes are not intended to be additive, so in cases where a generator has both liquid and solid acute hazardous waste accumulating in an SAA, the 1 kg or 2.2 lb limit will be applied.
In contrast, for non-acute hazardous waste, commenters indicated that the existing volumetric accumulation limit of 55 gallons for SAAs is sufficient and that it is not necessary to add a mass equivalent. Therefore, for non-acute hazardous waste, 55 gallons will remain the only unit for measuring maximum accumulation limits in SAAs. EPA continues to rely on its existing interpretation that at an SAA where more than one type of waste is accumulated, the
One commenter asked for clarification about whether the weight of the packaging (such as fully dispensed vials that once held P-listed pharmaceuticals) would have to be included in determining the maximum mass or volume of an acute hazardous waste in an SAA. In a February 17, 2016, memo, EPA clarified that the container (
Previously, the regulation at § 262.34(c)(2) stated that, when the maximum volumes are exceeded in an SAA, a generator “must, with respect to that amount of excess waste, comply within three days with paragraph (a) of this section or other applicable provisions of this chapter.” The Agency proposed to reword this regulation in order to more clearly state the generator's options for managing the materials that exceed the limit. The
We are finalizing this change, with two minor changes to address commenters' concerns. First, commenters pointed out that the proposed rewording of this section of the SAA regulations expands a generator's options for where the excess hazardous waste can be sent when the maximum volumes (or mass) are reached, but it removed the option that had originally existed to convert the SAA to a CAA and manage the hazardous waste in place. At the time of proposal, the Agency did not anticipate that generators would choose to convert SAAs into CAAs. However, one commenter pointed out that some generators do not have a CAA to move the waste to and therefore must manage the SAA as an CAA when volumes (or mass) are exceeded. In response to comments, in the final rule the Agency has amended the regulatory text to retain the option to allow generators to convert an SAA to a CAA when maximum volumes (or mass) are exceeded. Second, in this section of the SAA regulations, as well as other sections of the SAA regulations, where we mention CAAs, we have inserted the citation for the CAA regulations.
Other comments on this section of the SAA regulations were related to the phrasing of the previous SAA regulations that we did not propose to change. Specifically, the Connecticut Department of Energy and Environmental Protection (CT DEEP) “believes that the revised language should not focus on the “excess waste,” but on the waste that was accumulated before the excess amount was generated. That is, the rule should require that the waste that was in storage before the generation of the “excess waste” be removed from the area, not just the “excess waste.” This would prevent situations in which only the “excess waste” is removed time and time again, leaving the remaining waste behind indefinitely.”
EPA is adding paragraphs (a)(7) and (a)(8) to the SAA regulations in § 262.15 to clarify that the preparedness, prevention, and emergency procedures for SQGs and LQGs that are found in § 262.16(b)(8) and part 262 subpart M, respectively, extend to any SAAs on site, as well as CAAs. These specific changes to the SAA regulatory text were not proposed, although we did request comment, but are being added in the final rule in response to comments we received on the proposed addition of part 262 subpart M, which is discussed more thoroughly in section XI of this preamble.
In a memo dated January 13, 1988, EPA wrote that a storage shed that is outside of a building where a reactive hazardous waste (D003) is initially generated could be considered an SAA.
There were no proposed regulatory changes associated with this action; however, in the preamble to the proposed rule, EPA gave notice that it was proposing to revoke this interpretation. EPA agreed with ARC that in some instances it is safer to accumulate hazardous waste away from the initial point of generation, such as hazardous wastes that are explosive. However, in the preamble to the proposed rule, EPA reasoned that, because SAAs are subject to less stringent conditions than CAAs, it is not appropriate for such dangerous hazardous wastes to be stored in SAAs. Rather, EPA stated that if a generator accumulates hazardous waste that is so dangerous it needs to be accumulated away from the point of generation, it should be accumulated under the more rigorous accumulation standards for central accumulation areas.
We received more than a dozen comments on this action. Several commenters supported the action to rescind the memo. Others, such as Pacific Northwest National Laboratory (PNNL), Utility Solid Waste Activities Group (USWAG) and Institute of Makers of Explosives (IME) supported it, but suggested that additional clarity was
Both PNNL and USWAG were concerned that EPA was implying that all reactive hazardous wastes (D003) were required to be accumulated away from the initial area of generation and, therefore, could not be accumulated in SAAs. Additionally, PNNL was concerned that there might be a “Catch-22 where EPA does not allow remote accumulation and OSHA or the International Fire Code does not allow them to be accumulated at the point of generation.” This was not our intent. Our intent was that if, for safety reasons, which may be driven by fire codes or OSHA regulations, a reactive hazardous waste (or other hazardous waste, for that matter) needs to be accumulated away from the initial area of generation, then that accumulation area should be considered a CAA, not an SAA. EPA is not prohibiting remote accumulation; rather, we are clarifying that it is more appropriate to regulate the remote accumulation area as a CAA than an SAA. Likewise, EPA did not intend to suggest that all storage sheds would necessarily be CAAs. For example, a storage shed that is located “at or near the point of generation” could be considered an SAA.
In its comments IME said it “would have no objection to rescinding this memorandum so long as the agency allows accumulated SAA waste to be temporarily moved from the initial point of generation for purposes of complying with the regulations of other federal agencies. For example, a number of IME member companies collect hazardous waste in containers at SAAs. Regulations administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) require that these containers be moved to a magazine at the end of a shift . . . The containers are returned to the SAA at the start of the subsequent shift.”
The previous SAA regulation at § 262.34(c)(1) used the term ` ”under the control of the operator,” as do the revised SAA regulations being finalized at § 262.15(a). EPA has not defined this term in the regulations, has not discussed it in preamble and discussed it only minimally in guidance letters.
Commenters were concerned that EPA is imposing new requirements on SAAs. To the contrary, the Agency requested comment on this issue in the hope of developing a list of best management practices that regulators and the regulated community could rely on to fulfill this existing requirement. The Agency deliberately did not propose any regulatory text to define the term “under the control of the operator.”
A number of commenters provided helpful examples of what they believe constitutes “under the control of the operator” as it pertains to the SAA regulations. For example, the Oklahoma Department of Environmental Quality “believes that the term “Under the control of the operator” has a much broader meaning than those examples in the proposed rules;
In addition, one commenter referenced an EPA memo that discussed the term “under control of the operator.”
The examples discussed in the preamble to the proposed rule and final rule are not an all-inclusive or exhaustive list of practices that may be used to meet the requirement that hazardous waste in an SAA must be “under the control of the operator.” Implementing regulatory agencies may consider these examples or alternatives to meet the intent of the term, which is to ensure that someone familiar with the operations generating the hazardous waste is aware of and able to attend to the operations, if needed, while also providing some measure of controlled access.
As part of its reorganization efforts to improve the user-friendliness of the hazardous waste generator regulations, the Agency proposed to consolidate the waste accumulation provisions for tanks, drip pads and containment buildings into one section. The Agency also proposed to include specific provisions for SQGs that may accumulate hazardous waste on drip pads and in containment buildings at § 262.16 (b)(4) and (5), respectively. Previously, the regulatory provisions for LQGs referred to drip pads and containment buildings, but these accumulation units were not specifically identified in the SQG provisions. Therefore, if an SQG desired to accumulate hazardous waste in these type units, they could only do so by complying with the more stringent LQG regulations. In the proposed rule, the Agency attempted to provide clarity by adding the regulations applicable to LQG drip pads and containment buildings (previously found at § 262.34 (a)(1)(iii) and (iv)) to provisions for SQGs accumulating hazardous waste in these units.
With respect to the marking and labeling provisions for hazardous waste accumulated on drip pads and in containment buildings, the Agency proposed that SQGs and LQGs mark or label its waste accumulation units with the words “Hazardous Waste” in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers, etc. We also proposed that SQGs and LQGs use inventory logs, monitoring equipment, or records to: Identify the contents of the drip pad and containment building and its associated hazards; to identify the date upon which each period of accumulation begins; and keep inventory logs or records with the above information in close proximity to the drip pad and containment building.
These records would need to be kept on site and readily available for inspections. Ideally these records would be in close proximity to where hazardous waste is being accumulated after removal from the drip pad, such as in a control room, or other central location at the facility.
In addition, consistent with guidance previously issued by the Agency for wood treaters, that if hazardous waste is placed in a satellite accumulation area, the waste can remain there until the drum is full. Once the drum is full, it must be dated and moved to the hazardous waste storage area. Thereafter, the 90 or 180 day accumulation clock for LQGs and SQGs, respectively, begins.
Additionally, consistent with this same guidance for wood preservers, EPA is clarifying in this final rule that VSQGs may accumulate hazardous waste on drip pads as long as they also comply with the technical standards of 40 CFR part 265 subpart W to ensure the drip pads are operated in an environmentally safe and responsible manner.
b.
The Agency is not finalizing the provision that would require SQGs and LQGs to mark drip pads with the words “Hazardous Waste” in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers, etc. As stated by one commenter, labeling the entire drip pad with the words “Hazardous Waste” is inaccurate because not all of the materials on the drip pad are hazardous waste, such as the poles and lumber being treated on the drip pad. Finally, the drums stored on the drip pad or drum storage area that contain hazardous waste and the drum storage area would already be labeled with those words. Similarly, identifying the hazards of wastes is inappropriate because drip pads contain both wastes and components of treated wood operations.
Similarly, we have modified where inventory logs or records for drip pads must be kept. We had proposed that the information must be in close proximity to the drip pad. Commenters indicated that having records in close proximity may not always be practical or even desirable. In response to comments, we have modified the regulations so that the records must be kept on site and readily available for inspections.
c.
a.
The Agency is also requiring SQGs and LQGs accumulating hazardous waste in containment buildings to label their containment building with the words “Hazardous Waste” located in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers or other persons on site and also provide an indication of the hazards of the waste using one of several methods described under § 262.16(b)(6)(i)(B) and (b)(6)(ii)(B)—Labeling of containers and tanks.
c.
Some generators, especially as those located in urban environments, have expressed their concern regarding the LQG provision requiring generators to place containers holding ignitable or reactive waste 15 meters (50 feet) from the site's property line. In some cases, it may not be physically possible to meet this standard, particularly if the width of the site is 100 feet or less or when the generator's operations have expanded such that it no longer has the ability to accumulate ignitable or reactive waste at least 15 meters (50 feet) from the site's property line. Insurance companies and local fire departments often assist hazardous waste generators in minimizing their environmental hazards and liabilities, but site dimensions may sometimes physically prevent a generator from complying with this condition.
The Agency proposed to allow LQGs to apply for a site-specific waiver from their local fire department if they are unable to meet the 15 meter ignitable and reactive hazardous waste accumulation property line condition. This proposed change would require LQGs to obtain a written approval from a local fire department and keep the written approval in their records.
The Agency is finalizing the proposed regulation with a minor modification. The final regulation allows an LQG to apply for a site-specific waiver from the authority having jurisdiction (AHJ) over the fire code if the LQG is unable to meet the 15 meter ignitable and reactive hazardous waste accumulation property line condition. If an LQG wants this waiver, they are required to obtain a written approved waiver from the AHJ who has the ability to determine a safe and practical location for the facility to store ignitable or reactive waste that is within 15 meters (50 feet) of the facility's property line. LQGs are then required to keep the written approval in their records.
EPA originally proposed that the facility contact their local fire department for the site-specific approval. While several commenters agreed that most fire departments are well qualified to approve this waiver, some commenters indicated that there may be some confusion as to who can approve this waiver. For example, some areas may require a designated official to interpret and enforce the fire code rather than the local fire department. In this case, the designated official will grant the approval. The Agency did not intend to restrict the ability of those who can grant this approval to only local fire departments. However, the Agency did intend that the entity or individual granting this approval has detailed knowledge of the fire code, has the ability to evaluate the site conditions to determine a safe and practical place for storing ignitable and reactive wastes, and is authorized by the state or local government to enforce the fire code.
To address these comments, the Agency changed the terminology from the “fire department” to the “authority having jurisdiction (AHJ)” over the fire code within the facility's state or locality. An AHJ may or may not be the fire marshal, fire chief, building official, or another official as designated by the state or local government. AHJ is a term developed by the National Fire Protection Association (NFPA) and has been adopted by several state and local governments. Considering the wide use of the term “AHJ” in various fire codes, the Agency believes the more general term will ensure that regardless of who has the authority (local/state), the generator will be able to apply for the site-specific waiver. Furthermore, the Agency believes that the AHJ is well qualified at finding the most appropriate place to accumulate this waste and to determine that there is a sufficient level of protection for the facility and the surrounding community prior to issuing this approval.
We requested comment on whether EPA should set conditions for the waiver, but determined from the commenters that the decision should be made on a site-specific basis dependent on the characteristics of the generator, the physical make-up of the site, and the surrounding area. EPA expects the AHJ to be sufficiently qualified to make a site-specific determination for the waiver and consider relevant factors when making that decision, such as the length of time the hazardous waste can be accumulated, the amount of hazardous waste that can be accumulated, and any physical or technical controls. The AHJ should also consider any potential off-site conditions, such as the proximity to populated public areas (schools, hospitals, or playgrounds), off-site sources of ignition, and the proximity to an adjacent property's storage area of ignitable or reactive waste.
A few commenters recommended that EPA directly allow deference to locally applicable fire codes rather than requiring the generator to obtain an approval. EPA proposed a rule in 1984 that is similar to the commenters' recommendation. It would have amended the buffer zone requirements and adopted NFPA fire codes but the rule was never finalized.
The Agency took comment on whether owners and operators of permitted and interim TSDFs should also be able to apply for this approval. While several commenters agreed that TSDFs should be included, EPA determined that TSDFs already go through an existing permit process, including public notice and comment, to determine site-specific conditions that include identifying locations for accumulating hazardous waste.
In an effort to improve the clarity and understanding of the closure regulations for LQGs, as well as to strengthen M. he closure regulations to improve environmental protection, the Agency proposed three changes to the closure provisions for LQGs previously found at § 262.34(a)(1)(iv)(B).
First, EPA proposed to consolidate the closure regulations for LQGs accumulating hazardous waste at § 262.17(a)(8). EPA believed the organization of the closure regulations previously found at § 262.34(a)(1)(iv)(B) (which referred to various closure requirements in part 265) was confusing and difficult to follow. The proposed consolidation included both the facility-wide general performance requirements found at §§ 265.111 and 265.114 for hazardous wastes accumulated in containers, tanks, drip pads, and containment buildings, and the unit-specific requirements found at § 265.197 for tanks, § 265.445 for drip pads and § 265.1102 for containment buildings.
Second, EPA proposed to strengthen the closure regulations for LQGs accumulating hazardous waste in containers in central accumulation areas that plan to stop hazardous waste accumulation by requiring them to meet the same type of closure regulations that apply to tanks, drip pads and containment buildings, including those situations where a generator is not able to demonstrate that its hazardous waste, hazardous constituents, leachate, contaminated run-off, or hazardous waste decomposition products can be practicably removed or decontaminated (
Third, EPA proposed to require an LQG to notify EPA or the authorized state using EPA Form 8700–12 at least 30 days prior to closing the generator's facility or when the generator closes a unit accumulating hazardous waste. Additionally, EPA proposed that an LQG notify EPA or its authorized state within 90 days after closing the facility or the unit accumulating the hazardous waste. This notification would state the LQG had clean closed or failed to clean close and therefore, must close as a landfill.
Based on review and evaluation of comments, the Agency is finalizing the following provisions associated with the closure regulations for LQGs. First, we are consolidating the closure regulations at § 262.17(a)(8). These regulations consist of two components: Closure of a waste accumulation unit, such as a tank system and container accumulation area, and closure of a generator's facility.
When closing a waste accumulation unit at § 262.17(a)(8), a generator may either elect to place a notice in its operating record that identifies the unit they are closing and not conduct the formal closure performance standards of § 262.17(a)(8)(iii) in the case of a container, tank or containment accumulation unit, or § 262.17(a)(8)(iv) in the case of a drip pad unit, until the facility closes, or they can formally perform the closure provisions in § 262.17(a)(8)(ii)(B) through § 262.17(a)(8)(iv) including clean closure performance standards and notification to EPA that the facility has closed that accumulation unit within 90 days of closing the unit.
When closing the facility, the generator would be required to meet the notification standards of § 262.17(a)(8)(ii) and performance standards of § 262.17(a)(8)(iii) for container, tank and containment building units, and § 262.17(a)(8) (iv) for drip pad units. The performance standards of § 262.17(a)(8)(iii) include four paragraphs. The first two paragraphs incorporate the closure performance requirements at §§ 265.111 and 265.114 when an LQG's waste accumulation unit or facility closes. The third paragraph addresses what must be done with any hazardous wastes generated as a result of an LQG clean closing its waste accumulation areas. The fourth paragraph addresses the situation when an LQG that has accumulated hazardous waste in a container, tank or containment building waste accumulation area cannot meet the closure performance standards or clean close (
In addition, LQGs with drip pads must continue to comply with the unit-specific closure performance standards found at § 265.445(a) and (b)
As mentioned previously, LQGs need to notify EPA or their authorized state using the Site ID form (EPA Form 8700–12) when they are closing their facility. Specifically, LQGs must notify EPA or the authorized state using the Site ID form (EPA Form 8700–12) at least 30 days prior to closing their facility, and also notify EPA or the authorized state within 90 days after closing the facility. This second notification using form 8700–12 would state that the LQG has either met the closure performance standards of § 262.17(a)(8)(iii) or failed to meet such standards, in which case they must notify that they are closing as a landfill. In the case of LQGs with drip pads, they would either notify using form 8700–12 they had met the closure performance standards of § 265.445(a), or if they failed to meet those standards, notify that they must close in comply with the requirements of § 265.445(b). In response to comments, the Agency is allowing LQGs to request additional time to clean close at § 262.17(a)(8)(ii)(C). However, the LQG must notify EPA using form 8700–12 or its authorized state within 75 days after closing their site to request an extension and provide an explanation as to why the additional time is required.
Third, the Agency is clarifying that closure requirements do not apply to satellite accumulation areas at § 262.17(a)(8)(v). While the Agency did not receive any specific comments on the scope of closure requirements, we are clarifying that the closure requirements do not apply to satellite accumulation areas.
The Agency simplified and clarified the closure process. First, EPA is providing LQGs a choice for when they close a hazardous waste accumulation unit (
Second, rather than have LQGs notify EPA or an authorized state every time they close a waste accumulation unit, they must now notify only when they are closing their facility. The Agency received many comments that providing a notification every time a waste accumulation unit is closing, particularly for container waste accumulation units, is impractical. Commenters noted that opening, closing and reopening waste accumulation units, even temporarily, occurs periodically and the Agency does not want to interfere with the operations of the facility.
Third, in finalizing the closure performance standards § 262.17(a)(8)(iii), the Agency has reverted back to the existing regulatory text previously found at § 265.197(a) for closure of tanks and § 265.1102(a) for closure of containment buildings for purposes of consistency, and because one of the primary purposes of this
Finally, the Agency separated the closure performance requirements for drip pads because they are different than those of containers, tanks and containment buildings.
Many commenters supported the consolidation of closure requirements to make them more user-friendly and easier to comply with. Many commenters did not support EPA's proposal to require notification every time a waste accumulation area was closing and requiring LQGs to clean close every time a waste accumulation area closed. In both cases, commenters stated the proposed changes were inefficient, impractical and/or unnecessary. One commenter, representing several generator organizations, did not believe closure standards should be identified as conditions for exemption. However, EPA notes that closure standards are a condition for exemption under the existing RCRA program. See section IX.A for a more detailed discussion of the distinction between conditions for exemption and independent requirements. This commenter also recommended that the concept proposed in § 262.17(a)(8)(ii)(A)(
This same commenter expressed serious concerns that this proposal was a major departure from existing regulations regarding the clean closure of container central accumulation areas and specifically, the requirement that if the facility could not clean close, then the generator must close as a landfill with all the associated requirements (
The Agency agrees that this is a new provision. However, as discussed in the proposal (80 FR 57955), many Superfund removal actions over the years have resulted from generators who failed to clean close their hazardous waste container accumulation areas. The EPA believes that facilities accumulating hazardous wastes in containers should have to close as a landfill if they cannot clean close like all other LQGs accumulating hazardous waste. The inability to clean close would indicate major environmental problems have occurred at the generator's facility. If so, the responsibility falls on the generator to address the potential contamination just as a generator would address any problems that resulted from its accumulated hazardous wastes in tanks, drip pads, or containment buildings. Whether a generator would actually have to meet all the requirements of closing as a landfill would be a site-specific decision, made in conjunction with EPA or the authorized state., Generally, if a LQG has been managing its hazardous waste in accordance with the LQG provisions including proper accumulation standards and spill clean-up, then clean closure will consist of removing the containers from the accumulation area. EPA anticipates this will be the case in most situations for container central accumulation areas. The Agency has determined that clean closure requirements should apply equally to all hazardous waste accumulation areas.
Finally, one commenter pointed out that the proposal to consolidate the closure standards for drip pads with tanks and containment buildings would modify existing drip pad closure requirements. The Agency acknowledges this was an inadvertent mistake and has reverted back to the existing subpart W requirements of part 265. However, for purposes of consolidation and consistency, LQGs that accumulate hazardous waste on drip pads and that are closing their facility must still comply with the notification and waste management provisions found at § 262.17(a)(8)(ii) and (a)(8)(iii)(A)(
As part of the of the proposed Hazardous Waste Generator Improvements rule, the Agency at 80 FR 57952–53 requested comment on requiring generators to document the results of their container, tank and drip pad inspections. More specifically, the Agency requested comment on whether to require the following: (1) Both SQGs and LQGs document the results of their required “at least weekly” container inspections; (2) SQGs accumulating hazardous waste in tank systems document the results of their tank inspections; and (3) both SQGs and LQGs accumulating hazardous waste on drip pads document the results of their drip pad inspections.
The Agency requested comment on modifying these provisions to require documentation of inspections for these waste accumulation units to emphasize the importance of these inspections in preventing releases into the environment and to provide a measure of accountability that a generator's inspection of its containers, tanks or drip pads actually took place when required. Currently, the only way an inspector can determine whether the required inspections actually occurred is to inspect a generator site at the same time that the inspection is supposed to occur, or conduct an inspection within one week of the first inspection—assuming the inspector knew when the first inspection actually occurred. Both situations have low probabilities of occurring.
As part of the proposed rule, the Agency noted that many states already require generators accumulating hazardous waste in waste accumulation units to maintain records of their inspections. Many of these states provide templates for generators to use to assist them in recording the results of their inspections. Similarly, EPA stated the burden imposed upon generators to record the results of its inspections would not be significant, particularly if generators use a template to document the results of inspections.
The Agency also stated that documenting the results of these inspections is an important best management practice for generators to use not only to prevent any releases, but also to identify situations, such as damaged containers, tanks or drip pads that could lead to a potential release to the environment.
The Agency is not moving forward at this time to require SQGs and LQGs to
Commenters were mixed on the need to require SQGs and LQGs to document the results of their inspections associated with containers, tanks and drip pads. Among the reasons commenters cited for supporting documentation of inspections included: Such a process acts as a reminder to ensure there are no problems; the requirement is not unduly burdensome; companies are already in the habit of preparing and maintaining these types of records; the records are useful in tracking containers within the accumulation areas and corrective actions needed and taken, and in documenting that no releases occurred within the unit; and documentation will result in greater protection against hazardous waste releases into the environment.
Commenters who opposed this requirement stated that adding additional recordkeeping requirements shifts the focus away from actual storage practices to secondary recordkeeping practices; there is not sufficient justification for imposing this requirement; there is no added benefit because accumulation units in poor condition have obviously not been regularly inspected; and the Agency would be better served by increasing outreach to small generators to increase awareness of the inspection requirement.
EPA is finalizing the proposed provision to allow VSQGs to send their hazardous waste to an LQG that is under the control of the same person, as defined at § 260.10, provided both the VSQG and LQG comply with specified conditions.
Before the revisions in this rulemaking, under the regulations at § 261.5(f)(3) for acute hazardous waste, and § 261.5(g)(3) for non-acute hazardous waste, a VSQG was allowed to either treat or dispose of its hazardous waste in an on-site facility or ensure delivery to an off-site treatment, storage, or disposal facility, which included RCRA-permitted hazardous waste facilities, interim status hazardous waste facilities, municipal solid waste facilities, non-municipal non-hazardous waste facilities, recycling facilities, and universal waste handlers. The previous VSQG regulations did not allow a generator to send its hazardous waste off site to another generator unless the receiving generator had a storage permit or was otherwise one of the types of facilities cited previously. Thus, persons looking to reduce their overall environmental liability across multiple facilities were prohibited from managing their VSQG hazardous waste at one or more of their LQG facilities without first obtaining a permit or complying with the interim status standards.
EPA determined that providing the option for VSQGs to send their hazardous waste to an LQG that is under the control of the same person will improve the management of that hazardous waste for the following reasons. First, LQGs are subject to more stringent management conditions compared to VSQGs, such as accumulation time, labeling, training, emergency planning, and containment standards. In addition, LQGs may only transport (using a hazardous waste manifest) hazardous waste to RCRA-permitted or interim status hazardous waste TSDFs, which in turn, are subject to more stringent management standards than the municipal or non-municipal solid waste facilities that VSQGs are allowed to use. Therefore, allowing hazardous waste generated by a VSQG to be sent to an LQG under the control of the same person will improve overall tracking, oversight and management of the hazardous waste and enable more effective environmental protection.
Furthermore, a company, because of economies of scale, may reduce its overall waste management costs, as well as its potential financial liabilities for hazardous waste it generates at VSQG facilities, as it would be handled under the more comprehensive LQG and TSDF regulatory programs. Consolidation by an LQG of hazardous waste generated by several VSQGs under its control may also increase potential opportunities for hazardous waste recycling by the LQG.
In addition, whereas LQGs have up to 90 days to accumulate hazardous waste in compliance with all the LQG conditions for exemption without having to obtain a RCRA storage permit or comply with all the other standards otherwise applicable, VSQGs may accumulate up to 1,000 kilograms of non-acute hazardous waste or up to 1 kilogram of acute hazardous waste or up to 100 kilograms of residues from the cleanup of a spill of acute hazardous waste without any time constraint. Even though the amount of hazardous waste allowed on site by VSQGs at any one time is limited, the longer that hazardous waste is accumulated on site, the greater the risk of adverse impacts to human health and the environment. Allowing VSQGs to send their hazardous waste to an LQG under the control of the same person will likely reduce the overall time that the VSQG accumulates hazardous waste on site, which would further reduce the potential risk to human health and the environment.
Finally, this new provision will give companies flexibility in allocating labor and resources required to manage the company's total quantity of hazardous waste generated, as the company is now allowed to consolidate its hazardous waste from VSQG facilities at its LQG facilities.
EPA has received requests over the years from industry to amend the regulations to allow VSQGs to send their hazardous waste to LQGs for consolidation. Many of the commenters, including state agencies, the generator industry, and the waste management industry, supported adding this option to the regulations. Commenters expressed their support for consolidation, stating that it will ease the financial and administrative burden for VSQGs and encourage responsible waste management, treatment, and disposal. Specifically, some commenters stated that consolidation at an LQG would ensure greater safety and environmental protection because LQG staff are generally more knowledgeable than those at a VSQG. In addition, the Minnesota Pollution Control Agency confirmed with direct observation that allowing a VSQG to send its hazardous waste to another site where proper and safe management is available at a reasonable financial and management price, such as is provided by a VSQG collection site, does consistently reduce the average time that VSQGs accumulate waste on site, reducing on-site health and safety risks and also lowering the potential for both accidental releases
Adding the consolidation option in the regulations will enable generators to employ greater control over the management of their hazardous waste, thereby resulting in improved efficiency and reduced liability for the generator. Commenters noted numerous examples where VSQGs and LQGs under the same ownership may take advantage of the new consolidation provision. For example, Army National Guard and Reserve units that may be VSQGs can send their hazardous waste to an active Army base that is an LQG. The same situation applies to Air Force, Navy, and Marine Corps reserve units as well. Additionally, many universities commented that they supported this provision. Often, individual laboratory buildings qualify as VSQGs. Allowing different laboratory buildings within a university or industrial environment that are VSQGs to send their hazardous waste to another university or industrial entity that is an LQG under the same control will provide both economic and environmental benefits. Furthermore, utilities, retailers, and remote oil and gas production facilities also represent examples of industrial sectors that indicated they expect to benefit from the intra-company transfer of hazardous waste from VSQGs to LQGs.
The Agency is finalizing the provision that allows a VSQG to send its hazardous waste to an LQG that is under the control of the same person, provided specified conditions are met.
a.
Limiting transfers to facilities under control of the same person is appropriate because it ensures common control is maintained over both facilities and takes advantage of strong liability incentives to ensure the hazardous waste is safely managed. Additionally, if a VSQG sends hazardous waste to an LQG under the control of the same person, the LQG is likely to be more familiar with the type of hazardous waste generated by the VSQG. Furthermore, questions regarding liability and responsibility for such hazardous waste are clearer than is the case with facilities from unrelated companies. The majority of commenters, including most of the states, supported limiting the VSQG consolidation option to facilities under the control of the same person at this time for similar reasons.
EPA is also finalizing the proposed requirements for certain labeling and marking standards for VSQG waste being transferred to LQGs under the control of the same person under this provision. Note that aside from these conditions, the same standards for management of VSQG waste apply to materials going to an LQG under this provision as to other VSQG waste, including the exemption from the requirement to ship using a hazardous waste manifest. However, DOT shipping requirements do still apply as appropriate.
As part of this provision, VSQGs are required to meet the following conditions for exemption, found at § 262.14(a)(5)(viii).
EPA is finalizing the following conditions for exemption for LQGs receiving hazardous waste from VSQGs under the control of the same person, all found at § 262.17(f).
Notification in this instance serves to inform the regulatory authorities of which LQGs are receiving hazardous waste from which VSQGs under the control of the same person. The Agency has determined notification is necessary in order to communicate to inspectors the origin of the hazardous waste received by the LQG and to ensure the received shipment is managed in compliance with the conditions of the provision. EPA also believes notification by the LQG, rather than notification by the VSQG, is more efficient and less
EPA has recently made available an electronic interface for states and the regulated community to use to submit Site ID forms electronically, which will further reduce burden on LQGs. Facilities should check with their states regarding whether and when their state will use EPA's electronic submittal process.
Recordkeeping is necessary to ensure the VSQG and LQGs operating under the consolidation provision are meeting the conditions of the provision, including that the VSQG and LQG are under control of the same person. Records can also be used to ensure that the hazardous waste from the VSQG is managed according to the other conditions for exemption of this provision, such as the requirement that LQGs are receiving shipments of hazardous waste from VSQGs in quantities commensurate with the VSQG's generator category. This recordkeeping condition can be fulfilled through routine business records, such as a bill of lading, and will not present an undue burden to the LQG. Additionally, the LQG can then use this information to report the hazardous waste from the VSQG on its biennial report forms.
Because the LQG must manage the hazardous waste it receives from VSQGs according to the LQG regulations, EPA has determined the same labeling and marking requirements should apply to both its own hazardous waste and hazardous waste received from a VSQG. EPA believes that it is important that employees, transporters, downstream handlers, emergency personnel, EPA, and the states know as much as possible about the potential hazards of the contents in containers that LQGs accumulate, transport, and manage.
In addition, we are not requiring the following marking and labeling: (1) Other words that identify the contents of the containers and (2) the applicable hazardous waste number(s) (EPA hazardous waste code). First, we are not requiring “the contents” of the container to be consistent with the finalized marking and labeling requirements for all generators as discussed in section IX.E.1. In addition, we are not requiring the applicable hazardous waste number(s) be included on the label because we have determined that it is not necessary at this point in the management of the VSQG waste. Due to the fact that LQGs do not need to add the hazardous waste codes until the waste is ready to be shipped off site to a designated RCRA facility for subsequent management, we determined that was also the best option for the VSQG waste being consolidated at an LQG. Therefore, the VSQG waste only needs to be labeled with the words “Hazardous Waste” and an indication of the hazards of the contents when it is sent for consolidation at an LQG under the same control. Once at the LQG, the date the accumulation starts (
After consideration of the comments received, EPA has decided not to finalize an inter-company consolidation provision at this time. There was not enough support in the public comments and significant implementation issues were identified. It is likely that additional safeguards would need to be put in place to allow VSQG consolidation at an LQG that is not under the control of the same person. After a sufficient number of states adopt the intra-company consolidation provision, the Agency plans to evaluate how the consolidation option is working. EPA will then consider possible expansion of the provision in the future, including whether to allow VSQG consolidation at SQGs under the same control and/or LQGs under the control of a different person.
In addition, other commenters noted that certain states already operate consolidation programs that go beyond what EPA is finalizing in this document. For example, Minnesota operates a VSQG collection program (VSQGCP) where non-affiliated LQGs apply and are individually reviewed and approved by the state to receive hazardous waste from any VSQG at their discretion. Currently, Minnesota has approved 31 such VSQGCPs, providing relatively convenient safe disposal for VSQGs across the state.
It is not EPA's intention to interfere with existing state consolidation programs. If a state has authorized a facility to manage hazardous waste or has permitted, licensed, or registered a facility to manage municipal solid waste or non-municipal, non-hazardous waste, EPA would consider that to be a facility allowed to receive VSQG waste under § 262.14(a)(5). In addition, EPA notes that states can be more stringent and thus, can adopt the VSQG consolidation provision finalized in this rule and add other requirements as they deem necessary and allowable under state law.
Under existing RCRA regulations, SQGs and LQGs are required to notify EPA using form 8700–12 (Site ID form) in order to obtain an EPA identification number. The Site ID form contains such information as the name and address of the generator, the industrial sector in which it belongs (
The lack of a re-notification requirement, especially for SQGs at the federal level, greatly impairs EPA's and the states' ability to use the information for compliance monitoring and programmatic purposes. This is because a one-time notification provides no assurance that the information collected in EPA's and the states' databases over time will accurately reflect which facilities are generating hazardous waste.
To address these issues, the Agency proposed several changes to the RCRA SQG and LQG site-identification and re-notification processes. First, we proposed to add an independent requirement for LQGs that reflects existing processes by which LQGs already submit Site ID forms as part of the biennial reporting process. Second, we proposed that SQGs must re-notify EPA using the Site ID form prior to February 1 of each even-numbered year, similar to the biennial report with the SQG re-notifications occurring one month prior. EPA took comment on alternative time frames for SQG re-notification such as every four years, alternate cycles from the biennial report, and rolling re-notifications. Finally, EPA took comment on whether a better approach would be for EPA to require an SQG or LQG to re-notify only in the event of a change to certain information, such as change in ownership or generator category.
The Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700–12. While still several years away, states must become authorized for this provision. In the meantime, the Agency will work with the states and the regulated community to develop the necessary software and instructions to effectively implement this new requirement. This re-notification requirement will also occur in years in which federal biennial reporting is not required. This form must be submitted by September 1st of each year in which re-notifications are required.
In addition, EPA is finalizing in § 262.18(d)(2) the formalization of LQGs re-notifying using EPA Form 8700–12, the RCRA Site Identification form, as part of the LQG's biennial report required under § 262.41.
Note that the changes to the regulatory text for § 262.18 in this action take into account the revisions being made as a part of the “Hazardous Waste Export-Import Revisions” Final Rule (Docket ID EPA–HQ–RCRA–2015–0147; FRL–9947–74–OLEM), including the reference in § 262.18(e) for recognized traders.
The Agency, in response to comments, increased the interval for SQG re-notifying from every two years to every four years. A number of commenters responded to our requests for alternative timing for SQG notification. Significantly, we heard from a number of states as well as the RCRAInfo Expert Group (a group of EPA and state RCRAInfo data experts), that keeping the SQG notifications on the same cycle as the biennial report is too burdensome and not practical given the large volume of data they receive for the biennial report. These commenters suggested that we reduce the frequency of SQG notifications from two years to every four years and stagger it from the timing of the biennial report. The EPA agrees with these experts and, as described previously, is finalizing the SQG re-notification requirement with these changes as recommended.
There was varied support from commenters on alterative timing for SQG notification. Some commenters supported keeping the timing to every two years both on the biennial report cycle and off. EPA agrees there is general awareness in the generator population of when the biennial report is due, which could make it easier for SQGs to comply with this new requirement. Also, the Agency understands that for companies or facilities that may have multiple sites that are LQGs and SQGs, it may be difficult to keep track of one schedule for LQGs and the biennial report and another for the SQG re-notification. However, the Agency decided to defer to the comments regarding how keeping SQG re-notification timing on the same cycle as the biennial report would overwhelm state and EPA workload capacity to keep up with the data submissions. In order for the data to be usable and the collection effort worthwhile, the Agency must be able to ensure it is entered into our system correctly and we believe the four year cycle alternating with the biennial report will best address capacity issues.
Both state and industry commenters pointed out that many states already require annual re-notification by LQGs and some for SQGs as well. Most asked that EPA clarify that this collected state data can be used to satisfy the federal SQG re-notification requirement. We are clarifying that as long as the more frequently state-collected data is transferred into the national RCRA information management system or RCRAInfo by the state on the timetable EPA is finalizing in this rulemaking for SQG re-notification, these existing state regulations would meet the requirement.
Two concepts were raised by commenters that EPA intends to investigate for possible changes to the Site ID form in the future. First, commenters asked for the ability to check a box certifying that their site ID information had not changed rather than have to fill out the entire Site ID form each time they re-notify. By increasing the time interval for SQG re-notification to every four years, EPA believes there will be reduced burden, but understands this option would increase efficiency for the regulated community and implementers. We intend to work with our national data experts to explore a possible form change to accommodate this idea. Second, commenters asked for a check box or another mechanism to inactivate a RCRA Site ID number. EPA intended for the SQG re-notification process to provide a mechanism for EPA and the states to deactivate RCRA identification numbers when no activity occurred for long periods of time. The Agency intends to work with our state partners in exploring whether the Site ID form or data system changes can be made, or
Some in industry questioned the need for such information. Commenters suggested that alternative information collection mechanisms already exist, such as using the Biennial Report submission for LQGs and manifest data. First, the existing one-time notification for SQGs provides no assurance that the information collected by EPA and many states, over time, will accurately reflect which facilities are generating hazardous waste and whether they still are SQGs. EPA agrees that the Biennial Report required by LQGs does provide a mechanism by which LQGs regularly re-notify, and we are simply codifying that process in this final rule. While TSDFs report hazardous waste received by SQGs in their Waste Received (WR) form, they do not identify the generator category of the facility they are receiving waste from, only the RCRA identification number. From experience, the Agency has found there is no guarantee that cross walking the RCRA identification number of a facility reported in the WR form with the information found in an existing RCRA Site Identification form will guarantee that the regulatory category of the generator is correct. Therefore, the Agency believes periodic re-notification is required.
With respect to using manifest data, currently manifest data is owned by the states and not required to be sent EPA. This is changing with the e-Manifest system under development, in that the e-manifest data will be available to EPA and the states. However, as the system is being designed, specifications do not include a generator category data element, nor is including this data element possible without a regulatory change. However, the Agency will continue to investigate the feasibility of using e-Manifest data to identify active SQGs and LQGs.
A number of commenters supported the idea that SQG re-notification be required when a specified event occurs. Technically, generators already have this capability. The existing instructions for completing EPA Form 8700–12 include the statement, “You must use this form to submit a subsequent notification if your site already has an EPA Identification Number
While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (
The retail sector also requested that the Agency limit the periodic re-notification requirement for their stores, and provide a streamlined process for large retail chains (
Finally, EPA is clarifying that when an SQG or LQG changes location, it is required to notify EPA because a new RCRA identification number will be needed as these numbers are tied to a physical site. EPA and the states will work with the generator to inactivate the previous RCRA identification number held by the generator while also assigning a new RCRA Identification number. Also, while not required, EPA recommends that generators who change ownership re-notify and alert EPA or their state that a new owner is responsible for the management of hazardous waste at the facility.
Overall, this provision of the final rule provides a balanced approach between the re-notification needs of EPA, the states, and SQGs. We will work with all parties to ensure its effective implementation.
RCRA section 3004(c) prohibits the disposal of bulk or non-containerized liquid hazardous waste or free liquids contained in hazardous waste in any landfill. This prohibition is necessary because the disposal of liquids in landfills can be a significant source of leachate generation. Restricting the introduction of liquids into landfills would minimize the leachate generation potential of landfills and reduce the risk of liner failure and subsequent contamination of the ground water.
The Agency is finalizing the proposed regulatory language prohibiting hazardous waste generators from disposing of liquid hazardous wastes in landfills. The final regulatory language is located at § 262.14(b) for VSQGs and at § 262.35 for SQGs and LQGs. As explained in the proposal, EPA is clarifying existing language to emphasize that hazardous waste generators are also responsible for complying with this provision. Also, the Agency is adding references to § 264.314 and § 265.314 in the SQG and LQG regulation (§ 262.35). Liquid waste disposed in a hazardous waste landfill must meet the additional requirements in § 264.314 and § 265.314, notably the requirement that the sorbents be nonbiodegradable. EPA is adding these references to § 262.35 in response to comments about sorbed hazardous waste liquids and to clarify the requirements that must be met prior to disposal in a hazardous waste landfill.
Several commenters expressed concern that the proposed regulatory language would cause confusion and force generators to alter their current practices for disposal of liquids. This was not the intent of this proposed regulation; EPA simply wanted to make generators more aware of this prohibition. Because the statutory prohibition was codified in the TSDF regulations and not in the generator regulations, some generators may have been unaware of the prohibition against the disposal of liquids in landfills. EPA disagrees with the commenter's suggestion to alter the proposed regulatory language for generators. EPA concludes that the proposed regulatory language prohibiting liquids in landfills is appropriate because the language was adopted directly from the statute and the same language is found in other parts of the regulations which applies to generators. It would be confusing to have slightly varying versions of this prohibition for each generator category and TSDFs.
A few commenters had concerns over the phrase “whether or not sorbents have been added” in the proposed regulatory text. The Agency is clarifying that this phrase does not restrict the use of sorbents as treatment prior to disposing in a landfill. If sorbents have been used but free liquids are still present, then the waste is prohibited from disposal in all landfills. However, if there are no free liquids as defined in § 260.10 after the use of sorbents, then the waste may be disposed in the correct corresponding landfill.
EPA would like to clarify how current practices that remove free liquids prior to disposal in a landfill will not be altered by this proposed regulatory language, although commenters believed otherwise. These current practices will not be altered by this regulation and most generators should be able to continue operating as they have prior to this rule unless their waste contains free liquids when disposed in landfills. If there are free liquids, they are already out of compliance with the current requirements even before this rule takes effect. Methods that remove or solidify free liquids, such as mixing in sorbents until no free liquids are present, must continue to be utilized by all generators prior to disposal in any landfill. However, sorbed hazardous waste liquids by an SQG and LQG must meet additional criteria specified in § 264.314 and § 265.314 prior to disposal in a hazardous waste landfill.
Some generators commented that they have agreements where a TSDF is stabilizing all or some of their liquid hazardous waste. These generators are concerned that this regulation will end these agreements. EPA would like to clarify that this practice is not restricted by this regulation and generators may continue to ship their liquid waste to TSDFs for stabilization.
The Agency proposed changes to biennial reporting requirements at § 262.41, § 264.75 and § 265.75. For purposes of convenience and efficiency, a discussion of proposed changes being finalized in this rulemaking are consolidated here.
The biennial report provides EPA and the states with important information from all LQGs and RCRA treatment, storage and disposal facilities associated with hazardous waste generation and management. For LQGs, this information includes, for each hazardous waste generated, the quantity generated and the hazardous waste composition, as well as how and where this waste is managed. For TSDFs, this information includes hazardous wastes received from not only LQGs but also SQGs and VSQGs. This information is used to support various EPA and state program management and compliance monitoring functions.
The regulations associated with biennial reporting by both generators and TSDFs have been in existence for approximately thirty years with very little change over this time period. From experience through years of implementing this program, the Agency identified areas where clarifications and changes to these regulations could improve both program efficiency and effectiveness. The Agency proposed such changes as part of this rulemaking. A discussion of the proposed changes being finalized follows.
EPA proposed to modify the biennial reporting regulations for generators found at 40 CFR 262.41 in order to make the regulations consistent with Agency guidance, including its biennial report instructions and forms. More specifically, the Agency proposed the following revisions: (1) Only LQGs need to submit biennial reports; (2) LQGs must report all of the hazardous waste they generate for the entire reporting year, not just the month(s) the generator was an LQG; (3) LQGs completing a biennial report must report all hazardous wastes they generated in the reporting year, regardless of whether they transferred the waste off site during the reporting year; and (4) a reference to the biennial report form (EPA Form 8700–13) at § 262.41 rather than the list of specific data elements in currently at that citation.
Additionally, EPA proposed to modify the title of part 262 subpart D from “Recordkeeping and Reporting” to “Recordkeeping and Reporting Applicable to Small and Large Quantity Generators” in order to highlight which entities need to comply with this subpart.
With respect to permitted and interim status TSDFs at § 264.75 and § 265.75, EPA proposed to modify the regulations at §§ 264.75 and 265.75 to eliminate the list of specific data elements and to require the completion and submission of all data elements in the biennial report form (EPA Form 8700–13).
Second, LQGs must report all of the hazardous waste they generate for the entire reporting year, not just the month(s) the generator was an LQG. Almost all states require their LQGs to perform this function already since the Biennial Report instructions require such reporting. This change simply creates consistency between the instruction and regulations. This change also provides EPA and the states with a much more reliable estimate of hazardous waste generated annually. As stated in the preamble to the proposed rule, LQGs should have this information available through their hazardous waste manifests and other counting processes.
Third, rather than citing specific data elements to be reported in § 262.41, as proposed, the Agency is simply referencing the Biennial Report form (EPA Form 8700–13 A/B) at § 262.41(a) and (b) in this final rule. Through the years, the Agency has modified what data elements it was collecting in the biennial report through changes in biennial report instructions but not updating the regulations. Therefore this change formalizes this process. Several commenters had concerns about this process as discussed in this section.
The Agency is also not finalizing a commenter's suggestion that an LQG be allowed to report a solid waste that was generated at the end of a reporting year, but which was not determined to be hazardous until the beginning of the next, or non-reporting, year. With the Agency maintaining the existing regulatory framework for what must be reported (
Several commenters were concerned that such a change would dramatically alter the existing processes and procedures long established by LQGs, and by TSDFs who support LQGs in completing the Biennial Report. Others pointed out that EPA was obtaining a reliable estimate of hazardous wastes generated by LQGs, although not necessarily in a clear cut manner. A closer examination of existing biennial reporting instructions revealed that the amount reported included: (1) Hazardous waste generated and accumulated on site and subsequently managed on site or shipped off site in the reporting year; or (2) hazardous waste generated and accumulated on site in the reporting year but not managed on site or shipped off site until the following year; or (3) hazardous waste generated and accumulated on site prior to the reporting year but either managed on site or shipped off site in the reporting year. In other words, an estimate of hazardous waste generated by LQGs is already being captured and reported for a 12 month period, but not necessarily only in the reporting year.
Based on these comments, EPA is not finalizing the proposed § 262.41(a) changes and will instead revert back to the previous language found in § 262.41(a).
One state commenter also disagreed that LQGs had to submit hazardous waste generation information for the months they were either an SQG or VSQG. The Agency believes generators should not find it difficult to submit this information because they will have maintained hazardous waste manifest records which identify the quantity of hazardous waste generated over a particular time period. Likewise, if the generator is an SQG or VSQG for eleven months of the year they may be able to take advantage of the new episodic event regulations being finalized at § 262.230. As already discussed, almost all states already require this information as part of their biennial reporting requirements, and it has long been included in the BR instructions.
Another commenter mentioned that it may be difficult for generators to determine in a precise way the amounts of waste that were generated at the beginning and end of each reporting year, particularly for wastes that are generated in small amounts at a time or that are initially stored in satellite accumulation areas, since they typically do not keep the records necessary to produce this information—especially by the time the reports are due, which could be a year or more after the fact. Generators are responsible for calculating the amount of hazardous waste they generate monthly to determine their generator category. Therefore, generators should have the requisite processes in place to accomplish this function.
One state expressed concerns that any changes to EPA Form 8700–13 A/B would also involve changes to the Biennial Report instructions and forms, as well as the RCRAInfo database, and wanted to ensure state input in this process. The Agency wants to assure all stakeholders that we will work with our
Note that the changes to the regulatory text for § 262.41 in this action take into account the revisions being made as a part of the “Hazardous Waste Export-Import Revisions” Final Rule (Docket ID EPA–HQ–RCRA–2015–0147; FRL–9947–74–OLEM), including changing the reference to “§ 262.56” that used to be in § 262.41(b) to a reference to “§ 262.83(g)” in § 262.41(c).
Under 40 CFR part 262 subpart K, eligible academic entities have the choice of operating their laboratories under the alternative subpart K standards instead of the satellite accumulation area regulations at 40 CFR 262.15. When subpart K was initially promulgated, if the eligible academic entity chose to operate its laboratories under subpart K, the entity had to remove the unwanted material from each laboratory under the following two timetables: (1) every 6 months; or (2) within 10 calendar days, if the laboratory accumulates more than 55 gallons of unwanted material or 1 quart of reactive acutely hazardous unwanted material.
Operating under the SAA regulations, an eligible academic entity has no time limit for accumulation. Therefore, for smaller eligible academic entities that do not accumulate 55 gallons in a laboratory, subpart K's six-month accumulation time limit can mean a shorter, more stringent, accumulation time than they have under the satellite accumulation area regulations. Eligible academic entities have cited this shorter accumulation time as a disincentive for opting into the alternative standards in subpart K. The Agency, therefore, proposed to increase the accumulation time limit in an eligible academic entity's laboratory to 12 months.
We are finalizing the increased accumulation time limit, as proposed. Therefore, laboratories at eligible academic entities that have opted into subpart K will be required to remove the unwanted material from each laboratory under the following timetables: (1) Every 12 months; or (2) within 10 calendar days, if the laboratory accumulates more than 55 gallons of unwanted material or 1 quart of reactive acutely hazardous unwanted material. EPA proposed a number of other changes to subpart K, but they were all conforming changes, meaning they were necessary to make the terminology and citations consistent with the new generator regulations (
Although we received approximately 60 comments from academic institutions, very few commented on this specific proposed change. All that did comment on this proposed change, were in favor of the longer accumulation time.
The remainder of the comments received from academic institutions were outside the scope of the narrow and specific change that we proposed to subpart K. Although we are not legally obligated to respond to comments outside the scope of the proposal, in this case we are choosing to respond to certain comments in order for EPA to better explain the existing subpart K regulations and some common misunderstandings about them.
Many academic institutions indicated that they are not able to opt into subpart K because they are in states that have not adopted subpart K. Since subpart K was finalized in 2008, EPA has made an effort to track which states have adopted the rule. At this point, subpart K is effective in approximately 22 states.
Another common theme from the commenters was that subpart K, which was designed for laboratory operations, should apply across the academic institution, and not just to laboratories. Commenters argue that opting into subpart K obligates the institution to operate under more than one set of RCRA regulations at the same institution. However, EPA maintains that academic institutions most likely have been operating under more than one set of RCRA regulations for some time, including used oil regulations for the maintenance of their motor vehicle fleets, and universal waste for their fluorescent bulbs. Furthermore, EPA's engagement with academia over the past 25 years has always been limited to the management of hazardous waste from laboratories. This includes the Laboratories eXcellence and Leadership program (XL Project), as well as the pilot project led by the Howard Hughes Medical Institute (HHMI) to develop and implement a performance-based approach to the management of laboratory waste at ten colleges and universities. These efforts regarding hazardous waste were targeted at laboratories because of the way in which hazardous wastes are generated in laboratories: There are a large number of waste streams that vary over time and the wastes are often generated by students, who lack the training and accountability of a professional
Finally, in its comments, the Campus Safety Health and Environmental Management Association (CSHEMA) offered to lead a dialogue with EPA about how to make subpart K more useful to the academic sector.
EPA launched the National Environmental Performance Track in 2000 to provide regulatory and administrative benefits to Performance Track members. Performance Track was a public-private partnership that encouraged continuous environmental improvement through use of environmental management systems, community outreach, and measurable results. In order to provide regulatory benefits to members, EPA made changes to the RCRA hazardous waste regulations, among others, that specifically referenced members of Performance Track.
EPA terminated the Performance Track program in 2009. Therefore, EPA is removing obsolete references to Performance Track in the RCRA hazardous waste regulations as a part of this rulemaking. In some cases, a whole paragraph of regulation will be removed and in other instances we will remove just the part of the paragraph that references Performance Track. The deleted paragraphs will be reserved to reduce the possibility of confusion by replacing them with other regulations. The following references are being removed:
• § 260.10: definition of Performance Track member facility;
• § 262.34(j), (k), and (l): regulations for accumulation of hazardous waste by LQGs in Performance Track;
• § 262.211(c): two parenthetical references to § 262.34 (j) and (k) in the regulations for academic labs in subpart K of part 262;
• §§ 264.15(b)(4) and 265.15(b)(4): references to the requirements for inspection of areas of the facility subject to spills in §§ 264.15(b)(5) and 265.15(b)(5), respectively;
• §§ 264.15(b)(5) and 265.15(b)(5): requirements for Performance Track member facilities that reduce inspection frequency for areas subject to spills;
• §§ 264.174 and 265.174: references to Performance Track requirements for inspections of areas where containers are stored;
• §§ 264.195(e), 265.195(d), and 265.201(e): requirements for Performance Track member facilities for inspections of tank systems;
• §§ 264.1101(c)(4) and 265.1101(c)(4): requirements for Performance Track member facilities for reduced inspections of containment buildings;
• § 270.42(l): procedures for permit modifications for Performance Track member facilities; and
• Appendix 1 to § 270.42—Classification of Permit Modification, Section O.1: Indication that a permit modification for reduced inspections for a Performance Track member facility is a Class 1 permit modification.
These provisions were added to the regulations in the National Environmental Performance Track Program final rule, dated April 22, 2004 (69 FR 21737), the Resource Conservation and Recovery Act Burden Reduction Initiative final rule, dated April 4, 2006 (71 FR 16862), and the Academic Laboratories final rule, dated December 1, 2008 (73 FR 72912).
EPA is also removing references to Project XL programs that have been discontinued. These include the New York State Public Utilities Project XL program at subpart I of 40 CFR part 262 and the Laboratories Project XL program at subpart J of 40 CFR part 262. The New York State Public Utilities Project XL piloted a program to allow public utilities located in New York State to consolidate at central collection facilities hazardous wastes generated at remote locations. The Laboratory XL Project was created for Boston College, the University of Massachusetts, and the University of Vermont, and was finalized in the
EPA is finalizing the revisions to the generator regulations that allow a VSQG or an SQG to maintain its existing generator category if, as a result of a planned or unplanned episodic event, the generator would generate a quantity of hazardous waste in a calendar month sufficient to cause the facility to move into a more stringent generator category (
Under the RCRA regulatory framework for hazardous waste generators, a generator's category is determined by the quantity of hazardous waste it generates in a calendar month. As described in the proposed rulemaking at 80 FR 57972, at issue is when the generator generates an additional quantity of hazardous waste in a calendar month as a result of an episodic event—planned or unplanned—only to revert back to its normal waste generation quantities in the following month. For example, one such event would be if a VSQG plans a short-term demolition project that generates an additional 500 kilograms of hazardous waste in the calendar month, resulting in the VSQG becoming an SQG for that calendar month. However, once the demolition project has been completed, the generator's waste generation drops such that it again qualifies as a VSQG. Other examples of planned episodic events include tank cleanouts, short-term construction projects, short-term site remediation,
EPA has determined that requiring a VSQG to comply with the additional SQG or LQG regulations or an SQG to comply with the LQG regulations for the month its hazardous waste exceeded the quantity limits based on an episodic event (planned or unplanned) is unnecessary to protect human health and the environment. Instead, the Agency is finalizing the more practical approach laid out in the proposed rule to ease compliance for episodic generators and still protect human health and the environment, with some minor changes. By complying with the specified conditions, the generator would be able to maintain its current generator category and would not be required to comply with the more stringent site-wide regulations applicable to the higher generator category. EPA currently estimates that approximately 1,270 to 2,540 generators may take advantage of this provision once it is adopted by the authorized states.
Under the final rule, a VSQG or an SQG generating an increased quantity of hazardous waste because of an episodic event that results in a temporary change in a generator's category would be able to maintain its existing generator category, provided specified conditions are met. EPA has determined that these conditions will be sufficient to ensure these additional hazardous wastes are managed in an environmentally sound manner. Like the general framework of the regulations for generators, should a VSQG fail to meet the specified conditions, it loses the VSQG exemption and becomes the operator of a non-exempt storage facility unless it also immediately complies with all of the conditions for exemption for an SQG or LQG. If an SQG fails to meet any specified condition for exemption, it loses its exemption and becomes the operator of a non-exempt storage facility unless it immediately complies with all of the conditions for an exemption for an LQG.
For both VSQGs and SQGs taking advantage of this provision, the following conditions must be met: (1) Episodic events are limited to one per calendar year; (2) the generator must notify EPA at least 30 calendar days prior to initiating a planned episodic event or within 72 hours after an unplanned episodic event; the generator must identify the start and end dates of the episodic event, which may be no more than 60 days apart, as well as other information about the event; and identify a facility contact and/or emergency coordinator with 24-hour telephone access to discuss notification submittal or respond to an emergency related to the episodic event; (3) the generator must obtain an EPA ID number (VSQGs); (4) the generator must comply with specified hazardous waste management conditions as the waste is accumulated on site; (5) the generator must use a hazardous waste manifest and hazardous waste transporter to ship the waste generated by the episodic event to a RCRA-designated facility within 60 calendar days from the start of the episodic event; and (6) the generator must complete and maintain specified records.
EPA is also finalizing a petition process at § 262.233 to allow hazardous waste generators to request from EPA one additional episodic event within the same calendar year to cover the possibility that a generator could face an unplanned episodic event in the same year it is conducting a planned event. The regulations for episodic generators are found in a new part 262 subpart L, §§ 262.230–262.233.
Under the episodic generator provisions in subpart L, a VSQG or an SQG may exceed its generator category limits only once per calendar year without affecting its generator category, with the opportunity to petition EPA for a second event. EPA has several reasons for this restriction. First, if a VSQG or SQG exceeds its generator category limits more frequently than once per calendar year, EPA is concerned that these generators are more likely to be routinely generating greater amounts of hazardous waste and thus it is more appropriate for the generator to comply with the regulations applicable to the higher generator category, at least for the months they exceed the quantity limits for their generator category.
Second, EPA believes most hazardous waste generators experience an episodic event infrequently, such as once every few years, and these events are typically planned maintenance projects. Third, the Agency is not limiting an episodic event to a single project within the generator's facility. In fact, a generator could start and complete multiple projects (
A VSQG or an SQG must notify EPA no later than 30 days prior to initiating a planned episodic event using EPA Form 8700–12 (Site ID form). Subsequent to the publication of this final rule, EPA will be revising form 8700–12 to account for the new rule provisions, but in the meantime, we will issue guidance on how to use the form in its current state to make this notification. The hazardous waste generator must identify the dates the episodic event will begin and end—a time frame not to exceed 60 calendar days—as well as describe the reason for the event and the types and estimated quantities of hazardous wastes that would be generated during the event.
For a generator's first event in a calendar year, the episodic event begins on the date identified on its form 8700–12. The date identified on the notification form as the start date for the episodic event is assumed to be the date of the release or the date the generator initiates physical action in generating and accumulating the hazardous waste. Whether such action actually occurs on that date or after by the generator will have no impact in changing the end date of the episodic event identified on the notification form. The end date must be no later than 60 calendar days from the date identified on the notification form as the start date of the episodic event.
If the generator does not know the exact day the event will end at the time of notification, it can notify using an end date that is 60 calendar days from the start of the event as long as it ensures that all hazardous waste from the episodic event is shipped off site by that date.
Should an unplanned event occur, the generator must notify EPA within 72 hours via phone or email, and subsequently submit EPA Form 8700–12 (Site ID form) with the same information laid out above for a planned event. In the case of spills of hazardous materials, a 72-hour time frame for reporting the spill to the authorities is common and allows the facility some time to evaluate
A VSQG generating and accumulating quantities of hazardous waste using the episodic event provisions to manage hazardous waste must obtain an EPA ID number using EPA Form 8700–12 if one has not previously been assigned. A generator cannot initiate a hazardous waste shipment to a RCRA-designated facility without an EPA ID number. (SQGs are already required to obtain an EPA ID number.)
a.
When accumulating hazardous waste in containers, the VSQG would be required to mark or label its containers with the following: (1) The words “Episodic Hazardous Waste” and (2) an indication of the hazards of the contents of the container—examples of hazards include, but are not limited to, the applicable hazardous waste characteristic(s) (
For tanks, the VSQG must mark or label the tank containing hazardous waste accumulated during the event with the words “Episodic Hazardous Waste” and would be required to use inventory logs, monitoring equipment, or other records to identify the associated hazards and to identify the date that the episodic event began. The records containing this information must be on site and available for inspection.
In addition, the generator must manage the hazardous waste in a manner that minimizes the possibility of an accident or release. Management standards are critical to ensure the hazardous waste does not pose a risk to human health and the environment. A VSQG may use best management practices to comply with this condition. In practice, this includes managing the hazardous waste in containers that are in good condition and chemically compatible with any hazardous waste accumulated therein and keeping the containers closed except to add or remove waste. Complying with the standards in part 265 subpart I would satisfy this condition.
If a VSQG is managing episodic hazardous waste in tanks, the following standards must be followed: (1) Having procedures in place to prevent overflow (
As mentioned already, an emergency coordinator (in compliance with § 262.16(b)(9)(i)) must be identified for the duration of the episodic event on the notification form. An emergency coordinator is needed because the VSQG will be generating greater amounts of hazardous waste than normal and, should an accident occur, the emergency coordinator would need to be prepared to handle the situation.
Under the management standards for VSQGs, the generator may not treat hazardous waste generated on site, except in an on-site elementary neutralization unit.
b.
However, the condition to manifest the hazardous waste and send it off site to a RCRA-designated facility only applies to the hazardous waste generated as a result of the episodic event. The condition does not apply to other hazardous waste generated at the same time as, but separately from, the episodic event. However, if the VSQG desires to ship all hazardous waste generated and accumulated on site to a RCRA-designated facility at once, for economic or logistical reasons, then it can be sent off site together. This applies whether the hazardous waste was generated as a result of the episodic event, independent of the episodic event, or prior to the event.
c.
For tanks, the SQG must mark or label the tank containing hazardous waste accumulated during the event with the words “Episodic Hazardous Waste” and is required to use inventory logs, monitoring equipment, or other records to identify the hazards of the contents and to identify the date that the episodic event began and ended. The generator must have records containing this information on site and available for inspection.
EPA is also finalizing its proposal that SQGs may not take advantage of the episodic generation provision for wastes accumulated on drip pads or in containment buildings. EPA has determined that it is most appropriate that hazardous waste that is being accumulated and managed on drip pads and in containment buildings be managed under the specific requirements in part 265 subpart W and subpart DD for those units. If a generator experiences an episodic event in an area of the facility that is separate from its accumulation in these units, it can use subpart L for those hazardous wastes.
In addition, the SQG must comply with all the conditions of the exemption in § 262.16—for example, the waste accumulation, waste management, employee training, and emergency preparedness and prevention conditions.
d.
VSQGs and SQGs have 60 calendar days to initiate and complete an episodic event, which includes generation, accumulation, and management (
In the case of planned events, EPA believes that in most cases, hazardous waste is likely to be characterized before the event begins and any contracts required for waste removal and disposal can also be arranged before the event. However, in the case of an unplanned event, waste may have to be characterized and contracts for disposal bid and negotiated. In order to maintain a parallel structure for planned and unplanned episodic events, EPA is finalizing a 60-day time frame. In the case of a planned event, the 60 days start on the first day of any activities affiliated with the event and in the case of a storm or spill, the 60 days start on the day of the storm. All hazardous waste generated from the episodic event must be removed, transported by hazardous waste transporter with a hazardous waste manifest, and sent to a RCRA-designated facility by the end date of the event, no more than 60 days from its start. In addition, the Agency sees no reason to preclude a generator from taking advantage of this provision to also dispose of other hazardous wastes generated during the time of the episodic event.
EPA has determined that events requiring more than 60 days to complete are not episodic generation of hazardous waste and the generator should be operating in a higher generator category to accumulate and manage that hazardous waste.
As a result of this longer time frame, EPA is not finalizing the proposed provision regarding a petition for an extension to an episodic event.
Generators must keep the following information in their records: (1) Beginning and end dates of the episodic event; (2) a description of the episodic event; (3) a description of the types and quantities of hazardous wastes generated during the episodic event; (4) a description of how the hazardous waste was managed, as well as the name of the RCRA-designated facility that received the hazardous waste; (5) name(s) of hazardous waste transporters, as appropriate; and (6) an approval letter from EPA, if the generator successfully petitioned to conduct an additional episodic event during the calendar year.
The information required to be maintained in items (1) through (3) above is the same information that must be identified on the generator's notification to EPA about the episodic event. Maintaining records of the name of the RCRA-designated facility that received the waste and the ultimate management of that waste as well as the name of any hazardous waste transporters fulfills the RCRA requirement for the generator to be responsible for its hazardous waste from cradle to grave. In addition, a record of any approval letters from EPA for a second event are critical for generators to be able to show that they were in compliance with subpart L when conducting that second episodic event.
These records must be maintained on site by the generator for three years from the completion date of each episodic event. The recordkeeping condition is critical to enable effective and credible oversight. We also have determined that the required items represent the minimum information necessary to determine that any hazardous waste generated during the episodic event is managed properly.
While the Agency believes that most generators will experience an episodic event infrequently, we also recognize that there may be situations, often unexpected, where a hazardous waste generator may have more than one episodic event within a calendar year, such as an unexpected product recall, a major spill, or an act of nature. Therefore, the Agency is finalizing a provision to allow VSQGs and SQGs to petition EPA for permission to manage one additional planned or unplanned episodic event per year without impacting the hazardous waste generator category (provided that they do not have two of the same type of event within the same calendar year).
EPA proposed that VSQGs and SQGs could petition EPA for permission regarding an additional episodic event per year, either planned or unplanned. However, in response to some of the comments received on the proposed rule from the states that implement the RCRA program, EPA has determined that it is most appropriate to allow only one event of each type per year and to require the generator to petition EPA for the second event and be approved. That is, if a generator holds a planned event early in the year, it can petition the EPA Regional Administrator for an unplanned event later in the year if needed.
In parallel fashion, if the generator has an unplanned event early in the year, it can still petition EPA to hold a planned event later in the year. In both cases, EPA must approve the petition for a second event. EPA wants to allow for the case of a second event, in cases where the generator is legitimately having episodic events, but has determined that not allowing a generator to hold two planned events in a year ensures that the provision is being used for true cases of episodic generation and not as a way for generators to regularly avoid managing hazardous waste at higher generator categories. Similarly, EPA has determined that not allowing the generator to hold two unplanned events in one year will ensure that the episodic generation provision is not used in a way that creates an incentive for irresponsible management of hazardous waste.
Because a petition for a second event distinguishes between an unplanned event and a planned event, EPA is adding definitions of planned episodic event and unplanned episodic event to the regulations in subpart L. A planned episodic event is an episodic event that the generator planned and prepared for, including regular maintenance, tank cleanouts, short-term projects, and removal of excess chemical inventory. An unplanned episodic event is an episodic event that the generator did not plan nor expect to occur, including, but not limited to, production process upsets, product recalls, accidental spills, or “acts of nature,” such as a tornado, hurricane, or flood. Some of these events are more sudden than others, but they would all be unanticipated by the generator. EPA is not including excess inventory in the definition of an unplanned event because a case of excess inventory is, more than the others, a result of decisions made by the generator in the regular course of business and is not, therefore, an unplanned episodic event.
Consistent with the notification requirements, the generator must petition EPA for the second event. For a planned event, the generator must submit a petition for a second event and indicate that this is a petition for a second event. For an unplanned event, the petition must be in the form of a notification to EPA within 72 hours of the start of the event by phone, email, or fax and subsequent submittal of a complete petition with the relevant information for the event.
The petition must include (1) the reason why an additional episodic event is needed and the nature of the episodic event; (2) the estimated amount of hazardous waste to be managed from the event; (3) how the hazardous waste is to be managed; (4) the estimated length of time needed to complete management of the hazardous waste generated from the episodic event—not to exceed 60 days; and (5) information regarding previous episodic event(s) managed by the generator and how it complied with the conditions. EPA would then evaluate this and other site-specific information to determine whether a generator should be allowed to complete the episodic event under the alternative standards.
In the case of a planned second episodic event, a generator may not manage the hazardous waste from the event under the episodic generation conditions in subpart L until it has approval from the implementing agency for that second event. There is no mandatory time frame for submitting a petition for a second planned event, but the generator should allow enough time for the implementing agency to review the petition so that they can begin the event on time.
EPA has determined that in the case of a petition for an unplanned second event, the generator may manage hazardous waste for the additional unplanned episodic event under the episodic event standards until written approval by EPA has been received. SQGs requesting a second event will be managing the hazardous waste under the same technical standards in § 262.16 in both situations. It would be impractical for a VSQG requesting a second episodic event to meet § 262.16 accumulation standards while waiting for approval to no longer have to meet them. Therefore, the VSQGs would be required to meet the performance standards outlined in § 262.232(a)(4)(iii). These subpart L accumulation standards for VSQGs are designed to minimize the possibility of a fire, explosion, or release and containers and tanks must be in good condition and compatible with the hazardous waste they contain.
If EPA approves the petition for a second event, the generator must retain the written approval in its records for three years from the date the episodic event ended. If EPA rejects a generator's petition for a second event, the generator must then start managing the hazardous waste from the episodic event and all other hazardous waste at its facility under the standards for the
EPA is not promulgating criteria for evaluating petitions for a second unplanned episodic event, but recommends that the implementing agency base its decision on factors including the validity of the proposed episodic event, the generator's enforcement history and evidence of the generator's ability to responsibly manage the waste.
In practice, a VSQG or SQG taking advantage of this rule must track and monitor the start and end dates of the episodic event in conjunction with the date the calendar month ends to ensure compliance with all RCRA regulatory provisions associated with hazardous waste generation and management.
The following example demonstrates how this provision of the rule will work. A VSQG could have a number of facility operations (
On or before September 17, the generator must remove and dispose of all the hazardous wastes it generated over the course of the previous 60 days from the episodic event. Provided the generator meets that deadline, that waste does not count when determining the generator's category.
In this example, the generator could choose to also dispose of waste generated from its normal operations in the same shipment. However, in this case, any waste generated from production or events that were not identified in the notification to EPA about the episodic event (or in the petition for a second event) must be counted for the purposes of determining the generator's category for any months impacted by the episodic event. Specifically as an example, the quantity of hazardous waste the VSQG generates outside the episodic event from September 1 through September 17 would be added the amount of hazardous waste generated for the remainder of September (starting on September 18 until the end of the month) to determine the generator's category for that month.
The same approach applies to the accumulation limit for hazardous waste at a VSQG. If the VSQG exceeds 1,000 kg of hazardous waste on site as a part of its episodic event, that waste can be managed under the provisions of subpart L until September 17. If, however, the hazardous waste has not been shipped off site by September 18, the generator must manage the waste as LQG waste. In addition, the generator would be in violation of the conditions of the episodic generation provision.
In summary, if a generator's waste is to be considered part of the episodic event and not be counted toward monthly generator category, then the waste must be part of the episodic event identified in the generator's notification. EPA has determined that this will prevent generators from using the time frame of an episodic event as a free-for-all for generation of all types of waste, regardless of whether it is identified in the notification of the event. EPA has revised this interpretation of how the episodic generation provision will work from the preamble discussion in the proposed rule in reaction to concerns from commenters that the episodic generation provision would provide excessive relief from the hazardous waste regulations for generators.
EPA is finalizing the episodic generation provisions in subpart L mostly as they were proposed on September 25, 2015, but with several important revisions: (1) Lengthening the time allowed for an episodic event from 45 days to 60 days and removing the option for a petition to extend an event; (2) revising the situations in which a generator can petition for a second event to ensure that a generator holds no more than one planned and one unplanned episodic event in a calendar year; (3) revising the notification requirements for unplanned events to allow 72 hours for notification; and (4) revising the labeling requirements to remain parallel with the labeling requirements for all generators being revised in the final rule (see section IX.E for more details on marking and labeling revisions).
Most of the comments EPA received on the episodic generation provision in the proposal revolved around how long each episodic event could be and the number of events allowed per year. EPA's goal is to find a balance between a time frame that would be useful and workable for industry and not making episodic generation a loophole for generators to use to circumvent the regulations by holding episodic events over a large part of the year. The first part of achieving this balance is determining how long an event should be.
EPA proposed a 45-day limit for an episodic event with an option to petition for a 30-day extension, for a potential total of 75 days. EPA proposed 45 days because it believed that 45 days allowed enough time for an event to be initiated and completed and for the waste to be removed. The petition option was meant to account for any unexpected problems that the generator might have with transporting the waste off site. EPA did not want to extend the episodic event for so long that it might represent a large portion of the year. EPA determined that if the episodic event provision were too expansive, it would be more likely to allow generators that are more permanently generating in a higher category to try to use the provision as a way to avoid those requirements.
However, many commenters on this aspect of the provision argued that the 45-day limit was too restrictive and one stated that the limit “undermines the benefits to operators of the episodic event rule.”
One of the main reasons that commenters argued that 45 days is too restrictive a time period for episodic events was the time needed for waste disposal contracts to be competitively bid and the time needed for generators to classify waste and prepare and schedule shipments. Other commenters also pointed out that events themselves may take place over several weeks and that some remote facilities may have special circumstances that require longer time frames to resolve. Other
Many commenters suggested a 90-day time frame, to match up with the requirements for large quantity generators, and some suggested a 60-day time frame. Other commenters suggested time frames as long as 180 days.
EPA was persuaded by the commenters who stated that a longer time frame was appropriate for an episodic event, particularly because of the arguments surrounding the planning needed to remove waste from the generator site in the case of an unplanned event. For planned events, it should be a matter of course for the generator to have characterized waste as hazardous or not and made arrangements for shipment off site in advance. However, in the case of an unplanned event, the generator might not know if the material that must be disposed qualifies as a hazardous waste and may not have a waste hauler available for a pick up. If the generator has to competitively bid for the service, as some of the commenters on the rule argued that they must, the process of getting the waste off site will take longer.
However, EPA was not persuaded by the commenters who argued that some events themselves will take longer than the time allowed, such as long-term demolition or remediation projects. Rather, these bigger long-term projects do not appear to be the kind of event that EPA would consider an “episodic” event and warrant the facility shifting into the larger waste category for the duration of the increased waste generation to properly manage the site and the hazardous waste itself.
Therefore, EPA is finalizing a longer time frame than proposed to account for some of the challenges in managing waste from an unplanned episodic event. EPA has determined that 60 days is an effective balance between allowing time for the generators to use the provision without making the time frame so long that it becomes something generators can abuse. A 90-day time frame, suggested by many of the commenters, struck EPA as being excessively long, as it would mean that a generator could consider the waste being generated during a full quarter of the year as waste from an episodic event. Shortening the event time and allowing a full 90 days of accumulation time also went counter to the Agency's goal of encouraging these generators that are generating above their normal category to arrange for the shipment of the waste to a RCRA-designated facility as soon as possible.
As part of our decision to lengthen the time frame for an episodic event, EPA also determined that a petition for a 30-day extension to an episodic event is no longer necessary. The longer time frame of 60 days should mean that extensions are not necessary in many cases. In addition, EPA received comments from the authorized states that they are concerned about the potential volume of petitions they might receive from the proposed episodic generation provisions and eliminating the option to petition for an extension is responsive to their concerns about the effect of the new provision on their resources. Accordingly, if a generator operating under the episodic generator conditions finds itself at the end of the 60-day time period and is unable to remove the waste from its site before the deadline, its generator category will change to SQG or LQG once the deadline has passed and the hazardous waste must be managed under the appropriate generator standards.
EPA proposed that a generator could petition EPA for a second episodic event, planned or unplanned. The proposal was based on the idea that in some cases a generator may want to hold a second event, but EPA did not want to simply allow two episodic events per year for all generators without a petition because of the potential abuse of the provision by generators that are not truly generating higher volumes of waste episodically, but should be operating in the larger generator category. EPA also wanted the petition to operate as a check that an implementing agency could use if it thought that a generator might be abusing the provisions.
The comments EPA received on this aspect of the proposal argued for a wide variety of options. Some commenters suggested that two events per year should be allowed, some suggested allowing a petition for a third, and one commenter supported allowing up to three episodic events in a year provided the generator has a standing agreement with a facility to accept the waste. However, several of the states supported limiting the episodic generation provision to one event per calendar year with no possibility for a second event while others argued that the proposed one event and a petition was appropriate. One state also suggested that the implementing agency should examine the causes of each event at each generator and determine if the episodic event could be held.
After considering the comments, EPA has determined that it is appropriate to allow a facility to petition for a second event in a calendar year, but only if the generator is only holding one planned and one unplanned event in that calendar year. For instance, if the generator has already held a planned episodic event in a year, a planned second 60-day event in the course of the year could indicate that the generator should be operating at a higher generator category. However, a generator that is truly a VSQG or SQG could have an occasion where it has performed a clean out or system shut down already during the year and then an act of nature or other truly unplanned event occurs. EPA would not expect this to be a regular occurrence for generators and will depend on the implementing agencies operating the RCRA programs to take note and act accordingly if a generator is regularly requesting a second episodic event.
At the same time, a generator may be planning to conduct an episodic event such as a tank clean out or maintenance project late in the year when it gets struck with a hurricane that can be managed as an unplanned episodic event for hazardous waste. In this case, the generator can hold an episodic event to respond to the storm and then petition EPA for a second event for the cleanout, while explaining that it needs the second event because of the occurrence of the storm earlier in the year.
EPA also believes that limiting the type of event that a generator can petition for will reduce the numbers of petitions submitted as a part of this provision, which is responsive to some of the comments received by states concerned about increased workload.
EPA proposed notification requirements for episodic events to ensure that the authorized state or EPA is informed of when a generator is holding an event that would otherwise cause that generator to be operating in a higher generator category. The proposed requirement was that in the case of a planned event, the generator must notify EPA no later than 30 days before the event begins. For notification in the case of an unplanned event, EPA proposed that the generator notify within 24 hours or as soon as possible by phone or email and then follow up with a full notification using EPA Form 8700–12 (the Site ID form).
Many of the comments on the notification provision singled out the notification for an unplanned episodic event as difficult to meet. Most of these
EPA understands that in the case of an unplanned episodic event, a generator will have competing priorities, particularly if a spill has occurred. However, the notification requirement for the episodic generation provision is critical in maintaining the appropriate levels of oversight for the generators taking advantage of this provision. EPA determined that it would not be appropriate to base the time frame for notification on when a waste determination is made, as that would not be parallel to any other area of the generator program and would be difficult to enforce. In addition, EPA found that the suggestions for the notification time limit to be lengthened to 7 or 30 days would result in excessive delays between the start of an episodic event and notification to EPA, compromising the ability to provide adequate oversight.
EPA has determined that it is reasonable, however, to adjust the time frame for initial notification to EPA of an unplanned episodic event by phone, email, or fax within 72 hours from when the event begins. EPA believes that this adjustment provides the generator with some additional time in case there is a necessary delay in contacting EPA due to emergency conditions, but does think that a timely notification to the Agency is important in the case of unplanned events at the generator to ensure proper oversight. A 72-hour limit ensures that timely notification.
If a generator finds that it notifies of an event and then it turns out that the material in question is not hazardous waste or does not in fact top the limit for the generator's category, the generator can work with EPA by explaining that the event was not necessary after all. Under the previous regulations, that generator would have to manage the excess generated material as hazardous waste until it is determined not to be, which would have included a notification of a higher generator category, so the requirement being finalized is not an additional burden.
EPA proposed that a VSQG would be required to notify its local fire department that it was taking advantage of an episodic event. The notice would need to include the start and end dates and identify the types and quantities of hazardous wastes that would be generated. EPA stated that the purpose of the notification was to inform regulatory authorities of the facility's activities in order to enable adequate compliance monitoring of the facility with the conditions of the alternative standards.
EPA did not receive support in the public comments for this proposal. The commenters stated that the notification requirement was excessive and would be an unnecessary burden to both the VSQGs and to the fire departments that would have received the notifications. Commenters on this provision included both industry stakeholders and state agencies. Therefore, EPA is not finalizing this notification requirement as part of subpart L.
EPA proposed a labeling requirement as part of episodic generation that paralleled the labeling and marking being proposed throughout the generator program. The proposed requirement was for episodic generators to label their waste as “episodic hazardous waste,” to label the container with the contents of the container and the hazards of the contents and to mark the start date of the episodic event as well. The requirements for tanks would have allowed the relevant information about the contents, hazards, and episodic event to be recorded in a log book instead of on the container.
In this final rule, EPA has revised the marking and labeling requirements throughout the generator program to remove the requirement that the contents of the container or tank be noted. The provision focuses instead on the hazards of the contents, as that requirement tracks more directly to the needs of responders in an emergency. EPA does expect that many facilities already label containers with the contents and will continue to do so to ensure that the correct information is available for manifesting when it comes time to ship the materials off site or for proper treatment on site.
The marking and labeling requirements in subpart L for episodic generation have likewise been revised to remain parallel with the requirements in the other parts of the generator program. (See section IX.E for a complete discussion of the marking and labeling revisions.)
In EPA's proposal, the preamble included an interpretation of the proposed provision for episodic generation that discussed allowing a generator to include hazardous waste that was generated outside an episodic event to be managed with the hazardous waste from the episodic event. This interpretation included both physical management of the waste and shipment off site, as well as not counting that other hazardous waste toward the generator's category.
Some of the comments that EPA received from the states on this episodic generation provision argued that it would provide excessive relief from the generator regulations and, therefore, that it would not be appropriate to allow this relief. As discussed elsewhere, EPA carefully considered what parts of this proposal could be revised to ensure that the episodic generation provisions are used just for the management of waste that is episodically generated and not be used to allow a generator to avoid managing waste in a larger generator category that it is operating in more regularly. EPA identified this discussion as an area where the interpretation of the final provision should be revised to clearly state that only the waste from the identified episodic event is exempt from being counted toward a generator's category. EPA has therefore revised this discussion for this final preamble.
EPA received several comments stating that the proposed requirement to label hazardous waste from an episodic event as “episodic hazardous waste” rather than “hazardous waste” is an unneeded distinction. The commenters stated that it would be a burden to get and use a label that is different than the standard “hazardous waste” label.
EPA disagrees with the commenters on the usefulness of the “episodic hazardous waste” label. EPA is retaining this requirement because it will be important for generators holding episodic events to be able to distinguish hazardous wastes generated during those events from other hazardous
If there is no distinction on the labels for hazardous waste from an episodic event, it would be difficult for a generator or an inspector to be able to determine which hazardous waste is a part of the episodic event with the 60-day limit and which hazardous waste has an alternate schedule for treatment and shipment. EPA does note, however, that the generator does not have to use a specific “episodic hazardous waste” label that would have to be purchased separately and, if practicable, can simply add the word “episodic” to the labeling with a self-designed label or with a large permanent marker.
EPA also received several comments that notification of episodic events to EPA is an unneeded burden to the generators and will decrease the likelihood of generators using this provision.
EPA disagrees that there is little to be gained from notification and, instead, has determined that it is critical to the enforceability of this provision and for the states to oversee the hazardous waste activity under their authority. Without a notification requirement for episodic waste, a generator could potentially operate as if under an episodic event at all times, changing the starting date, so that during any given inspection, it appears as though there is an episodic event on site. EPA does not expect that many generators would manage hazardous waste in this way, but the regulations must include checks and balances to prevent such abuse and the notification requirement is one way to allow the implementing agencies to follow up in person if such action is warranted.
EPA received some comments stating that a VSQG that does not discover until the end of the month that it has exceeded its threshold for generation of hazardous waste as a VSQG would have difficulty complying with the episodic generation provision because of the notification requirements.
EPA would not consider the situation described by the commenters to be a case of an episodic event because the VSQG in this case is exceeding its generation limit in the course of normal operations. An episodic event is an activity that does not occur within normal operations that causes the generator to exceed its normal limit.
EPA is finalizing a number of proposed modifications to the conditions for exemption for both SQGs and LQGs regarding preparedness, prevention and emergency procedures, as described in the proposed rulemaking (80 FR 57972). Proposed conditions for SQGs were found at § 262.16(b)(8)–(9) and for LQGs at § 262.17(a)(6)–(7), which reference part 262 subpart M. The preamble to the proposed rulemaking discussed in detail the rationale for making several revisions to existing regulations, as well as specifically taking comment on certain proposed revisions and on other potential changes that were not reflected in revisions to existing regulations.
In discussing these modifications in the proposed rule, EPA provided examples of catastrophic chemical accidents in the United States to highlight the need for continued improvement in a number of areas related to chemical facility safety. EPA also noted that, to address these concerns, the President issued Executive Order 13650—Improving Chemical Facility Safety and Security (EO) on August 1, 2013, which directed the EPA and other federal agencies to identify ways to improve operational coordination with state, local, tribal, and territorial partners; enhance federal agency coordination and information sharing; modernize policies, regulations, and standards to enhance safety and security in chemical facilities; and work with stakeholders to identify best practices to reduce safety and security risks in the production and storage of potentially harmful chemicals. EPA explained that several of these modifications are aligned with EO-related efforts in that they will facilitate collection and analysis of chemical information from local facilities, as well as development of local emergency response plans to mitigate or prevent a devastating chemical disaster. EPA further explained that these modifications will also update the regulations to make them compatible with the current infrastructure of emergency planning and response, as well as provide a more usable contingency plan to emergency responders en route to a time-sensitive emergency at a facility that generates hazardous waste. Proposed or potential modifications, as well as key comments received on each, are discussed in this section in terms of the extent to which they are being incorporated into this final rulemaking.
The condition for exemption for LQGs at § 262.17(a)(6)–(7) references 40 CFR part 262 subpart M, which includes requirements associated with contingency plan content at § 262.261. EPA proposed to modify the language to allow an LQG the flexibility to eliminate unnecessary employee personal information in the contingency plan in order to protect those individuals' privacy while still providing necessary information to address emergencies. Specifically, while retaining the name of persons qualified to act as emergency coordinators, the Agency proposed to remove references to addresses and changed the reference to home and office telephone numbers to “emergency telephone number.” EPA also proposed to add language stating that, in situations where the generator site has an emergency coordinator continuously on duty because it operates 24 hours per day and every day of the year, the plan may list the staffed position (
The majority of commenters supported EPA's proposal to remove addresses and home phone numbers for personnel and to allow listing of staffed positions. A few commenters suggested extending this provision to cover SQGs, even though they are not required to have contingency plans, and TSDFs. EPA has decided it is appropriate at this time to focus on changes for LQGs only because they pose the greatest concern in matters of emergency preparedness; consequently, the Agency is finalizing § 262.261(d) as proposed. Although EPA is not extending these requirements to other generator categories or to TSDFs, the Agency would encourage facilities
EPA proposed clarifications and modifications to preparedness and prevention procedures dealing with the location of required equipment and access to communications or alarm systems based on 30 years of experience with these rules, feedback from stakeholders as part of the Agency's November 2004 Hazardous Waste Generator Regulatory Program Evaluation (Docket ID No. RCRA–2003–0014), and other discussions with stakeholders. These revisions are discussed below.
Commenters generally supported EPA's proposed clarification as it provides flexibility in determining the most appropriate locations of emergency response equipment, although several commenters suggested various changes/clarifications related to the location and accessibility of emergency equipment. EPA does not believe these other changes/clarifications are necessary and is finalizing § 262.16(b)(8)(ii) and § 262.252 as proposed.
The majority of commenters supported this modification, although one commenter expressed concern regarding what would constitute immediate or unimpeded access. Another commenter requested clarification as to whether access to a cell phone satisfies the requirement for immediate access to an alarm or communication device. EPA believes that, although cell phones are a useful means of communication, they should not be relied upon solely to satisfy this requirement. The Agency is therefore finalizing § 262.16(b)(8)(iv) and § 262.254 as proposed.
Based on experience and feedback received from the regulatory community and other stakeholders, EPA proposed revisions that address two of the four provisions regarding emergency procedures for those areas where SQG hazardous waste is generated and accumulated. These revisions are as follows.
Commenters generally expressed support for this proposed change, although certain commenters questioned the posting of emergency information where hazardous waste is generated or accumulated. Some commenters requested the option of keeping emergency information on cell phones, while another commenter cautioned that cell phone reliability could be compromised during a widespread emergency. EPA understands that cell phone use may be compromised but also realizes that cell phones are widely used and that the inability to use cell phones for communication purposes would not prevent an employee from accessing stored information, such as land line telephone numbers (
Nearly all of the commenters supported EPA's proposed modification, although some commenters opined that existing language already allows for contractors to perform this work. Other commenters mentioned that the generator is ultimately responsible for ensuring proper response and cleanup and a few suggested adding language clarifying contractor liability in performing cleanups. EPA is finalizing § 262.16(b)(9)(iv)(B) as proposed.
EPA stated in the proposal that current preparedness and emergency procedures regulations do not clearly state whether they are applicable to the entire facility or only to areas where hazardous waste is generated and accumulated on site or where allowable treatment may occur in accumulation units (
EPA acknowledged that previous Agency guidance indicated RCRA preparedness and emergency procedures regulations, including development of contingency plans by LQGs, would only apply to 90-day accumulation units, otherwise known as CAAs. In this guidance, the Agency states that, when developing a contingency plan, LQGs would only need to include those 90-day accumulation units involved in the on-site management of hazardous waste.
EPA proposed that subpart M apply only to those areas of an LQG where hazardous waste is generated and accumulated on site in accordance with the conditions in § 262.17. This proposal included a parallel change for the emergency procedures regulations for SQGs in § 262.16.
Although the primary objective of these changes was to ensure that preparedness and planning regulations under RCRA did not apply to the entire facility, EPA received several comments on whether SAAs and points of generation should or should not be included. Comments were roughly split on whether areas besides CAAs, such as SAAs and points of generation, should be included within the scope of preparedness and planning regulations. Notwithstanding existing guidance, EPA continues to believe there are benefits to addressing areas besides CAAs. Throughout a facility, there may be many points of generation and associated SAAs from which hazardous wastes are routinely moved to CAAs; therefore, the potential for spills exists during the accumulation and management process. For this reason, EPA has determined it is appropriate to address these additional areas, consistent with the objectives of EO 13650, in order to ensure protection of human health and the environment, as part of preparedness and planning regulations.
With respect to allowable treatment, EPA believes that locations of such treatment would be covered as part of the overall accumulation and management process within a facility. Although EPA has not specifically defined allowable treatment in the regulations, the Agency has determined at this time to continue to address allowable treatment at generator facilities within the framework of existing guidance.
EPA is, therefore, finalizing regulations making it clear that points of generation and SAAs, in addition to CAAs, fall within the scope of regulations for preparedness and planning in § 262.16(b)(8) for SQGs and 40 CFR part 262 subpart M for LQGs. This includes adding clarifying language in § 262.15(a)(7) and (8) regarding the conditions for exemption for both SQGs and LQGs that specifically relate to SAAs.
EPA noted in the proposal that RCRA generator regulations, which were finalized in 1980, have not been updated to reflect significant changes to the national, state and local infrastructure for emergency planning and response, one of which was passage of the Emergency Planning and Community Right-To-Know Act (EPCRA) in 1986. The Agency also discussed EPCRA in terms of emergency planning and notification requirements, as related to preparedness, prevention and emergency procedures established by hazardous waste management regulations. This included the roles and responsibilities of Local Emergency Planning Committees (LEPCs) under EPCRA. EPA explained that facilities covered under EPCRA are required to report chemical information to LEPCs, as well as other entities, and that LEPCs are required to prepare a comprehensive emergency response plan. Facilities covered by EPCRA planning provisions are required to cooperate in emergency plan preparation and designate a facility emergency coordinator to participate in this process.
For this reason, EPA proposed revisions to require that SQGs and LQGs must first attempt to enter into arrangements with their LEPCs. EPA also proposed regulatory text that describes procedures for how a facility that is not able to make arrangements with the LEPC would make such arrangements with the fire department and other local emergency services. The Agency requested comment on its proposal to require an SQG or LQG to enter into arrangements with its LEPC unless there is no LEPC, the LEPC does not respond, or the LEPC determines that it is not the appropriate organization to make arrangements with, in which case the SQG or LQG
Due to the fact that some SQGs and LQGs may already coordinate with their LEPCs annually as part of their EPCRA requirements, EPA opined that it would be unnecessary to include time frames for updating in this rule. The Agency, nevertheless, requested comments on whether the regulations should mandate how frequently a generator must communicate with its LEPC or local fire department if it has not otherwise communicated with them.
EPA also proposed to modify existing regulations to state that the generator shall maintain records documenting the arrangements with the LEPC or, if appropriate, with the local fire department, as well as any other organization necessary to respond to an emergency. The Agency asked for comment on this proposed change to documentation, in particular, whether local ordinances already require generators to have documentation of arrangements with local emergency response organizations.
Finally, the Agency asked for comment on the feasibility of providing a waiver from requiring either an SQG or LQG to enter into arrangements with an LEPC or, if appropriate, other local authorities when they have 24-hour on-site emergency response capabilities, and particularly under what circumstances a waiver would be granted.
The majority of commenters indicated that local emergency responders, as opposed to LEPCs, should serve as the initial point-of-contact for LQGs, citing concerns about an emphasis on LEPCs, which usually are not involved in actual responses to emergencies. Regarding the extent to which SQGs and LQGs should document efforts to enter into arrangements with local authorities/first responders, some commenters stated the generator cannot be held responsible for making arrangements with a party over which it has no control and noted that a mandated arrangement differs greatly from being required only to make an “attempt.” There were also questions on what would constitute appropriate documentation. Although there was some opinion to the contrary, the majority of commenters believed that large facilities with internal emergency response capability should be given a waiver or allowed to seek a waiver from entering into arrangements with local authorities.
Based on the comments received, EPA is not finalizing the proposed references to LEPCs as the primary contact identified at § 262.16(b)(8)(vi) and § 262.256 for SQGs and LQGs, respectively. EPA is also not finalizing proposed language indicating that generators must make arrangements with local responders and is clarifying that generators must simply attempt to make arrangements with local responders and document either the attempts or, if successful, the final arrangements. Some commenters provided feedback in terms of what constitutes sufficient “documentation” that best efforts were made to enter into arrangements. In considering these comments, EPA is revising the proposed language at §§ 262.16(b)(8)(vi)(B) and 262.256(b) to remove the term “certified letter” in recognition of the fact that there are various means of confirming that arrangements actively exist, or were sought but not obtained, including, but by no means limited to, a certified letter, fax and electronic mail. Additionally, based on these comments, EPA is revising proposed language to insert the phrase “in the operating record,” which would include the contingency plan, to provide additional flexibility regarding where such documentation can be retained. Finally, during implementation of the final rule, as part of coordinating with stakeholders and conducting associated outreach activities, EPA intends to address the issue of what constitutes reasonable efforts or sufficient attempts by SQGs and LQGs to make and document arrangements with local authorities.
With respect to large facilities possessing internal emergency response capability, EPA is adding language at §§ 262.16(b)(8)(vi)(C) and § 262.256(c) that allows these facilities to obtain a waiver from the authority having jurisdiction (AHJ) over the fire code within the facility's state or locality in terms of entering into arrangements with local authorities provided the waiver is documented in the operating record. As previously stated in the final rule preamble, an AHJ may or may not be the fire marshal, fire chief, building official, or another official as designated by the state or local government. EPA believes that, practically speaking, the AHJ would be in the best position to evaluate whether a particular facility, in fact, possesses 24-hour response capabilities. This is consistent with the Agency's rationale when discussing waivers from the 15 meter property line condition in the case of ignitable or reactive hazardous waste accumulation. The Agency is similarly allowing flexibility regarding how the generator documents that a waiver has been obtained.
In the preamble to the proposed rule, EPA noted that RCRA regulations on contingency planning and emergency procedures address the purpose of the contingency plan, what it must contain, who receives copies, how to amend the contingency plan, and responsibilities of the facility's emergency coordinator and emergency procedures. The Agency also noted that the owner or operator of the facility can develop one contingency plan that meets all the regulatory standards for the various statutory and regulatory provisions associated with contingency planning, which were specifically identified in the proposed rule preamble. In doing this, the Agency recommended that generators base their contingency plan on the National Response Team's Integrated Contingency Plan Guidance One Plan (June 5, 1996: 61 FR 28642).
EPA's discussions with emergency management professionals indicated that the length of the facility contingency plans may prevent first responders from being able to fully review these documents when responding to an emergency and what first responders really need is readily available information describing what they will immediately confront upon arrival at the scene. EPA recognized that, once the incident is under control, first responders will be able to review the contingency plan to determine whether longer-term responses are necessary. However, the Agency also indicated that a shorter document, such as an executive summary of the contingency plan, would allow a more effective initial response to an incident at a facility.
Based on a review of information required as part of a RCRA contingency plan, as well as information required by the local fire department, EPA identified certain components that would be useful in an executive summary. In particular, EPA proposed to require that the following information be included in an executive summary to assist emergency responders in the event of an incident: (1) The types/names of hazardous wastes in layman's terms and the associated hazard associated with each waste present at any one time (
Because of the usefulness of a shorter document for emergency responders, EPA proposed to require that a new LQG, as of the effective date of the rule, submit an executive summary of its contingency plan, in addition to the full contingency plan, to the emergency management authorities; in particular, LEPCs. Although EPA believed the eight elements previously discussed should be included as part of an executive summary, the Agency asked for comment on the appropriateness of this information.
Roughly twice as many commenters supported the requirement for an executive summary for LQGs than opposed it, arguing that EPA's proposal to require a contingency plan executive summary would improve the ability of emergency response teams to respond to an incident at an LQG's facility. These commenters generally favored including at least some of the eight elements as part of contingency plan executive summary, although some commenters stated a preference for excluding certain elements or suggested others for inclusion. Other commenters suggested a document format, such as a table of contents or index that allows the reader to quickly access needed information. Some commenters disagreed with making submission of the executive summary a mandatory requirement, while others advocated flexibility in terms of content and submission. One commenter requested clarification as to the meaning of “new LQG.” Commenters who objected to this proposal believed that it was unnecessarily prescriptive and duplicative.
The Agency subsequently decided to modify language at § 262.262(b)(8) to account for situations where an emergency coordinator is continuously on duty in order to ensure consistency with final regulatory text at § 262.261(d). Otherwise, the Agency believes these elements provide key information for use in the event of an emergency, which will be beneficial to workers and the public in general. EPA is also requiring new LQGs (
EPA has acknowledged that, since promulgation of personnel training regulations in the 1980s, use of computerized training has become a common practice for generators to teach their workers about the management of hazardous waste. Due to the fact that many generators already use this method for training workers, a modification that reflects use of online computer training would simply bring the hazardous waste personnel training regulations up to date with existing industry practices. Therefore, EPA proposed to also allow a generator to use online computer training, in addition to classroom instruction and on-the-job training, to complete the personnel training requirements. EPA requested comment on this proposed modification.
The vast majority of commenters supported EPA's proposal to clarify that online training is acceptable to meet hazardous waste generator training requirements. However, some commenters suggested replacing the word “online” with “computer-based” or “electronic training” or identifying additional training options. EPA has considered these comments and is modifying proposed § 262.17(a)(7)(i)(A) by inserting language that takes into account computer-based and/or electronic training options.
As previously stated, EPA believes that a shorter document, such as an executive summary of the contingency plan, which will be referred to as a quick reference guide, will allow more effective response to an incident at a facility. EPA is requiring new LQGs, in addition to a full contingency plan, to develop and submit an executive summary of their contingency plan to local emergency responders identified at § 262.262(a). With respect to existing LQGs, which have already developed and submitted a contingency plan to local emergency responders, EPA proposed not to require these facilities to develop an executive summary because of the additional burden. However, the Agency recommend that existing LQGs may want to submit an executive summary when conducting a periodic update on their contingency plans to ensure that the emergency responders have the appropriate information on hand in the event of an emergency. EPA took comment on whether existing LQGs that have already provided a full contingency plan should also be required to submit an executive summary to the LEPC or, if appropriate, the fire department or other emergency responders.
Comments received indicated a very strong preference for requiring an existing LQGs to submit an executive summary. However, certain commenters suggested that submission should occur when existing LQGs update their contingency plans to reflect, for example, personnel changes, facility updates, waste relocations, emergency equipment upgrades, and other operational or physical alterations. Other commenters suggested that submission occur after a specified period of time has elapsed.
In the final rule, EPA is clarifying in new language at § 262.262(b) regarding existing and new LQGs with respect to preparation and submission of a quick reference guide. EPA is also adding new language at § 262.262(c) to require that all LQGs update their quick reference guides, if necessary, whenever the contingency plan is amended. EPA does not consider that the changes to the final regulations in this rule would automatically require amendments to an existing LQG's contingency plan under the requirements in § 262.263(a).
In response to certain comments, EPA is also replacing the term “executive summary” with the term “quick reference guide” in order to more closely mirror the intended purpose of this document. The Agency believes this
EPA proposed to replace the word “facility” in these regulations regarding emergency preparedness and prevention with the word “site” because “facility” is defined in § 260.10 as specific to TSDFs. Certain commenters discussed EPA's proposal. One commenter noted that “site” is too general and could be misinterpreted, while another commenter noted that, although the term “facility” has a defined meaning in RCRA, “site” does not. As a result of these comments, EPA has reconsidered its proposal and decided not to change existing regulations; consequently, the Agency is replacing the word “site” where it appeared in this context in the proposal with the word “facility” throughout final rule language. EPA has concluded that use of the word “facility” in these regulations would also be more consistent with the word “facility,” which is used and defined in EPCRA emergency planning and notification regulations at 40 CFR part 355, as well as in Spill Prevention, Control and Countermeasures (SPCC) plan regulations at 40 CFR part 112.
EPA also proposed incorporating a minor revision associated with a “comment” in existing regulatory text into the final rule at § 262.264 because the
EPA asked for comment on certain potential revisions to existing regulations that the Agency has subsequently decided not to address as part of this final rule. Each is discussed in turn as follows.
EPA identified a potential issue regarding whether a contingency plan must contain information about alternative evacuation routes or whether a different approach for addressing alternative evacuation routes would be more effective. This issue resulted from stakeholder discussions regarding the Agency's November 2004 Hazardous Waste Generator Regulatory Program Evaluation (Docket ID No. RCRA–2003–0014). EPA received a comment stating that it does not make sense to include in the contingency plan hundreds of possible evacuation routes that may be present at a facility, depending on its configuration, along with a suggestion that, although regulations should be modified to require that evacuation routes be posted and drills be conducted, regulations should not require the routes to be in the contingency plan.
EPA indicated that, although the Agency did not believe regulations require all potential evacuation routes be identified, emergency responders may need this type of information in order to determine the most efficient and timely approach to reach the facility. Therefore, EPA requested comment on the necessity of modifying the condition on alternative evacuation routes in a contingency plan. EPA also asked for comment on whether requirements to post evacuation routes and hold annual evacuation training/drills would be an effective substitute to maintaining alternative evacuation routes in the contingency plan and whether regulations should discuss shelter-in-place as part of the contingency plan.
Slightly more commenters disagreed than agreed with requiring alternate evacuation routes in contingency plans. Some commenters noted that, while alternative evacuation routes should be considered, they may not exist or may not be practical in certain instances. Another commenter believed that the decision to require alternative evacuation routes should rest with the LEPC. Commenters also offered suggestions such as requiring identification of employee muster locations or including a map with possible exists marked, with another commenter stating that including evacuation routes only in the contingency plan is not useful. EPA did not receive many comments regarding either posting evacuation routes and holding annual evacuation training/drills or discussing shelter-in-place, although the comments received indicated support for these approaches.
EPA understands that it may not always be possible to identify alternate evaluation routes and likewise realizes that immediate evacuation may not always be advisable due to the nature of the emergency. Nevertheless, the Agency believes that, in the majority of instances, evacuation will be the selected course of action and that it will be possible to identify an alternate evacuation route. EPA also believes comments on the proposed rule regarding this issue should be considered by facilities when developing or amending contingency plans. This would include posting evacuation routes, as well as muster and shelter-in-place locations, within the facility (and/or making such information available on cell phones) and conducting periodic training/drills. These efforts would be undertaken, as necessary, in consultation with local emergency responders. Due to the varying types/varieties of wastes handled by facilities and differing physical settings in which facilities are located, however, the regulations should allow flexibility on the part of the LQG. Therefore, EPA is not making any changes to § 262.261(f), as proposed.
EPA requested comment on whether contingency plans should be submitted electronically to emergency responders to enhance their ability to respond safely and effectively to an emergency at an LQG, including what EPA's role should be in electronic submittals. In making this request, EPA noted that the Agency currently makes numerous electronic databases and tools available for helping first responders with emergency management. A specific example cited was a suite of software applications (Computer-Aided Management of Emergency Operations), which is used to assist with data management requirements under EPCRA. EPA asked whether an additional tool to manage contingency plans under RCRA would be a useful addition to this software suite and whether it would assist LEPCs by integrating the contingency plan with their existing data on facilities, thereby making the information available to the first responders in the most usable way. EPA also inquired as to the feasibility/effectiveness of private sector parties or
The majority of comments received supported electronic submission of contingency plans to emergency responders, including five commenters who suggested incorporating submissions of contingency plan information into existing software applications—two of who preferred this to direct submission of the plan—consistent with EPCRA requirements. Some commenters cautioned against making electronic submission mandatory and a few others indicated that electronic submission of a contingency plan would preclude the need for submission of an executive summary. Commenters opposed to this approach cited reasons such as unnecessary burden and potential lack of availability during a power outage. Few comments directly addressed the question of software development, beyond mentioning existing software applications, although limited feedback did not indicate support for this additional effort.
Proposed regulations did not specify the format in which the contingency plan must be provided nor did they discuss software applications. EPA strongly encourages LQGs to work with first responders to determine whether electronic submission of contingency plans, including incorporating contingency plan information into existing software applications, is an acceptable approach either in lieu of or in addition to a hard copy submission. However, EPA believes regulations must be sufficiently flexible to allow these decisions to be made on a facility-by-facility basis; therefore, the Agency is not making any changes to proposed regulations at § 262.262(a) regarding transmission of the contingency plan.
EPA took comment on certain aspects of the contingency plan executive summary, which the Agency is renaming as a quick reference guide, related to element #1. This element discusses the types/names of hazardous wastes in layman's terms and the associated hazard associated with each waste present at any one time. EPA asked whether providing information regarding identification of hazardous waste is sufficient for ensuring that first responders will be able to identify the appropriate actions to take during emergency responses. EPA also asked whether referencing material in the North American Emergency Response Guide, where appropriate, would be useful (
EPA also took comment regarding whether element #3 of the contingency plan executive summary, which discusses identification of any hazardous wastes where exposure would require a unique or special treatment by medical or hospital staff, should also include a requirement that the generator provide medical-related information for exposure to hazardous wastes requiring special treatment; specifically, whether this information is readily available to the generator for inclusion in the executive summary of the contingency plan and whether first responders would find this additional information useful for responses. EPA received few comments related to element #3; as such, there was no meaningful basis for justifying any additional regulatory changes. Although EPA would encourage the generator, in consultation with first responders, to include medical-related information associated with exposure to certain hazardous wastes, the Agency is not making any changes to what was proposed at § 262.262(b)(3).
Another aspect of the contingency plan executive summary on which EPA took comment involved whether an SQG should be required to develop an executive summary of a contingency plan. In posing this question, EPA noted that the major differences between the preparedness, prevention, and emergency procedures regulations applicable to SQGs and those applicable to LQGs are the development and implementation of a contingency plan and more rigorous responsibilities for the LQG emergency coordinator.
Although SQGs are not required to develop contingency plans under RCRA, EPA noted that many SQGs may already have developed contingency plans to comply with other statutory and regulatory requirements and that many of the elements of an executive summary may already be available. For these reasons, EPA thought that the requirement for SQGs to provide an executive summary of a contingency plan to first responders could provide information that is critical during emergencies with little extra effort being expended by the SQGs.
Although a few commenters supported creation of an executive summary for SQGs, the majority did not. Reasons provided included the fact that a contingency plan is not required under RCRA and the belief that this decision should be made by individual states, as well as the potential for unnecessary burden and possibly duplication of effort. Other commenters, while seeming not to support creation of an executive summary, nonetheless suggested that EPA specify information that would be included in the case of SQGs.
As previously noted, SQGs may have already developed emergency plans to comply with other statutory and regulatory requirements, such as SPCC or EPCRA. Moreover, under existing RCRA regulations, SQGs are required to attempt to make arrangements, as appropriate, with local authorities regarding the types of wastes handled at their facilities. Therefore, it is possible that these facilities have incorporated information regarding hazardous waste management into these emergency plans. EPA also recognizes that there exist a large number of SQGs operating under RCRA, as compared to LQGs. For instance, as noted elsewhere in this rulemaking, EPA estimates the number of SQGs to range from approximately 49,900 to 64,300 while the number of LQGs is estimated to be approximately 20,800.
EPA asked for comment on whether the regulations should specifically identify positions at LQGs for which
EPA noted that, besides the statement indicating that personnel must be able to respond effectively to emergencies by familiarizing them with emergency procedures, emergency equipment, and emergency systems, existing regulations are not specific about which personnel at an LQG must complete the hazardous waste training. At issue is the scope of these training standards, the applicability of the training provision to employees who are not assigned to work in the CAAs (
With the assistance of staff from certain states (
Commenters were generally evenly divided on whether or not the regulations should specifically identify positions at LQGs where hazardous waste training and a written job description is necessary. Supporters who agreed with the areas of hazardous waste management identified by EPA also identified additional job functions, including those not directly involved in handling hazardous waste that effectively expanded the areas of waste management, while others believed training should apply to employees who are handling hazardous waste on a daily basis. Commenters who did not support specifying positions and including written job descriptions expressed concern that proposed revisions could, in practice, have the opposite of the intended beneficial effect envisioned by the Agency. Certain commenters also stated that LQGs would be in the best position to identify employee training needs, while others recommended removing the requirement for written job descriptions as they believe such information does not benefit the facility or inspectors.
Comments were roughly split on whether EPA should require hazardous waste training for personnel who work at SAAs. Taking into account the differing opinions of commenters, the existence of EPA guidance on this point and the desire to maintain flexibility, the Agency has decided not to revise § 262.17(a)(7) to identify areas of hazardous waste management for which personnel training and a written job description are required or to specifically require training for staff at SAAs. However, EPA would encourage all generators to take appropriate steps to ensure that all employees who work at areas where hazardous waste is accumulated, including at SAAs, or are otherwise involved in hazardous waste management receive sufficient training to ensure that they are familiar with proper handling and emergency procedures.
During discussions related to making and documenting arrangements with the LEPCs, EPA noted that existing regulations do not specify how frequently hazardous waste generators must make arrangements with local authorities. Considering that some SQGs and LQGs may already coordinate with their LEPCs annually as part of their EPCRA requirements, EPA opined that it would not be necessary to include time frames as part of this rule. The Agency, nevertheless, requested comments on whether the regulations should mandate how frequently a generator must communicate with its LEPC or local fire department if it has not otherwise communicated with them.
With the exception of one commenter who suggested that arrangements should be updated annually, at a minimum, and more frequently if modification is needed based on changes such as the type/amount of waste generated, comments received did not indicate support for revising existing regulations to specify time frames. These commenters felt that the provisions necessary for LQGs to communicate with local emergency response personnel are already in place or that communication should only occur in the event that the facility has a major change in its operations. Another commenter indicated that mandating how frequently a generator must communicate with its LEPC or local fire department would only work if corresponding changes were also made to EPCRA requirements. EPA agrees with the majority of commenters and continues to believe that it is unnecessary to mandate how frequently a generator should communicate with its emergency response agency. Therefore, the Agency is not making any changes to what was proposed at § 262.16(b)(8)(vi) for SQGs or to § 262.256 for LQGs.
Although revisions to emergency planning and procedure regulations pertain only to generators (language in an expanded 40 CFR part 262), many of these provisions were taken from part 265 with only slight revisions. Therefore, EPA asked whether it would be appropriate/helpful if proposed revisions to part 262 were also be made in the applicable paragraphs of parts 264 (permitted facilities) and/or 265 (facilities operating under interim status) to ensure consistency or whether the regulations should remain unchanged despite the result that generators and TSDFs would be left with some regulations that are very similar but not exactly the same.
Although the majority of those who commented supported making changes to TSDF regulations, EPA is not making changes as part of this rulemaking because the Agency believes that emergency planning and procedure requirements at TSDFs can best be addressed on a facility-specific basis through the permitting process.
The proposed rule included 23 technical corrections and conforming changes to various paragraphs in parts of 257, 258, 260 through 265, 270, 273, and 279 discussed at 80 FR 57984. These changes eliminate the regulatory text for discontinued programs, identify areas where conforming changes are
The Agency is finalizing 20 of the 23 proposed technical corrections. The three proposed technical corrections not being finalized in this action are also discussed. In addition, EPA is finalizing conforming changes throughout the text to account for the reorganization and the changes in defined terms. Also note that EPA is making a conforming change to § 266.80(a) in this action to take into account the revisions being made as a part of the “Hazardous Waste Export-Import Revisions” Final Rule (Docket ID EPA–HQ–RCRA–2015–0147; FRL–9947–74–OLEM).
The technical corrections the Agency is finalizing are:
(1) Revise § 260.3, which previously read, “As used in parts 260 through 265 and 268 of this chapter” to currently read “As used in parts 260 through 273 of this chapter” to account for additional parts of the regulations that were promulgated after 1986, such as parts 266, 267, and 270 through 273.
(2) Modify the definitions of “Treatability Study,” “Universal Waste Handler,” “Universal Waste Transporter” in § 260.10 to only capitalize the first word (
(3) Remove the closed parenthesis after “(
(4) Improve the readability of § 261.4(a)(7), which previously read, “Spent sulfuric acid used to produce virgin sulfuric acid, unless it is accumulated speculatively as defined in § 261.1(c) of this chapter” to currently read “Spent sulfuric acid used to produce virgin sulfuric acid provided it is not accumulated speculatively as defined in § 261.1(c) of this chapter.”
(5) Make conforming changes to citations that reference § 261.5 to reflect the reorganization of these regulations. The citations where references to § 261.5 are revised include all the following: §§ 262.10(b), 262.10(l)(2), 262.201(b), 262.204(a), 262.210(b)(3), 262.210(d)(2), 262.211(e)(3), 262.213(a)(2), 262.213(a)(3), 262.213(b)(2), 262.216(b), 264.1(g)(1), 268.1(e)(1), 270.1(c)(2)(iii), and 279.10(b)(3). In § 261.33(e) and (f), EPA is removing the references to §§ 261.5(e) and 261.5(a) and (g), respectively, because the quantity limits for hazardous wastes are contained in EPA's definitions for very small quantity generator, small quantity generator, and large quantity generator. (Note: The comments at the end of § 261.33(e) and (f) remain.)
(6) Replace the word “waste” with “water” in previous § 261.5(e)(2), which read, “A total of 100 kg of any residue or contaminated soil, waste, or other debris resulting from the clean-up of a spill, into or on any land or water . . . .” Prior to 1985, the word “waste” was “water” and the Agency was not able to determine why this change occurred so we are reverting back to the original regulatory language. (In the reorganization, this language is moved to § 260.10 and is contained in the definitions of large quantity generator, small quantity generator and very small quantity generator.)
(7) Revise § 261.420 to clarify that the requirement in § 261.411(c) that all employees be familiar with proper waste handling and emergency procedures relevant to their responsibilities applies to facilities that generate or accumulate more than 6,000 kg of hazardous materials as well as to facilities that generate or accumulate less than that amount.
(8) Remove Notes 1 and 2 from § 262.10. Note 1 previously stated that the provisions of § 262.34 are applicable to the on-site accumulation of hazardous waste by generators. Therefore, the provisions of § 262.34 only apply to owners or operators who are shipping hazardous waste which they generated at that facility. Note 2 previously stated that a generator who treats, stores, or disposes of hazardous waste on site must comply with the applicable standards and permit requirements set forth in 40 CFR parts 264, 265, 266, 268, and 270. These notes are no longer necessary because the Agency replaced § 262.34 with a new reorganization of the regulations that address Note 1 and in § 262.10 that address Note 2.
(9) Remove the extra period in the last line of the paragraph at § 262.10(l).
(10) Made conforming changes to sections that reference § 262.34 to reflect EPA's move of these regulations. The citations where references to § 262.34 are revised include the following: §§ 262.10(l)(1), 262.201(a), 262.201(a), 262.216(a), 264.1(g)(3), 264.71(c), 264.1030(b)(2), 264.1050(b)(2), 265.1(c)(7), 265.71(c), 265.1030(b)(2) and (b)(3), 268.7(a)(5) and 270.1(c)(2)(i).
(11) Correct the statutory citation at § 262.43 that referred to sections 2002(a) and 3002(6) of the Act. The reference to 3002(6) should be to 3002(a)(6). Additionally, the word “he” was removed in order to be gender neutral.
(12) Make two conforming changes to the definition of “central accumulation area” previously found in § 262.200 in subpart K. We moved this definition from this location to § 260.10 with the following revisions. First, because of the reorganization of the regulations in 40 CFR part 262, we changed the references to the applicable regulations for the central accumulation areas that are used in the definition of central accumulation area in § 262.200. For LQGs, the reference to § 262.34(a) has been changed to § 262.17 and for SQGs, the reference to § 262.34(d) through (f) has been changed to § 262.16.
Second, we removed the reference to Performance Track in the definition of “central accumulation area” in § 262.200 of subpart K because the Performance Track program was terminated (74 FR 22741; May 14, 2009). Both of these conforming changes are reflected in the definition of “central accumulation area” that has been added in § 260.10.
(13) Make conforming changes to citations that previously used the term “conditionally exempt small quantity generator” to reflect EPA's change to the term “very small quantity generator.” The citations where “conditionally exempt small quantity generator” was replaced with “very small quantity generator” include: §§ 262.200, 262.201(b), 262.202(b), 262.203(a), 262.203(b)(2), 262.204(a), 262.209(b), 262.210(d)(2), 262.213(a)(3), 268.1(e)(1), 270.1(c)(2)(iii), 273.8, 273.8(a)(2), 273.81(b), and 279.10(b)(3). EPA also made this conforming change in 40 CFR parts 257 and 258 as well. Although EPA had not explicitly specified these parts as affected citations in the proposal, EPA had explained clearly in the preamble to the proposal that we would need to replace the term “CESQG” with the new term “VSQG” throughout the entire EPA regulations.
(14) Improve the readability of § 264.170, which previously read, “The regulations in this subpart apply to owners and operators of all hazardous waste facilities that store containers of hazardous waste . . . .” The Agency revised this language to currently read, “The regulations in this subpart apply to owners and operators of all hazardous waste facilities that store hazardous waste in containers . . . .”
(15) Improve the readability of the first sentence in § 264.191(a), which previously read, “For each existing tank system . . . the owner or operator must determine that the tank system is not leaking or is unfit for use.” The Agency revised this language to currently read, “For each existing tank system . . . the owner or operator must determine that the tank system is not leaking or is fit for use.”
(16) Make conforming changes to and improve the readability of § 265.1(c)(7), which previously read, “A generator accumulating waste on-site in compliance with § 262.34 of this chapter, except to the extent the requirements are included in § 262.34 of this chapter.” The Agency revised this sentence to currently read, “A generator accumulating waste on site in compliance with applicable conditions for exemption in § 262.14 though § 262.17 and subparts K and L of part 262, except to the extent the requirements of this part are included in those section and subparts.” The new references to the conditions for exemption in 262.14 and 262.15, and subparts K and L provide the locations of the existing conditions for exemption from part 265 for VSQGs, satellite accumulation, and academic entities; and the new conditions for exemption for episodic generation.
(17) Correct the list of
(18) Make a conforming change that removed and reserved § 265.201 (Special requirements for generators of between 100 and 1,000 kg/mo that accumulate hazardous waste in tanks). EPA moved this section to § 262.16.
(19) Add a missing reference to 40 CFR part 268 in § 270.1(a)(3), which previously read, “The RCRA permit program . . . in 40 CFR parts 264, 266, and 267” to read, “The RCRA permit program . . . in 40 CFR parts 264, 266, 267, and 268. ”
The Agency is not finalizing three technical corrections. First, we are not finalizing the conforming change to remove and reserve § 262.40(c) that was proposed to be moved to § 262.11. One commenter pointed out that other parts of the regulations reference § 262.40(c). In addition, the title of § 262.40 is Recordkeeping and it is located in subpart D, titled “Recordkeeping and Reporting.” EPA has determined that it is appropriate to retain a reference to this recordkeeping requirement for generators in this section. Therefore, we are including a reference from § 262.40(c) to the recordkeeping requirement in § 262.11(f) as part of this final rule.
Second, the Agency is not finalizing the two proposed technical corrections that would have added § 265.445, applicable to drip pads, to § 265.111(c) and § 265.114, respectively. As pointed out by one commenter, this change is not necessary because and § 262.17 already references § 265.445 as part of LQGs having to comply with part 265 subpart W drip pad regulations.
Except for the comments associated with the proposed changes to § 262.40(c), § 265.111(c) and § 265.114, as well as two commenters pointing out the inadvertent mistakes at § 261.33(e) and (f), commenters were either in support of the proposed technical corrections or had no comments associated with these changes.
This section summarizes the comments the Agency received regarding the feasibility of using electronic tools to support increases in RCRA program efficiency and effectiveness. More specifically, in the proposed rule, the Agency requested comment on the use of electronic tools in three program areas. In section VIII.B.9 of the proposed rule (80 FR 57946), the Agency requested comment on the feasibility of developing an electronic decision tool to assist generators in making accurate hazardous waste determinations. As part of that discussion, the Agency requested comment on the feasibility of the private sector developing electronic application software (apps) and whether there is a market for such an app and what EPA could do to facilitate software development. In section VIII.H.3 of the proposed rule (80 FR 57961), the Agency requested comment on the feasibility of developing an electronic application containing information from the executive summaries (now referred to as a “quick reference guide”) of contingency plans that emergency responders could use in responding to an emergency. Also, in section XV (80 FR 57985), the Agency explored with stakeholders the feasibility of using electronic tools to streamline hazardous waste reporting and recordkeeping requirements.
In broad terms, and as discussed in preamble to the proposed rule, the use of electronic tools may be able to help hazardous waste generators improve and maintain compliance with the RCRA regulations, thereby reducing violations and increasing environmental benefits. Similarly, the use of electronic tools may reduce the costs to EPA, the states and regulated community for records required to be kept on file, or documents required to be reported that currently are submitted on paper.
From an efficiency standpoint, when information is submitted to EPA or the states on paper, this requires government staff or contractors to manually enter the data into federal and state data systems. These processes can be time-consuming, leading sometimes to important information going unnoticed, potential errors introduced through manual data entry requiring time-consuming correction processes by both regulated entities and the government. As an example, when the Toxics Release inventory switched from paper reporting to e-reporting, costs of managing the data went down by 99 percent and accuracy of submissions also was increased. Better use of information technology may be an important step to improving program efficiency, and as a result, program effectiveness as well. However, at this time, the Agency is not finalizing any electronic tools, but will continue to evaluate the comments received and explore the feasibility in the future.
Many commenters expressed concerns about the feasibility of developing a waste determination decision tool. Three related areas of concern frequently stood out in their comments. First, developing a decision tool with some measure of reliability would involve a complex undertaking. To be effective and helpful, the decision tool would need to account of all of the different factors associated with generating a waste, including industrial sectors, materials of production, chemical processes, and more. Incorporating these many factors into a reliable decision tool may not be feasible. Second, because of the complexity and time involved, development costs would be expensive, and, as several commenters mentioned, costs to maintain the decision tool would be expensive as well. As expressed by at least one commenter, if there were a viable market for such a tool, the private sector would have stepped in by now and developed it. Hence, the viability of such a tool being developed by the private sector seems remote. Third, if a tool was developed, and if a generator used the tool as the basis of its waste determination and it
However, others did see merit in such a tool, if carefully scoped out and developed. More than one commenter suggested that EPA consider developing a decision tool that focused on common or “simple” waste streams that could help VSQGs and SQGs in making waste determinations.
In line with this thought, one commenter recommended that the decision tool include `filtering' questions such as “Does the waste vary per batch? Is the waste associated with a particular type of manufacturing? Do you know what is in the waste?” Depending on the answers, the generator could proceed or stop since the decision tool would not be useful. One commenter went even further by describing an analytical approach by having the tool first determine if the waste is listed or characteristically hazardous, and then determine if it is eligible for one of the exemptions identified in the regulations. By performing the determination this way, the generator would be aware that the waste could potentially be hazardous if it is managed in a way that does not qualify it for an exemption. This commenter also suggested that the tool should provide the user with some sort of output that documents the characterization process, including the generator's answers to the key questions that produced the end result. That way inspectors and others attempting to verify the determination would be able to clearly see the basis for it. Finally, more than one commenter suggested EPA focus on the generic process of making a hazardous waste determination rather than a waste-specific approach.
Interestingly, most commenters did not respond directly to the request for comment concerning the viability of developing an emergency response executive summary app. For those commenters that did respond, comments received were mixed with some favoring development and others opposed either because such tools already exist or are under development, or because they do not see the need. For example, one commenter mentioned that their fire departments were already using CAMEO (Computer-Aided Management of Emergency Operations) in such a way that some form of integration between the existing CAMEO interface and the RCRA contingency planning information would make the most practical sense.
However, several commenters did see the need for electronic submittal of contingency plans to make them more accessible and useful, although one commenter pointed out that electronic submittal could prove problematic during an emergency when power and communications may be lost or disrupted.
Commenters were generally supportive of EPA pursuing the development of electronic recordkeeping and reporting tools to improve compliance, but in some cases, not mandating their use. One commenter, a state, supports the use of electronic tools for managing and reporting environmental data, an example being the submittal of groundwater monitoring data by municipal solid waste landfill facilities. Conversely, another state commenter did not support the development of electronic tools that require additional submittals by the regulated community, such as submittal of training or inspection records. Another state commenter encouraged the use of any electronic tools (“e-tools”) for notices or reporting required by regulations that would result in a reduction of manual data entry by states.
A review and analysis of comments regarding the feasibility of using electronic tools to support increases in RCRA program efficiency and effectiveness suggest commenters generally support use of electronic tools that reduce costs, have wide applicability, and improve program effectiveness. Where those criteria cannot be met, support usually was not forthcoming. Hence, many of the commenters did not see the cost-effectiveness of developing a waste determination decision tool unless properly scoped out to address common or simple wastes where the costs of development could be manageable—also realizing that using any potential tool developed would be a guide to assist generators in making a waste determination and not a definitive decision tool that guaranteed an accurate answer.
As many know, the Agency has already developed an electronic tool to enter site identification information on EPA Form 8700–12 as well as biennial report information on EPA Form 8700–13 A/B. Similarly, the Agency is in the process of developing e-Manifest to increase the efficiency and effectiveness of hazardous waste shipments. Based on comments, the Agency will continue to review existing RCRA reporting and recordkeeping regulatory requirements to identify cost-effective areas of opportunity to either use electronic tools or allow for submittal of information, such as RCRA contingency plans.
Persons that generate hazardous waste must comply with all the applicable independent requirements of the RCRA hazardous waste regulations, unless they obtain a conditional exemption from those requirements, provided by § 262.14, or by § 262.15, 262.16, or 262.17, or by § 262.70. Each generator category's independent requirements are listed in § 262.10 of this final rule. If a person violates independent requirements, EPA may bring an enforcement action under section 3008 of RCRA for violations of the independent requirements. Where a generator does not comply with conditions for an exemption and is therefore no longer exempt, the enforcement action will allege violations of those requirements for hazardous waste storage facilities from which the generator was attempting to remain exempt. States may choose to enforce against violations of state hazardous waste requirements under state authorities.
As with any violation, EPA and authorized states have numerous enforcement mechanisms available that range in severity. These include notices of violation, orders for compliance, orders for operations to cease, or assessment of penalties as appropriate. In addition, EPA and authorized states have flexibility in applying these mechanisms to the various responsible parties as appropriate to the specific circumstances. This rule does not affect the availability of any of these mechanisms, or EPA's or states' choice as to which type of enforcement approach to pursue against violators. The rule does distinguish between independent requirements and conditions from exemption in the generator regulations: It makes clear that a generator's violation of a condition of exemption results in the generator losing that exemption, resulting in a violation of the hazardous waste storage requirement from which the generator was seeking an exemption.
Under section 3006 of RCRA, EPA may authorize states to administer the RCRA Subtitle C hazardous waste program. Following authorization, the authorized state program operates in lieu of the federal regulations. EPA retains authority to enforce the authorized state Subtitle C program, although authorized states have primary enforcement authority. EPA also retains its authority under RCRA sections 3007, 3008, 3013, and 7003. The standards and requirements for state authorization are found at 40 CFR part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a state with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that state. EPA did not issue permits for any facilities in that state, since the state was now authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new requirements did not take effect in an authorized state until the state adopted the equivalent state requirements.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. While states must still adopt HSWA-related provisions as state law to retain authorization, EPA implements the HSWA provisions in authorized states, including the issuance of any permits pertaining to HSWA requirements, until the state is granted authorization to do so.
Authorized states are required to modify their programs only when EPA promulgates federal requirements that are more stringent or broader in scope than existing federal requirements.
This document finalizes regulations that amend certain sections of the hazardous waste generator regulations in 40 CFR parts 260 through 265, 268, 270, 273, and 279. These regulations were promulgated under the authority of sections 2002, 3001, 3002, 3003, 3004, 3007, and 3010 of RCRA). These changes are promulgated under non-HSWA authority.
Thus, the standards will be applicable on the effective date only in those states that do not have final authorization of their base RCRA programs. Moreover, authorized states are required to modify their programs only when EPA promulgates federal regulations that are more stringent or broader in scope than the authorized state regulations. For those changes that are less stringent, states are not required to modify their programs.
Several of the revisions to the hazardous waste generator regulations are more stringent than those promulgated earlier. These include the following: (1) Requiring SQGs, LQGs and transfer facilities to better define the risks of hazardous wastes accumulated in tanks, containers, drip pads, and containment buildings, as well as when hazardous waste is accumulated in satellite accumulation areas (section IX.E. of this preamble); (2) requiring LQGs to notify EPA or their authorized state when they plan to close their facilities (section IX.I of this preamble); (3) requiring SQGs to re-notify every four years (section IX.L of this preamble); (4) requiring LQGs to submit a biennial report that identifies all of the hazardous wastes generated in the calendar year, not just for the months the facility was an LQG (sections IX.N of this preamble); (5) requiring LQGs updating their contingency plans to prepare a quick reference guide for their contingency plans to assist responders in an emergency (section XI of this preamble); and (6) requiring facilities that recycle hazardous waste without storing the waste to prepare and submit a Biennial Report. Therefore, states that have adopted the base RCRA program will be required to modify their hazardous waste programs to incorporate equivalent provisions if these standards are finalized.
On the other hand, three of the final revisions are less stringent than the current hazardous waste regulations. These revisions include the following: (1) Allowing VSQGs to voluntarily send hazardous waste to LQGs under the control of the same person (section IX.K of this preamble); (2) allowing LQGs to apply for a waiver from their local fire department to accumulate ignitable and reactive wastes within the 50 foot facility boundary (section IX.H of this preamble); and (3) allowing VSQGs and SQGs to voluntarily maintain their existing regulatory status if they have an episodic event that generates additional amounts of hazardous waste which would have resulted in them moving into a higher generator category for a short period of time, so long as they comply with specified conditions (section X of this preamble). Thus, authorized states may, but are not required to, adopt these changes.
This final rule also includes several revisions that are neither more nor less stringent, such as (1) reorganizing the hazardous waste generator regulations to make them more user-friendly (section VI of this preamble); (2) defining central accumulation area and the generator categories (section VII of this preamble); (3) mixing a non-hazardous waste with a hazardous waste (section IX.C of this preamble); (4) repeating the prohibition for generators from sending hazardous liquids to landfills (section IX.M of this preamble); (5) replacing the list of specific data elements with a requirement to complete and submit all data elements required in the Biennial Report form (section IX.N of this preamble); (6) deleting the performance track and laboratories XL regulations (section IX.P of this preamble); and (7) technical corrections and conforming changes to various parts of the RCRA regulations (section XII of this preamble). Thus, authorized states may, but are not required to, adopt these changes.
Additional information about these statutes and Executive Orders can be found at
This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. This action is a “significant regulatory action” in that it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Any changes made in response to OMB recommendations have been documented in the docket.
In addition, EPA prepared an analysis of the potential costs and benefits associated with this action. This
EPA estimates the future annualized cost to industry to comply with the requirements of this action at between $5.9 and $13.3 million at 7% discount rate. Similarly, the annualized cost savings or benefits for facilities opting to take advantage of two voluntary programs in the rule (
The information collection activities in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2513.02. 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.
This rule is necessary for EPA and authorized states to oversee the generation and management of hazardous waste. EPA is promulgating the establishment of these information collection requirements under the authority of RCRA Subtitle C. Several provisions in this rule will require respondents to either submit information to EPA or their authorized state, or maintain records at their facility. For example, generators will have to notify EPA or their authorized state they plan to take advantage of two voluntary provisions that will provide greater flexibility in how they manage they hazardous waste (
Similarly, SQGs will have to re-notify EPA or their authorized state every four years that they have not changed their regulatory category to support effective inspections and program management activities. New LQGs and LQGs that have to update their emergency response plan will be required to develop and submit a quick reference guide of their emergency response plan to their local emergency responders or, as appropriate, the Local Emergency Planning Committee to effectively assist these parties in responding to an emergency.
EPA and state agencies will use the collected information to ensure that hazardous wastes are managed in a cost-effective manner that minimizes risks to human health and the environment. Local emergency response organizations will also use the collected information to prepare contingency plans to reduce risks to emergency responders and bystanders. EPA does not expect confidentiality to be an issue in generators either providing information to EPA or an authorized state or in maintaining the necessary records required by the rule. The statutory authority to collect this information is found at RCRA 3002 (42 U.S.C. 6922) and RCRA 3003 (42 U.S.C. 6923).
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 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. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule.
The small entities directly regulated by this final rule include entities that generate hazardous waste across various industries, including, but not limited to, pesticide end-users and application services; industrial chemical manufacturers; wood preservation; pharmaceutical and other chemical and chemical product manufacturers; dry cleaners and industrial launderers; funeral services and crematories; photography; textile manufacturing; vehicle maintenance; metal manufacturing; construction; printing; professional cleaning services; hospitals; and wholesale paints and chemicals. The RIA estimated that the compliance costs of the final rule represent less than 1 percent of average annual revenues for small entities in the affected universe. The RIA used the Economic Census and Census of Agriculture data to calculate the average annual revenues of small entities in the affected universe. The average annualized costs of the rule are estimated to be between $112 and $209 on a per facility basis for small entities in the affected universe (using a 7 percent discount rate). At most, the RIA estimates the costs of the final rule represent between 0.08 and 0.15 percent of annual revenues for small entities in the affected universe. Therefore, we have concluded that this action is not expected to have a significant impact to a substantial number of small entities.
This action does not contain an unfunded mandate of $100 million as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. The RIA estimates that the state, local, and tribal government share of future average annualized direct costs for the final rule requirements to range between $0.2 million and $0.4 million per year (using a 7 percent discount rate). Thus, this final rule is not subject to the requirements of sections 202 or 205 of UMRA.
This final 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. The rulemaking finalizes clarifications and
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 may have tribal implications. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Under the RCRA statute, the federal government implements hazardous waste regulations directly in Indian Country. Thus, the final changes to the hazardous waste regulations would not impose any direct costs on tribal governments.
The EPA consulted with tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this regulation to permit them to have meaningful and timely input into its development. A summary of that consultation is provided in the docket for this action.
As required by section 7(a), the EPA's Tribal Consultation Official has certified that the requirements of the executive order have been met in a meaningful and timely manner. A copy of the certification is included in the docket for 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 Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The Agency does not believe that this action presents risks to the public. In fact, there are several components to this final rule that modify the existing hazardous waste generator regulations to enhance environmental protection in the local community, which includes protection of children. Examples include (1) requiring LQGs and SQGs to provide more detailed marking and labeling information for containers, tanks, drip pads, and containment buildings accumulating hazardous wastes; (2) requiring LQGs to notify EPA or an authorized state when they plan to close either a hazardous waste accumulation unit or their site; (3) requiring LQGs and SQGs to re-notify EPA or the authorized state on a periodic basis of their hazardous waste generator activities; and (4) improving emergency preparedness and response regulations on the part of SQGs and LQGs.
This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This final rule does not involve the supply, distribution, or use of energy.
This rulemaking does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environment effects on minority, low-income and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The final rule aims to improve human health and environmental protection in a variety of ways. For example, there are several components to this final rule that modify the existing hazardous waste generator regulations to assist generators in understanding and facilitating improved compliance with the hazardous waste regulations. Examples include clarifying regulations regarding the mixing of non-hazardous waste with a hazardous waste by a generator, and better explaining the process by which generators determine under what level of regulation that they must manage their hazardous waste (
Still other components of this final rule enhance protection of the local community, and therefore foster improved human health and environmental protection, including for minority and low-income populations. These components include, for example, (1) requiring LQGs and SQGs to provide more comprehensive marking and labeling information for containers, tanks, drip pads, and containment buildings accumulating hazardous wastes; (2) requiring LQGs to notify EPA or an authorized state when they plan to close either a hazardous waste unit or their site; (3) requiring LQGs and SQGs to re-notify EPA or the authorized state on a periodic basis of their hazardous waste generator activities; and (4) improving emergency preparedness and response regulations on the part of SQGs and LQGs.
Furthermore, EPA is allowing VSQGs to ship their hazardous waste to an LQG under the control of the same person. As described in section IX.K of the preamble, this may increase environmental protection in the local community because hazardous waste generated by VSQGs would be subject to more stringent requirements upon receipt by the LQG, including ultimate management by a RCRA permitted TSDF (as opposed to being managed possibly in a municipal solid waste landfill). Although this change could result in an increase in traffic for certain communities, EPA believes the increase would not be significant given that VSQGs currently may send their hazardous waste to a number of destinations, including municipal and non-municipal solid waste management facilities.
Last, EPA is finalizing alternative standards for VSQGs and SQGs that would allow these entities to maintain their generator category if they generate hazardous waste during an episodic event. Although these generators will be allowed to temporarily manage a greater amount of hazardous waste than their current generator category allows, EPA is finalizing conditions under which the hazardous waste generated from an episodic event must be managed in order to maintain protection of human health and the environment. Therefore, EPA does not anticipate disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations from these alternative standards.
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
Environmental protection, Waste treatment and disposal.
Environmental protection, Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Incorporation by reference, Reporting and recordkeeping requirements.
Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.
Environmental protection, Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Labeling, Packaging and containers, Reporting and recordkeeping requirements.
Environmental protection, Hazardous materials transportation, Hazardous waste, Reporting and recordkeeping requirements.
Environmental protection, Air pollution control, Hazardous waste, Insurance, Packaging and containers, Reporting and recordkeeping requirements, Security measures, Surety bonds.
Environmental protection, Air pollution control, Hazardous waste, Incorporation by reference, Insurance, Packaging and containers, Reporting and recordkeeping requirements, Security measures, Surety bonds, Water supply.
Environmental protection, Energy, Hazardous waste, Recycling, Reporting and recordkeeping requirements.
Environmental protection, Hazardous waste, Reporting and recordkeeping requirements.
Environmental protection, Hazardous waste, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Reporting and recordkeeping requirements, Water pollution control, Water supply.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous materials transportation, Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Water pollution control, Water supply.
Environmental protection, Hazardous materials transportation, Hazardous waste.
Environmental protection, Petroleum, Recycling, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 6907(a)(3), 6912(a)(1), 6944(a), and 6949a(c); 33 U.S.C. 1345(d) and (e).
(a) Unless otherwise provided, the criteria in §§ 257.1 through 257.4 are adopted for determining which solid waste disposal facilities and practices pose a reasonable probability of adverse effects on health or the environment under sections 1008(a)(3) and 4004(a) of the Resource Conservation and Recovery Act (The Act). Unless otherwise provided, the criteria in §§ 257.5 through 257.30 are adopted for purposes of ensuring that non-municipal non-hazardous waste disposal units that receive very small quantity generator (VSQG) waste do not present risks to human health and the environment taking into account the practicable capability of such units in accordance with section 4010(c) of the Act. Unless otherwise provided, the criteria in §§ 257.50 through 257.107 are adopted for determining which CCR landfills and CCR surface impoundments pose a reasonable probability of adverse effects on health or the environment under sections 1008(a)(3) and 4004(a) of the Act.
(a)
(2) Any non-municipal non-hazardous waste disposal unit that is receiving VSQG hazardous waste as of January 1, 1998, must be in compliance with the requirements in §§ 257.7 through 257.13 and § 257.30 by January 1, 1998, and the requirements in §§ 257.21 through 257.28 by July 1, 1998.
(3) Any non-municipal non-hazardous waste disposal unit that does not meet the requirements in this section may not receive VSQG wastes.
(4) Any non-municipal non-hazardous waste disposal unit that is not receiving VSQG Hazardous waste as of January 1, 1998, continues to be subject to the requirements in §§ 257.1 through 257.4.
(5) Any non-municipal non-hazardous waste disposal unit that first receives VSQG hazardous waste after January 1, 1998, must be in compliance with §§ 257.7 through 257.30 prior to the receipt of VSQG hazardous waste.
(b) * * *
(h) Directors of approved States can use the flexibility in paragraph (i) of this section for any non-municipal non-hazardous waste disposal unit that receives VSQG waste, if the non-municipal non-hazardous waste disposal unit:
33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907, 6912(a), 6944, 6945(c) and 6949a(c), 6981(a).
(b) For purposes of this section,
42 U.S.C. 6905, 6912(a), 6921–6927, 6930, 6934, 6935, 6937, 6938, 6939, and 6974.
As used in parts 260 through 273 of this chapter:
The revisions and additions read as follows:
(1) Greater than or equal to 1,000 kilograms (2200 lbs) of non-acute hazardous waste; or
(2) Greater than 1 kilogram (2.2 lbs) of acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter; or
(3) Greater than 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter.
(1) Greater than 100 kilograms (220 lbs) but less than 1,000 kilograms (2200 lbs) of non-acute hazardous waste; and
(2) Less than or equal to 1 kilogram (2.2 lbs) of acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter; and
(3) Less than or equal to 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter.
(1) 100 kilograms (220 lbs) of non-acute hazardous waste; and
(2) 1 kilogram (2.2 lbs) of acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter; and
(3) 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter.
(d) * * *
(1) “Flammable and Combustible Liquids Code” (NFPA 30), 1977 or 1981, IBR approved for §§ 262.16(b), 264.198(b), 265.198(b), 267.202(b).
42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 6938.
(a) * * *
(1) Subpart A defines the terms “solid waste” and “hazardous waste”, identifies those wastes which are excluded from regulation under parts 262 through 266, 268 and 270 of this chapter and establishes special management requirements for hazardous waste produced by very small quantity generators and hazardous waste which is recycled.
(c) * * *
(6) “Scrap metal” is bits and pieces of metal parts (
(a) * * *
(7) Spent sulfuric acid used to produce virgin sulfuric acid provided it is not accumulated speculatively as defined in § 261.1(c) of this chapter.
(c) * * *
(2) * * *
(iv) Section 265.75 of this chapter (biennial reporting requirements).
(e) The commercial chemical products, manufacturing chemical intermediates or off-specification commercial chemical products or manufacturing chemical intermediates referred to in paragraphs (a) through (d) of this section, are identified as acute hazardous wastes (H).
(f) The commercial chemical products, manufacturing chemical intermediates, or off-specification commercial chemical products referred to in paragraphs (a) through (d) of this section, are identified as toxic wastes (T) unless otherwise designated.
(g)
42 U.S.C. 6906, 6912, 6922–6925, 6937, and 6938.
As used in this part:
The revisions read as follows:
(a) The regulations in this part establish standards for generators of hazardous waste as defined by 40 CFR 260.10.
(1) A person who generates a hazardous waste as defined by 40 CFR part 261 is subject to all the applicable independent requirements in the subparts and sections listed below:
(i)
(B) Section 262.13 Generator category determination.
(ii)
(B) Section 262.13 Generator category determination;
(C) Section 262.18 EPA identification numbers and re-notification for small quantity generators and large quantity generators;
(D) Part 262 subpart B—Manifest requirements applicable to small and large quantity generators;
(E) Part 262 subpart C—Pre-transport requirements applicable to small and large quantity generators;
(F) Section 262.40 Recordkeeping;
(G) Section 262.44 Recordkeeping for small quantity generators; and
(H) Part 262 subpart H—Transboundary movements of hazardous waste for recovery or disposal.
(iii)
(B) Section 262.13 Generator category determination;
(C) Section 262.18 EPA identification numbers and re-notification for small quantity generators and large quantity generators;
(D) Part 262 subpart B—Manifest requirements applicable to small and large quantity generators;
(E) Part 262 subpart C—Pre-transport requirements applicable to small and large quantity generators;
(F) Part 262 subpart D—Recordkeeping and reporting applicable to small and large quantity generators, except § 262.44; and
(G) Part 262 subpart H—Transboundary movements of hazardous waste for recovery or disposal.
(2) A generator that accumulates hazardous waste on site is a person that stores hazardous waste; such generator is subject to the applicable requirements of parts 124, 264 through 267, and 270 of this chapter and section 3010 of RCRA, unless it is one of the following:
(i) A very small quantity generator that meets the conditions for exemption in § 262.14;
(ii) A small quantity generator that meets the conditions for exemption in §§ 262.15 and 262.16; or
(iii) A large quantity generator that meets the conditions for exemption in §§ 262.15 and 262.17.
(3) A generator shall not transport, offer its hazardous waste for transport, or otherwise cause its hazardous waste to be sent to a facility that is not a designated facility, as defined in § 260.10 of this chapter, or not otherwise authorized to receive the generator's hazardous waste.
(b)
(d) Any person who exports or imports hazardous wastes must comply with § 262.18 and subpart H of this part.
(g)(1) A generator's violation of an independent requirement is subject to penalty and injunctive relief under section 3008 of RCRA.
(2) A generator's noncompliance with a condition for exemption in this part is not subject to penalty or injunctive relief under section 3008 of RCRA as a violation of a 40 CFR part 262 condition for exemption. Noncompliance by any generator with an applicable condition for exemption from storage permit and operations requirements means that the facility is a storage facility operating without an exemption from the permit, interim status, and operations requirements in 40 CFR parts 124, 264 through 267, and 270 of this chapter, and the notification requirements of section 3010 of RCRA. Without an exemption, any violations of such storage requirements are subject to penalty and injunctive relief under section 3008 of RCRA.
(l) The laboratories owned by an eligible academic entity that chooses to be subject to the requirements of subpart K of this part are not subject to (for purposes of this paragraph, the terms “laboratory” and “eligible academic entity” shall have the meaning as defined in § 262.200):
(1) The independent requirements of § 262.11 or the regulations in § 262.15 for large quantity generators and small quantity generators, except as provided in subpart K, and
(2) The conditions of § 262.14, for very small quantity generators, except as provided in subpart K.
A person who generates a solid waste, as defined in 40 CFR 261.2, must make an accurate determination as to whether that waste is a hazardous waste in order to ensure wastes are properly managed according to applicable RCRA regulations. A hazardous waste determination is made using the following steps:
(a) The hazardous waste determination for each solid waste must be made at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste such that the RCRA classification of the waste may change.
(b) A person must determine whether the solid waste is excluded from regulation under 40 CFR 261.4.
(c) If the waste is not excluded under 40 CFR 261.4, the person must then use knowledge of the waste to determine whether the waste meets any of the listing descriptions under subpart D of 40 CFR part 261. Acceptable knowledge that may be used in making an accurate determination as to whether the waste is listed may include waste origin, composition, the process producing the waste, feedstock, and other reliable and relevant information. If the waste is listed, the person may file a delisting petition under 40 CFR 260.20 and 260.22 to demonstrate to the Administrator that the waste from this particular site or operation is not a hazardous waste.
(d) The person then must also determine whether the waste exhibits one or more hazardous characteristics as
(1) The person must apply knowledge of the hazard characteristic of the waste in light of the materials or the processes used to generate the waste. Acceptable knowledge may include process knowledge (
(2) When available knowledge is inadequate to make an accurate determination, the person must test the waste according to the applicable methods set forth in subpart C of 40 CFR part 261 or according to an equivalent method approved by the Administrator under 40 CFR 260.21 and in accordance with the following:
(i) Persons testing their waste must obtain a representative sample of the waste for the testing, as defined at 40 CFR 260.10.
(ii) Where a test method is specified in subpart C of 40 CFR part 261, the results of the regulatory test, when properly performed, are definitive for determining the regulatory status of the waste.
(e) If the waste is determined to be hazardous, the generator must refer to parts 261, 264, 265, 266, 267, 268, and 273 of this chapter for other possible exclusions or restrictions pertaining to management of the specific waste.
(f)
(g)
A generator must determine its generator category. A generator's category is based on the amount of hazardous waste generated each month and may change from month to month. This section sets forth procedures to determine whether a generator is a very small quantity generator, a small quantity generator, or a large quantity generator for a particular month, as defined in § 260.10 of this chapter.
(a)
(1) Counting the total amount of hazardous waste generated in the calendar month;
(2) Subtracting from the total any amounts of waste exempt from counting as described in paragraphs (c) and (d) of this section; and
(3) Determining the resulting generator category for the hazardous waste generated using Table 1 of this section.
(b)
(1) Counting separately the total amount of acute hazardous waste and the total amount of non-acute hazardous waste generated in the calendar month;
(2) Subtracting from each total any amounts of waste exempt from counting as described in paragraphs (c) and (d) of this section;
(3) Determining separately the resulting generator categories for the quantities of acute and non-acute hazardous waste generated using Table 1 of this section; and
(4) Comparing the resulting generator categories from paragraph (b)(3) of this section and applying the more stringent generator category to the accumulation and management of both non-acute hazardous waste and acute hazardous waste generated for that month.
(c) When making the monthly quantity-based determinations required by this part, the generator must include all hazardous waste that it generates, except hazardous waste that:
(1) Is exempt from regulation under 40 CFR 261.4(c) through (f), 261.6(a)(3), 261.7(a)(1), or 261.8;
(2) Is managed immediately upon generation only in on-site elementary neutralization units, wastewater treatment units, or totally enclosed treatment facilities as defined in 40 CFR 260.10;
(3) Is recycled, without prior storage or accumulation, only in an on-site process subject to regulation under 40 CFR 261.6(c)(2);
(4) Is used oil managed under the requirements of 40 CFR 261.6(a)(4) and 40 CFR part 279;
(5) Is spent lead-acid batteries managed under the requirements of 40 CFR part 266 subpart G;
(6) Is universal waste managed under 40 CFR 261.9 and 40 CFR part 273;
(7) Is a hazardous waste that is an unused commercial chemical product (listed in 40 CFR part 261 subpart D or exhibiting one or more characteristics in 40 CFR part 261 subpart C) that is generated solely as a result of a laboratory clean-out conducted at an eligible academic entity pursuant to § 262.213. For purposes of this provision, the term eligible academic entity shall have the meaning as defined in § 262.200; or
(8) Is managed as part of an episodic event in compliance with the conditions of subpart L of this part.
(d) In determining the quantity of hazardous waste generated in a calendar month, a generator need not include:
(1) Hazardous waste when it is removed from on-site accumulation, so long as the hazardous waste was previously counted once;
(2) Hazardous waste generated by on-site treatment (including reclamation) of the generator's hazardous waste, so long as the hazardous waste that is treated was previously counted once; and
(3) Hazardous waste spent materials that are generated, reclaimed, and subsequently reused on site, so long as such spent materials have been previously counted once.
(e) Based on the generator category as determined under this section, the generator must meet the applicable independent requirements listed in § 262.10. A generator's category also determines which of the provisions of §§ 262.14, 262.15, 262.16 or 262.17 must be met to obtain an exemption from the storage facility permit, interim status, and operating requirements when accumulating hazardous waste.
(f)
(ii) If the resulting mixture exhibits a characteristic of hazardous waste, this resultant mixture is a newly-generated hazardous waste. The very small quantity generator must count both the resultant mixture amount plus the other hazardous waste generated in the calendar month to determine whether the total quantity exceeds the very small quantity generator calendar month quantity limits identified in the definition of generator categories found in § 260.10 of this chapter. If so, to remain exempt from the permitting, interim status, and operating standards, the very small quantity generator must meet the conditions for exemption applicable to either a small quantity generator or a large quantity generator. The very small quantity generator must also comply with the applicable independent requirements for either a small quantity generator or a large quantity generator.
(iii) If a very small quantity generator's wastes are mixed with used oil, the mixture is subject to 40 CFR part 279. Any material produced from such a mixture by processing, blending, or other treatment is also regulated under 40 CFR part 279.
(2)
(ii) If the resulting mixture is found to be a hazardous waste, this resultant mixture is a newly-generated hazardous waste. A small quantity generator must count both the resultant mixture amount plus the other hazardous waste generated in the calendar month to determine whether the total quantity exceeds the small quantity generator calendar monthly quantity limits identified in the definition of generator categories found in § 260.10 of this chapter. If so, to remain exempt from the permitting, interim status, and operating standards, the small quantity generator must meet the conditions for exemption applicable to a large quantity generator. The small quantity generator must also comply with the applicable independent requirements for a large quantity generator.
(a) Provided that the very small quantity generator meets all the conditions for exemption listed in this section, hazardous waste generated by the very small quantity generator is not subject to the requirements of parts 124, 262 (except §§ 262.10–262.14) through 268, and 270 of this chapter, and the notification requirements of section 3010 of RCRA and the very small quantity generator may accumulate hazardous waste on site without
(1) In a calendar month the very small quantity generator generates less than or equal to the amounts specified in the definition of “very small quantity generator” in § 260.10 of this chapter;
(2) The very small quantity generator complies with § 262.11(a) through (d);
(3) If the very small quantity generator accumulates at any time greater than 1 kilogram (2.2 lbs) of acute hazardous waste or 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in §§ 261.31 or 261.33(e) of this chapter, all quantities of that acute hazardous waste are subject to the following additional conditions for exemption:
(i) Such waste is held on site for no more than 90 days beginning on the date when the accumulated wastes exceed the amounts provided above; and
(ii) The conditions for exemption in § 262.17(a) through (g).
(4) If the very small quantity generator accumulates at any time 1,000 kilograms (2,200 lbs) or greater of non-acute hazardous waste, all quantities of that hazardous waste are subject to the following additional conditions for exemption:
(i) Such waste is held on site for no more than 180 days, or 270 days, if applicable, beginning on the date when the accumulated waste exceed the amounts provided above;
(ii) The quantity of waste accumulated on site never exceeds 6,000 kilograms (13,200 lbs); and
(iii) The conditions for exemption in § 262.16(b)(2) through (f).
(5) A very small quantity generator that accumulates hazardous waste in amounts less than or equal to the limits in paragraphs (a)(3) and (4) of this section must either treat or dispose of its hazardous waste in an on-site facility or ensure delivery to an off-site treatment, storage, or disposal facility, either of which, if located in the U.S., is:
(i) Permitted under part 270 of this chapter;
(ii) In interim status under parts 265 and 270 of this chapter;
(iii) Authorized to manage hazardous waste by a state with a hazardous waste management program approved under part 271 of this chapter;
(iv) Permitted, licensed, or registered by a state to manage municipal solid waste and, if managed in a municipal solid waste landfill is subject to part 258 of this chapter;
(v) Permitted, licensed, or registered by a state to manage non-municipal non-hazardous waste and, if managed in a non-municipal non-hazardous waste disposal unit, is subject to the requirements in §§ 257.5 through 257.30 of this chapter;
(vi) A facility which:
(A) Beneficially uses or reuses, or legitimately recycles or reclaims its waste; or
(B) Treats its waste prior to beneficial use or reuse, or legitimate recycling or reclamation;
(vii) For universal waste managed under part 273 of this chapter, a universal waste handler or destination facility subject to the requirements of part 273 of this chapter;
(viii) A large quantity generator under the control of the same person as the very small quantity generator, provided the following conditions are met:
(A) The very small quantity generator and the large quantity generator are under the control of the same person as defined in § 260.10 of this chapter. “Control,” for the purposes of this section, means the power to direct the policies of the generator, whether by the ownership of stock, voting rights, or otherwise, except that contractors who operate generator facilities on behalf of a different person as defined in § 260.10 of this chapter shall not be deemed to “control” such generators.
(B) The very small quantity generator marks its container(s) of hazardous waste with:
(
(
(b) The placement of bulk or non-containerized liquid hazardous waste or hazardous waste containing free liquids (whether or not sorbents have been added) in any landfill is prohibited.
(c) A very small quantity generator experiencing an episodic event may generate and accumulate hazardous waste in accordance with subpart L of this part in lieu of §§ 262.15, 262.16, and 262.17.
(a) A generator may accumulate as much as 55 gallons of non-acute hazardous waste and/or either one quart of liquid acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter or 1 kg (2.2 lbs) of solid acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter in containers at or near any point of generation where wastes initially accumulate which is under the control of the operator of the process generating the waste, without a permit or interim status and without complying with the requirements of parts 124, 264 through 267, and 270 of this chapter, provided that all of the conditions for exemption in this section are met. A generator may comply with the conditions for exemption in this section instead of complying with the conditions for exemption in § 262.16(b) or § 262.17(a), except as required in § 262.15(a)(7) and (8). The conditions for exemption for satellite accumulation are:
(1) If a container holding hazardous waste is not in good condition, or if it begins to leak, the generator must immediately transfer the hazardous waste from this container to a container that is in good condition and does not leak, or immediately transfer and manage the waste in a central accumulation area operated in compliance with § 262.16(b) or § 262.17(a).
(2) The generator must use a container made of or lined with materials that will not react with, and are otherwise compatible with, the hazardous waste to be accumulated, so that the ability of the container to contain the waste is not impaired.
(3) Special standards for incompatible wastes.
(i) Incompatible wastes, or incompatible wastes and materials, (see appendix V of part 265 for examples) must not be placed in the same container, unless § 265.17(b) of this chapter is complied with.
(ii) Hazardous waste must not be placed in an unwashed container that previously held an incompatible waste or material (see appendix V of part 265 for examples), unless § 265.17(b) of this chapter is complied with.
(iii) A container holding a hazardous waste that is incompatible with any waste or other materials accumulated nearby in other containers must be separated from the other materials or protected from them by any practical means.
(4) A container holding hazardous waste must be closed at all times during accumulation, except:
(i) When adding, removing, or consolidating waste; or
(ii) When temporary venting of a container is necessary
(A) For the proper operation of equipment, or
(B) To prevent dangerous situations, such as build-up of extreme pressure.
(5) A generator must mark or label its container with the following:
(i) The words “Hazardous Waste” and
(ii) An indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (
(6) A generator who accumulates either acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter or non-acute hazardous waste in excess of the amounts listed in paragraph (a) of this section at or near any point of generation must do the following:
(i) Comply within three consecutive calendar days with the applicable central accumulation area regulations in § 262.16(b) or § 262.17(a), or
(ii) Remove the excess from the satellite accumulation area within three consecutive calendar days to either:
(A) A central accumulation area operated in accordance with the applicable regulations in § 262.16(b) or § 262.17(a);
(B) An on-site interim status or permitted treatment, storage, or disposal facility, or
(C) An off-site designated facility; and
(iii) During the three-consecutive-calendar-day period the generator must continue to comply with paragraphs (a)(1) through (5) of this section. The generator must mark or label the container(s) holding the excess accumulation of hazardous waste with the date the excess amount began accumulating.
(7) All satellite accumulation areas operated by a small quantity generator must meet the preparedness and prevention regulations of § 262.16(b)(8) and emergency procedures at § 262.16(b)(9).
(8) All satellite accumulation areas operated by a large quantity generator must meet the Preparedness, Prevention and Emergency Procedures in subpart M of this part.
(b) [Reserved]
A small quantity generator may accumulate hazardous waste on site without a permit or interim status, and without complying with the requirements of parts 124, 264 through 267, and 270 of this chapter, or the notification requirements of section 3010 of RCRA, provided that all the conditions for exemption listed in this section are met:
(a)
(b)
(1)
(2)
(ii)
(iii)
(B) A container holding hazardous waste must not be opened, handled, or accumulated in a manner that may rupture the container or cause it to leak.
(iv)
(v)
(B) Hazardous waste must not be placed in an unwashed container that previously held an incompatible waste or material (see appendix V of part 265 for examples), unless § 265.17(b) of this chapter is complied with.
(C) A container accumulating hazardous waste that is incompatible with any waste or other materials accumulated or stored nearby in other containers, piles, open tanks, or surface impoundments must be separated from the other materials or protected from them by means of a dike, berm, wall, or other device.
(3)
(i) [Reserved]
(ii) A small quantity generator of hazardous waste must comply with the following general operating conditions:
(A) Treatment or accumulation of hazardous waste in tanks must comply with § 265.17(b) of this chapter.
(B) Hazardous wastes or treatment reagents must not be placed in a tank if they could cause the tank or its inner liner to rupture, leak, corrode, or otherwise fail before the end of its intended life.
(C) Uncovered tanks must be operated to ensure at least 60 centimeters (2 feet) of freeboard, unless the tank is equipped with a containment structure (
(D) Where hazardous waste is continuously fed into a tank, the tank must be equipped with a means to stop this inflow (
(iii) Except as noted in paragraph (b)(3)(iv) of this section, a small quantity generator that accumulates hazardous waste in tanks must inspect, where present:
(A) Discharge control equipment (
(B) Data gathered from monitoring equipment (
(C) The level of waste in the tank at least once each operating day to ensure compliance with paragraph (b)(3)(ii)(C) of this section;
(D) The construction materials of the tank at least weekly to detect corrosion or leaking of fixtures or seams; and
(E) The construction materials of, and the area immediately surrounding, discharge confinement structures (
(iv) A small quantity generator accumulating hazardous waste in tanks or tank systems that have full secondary containment and that either use leak detection equipment to alert personnel to leaks, or implement established workplace practices to ensure leaks are promptly identified, must inspect at least weekly, where applicable, the areas identified in paragraphs (b)(3)(iii)(A) through (E) of this section. Use of the alternate inspection schedule must be documented in the generator's operating record. This documentation must include a description of the established workplace practices at the generator.
(v) [Reserved]
(vi) A small quantity generator accumulating hazardous waste in tanks must, upon closure of the facility, remove all hazardous waste from tanks, discharge control equipment, and discharge confinement structures. At closure, as throughout the operating period, unless the small quantity generator can demonstrate, in accordance with § 261.3(c) or (d) of this chapter, that any solid waste removed from its tank is not a hazardous waste, then it must manage such waste in accordance with all applicable provisions of parts 262, 263, 265 and 268 of this chapter.
(vii) A small quantity generator must comply with the following special conditions for accumulation of ignitable or reactive waste:
(A) Ignitable or reactive waste must not be placed in a tank, unless:
(
(
(
(B) A small quantity generator which treats or accumulates ignitable or reactive waste in covered tanks must comply with the buffer zone requirements for tanks contained in Tables 2–1 through 2–6 of the National Fire Protection Association's “Flammable and Combustible Liquids Code” (1977 or 1981) (incorporated by reference, see § 260.11).
(C) A small quantity generator must comply with the following special conditions for incompatible wastes:
(
(
(4)
(i) Subpart W of 40 CFR part 265 (except § 265.445 (c));
(ii) The small quantity generator must remove all wastes from the drip pad at least once every 90 days. Any hazardous wastes that are removed from the drip pad at least once every 90 days are then subject to the 180-day accumulation limit in paragraph (b) of this section and § 262.15 if hazardous wastes are being managed in satellite accumulation areas prior to being moved to the central accumulation area; and
(iii) The small quantity generator must maintain on site at the facility the following records readily available for inspection:
(A) A written description of procedures that are followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and
(B) Documentation of each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal.
(5)
(i) The professional engineer certification that the building complies with the design standards specified in 40 CFR 265.1101. This certification must be in the generator's files prior to operation of the unit; and
(ii) The following records by use of inventory logs, monitoring equipment, or any other effective means:
(A) A written description of procedures to ensure that each waste volume remains in the unit for no more than 90 days, a written description of the waste generation and management practices for the facility showing that the generator is consistent with maintaining the 90 day limit, and documentation that the procedures are complied with; or
(B) Documentation that the unit is emptied at least once every 90 days.
(C) Inventory logs or records with the above information must be maintained on site and readily available for inspection.
(6)
(A) The words “Hazardous Waste”;
(B) An indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (
(C) The date upon which each period of accumulation begins clearly visible for inspection on each container.
(ii)
(A) Mark or label its tanks with the words “Hazardous Waste”;
(B) Mark or label its tanks with an indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (
(C) Use inventory logs, monitoring equipment, or other records to demonstrate that hazardous waste has been emptied within 180 days of first entering the tank if using a batch process, or in the case of a tank with a continuous flow process, demonstrate that estimated volumes of hazardous waste entering the tank daily exit the tank within 180 days of first entering; and
(D) Keep inventory logs or records with the above information on site and readily available for inspection.
(7)
(8)
(ii)
(A) An internal communications or alarm system capable of providing immediate emergency instruction (voice or signal) to facility personnel;
(B) A device, such as a telephone (immediately available at the scene of operations) or a hand-held two-way radio, capable of summoning emergency assistance from local police departments, fire departments, or State or local emergency response teams;
(C) Portable fire extinguishers, fire control equipment (including special extinguishing equipment, such as that using foam, inert gas, or dry chemicals), spill control equipment, and decontamination equipment; and
(D) Water at adequate volume and pressure to supply water hose streams, or foam producing equipment, or automatic sprinklers, or water spray systems.
(iii)
(iv)
(B) In the event there is just one employee on the premises while the facility is operating, the employee must have immediate access (
(v)
(vi)
(
(
(
(B) A small quantity generator shall maintain records documenting the arrangements with the local fire department as well as any other organization necessary to respond to an emergency. This documentation must include documentation in the operating record that either confirms such arrangements actively exist or, in cases where no arrangements exist, confirms that attempts to make such arrangements were made.
(C) A facility possessing 24-hour response capabilities may seek a waiver from the authority having jurisdiction (AHJ) over the fire code within the facility's state or locality as far as needing to make arrangements with the local fire department as well as any other organization necessary to respond to an emergency, provided that the waiver is documented in the operating record.
(9)
(i) At all times there must be at least one employee either on the premises or on call (
(ii) The small quantity generator must post the following information next to telephones or in areas directly involved in the generation and accumulation of hazardous waste:
(A) The name and emergency telephone number of the emergency coordinator;
(B) Location of fire extinguishers and spill control material, and, if present, fire alarm; and
(C) The telephone number of the fire department, unless the facility has a direct alarm.
(iii) The small quantity generator must ensure that all employees are thoroughly familiar with proper waste handling and emergency procedures, relevant to their responsibilities during normal facility operations and emergencies;
(iv) The emergency coordinator or his designee must respond to any emergencies that arise. The applicable responses are as follows:
(A) In the event of a fire, call the fire department or attempt to extinguish it using a fire extinguisher;
(B) In the event of a spill, the small quantity generator is responsible for containing the flow of hazardous waste to the extent possible, and as soon as is practicable, cleaning up the hazardous waste and any contaminated materials or soil. Such containment and cleanup can be conducted either by the small quantity generator or by a contractor on behalf of the small quantity generator;
(C) In the event of a fire, explosion, or other release that could threaten human health outside the facility or when the small quantity generator has knowledge that a spill has reached surface water, the small quantity generator must immediately notify the National Response Center (using their 24-hour toll free number 800/424–8802). The report must include the following information:
(
(
(
(
(
(c)
(d)
(e)
(1) Sign Item 18c of the manifest, if the transporter returned the shipment using the original manifest; or
(2) Sign Item 20 of the manifest, if the transporter returned the shipment using a new manifest.
(f) A small quantity generator experiencing an episodic event may accumulate hazardous waste in accordance with subpart L of this part in lieu of § 262.17.
A large quantity generator may accumulate hazardous waste on site without a permit or interim status, and without complying with the requirements of parts 124, 264 through 267, and 270 of this chapter, or the notification requirements of section 3010 of RCRA, provided that all of the following conditions for exemption are met:
(a)
(1)
(i)
(ii)
(iii)
(iv)
(B) A container holding hazardous waste must not be opened, handled, or stored in a manner that may rupture the container or cause it to leak.
(v)
(vi)
(B) The large quantity generator must take precautions to prevent accidental ignition or reaction of ignitable or reactive waste. This waste must be separated and protected from sources of ignition or reaction including but not limited to the following: Open flames, smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electrical, or mechanical), spontaneous ignition (
(vii)
(B) Hazardous waste must not be placed in an unwashed container that previously held an incompatible waste or material (see appendix V of part 265 for examples), unless § 265.17(b) of this chapter is complied with.
(C) A container holding a hazardous waste that is incompatible with any waste or other materials accumulated or stored nearby in other containers, piles, open tanks, or surface impoundments must be separated from the other materials or protected from them by means of a dike, berm, wall, or other device.
(2)
(3)
(i) Subpart W of 40 CFR part 265;
(ii) The large quantity generator must remove all wastes from the drip pad at least once every 90 days. Any hazardous wastes that are removed from the drip pad are then subject to the 90-day accumulation limit in paragraph (a) of this section and § 262.15, if the hazardous wastes are being managed in satellite accumulation areas prior to being moved to a central accumulation area; and
(iii) The large quantity generator must maintain on site at the facility the following records readily available for inspection:
(A) A written description of procedures that are followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and
(B) Documentation of each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal.
(4)
(i) The professional engineer certification that the building complies with the design standards specified in 40 CFR 265.1101. This certification must be in the generator's files prior to operation of the unit; and
(ii) The following records by use of inventory logs, monitoring equipment, or any other effective means:
(A) A written description of procedures to ensure that each waste volume remains in the unit for no more than 90 days, a written description of the waste generation and management practices for the facility showing that the generator is consistent with respecting the 90 day limit, and documentation that the procedures are complied with; or
(B) Documentation that the unit is emptied at least once every 90 days.
(C) Inventory logs or records with the above information must be maintained on site and readily available for inspection.
(5)
(A) The words “Hazardous Waste”;
(B) An indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (
(C) The date upon which each period of accumulation begins clearly visible for inspection on each container.
(ii)
(A) Mark or label its tanks with the words “Hazardous Waste”;
(B) Mark or label its tanks with an indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (
(C) Use inventory logs, monitoring equipment or other records to demonstrate that hazardous waste has been emptied within 90 days of first entering the tank if using a batch process, or in the case of a tank with a continuous flow process, demonstrate that estimated volumes of hazardous waste entering the tank daily exit the tank within 90 days of first entering; and
(D) Keep inventory logs or records with the above information on site and readily available for inspection.
(6)
(7)
(B) This program must be directed by a person trained in hazardous waste management procedures, and must include instruction which teaches facility personnel hazardous waste management procedures (including contingency plan implementation) relevant to the positions in which they are employed.
(C) At a minimum, the training program must be designed to ensure that facility personnel are able to respond effectively to emergencies by familiarizing them with emergency procedures, emergency equipment, and emergency systems, including where applicable:
(
(
(
(
(
(
(D) For facility employees that receive emergency response training pursuant to Occupational Safety and Health Administration regulations 29 CFR 1910.120(p)(8) and 1910.120(q), the large quantity generator is not required to provide separate emergency response training pursuant to this section, provided that the overall facility training meets all the conditions of exemption in this section.
(ii) Facility personnel must successfully complete the program required in paragraph (a)(7)(i) of this section within six months after the date of their employment or assignment to the facility, or to a new position at the facility, whichever is later. Employees must not work in unsupervised positions until they have completed the training standards of paragraph (a)(7)(i) of this section.
(iii) Facility personnel must take part in an annual review of the initial training required in paragraph (a)(7)(i) of this section.
(iv) The large quantity generator must maintain the following documents and records at the facility:
(A) The job title for each position at the facility related to hazardous waste management, and the name of the employee filling each job;
(B) A written job description for each position listed under paragraph (a)(7)(iv)(A) of this section. This description may be consistent in its degree of specificity with descriptions for other similar positions in the same company location or bargaining unit, but must include the requisite skill, education, or other qualifications, and duties of facility personnel assigned to each position;
(C) A written description of the type and amount of both introductory and continuing training that will be given to each person filling a position listed under paragraph (a)(7)(iv)(A) of this section;
(D) Records that document that the training or job experience, required under paragraphs (a)(7)(i), (ii), and (iii) of this section, has been given to, and completed by, facility personnel.
(v) Training records on current personnel must be kept until closure of the facility. Training records on former employees must be kept for at least three years from the date the employee last worked at the facility. Personnel training records may accompany personnel transferred within the same company.
(8)
(i)
(A) Place a notice in the operating record within 30 days after closure identifying the location of the unit within the facility; or
(B) Meet the closure performance standards of paragraph (a)(8)(iii) of this section for container, tank, and containment building waste accumulation units or paragraph (a)(8)(iv) of this section for drip pads and notify EPA following the procedures in paragraph (a)(8)(ii)(B) of this section for the waste accumulation unit. If the waste accumulation unit is subsequently reopened, the generator may remove the notice from the operating record.
(ii)
(B) Notify EPA using form 8700–12 within 90 days after closing the facility that it has complied with the closure performance standards of paragraph (a)(8)(iii) or (iv) of this section. If the facility cannot meet the closure performance standards of paragraph (a)(8)(iii) or (iv) of this section, notify EPA using form 8700–12 that it will close as a landfill under § 265.310 of this chapter in the case of a container, tank or containment building unit(s), or for a facility with drip pads, notify using form 8700–12 that it will close under the standards of § 265.445(b).
(C) A large quantity generator may request additional time to clean close, but it must notify EPA using form 8700–12 within 75 days after the date provided in paragraph (a)(8)(ii)(A) of this section to request an extension and provide an explanation as to why the additional time is required.
(iii)
(iv)
(v) The closure requirements of paragraph (a)(8) of this section do not apply to satellite accumulation areas.
(9)
(b)
(c)
(1) The large quantity generator has implemented pollution prevention practices that reduce the amount of any hazardous substances, pollutants, or contaminants entering F006 or otherwise released to the environment prior to its recycling;
(2) The F006 waste is legitimately recycled through metals recovery;
(3) No more than 20,000 kilograms of F006 waste is accumulated on site at any one time; and
(4) The F006 waste is managed in accordance with the following:
(i)(A) If the F006 waste is placed in containers, the large quantity generator must comply with the applicable conditions for exemption in paragraph (a)(1) of this section; and/or
(B) If the F006 is placed in tanks, the large quantity generator must comply with the applicable conditions for exemption of paragraph (a)(2) of this section; and/or
(C) If the F006 is placed in containment buildings, the large quantity generator must comply with subpart DD of 40 CFR part 265, and has placed its professional engineer certification that the building complies with the design standards specified in 40 CFR 265.1101 in the facility's files prior to operation of the unit. The large quantity generator must maintain the following records:
(
(
(ii) The large quantity generator is exempt from all the requirements in subparts G and H of 40 CFR part 265, except for those referenced in paragraph (a)(8) of this section.
(iii) The date upon which each period of accumulation begins is clearly marked and must be clearly visible for inspection on each container;
(iv) While being accumulated on site, each container and tank is labeled or marked clearly with:
(A) The words “Hazardous Waste”; and
(B) An indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (
(v) The large quantity generator complies with the requirements in paragraphs(a)(6) and (7) of this section.
(d)
(e)
(f)
(1) The large quantity generator notifies EPA at least thirty (30) days prior to receiving the first shipment from a very small quantity generator(s) using EPA Form 8700–12; and
(i) Identifies on the form the name(s) and site address(es) for the very small quantity generator(s) as well as the name and business telephone number for a contact person for the very small quantity generator(s); and
(ii) Submits an updated Site ID form (EPA Form 8700–12) within 30 days after a change in the name or site address for the very small quantity generator.
(2) The large quantity generator maintains records of shipments for three years from the date the hazardous waste was received from the very small quantity generator. These records must identify the name, site address, and contact information for the very small quantity generator and include a description of the hazardous waste received, including the quantity and the date the waste was received.
(3) The large quantity generator complies with the independent requirements identified in § 262.10(a)(1)(iii) and the conditions for exemption in this section for all hazardous waste received from a very small quantity generator. For purposes of the labeling and marking regulations in paragraph (a)(5) of this section, the large quantity generator must label the container or unit with the date accumulation started (
(g)
(1) Sign Item 18c of the manifest, if the transporter returned the shipment using the original manifest; or
(2) Sign Item 20 of the manifest, if the transporter returned the shipment using a new manifest.
(a) A generator must not treat, store, dispose of, transport, or offer for transportation, hazardous waste without having received an EPA identification number from the Administrator.
(b) A generator who has not received an EPA identification number must obtain one by applying to the Administrator using EPA Form 8700–12. Upon receiving the request the Administrator will assign an EPA identification number to the generator.
(c) A generator must not offer its hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number.
(d)
(2) A large quantity generator must re-notify EPA by March 1 of each even-numbered year thereafter using EPA Form 8700–12. A large quantity generator may submit this re-notification as part of its Biennial Report required under § 262.41.
(e) A recognized trader must not arrange for import or export of hazardous waste without having received an EPA identification number from the Administrator.
(b) Before transporting hazardous waste or offering hazardous waste for transportation off site, a generator must mark each container of 119 gallons or less used in such transportation with the following words and information in accordance with the requirements of 49 CFR 172.304:
(1) HAZARDOUS WASTE—Federal Law Prohibits Improper Disposal. If found, contact the nearest police or public safety authority or the U.S. Environmental Protection Agency.
(2) Generator's Name and Address ____.
(3) Generator's EPA Identification Number ____.
(4) Manifest Tracking Number ____.
(5) EPA Hazardous Waste Number(s) ____.
(c) A generator may use a nationally recognized electronic system, such as bar coding, to identify the EPA Hazardous Waste Number(s), as required by paragraph (b)(5) or paragraph (d).
(d) Lab packs that will be incinerated in compliance with § 268.42(c) are not required to be marked with EPA Hazardous Waste Number(s), except D004, D005, D006, D007, D008, D010, and D011, where applicable.
The placement of bulk or non-containerized liquid hazardous waste or hazardous waste containing free liquids (whether or not sorbents have been added) in any landfill is prohibited. Prior to disposal in a hazardous waste landfill, liquids must meet additional requirements as specified in §§ 264.314 and 265.314.
(c) See § 262.11(f) for recordkeeping requirements for documenting hazardous waste determinations.
(a) A generator who is a large quantity generator for at least one month of an odd-numbered year (reporting year) who ships any hazardous waste off-site to a treatment, storage or disposal facility within the United States must complete and submit EPA Form 8700–13 A/B to the Regional Administrator by March 1 of the following even-numbered year and must cover generator activities during the previous year.
(b) Any generator who is a large quantity generator for at least one month of an odd-numbered year (reporting year) who treats, stores, or disposes of hazardous waste on site must complete and submit EPA Form 8700–13 A/B to the Regional Administrator by March 1 of the following even-numbered year covering those wastes in accordance with the provisions of 40 CFR parts 264, 265, 266, 267 and 270. This requirement also applies to large quantity generators that receive hazardous waste from very small quantity generators pursuant to § 262.17(f).
(c) Exports of hazardous waste to foreign countries are not required to be reported on the Biennial Report form. A separate annual report requirement is set forth at § 262.83(g) for hazardous waste exporters.
The Administrator, as deemed necessary under sections 2002(a) and 3002(a)(6) of the Act, may require generators to furnish additional reports concerning the quantities and disposition of wastes identified or listed in 40 CFR part 261.
A small quantity generator is subject only to the following independent requirements in this subpart:
(a)
(b)
(a)
(b)
(a) An eligible academic entity must notify the appropriate EPA Regional Administrator in writing, using the RCRA Subtitle C Site Identification Form (EPA Form 8700–12), that it is electing to be subject to the requirements of this subpart for all the laboratories owned by the eligible academic entity under the same EPA identification number. An eligible academic entity that is a very small quantity generator and does not have an EPA identification number must notify that it is electing to be subject to the requirements of this subpart for all the laboratories owned by the eligible academic entity that are on site, as defined by § 260.10 of this chapter. An eligible academic entity must submit a separate notification (Site Identification Form) for each EPA identification number (or site, for very small quantity generators) that is electing to be subject to the requirements of this subpart, and must submit the Site Identification Form before it begins operating under this subpart.
(b) * * *
(2) Site EPA identification number (except for very small quantity generators).
(a) An eligible academic entity must notify the appropriate EPA Regional Administrator in writing, using the RCRA Subtitle C Site Identification Form (EPA Form 8700–12), that it is electing to no longer be subject to the requirements of this subpart for all the laboratories owned by the eligible academic entity under the same EPA identification number and that it will comply with the requirements of §§ 262.11 and 262.15 for small quantity generators and large quantity generators. An eligible academic entity that is a very small quantity generator and does not have an EPA identification number must notify that it is withdrawing from the requirements of this subpart for all the laboratories owned by the eligible academic entity that are on site and that it will comply with the conditional exemption in § 262.14. An eligible academic entity must submit a separate notification (Site Identification Form) for each EPA identification number (or site, for very small quantity generators) that is withdrawing from the requirements of this subpart and must
(d) * * *
(2) Make the hazardous waste determination, pursuant to § 262.11(a) through (d), for unwanted material.
(a) * * *
(1) Remove all containers of unwanted material from each laboratory on a regular interval, not to exceed 12 months; or
(2) Remove containers of unwanted material from each laboratory within 12 months of each container's accumulation start date.
(d) * * *
(2) If a laboratory accumulates more than 1 quart of liquid reactive acutely hazardous unwanted material or more than 1 kg (2.2 pounds) of solid reactive acutely hazardous unwanted material before the regularly scheduled removal, then the eligible academic entity must ensure that all containers of reactive acutely hazardous unwanted material:
(i) Are marked on the label that is associated with the container (or on the label that is affixed or attached to the container, if that is preferred) with the date that 1 quart or 1 kg is exceeded; and
(ii) Are removed from the laboratory within 10 calendar days of the date that 1 quart or 1 kg was exceeded, or at the next regularly scheduled removal, whichever comes first.
(b)
(a) A trained professional must make the hazardous waste determination, pursuant to § 262.11(a) through (d), before the unwanted material is removed from the laboratory.
(b) * * *
(3) Count the hazardous waste toward the eligible academic entity's generator category, pursuant to § 262.13, in the calendar month that the hazardous waste determination was made.
(d) * * *
(2) Very small quantity generators must ensure it is taken directly from the laboratory(ies) to any of the types of facilities listed in § 262.14.
(c) The unwanted material becomes subject to the generator accumulation regulations of § 262.16 for small quantity generators or § 262.17 for large quantity generators as soon as it arrives in the central accumulation area, except for the “hazardous waste” labeling conditions of § 262.16(b)(6) and § 262.17(a)(5).
(d) A trained professional must determine, pursuant to § 262.11(a) through (d), if the unwanted material is a hazardous waste within 4 calendar days of the unwanted materials' arrival at the on-site central accumulation area.
(e) * * *
(3) Count the hazardous waste toward the eligible academic entity's generator category, pursuant to § 262.13 in the calendar month that the hazardous waste determination was made, and
(d) A trained professional must determine, pursuant to § 262.11(a) through (d), if the unwanted material is a hazardous waste within 4 calendar days of the unwanted materials' arrival at an on-site interim status or permitted treatment, storage, or disposal facility.
(a) * * *
(1) If the volume of unwanted material in the laboratory exceeds 55 gallons (or 1 quart of liquid reactive acutely hazardous unwanted material or 1 kg of solid reactive acutely hazardous unwanted material), the eligible academic entity is not required to remove all unwanted materials from the laboratory within 10 calendar days of exceeding 55 gallons (or 1 quart of liquid reactive acutely hazardous unwanted material or 1 kg or solid reactive acutely hazardous unwanted material), as required by § 262.208. Instead, the eligible academic entity must remove all unwanted materials from the laboratory within 30 calendar days from the start of the laboratory clean-out; and
(2) For the purposes of on-site accumulation, an eligible academic entity is not required to count a hazardous waste that is an unused commercial chemical product (listed in 40 CFR part 261, subpart D or exhibiting one or more characteristics in 40 CFR part 261, subpart C) generated solely during the laboratory clean-out toward its hazardous waste generator category, pursuant to § 262.13. An unwanted material that is generated prior to the beginning of the laboratory clean-out and is still in the laboratory at the time the laboratory clean-out commences must be counted toward hazardous waste generator category, pursuant to § 262.13, if it is determined to be hazardous waste; and
(3) For the purposes of off-site management, an eligible academic entity must count all its hazardous waste, regardless of whether the hazardous waste was counted toward generator category under paragraph (a)(2) of this section, and if it generates more than 1 kg/month of acute hazardous waste or more than 100 kg/month of non-acute hazardous waste (
(b) * * *
(2) The requirement to count all hazardous waste, including unused hazardous waste, generated during the laboratory clean-out toward its hazardous waste generator category, pursuant to § 262.13.
(b) * * *
(5) Describe its intended best practices for making hazardous waste determinations, including specifying the duties of the individuals involved in the process (see the required standards at § 262.11(a) through (d) and §§ 262.209 through 262.212).
(a) Remains subject to the generator requirements of §§ 262.11 and 262.15 for large quantity generators and small quantity generators (if the hazardous waste is managed in a satellite accumulation area), and all other applicable generator requirements of 40 CFR part 262, with respect to that hazardous waste; or
(b) Remains subject to the conditional exemption of § 262.14 for very small quantity generators, with respect to that hazardous waste.
This subpart is applicable to very small quantity generators and small quantity generators as defined in § 260.10 of this chapter.
(a)
(1) The very small quantity generator is limited to one episodic event per calendar year, unless a petition is granted under § 262.233;
(2)
(3)
(4)
(i)
(A) The words “Episodic Hazardous Waste”;
(B) An indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (
(C) The date upon which the episodic event began, clearly visible for inspection on each container.
(ii)
(A) Mark or label the tank with the words “Episodic Hazardous Waste”;
(B) Mark or label its tanks with an indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (
(C) Use inventory logs, monitoring equipment or other records to identify the date upon which each episodic event begins; and
(D) Keep inventory logs or records with the above information on site and readily available for inspection.
(iii) Hazardous waste must be managed in a manner that minimizes the possibility of a fire, explosion, or release of hazardous waste or hazardous waste constituents to the air, soil, or water;
(A) Containers must be in good condition and compatible with the hazardous waste being accumulated therein. Containers must be kept closed except to add or remove waste; and.
(B) Tanks must be in good condition and compatible with the hazardous waste accumulated therein. Tanks must have procedures in place to prevent the overflow (
(5) The very small quantity generator must comply with the hazardous waste manifest provisions of subpart B of this part when it sends its episodic event hazardous waste off site to a designated facility, as defined in § 260.10 of this chapter.
(6) The very small quantity generator has up to sixty (60) calendar days from the start of the episodic event to manifest and send its hazardous waste generated from the episodic event to a designated facility, as defined in § 260.10 of this chapter.
(7) Very small quantity generators must maintain the following records for three (3) years from the end date of the episodic event:
(i) Beginning and end dates of the episodic event;
(ii) A description of the episodic event;
(iii) A description of the types and quantities of hazardous wastes generated during the event;
(iv) A description of how the hazardous waste was managed as well as the name of the RCRA-designated facility that received the hazardous waste;
(v) Name(s) of hazardous waste transporters; and
(vi) An approval letter from EPA if the generator petitioned to conduct one additional episodic event per calendar year.
(b)
(1) The small quantity generator is limited to one episodic event per calendar year unless a petition is granted under § 262.233;
(2)
(3)
(4)
(i)
(A) The words “Episodic Hazardous Waste”;
(B) An indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (
(C) The date upon which the episodic event began, clearly visible for inspection on each container.
(ii)
(A) Mark or label its tank with the words “Episodic Hazardous Waste”;
(B) Mark or label its tanks with an indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (
(C) Use inventory logs, monitoring equipment or other records to identify the date upon which each period of accumulation begins and ends; and
(D) Keep inventory logs or records with the above information on site and available for inspection.
(5) The small quantity generator must treat hazardous waste generated from an episodic event on site or manifest and ship such hazardous waste off site to a designated facility (as defined by § 260.10 of this chapter) within sixty (60) calendar days from the start of the episodic event.
(6) The small quantity generator must maintain the following records for three (3) years from the end date of the episodic event:
(i) Beginning and end dates of the episodic event;
(ii) A description of the episodic event;
(iii) A description of the types and quantities of hazardous wastes generated during the event;
(iv) A description of how the hazardous waste was managed as well as the name of the designated facility (as defined by § 260.10 of this chapter) that received the hazardous waste;
(v) Name(s) of hazardous waste transporters; and
(vi) An approval letter from EPA if the generator petitioned to conduct one additional episodic event per calendar year.
(a) A generator may petition the Regional Administrator for a second episodic event in a calendar year without impacting its generator category under the following conditions:
(1) If a very small quantity generator or small quantity generator has already held a planned episodic event in a calendar year, the generator may petition EPA for an additional unplanned episodic event in that calendar year within 72 hours of the unplanned event.
(2) If a very small quantity generator or small quantity generator has already
(b) The petition must include the following:
(1) The reason(s) why an additional episodic event is needed and the nature of the episodic event;
(2) The estimated amount of hazardous waste to be managed from the event;
(3) How the hazardous waste is to be managed;
(4) The estimated length of time needed to complete management of the hazardous waste generated from the episodic event—not to exceed sixty (60) days; and
(5) Information regarding the previous episodic event managed by the generator, including the nature of the event, whether it was a planned or unplanned event, and how the generator complied with the conditions.
(c) The petition must be made to the Regional Administrator in writing, either on paper or electronically.
(d) The generator must retain written approval in its records for three (3) years from the date the episodic event ended.
The regulations of this subpart apply to those areas of a large quantity generator where hazardous waste is generated or accumulated on site.
A large quantity generator must maintain and operate its facility to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment.
All areas deemed applicable by § 262.250 must be equipped with the items in paragraphs (a) through (d) of this section (unless none of the hazards posed by waste handled at the facility could require a particular kind of equipment specified below or the actual hazardous waste generation or accumulation area does not lend itself for safety reasons to have a particular kind of equipment specified below). A large quantity generator may determine the most appropriate locations within its facility to locate equipment necessary to prepare for and respond to emergencies:
(a) An internal communications or alarm system capable of providing immediate emergency instruction (voice or signal) to facility personnel;
(b) A device, such as a telephone (immediately available at the scene of operations) or a hand-held two-way radio, capable of summoning emergency assistance from local police departments, fire departments, or state or local emergency response teams;
(c) Portable fire extinguishers, fire control equipment (including special extinguishing equipment, such as that using foam, inert gas, or dry chemicals), spill control equipment, and decontamination equipment; and
(d) Water at adequate volume and pressure to supply water hose streams, or foam producing equipment, or automatic sprinklers, or water spray systems.
All communications or alarm systems, fire protection equipment, spill control equipment, and decontamination equipment, where required, must be tested and maintained as necessary to assure its proper operation in time of emergency.
(a) Whenever hazardous waste is being poured, mixed, spread, or otherwise handled, all personnel involved in the operation must have immediate access (
(b) In the event there is just one employee on the premises while the facility is operating, the employee must have immediate access (
The large quantity generator must maintain aisle space to allow the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency, unless aisle space is not needed for any of these purposes.
(a) The large quantity generator must attempt to make arrangements with the local police department, fire department, other emergency response teams, emergency response contractors, equipment suppliers, and local hospitals, taking into account the types and quantities of hazardous wastes handled at the facility. Arrangements may be made with the Local Emergency Planning Committee, if it is determined to be the appropriate organization with which to make arrangements.
(1) A large quantity generator attempting to make arrangements with its local fire department must determine the potential need for the services of the local police department, other emergency response teams, emergency response contractors, equipment suppliers and local hospitals.
(2) As part of this coordination, the large quantity generator shall attempt to make arrangements, as necessary, to familiarize the above organizations with the layout of the facility, the properties of the hazardous waste handled at the facility and associated hazards, places where personnel would normally be working, entrances to roads inside the facility, and possible evacuation routes as well as the types of injuries or illnesses which could result from fires, explosions, or releases at the facility.
(3) Where more than one police or fire department might respond to an emergency, the large quantity generator shall attempt to make arrangements designating primary emergency authority to a specific fire or police department, and arrangements with any others to provide support to the primary emergency authority.
(b) The large quantity generator shall maintain records documenting the arrangements with the local fire department as well as any other organization necessary to respond to an emergency. This documentation must include documentation in the operating record that either confirms such arrangements actively exist or, in cases where no arrangements exist, confirms that attempts to make such arrangements were made.
(c) A facility possessing 24-hour response capabilities may seek a waiver from the authority having jurisdiction (AHJ) over the fire code within the facility's state or locality as far as needing to make arrangements with the local fire department as well as any other organization necessary to respond to an emergency, provided that the waiver is documented in the operating record.
(a) A large quantity generator must have a contingency plan for the facility. The contingency plan must be designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.
(b) The provisions of the plan must be carried out immediately whenever there is a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment.
(a) The contingency plan must describe the actions facility personnel must take to comply with §§ 262.260 and 262.265 in response to fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water at the facility.
(b) If the generator has already prepared a Spill Prevention, Control, and Countermeasures (SPCC) Plan in accordance with part 112 of this chapter, or some other emergency or contingency plan, it need only amend that plan to incorporate hazardous waste management provisions that are sufficient to comply with the standards of this part. The generator may develop one contingency plan that meets all regulatory standards. EPA recommends that the plan be based on the National Response Team's Integrated Contingency Plan Guidance (“One Plan”).
(c) The plan must describe arrangements agreed to with the local police department, fire department, other emergency response teams, emergency response contractors, equipment suppliers, local hospitals or, if applicable, the Local Emergency Planning Committee, pursuant to § 262.256.
(d) The plan must list names and emergency telephone numbers of all persons qualified to act as emergency coordinator (see § 262.264), and this list must be kept up to date. Where more than one person is listed, one must be named as primary emergency coordinator and others must be listed in the order in which they will assume responsibility as alternates. In situations where the generator facility has an emergency coordinator continuously on duty because it operates 24 hours per day, every day of the year, the plan may list the staffed position (
(e) The plan must include a list of all emergency equipment at the facility (such as fire extinguishing systems, spill control equipment, communications and alarm systems (internal and external), and decontamination equipment), where this equipment is required. This list must be kept up to date. In addition, the plan must include the location and a physical description of each item on the list, and a brief outline of its capabilities.
(f) The plan must include an evacuation plan for generator personnel where there is a possibility that evacuation could be necessary. This plan must describe signal(s) to be used to begin evacuation, evacuation routes, and alternate evacuation routes (in cases where the primary routes could be blocked by releases of hazardous waste or fires).
A copy of the contingency plan and all revisions to the plan must be maintained at the large quantity generator and—
(a) The large quantity generator must submit a copy of the contingency plan and all revisions to all local emergency responders (
(b) A large quantity generator that first becomes subject to these provisions after May 30, 2017 or a large quantity generator that is otherwise amending its contingency plan must at that time submit a quick reference guide of the contingency plan to the local emergency responders identified at paragraph (a) of this section or, as appropriate, the Local Emergency Planning Committee. The quick reference guide must include the following elements:
(1) The types/names of hazardous wastes in layman's terms and the associated hazard associated with each hazardous waste present at any one time (
(2) The estimated maximum amount of each hazardous waste that may be present at any one time;
(3) The identification of any hazardous wastes where exposure would require unique or special treatment by medical or hospital staff;
(4) A map of the facility showing where hazardous wastes are generated, accumulated and treated and routes for accessing these wastes;
(5) A street map of the facility in relation to surrounding businesses, schools and residential areas to understand how best to get to the facility and also evacuate citizens and workers;
(6) The locations of water supply (
(7) The identification of on-site notification systems (
(8) The name of the emergency coordinator(s) and 7/24-hour emergency telephone number(s) or, in the case of a facility where an emergency coordinator is continuously on duty, the emergency telephone number for the emergency coordinator.
(c) Generators must update, if necessary, their quick reference guides, whenever the contingency plan is amended and submit these documents to the local emergency responders identified at paragraph (a) of this section or, as appropriate, the Local Emergency Planning Committee.
The contingency plan must be reviewed, and immediately amended, if necessary, whenever:
(a) Applicable regulations are revised;
(b) The plan fails in an emergency;
(c) The generator facility changes—in its design, construction, operation, maintenance, or other circumstances—in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency;
(d) The list of emergency coordinators changes; or
(e) The list of emergency equipment changes.
At all times, there must be at least one employee either on the generator's premises or on call (
(a) Whenever there is an imminent or actual emergency situation, the emergency coordinator (or his designee when the emergency coordinator is on call) must immediately:
(1) Activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and
(2) Notify appropriate state or local agencies with designated response roles if their help is needed.
(b) Whenever there is a release, fire, or explosion, the emergency coordinator must immediately identify the character, exact source, amount, and areal extent of any released materials. The emergency coordinator may do this by observation or review of the facility records or manifests and, if necessary, by chemical analysis.
(c) Concurrently, the emergency coordinator must assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment must consider both direct and indirect effects of the release, fire, or explosion (
(d) If the emergency coordinator determines that the facility has had a release, fire, or explosion which could threaten human health, or the environment, outside the facility, the emergency coordinator must report the findings as follows:
(1) If the assessment indicates that evacuation of local areas may be advisable, the emergency coordinator must immediately notify appropriate local authorities. The emergency coordinator must be available to help appropriate officials decide whether local areas should be evacuated; and
(2) The emergency coordinator must immediately notify either the government official designated as the on-scene coordinator for that geographical area, or the National Response Center (using their 24-hour toll free number 800/424–8802). The report must include:
(i) Name and telephone number of reporter;
(ii) Name and address of the generator;
(iii) Time and type of incident (
(iv) Name and quantity of material(s) involved, to the extent known;
(v) The extent of injuries, if any; and
(vi) The possible hazards to human health, or the environment, outside the facility.
(e) During an emergency, the emergency coordinator must take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other hazardous waste at the generator's facility. These measures must include, where applicable, stopping processes and operations, collecting and containing released hazardous waste, and removing or isolating containers.
(f) If the generator stops operations in response to a fire, explosion or release, the emergency coordinator must monitor for leaks, pressure buildup, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate.
(g) Immediately after an emergency, the emergency coordinator must provide for treating, storing, or disposing of recovered waste, contaminated soil or surface water, or any other material that results from a release, fire, or explosion at the facility. Unless the generator can demonstrate, in accordance with § 261.3(c) or (d) of this chapter, that the recovered material is not a hazardous waste, then it is a newly generated hazardous waste that must be managed in accordance with all the applicable requirements and conditions for exemption in parts 262, 263, and 265 of this chapter.
(h) The emergency coordinator must ensure that, in the affected area(s) of the facility:
(1) No hazardous waste that may be incompatible with the released material is treated, stored, or disposed of until cleanup procedures are completed; and
(2) All emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed.
(i) The generator must note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, the generator must submit a written report on the incident to the Regional Administrator. The report must include:
(1) Name, address, and telephone number of the generator;
(2) Date, time, and type of incident (
(3) Name and quantity of material(s) involved;
(4) The extent of injuries, if any;
(5) An assessment of actual or potential hazards to human health or the environment, where this is applicable; and
(6) Estimated quantity and disposition of recovered material that resulted from the incident.
42 U.S.C. 6906, 6912, 6922–6925, 6937, and 6938.
(a) A transporter who stores manifested shipments of hazardous waste in containers meeting the independent requirements of § 262.30 of this chapter at a transfer facility for a period of ten (10) days or less is not subject to regulation under parts 264, 265, 267, 268, and 270 of this chapter with respect to the storage of those wastes.
(b) When consolidating the contents of two or more containers with the same hazardous waste into a new container, or when combining and consolidating two different hazardous wastes that are compatible with each other, the transporter must mark its containers of 119 gallons or less with the following information:
(1) The words “Hazardous Waste” and
(2) The applicable EPA hazardous waste number(s) (EPA hazardous waste
42 U.S.C. 6905, 6912(a), 6924, and 6925.
(g) * * *
(1) The owner or operator of a facility permitted, licensed, or registered by a state to manage municipal or industrial solid waste, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation under this part by § 262.14 of this chapter;
(3) A generator accumulating waste on site in compliance with §§ 262.14, 262.15, 262.16, or 262.17 of this chapter.
(b) * * *
(4) The frequency of inspection may vary for the items on the schedule. However, the frequency should be based on the rate of deterioration of the equipment and the probability of an environmental or human health incident if the deterioration, malfunction, or operator error goes undetected between inspections. Areas subject to spills, such as loading and unloading areas, must be inspected daily when in use. At a minimum, the inspection schedule must include the items and frequencies called for in §§ 264.174, 264.193, 264.195, 264.226, 264.254, 264.278, 264.303, 264.347, 264.602, 264.1033, 264.1052, 264.1053, 264.1058, and 264.1083 through 264.1089, where applicable. Part 270 of this chapter requires the inspection schedule to be submitted with part B of the permit application. EPA will evaluate the schedule along with the rest of the application to ensure that it adequately protects human health and the environment. As part of this review, EPA may modify or amend the schedule as may be necessary.
(c) Whenever a shipment of hazardous waste is initiated from a facility, the owner or operator of that facility must comply with the requirements of part 262 of this chapter. The provisions of §§ 262.15, 262.16, and 262.17 of this chapter are applicable to the on-site accumulation of hazardous wastes by generators. Therefore, the provisions of §§ 262.15, 262.16, and 262.17 of this chapter only apply to owners or operators who are shipping hazardous waste which they generated at that facility or operating as a large quantity generator consolidating hazardous waste from very small quantity generators under § 262.17(f).
The owner or operator must complete and submit EPA Form 8700–13 A/B to the Regional Administrator by March 1 of the following even numbered year and must cover activities during the previous year.
The regulations in this subpart apply to owners and operators of all hazardous waste facilities that store hazardous waste in containers, except as § 264.1 provides otherwise.
[
At least weekly, the owner or operator must inspect areas where containers are stored. The owner or operator must look for leaking containers and for deterioration of containers and the containment system cause by corrosion or other factors. See §§ 264.15(c) and 264.171 for remedial action required if deterioration or leaks are detected.
(a) For each existing tank system that does not have secondary containment meeting the requirements of § 264.193, the owner or operator must determine that the tank system is not leaking or is fit for use. Except as provided in paragraph (c) of this section, the owner or operator must obtain and keep on file at the facility a written assessment reviewed and certified by a qualified Professional Engineer, in accordance with § 270.11(d) of this chapter, that attests to the tank system's integrity by January 12, 1988.
(b) * * *
(2) A unit (including a hazardous waste recycling unit) that is not exempt from permitting under the provisions of 40 CFR 262.17 (
(b) * * *
(3) A unit that is exempt from permitting under the provisions of 40 CFR 262.17 (
(c) * * *
(4) Inspect and record in the facility operating record, at least once every seven days, data gathered from monitoring and leak detection equipment as well as the containment building and the area immediately surrounding the containment building
42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 6935, 6936, and 6937.
(c) * * *
(5) The owner or operator of a facility permitted, licensed, or registered by a State to manage municipal or industrial solid waste, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation under this part by § 262.14 of this chapter;
(7) A generator accumulating waste on site in compliance with applicable conditions for exemption in §§ 262.14 through 262.17 and subparts K and L of part 262 of this chapter, except to the extent the requirements of this part are included in those sections and subparts;
The revision reads as follows:
(b) * * *
(4) The frequency of inspection may vary for the items on the schedule. However, the frequency should be based on the rate of deterioration of the equipment and the probability of an environmental or human health incident if the deterioration, malfunction, or operator error goes undetected between inspections. Areas subject to spills, such as loading and unloading areas, must be inspected daily when in use. At a minimum, the inspection schedule must include the items and frequencies called for in §§ 265.174, 265.193, 265.195, 265.226, 265.260, 265.278, 265.304, 265.347, 265.377, 265.403, 265.1033, 265.1052, 265.1053, 265.1058, and 265.1084 through 265.1090, where applicable.
(c) Whenever a shipment of hazardous waste is initiated from a facility, the owner or operator of that facility must comply with the requirements of part 262 of this chapter. The provisions of §§ 262.15, 262.16, and 262.17 of this chapter are applicable to the on-site accumulation of hazardous wastes by generators. Therefore, the provisions of §§ 262.15, 262.16, and 262.17 only apply to owners or operators who are shipping hazardous waste which they generated at that facility or operating as a large quantity generator consolidating hazardous waste from very small quantity generators under § 262.17(f).
The owner or operator must complete and submit EPA Form 8700–13 A/B to the Regional Administrator by March 1 of the following even numbered year and must cover activities during the previous year.
At least weekly, the owner or operator must inspect areas where containers are stored. The owner or operator must look for leaking containers and for deterioration of containers caused by corrosion or other factors. See § 265.171 for remedial action required if deterioration or leaks are detected.
(b) * * *
(2) A unit (including a hazardous waste recycling unit) that is not exempt from permitting under the provisions of 40 CFR 262.17 (
(3) A unit that is exempt from permitting under the provisions of 40 CFR 262.17 (
(c) * * *
(4) Inspect and record in the facility's operating record at least once every seven days data gathered from monitoring and leak detection equipment as well as the containment building and the area immediately surrounding the containment building to detect signs of releases of hazardous waste.
42 U.S.C. 1006, 2002(a), 3001–3009, 3014, 3017, 6905, 6906, 6912, 6921, 6922, 6924–6927, 6934, and 6937.
42 U.S.C. 6902, 6912(a), 6924–6926, and 6930.
42 U.S.C. 6905, 6912(a), 6921, and 6924.
(e) * * *
(1) Waste generated by very small quantity generators, as defined in § 260.10 of this chapter;
(a) * * *
(5) If a generator is managing and treating prohibited waste or contaminated soil in tanks, containers, or containment buildings regulated under 40 CFR 262.15, 262.16, and 262.17 to meet applicable LDR treatment standards found at § 268.40, the generator must develop and follow a written waste analysis plan which describes the procedures they will carry out to comply with the treatment standards. (Generators treating hazardous debris under the alternative treatment standards of Table 1 to § 268.45, however, are not subject to these waste analysis requirements.) The plan must be kept on site in the generator's records, and the following requirements must be met:
(a) * * *
(1) A generator stores such wastes in tanks, containers, or containment buildings on-site solely for the purpose of the accumulation of such quantities of hazardous waste as necessary to facilitate proper recovery, treatment, or disposal and the generator complies with the requirements in §§ 262.16 and 262.17 and parts 264 and 265 of this chapter.
(2) * * *
(i) Each container is clearly marked to identify its contents and with:
(A) The words “Hazardous Waste”;
(B) The applicable EPA hazardous waste number(s) (EPA hazardous waste codes) in subparts C and D of part 261 of this chapter; or use a nationally recognized electronic system, such as bar coding, to identify the EPA hazardous waste number(s);
(C) An indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (
(D) The date each period of accumulation begins.
42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 6974.
(a) * * *
(3)
(c) * * *
(2)
(i) Generators who accumulate hazardous waste on site in compliance with all of the conditions for exemption provided in 40 CFR 262.14, 262.15, 262.16, and 262.17.
(iii) Persons who own or operate facilities solely for the treatment, storage, or disposal of hazardous waste excluded from regulations under this part by 40 CFR 261.4 or 262.14 (very small quantity generator exemption).
42 U.S.C. 6905, 6912(a), and 6926.
42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.
(a) * * *
(2) Very small quantity generator wastes that are exempt under § 262.14 of this chapter and are also of the same type as the universal wastes defined at § 273.9.
(b) The waste or category of waste is not exclusive to a specific industry or group of industries, is commonly generated by a wide variety of types of establishments (including, for example, households, retail and commercial businesses, office complexes, very small quantity generators, small businesses, government organizations, as well as large industrial facilities);
Sections 1006, 2002(a), 3001 through 3007, 3010, 3014, and 7004 of the Solid Waste Disposal Act, as amended (42 U.S.C. 6905, 6912(a), 6921 through 6927, 6930, 6934, and 6974); and sections 101(37) and 144(c) of CERCLA (42 U.S.C. 9601(37) and 9614(c)).
(b) * * *
(3)