Animal and Plant Health Inspection Service
Forest Service
National Institute of Food and Agriculture
Rural Business-Cooperative Service
Engineers Corps
Committee for Purchase From People Who Are Blind or Severely Disabled
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Patent and Trademark Office
Engineers Corps
Navy Department
Energy Efficiency and Renewable Energy Office
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Bureau of Ocean Energy Management, Regulation and Enforcement
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
Office of Natural Resources Revenue
Antitrust Division
Fiscal Service
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Community Development Financial Institutions Fund
Fiscal Service
Foreign Assets Control Office
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Office of Government Ethics (OGE).
Final rule; technical amendments.
The Office of Government Ethics is updating its executive branch regulation on financial disclosure to reflect the retroactive statutory increase of the reporting thresholds for gifts and travel reimbursements. As a matter of regulatory policy, OGE is also raising the widely attended gatherings nonsponsor gifts exception dollar ceiling under the executive branchwide standards of ethical conduct regulation, but this change is not retroactive.
The rule is effective July 1, 2011. The amendments to 5 CFR 2634.304 and 2634.907 (as set forth in amendatory paragraphs 2 and 3) are retroactively applicable as of January 1, 2011.
Elaine Newton, Attorney-Advisor, Office of Government Ethics; Telephone: 202-482-9300; TTY: 800-877-8339; FAX: 202-482-9237.
The Office of Government Ethics is amending pertinent sections of its executive branchwide ethics regulations on financial disclosure and standards of ethical conduct, as codified at 5 CFR parts 2634 and 2635, in order to update certain reporting and other thresholds.
First, OGE is revising its executive branch financial disclosure regulation at 5 CFR part 2634 applicable as of January 1, 2011 to reflect the increased reporting thresholds for gifts, reimbursements and travel expenses for both the public and confidential executive branch financial disclosure systems. These increases conform to the statutorily mandated public disclosure reporting thresholds under section 102(a)(2)(A) & (B) of the Ethics in Government Act as amended, 5 U.S.C. app. section 102(a)(2)(A) & (B), and are extended to confidential disclosure reporting by OGE's regulation. Under the Ethics Act, the gifts and reimbursements reporting thresholds are tied to the dollar amount for the “minimal value” threshold for foreign gifts as the General Services Administration (GSA) periodically redefines it.
In a recent rulemaking, GSA raised “minimal value” under the Foreign Gifts and Decorations Act, 5 U.S.C. 7342, to “$350 or less” (from the prior level of $335 or less) for the three-year period 2011-2013. See 76 FR 30550-30551(May 26, 2011), revising retroactively to January 1, 2011, the foreign gifts minimal value definition as codified at 41 CFR 102-42.10.
Accordingly, applicable as of that same date, OGE is increasing the thresholds for reporting of gifts and travel reimbursements from any one source in 5 CFR 2634.304 and 2634.907(g) (and as illustrated in the examples following those sections, including appropriate adjustments to gift values therein) of its executive branch financial disclosure regulation to “more than $350” for the aggregation threshold for reporting and “$140 or less” for the de minimis exception for gifts and reimbursements which do not have to be counted towards the aggregate threshold. As noted, these regulatory increases just reflect the underlying statutory increases effective January 1 of this year.
OGE will continue to adjust the gifts and travel reimbursements reporting thresholds in its part 2634 regulation in the future as needed in light of GSA's redefinition of “minimal value” every three years for foreign gifts purposes. See OGE's prior three-year adjustment of those regulatory reporting thresholds, as published at 73 FR 15387-15388 (March 24, 2008) (for 2008-2010, the aggregate reporting level was more than $335, with a $134 or less de minimis exception).
In addition, OGE is increasing from $335 to $350 the exception ceiling for nonsponsor gifts of free attendance at widely attended gatherings under the executive branch standards of ethical conduct regulation, as codified at 5 CFR 2635.204(g)(2) (and as illustrated in the examples following paragraph (g); a sum total value in one example is also being adjusted accordingly). This separate regulatory change is effective upon publication in the
Pursuant to 5 U.S.C. 553(b) and (d), as Acting Director of the Office of Government Ethics, I find good cause exists for waiving the general notice of proposed rulemaking, opportunity for public comment and 30-day delay in effectiveness as to these technical updating amendments. The notice, comment and delayed effective date provisions are being waived in part because these technical amendments concern matters of agency organization, practice and procedure. Further, it is in the public interest that correct and up-to-date information be contained in the affected sections of OGE's regulations as soon as possible. The increase in the reporting thresholds for gifts and reimbursements is based on a statutory formula and also lessens the reporting burden somewhat. Therefore, that regulatory revision is being made retroactively effective January 1, 2011,
As Acting Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rulemaking will not have a significant economic impact on a substantial number of small entities because it primarily affects Federal employees.
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this amendatory rulemaking itself does not contain information collection requirements that require the approval of the Office of Management and Budget.
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), this final rule will not significantly or uniquely affect small governments and will not result in increased expenditures by State, local and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.
The Office of Government Ethics has determined that this amendatory rulemaking is a nonmajor rule under the Congressional Review Act (5 U.S.C. chapter 8) and will submit a report thereon to the U.S. Senate, House of Representatives and Government Accountability Office in accordance with that law at the same time this rulemaking document is sent to the Office of the Federal Register for publication in the
In promulgating these technical amendments, OGE has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. These amendments have not been reviewed by the Office of Management and Budget under that Executive order, since they are not deemed “significant” thereunder.
As Acting Director of the Office of Government Ethics, I have reviewed this final amendatory regulation in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.
Certificates of divestiture, Conflict of interests, Financial disclosure, Government employees, Penalties, Privacy, Reporting and recordkeeping requirements, Trusts and trustees.
Conflict of interests, Executive branch standards of ethical conduct, Government employees.
For the reasons set forth in the preamble, the Office of Government Ethics is amending 5 CFR parts 2634 and 2635 as follows:
5 U.S.C. App. (Ethics in Government Act of 1978); 26 U.S.C. 1043; Pub. L. 101-410, 104 Stat. 890, 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990), as amended by Sec. 31001, Pub. L. 104-134, 110 Stat. 1321 (Debt Collection Improvement Act of 1996); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
5 U.S.C. 7301, 7351, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
National Institute of Food and Agriculture, USDA.
Final rule; technical amendments.
The National Institute of Food and Agriculture (NIFA) published in the
Effective on July 1, 2011.
Carmela Bailey, National Program Leader, Plant and Animal Systems, National Institute of Food and Agriculture, U.S. Department of Agriculture, STOP 3356, 1400 Independence Avenue, SW., Washington, DC 20250-2299; Voice: 202-401-6443; Fax: 202-401-4888; E-mail:
On June 14, 2010, NIFA published an interim rule (75 FR 33497) with a 120-day comment period to provide administrative provisions that are specific to the Federal assistance awards made under section 9008(e) of the Farm Security and Rural Investment Act of 2002 (FSRIA), Public Law 107-171 (7 U.S.C. 8108(e)), as amended by section 9001 of the Food, Conservation, and Energy Act of 2008 (FCEA), Public Law 110-246, providing authority to the Secretary of Agriculture and the Secretary of Energy, to establish and carry out a joint Biomass Research and Development Initiative (BRDI) under which competitively awarded grants, contracts, and financial assistance are provided to, or entered into with, eligible entities to carry out research on and development and demonstration of biofuels and biobased products; and the methods, practices, and technologies for the production of biofuels and biobased products. No program specific comments were received. NIFA intended to proceed with the final rule with only minimal changes but published in the
Administrative practice and procedure, Agricultural research, Education, Extension, Federal assistance.
Accordingly, 7 CFR part 3430 is amended as follows:
7 U.S.C. 3316; Pub. L. 106-107 (31 U.S.C. 6101 note).
The regulations in this subpart apply to the Federal assistance awards made under the program authorized under section 9008 of the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 8108), as amended by section 9001 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246).
In carrying out the program, NIFA, in cooperation with the Department of Energy, is authorized to make competitive awards under section 9008(e) of FSRIA (7 U.S.C. 8108(e)) to develop:
(b)
(a)
(b)
(c)
(a)
(b)
(b) * * *
(2) Included in the best practices database established under section 1672C(e) of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 5925e(e)).
(a)
Office of Health, Safety and Security, Department of Energy.
Notification of updated Technical Standard.
The Department of Energy (DOE or the Department) is issuing Technical Standard DOE-STD-1095-2011,
Steven G. Zobel, CHP, U.S. Department of Energy, Office of Health, Safety and Security, Office of Corporate Safety Analysis, 1000 Independence Ave., SW., Washington, DC 20585, 301-903-2615, or
An electronic copy of this
DOE previously administered its laboratory accreditation program for whole body external dosimetry pursuant to DOE Order 5480.15,
On December 14, 1993, DOE promulgated 10 CFR part 835,
This Technical Standard is effective on April 1, 2011.
Issued in Washington, DC.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for Boeing Model 747-8 airplanes. These airplanes will have a novel or unusual design feature associated with an extendable length escape slide. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. Additional special conditions will be issued for other novel or unusual design features of Boeing 747-8 airplanes.
Jayson Claar, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW, Renton, Washington 98057-3356; telephone (425) 227-2194; facsimile (425) 227-1232.
On November 4, 2005, The Boeing Company, PO Box 3707, Seattle, WA, 98124, applied for an amendment to Type Certificate Number A20WE to include the new Model 747-8 series passenger airplane. Boeing later applied for, and was granted, an extension of time for the type certificate, which changed the effective application date to December 31, 2006. The Model 747-8 is a derivative of the 747-400. The Model 747-8 is a four-engine jet transport airplane that will have a maximum takeoff weight of 975,000 pounds, new General Electric GEnx -2B67 engines, and the capacity to carry 605 passengers.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 747-8 (hereafter referred as 747-8) meets the applicable provisions of part 25,
In addition, the certification basis includes other regulations, special conditions, and exemptions that are not relevant to these special conditions. Type Certificate No. A20WE will be updated to include a complete description of the certification basis for these airplanes.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model or series that incorporates the same or similar novel or unusual design feature, or should any other model or series already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model or series under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the 747-8 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
Special conditions, as defined in § 11.19, are issued under § 11.38, and become part of the type certification basis under § 21.101.
The Boeing Model 747-8 will incorporate the following novel or unusual design features: The 747-8 design offers seating capacity on two separate decks, the main deck with a maximum passenger capacity of 495 and the upper deck with a maximum passenger capacity of 110. Section 25.810(a)(1)(iii) requires that after full deployment the emergency escape system assist means must be long enough so that the lower end is self-supporting on the ground and provides safe evacuation of occupants to the ground after collapse of one or more legs of the landing gear. Typically, airplanes have fixed-length slides that meet the above requirements. However, it was not possible to use fixed-length slides for the 747-8 Door 1 because of the difference between normal sill height and the high-sill height associated with collapse of some of the landing gear in an emergency. Some combinations of landing gear collapse could cause the airplane to tip back on its tail. The 747-8 Door 1 escape slide is an extendable length design to meet the gear collapse and tail tip conditions.
The regulations governing the certification of the 747-8 do not adequately address the certification requirements for an extendable length escape slide. The only reference to extendable length escape slides in Technical Standard Order (TSO) C69c, Emergency Evacuation Slides, Ramps, Ramp/Slides, and Slide/Rafts, is in the inflation time requirement section. The requirements of § 25.801(a)(1)(iii) for other airplanes have been addressed by a single length escape slide. However, for the 747-8 Door 1, it was not possible to have a single length escape slide because of the extreme difference in sill heights between normal sill height and high-sill height associated with collapse of some of the landing gear, and the additional case of the airplane tipping back on its tail. For Door 1, the normal sill height is approximately 187 inches, and the high-sill height is approximately 346 inches.
The design of the extendable length escape system has an approximately 12 foot long extension packed at the toe end of the escape slide. During normal operation, the extension portion remains packed at the toe end. The airplane is equipped with an electronic sensor that evaluates the attitude of the airplane, and determines if the extendable portion is needed. When the extended length is needed, the system sends a signal to an electronic sign on the door to indicate to the flight attendant that the extendable length of the slide needs to be inflated. The extendable length inflation system is activated by pulling on a separate inflation handle located on the right side of the slide girt.
The Airbus A380 airplane has an extendable length slide and the FAA issued Special Conditions Number 25-323-SC to address the installation of the extendable length escape slide in that airplane. These previously issued special conditions provide a starting point for developing special conditions for the 747-8 airplane, which consider and evaluate the unique aspects of this airplane's design.
The extension is intended only for use at high-sill heights. A typical fixed-length slide operating at high-sill height does not satisfy all of the performance requirements of § 25.810, but its variations in performance are understood and largely predictable. Certain performance criteria are valid regardless of sill height, while other aspects of performance can be expected to decline at higher sill heights. With an extendable slide, there is a step change in configuration and potentially a change in performance. Therefore, special conditions are needed to ensure acceptable performance in the extended mode.
Section 25.810 specifies the basic performance requirements for escape slides, including wind testing, repeatability testing, and testing at adverse sill heights. Section 25.1309(a) requires systems to perform under foreseeable operating conditions, such as extreme temperatures, and demonstrate that the system design is appropriate for its intended function. Standards for the equipment itself are in TSO-C69c and contribute to a satisfactory installation.
Typically, wind tests are only conducted on fixed-length slides at normal sill height. Since the regulations require that the escape slides have the capability of being deployed in 25-knot winds directed from the most critical angle, escape slides usually exceed 25-knot performance at other than the critical angle. The same is expected to be true of the slide in its extended mode, but some reduction in the required wind velocity is appropriate since the slide will be in an abnormal condition. Available data indicate that the capability of being deployed in 22-knot winds is appropriate to cover the slide in its extended mode at normal sill height. This corresponds to roughly 75% of the wind energy required for the slide in its normal attitude and will ensure that the slide can function in its extended mode at least as well as a fixed-length slide under similar abnormal conditions.
These special conditions also specify a rate for passenger evacuation that is consistent with that of fixed-length escape slides.
Notice of proposed special conditions No. 25-11-12-SC for Boeing Model 747-8 airplanes was published in the
As discussed above, these special conditions are applicable to Boeing Model 747-8 airplanes. Should Boeing apply at a later date for a change to the
This action affects only certain novel or unusual design features of Boeing Model 747-8 airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 747-8 airplanes.
1. The extendable escape slide must receive Technical Standard Order (TSO) C69c or latest TSO authorization published at the time of TSO application for the Door 1 Slide.
2. In addition to the requirements of § 25.810(a)(1)(iii) for usability in conditions of landing gear collapse, the deployed escape slide in the extended mode must demonstrate an evacuation rate of 45 persons per minute per lane at the sill height corresponding to activation of the extension.
3. In lieu of the requirements of § 25.810(a)(1)(iv), the escape slide with the extendable section activated must be capable of being deployed in 22-knot winds directed from the critical angle, with the airplane on all its landing gear, with the assistance of one person on the ground. Two deployment scenarios must be addressed as follows:
(a) Extendable section is activated during the inflation time of the basic slide and,
(b) Extendable section is activated after the basic slide is completely inflated.
4. Pitch sensor tolerances and accuracy must be taken into account when demonstrating compliance with § 25.1309(a) for the escape slide in both extended and unextended modes.
5.(a) There must be a “slide extension” warning such that the cabin crew is immediately made aware of the need to deploy the extendable section of the slide. The ability to provide such a warning must be available for ten minutes after the airplane is immobilized on the ground.
(b) There must be a positive means for the cabin crew to determine that the extendable portion of the slide has been fully erected.
6. Whenever passengers are carried on the main deck of the airplane, there must be a cabin crewmember stationed on each side of the airplane located near each Door 1 Exit. This special condition must be included in the airplane flight manual as a limitation.
Social Security Administration (SSA).
Final rule.
This final rule adopts, without change, the interim final rule with request for comments we published in the
The interim final rule with request for comments published on July 15, 2010 is confirmed as final effective July 1, 2011.
Craig Streett, Office of Income Security Programs, Social Security Administration, 2-R-24 Operations Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-9793. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at
The interim final rule concerned what we consider major life-changing events for the Medicare Part B IRMAA and what evidence we require to support a claim of a major life-changing event.
Medicare Part B is a voluntary medical insurance program that provides coverage for services such as physicians care, diagnostic services, and medical supplies. A beneficiary enrolled in Medicare Part B pays monthly premiums, deductibles, and co-insurance associated with covered services. The Centers for Medicare & Medicaid Services (CMS) promulgates rules and regulations about the Medicare program, including the standard monthly premium. We determine and deduct the amount of certain Medicare Part B premiums from beneficiaries' Social Security benefits and make rules and regulations necessary to carry out these functions.
The Federal Government subsidizes the cost of Medicare Part B medical coverage. However, beneficiaries with modified adjusted gross incomes (MAGI) above a specified threshold must pay a higher percentage of their cost than those with MAGIs below the threshold.
We use MAGI and Federal income tax filing status for the tax year two years before the effective year to determine whether a beneficiary must pay an IRMAA, and if so, how much.
If a beneficiary provides evidence that the qualifying major life-changing event significantly reduced his or her MAGI, we will determine the IRMAA based on data from a more recent tax year.
Prior to the publication of our interim final rule, our regulations identified only the following additional events as major life-changing events: (1) The termination of a marriage, (2) annulment of a marriage, (3) reduced hours or stoppage of work, (4) reductions in income due to certain losses of income-producing property, 5) a reduction in or loss of income due to a scheduled cessation of a pension, and 6) a reduction in or loss of income from an insured pension plan due to termination or reorganization of the plan.
We have added a new paragraph (g) to 20 CFR 418.1205 to include the receipt of certain settlement payments from an employer or former employer in the list of major life-changing events. To qualify as a major life-changing event, a settlement payment received by a beneficiary or the spouse of a beneficiary must be the result of an employer's or former employer's closure, bankruptcy, or reorganization. This change allows a beneficiary to request that we base the IRMAA on the MAGI from a more recent tax year.
We also have revised 20 CFR 418.1205(e) to include the loss of investment property as a result of fraud or theft due to a criminal act by a third party.
We have also made several other changes to this section of our regulations. First, we have specifically provided in final section 418.1205(e) that the beneficiary's spouse may not direct the loss of income-producing property. Previously, our regulations stated that the loss could not be at the direction of the beneficiary. We amended our regulations to include both the beneficiary and spouse.
Second, we have revised section 418.1205(e) to clarify that the loss of income-producing property due to the ordinary risk of investment is not a major life-changing event. In some cases, beneficiaries and adjudicators have misinterpreted our current regulations in this regard.
We have made a similar change to 20 CFR 418.1210(b) to clarify that we do not consider events that result in the loss of dividend income because of the ordinary risk of investment to be major life-changing events.
We have replaced “insured pension plan” with “employer's pension plan” in 20 CFR 418.1205(f). Previously, our regulations provided that “a reduction in or loss of income from an insured pension plan due to termination or reorganization of the pension plan or a scheduled cessation of pension” qualified as a major life-changing event.
We also have revised sections 418.1205(e) and (f) and 418.1255(e) and (f) to remove the wording that required a reduction in or loss of income from these life-changing events. The change made the wording of the revised subsections consistent with that of the subsections explaining other life-changing events found in 20 CFR 418.1205 and 20 CFR 418.1255.
We also revised 20 CFR 418.1255 to clarify the type of evidence we require when a beneficiary asks us to use a more recent tax year to calculate an IRMAA based on certain changes in circumstance. If a beneficiary or his or her spouse experiences a loss of income-producing property due to criminal fraud or theft by a third party, we require proof of the conviction, such as a court document, and evidence of loss. If a beneficiary or his or her spouse experiences a scheduled cessation, termination, or reorganization of an employer's pension plan, we require evidence documenting the change in or loss of the pension. If a beneficiary or his or her spouse receives a settlement from an employer or a former employer because of the employer's closure, bankruptcy, or reorganization, we require evidence documenting the settlement and the reason(s) for the settlement. These changes make it easier for beneficiaries to meet their burden of proving that they have experienced a major life-changing event.
We have revised paragraph (d) of 20 CFR 418.1230 and paragraphs (c)(2) and (3) of 20 CFR 418.1265 to reflect the addition of new paragraph 418.1205(g), which concerns the receipt of certain settlements as life-changing events, as discussed above.
On July 15, 2010, we published an interim final rule with request for comments in the
We have summarized the commenter's view and have responded to the significant issues raised by the commenter that are within the scope of the interim final rule.
The commenter also expressed concern about our revision to 20 CFR 418.1210(b). The commenter believed that using the phrase “because of the ordinary risk of investment” to qualify the type of dividend income loss not considered a major life-changing event suggests that any dividend loss not due to ordinary risk of investment should, in turn, qualify as a major life-changing event.
We may grant a request to use a more recent taxable year only if the individual's MAGI for that year is significantly less than the income for the normally applicable year due to a major life changing event. The Act requires that we determine whether IRMAA applies to an individual on an annual basis. We base each annual determination on a beneficiary's income from the specific tax year identified in section 1839(i)(4)(B) of the Act, which is generally the tax year from two years prior. Thus, we are unable to make
Additionally, the changes made to 20 CFR 418.1210 in the interim final rule help address the scenario discussed by the commenter. In the scenario, an individual received a one-time gain in income due to a forced sale of stock, but experienced a loss of dividend income in subsequent years because of the loss of the stock. The changes we made to 20 CFR 418.1210 clarify that we do not consider events that result in the loss of dividend income to be major life-changing events if the reasons for such loss are due to the ordinary risk of investment. Conversely, a loss of income-producing financial securities, if the circumstances causing the loss are truly beyond a beneficiary's or his or her spouse's control and do not involve the ordinary risk of investment, may qualify as a major life-changing event in the form of a loss of income-producing property under 20 CFR 418.1205(e).
Accordingly, the interim final rule remains unchanged and we are adopting it as final.
We have consulted with the Office of Management and Budget (OMB) and determined that this final rule meets the criteria for a significant regulatory action under Executive Order 12866 as supplemented by Executive Order 13563. Thus, the final rule was reviewed by OMB.
We certify that these final rules will not have a significant economic impact on a substantial number of small entities, because they affect individuals only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.
OMB previously approved the new public reporting requirements posed by this rule under a separate Information Collection Request (OMB No. 0960-0735). We are therefore not seeking OMB approval for these requirements here under the Paperwork Reduction Act.
Administrative practice and procedure, Aged, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Supplemental Security Income (SSI), Medicare subsidies.
Accordingly, the interim rule amending 20 CFR chapter III, part 418, subpart B that was published at 75 FR 41084 on July 15, 2010, is adopted as a final rule without change.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of an original abbreviated new animal drug application (ANADA) filed by Cross Vetpharm Group Ltd. The ANADA provides for the use of amprolium soluble powder as an aid in the treatment and prevention of coccidiosis in calves.
This rule is effective July 1, 2011.
John K. Harshman, Center for Veterinary Medicine (HFV-170), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8197, e-mail:
Cross Vetpharm Group Ltd., Broomhill Rd., Tallaght, Dublin 24, Ireland, filed ANADA 200-464 for the use of AMPROMED (amprolium) for Calves, a water-soluble powder used as an aid in the treatment and prevention of coccidiosis caused by
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
FDA has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows:
21 U.S.C. 360b.
(b) * * *
(4) No. 061623 for use of product described in paragraph (a)(2) of this section as in paragraph (d)(2) of this section.
Bureau of Ocean Energy Management, Regulation and Enforcement; Office of Natural Resources Revenue, Interior.
Correcting amendment to final rule.
The Office of Natural Resources Revenue (ONRR) published a rule in the
This rule is effective on July 1, 2011.
For questions on technical issues, contact Amy White, Petroleum Engineer, BOEMRE, Regulations & Standards Branch, 381 Elden Street, MS 4024, Herndon, VA 20171; telephone (703) 787-1665; or e-mail
The rule published in the
Because this rule makes no changes to the legal obligations or rights of non-governmental entities, the Department further finds that good cause exists under 5 U.S.C. 553(d)(3) to make this rule effective immediately upon publication in the
The October 4, 2010,
Nevertheless, the agency requested comments on the reorganization of the rules. The comments received pointed out a few technical errors in the October 4, 2010, rule which are corrected in this rule.
The Department received comments on the rule from one member of the petroleum industry. These comments are analyzed and discussed below.
1. § 1206.108 Does ONRR protect information I provide?
2. §§ 1206.152(l) Valuation standards—unprocessed gas and 1206.153(l) Valuation standards—processed gas.
1. § 1218.152 Fishermen's Contingency Fund.
2. § 1218.154 Effect of suspensions on royalty and rental.
1. § 219.416 How will the qualified OCS revenues be allocated to coastal political subdivisions within the Gulf producing States?
2. § 219.418 When will funds be disbursed to Gulf producing States and eligible coastal political subdivisions?
This rule corrects this situation by restoring to 30 CFR chapter II the civil penalty regulations, currently found in 30 CFR chapter XII part 1241, which pertain to offshore leasing and operations violations. The penalty provisions that pertain to both royalty and leasing and operations violations will be restored to BOEMRE rules, but also remain in ONRR rules. Thus, the provisions at 30 CFR 1241.50 through 1241.56, 1241.60(a)(2) and (b)(1), 1241.61 through 1241.70, 1241.71(b), and 1241.72 through 1241.80 will be essentially duplicated in the BOEMRE rules as 30 CFR 250.1450 through 250.1480, with appropriate technical changes such as changing the reference to ONRR in several section headings to BOEMRE and removing the reference to Indian leases in new § 250.1451(a). The provisions that pertain exclusively to leasing and operations violations will be removed from ONRR rules and put into BOEMRE rules. Thus, the current 30 CFR 1241.60(a)(3), (b)(2), and (b)(3) will be removed from ONRR rules and recodified as 30 CFR 250.1460(a)(2), (b)(2), and (b)(3), respectively. The current 30 CFR 1241.60(a)(1), which deals exclusively with royalties and is solely within ONRR's delegated enforcement authority, will remain in the ONRR rules and will have no counterpart in the BOEMRE rules. Like 30 CFR 1241.60(a)(1), 30 CFR 1241.71(a) is inapplicable to BOEMRE because violations of offshore leasing or operations orders or regulations do not result in underlying underpayments or unpaid debts (excepting civil penalties), which could incur interest. Therefore, 30 CFR 1241.71(a) will not have a counterpart carried over into BOEMRE regulations. Finally, conforming changes have been made to 30 CFR 250.1455(b)(2) and 250.1463(b)(2) to reflect the fact that the bonding and financial solvency requirements of 30 CFR part 1243, subparts B and C, have been duplicated in the same subpart, subpart N of part 250, as the civil penalty regulations.
This rule also duplicates in BOEMRE regulations certain provisions regarding bonding and demonstration of financial solvency which are currently in ONRR regulations. These provisions are found at 30 CFR part 1243, subparts B and C, and are duplicated, with minor conforming changes, in this rule in 30 CFR 250.1490 through 250.1497. They specify the process by which a party appealing a Notice of Non-Compliance or Notice of Civil Penalty may post a bond or demonstrate financial solvency to stay accrual of civil penalties under 30 CFR 250.1455(b)(2) or 250.1463(b)(2). These provisions also specify the methodology by which BOEMRE will evaluate the sufficiency of a bond amount or demonstration of financial solvency.
These provisions are identical to those found at 30 CFR part 1243, subparts B and C, with one minor exception and several conforming changes. The exception is that the new 30 CFR 250.1496(c)(2)(i) is modified to require that payments be made by Electronic Funds Transfer (EFT). This change is made to conform to 30 CFR 250.126, which requires that fees paid to BOEMRE be made by EFT.
Duplicating these provisions in BOEMRE regulations will clarify that these processes apply to appeals of BOEMRE civil penalty orders issued under FOGRMA. Duplicating these regulations is not a substantive change, but rather carries over to BOEMRE regulations authorities which already exist and are an integral part of the FOGRMA civil penalty system.
This rule does not change the civil penalty authorities assigned to ONRR or BOEMRE. It does not change the procedures by which those authorities are implemented. It merely revises the references in the regulations to conform to those in current Secretarial delegations. It has no effect on the rights, obligations, or interests of affected parties. It affects solely the organization, procedure, and practice of the agencies.
The appeals regulations in 30 CFR part 1290 provide that appeals of decisions involving reporting and payment obligations for Indian leases are decided by the Deputy Commissioner of Indian Affairs. The position of Deputy Commissioner of Indian Affairs was abolished upon the creation of the position of Director, Bureau of Indian Affairs, on April 21, 2003. The role of deciding appeals has since been performed by the Director, Bureau of Indian Affairs. This rule recognizes this by changing the current reference to the Deputy Commissioner of Indian Affairs to the Director, Bureau of Indian Affairs. Changing this reference simply reflects an internal organizational change effected 8 years ago within the Department.
Administrative practice and procedure, Continental shelf, Environmental impact statements, Environmental protection, Government contracts, Investigations, Mineral royalties, Oil and gas exploration, Penalties, Pipelines, Public lands—mineral resources, Public lands—right-of-way, Reporting and recordkeeping requirements, Sulfur.
Accounting and auditing relief, Barrels of oil equivalent (BOE), Continental shelf, Federal lease, Marginal property, Mineral royalties, Royalty prepayment, Royalty relief.
Coal, Continental shelf, Geothermal energy, Government contracts, Indians—lands, Mineral royalties, Oil and gas exploration, Public lands—mineral resources, Reporting and recordkeeping requirements.
Continental shelf, Electronic funds transfers, Geothermal energy, Indians—lands, Mineral royalties, Oil and gas exploration, Public lands—mineral resources, Reporting and recordkeeping requirements.
Administrative practice and procedure, Continental Shelf, Government contracts, Indians—lands, Mineral royalties, Oil and gas exploration, Penalties, Public lands—mineral resources, Sulfur.
Administrative practice and procedure.
Accordingly, 30 CFR parts 250, 1204, 1206, 1218, 1241, and 1290 are corrected by making the following amendments:
30 U.S.C. 1751; 31 U.S.C. 9701; 43 U.S.C. 1334.
The terms used in this subpart have the same meaning as in 30 U.S.C. 1702.
(a) If we believe that you have not followed any requirement of a statute, regulation, order, or lease term for any Federal oil or gas lease, we may send you a Notice of Noncompliance informing you what the violation is and what you need to do to correct it to avoid civil penalties under 30 U.S.C. 1719(a) and (b).
(b) We will serve the Notice of Noncompliance by registered mail or personal service using the most current address on file as maintained by the BOEMRE Leasing Office in your respective Region.
The matter will be closed if you correct all of the violations identified in the Notice of Noncompliance within 20 days after you receive the Notice (or within a longer time period specified in the Notice).
(a) We may send you a Notice of Civil Penalty if you do not correct all of the violations identified in the Notice of Noncompliance within 20 days after you receive the Notice of Noncompliance (or within a longer time period specified in that Notice). The Notice of Civil Penalty will tell you how much penalty you must pay. The penalty may be up to $500 per day, beginning with the date of the Notice of Noncompliance, for each violation identified in the Notice of Noncompliance for as long as you do not correct the violations.
(b) If you do not correct all of the violations identified in the Notice of Noncompliance within 40 days after you receive the Notice of Noncompliance (or 20 days following the expiration of a longer time period specified in that Notice), we may increase the penalty to up to $5,000 per day, beginning with the date of the Notice of Noncompliance, for each violation for as long as you do not correct the violations.
You may request a hearing on the record on a Notice of Noncompliance by filing a request within 30 days of the date you received the Notice of Noncompliance with the Hearings Division (Departmental), Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203. You may do this regardless of whether you correct the violations identified in the Notice of Noncompliance.
(a) If you do not correct the violations identified in the Notice of Noncompliance, the penalties will continue to accrue even if you request a hearing on the record.
(b) You may petition the Hearings Division (Departmental) of the Office of Hearings and Appeals, to stay the accrual of penalties pending the hearing on the record and a decision by the Administrative Law Judge under § 250.1472.
(1) You must file your petition within 45 calendar days of receiving the Notice of Noncompliance.
(2) To stay the accrual of penalties, you must post a bond or other surety instrument, or demonstrate financial solvency, using the standards and requirements as prescribed in 30 CFR 250.1490 through 250.1497, for the principal amount of any unpaid amounts due that are the subject of the Notice of Noncompliance, including interest thereon, plus the amount of any penalties accrued before the date a stay becomes effective.
(3) The Hearings Division will grant or deny the petition under 43 CFR 4.21(b).
(a) You may request a hearing on the record to challenge only the amount of a civil penalty when you receive a Notice of Civil Penalty, if you did not previously request a hearing on the record under § 250.1454. If you did not request a hearing on the record on the Notice of Noncompliance under § 250.1454, you may not contest your underlying liability for civil penalties.
(b) You must file your request within 10 days after you receive the Notice of Civil Penalty with the Hearings Division (Departmental), Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203.
The Federal Oil and Gas Royalty Management Act sets out several specific violations for which penalties accrue without an opportunity to first correct the violation.
(a) Under 30 U.S.C. 1719(c), you may be subject to penalties of up to $10,000 per day per violation for each day the violation continues if you:
(1) Fail or refuse to permit lawful entry, inspection, or audit; or
(2) Knowingly or willfully fail or refuse to notify the Secretary, within 5 business days after any well begins production on a lease site or allocated to a lease site, or resumes production in the case of a well which has been off production for more than 90 days, of the date on which production has begun or resumed.
(b) Under 30 U.S.C. 1719(d), you may be subject to civil penalties of up to $25,000 per day for each day each violation continues if you:
(1) Knowingly or willfully prepare, maintain, or submit false, inaccurate, or misleading reports, notices, affidavits, records, data, or other written information;
(2) Knowingly or willfully take or remove, transport, use or divert any oil or gas from any lease site without having valid legal authority to do so; or
(3) Purchase, accept, sell, transport, or convey to another person, any oil or gas knowing or having reason to know that such oil or gas was stolen or unlawfully removed or diverted.
We will inform you of any violation, without a period to correct, by issuing a Notice of Noncompliance and Civil Penalty explaining the violation, how to correct it, and the penalty assessment. We will serve the Notice of Noncompliance and Civil Penalty by registered mail or personal service using your address of record as specified under subpart H of part 1218.
You may request a hearing on the record of a Notice of Noncompliance regarding violations without a period to correct by filing a request within 30 days after you receive the Notice of Noncompliance with the Hearings Division (Departmental), Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203. You may do this regardless of whether you correct the violations identified in the Notice of Noncompliance.
(a) If you do not correct the violations identified in the Notice of Noncompliance regarding violations without a period to correct, the penalties will continue to accrue even if you request a hearing on the record.
(b) You may ask the Hearings Division (Departmental) to stay the accrual of penalties pending the hearing on the record and a decision by the Administrative Law Judge under § 250.1472.
(1) You must file your petition within 45 calendar days after you receive the Notice of Noncompliance.
(2) To stay the accrual of penalties, you must post a bond or other surety instrument, or demonstrate financial solvency, using the standards and requirements as prescribed in 30 CFR 250.1490 through 250.1497, for the principal amount of any unpaid amounts due that are the subject of the Notice of Noncompliance, including interest thereon, plus the amount of any penalties accrued before the date a stay becomes effective.
(3) The Hearings Division will grant or deny the petition under 43 CFR 4.21(b).
(a) You may request a hearing on the record to challenge only the amount of a civil penalty when you receive a Notice of Civil Penalty regarding violations without a period to correct, if you did not previously request a hearing on the record under § 250.1462. If you did not request a hearing on the record on the Notice of Noncompliance under § 250.1462, you may not contest your underlying liability for civil penalties.
(b) You must file your request within 10 days after you receive Notice of Civil Penalty with the Hearings Division (Departmental), Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy, Arlington, Virginia 22203.
We determine the amount of the penalty by considering the severity of the violations, your history of compliance, and if you are a small business.
If you do not pay the penalty by the date required under § 250.1475(d), BOEMRE will assess you late payment interest on the penalty amount at the same rate interest is assessed under 30 CFR 1218.54.
If you request a hearing on the record under §§ 250.1454, 250.1456, 250.1462, or 250.1464, the hearing will be conducted by a Departmental Administrative Law Judge from the Office of Hearings and Appeals. After the hearing, the Administrative Law Judge will issue a decision in accordance with the evidence presented and applicable law.
If you are adversely affected by the Administrative Law Judge's decision, you may appeal that decision to the Interior Board of Land Appeals under 43 CFR part 4, subpart E.
Under 30 U.S.C. 1719(j), you may seek judicial review of the decision of the Interior Board of Land Appeals. A suit for judicial review in the District Court will be barred unless filed within 90 days after the final order.
(a) You must pay the amount of the Notice of Civil Penalty issued under §§ 250.1453 or 250.1461, if you do not request a hearing on the record under §§ 250.1454, 250.1456, 250.1462, or 250.1464
(b) If you request a hearing on the record under §§ 250.1454, 250.1456, 250.1462, or 250.1464, but you do not appeal the determination of the Administrative Law Judge to the Interior Board of Land Appeals under § 250.1473, you must pay the amount assessed by the Administrative Law Judge.
(c) If you appeal the determination of the Administrative Law Judge to the Interior Board of Land Appeals, you must pay the amount assessed in the IBLA decision.
(d) You must pay the penalty assessed within 40 days after:
(1) You received the Notice of Civil Penalty, if you did not request a hearing on the record under either §§ 250.1454, 250.1456, 250.1462, or 250.1464;
(2) You received an Administrative Law Judge's decision under § 250.1472, if you obtained a stay of the accrual of penalties pending the hearing on the record under § 250.1455(b) or § 250.1463(b) and did not appeal the Administrative Law Judge's determination to the IBLA under § 250.1473;
(3) You received an IBLA decision under § 250.1473 if the IBLA continued the stay of accrual of penalties pending its decision and you did not seek judicial review of the IBLA's decision; or
(4) A final non-appealable judgment of a court of competent jurisdiction is entered, if you sought judicial review of the IBLA's decision and the Department or the appropriate court suspended compliance with the IBLA's decision pending the adjudication of the case.
(e) If you do not pay, that amount is subject to collection under the provisions of § 250.1477.
Under 30 U.S.C. 1719(g), the Director or his or her delegate may compromise or reduce civil penalties assessed under this part.
(a) BOEMRE may use all available means to collect the penalty including, but not limited to:
(1) Requiring the lease surety, for amounts owed by lessees, to pay the penalty;
(2) Deducting the amount of the penalty from any sums the United States owes to you; and
(3) Using judicial process to compel your payment under 30 U.S.C. 1719(k).
(b) If the Department uses judicial process, or if you seek judicial review under § 250.1474 and the court upholds assessment of a penalty, the court shall have jurisdiction to award the amount assessed plus interest assessed from the date of the expiration of the 90-day period referred to in § 250.1474. The amount of any penalty, as finally determined, may be deducted from any sum owing to you by the United States.
If you commit an act for which a civil penalty is provided at 30 U.S.C. 1719(d) and § 250.1460(b), the United States may pursue criminal penalties as provided at 30 U.S.C. 1720, in addition to any authority for prosecution under other statutes.
(a) A BOEMRE-specified surety instrument must be in a form specified in BOEMRE instructions. BOEMRE will give you written information and standard forms for BOEMRE-specified surety instrument requirements.
(b) BOEMRE will use a bank-rating service to determine whether a financial institution has an acceptable rating to provide a surety instrument adequate to indemnify the lessor from loss or damage.
(1) Administrative appeal bonds must be issued by a qualified surety company which the Department of the Treasury has approved.
(2) Irrevocable letters of credit or certificates of deposit must be from a financial institution acceptable to BOEMRE with a minimum 1-year period of coverage subject to automatic renewal up to 5 years.
(a) The BOEMRE bond-approving officer may approve your surety if he or she determines that the amount is adequate to guarantee payment. The amount of your surety may vary depending on the form of the surety and how long the surety is effective.
(1) The amount of the BOEMRE-specified surety instrument must include the principal amount owed under the Notice of Noncompliance or Notice of Civil Penalty plus any accrued interest we determine is owed plus projected interest for a 1-year period.
(2) Treasury book-entry bond or note amounts must be equal to at least 120 percent of the required surety amount.
(b) If your appeal is not decided within 1 year from the filing date, you must increase the surety amount to cover additional estimated interest for another 1-year period. You must continue to do this annually on the date your appeal was filed. We will determine the additional estimated interest and notify you of the amount so you can amend your surety instrument.
(c) You may submit a single surety instrument that covers multiple appeals. You may change the instrument to add new amounts under appeal or remove amounts that have been adjudicated in your favor or that you have paid, if you:
(1) Amend the single surety instrument annually on the date you filed your first appeal; and
(2) Submit a separate surety instrument for new amounts under appeal until you amend the instrument to cover the new appeals.
(a) To demonstrate financial solvency under this part, you must submit an audited consolidated balance sheet, and, if requested by the BOEMRE bond-approving officer, up to 3 years of tax returns to BOEMRE using the U.S. Postal Service, private delivery, courier, or overnight delivery at:
(1) For Alaska OCS: Jeffrey Walker, RS/FO, BOEMRE Alaska OCS Region, 3801 Centerpoint Drive, Suite 500, Anchorage, AK 99503-5823,
(2) For Gulf of Mexico and Atlantic OCS: Joshua Joyce, Regional FARM Program Coordinator, BOEMRE Gulf of Mexico OCS Region, 1201 Elmwood Park Boulevard New Orleans, LA 70123-2394,
(3) For Pacific OCS: Jaron Ming, Lead Leasing Specialist, BOEMRE Pacific OCS Region, 770 Paseo Camarillo, 2nd Floor, Camarillo, CA 93010,
(b) You must submit an audited consolidated balance sheet annually, and, if requested, additional annual tax returns on the date BOEMRE first determined that you demonstrated financial solvency as long as you have active appeals, or whenever BOEMRE requests.
(c) If you demonstrate financial solvency in the current calendar year, you are not required to redemonstrate financial solvency for new appeals of orders during that calendar year unless you file for protection under any provision of the U.S. Bankruptcy Code (Title 11 of the United States Code), or BOEMRE notifies you that you must redemonstrate financial solvency.
(a) The BOEMRE bond-approving officer will determine your financial solvency by examining your total net worth, including, as appropriate, the net worth of your affiliated entities.
(b) If your net worth, minus the amount we would require as surety under 30 CFR 250.1490 and 250.1491 for all orders you have appealed is greater than $300 million, you are presumptively deemed financially solvent, and we will not require you to post a bond or other surety instrument.
(c) If your net worth, minus the amount we would require as surety under 30 CFR 250.1490 and 250.1491 for all orders you have appealed is less than $300 million, you must submit the following to BOEMRE by one of the methods in § 250.1495(a):
(1) A written request asking us to consult a business-information, or credit-reporting service or program to determine your financial solvency; and
(2) A nonrefundable $50 processing fee:
(i) You must pay the processing fee to us following the requirements for making payments found in 30 CFR 250.126. You are required to use Electronic Funds Transfer (EFT) for these payments;
(ii) You must submit the fee with your request under paragraph (c)(1) of this section, and then annually on the date we first determined that you demonstrated financial solvency, as long as you are not able to demonstrate financial solvency under paragraph (a) of this section and you have active appeals.
(d) If you request that we consult a business-information or credit-reporting service or program under paragraph (c) of this section:
(1) We will use criteria similar to that which a potential creditor would use to lend an amount equal to the bond or other surety instrument we would require under 30 CFR 250.1490 and 250.1491;
(2) For us to consider you financially solvent, the business-information or credit-reporting service or program must demonstrate your degree of risk as low to moderate:
(i) If our bond-approving officer determines that the business-information or credit-reporting service or program information demonstrates your financial solvency to our satisfaction, our bond-approving officer will not require you to post a bond or other surety instrument under 30 CFR 250.1490 and 250.1491;
(ii) If our bond-approving officer determines that the business-information or credit-reporting service or program information does not demonstrate your financial solvency to our satisfaction, our bond-approving officer will require you to post a bond or other surety instrument under 30 CFR
(a) If you are presumptively financially solvent under § 250.1496(b), BOEMRE will determine your net worth as described under §§ 250.1496(b) and (c) to evaluate your financial solvency at least annually on the date we first determined that you demonstrated financial solvency as long as you have active appeals and each time you appeal a new order.
(b) If you ask us to consult a business-information or credit-reporting service or program under § 250.1496(c), we will consult a service or program annually as long as you have active appeals and each time you appeal a new order.
(c) If our bond-approving officer determines that you are no longer financially solvent, you must post a bond or other BOEMRE-specified surety instrument under §§ 250.1490 and 250.1491.
30 U.S.C. 1726.
5 U.S.C. 301
25 U.S.C. 396
25 U.S.C. 396
(b) Under 30 U.S.C. 1719(d), you may be subject to civil penalties of up to $25,000 per day for each day each violation continues if you knowingly or willfully prepare, maintain, or submit false, inaccurate, or misleading reports, notices, affidavits, records, data, or other written information.
5 U.S.C. 301
Office of Foreign Assets Control, Treasury.
Final rule.
The Department of the Treasury's Office of Foreign Assets Control (“OFAC”) is issuing regulations with respect to Libya to implement Executive Order 13566 of February 25, 2011. OFAC intends to supplement this part 570 with a more comprehensive set of regulations, which may include additional interpretive and definitional guidance and additional general licenses and statements of licensing policy.
Assistant Director for Sanctions Compliance & Evaluation,
This document and additional information concerning OFAC are available from OFAC's Web site (
On February 25, 2011, the President, invoking the authority of,
The Department of the Treasury's Office of Foreign Assets Control (“OFAC”) is issuing the Libyan Sanctions Regulations, 31 CFR part 570 (the “Regulations”), to implement E.O. 13566 pursuant to authorities delegated to the Secretary of the Treasury in E.O. 13566. A copy of E.O. 13566 appears in appendix A to this part.
The Regulations are being published in abbreviated form at this time for the purpose of providing immediate guidance to the public. Effective July 1, 2011, sections 570.506 and 570.508 replace and supersede General License Nos. 3 and 2, respectively, which have been available on, and are now being removed from, OFAC's Web site. General License Nos. 1B, 4, and 5, as well as certain statements of licensing policy, are not being incorporated into the Regulations at this time and remain available on OFAC's Web site at
Because the Regulations involve a foreign affairs function, the provisions of Executive Order 12866 of September 30, 1993, and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.
The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.
Administrative practice and procedure, Banking, Banks, Blocking of assets, Brokers, Credit, Foreign trade, Investments, Libya, Loans, Securities, Services.
For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control adds part 570 to 31 CFR Chapter V to read as follows:
3 U.S.C. 301; 31 U.S.C. 321(b); 50 U.S.C. 1601-1651, 1701-1706; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 110-96, 121 Stat. 1011 (50 U.S.C. 1705 note); E.O. 13566, 76 FR 11315, March 2, 2011.
This part is separate from, and independent of, the other parts of this chapter, with the exception of part 501 of this chapter, the recordkeeping and reporting requirements and license application and other procedures of which apply to this part. Actions taken pursuant to part 501 of this chapter with respect to the prohibitions contained in this part are considered actions taken pursuant to this part. Differing foreign policy and national security circumstances may result in differing interpretations of similar language among the parts of this chapter. No license or authorization contained in or issued pursuant to those other parts authorizes any transaction prohibited by this part. No license or authorization contained in or issued pursuant to any other provision of law or regulation authorizes any transaction prohibited by this part. No license or authorization contained in or issued pursuant to this part relieves the involved parties from complying with any other applicable laws or regulations.
This part has been published in abbreviated form for the purpose of providing immediate guidance to the public. OFAC intends to supplement this part with a more comprehensive set of regulations, which may include additional interpretive and definitional guidance and additional general licenses and statements of licensing policy.
All transactions prohibited pursuant to Executive Order 13566 of February 25, 2011 (76 FR 11315, March 2, 2011), are also prohibited pursuant to this part.
The names of persons listed in or designated pursuant to Executive Order 13566, whose property and interests in property therefore are blocked pursuant to this section, are published in the
The International Emergency Economic Powers Act (50 U.S.C. 1701-1706), in Section 203 (50 U.S.C. 1702), authorizes the blocking of property and interests in property of a person during the pendency of an investigation. The names of persons whose property and interests in property are blocked pending investigation pursuant to this section also are published in the
Sections 501.806 and 501.807 of this chapter describe the procedures to be followed by persons seeking, respectively, the unblocking of funds that they believe were blocked due to mistaken identity, or administrative reconsideration of their status as the Government of Libya or persons whose property and interests in property are blocked pursuant to this section.
(a) Any transfer after the effective date that is in violation of any provision of this part or of any regulation, order, directive, ruling, instruction, or license issued pursuant to this part, and that involves any property or interest in property blocked pursuant to § 570.201, is null and void and shall not be the basis for the assertion or recognition of any interest in or right, remedy, power, or privilege with respect to such property or property interests.
(b) No transfer before the effective date shall be the basis for the assertion or recognition of any right, remedy, power, or privilege with respect to, or any interest in, any property or interest in property blocked pursuant to § 570.201, unless the person who holds or maintains such property, prior to that date, had written notice of the transfer or by any written evidence had recognized such transfer.
(c) Unless otherwise provided, an appropriate license or other authorization issued by the Office of Foreign Assets Control before, during, or after a transfer shall validate such transfer or make it enforceable to the same extent that it would be valid or enforceable but for the provisions of the International Emergency Economic Powers Act, Executive Order 13566, this part, and any regulation, order, directive, ruling, instruction, or license issued pursuant to this part.
(d) Transfers of property that otherwise would be null and void or unenforceable by virtue of the provisions of this section shall not be deemed to be null and void or unenforceable as to any person with whom such property is or was held or maintained (and as to such person only) in cases in which such person is able to establish to the satisfaction of the Office of Foreign Assets Control each of the following:
(1) Such transfer did not represent a willful violation of the provisions of this part by the person with whom such property is or was held or maintained (and as to such person only);
(2) The person with whom such property is or was held or maintained did not have reasonable cause to know or suspect, in view of all the facts and circumstances known or available to such person, that such transfer required a license or authorization issued pursuant to this part and was not so licensed or authorized, or, if a license or authorization did purport to cover the transfer, that such license or authorization had been obtained by misrepresentation of a third party or
(3) The person with whom such property is or was held or maintained filed with the Office of Foreign Assets Control a report setting forth in full the circumstances relating to such transfer promptly upon discovery that:
(i) Such transfer was in violation of the provisions of this part or any regulation, ruling, instruction, license, or other directive or authorization issued pursuant to this part;
(ii) Such transfer was not licensed or authorized by the Office of Foreign Assets Control; or
(iii) If a license did purport to cover the transfer, such license had been obtained by misrepresentation of a third party or withholding of material facts or was otherwise fraudulently obtained.
The filing of a report in accordance with the provisions of paragraph (d)(3) of this section shall not be deemed evidence that the terms of paragraphs (d)(1) and (d)(2) of this section have been satisfied.
(e) Unless licensed pursuant to this part, any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which, on or since the effective date, there existed an interest of a person whose property and interests in property are blocked pursuant to § 570.201.
(a) Except as provided in paragraphs (e) or (f) of this section, or as otherwise directed by the Office of Foreign Assets Control, any U.S. person holding funds, such as currency, bank deposits, or liquidated financial obligations, subject to § 570.201 shall hold or place such funds in a blocked interest-bearing account located in the United States.
(b)(1) For purposes of this section, the term
(i) In a Federally-insured U.S. bank, thrift institution, or credit union, provided the funds are earning interest at rates that are commercially reasonable; or
(ii) With a broker or dealer registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934 (15 U.S.C. 78a
(2) Funds held or placed in a blocked account pursuant to paragraph (a) of this section may not be invested in instruments the maturity of which exceeds 180 days.
(c) For purposes of this section, a rate is commercially reasonable if it is the rate currently offered to other depositors on deposits or instruments of comparable size and maturity.
(d) For purposes of this section, if interest is credited to a separate blocked account or subaccount, the name of the account party on each account must be the same.
(e) Blocked funds held in instruments the maturity of which exceeds 180 days at the time the funds become subject to § 570.201 may continue to be held until maturity in the original instrument, provided any interest, earnings, or other proceeds derived therefrom are paid into a blocked interest-bearing account in accordance with paragraphs (a) or (f) of this section.
(f) Blocked funds held in accounts or instruments outside the United States at the time the funds become subject to § 570.201 may continue to be held in the same type of accounts or instruments, provided the funds earn interest at rates that are commercially reasonable.
(g) This section does not create an affirmative obligation for the holder of blocked tangible property, such as chattels or real estate, or of other blocked property, such as debt or equity securities, to sell or liquidate such property. However, the Office of Foreign Assets Control may issue licenses permitting or directing such sales or liquidation in appropriate cases.
(h) Funds subject to this section may not be held, invested, or reinvested in a manner that provides immediate financial or economic benefit or access to any person whose property and interests in property are blocked pursuant to § 570.201, nor may their holder cooperate in or facilitate the pledging or other attempted use as collateral of blocked funds or other assets.
The terms
See § 570.406 concerning the blocked status of property and interests in property of an entity that is 50 percent or more owned by a person whose property and interests in property are blocked pursuant to § 570.201.
The term
(a) With respect to the Government of Libya, as defined in § 570.304, or a person listed in the Annex to Executive Order 13566, 8 p.m. eastern standard time, February 25, 2011; or
(b) With respect to a person whose property and interests in property are otherwise blocked pursuant to Executive Order 13566, the earlier of the date of actual or constructive notice that such person's property and interests in property are blocked.
The term
The term
(a) The state and the Government of Libya, as well as any political subdivision, agency, or instrumentality thereof, and the Central Bank of Libya;
(b) Any entity owned or controlled, directly or indirectly, by the foregoing;
(c) Any person to the extent that such person is, or has been, or to the extent that there is reasonable cause to believe that such person is, or has been, since the effective date, acting or purporting to act directly or indirectly on behalf of any of the foregoing; and
(d) Any other person determined by the Office of Foreign Assets Control to be included within paragraphs (a) through (c) of this section.
The names of some of the persons that fall within this definition are published in the
Section 501.807 of this chapter describes the procedures to be followed by persons seeking administrative
Except as otherwise provided in this part, the term
(a) Except as otherwise specified, the term
(b) The term
(c) The term
See § 501.801 of this chapter on licensing procedures.
The term
The terms
The term
The term
The term
The term
Unless otherwise specifically provided, any amendment, modification, or revocation of any provision in this part, any provision in or appendix to this chapter, or any order, regulation, ruling, instruction, or license issued by the Office of Foreign Assets Control does not affect any act done or omitted, or any civil or criminal proceeding commenced or pending, prior to such amendment, modification, or revocation. All penalties, forfeitures, and liabilities under any such order, regulation, ruling, instruction, or license continue and may be enforced as if such amendment, modification, or revocation had not been made.
(a) Whenever a transaction licensed or authorized by or pursuant to this part results in the transfer of property (including any property interest) away from the Government of Libya or a person, such property shall no longer be deemed to be property blocked pursuant to § 570.201, unless there exists in the property another interest that is blocked pursuant to § 570.201, the transfer of which has not been effected pursuant to license or other authorization.
(b) Unless otherwise specifically provided in a license or authorization issued pursuant to this part, if property (including any property interest) is transferred or attempted to be transferred to the Government of Libya or any other person whose property and interests in property are blocked pursuant to § 570.201, such property shall be deemed to be property in which the Government of Libya or that person has an interest and therefore blocked.
Any transaction ordinarily incident to a licensed transaction and necessary to
(a) An ordinarily incident transaction, not explicitly authorized within the terms of the license, by or with the Government of Libya or any other person whose property and interests in property are blocked pursuant to § 570.201; or
(b) An ordinarily incident transaction, not explicitly authorized within the terms of the license, involving a debit to a blocked account or a transfer of blocked property.
A setoff against blocked property (including a blocked account), whether by a U.S. bank or other U.S. person, is a prohibited transfer under § 570.201 if effected after the effective date.
A person whose property and interests in property are blocked pursuant to § 570.201 has an interest in all property and interests in property of an entity in which it owns, directly or indirectly, a 50 percent or greater interest. The property and interests in property of such an entity, therefore, are blocked, and such an entity is a person whose property and interests in property are blocked pursuant to § 570.201, regardless of whether the entity itself is listed in the Annex or designated pursuant to Executive Order 13566.
This section, which deals with the consequences of ownership of entities, in no way limits section 570.304's definition of the term
For provisions relating to licensing procedures, see part 501, subpart E of this chapter. Licensing actions taken pursuant to part 501 of this chapter with respect to the prohibitions contained in this part are considered actions taken pursuant to this part. Additional general licenses and statements of licensing policy relating to this part may be available through the following page on OFAC's Web site:
The Office of Foreign Assets Control reserves the right to exclude any person, property, transaction, or class thereof from the operation of any license or from the privileges conferred by any license. The Office of Foreign Assets Control also reserves the right to restrict the applicability of any license to particular persons, property, transactions, or classes thereof. Such actions are binding upon actual or constructive notice of the exclusions or restrictions.
Any payment of funds or transfer of credit in which the Government of Libya or any other person whose property and interests in property are blocked pursuant to § 570.201 has any interest that comes within the possession or control of a U.S. financial institution must be blocked in an account on the books of that financial institution. A transfer of funds or credit by a U.S. financial institution between blocked accounts in its branches or offices is authorized, provided that no transfer is made from an account within the United States to an account held outside the United States, and further provided that a transfer from a blocked account may be made only to another blocked account held in the same name.
See § 501.603 of this chapter for mandatory reporting requirements regarding financial transfers. See also § 570.203 concerning the obligation to hold blocked funds in interest-bearing accounts.
(a) A U.S. financial institution is authorized to debit any blocked account held at that financial institution in payment or reimbursement for normal service charges owed it by the owner of that blocked account.
(b) As used in this section, the term
(a) The provision of the following legal services to or on behalf of the Government of Libya or any other persons whose property and interests in property are blocked pursuant to § 570.201 is authorized, provided that all receipts of payment of professional fees and reimbursement of incurred expenses must be specifically licensed:
(1) Provision of legal advice and counseling on the requirements of and compliance with the laws of the United States or any jurisdiction within the United States, provided that such advice and counseling are not provided to facilitate transactions in violation of this part;
(2) Representation of the Government of Libya or persons named as defendants in or otherwise made parties to domestic U.S. legal, arbitration, or administrative proceedings;
(3) Initiation and conduct of legal, arbitration, or administrative proceedings before any U.S. Federal, state, or local court or agency;
(4) Representation of the Government of Libya or persons before any U.S. Federal, state, or local court or agency with respect to the imposition, administration, or enforcement of U.S. sanctions against the Government of Libya or such persons; and
(5) Provision of legal services in any other context in which prevailing U.S. law requires access to legal counsel at public expense.
(b) The provision of any other legal services to the Government of Libya or any other persons whose property and interests in property are blocked pursuant to § 570.201, not otherwise authorized by this section, requires the issuance of a specific license.
(c) Entry into a settlement agreement or the enforcement of any lien, judgment, arbitral award, decree, or other order through execution, garnishment, or other judicial process purporting to transfer or otherwise alter or affect property or interests in property blocked pursuant to § 570.201 is prohibited unless licensed pursuant to this part.
Effective July 1, 2011, this section replaces and supersedes General License No. 3, dated March 9, 2011, which was issued pursuant to Executive Order 13566, and posted on OFAC's Web site, to authorize provision of certain legal services.
The provision of nonscheduled emergency medical services in the United States to persons whose property and interests in property are blocked pursuant to § 570.201 is authorized, provided that all receipt of payment for such services must be specifically licensed.
(a) The provision of goods or services in the United States to the diplomatic missions of the Government of Libya to the United States and the United Nations is authorized, provided that:
(1) The goods or services are for the conduct of the official business of the missions, or for personal use of the employees of the missions, and are not for resale;
(2) The transaction does not involve the purchase, sale, financing, or refinancing of real property;
(3) The transaction is not otherwise prohibited by law; and
(4) The transaction is conducted through an account at a U.S. financial institution specifically licensed by OFAC.
U.S. financial institutions are required to obtain specific licenses to operate accounts for, or extend credit to, the diplomatic missions of the Government of Libya to the United States and the United Nations.
(b) The provision of goods or services in the United States to the employees of the diplomatic missions of the Government of Libya to the United States and the United Nations is authorized, provided that:
(1) The goods or services are for personal use of the employees of the missions, and are not for resale; and
(2) The transaction is not otherwise prohibited by law.
See § 570.404 for authorization, with certain exceptions, of any transaction ordinarily incident to a licensed transaction and necessary to give effect thereto.
Effective July 1, 2011, this section replaces and supersedes General License No. 2, dated March 1, 2011, which was issued pursuant to Executive Order 13566 and posted on OFAC's Web site.
Any action that the Secretary of the Treasury is authorized to take pursuant to Executive Order 13566 of February 25, 2011 (76 FR 11315, March 2, 2011), and any further Executive orders relating to the national emergency declared therein, may be taken by the Director of the Office of Foreign Assets Control or by any other person to whom the Secretary of the Treasury has delegated authority so to act.
For approval by the Office of Management and Budget (“OMB”) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) of information collections relating to recordkeeping and reporting requirements, licensing procedures (including those pursuant to statements of licensing policy), and other procedures, see § 501.901 of this chapter. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB.
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701
I hereby order:
(a) The persons listed in the Annex to this order; and
(b) Any person determined by the Secretary of the Treasury, in consultation with the Secretary of State:
(i) To be a senior official of the Government of Libya;
(ii) To be a child of Colonel Muammar Qadhafi;
(iii) To be responsible for or complicit in, or responsible for ordering, controlling, or otherwise directing, or to have participated in, the commission of human rights abuses related to political repression in Libya;
(iv) To have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of the activities described in subsection (b)(iii) of this section or any person whose property and interests in property are blocked pursuant to this order;
(v) To be owned or controlled by, or to have acted or purported to act for or on behalf of, any person whose property and interests in property are blocked pursuant to this order; or
(vi) To be a spouse or dependent child of any person whose property and interests in property are blocked pursuant to this order.
(a) The making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order; and
(b) The receipt of any contribution or provision of funds, goods, or services from any such person.
(b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited.
(a) The term “person” means an individual or entity;
(b) The term “entity” means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization; and
(c) The term “United States person” means any United States citizen or national, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States.
1. Ayesha QADHAFI [Lieutenant General in the Libyan Army, born circa 1976 or 1977]
2. Khamis QADHAFI [born 1980]
3. Muammar QADHAFI [Head of State of Libya, born 1942]
4. Mutassim QADHAFI [National Security Advisor and Lieutenant Colonel in the Libyan Army, born circa 1975]
5. Saif Al-Islam QADHAFI [born June 5, 1972]
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of the Colorado River in Bullhead City, Arizona for the Bullhead City Regatta on August 13, 2011. This temporary safety zone is necessary to provide for the safety of the participants, crew, spectators, participating vessels, and other vessels and users of the waterway. Persons and vessels would be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port or his designated representative.
This rule is effective August 13, 2011, from 6 a.m. through 6 p.m.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0410 and are available online by going to
If you have questions on this rule, call or e-mail Petty Officer Shane Jackson, Waterways Management, U.S. Coast Guard Sector San Diego, Coast Guard; telephone 619-278-7267, e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing a NPRM would be impracticable since immediate action is needed to provide for the safety of the participants, crew, spectators, sponsor vessels, and other vessels and users of the waterway during the Regatta event.
The City of Bullhead is sponsoring the Bullhead City Regatta, which is held on the navigable waters of the Colorado River in Bullhead City, Arizona. The temporary safety zone is necessary to provide for the safety of the participants, crew, spectators, sponsor vessels, and other vessels and users of the waterway. This event involves people floating down the river on inflatable rafts, inner tubes and floating platforms. The size of vessels used would vary in length from 3 feet to 100 feet. Approximately 15,000 to 20,000 people would be participating in this event. The sponsor would provide 37 patrol and rescue boats to help facilitate the event and ensure public safety.
The Coast Guard is establishing a temporary safety zone that would be enforced from 7 a.m. to 3 p.m. on August 13, 2011. This safety zone is necessary to provide for the safety of the crews, spectators, participants, and other vessels and users of the waterway. Persons and vessels would be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
This determination is based on the size and location of the safety zone. Vessels will not be allowed to transit through the established safety zone during the specified times unless authorized to do so by the Captain of the Port or his designated representative.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the waters of the Colorado River between Davis Camp to Rotary Park in Bullhead City, Arizona from 7 a.m. to 3 p.m. on August 13, 2011.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Although the safety zone would apply to the entire width of the river, traffic would be allowed to pass through the zone with the permission of the Coast Guard patrol commander. Before the effective period, the Coast Guard will publish a Local Notice to Mariners (LNM).
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Petty Officer Shane Jackson, Waterways Management, U.S. Coast Guard Sector San Diego, Coast Guard at (619) 278-7267. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing a safety zone and is categorically excluded under figure 2-1, paragraph (34)(g), of the Instruction. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(2) Mariners can request permission to transit through the safety zone from the Patrol Commander. The Patrol Commander can be contacted on VHF-FM channels 16 and 23.
(3) All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or his designated representative.
(4) Upon being hailed by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.
(5) The Coast Guard may be assisted by other Federal, state, or local agencies.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a 420-foot radius safety zone on the navigable waters of the Pagan River in Smithfield, VA in support of the Fourth of July Fireworks event. This action is intended to restrict vessel traffic movement to protect mariners and spectators from the hazards associated with aerial fireworks displays.
This rule will be effective from 9 p.m. to 10 p.m. on July 3, 2011.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2011-0588 and are available online by going to
If you have questions on this temporary rule, call or e-mail LCDR Christopher A. O'Neal, Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; telephone 757-668-5580, e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive the application for this event in sufficient time to allow for publication of an NPRM, and any delay encountered in this regulation's effective date by publishing a NPRM would require either the cancellation of the event, or require that the event be held without a safety zone. Either course of action would be contrary to the public interest since immediate action is needed to provide for the safety of life and property on navigable waters. Additionally, this temporary safety zone will be enforced for approximately one hour on Sunday, July 3, 2011 while the fireworks display is in progress. This safety zone should have a minimal impact on transiting vessels because mariners are not precluded from using any portion of the waterway except the area within the safety zone. In addition, publishing an NPRM is unnecessary
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On July 3, 2011, the Isle of Wight County, VA will sponsor a fireworks display on the navigable waters of the Pagan River shoreline centered on position 36°59′18″ N/076°37′45″ W (NAD 1983). Due to the need to protect mariners and spectators from the hazards associated with the fireworks display, such as the accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris, vessel traffic will be temporarily restricted within 420 feet of the fireworks launch site.
The Coast Guard is establishing a safety zone on the navigable waters of the Pagan River within the area bounded by a 420-foot radius circle centered on position 36°59′18″ N/076°37′45″ W (NAD 1983). This safety zone will be established in the vicinity of Smithfield, VA from 9 p.m. to 10 p.m. on July 3, 2011. In the interest of public safety, general navigation within the safety zone will be restricted during the specified date and times. Except for participants and vessels authorized by the Coast Guard Captain of the Port or his representative, no person or vessel may enter or remain in the regulated area.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this regulation restricts access to the safety zone, the effect of this rule will not be significant because: (i) The safety zone will be in effect for a limited duration; (ii) the zone is of limited size; (iii) mariners may transit the waters in and around this safety zone at the discretion of the Captain of the Port or designated representative; and (iv), the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
The rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Pagan River from 9 p.m. to 10 p.m. on July 3, 2011.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone will be in effect for a limited duration; (ii) the zone is of limited size; and (iii) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, Under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing a temporary safety zone. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 subpart C as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) The operator of any vessel in the immediate vicinity of this safety zone shall:
(i) Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(ii) Proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(3) The Captain of the Port, Hampton Roads can be reached through the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia at telephone Number (757) 668-5555.
(4) The Coast Guard Representatives enforcing the safety zone can be contacted on VHF-FM marine band radio channel 13 (165.65Mhz) and channel 16 (156.8 Mhz).
(d)
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the Antelope Valley Air Quality Management District (AVAQMD) portion of the California State Implementation Plan (SIP). These revisions concern negative declarations for volatile organic compound (VOC) source categories for the AVAQMD. We are approving these negative declarations under the Clean Air Act as amended in 1990 (CAA or the Act).
This rule is effective on August 30, 2011 without further notice, unless EPA receives adverse comments by August 1, 2011. If we receive such comments, we will publish a timely withdrawal in the
Submit comments, identified by docket number EPA-R09-OAR-2011-0383, by one of the following methods:
1.
2.
3.
Cynthia Allen, EPA Region IX, (415) 947-4120,
Throughout this document, “we,” “us” and “our” refer to EPA.
Table 1 lists the negative declarations we are approving with the dates that they were adopted by the Antelope Valley Air Quality Management District (AVAQMD) and submitted by the California Air Resources Board (CARB).
On February 8, 2011, EPA determined that the submittal for Antelope Valley AQMD Negative Declarations submitted on January 7, 2011, met the completeness criteria in 40 CFR Part 51, Appendix V, which must be met before formal EPA review.
On July 31, 2007, the submittal for Antelope Valley Negative Declarations submitted on January 31, 2007, was deemed by operation of law to meet the completeness criteria in 40 CFR Part 51, Appendix V, which must be met before formal EPA review.
There are no previous versions of these negative declarations.
The negative declarations were submitted to meet the requirements of CAA section 182(a)(2)(A). Nonattainment areas are required to adopt volatile organic compound (VOC) regulations for the published Control Techniques Guidelines (CTG) categories. If a nonattainment area does not have stationary sources for which EPA has published a CTG, then the area is required to submit a negative declaration. The negative declarations were submitted because there are no applicable sources within the AVAQMD jurisdiction. EPA's technical support document (TSD) has more information about these negative declarations.
The negative declarations are submitted as SIP revisions and must be consistent with Clean Air Act requirements for Reasonably Available Control Technology (RACT) (see section
We believe these negative declarations are consistent with the relevant policy and guidance regarding RACT and SIP relaxations. The TSD has more information on our evaluation.
As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted negative declarations as additional information to the SIP because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
These negative declarations were submitted to fulfill the requirements of CAA Section 182(a)(2)(A). Section 182 requires that ozone nonattainment areas adopt VOC regulations found in the Control Techniques Guidelines Series for all major non-CTG sources of VOC or NO
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not interfere with Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) because EPA lacks the discretionary authority to address environmental justice in this rulemaking.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 30, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(a) * * *
(6) * * *
(vii) Large Appliances, Surface Coating; Wood Furniture Surface Coating; Gasoline Bulk Plants, Equipment Leaks from Natural Gas/Gasoline Processing Plants; Leaks from Petroleum Refinery Equipment; Air Oxidation Processes (SOCMI); Reactor and Distillation Processes (SOCMI); Tank Truck Gasoline Loading Terminals > 76,000 L; Manufacture of Synthesized Pharmaceutical Products; Manufacture of Pneumatic Rubber Tires; Manufacture of High Density Polyethylene, Polypropylene and Polystyrene; Equipment Used in Synthetic Organic Chemical Polymers and Resin Manufacturing; Refinery Vacuum-Producing Systems, Wastewater Separators and Process Unit Turnarounds; and Magnetic Wire Coating Operations submitted on January 31, 2007 and adopted on September 19, 2006.
(viii) Ship Repair Operations; Storage of Petroleum Liquids in Fixed Roof Tanks; and Petroleum Liquid Storage in External Floating Roof Tanks submitted on January 7, 2011 and adopted on October 19, 2010.
Fish and Wildlife Service, Interior.
Notice of document availability: revised recovery plan.
We, the U.S. Fish and Wildlife Service, announce the availability of the Revised Recovery Plan for the Northern Spotted Owl (
Effective July 1, 2011.
Electronic copies of the revised recovery plan are available online at:
Dr. Paul Henson, State Supervisor, at the above address and phone number.
Recovery of endangered or threatened animals and plants and the ecosystems upon which they depend is a primary goal of our endangered species program and the Endangered Species Act (Act) (16 U.S.C. 1531
The Act requires the development of recovery plans for listed species unless such a plan would not promote the conservation of a particular species. Recovery plans help guide conservation efforts by describing such site-specific management actions as may be necessary to achieve the plan's goal for the conservation and survival of the species, establishing criteria for delisting in accordance with the provisions of section 4 of the Act, and estimating the time and cost for implementing those measures needed to achieve the plan's goal and intermediate steps toward that goal.
Section 4(f) of the Act requires that public notice and an opportunity for public review and comment be provided during recovery plan development. In fulfillment of this requirement, we made the Draft Revised Recovery Plan for the Northern Spotted Owl available for public review and comment from September 15 through November 15, 2010 (September 15, 2010; 75 FR 56131) and then extended the comment period from November 30 through December 15, 2010 (November 30, 2010; 75 FR 74073). In addition, we reopened the comment period from April 22 through May 23, 2011 (April 22, 2011; 76 FR 22720) on an updated version of Appendix C of the draft revised recovery plan, which describes the development of a spotted owl habitat modeling tool. As we prepared this final revised recovery plan, we considered information provided during the public comment periods. An appendix to the plan will guide readers to a Web address where summarized responses to comments can be reviewed.
The northern spotted owl (hereafter, spotted owl) was Federally listed as a threatened species on June 26, 1990 (55 FR 26114). The current range of the spotted owl extends from southwest British Columbia through the Cascade Mountains, coastal ranges, and intervening forested lands in Washington, Oregon, and California, as far south as Marin County. Spotted owls
The spotted owl was listed as threatened throughout its range due to the loss of suitable habitat to timber harvesting, exacerbated by catastrophic events such as fire and wind storms. Today we recognize past habitat loss, current habitat loss, and competition from barred owls (
In May of 2008, we published the Recovery Plan for the Northern Spotted Owl and announced its availability in the
The revised recovery plan is based on a review of all relevant biology, including new scientific information that has become available and critical peer review comments we received on the 2008 recovery plan from three professional scientific associations: The Wildlife Society, the American Ornithologists' Union, and The Society for Conservation Biology. Like several previous plans for conserving and recovering the spotted owl, the 2008 recovery plan recommended a network of large habitat blocks, or Managed Owl Conservation Areas (MOCAs), intended to support long-term recovery of the species. The peer review comments, however, were critical of this network for several reasons, including that we did not use updated modeling techniques to design the network and assess its efficacy.
The revised recovery plan prioritizes recovery tasks aimed at: (1) Maintaining and managing for an adequate amount of spotted owl habitat across the species' range; (2) restoring natural processes in the dry forest landscapes such that the impacts of habitat loss through climate change are minimized; and (3) conducting large-scale experiments on the effects of barred owl removal in areas where the two species co-occur. The goal of this recovery plan is to improve the status of the spotted owl so that it no longer requires the protections of the Endangered Species Act.
The revised recovery plan is different from the 2008 recovery plan in several respects. We initiated a scientifically rigorous, multi-step, range-wide modeling effort to allow comparison of estimated spotted owl population performance among alternative habitat conservation scenarios and other conservation strategies. We are withdrawing our previous recommendation to implement the MOCA network identified in the 2008 recovery plan and instead recommend continuing to rely upon the Northwest Forest Plan and designated critical habitat. Until spotted owl population trends improve, the revised recovery plan also recommends conserving spotted owl sites and high value spotted owl habitat to provide additional demographic support to the spotted owl population and refugia from barred owls. The revised recovery plan also recognizes the possibility of needing additional conservation contributions from non-Federal lands. Finally, the revised recovery plan affirms our support for forest restoration management actions that address concerns about climate change and health of forest ecosystems and promote long-term spotted owl recovery.
The authority for this action is section 4(f) of the Endangered Species Act, 16 U.S.C. 1533(f).
Community Development Financial Institutions Fund, U.S. Department of Treasury.
Request for public comment.
This notice invites comments from the public on issues regarding the Community Development Financial Institutions (CDFI) Bond Guarantee Program created by the Small Business Jobs Act of 2010. All materials submitted will be available for public inspection and copying.
All comments and submissions must be received by August 15, 2011.
Comments may be sent by mail to: Jodie Harris, Policy Specialist, CDFI Fund, U.S. Department of the Treasury, 601 13th Street, NW., Suite 200 South, Washington, DC 20005; by e-mail to
Information regarding the CDFI Fund and its programs may be downloaded from the CDFI Fund's Web site at
The Community Development Financial Institutions Fund (CDFI Fund) was created for the purpose of promoting economic revitalization and community development through investment in and assistance to CDFIs. Its vision is to economically empower America's underserved and distressed communities through the provision of low-cost capital to certified CDFIs. The CDFI Fund was established by the Riegle Community Development Banking and Financial Institutions Act of 1994.
The CDFI Bond Guarantee Program (the program) was enacted through the Small Business Jobs Act of 2010 (Pub. L. 111-240) on September 27, 2010. The CDFI Fund will serve as the program administrator and must administer the program in accordance with sections 1134 and 1703 of the Small Business Jobs Act, which amended the Community Development Banking and Financial Institutions Act of 1994, 12 U.S.C. 4701
Section 114A authorizes the Secretary of the Treasury (through the CDFI Fund) to guarantee the full amount of notes or bonds, including the principal, interest, and call premiums not to exceed 30 years, issued by CDFIs to finance loans for eligible community or economic development purposes. The bonds or notes will support CDFI lending and investment by providing a source of long-term, patient capital to CDFIs. In accordance with Federal credit policy, moreover, the Federal Financing Bank (FFB), a body corporate and instrumentality of the United States Government under the general supervision and direction of the Secretary of the Treasury, finances obligations that are 100% guaranteed by the United States, such as the bonds or notes to be issued by CDFIs under the program. Because the FFB's cost of funds is equivalent to the current Treasury rates for comparable maturities, the FFB can provide CDFIs the least expensive funds to generate loans and represents the most efficient way for CDFIs to finance 100% Federally guaranteed obligations.
The CDFI Fund is required by statute to promulgate program regulations by September 27, 2011 and to implement the program by September 27, 2012.
The CDFI Fund invites and encourages comments and suggestions germane to the mission, purpose, and implementation of the CDFI Bond Guarantee Program. The CDFI Fund is particularly interested in comments in the following areas:
(a) Section 114A(a) of the Act provides certain definitions applicable to the CDFI Bond Guarantee Program. In particular, Section 114A(a)(2) of the Act defines eligible community or economic development purpose as any purpose described in section 108(b) [12 U.S.C. 4707(b)] and includes the provision of community or economic development in low-income or underserved rural areas. The CDFI Fund is interested in comments regarding all definitions found in the Act as they relate to the program, including the following:
(i) How should the term “low-income” be defined as such term is used in Section 114A(a)(2)?
(ii) How should the term “rural areas” be defined as such term is used in Section 114A(a)(2)? For example, is a rural community any census tract that is not located in a metropolitan statistical area (MSA)? Respondents should discuss how a particular definition would enable the program to target businesses and residents in rural areas, and discuss whether there are particular measures that should not be used because they may inadvertently disadvantage certain populations (
(iii) How should the term “underserved” be defined and/or measured?
(iv) Should “eligible community or economic development purpose” be defined to allow a CDFI or its designated Qualified Issuer to only invest inside the CDFI Fund Target Market that it was certified to serve?
(a) The Act defines a loan as any credit instrument that is extended under the CDFI Bond Guarantee Program for any eligible community or economic development purpose. Section 114A(b) of the Act states that the Secretary of the Treasury (the Secretary) shall guarantee payments on bonds or notes issued by a qualified issuer if the proceeds of the bonds or notes are used in accordance with this section to make loans to eligible community development financial institutions (CDFIs)
(1) For eligible community or economic development purposes; or
(2) To refinance loans or notes issued for such purposes.
The CDFI Fund invites and encourages comments and suggestions germane to the criteria and use of funds. The CDFI Fund is particularly interested in comments including the following:
(i) Should there be any limitations on the types of loans that can be financed or refinanced with the bond proceeds? Are there any uses of bond or note proceeds that should be excluded or deemed ineligible regardless of the fact
(ii) Should the capitalization of: (1) Revolving loan funds; (2) credit enhancement of investments made by CDFIs and/or others; or (3) loan loss reserves, debt service reserves, and/or sinking funds in support of a Federally guaranteed bond, be included as eligible purposes?
(iii) Should there be any limits on the percentage of loans or notes refinanced with the bond proceeds? If so, what should they be?
(iv) Should CDFIs be allowed to use bond proceeds to purchase loans from other CDFIs? If so, should the CDFI that sells the loans be required to invest a certain portion of the proceeds from the sale to support additional community development activities?
(v) Should the CDFI Fund place additional restrictions on the awardees' loan products, such as a cap on the interest rate, fees and/or late payment penalties or on the marketing and disclosure standards for the products? If so, what are the appropriate restrictions?
(b) Section 114A(c)(1) states that a capital distribution plan meets the requirements of the subsection if not less than 90 percent of the principal amount of guaranteed bonds or notes (other than the cost of issuance fee) are used to make loans for any eligible community or economic development purpose, measured annually, beginning at the end of the one-year period beginning on the issuance date of such guaranteed bonds or notes. The CDFI Fund welcomes comments regarding this provision, specifically regarding what penalties the CDFI Fund should impose if an issuer is out of compliance.
(c) Section 114A(c)(2) states that not more than 10 percent of the principal amount of guaranteed bonds or notes -, multiplied by an amount equal to the outstanding principal balance of issued notes or bonds, minus the risk-share pool amount—may be held in a relending account and may be available for new eligible community or economic development purposes.
(i) How should the CDFI Fund define “relending” account as stated in Section 114A(c)(2)? How should it differ from the loans made under Section 114(c)(1)?
(ii) If the capitalization of revolving loan funds is deemed an allowable use of funds under Section 114A(a)(4), what activities would be eligible under the relending account?
(iii) If additional reserves are held, should they be permitted to be funded from the relending account?
(iv) Should a sinking fund, or any other reserve to allow for the payment of debt service, be permitted to be funded from the relending account?
(d) Section 114A(d) states that each qualified issuer shall, during the term of a guarantee provided under the CDFI Bond Guarantee Program, establish a risk-share pool, capitalized by contributions from eligible community development financial institution participants, of an amount equal to three percent of the guaranteed amount outstanding on the subject notes and bonds.
(i) In the event that the CDFI Fund determines that there is a risk of loss to the government for which Congress has not provided an appropriation, what steps should the CDFI Fund take to compensate for this risk?
a. Should the interest rate on the bonds be increased?
b. Should a larger risk-share pool be required?
c. Should the CDFI Fund require restrictions, covenants and conditions (
(ii) How should the CDFI Fund assess and compensate for different levels of risk among diverse proposals without unduly restricting the flexible use of funds for a range of community development purposes? For example:
a. Should the CDFI Fund take into account the participation of a risk-sharing partner? What should be the parameters of any such risk-sharing?
b. Should the Fund take into account an independent, third-party credit rating from a major rating agency?
(iii) Are there restrictions, covenants, conditions or other measures the CDFI Fund should not impose? Please provide specific examples, if possible.
(iv) Should the qualified issuer be allowed to set aside the three percent from the bond proceeds or should these funds be separate from the proceeds?
(a) Section 114A(a)(3) defines a guarantee as a written agreement between the Secretary and a qualified issuer (or trustee) pursuant to which the Secretary ensures repayment of the verifiable losses of principal, interest, and call premium, if any, on notes or bonds issued by a qualified issuer to finance or refinance loans to eligible CDFI. The CDFI Fund invites and encourages comments and suggestions relating to the guarantee provisions, especially:
(i) How should the CDFI Fund define and determine “verifiable losses of principal, interest, and call premium”?
(ii) Should the CDFI Fund permit a call upon the guarantee at any point prior to the issuer liquidating the available assets? If so, under what condition should a call on the guarantee be permitted?
(b) Section 114A(e)(1) indicates that the Treasury guarantee shall be for the full amount of a bond or note, including the amount of principal, interest, and call premiums not to exceed 30 years. The Treasury may not guarantee any amount less than $100 million per issuance.
(i) Should the CDFI Fund set specific guidelines or prohibitions for the structure of the bond (
(ii) Should bonds that are used to fund certain asset classes be required to have specific terms or conditions? Should riskier asset classes or borrowers require additional enhancements?
(c) Section 114A(e)(2) states limitations on the guarantees.
(1) The Secretary shall issue not more than 10 guarantees in any calendar year under the program.
(2) The Secretary may not guarantee any amount under the program equal to less than $100 million but the total of all such guarantees in any fiscal year may not exceed $1 billion.
(i) Can qualified issuers apply for multiple issuances? Should there be a limit per qualified issuer? If so, what should that limit be?
(a) Section 114A(a)(1) defines an eligible entity as a CDFI (as described in section 1805.201 of title 12, Code of Federal Regulations, or any successor thereto) certified by the Secretary that has applied to a qualified issuer for, or that has been granted by a qualified issuer, a loan under the program. The CDFI Fund welcomes comments on issues relating to eligible entities, particularly with respect to the following questions:
(i) Should the CDFI Fund require one qualified issuer (or appointed trustee) for all bonds and notes issued under the program?
(ii) Should the CDFI Fund permit an entity not yet certified as a CDFI to apply for CDFI certification simultaneous with submission of a capital distribution plan?
(iii) Should the CDFI Fund allow all existing CDFIs to apply, or should there be minimum eligibility criteria?
(iv) The Act states that a qualified issuer should have “appropriate expertise, capacity, and experience, or otherwise be qualified to make loans for eligible community or economic development purposes.” How should
(v) What penalties should be imposed in the event that a CDFI participating in the program ceases to be a certified CDFI? What remedies and cure periods should the CDFI Fund allow in the event of a lapse in CDFI certification?
(b) Section 114A(a)(5) defines a master servicer as an entity approved by the Secretary in accordance with subparagraph (B) to oversee the activities of servicers, as provided in subsection (f)(4).
(i) Should the CDFI Fund require one servicer for all bonds and notes issued under the program?
(ii) Should the CDFI Fund require the master servicer and servicers to have a track record of providing similar services? How should the CDFI Fund evaluate the capabilities of prospective servicers and master servicers?
(iii) Should the CDFI Fund pre-qualify servicers and make those groups known to CDFIs wishing to submit a capital distribution plan for consideration?
(iv) Should a CDFI issuer be allowed to serve as its own servicer?
(v) Should the master servicer be eligible to serve as a program administrator or servicer for a qualified issuer? If so, how should potential conflicts of interest be managed?
(c) Section 114(a)(8) defines qualified issuers as a CDFI (or any entity designated to issue notes or bonds on behalf of such CDFI) that meets certain qualifications: (1) Have appropriate expertise, (2) have an acceptable capital distribution plan, and (3) be able to certify that the bond proceeds will be used for community development.
(i) How should a CDFI demonstrate its expertise?
(ii) Are there any institutions that should be prohibited from serving as qualified issuers?
(iii) Should the CDFI Fund establish minimum criteria for serving as a qualified issuer?
(iv) Should the CDFI Fund set a minimum asset size for CDFI participation as a qualified issuer?
(v) Should the CDFI Fund require the issuer to have a minimum net capital (real equity capital) and require a set amount of net capital be held for the term of the bond? If so, what is a reasonable level to require?
(vi) Should qualified issuers be required to obtain an independent, third-party credit rating from a major rating agency?
(a) Section 114A(a)(8)(B)(ii)(II) states that a qualified issuer shall provide to the Secretary: (aa) an acceptable statement of the proposed sources and uses of the funds and (bb) a capital distribution plan that meets the requirements of subsection (c)(1). The CDFI Fund seeks comments relating to the capital distribution plan requirement, specifically:
(i) What elements should be required in an acceptable statement of proposed sources and uses of the funds? How should the CDFI Fund measure acceptability?
(ii) What elements should be required in a capital distribution plan? Are there examples of such plans, Federal or otherwise, upon which the CDFI Fund should model the CDFI Bond Guarantee Program's capital distribution plan requirements and application materials?
(iii) Should the CDFI Fund require specific intended uses of all the bond proceeds in the capital distribution plan or should the qualified issuers just be required to demonstrate an intended pipeline of underlying assets?
(iv) Should the CDFI Fund set minimum underwriting criteria for borrowers? Should applicants be required to demonstrate satisfaction of those criteria in the capital distribution plan?
(a) The CDFI Fund welcomes comments on how to monitor the use of proceeds and financial performance of qualified issuers, particularly with respect to the following questions:
(a) What tests should the CDFI Fund use to evaluate if 90 percent of bond proceeds have been invested in qualified loans? Should reports be required from the qualified issuer more frequently than on an annual basis?
(c) What types of tests should the CDFI Fund use to evaluate satisfaction of the low-income or rural requirement set forth in Section 114A(a)(2)?
(d) What support, if any, would applicants and awardees like to receive from the CDFI Fund after having issued a bond?
(e) What specific industry standards for impact measures (businesses financed, units of affordable housing developed, etc.) should the CDFI Fund adopt for evaluating and monitoring loans financed or refinanced with proceeds of the guaranteed notes or bonds?
(f) Should achievement of some standards or outcome measures be mandatory?
(g) Are the approval criteria for qualified issuers as listed in Section 114A(a)(8)(B) adequate? If not, what else should be included?
(a) Section 114A(b)(5) provides certain prohibitions on use of funds including, “political activities, lobbying, outreach, counseling services, or travel expenses.” The CDFI Fund encourages comments and suggestions germane to prohibited uses established in the Act, specifically as to whether there are other prohibited uses that the CDFI Fund should include.
(a) Section 114A(f) states that, in general, to maximize efficiencies and minimize cost and interest rates, loans made under this section may be serviced by qualified program administrators, bond servicers, and a master servicer. This section further outlines the duties of the program administrator, servicers, and the master servicer. Comments regarding the servicing of transactions are welcome, specifically:
(i) The Act lists certain duties of a program administrator. Should there be other requirements?
(ii) The duties of a program administrator suggest that the CDFI Fund will serve as the program administrator for all issuances. Should the CDFI Fund require that each qualified issuer have a designated program administrator as suggested in section 114A(a)(7)?
(iii) If so, should the servicer be eligible to serve as a program administrator for a qualified issuer?
(iv) Who should be responsible for resolving troubled loans?
(v) On what basis should servicers be compensated?
(vi) Are there any duties not listed that should be included in sections 114A(f)(2) through 114A(f)(4)? Are there any prohibitions or limitations that should be applied?
The CDFI Fund welcomes comments on general compliance issues related to monitoring the guarantee portfolio, particularly with respect to the following questions:
(i) What types of compliance measures should be required by the CDFI Fund? Should the CDFI Fund mandate specific reports to be collected and reviewed by the servicer and ultimately the master servicer? If so, please provide examples.
(ii) The Act states that “repayment shall be made on that portion of bonds or notes necessary to bring the bonds or notes that remain outstanding after such repayment into compliance with the 90 percent requirement of paragraph (1).”
(iii) What penalties should the CDFI Fund impose if a qualified issuer is deemed noncompliant?
(iv) The Act provides that the qualified issuer pay a fee of 10 basis points annually. What penalties should be imposed for failure to comply?
The CDFI Fund is also interested in receiving any general comments and suggestions regarding the structure of the CDFI Bond Guarantee Program that are not addressed above.
Pub. L. 111-240.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class D Airspace in the Eglin Air Force Base (AFB), FL airspace area. The Destin Non-Directional Beacon (NDB) has been decommissioned and new Standard Instrument Approaches have been developed for Destin-Fort Walton Beach Airport that would enhance the safety and management of Instrument Flight Rules (IFR) operations at the airport.
Comments must be received on or before August 15, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA, Order 7400.9 and publication of conforming amendments.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001;
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2011-0087; Airspace Docket No. 11-ASO-12) and be submitted in triplicate to the Docket Management System (see
Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0087; Airspace Docket No. 11-ASO-12.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class D airspace in the Eglin AFB, FL area. The Destin NDB has been decommissioned, and the NDB approach cancelled. New standard instrument approach procedures have been developed for Destin-Fort Walton Beach Airport. The existing Class D airspace extending upward from the surface would be modified for the safety and management of IFR operations.
Class D airspace designations are published in Paragraph 5000 of FAA order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, effective September 15, 2010, is amended as follows:
That airspace extending upward from the surface, to and including 2,600 feet MSL within a 5.5-mile radius of Eglin AFB and within a 4.4-mile radius of Destin-Fort Walton Beach Airport, excluding the portion north of a line connecting the 2 points of intersection within a 5.2-mile radius centered on Duke Field; excluding the portion southwest of a line connecting the 2 points of intersection within a 5.3-mile radius of Hurlburt Field; excluding a portion east of a line beginning at lat. 30°30′43″ N., long. 86°26′21″ W. extending east to the 5.5-mile radius of Eglin AFB.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class D and Class E airspace areas and remove Class E airspace at Manassas Municipal/Harry P. Davis Airport, Manassas, VA. A Standard Instrument Approach Procedure has been cancelled; therefore modification to the airspace areas is required for the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
Comments must be received on or before August 15, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA, Order 7400.9 and publication of conforming amendments.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001;
You may review the public docket containing the rule, any comments received, and any final disposition in person in the Dockets Office (see
An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, Georgia 30337.
John Fornito, Airspace Specialist, Operations Support Group, Eastern Service Center, Air Traffic Organization, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this proposed rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Those wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0579; Airspace Docket No. 11-AEA-14.” The postcard will be date/time stamped and returned to the commenter. All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class D and E surface airspace at Manassas Municipal/Harry P. Davis Airport, Manassas, VA. Cancellation of the VOR approach into the airport has made this action necessary. Class E airspace designated as an extension to Class D airspace is no longer needed and therefore, would be removed. This action would enhance the safety and management of IFR operations at Manassas Municipal/Harry P. Davis Airport.
Class D and E airspace designations are published in Paragraphs 5000, 6002 and 6004, respectively, of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.
This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it proposes to remove Class E airspace and amend Class D and E airspace at Manassas, VA.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 will continue to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, signed August 15, 2010, and effective September 15, 2011, is amended as follows:
That airspace extending upward from the surface to but not including 2,000 feet MSL within a 5-mile radius of the Manassas Municipal/Harry P. Davis Airport, excluding that airspace within the Washington Tri-Area Class B airspace area. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from the surface to but not including 2,000 feet MSL within a 5-mile radius of the Manassas Municipal/Harry P Davis Municipal Airport, excluding that airspace within the Washington Tri-Area Class B airspace area. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E Airspace at Clemson, SC, as a runway extension requires amended Standard Instrument Approach Procedures at Oconee County Regional Airport. This action would enhance the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport. This action also would recognize the airport name change to Oconee County Regional Airport.
Effective 0901 UTC, Comments must be received on or before August 15, 2011. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA, Order 7400.9 and publication of conforming amendments.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington,
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this proposed rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2011-0394; Airspace Docket No. 11-ASO-17) and be submitted in triplicate to the Docket Management System (see
Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0394; Airspace Docket No. 11-ASO-17.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace extending upward from 700 feet above the surface to support new standard instrument approach procedures developed at Oconee County Regional Airport, Clemson, SC. Airspace reconfiguration is necessary for continued safety and management of IFR operations at the airport. Also, the airport name would be changed from Clemson-Oconee County Airport to Oconee County Regional Airport.
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would amend Class E airspace at Oconee County Regional Airport, Clemson, SC.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 7.5-mile radius of Oconee County Regional Airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E Airspace at Burlington, VT, to accommodate the additional airspace needed for the Standard Instrument Approach Procedures developed for Burlington International Airport. This action shall enhance the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport. This action also shall make a minor adjustment to the geographic coordinates of the airport.
Comments must be received on or before August 15, 2011.
Send comments on this rule to: U. S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001;
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2011-0243; Airspace Docket No. 11-ANE-12) and be submitted in triplicate to the Docket Management System (see
Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0243; Airspace Docket No. 11-ANE-12.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace at Burlington, VT to provide additional controlled airspace required to support standard instrument approach procedures at Burlington International Airport. The existing Class E surface area airspace and Class E airspace designated as an extension would be amended for the safety and management of IFR operations at the airport. The geographic coordinates for Burlington International Airport in all Class E airspace areas also would be adjusted to be in concert with the FAAs aeronautical database.
Class E airspace designations are published in Paragraph 6002, 6003, and 6005, respectively, of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would amend Class E airspace at
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, and effective September 15, 2010, is amended as follows:
That airspace extending upward from the surface within a 5-mile radius of Burlington International Airport, and within 2.4 miles each side of the Burlington VORTAC 201° radial extending from the 5-mile radius of the airport to 7 miles southwest of the Burlington VORTAC, and within 1.8 miles each side of the Burlington International Airport 302° bearing extending from the 5-mile radius of the airport to 5.4 miles northwest of the airport, and within 4 miles each side of the Burlington International Airport 131° bearing extending from the 5-mile radius to 16 miles southeast of the airport. This Class E airspace is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from the surface within 2.4 miles on each side of the Burlington VORTAC 201° radial extending from a 5-mile radius of the airport to 7 miles southwest of the Burlington VORTAC, and within 1.8 miles each side of the Burlington International Airport 302° bearing extending from the 5-mile radius of the airport to 5.4 miles northwest of the airport and within 4 miles each side of the Burlington International Airport 131° bearing extending from the 5-mile radius of the airport to 16 miles southeast of the airport.
That airspace extending upward from 700 feet above the surface within a 23-mile radius of Burlington International Airport; excluding that airspace within the Plattsburgh, NY, Class E airspace area.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E Airspace at Wilkes-Barre, PA, to accommodate new Standard Instrument Approach Procedures at Wilkes-Barre Wyoming Valley Airport. This action would enhance the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
Comments must be received on or before August 15, 2011.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001;
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2011-0369; Airspace Docket No. 11-AEA-07) and be submitted in triplicate to the Docket Management System (see
Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0369; Airspace Docket No. 11-AEA-07.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Wilkes-Barre, PA providing the controlled airspace required to support the new RNAV GPS standard instrument approach procedures for Wilkes-Barre Wyoming Valley Airport. Controlled airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations at the airport.
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at Wilkes-Barre Wyoming Valley Airport, Wilkes-Barre, PA.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9U, Airspace Designations and Reporting Points, dated August 18, 2010, effective September 15, 2010, is amended as follows:
That airspace extending upward from 700 feet above the surface within an 11.6-mile radius of Wilkes-Barre Wyoming Valley Airport.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary moving safety zone during the Swim Around Charleston, a swimming race occurring on waters of the Wando River, the Cooper River, Charleston Harbor, and the Ashley River, in Charleston, South Carolina. The Swim Around Charleston is scheduled to take place on Sunday, October 23, 2011. The temporary safety zone is necessary for the safety of the swimmers, participant vessels, spectators, and the general public during the event. Persons and vessels would be prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Charleston or a designated representative.
Comments and related material must be received by the Coast Guard on or before August 19, 2011. Requests for public meetings must be received by the Coast Guard on or before July 28, 2011.
You may submit comments identified by docket number USCG-2011-0575 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0575), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
We do not now plan to hold a public meeting. But you may submit a request for one on or before July 28, 2011 using one of the four methods specified under
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
The purpose of the rule is to ensure the safety of the swimmers, participant vessels, spectators, and the general public during the Swim Around Charleston.
On Sunday, October 23, 2011, the Swim Around Charleston is scheduled to take place on the waters of the Wando River, the Cooper River, Charleston Harbor, and the Ashley River, in Charleston, South Carolina. The Swim Around Charleston will consist of a 10 mile swim that starts at Remley's Point on the Wando River, crosses the main shipping channel of Charleston Harbor, and finishes at the General William B. Westmoreland Bridge on the Ashley River.
The proposed rule would establish a temporary moving safety zone of a 75-yard radius around the Swim Around Charleston participant vessels that are officially associated with the swim on the waters of the Wando River, the Cooper River, Charleston Harbor, and the Ashley River, in Charleston, South Carolina. The temporary safety zone would be enforced from 10 a.m. until 4 p.m. on October 23, 2011. Persons and vessels would be prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless specifically authorized by the Captain of the Port Charleston or a designated representative. Persons and vessels would be able to request authorization to enter, transit through, anchor in, or remain within the safety zone by contacting the Captain of the Port Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
The economic impact of this rule is not significant for the following reasons: (1) The safety zone would only be enforced for a total of six hours; (2) the safety zone would move with the participant vessels so that once the swimmers clear a portion of the waterway, the safety zone would no longer be enforced in that portion of the waterway; (3) although persons and vessels would not be able to enter, transit through, anchor in, or remain
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Wando River, the Cooper River, Charleston Harbor, and the Ashley River in Charleston, South Carolina encompassed within the safety zone from 10 a.m. until 4 p.m. on October 23, 2011. For the reasons discussed in the Executive Order 12866 and Executive Order 13563 section above, this proposed rule would not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Chief Warrant Officer Robert B. Wilson, Sector Charleston Office of Waterways Management, Coast Guard; telephone 843-740-3180, e-mail
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add a temporary § 165.T07-0575 to read as follows:
(a)
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the Antelope Valley Air Quality Management District (AVAQMD) portion of the California State Implementation Plan (SIP). These revisions concern negative declarations for volatile organic compound (VOC) source categories for the AVAQMD. We are proposing to approve these negative declarations under the Clean Air Act as amended in 1990 (CAA or the Act).
Any comments on this proposal must arrive by August 1, 2011.
Submit comments, identified by docket number EPA-R09-OAR-2011-0383, by one of the following methods:
1.
2.
3.
Cynthia Allen, EPA Region IX, (415) 947-4120,
This proposal addresses the following negative declarations listed in Table I:
In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Environmental Protection Agency (EPA).
Proposed rule; extension of public comment period.
The EPA is announcing that the period for providing public comments on the May 3, 2011, Proposed National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units is being extended for 30 days.
For the national emission standards for hazardous air pollutants (NESHAP) action: Mr. William Maxwell, Energy Strategies Group, Sector Policies and Programs Division, (D243-01), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; Telephone number: (919) 541-5430; Fax number (919) 541-5450; E-mail address:
Due to requests we have received from both the public and members of Congress to extend the public comment period for the May 3, 2011, Proposed Mercury and Air Toxics Standards Rule, the EPA is extending the public comment period for an additional 30 days. Therefore, the public comment period will end on August 4, 2011, rather than July 5, 2011.
The EPA has established the official public dockets No. EPA-HQ-OAR-2011-0044 (NSPS action) or No. EPA-HQ-OAR-2009-0234 (NESHAP action). The EPA has also developed websites for these proposed rulemakings at the addresses given above.
Environmental Protection Agency (EPA).
Proposed rule; extension of public comment period.
On May 19, 2011, the EPA proposed amendments to the National Emissions Standards for Hazardous Air Pollutants for Secondary Lead Smelting (76 FR 29032). The EPA is extending the deadline for written comments on the proposed amendments by 21 days to July 26, 2011. The EPA received a request for an extension from the Association of Battery Recyclers (ABR). The ABR requested an extension in order to analyze data and review the proposed amendments. The EPA finds this request to be reasonable due to the significant changes the proposal would make to the current rule.
Comments on the proposed rule published May 19, 2011 (76 FR 29032) must be received on or before July 26, 2011.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2011-0344, by one of the following methods:
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Questions concerning the proposed rule should be addressed to Mr. Chuck French, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Metals and Inorganic Chemicals Group (D243-02), Environmental Protection Agency, Research Triangle Park, NC 27711, telephone number: (919) 541-7912; fax number: (919) 541-3207; e-mail address:
For the reasons noted above, the public comment period will now end on July 26, 2011.
The proposed rule titled, National Emission Standards for Hazardous Air Pollutants: Secondary Lead Smelting, was published May 19, 2011 (76 FR 29032). The EPA has established the public docket for the proposed rulemaking under docket ID No. EPA-HQ-OAR-2011-0344, and a copy of the proposed rule is available in the docket. We note that, since the proposed rule was published, additional materials have been added to the docket. Information on how to access the docket
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing a rule that would identify provisions of Florida's Water Quality Standards for Phosphorus in the Everglades Protection Area (Phosphorus Rule) and Florida's Amended Everglades Forever Act (EFA) that EPA has disapproved and that therefore are not applicable water quality standards for purposes of the Clean Water Act. EPA is proposing today's rule following EPA's disapproval of these provisions and EPA's specific directions to the State of Florida to correct these deficiencies in the Phosphorus Rule and EFA. EPA's disapproval, specific directions to the State, and today's proposed rule implement two orders by the U.S. District Court for the Southern District of Florida. The intended effect of today's proposed rule is to identify only those provisions of Florida law that EPA has disapproved and that therefore are not applicable water quality standards for purposes of the Clean Water Act.
Comments must be received on or before August 1, 2011.
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2011-0515 by one of the following methods:
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Mario Sengco, Standards and Health Protection Division, Office of Science and Technology,
Citizens concerned with water quality in Florida may be interested in this rulemaking. Entities discharging phosphorus to waters upstream of the Everglades Protection Area could be indirectly affected by the Phosphorus Rule and EFA, although not specifically by this proposed rulemaking because the current action further addresses prior disapproval by EPA of certain provisions of the Phosphorus Rule and EFA. Any indirect affect to entities would be because the water quality standards contained in the State's regulation and statute are used in determining National Pollutant Discharge Elimination System (NPDES) permit limits. With this in mind, categories and entities that may ultimately be indirectly affected include:
This table is not intended to be exhaustive, but rather provides a guide for entities that may be affected by this action. This table lists the types of entities of which EPA is now aware that potentially could be affected by this action. Other types of entities not listed in the table could also be affected. Any parties or entities conducting activities within watersheds of the Florida waters covered by this rule, or who rely on, depend upon, influence, or contribute to the water quality of the Everglades Protection Area, might be affected by this rule. To determine whether your facility or activities may be affected by this action, you should examine this proposed rule. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
(1) The public is invited to submit comments on whether EPA's proposed rule is consistent with EPA's disapprovals of the Phosphorus Rule and EFA and the Court's orders.
(2) The public is invited to submit comments regarding EPA's approach of identifying, through incorporation by reference, those provisions of the Phosphorus Rule and EFA that are not applicable water quality standards for purposes of the CWA.
(3) Do not submit confidential business information (CBI) to EPA through the
EPA is proposing a rule that would identify provisions of Florida's Water Quality Standards for Phosphorus in the Everglades Protection Area (Phosphorus Rule) and Florida's Amended Everglades Forever Act (EFA) that EPA has disapproved and that therefore are not applicable water quality standards for purposes of the Clean Water Act. EPA is proposing today's rule following its disapproval of these provisions and EPA's specific directions to the State of Florida to correct these deficiencies in the Phosphorus Rule and EFA. EPA's disapproval and specific directions to the State implement two orders by the U.S. District Court for the Southern District of Florida. Pursuant to the Court's orders, EPA gave the State a period of time to correct the deficiencies. The State has not corrected the deficiencies within that time period. Therefore, EPA is proposing today's rule. The proposed rule incorporates by reference two documents that identify the specific provisions of Florida's Phosphorus Rule and EFA that are not applicable water quality standards for purposes of the Clean Water Act.
Section 303(c) (33 U.S.C. 1313) of the Clean Water Act (CWA) directs States, with oversight by EPA, to adopt water quality standards to protect the public health and welfare, enhance the quality of water and serve the purposes of the CWA. Under section 303, States are required to develop water quality standards for waters of the United States within the State. Section 303(c) and EPA's implementing regulations (40 CFR Part 131) provide that water quality standards shall include designated uses of the water and water quality criteria necessary to protect those uses.
States must submit any new or revised water quality standards for EPA review and approval/disapproval. EPA must approve/disapprove any new or revised standards within 60-90 days. (Section 303(c)(3)). If EPA disapproves any standard, EPA is to specify the changes to meet the requirements of the CWA. If the changes are not adopted by the State, EPA is to promulgate standards to address the necessary changes in the State standards that EPA has disapproved. Today, EPA is proposing Federal standards to address the portions of Florida's standards that EPA disapproved and that have not been revised by the State.
In 2005, the Florida Department of Environmental Protection (FDEP) submitted to EPA for review pursuant to CWA section 303(c), provisions of Florida Administrative Code (“FAC”) 62-302.540 entitled “Water Quality Standards for Phosphorus Within the Everglades Protection Area” (Phosphorus Rule or Rule). The Rule established a numeric water quality criterion for phosphorus as well as implementing provisions for the numeric criterion within the Everglades Protection Area. In 2005 and 2006, EPA issued a series of decisions approving certain provisions of the Phosphorus Rule and concluding that other provisions were not new or revised water quality standards and did not require EPA approval/disapproval under CWA section 303(c).
The Florida Legislature enacted the Everglades Forever Act in 1994 to maintain and restore the ecosystem of the Everglades. See
In consolidated litigation, plaintiffs challenged (1) EPA's 2003 decision that the EFA amendments were not water quality standards and (2) EPA's 2005 and 2006 decisions regarding the Phosphorus Rule. In a July 29, 2008 decision, the U.S. District Court for the Southern District of Florida upheld in part and remanded in part EPA's decisions.
On December 3, 2009, EPA issued a new Determination in response to the Court's remand. Consistent with the Court's 2008 decision, EPA disapproved certain amendments to the EFA. It is those disapproved provisions of the EFA that are, in part, the subject of today's proposed rulemaking. In addition, EPA reviewed the provisions of the Phosphorus Rule that the Court either found were new or revised standards or that the Court had held EPA's prior approval invalid. Consistent with the Court's decision, EPA disapproved certain provisions of the Phosphorus Rule and those disapproved provisions also are the subject of today's proposed rulemaking.
Plaintiffs challenged EPA's December 2009 Determination, alleging, in part, that EPA failed to (1) specify the changes that Florida must make to the Phosphorus Rule and EFA to bring them into compliance with the CWA and (2) commit to promulgate if the State fails to act. The Court, in an order dated April 10, 2010, remanded EPA's 2009 Determination and ordered EPA to issue an Amended Determination (AD) by September 3, 2010. While the Court did not take issue with EPA's disapprovals, the Court nevertheless ordered that EPA's AD “shall specifically direct the State of Florida to correct deficiencies in the Amended EFA and Phosphorus Rule that have been invalidated,” attaching copies of the Rule and EFA with strikeout markings indicating the exact language from the Rule and EFA that the State must correct. Order at 44. The Court ordered that in the AD, “EPA shall require the State of Florida to commence and complete rule-making for the Phosphorus Rule within 120 days from the date of the Amended Determination and shall require amendments to the Amended EFA to be enacted by July 1, 2011.” Order at 44-45. The Court further ordered that “[i]n the event the State of Florida fails to timely act, the EPA shall provide timely notice, and the EPA Administrator “shall promulgate such standard[s]” pursuant to 33 U.S.C. 1313(c).” Order at 45.
Consistent with the Court's April 14, 2010 Order, EPA gave directions to the State of Florida for correcting deficiencies in the Phosphorus Rule and Amended EFA. EPA's AD included as attachments copies of the Phosphorus Rule and EFA with strikeout markings indicating the language that the State needed to correct. EPA's AD stated that if FDEP has not finalized revisions by January 1, 2011 and the Legislature has not enacted amendments to the EFA by July 1, 2011, EPA would initiate rulemaking to promulgate standards consistent with the Court's Order.
FDEP initiated a rulemaking to adopt the necessary revisions to the Phosphorus Rule consistent with EPA's AD. However, FDEP did not complete that process by January 1, 2011. Nor has FDEP completed its rulemaking process since that date. The Florida Legislature also did not introduce or enact any amendments to the EFA consistent with EPA's AD. The Florida Legislature stands adjourned and is not scheduled to reconvene prior to July 1, 2011. Therefore, EPA is proceeding, consistent with the Court's Order and EPA's AD, to initiate the rulemaking process to promulgate Federal standards addressing the deficiencies of the Phosphorus Rule and EFA.
EPA's proposed rule identifies those provisions in the Phosphorus Rule and Everglades Forever Act that EPA has disapproved and that therefore are not applicable water quality standards for purposes of the CWA. The provisions are the ones that EPA previously disapproved in December 2009 that the Court identified in its April 2010 Order and that EPA identified in its September 2010 AD. EPA's proposed rule incorporates by reference copies of the Phosphorus Rule and EFA with the strikeout markings indicating the provisions and language that are not applicable water quality standards for purposes of the CWA.
For the convenience of persons reviewing this proposal, EPA has put copies of the Phosphorus Rule and Amended Everglades Forever Act in the docket, with the strikeout markings indicating the language that EPA disapproved and that EPA's proposed rule identifies as not being applicable water quality standards for purposes of the CWA. The provisions of the Phosphorus Rule and EFA that will not be applicable water quality standards for purposes of the CWA are summarized in Tables 1 and 2.
The remaining provisions of the Phosphorus Rule and EFA in the docket either already have been approved by EPA as new or revised water quality standards (
In the Court's 2010 order, the judge struck a provision in the EFA (
For the convenience of the reader and to improve the readability of the documents, EPA has included a few minor text changes to the Phosphorus Rule and Amended Everglades Forever Act in the docket. These changes are identified by underline. EPA included these few text changes in its submission to the Court and the Court's April 2011 order reflects these changes. EPA added text when deletion of the disapproved language rendered the remaining text difficult to understand. In EFA section 10 for example, EPA's added text would restore language that existed prior to enactment of EFA amendments. In these sections, EPA is not proposing to establish new or revised water quality standards with these text changes, but merely to restore language that would make the remaining text easier to understand. Similarly, for ease of readability, the docket versions of the Phosphorus Rule and Amended Everglades Forever Act strike the definitions of “optimization” (which is defined only for the purposes of other provisions that EPA disapproved) from sections 2(l) and 3(f), respectively, as discussed above.
EPA believes that its proposal to incorporate by reference documents that identify those specific provisions of the Phosphorus Rule and EFA that are not applicable water quality standards for purposes of the CWA best accomplishes the purpose of removing those provisions from consideration for future implementation within CWA programs.
EPA considered other approaches to accomplish this result and decided the approach the Agency is proposing today is the most appropriate approach. Because the Phosphorus Rule and EFA are Florida laws, EPA could not “amend” those state laws. EPA considered whether it should incorporate the complete Phosphorus Rule and EFA as Federal regulations and amend them accordingly. EPA concluded this approach would not be appropriate for two reasons.
First, to the extent EPA would be promulgating as Federal regulations provisions of state water quality standards that EPA has approved (or provisions associated with approved water quality standards but that are not themselves water quality standards), the CWA does not provide for such action. The CWA provides that when EPA approves a new or revised state water quality standard, “such standard shall thereafter be the water quality standard for the applicable waters of the State.” CWA section 303(c)(3). Only if EPA disapproves a state water quality standard or makes a determination that a new or revised water quality standard is necessary to meet the requirements of the Clean Water Act under section 303(c)(4)(B) and the state fails to make the necessary changes, does the Act direct EPA to promulgate such water quality standards for navigable waters of the state. There are many provisions of the Phosphorus Rule that EPA approved. EPA did not believe it would be appropriate to promulgate those provisions as Federal regulations.
Second, except for the disapproved provisions of the EFA amendments, EPA has not approved or disapproved the remaining provisions of the EFA (with one exception) as new or revised water quality standards under the Clean Water Act. Therefore, it would not be appropriate for EPA to promulgate such provisions as Federal water quality standards.
For these reasons, EPA concluded the best approach was to identify, through incorporation by reference, those provisions of the Phosphorus Rule and EFA that EPA disapproved and are therefore not applicable water quality standards for purposes of the CWA. EPA solicits comments on this approach.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).
This action does not impose an information collection burden under the provisions of the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this action on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
As a result of the disapproval action by EPA in December 2009, the Florida Department of Environmental Protection already needs to ensure that permits it issues do not implement the provisions identified in this rule which are not applicable water quality standards for purposes of the CWA. In doing so, the State will have a number of choices associated with permit writing. While Florida's implementation of the rule might ultimately result in some new or revised permit conditions for some dischargers, including small entities, EPA's action today would not impose any of these as yet unknown requirements on small entities. Thus, I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or Tribal governments or the private sector. This proposed action merely clarifies the water quality standards concerning the phosphorus rule and the Amended EFA and does not impose any burden on anyone. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
This action does not have Federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed action merely clarifies the water quality standards concerning the phosphorus rule and the Amended EFA and does not apply to any government other than the State of Florida.
This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000) because this is an action in which the EPA has no discretion,
This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866 and because the Agency does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children.
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. This action is not subject to E.O. 12898 because this proposed action merely clarifies the water quality standards concerning the phosphorus rule and the Amended EFA.
Environmental protection, Incorporation by reference, Indians—lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water pollution control.
For the reasons set out in the preamble, EPA proposes to amend 40 CFR part 131 as follows:
1. The Authority citation for part 131 continues to read as follows:
33 U.S.C. 1251
2. Section 131.44 is added to read as follows:
(a)
(b)
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice; extension of public comment period.
FMCSA extends the public comment period for its May 31, 2011, notice concerning regulatory guidance on the applicability of the Federal Motor Carrier Safety Regulations to operators of certain farm vehicles and off-road agricultural equipment. The public comment period is extended from June 30, 2011, to August 1, 2011.
Comments on the notice must be received on or before August 1, 2011.
You may submit comments identified by Federal Docket Management System Number FMCSA-2011-0146 by any of the following methods
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Thomas L. Yager, Chief, Driver and Carrier Operations Division, Office of Bus and Truck Standards and
On May 31, 2011 (76 FR 31279), FMCSA published a notice requesting public comment on: (1) Previously published regulatory guidance on the distinction between interstate and intrastate commerce in deciding whether operations of commercial motor vehicles within the boundaries of a single State are subject to the Federal Motor Carrier Safety Regulations; (2) proposed guidance on the relevance of the distinction between direct and indirect compensation in deciding whether farm vehicle drivers transporting agricultural commodities, farm supplies and equipment as part of a crop share agreement are subject to the commercial driver's license regulations; and, (3) proposed guidance to determine whether off-road farm equipment or implements of husbandry operated on public roads for limited distances are considered commercial motor vehicles. The Agency indicated the guidance would be used to help ensure uniform application of the safety regulations by enforcement personnel, motor carriers and commercial motor vehicle drivers.
Since the publication of the notice, the Agency has received a letter signed by 18 U.S. Senators and numerous requests from the agricultural industry to extend the comment period. The Senators and industry acknowledged the importance of the issues covered by the notice and requested additional time to provide farmers, many of whom have planting and harvesting responsibilities during this time of the year, additional time to review the notice and consider the likely impacts of the guidance on their operations. Copies of the requests for an extension of the comment period are included in the docket referenced at the beginning of this notice.
The FMCSA acknowledges the concerns of the U.S. Senators and farmers and extends the public comment period from June 30, 2011 to August 1, 2011. The Agency will consider all comments received by close of business on August 1, 2011. Comments will be available for examination in the docket at the location listed under the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of additional public hearings.
The National Marine Fisheries Service (NMFS) published a proposed rule on June 21, 2011, concerning modifications to vessel monitoring system (VMS) requirements in Atlantic Highly Migratory Species (HMS) fisheries. The proposed rule contained information on public hearings being held in Saint Petersburg, FL, New Orleans/Kenner, LA, and Atlantic City, NJ. In this notice, NMFS includes information for additional public hearings being held in Manteo, NC, and Peabody, MA.
The dates and locations for the Manteo, NC, and Peabody, MA, public hearings are in the table below. These hearings are being held in conjunction with the previously planned public hearings for the electronic dealer reporting proposed rule (76 FR 37750).
Please see the
Greg Fairclough (phone: 727-824-5399, fax: 727-824-5398) or Michael Clark (phone: 301-713-2347, fax: 301-713-1917).
See 76 FR 36071, June 21, 2011, for more information regarding the proposed rule. These additional public hearings are being added based on requests by constituents. The additional hearings will provide further opportunity for public comment during the comment period. The public comment period ends on August 1, 2011.
16 U.S.C. 971
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations for the interstate movement of fruits and vegetables from Hawaii and the territories.
We will consider all comments that we receive on or before August 30, 2011.
You may submit comments by either of the following methods:
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Supporting documents and any comments we receive on this docket may be viewed at
For information on regulations for the interstate movement of fruits and vegetables from Hawaii and the territories, contact Mr. David Lamb, Import Specialist, Regulations, Permits, and Manuals, PPQ, APHIS, 4700 River Road Unit 156, Riverdale, MD 20737; (301) 734-0627. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.
Under the regulations in “Subpart—Regulated Articles From Hawaii and the Territories” (7 CFR 318.13-1 through 318.13-26), APHIS prohibits or restricts the interstate movement of fruits and vegetables into the United States from Hawaii, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands to prevent plant pests and noxious weeds from being introduced into and spread within the continental United States.
The regulations contain requirements for a performance-based process for approving the interstate movement of commodities that, based on the findings of a pest risk analysis, can be safely imported subject to one or more designated phytosanitary measures and for acknowledging pest-free areas. These requirements involve information collection activities, including limited permits, transit permits, compliance agreements, inspection and certification, labeling, and trapping surveillance.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate 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) Evaluate the accuracy of our estimate of the burden of the 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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request extension of approval of an information collection for self-certification medical statements.
We will consider all comments that we receive on or before August 30, 2011.
You may submit comments by either of the following methods:
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Supporting documents and any comments we receive on this docket may be viewed at
For information on self-certification medical statements, contact Mr. Eric Williams, Human Resources Specialist, Human Resources Division, APHIS, 100 N. 6th Street, Butler Square, 5th Floor, Minneapolis, MN 55403; (612) 336-3370. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.
In accordance with 5 CFR part 339, Federal agencies are authorized to obtain medical information from applicants for positions that have approved medical standards. Medical standards may be established for positions for which the duties are arduous or hazardous or require a certain level of health status or fitness.
Certain positions in MRP agencies have medical standards. MRP hires individuals each year in commodity grading and inspection positions. These employees work under dusty conditions, around moving machinery and slippery surfaces, and in areas with high noise levels. A potential employee may have direct contact with meat and dairy products, fresh or processed fruits and vegetables, and poultry products intended for human consumption; and/or cotton and tobacco products intended for human use.
The MRP agencies require a self-certification medical statement (MRP Form 5-R) from applicants for these positions regarding their fitness for the positions. The MRP agencies need this information to determine whether the applicants can perform the duties of the positions. Inability to collect this information would adversely affect the MRP agencies' ability to make employment decisions and determinations regarding an applicant's physical fitness to safely and efficiently perform assigned duties.
We are asking the Office of Management and Budget (OMB) to approve our use of this information collection activity for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate 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) Evaluate the accuracy of our estimate of the burden of the information collection, 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 information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies,
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Extension of comment period.
We are extending the comment period on a new framework being developed for the bovine tuberculosis and brucellosis programs in the United States. This action will allow interested persons additional time to prepare and submit comments.
We will consider all comments that we receive on or before July 5, 2011.
You may submit comments by either of the following methods:
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Supporting documents and any comments we receive on this docket may be viewed at
Dr. Lee Ann Thomas, Director, Ruminant Health Programs, National Center for Animal Health Programs, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737; (301) 734-5256.
On May 6, 2011, we published in the
We are extending the comment period on the topics discussed at the meetings until July 5, 2011. This action will allow interested persons additional time to prepare and submit comments.
The regulatory framework is available on the
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension, with revision, of a currently approved information collection, Foreign Travel Proposal.
Comments must be received in writing on or before August 30, 2011 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to: USDA, Forest Service,
Comments also may be submitted via facsimile to 540-659-4670, or by e-mail to:
The public may inspect comments received at 1099 14th Street, NW., Suite 5500W, Washington, DC 20005, during normal business hours. Visitors are encouraged to call ahead to 202-273-4695 to facilitate entry to the building.
Sandra Farber, U.S. Forest Service International Programs, 540-659-2973. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.
1. Information is needed to complete requests for foreign travel by U.S. Government employees and contractors. This information is required by the U.S. State Department, other USDA agencies and foreign embassies here in Washington, DC for passport issuance and visas.
2. All information is obtained from the traveler on the Foreign Travel Proposal.
3. Information is collected by the U.S. Forest Service, International Programs, Travel Office staff.
4. Other than normal travel requests, personal information such as date of birth, place of birth and the last four (4) digits of the social security number for employees and place of birth for contractors.
5. Each traveler submitted the form.
6. The Information collected is transferred into forms to be submitted to the U.S. State Department Passport Office, forms to the USDA Foreign Agriculture Service and into visa applications submitted to foreign embassies, for the purpose of obtaining passports and visas for the traveler.
7. U.S. Forest Service, International Programs, Travel Office.
8. Travelers will not be permitted to travel. We do not retain this information and is shredded after each trip, so a new request is required for every trip.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.
Forest Service, USDA.
Notice of meeting.
The Siskiyou County Resource Advisory Committee will meet in Yreka, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L 110-343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is for the committee to hear project status, presentation and review of new project proposals and to vote and make recommendations. The meeting is open to the public. Opportunity for public comment will be provided.
The meeting will be held Monday August 15, 2011 at 4 p.m.
The meeting will be held at the Klamath National Forest Supervisor's Office, conference room, 1312 Fairlane Road, Yreka, CA 96097. Written comments may be submitted as described under
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Klamath National Forest Supervisor's Office. Please call ahead to (530) 841-4484 to facilitate entry into the building to view comments.
Kerry Greene, Community Development and Outreach Specialist, Klamath National Forest, (530) 841-4484,
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Requests for reasonable accommodation for access to the facility or procedings may be made by contacting the person listed
The following business will be conducted: project updates and financial status, and presentation and review of new project proposals to be considered by the RAC. This will be the last opportunity to submit new project proposals to the committee until further notice. The meeting is open to the public. Opportunity for public comment will be provided and individuals will have the opportunity to address the Committee at that time. Alternatively, anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by August 1, 2011 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to 1312 Fairlane Road Yreka, CA 96097, or by e-mail to
Forest Service, USDA.
Notice of meeting.
The Siskiyou County Resource Advisory Committee will meet in Yreka, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is for the committee to hear project status, presentation and review of new project proposals and to vote and make recommendations. The meeting is open to the public. Opportunity for public comment will be provided.
The meeting will be held Monday July 18, 2011 at 4 p.m.
The meeting will be held at the Klamath National Forest Supervisor's Office, conference room, 1312 Fairlane Road, Yreka, CA 96097. Written comments may be submitted as described under
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Klamath National Forest Supervisor's Office. Please call ahead to (530) 841-4484 to facilitate entry into the building to view comments.
Kerry Greene, Community Development and Outreach Specialist, Klamath National Forest, (530) 841-4484,
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Requests for reasonable accommodation for access to the facility or proceedings may be made by contacting the person listed For Further Information.
The following business will be conducted: project updates and financial status, and presentation and review of new project proposals to be considered by the RAC.
Forest Service, USDA.
Notice of meeting.
The Custer and Gallatin National Forest's Resource Advisory Committee will meet in Big Timber, Montana. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose is to review project proposals and public comments.
The meeting will be held on July 26, 2011, and will begin at 10 a.m.
The meeting will be held at the Carnegie Public Library, 34 McLeod Street, Big Timber, MT. Written comments should be sent to Babete Anderson, Custer National Forest, 1310 Main Street, Billings, MT 59105. Comments may also be sent via e-mail to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Custer National Forest, 1310 Main Street, Billings, MT 59105. Visitors are encouraged to call ahead to 406-657-6205 ext 239.
Babete Anderson, RAC coordinator, USDA, Custer National Forest, 1310 Main Street, Billings, MT 59105; (406) 657-6205 ext 239; e-mail
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Mountain Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: (1) Reviewing project proposal for recommending Title II projects; and (2) Public Comment. Persons who wish to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting.
Forest Service, USDA.
Notice of meeting.
The Rogue-Umpqua Resource Advisory Committee will meet in Roseburg, Oregon. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and recommend projects for funding.
The meeting will be held July 13, 9 a.m. to 4:15 p.m., and July 14, 8:30 a.m. to 3:30 p.m.
The meeting will be held at 2900 NW. Stewart Parkway, Roseburg, Oregon, in the Umpqua National Forest Supervisor's Office in the Diamond Lake Conference Room. Written comments may be submitted as described under
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Umpqua National Forest Supervisor's Office, 2900 NW. Stewart Parkway, Roseburg, OR. Please call ahead to 541-672-6601 to facilitate entry into the building to view comments.
Cheryl Caplan, Public Affairs Officer, Umpqua National Forest, 541-957-3270 or
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. Requests for reasonable accommodation for access to the facility or proceedings may be made by contacting the person listed in
The following business will be conducted: Approval of agenda and minutes, public forum opportunity, election of chair, and review and recommendation of individual fiscal year 2012 Title II project nominations. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by July 13 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to Umpqua National Forest ATTN: Cheryl Caplan, 2900 NW. Stewart Parkway, Roseburg, OR 97471, or by e-mail to
Rural Business-Cooperative Service, USDA.
Notice of Funding Availability (NOFA).
Pursuant to 7 CFR part 4284, subpart G, the Rural Business-Cooperative Service (RBS), an Agency within the Rural Development mission area, announces the availability of
The deadline for the receipt of both paper and electronic applications is August 1, 2011. Any applications received after the deadline will not be considered for FY 2011 funding.
Entities wishing to apply for assistance should contact a Rural Development State Office for further information and copies of the application package. Applications may be submitted in electronic or paper format. Electronic applications must be submitted through
Office of the Deputy Administrator, Cooperative Programs, Rural Business-Cooperative Service, United States Department of Agriculture, 1400 Independence Avenue, SW., MS-3250, Room 4016-South, Washington, DC 20250-3250, (202) 720-8460.
The RBOG program is authorized under section 306(a)(11) of the Consolidated Farm and Rural Development Act (CONACT) (7 U.S.C. 1926(a)(11)). The program regulations are found at 7 CFR part 4284, subpart G and are incorporated by reference in this Notice. In addition, the General requirements for Cooperative Services Grant Programs found at 7 CFR part 4284, subpart A, also apply and are also incorporated by reference in this Notice. The USDA Rural Development State Offices administer the RBOG program on behalf of USDA Rural Development at the State level. The primary objective of the program is to improve the economic conditions of rural areas. Assistance provided to rural areas under this program may include technical assistance for business development and economic development planning. To ensure that a broad range of communities have the opportunity to benefit from the program, no grant will exceed $50,000, unless it is a multi-State project, in which case, the maximum grant amount is $150,000. As indicated in the summary, these limits do not apply to any specified funding for rural areas designated as FRNAT.
The definitions are published at 7 CFR 4284.603.
Grants may be made to public bodies, nonprofit corporations, Indian tribes on Federal or State reservations and other federally recognized tribal groups, and cooperatives with members that are primarily rural residents and that conduct activities for the mutual benefit of the members. For additional information on applicant eligibility, please see 7 CFR 4284.620.
Matching funds are not required.
Applications must propose to use project funds, including grant and any leveraged funds, for eligible grant purposes, as described in 7 CFR 4284.621. Ineligible grant purposes are listed in 7 CFR 4284.629.
Applications will not be considered for funding if they do not provide sufficient information to determine eligibility or are missing required elements. The required elements of a
For further information, entities wishing to apply for assistance should contact the USDA Rural Development State Office identified in the
To submit applications electronically through the Grants.gov Web site at:
• When you enter the
• Similarly, applicants must maintain registration in the Central Contractor Registration (CCR) database, in accordance with 2 CFR Part 215. Applicants may register for the CCR at
• You must submit all documents electronically through the Web site, including all information typically included on the application for RBOGs and all necessary assurances and certifications.
• After electronically submitting an application through the Web site, the applicant will receive an automatic acknowledgement from
• USDA Rural Development may request that the applicant provide original signatures on forms at a later date.
Please note that applicants can locate the downloadable application package for this program by using a keyword, the program name, the Catalog of Federal Domestic Assistance Number, or the Funding Opportunity Number.
An application must contain all of the required elements as described at 7 CFR 4284.638. Copies of 7 CFR part 4284, subpart G, will be provided to any interested applicant making a request to a USDA Rural Development State Office listed in this notice, or can be obtained at the Rural Development web link:
Each application will be reviewed to determine if it is eligible for assistance based on the requirements in 7 CFR part 4284, subpart G as well as other applicable Federal regulations. Eligible applications will be tentatively scored by the USDA Rural Development State Offices and submitted to the National Office for final review and selection. Note that each selection priority criterion outlined in 7 CFR 4284.639 must be addressed in the application. Failure to address any of the criteria will result in a zero-point score for that criterion and will impact the overall evaluation of the application.
The National Office will review the scores based on the grant selection criteria and weights contained in 7 CFR 4284.639. Applications for FRNAT designated funds will be funded in rank order and must achieve a score of at least 60 points out of a possible of 100 points for criteria paragraphs (a) through (e) in order to be funded.
Applicants are advised that the Administrator reserves the right to award discretionary points as designated in 7 CFR 4284.639(f). For this FY, the Administrator may consider awarding these discretionary points to applications that propose to engage in regional economic development activities in the key strategy areas of: (1) Creating or supporting local and regional food systems (especially supporting the creation of retail outlets of healthy foods in areas that lack sufficient outlets), (2) creating or supporting renewable energy generation, (3) using broadband or other critical infrastructure to create economic development, (4) creating or supporting access to capital in rural areas, and (5) creating or supporting innovative utilization of natural resources for economic development.
Applicants who wish to be considered for these discretionary points must provide the following additional information in their applications: (1) A description of the multi-county or multi-State region that will be the focus of the project, (2) a narrative description that identifies how the project will primarily support one of the five key strategies described above, (3) a narrative description identifying the partnerships that will be utilized or created to accomplish the regional economic development work, and (4) a narrative description of how the proposed project is expected to become a “best practice” that can be transferred to another region or key strategy area.
The Administrator will consider the applications providing this information for discretionary points by assessing how the project evidences the following: (1) Clear leadership, (2) a common economic basis shared by the counties or States within the region, (3) capacity of the key personnel and partnering organizations to complete the proposed work, (4) collaboration with and/or investment from a broad range of institutions, (5) broad citizen participation in the proposed project, (6) demographic diversity in the region, and (7) adequate funding to disadvantaged communities.
Successful applicants will receive notification regarding funding from the USDA Rural Development State Office. Applicants must comply with all applicable statutes and regulations before the grant award will be approved. Unsuccessful applicants will receive notification, including mediation procedures and appeal rights, by mail.
Additional requirements that apply to grantees selected for this program can be found in 7 CFR part 4284, subpart G, parts 3015, 3016, 3019, 3052, and 2 CFR part 417. All recipients of Federal financial assistance are required to comply with the Federal Funding Accountability and Transparency Act of 2006 and must report information about subawards and executive compensation in accordance with 2 CFR part 170.
For general questions about this announcement, please contact the USDA Rural Development State Office located in your State as identified in the
The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis
To file a complaint of discrimination, write to USDA, Assistant Secretary for Civil Rights, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, SW., Stop 9410, Washington, DC 20250-9410, or call toll-free at (866) 632-9992 (English) or (800) 877-8339 (TDD) or (866) 377-8642 (English Federal-relay) or (800) 845-6136 (Spanish Federal-relay). USDA is an equal opportunity provider, lender, and employer.
All adverse determinations regarding applicant eligibility and the awarding of points as part of the selection process are appealable pursuant to 7 CFR part 11. Instructions on the appeal process will be provided at the time an applicant is notified of the adverse decision.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
The BC-170 is completed by job applicants before or at the time they are tested. Selecting officials will review the information shown on the form and determine the applicant's employment suitability. Failure to collect this information could result in the hiring of unsuitable and/or unqualified workers.
The BC-170 is used throughout the census and intercensal periods for the special census, pretests, and dress rehearsals for short-term time limited appointments. Applicants completing the form BC-170D for a census related position are applying for temporary jobs in office and field positions (clerks, enumerators, crew leaders, supervisors). In addition, as an option to the OF-612, Optional Application for Federal Employment, the BC-170A may be used when applying for temporary/permanent office and field positions (clerks, field representatives, supervisors) on a recurring survey in one of the Census Bureau's 12 Regional Offices (ROs) throughout the United States. The Form BC-170B is used for special censuses for temporary field positions (enumerators).
The use of this form is limited to only situations which require the establishment of a temporary office and/or involve special, one-time or recurring survey operations at one of the ROs. In preparation for the next decennial census, the BC-170 is intended to expedite hiring and selection in situations requiring large numbers of temporary employees for assignments of a limited duration. The form has been demonstrated to meet our recruitment needs for temporary workers and requires significantly less burden than the Office of Personnel Management (OPM) Optional Forms that are available for use by the public when applying for Federal positions.
The form has been slightly modified for specific usage by each of the three areas of usage. The variation of forms by operation is to collect specific data needed based on the nature of the operation. The area of difference relates to the collection of work history. A cover sheet is attached to each respective BC-170 to provide applicants with a brief description of their prospective job duties with the Census Bureau; the cover sheet message will vary for decennial, special censuses, or recurring survey positions.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Brian Harris-Kojetin, OMB Desk Officer either by fax (202-395-7245) or e-mail (
The Sensors and Instrumentation Technical Advisory Committee (SITAC) will meet on July 26, 2011, 9:30 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to sensors and instrumentation equipment and technology.
1. Welcome and Introductions.
2. Remarks from the Bureau of Industry and Security Management.
3. Industry Presentations.
4. New Business.
5. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to the Committee members, the Committee suggests that the materials be forwarded before the meeting to Ms. Springer.
The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on December 14, 2010 pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § 10(d)), that the portion of this meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information contact Yvette Springer on (202) 482-2813.
Import Administration, International Trade Administration, Department of Commerce
Sheila E. Forbes, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-4697.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspension of investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (“the Act”), may request, in accordance with 19 CFR 351.213 of the Department of Commerce (“the Department”) regulations, that the Department conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting date.
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department has found that determinations concerning whether particular companies should be “collapsed” (
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters.
Please note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
Six copies of the request should be submitted to the Assistant Secretary for Import Administration, International Trade Administration, Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. The Department also asks parties to serve a copy of their requests to the Office of Antidumping/Countervailing Operations, Attention: Sheila Forbes, in room 3508 of the main Commerce Building. Further, in accordance with 19 CFR 351.303(f)(l)(i), a copy of each request must be served on the petitioner and each exporter or producer specified in the request.
The Department will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the period of review.
This notice is not required by statute but is published as a service to the international trading community.
Import Administration, International Trade Administration, Department of Commerce.
Every five years, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) and the International Trade Commission automatically initiate and conduct a review to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
The following Sunset Reviews are scheduled for initiation in August 2011 and will appear in that month's Notice of Initiation of Five-Year Sunset Reviews.
No Sunset Review of suspended investigations is scheduled for initiation in August 2011.
The Department's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. Guidance on methodological or analytical issues relevant to the Department's conduct of Sunset Reviews is set forth in the Department's Policy Bulletin 98.3—
Pursuant to 19 CFR 351.103(c), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Please note that if the Department receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue. Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.
This notice is not required by statute but is published as a service to the international trading community.
Import Administration, International Trade Administration, Department of Commerce.
On March 1, 2011, the Department of Commerce (the Department) initiated the second sunset reviews of the antidumping duty orders on polyester staple fiber (PSF) from the Republic of Korea (Korea) and Taiwan, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).
Michael A. Romani or Minoo Hatten, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0198 or (202) 482-1690, respectively.
On March 1, 2011, the Department initiated sunset reviews of the antidumping duty orders on PSF from Korea and Taiwan pursuant to section 751(c) of the Act.
The product covered by the orders is PSF. PSF is defined as synthetic staple fibers, not carded, combed or otherwise processed for spinning, of polyesters measuring 3.3 decitex (3 denier, inclusive) or more in diameter. This merchandise is cut to lengths varying from one inch (25 mm) to five inches (127 mm). The merchandise subject to the orders may be coated, usually with a silicon or other finish, or not coated. PSF is generally used as stuffing in sleeping bags, mattresses, ski jackets, comforters, cushions, pillows, and furniture. Merchandise of less than 3.3 decitex (less than 3 denier) currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) at subheading 5503.20.00.20 is specifically excluded from the orders. Also specifically excluded from the orders are PSF of 10 to 18 denier that are cut to lengths of 6 to 8 inches (fibers used in the manufacture of carpeting). In addition, low-melt PSF is excluded from the orders. Low-melt PSF is defined as a bi-component fiber with an outer sheath that melts at a significantly lower temperature than its inner core.
The merchandise subject to the orders is currently classifiable in the HTSUS at subheadings 5503.20.00.45 and 5503.20.00.65. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to the orders is dispositive.
All issues raised in these reviews are addressed in the “Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping Duty Orders on Certain Polyester Staple Fiber from the Republic of Korea and Taiwan” from Gary Taverman, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, dated concurrently with this notice (Issues and Decision Memo), which is hereby adopted by this notice. The issues discussed in the Issues and Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail if the orders were revoked. Parties can find a complete discussion of all issues raised in these sunset reviews and the corresponding recommendations in this public memorandum which is on file in room 7046 of the main Commerce Department building.
In addition, a complete version of the Issues and Decision Memo can be accessed directly on the Internet at
The Department determines that revocation of the antidumping duty orders on PSF from Korea and Taiwan
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). Timely written notification of the destruction of APO materials or conversion to judicial protective orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
The Department is issuing and publishing these final results and this notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating a five-year review (“Sunset Review”) of the antidumping and countervailing duty orders and suspended investigation listed below. The International Trade Commission (“the Commission”) is publishing concurrently with this notice its notice of
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with 19 CFR 351.218(c), we are initiating the Sunset Review of the following antidumping and countervailing duty orders and suspended investigation:
As a courtesy, we are making information related to Sunset proceedings, including copies of the pertinent statue and Department's regulations, the Department schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the
This notice serves as a reminder that any party submitting factual information in an antidumping duty or countervailing duty (AD/CVD) proceeding must certify to the accuracy and completeness of that information.
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties to apply for access to proprietary information under administrative protective order (“APO”) immediately following publication in the
Domestic interested parties defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b) wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
International Trade Administration, Department of Commerce.
Notice.
The U.S. Department of Commerce, International Trade Administration, U.S. Commercial Service is organizing a senior executive-led trade mission for multi-modal transportation and infrastructure development products and services to Doha, Qatar and Abu Dhabi and Dubai, United Arab Emirates (U.A.E) on October 29-November 3, 2011. The mission is designed to contribute to President Obama's National Export Initiative, which aims to double U.S. exports by 2015 while supporting two million American jobs, by increasing exports of products and services that contribute to infrastructure development projects in Qatar and U.A.E.
The mission will help U.S. companies already doing business in Qatar or the U.A.E. increase their current level of exports and exposure, and will help experienced U.S. exporters, which have not yet done business in Qatar or the U.A.E. enter these markets in support of job creation in the United States. Participating firms will gain market information, connect with key business and government decision makers, solidify business strategies, and/or advance specific projects. In each of these important sectors, participating U.S. companies will meet with prescreened potential partners, agents, distributors, representatives, and licensees. The agenda will also include meetings with high-level national and local government officials, networking opportunities, country briefings, and seminars.
The industry sectors for this mission will include, but are not limited to: multimodal freight transportation systems, products and technologies, including port development, airport development, freight rail systems and technologies, supply chain systems and strategies; mass transportation systems; advanced vehicle technologies and intelligent transportation systems and related services and software; and other relevant products and services.
The delegation will be composed of 15 qualified U.S. firms representing the
The United States continues to be the largest exporter to Qatar, accounting for 14% of the total import market. U.S. exports have surged by 495 percent, from $454 million in 2003 to $2.7 billion in 2009. Qatar is the fifth largest U.S. export destination in the Middle East, making it an important market for U.S. small and medium-sized businesses.
Qatar is one of the richest countries per capita in the world, with GDP per capita valued at $90,000. In 2010, total GDP was valued at $128 billion. The IMF predicts that Qatar will grow by 20% in 2011. The World Bank announced that Qatar is the most economically competitive in the Middle East. Taken together, this has led foreign firms to increase their investment in Qatar's infrastructure, making it one of the most prosperous markets in the Middle East.
Qatar's success in winning the 2022 World Cup Nation Host opens up a constellation of opportunities for U.S. business. The country plans to spend up to $100 billion in infrastructure projects between now and the World Cup in 2022, including roads, bridges, highways, railways, ports, and related consultancy services. Qatar's transportation infrastructure also benefits significantly with respect to Qatar's current domestic growth environment. Its road transportation structure has been operating at capacity, with a strong need to expand the system. Currently, road infrastructure is the only mode of transportation, which is one of the major causes for heavy congestion throughout the country. There are excellent opportunities for U.S. engineers, program management firms, and manufacturers to contribute to the creation of new transport infrastructure projects (
The Prime Minister, Sheikh Hamad bin Jassim, has stated that a significant share of Qatar's budget will be for infrastructure development, and it will be completely self-financed. As much as 30% of the budget is reportedly earmarked for infrastructure upgrades, such as the New Doha International Airport, New Doha Seaport, the Doha Expressway Project, roads, and related program management services. The country continues to maintain high levels of capital spending on major projects, which will reach $12 billion in 2010-2011 compared with $10.4 billion in 2009-2010, representing a 15% year-on-year increase.
The U.A.E. is the largest U.S. export market in the Middle East/North Africa region, the second largest economy in the region, and presents qualified American companies with opportunities to expand their products and services to a fast growing market. The U.A.E. is the logistics and business services hub for the wider region. The 2009 GDP for the U.A.E. was $231.3 billion and the 2009 per capita income was $42,000. Despite the recent global financial crisis, the United States and the U.A.E. have continued their long-term trade and investment relationship. Exports between both countries have increased almost every year since 1971, when the U.A.E. was established.
The United States exported over $12 billion worth of products to the U.A.E. in 2009, representing a 237 percent increase since 2002. The United States is the third largest exporter to the U.A.E. and enjoys a very large trade surplus and a strong trading and investment relationship. The U.A.E. is among the Middle East region's leaders in terms of openness to international trade and investment and political stability. It has successfully developed itself into the largest logistics hub in the wider region, with the second-largest man-made port in the world at Jebel Ali, and the fourth busiest airport in the world. It is making major investments in infrastructure and economic diversification, resulting in significant export opportunities for U.S. firms. The U.A.E is developing key transportation infrastructure projects including: Port Khalifa and industrial zone at Taweelah; the new $8 billion Union Railway project; the $6.7 billion expansion of Abu Dhabi International Airport; the construction of the new Maktoum Airport, which will eventually have five runways; and public transportation systems, such as the expansion of the Dubai metro and the construction of the Abu Dhabi metro and light rail. The goods, services and know-how necessary for the construction and profitable operation of these new systems, particularly those related to multi-modal freight and intelligent supply chain management, provides significant business opportunities in areas where U.S. companies excel. U.S. products enjoy favorable tariffs that generally do not exceed five percent.
The foregoing analysis of export opportunities in Qatar and the U.A.E. is not intended to be exhaustive, but illustrative of the many opportunities in these markets available to U.S. businesses. Other products and services that contribute to the energy and infrastructure development of Qatar and the U.A.E. also may have great potential. Applications from companies selling products and services within the scope of this mission, but not specifically identified in this Mission Statement, will be considered and evaluated by the U.S. Department of Commerce. Companies whose products do not fit the scope of the mission may contact their local U.S. Export Assistance Center (USEAC) to learn about other trade missions and services that may provide more targeted export opportunities. Companies may call 1-800-872-8723, or e-mail:
This Business Development Mission will demonstrate the United States' commitment to a sustained economic engagement with Qatar and the U.A.E. The mission will combine policy dialogue and business development for U.S. firms. Additionally, the mission will advance the Administration's goal to broaden and deepen the U.S. exporter base and support the President's National Export Initiative by providing individual participants with business opportunities to achieve export success in these markets.
In support of these goals, the mission's purpose is to support participants as they construct a firm foundation for future business in Qatar and the U.A.E., and specifically aims to:
• Provide participants with market information about the local infrastructure that will contribute to increasing U.S. exports to the Qatari and U.A.E. markets.
• Assist in identifying potential end-users and partners (including potential agents, distributors, and licensee partners) and business strategies for U.S. companies to gain access to the Qatari and U.A.E. markets.
• Provide an opportunity to participate in policy and regulatory framework discussions with Qatari and
• Confirm U.S. Government support for U.S. business activities in Qatar and the U.A.E. and to provide access to senior government decision makers from Qatar and U.A.E.
During the mission to Qatar and the U.A.E., the participants will:
• Meet with high-level Qatari and Emirati government officials.
• Meet with prescreened potential partners, agents, distributors, representatives and licensees.
• Meet with representatives of the Chambers of Commerce, industry and trade associations.
• Attend briefings conducted by Embassy officials on the economic and commercial climates.
Receptions and other business events will be organized to provide mission participants with additional opportunities to speak with local business and government representatives, as well as U.S. business executives living and working in the region.
The mission program will begin at 5:00 pm, Saturday, October 29, 2011 and run through the evening of Thursday, November 3, 2011. Participants are encouraged to arrive on or before October 29, 2011.
All parties interested in participating in the Business Development Mission to Qatar and the U.A.E. must complete and timely submit an application package for consideration by the U.S. Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. The mission is designed to select a a maximum of 15 companies to participate in the mission from the applicant pool. U.S. companies already doing business in the target markets, as well as U.S. companies seeking to enter these markets for the first time, are encouraged to apply.
After a company has been selected to participate on the mission, a payment to the Department of Commerce in the form of a participation fee is required. The participation fee will be $4259 for large firms and $3707 for a small or medium-sized enterprise (SME),
Expenses for travel, lodging, some meals, and incidentals will be the responsibility of each mission participant. Air transportation from the United States (or point of origin) to Qatar and return to the United States is the responsibility of the participant. Business visas may be required. Government fees and processing expenses to obtain such visas are also not included in the mission costs. However, the U.S. Department of Commerce will provide instructions to each participant on the procedures required to obtain necessary business visas.
An applicant must timely submit a completed and signed mission application and supplemental application materials, including adequate information on the company's products and/or services, primary market objectives, and goals for participation. If the U.S. Department of Commerce receives an incomplete application, the Department may reject the application, request additional information, or take the lack of information into account when evaluating the applications.
Selection will be based on the following criteria in decreasing order of importance:
• Consistency of a company's products or services with the scope and desired outcome of the mission's goals;
• Suitability of a company's products or services to the Qatari and U.A.E. markets and the likelihood of a participating company's increased exports to or business interests in these markets as a result of this mission;
• Demonstrated export experience in Qatar, the U.A.E., or other foreign markets; Additional factors, such as diversity of company size, type, location, and demographics, may also be considered during the review process.
Referrals from political organizations and any documents, including the application, containing references to partisan political activities (including political contributions) will be removed from an applicant's submission and not considered during the selection process.
Mission recruitment will be conducted in an open and public manner, including publication in the
The Commerce Department's Office of Business Liaison and the International Trade Administration will explore and welcome outreach assistance from other interested organizations, including other U.S. government agencies.
Applications can be completed on-line at the Qatar and U.A.E. Business Development Mission Web site at
Ms. Jessica Arnold,
Phone: (202) 482-2026/Fax: (202) 482-1900,
E-mail:
U.S. Commercial Service Qatar Contact:
Mr. Dao Le,
Tel: 011-974-488-4101/Fax: 011-974-488-4163,
E-mail:
Ms. Laurie Farris,
U.S. Commercial Service, Abu Dhabi, UAE,
Phone: 011-971-2-414-2665/Fax: 011-971-2-414-2228,
E-mail:
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before August 30, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Paul Marx, Chief, Financial Services Division (301) 427-8725 or
United States (U.S.) commercial fishermen may file claims for compensation for losses of or damage to fishing gear or vessels, plus 50 percent of resulting economic losses, attributable to oil and gas activities on the U.S. Outer Continental Shelf. To obtain compensation, applicants must comply with requirements set forth in 50 CFR part 296. The requirements include a report within 15 days of the date the vessel first returns to port after the incident, to gain a presumption of eligible causation, and an application form.
The report form (NOAA Form 88-166) requests identifying information such as the claimant's name, address, phone number, and social security number. It also requests information pertaining to the casualty, such as the location of the obstruction, the date and time of the casualty, identification of the vessel involved, and the date the vessel first returned to port after the casualty.
The application (NOAA Form 88-164) consists of a property loss section and a section for economic loss. The property loss section requests the same identifying information contained in the initial report. It also requests information such as the amount and type of damage claimed, description of the casualty and likely causes, efforts to recover gear, description of proofs of ownership, estimates of repair or replacement costs, and identification of witnesses. The economic loss section requests information pertaining to economic loss and consequential damages resulting from the casualty. This includes the length of trips and income from those trips prior to the casualty, number of gear units lost, date replacement gear was ordered and received or the date repairs were commenced and completed. This section also requests information regarding consequential damages such as extra fuel consumption or claim preparation fees. The application also includes inventory schedules which lists the amounts of gear involved in the casualty, its purchase date, purchase cost, and repair or replacement cost. The application includes an affidavit by which the claimant attests to the truthfulness of the claim.
Paper forms are used for applications, and reports are made by telephone.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before August 30, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Christy Loper, (301) 713-3000 Ext 125 or at
This request is for a new information collection.
The purpose of this information collection is to obtain information from individuals in the seven United States (U.S.) jurisdictions containing coral reefs. Specifically, NOAA is seeking information on the knowledge, attitudes and reef use patterns, as well as information on knowledge and attitudes related to specific reef protection activities. In addition, this survey will provide for the ongoing collection of social and economic data related to the communities affected by coral reef conservation programs.
The Coral Reef Conservation Program (CRCP), developed under the authority of the Coral Reef Conservation Act of 2000, is responsible for programs intended to enhance the conservation of coral reefs. NOAA intend to use the information collected through this instrument for research purposes as well as measuring and improving the results of our reef protection programs. Because many of the efforts to protect reefs rely on education and changing attitudes toward reef protection, the information collected will allow CRCP staff to ensure programs are designed appropriately at the start, future program evaluation efforts are as successful as possible, and outreach efforts are targeting the intended recipients with useful information.
Information will be collected in the means most efficient and effective in the individual jurisdiction. For the three years covered by this clearance NOAA expect to use face-to-face interviews in American Samoa, internet-based survey techniques in Hawaii and Florida, and telephone and internet as appropriate in Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before August 30, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Donna Franklin, (301) 713-0090 x141 or
This request is for revision of a currently approved information collection. The StormReady Program, like the TsunamiReady and StormReady/TsunamiReady programs also in this information collection, is a voluntary program offered to provide guidance and incentive to officials who wish to improve their hazardous weather operations, e.g. community preparedness and local warning dissemination. Applicants fill out a detailed application that demonstrates how they meet certain guidelines that qualify them for StormReady recognition. The full StormReady recognition is not appropriate for all entities, yet they should still be recognized for their efforts in preparing for hazardous weather. To this end, the National Weather Service created the StormReady Supporter program. StormReady Supporter is a voluntary program offered to provide guidance and incentive to entities, such as local hospitals or businesses, who wish to improve their respective hazardous weather preparations. Entities will use the application to apply for a one-time StormReady Supporter recognition. The government will use the application form to determine whether an entity has met the guidelines for a StormReady Supporter recognition.
Applications will be submitted on paper (faxed or mailed) or electronically.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before August 30, 2011.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Gordon Colvin (301-427-8118) or
This is an extension of a currently approved collection.
The National Saltwater Angler Registry Program (Registry Program) was established to implement recommendations included in the review of national saltwater angling data collection programs conducted by the National Research Council (NRC) in 2005/2006, and the provisions of the Magnuson-Stevens Reauthorization Act, codified at Section 401(g) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which require the Secretary of Commerce to commence improvements to recreational fisheries surveys, including establishing a national saltwater angler and for-hire vessel registry, by January 1, 2009. A final rule that includes regulatory measures to implement the Registry Program (Regulation Identifier Number (RIN) 0648-AW10) was adopted and codified in 50 CFR 600.1400 to 600.1417.
The Registry Program collects identification and contact information from those anglers and for-hire vessels who are involved in recreational fishing in the United States Exclusive Economic Zone or for anadromous fish in any waters, unless the anglers or vessels are exempted from the registration requirement. The data that is collected includes: for anglers—name, address, date of birth, telephone contact information and region(s) of the country in which they fish; for for-hire vessels—owner and operator name, address, date of birth, telephone contact information, vessel name and registration/documentation number and home port or primary operating area. This information is compiled into a national and/or series of regional registries that is being used to support surveys of recreational anglers and for-hire vessels to develop estimates of recreational angling effort.
The Secretary is to also exempt from the federal registration requirement those anglers and vessels that are licensed or registered by a state if the state provides sufficient identification and contact information for use in recreational surveys.
Persons may register in two ways: Via a toll-free telephone number or on line
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of non-compliance with international commission standards.
Through the International Commission for the Conservation of Atlantic Tunas (ICCAT), it has come to the attention of NMFS that Libyan vessels may not be meeting ICCAT requirements for Atlantic bluefin tuna fishing in the Mediterranean. NMFS advises importers to take great care with respect to any import of Atlantic bluefin tuna harvested by Libyan vessels in 2011, as these shipments may have been illegally harvested and could be subject to increased scrutiny and potential liability.
Questions relating to permits or regulations may be directed to Margo Schulze-Haugen at (301) 713-2334, and questions relating to ICCAT requirements may be directed to Rebecca Lent at (301) 427-8368.
Libya's inability to participate in the ICCAT regional observer program this year as confirmed by the ICCAT Administration, and its current failure to transmit vessel monitoring system (VMS) data is of primary concern. ICCAT requires that large scale (> 24 m) purse seine vessels fishing for eastern Atlantic and Mediterranean bluefin tuna carry an ICCAT-assigned regional observer and transmit certain data directly to ICCAT using a satellite-based vessel monitoring system. ICCAT requirements provide that such purse seine vessels without an ICCAT-placed observer shall not be authorized to fish or to operate in the bluefin tuna fishery. Thus, any product taken by Libya's purse seine fleet under these conditions in 2011 would not be in compliance with ICCAT conservation and management measures.
Failure to implement these ICCAT requirements is subject to action at the national and international levels. In that regard, other ICCAT members that import bluefin tuna, in particular Japan and the European Union, have indicated that they will prohibit the import of Libyan-caught bluefin tuna if harvested in 2011 contrary to the requirements of ICCAT. The United States has implemented through regulation its obligation under ICCAT's Bluefin Catch Document program to require, as a condition of importation into the United States and conduct of other transactions (such as export and re-export), that all bluefin tuna shipments be accompanied by a properly completed catch document that has been validated by a government official or other authorized individual of the flag or exporting State (unless the fish are tagged) (73 FR 31380, June 2, 2008). Improperly documented bluefin tuna may be prohibited from importation into the United States or be subject to other sanctions.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Habitat/MPA/Ecosystem Advisory Panel, in July, 2011, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Wednesday, July 20, 2011 at 9 a.m.
This meeting will be held at the Holiday Inn, 31 Hampshire Street, Mansfield, MA 02048;
Paul J. Howard, Executive Director, New England Fishery Management Council;
The Advisory Panel will discuss measures to minimize the adverse effects of fishing on EFH and measures to protect deep-sea corals as well as review the decision document prepared by the Plan Development Team. The Panel will also provide guidance to the Committee on these issues. Other topics may be discussed at the Chair's discretion.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Monkfish Advisory Panel, in July, 2011, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will be held on Tuesday, July 19, 2011 at 9 a.m.
The meeting will be held at the Crowne Plaza, 50 Ferncroft Road, Danvers, MA 01923; telephone: (978) 777-2500; fax: (978) 750-7959.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Monkfish Advisory Panel (AP) will meet to develop a detailed problem statement based on the list of issues identified by the Advisory Panel and Monkfish Oversight Committee. The Oversight Committee has requested that the Advisory Panel provide details, specificity and examples of the issues in the list for the purpose of developing recommended goals and objectives for Amendment 6 to the Monkfish Fishery Management Plan. In Amendment 6, the New England and Mid-Atlantic Fishery Management Councils are considering adopting catch shares management programs in one or both monkfish management areas. The Advisory Panel detailed list of issues will be forwarded to the Oversight Committee for review at its next meeting.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental take authorization (ITA).
In accordance with the Marine Mammal Protection Act (MMPA) regulation, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to the Lamont-Doherty Earth Observatory of Columbia University (L-DEO) to take marine mammals, by Level B harassment, incidental to conducting a marine geophysical survey in the western Gulf of Alaska (GOA), June to August, 2011.
Effective June 28 to September 4, 2011.
A copy of the IHA and application are available by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910 or by telephoning the contacts listed here.
A copy of the application containing a list of the references used in this document may be obtained by writing to the above address, telephoning the contact listed here (see
Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301-427-8401.
Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371 (a)(5)(D)) directs the Secretary of Commerce (Secretary) to authorize, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by United States citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if
Authorization for the incidental taking of small numbers of marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking, other means of effecting the least practicable adverse impact on the species or stock and its habitat, and requirements pertaining to the mitigation, monitoring and reporting of such takings. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for NMFS's review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the public comment period, NMFS must either issue or deny the authorization.
Except with respect to certain activities not pertinent here, 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].
NMFS received an application on April 1, 2010, from L-DEO for the taking by harassment, of marine mammals, incidental to conducting a marine geophysical survey in the western GOA within the U.S. Exclusive Economic Zone (EEZ) in depths from approximately 25 meters (m) (82 feet [ft]) to greater than 6,000 m (19,685 ft). The cruise was postponed in 2010 and rescheduled for 2011. NMFS received a revised application on March 4, 2011 from L-DEO. L-DEO plans to conduct the survey from approximately June 28 to August 4, 2011. On May 6, 2011, NMFS published a notice in the
L-DEO plans to use one source vessel, the R/V
Acoustic stimuli (
L-DEO's planned seismic survey in the western GOA, from the Shumagin Islands to east of Kodiak Island, will take place during June to August, 2011, in the area 52.5° to 59° North, 147.5° to 161° West (see Figure 1 of the IHA application). The seismic survey will take place in water depths ranging from 25 m (82 ft) to greater than 6,000 m (82 to 19,685 ft) and consists of approximately 2,553 kilometers (km) (1,378.5 nautical miles [nmi]) of transect lines in the study area. The project is scheduled to occur from approximately June 28 to August 4, 2011. Some minor deviation from these dates is possible, depending on logistics and weather.
The seismic survey will collect seismic reflection and refraction data to characterize the subduction zone off southern Alaska, which produces large and destructive earthquakes. The data from this study will be used to: (1) Estimate the size of the seismogenic zone, the portion of the fault that controls the magnitude of earthquakes, and (2) provide critical information on how the properties of the seismogenic zone change along the subduction zone such that some areas produce large earthquakes and others do not. The study focuses on the Semidi segment, whose earthquake recurrence interval is 50 to 75 years and which last ruptured in 1938.
The survey will involve one source vessel, the
The planned seismic survey (
All planned geophysical data acquisition activities will be conducted by L-DEO, the
The survey will occur in the western GOA in the area 52.5° to 59° North, 147.5 to 161° West. The seismic survey will take place in water depths of 25 m to greater than 6,000 m. The
NMFS outlined the purpose of the program in a previous notice for the proposed IHA (76 FR 26255, May 6, 2011). The activities to be conducted have not changed between the proposed IHA notice and this final notice announcing the issuance of the IHA. For a more detailed description of the authorized action, including vessel and acoustic source specifications, the reader should refer to the proposed IHA notice (76 FR 26255, May 6, 2011), the IHA application, EA, and associated documents referenced above this section.
A notice of receipt of the L-DEO application and proposed IHA was published in the
Following are their comments and NMFS's responses:
The alternative method of conducting site-specific attenuation measurements in the water depths that the survey is to be conducted is neither warranted nor practical for the applicant. Site signature measurements are normally conducted commercially by shooting a test pattern over an ocean bottom instrument in shallow water. This method is neither practical nor valid for this survey which will occur in water depths as great as 6,000 m (19,685 ft). The alternative method of conducting site-specific attenuation measurements would require a second vessel, which is impractical both logistically and financially. Sound propagation varies notably less between deep water sites than it would between shallow water sites (because of the reduced significance of bottom interaction), thus decreasing the importance of deep water site-specific estimates.
Should the applicant endeavor to undertake a sound source verification study, confidence in the results is necessary in order to ensure for conservation purposes that appropriate monitoring and mitigation measures are implemented; therefore inappropriate or poorly executed efforts should be avoided and discouraged.
Source signature modeling is preferable in this instance because:
(1) The results can be reviewed and independently verified;
(2) Site-specific measurements are subject to numerous sources of error; and
(3) Reliable site-specific measurements require specialized equipment (calibrated hydrophones) and acoustic specialists to conduct the tests and interpret the results.
The 160 dB (
At present, the L-DEO model does not account for site-specific environmental conditions. The calibration study of the L-DEO model predicted that using site-specific information may actually provide less conservative EZs at greater distances. The “Draft Programmatic Environmental Impact Statement for Marine Seismic Research Funded by the National Science Foundation or
The IHA issued to L-DEO, under section 101(a)(5)(D) of the MMPA provides monitoring and mitigation requirements that will protect marine mammals from injury, serious injury, or mortality. L-DEO is required to comply with the IHA's requirements. These analyses are supported by extensive scientific research and data. NMFS is confident in the peer-reviewed results of the L-DEO seismic calibration studies which, although viewed as conservative, are used to determine cruise-specific EZs and which factor into exposure estimates. NMFS has determined that these reviews are the best scientific data available for review of the IHA application and to support the necessary analyses and determinations under the MMPA, Endangered Species Act (ESA; 16 U.S.C. 1531
Based on NMFS's analysis of the likely effects of the specified activity on marine mammals and their habitat, NMFS has determined that the EZs identified in the IHA are appropriate for the survey and that additional field measurement is not necessary at this time. While exposures of marine mammals to acoustic stimuli are difficult to estimate, NMFS is confident that the levels of take authorized herein are estimated based upon the best available scientific information and estimation methodology. The 160 dB zone used to estimate exposure are appropriate and sufficient for purposes of supporting NMFS's analysis and determinations required under section 101(a)(5)(D) of the MMPA and its implementing regulations.
(1) Because the
(2) In many cases PSVOs are observing during times when L-DEO is not operating the seismic airguns and would observe the area prior to the 30 min observation period;
(3) The majority of the species that may be exposed do not stay underwater more than 30 min; and
(4) All else being equal and if deep-diving individuals happened to be in the area in the short time immediately prior to the pre-ramp up monitoring, if an animal's maximum underwater dive time is 45 min, then there is only a one in three chance that the last random surfacing would occur prior to the beginning of the required 30 min monitoring period and that the animal would not be seen during that 30 min period.
Finally, seismic vessels are moving continuously (because of the long, towed array and streamer) and NMFS
The effectiveness of monitoring is science-based and the requirement that monitoring and mitigation measures be “practicable.” NMFS believes that the framework for visual monitoring will: (1) Be effective at spotting almost all species for which take is requested; and (2) that imposing additional requirements, such as those suggested by the Commission, would not meaningfully increase the effectiveness of observing marine mammals approaching or entering the EZs and thus further minimize the potential for take.
(1) Identifying those species that it believes can be detected with a high degree of confidence using visual monitoring only,
(2) Describing detection probability as a function of distance from the vessel,
(3) Describing changes in detection probability under various sea state and weather conditions and light levels, and
(4) Explaining how close to the vessel marine mammals must be for Protected Species Observers (PSOs) to achieve high nighttime detection rates.
NMFS acknowledges that the detection probability for certain species of marine mammals varies depending on animal's size and behavior as well as sea state and weather conditions and light levels. The detectability of marine mammals likely decreases in low light (
NSF and L-DEO are receptive to incorporating proven technologies and techniques to enhance the current monitoring and mitigation program. Until proven technological advances are made, nighttime mitigation measures during operations include combinations of the use of PSVOs for ramp-ups, PAM, night vision devices (NVDs), and continuous shooting of a mitigation airgun. Should the airgun array be powered-down, the operation of a single airgun would continue to serve as a sound source deterrent to marine mammals. In the event of a complete shut-down of the airgun array at night for mitigation or repairs, L-DEO suspends the data collection until one-half hour after nautical twilight-dawn (when PSVO's are able to clear the EZ). L-DEO will not activate the airguns until the entire EZ is visible for at least 30 min.
In cooperation with NMFS, L-DEO will be conducting efficacy experiments of NVDs during a future
There will be significant amounts of transit time during the cruise, and PSVOs will be on watch prior to and after the seismic portions of the survey, in addition to during the survey. The collection of this visual observational data by PSVOs may contribute to baseline data on marine mammals (presence/absence) and provide some generalized support for estimated take numbers, but it is unlikely that the information gathered from this single cruise along would result in any statistically robust conclusions for any particular species because of the small number of animals typically observed.
NMFS acknowledges the Commission's recommendations and is open to further coordination with the Commission, NSF (the vessel owner), and L-DEO (the ship operator on behalf of NSF), to develop, validate, and implement a monitoring program that will provide or contribute towards a more scientifically sound and reasonably accurate assessment of the types of marine mammal taking and the number of marine mammals taken. However, the cruise's primary focus is marine geophysical research and the survey may be operationally limited due to considerations such as location, time, fuel, services, and other resources.
(1) Report on the number of marine mammals that were detected acoustically and for which a power-down or shut-down of the airguns was initiated;
(2) Specify if such animals also were detected visually; and
(3) Compare the results from the two monitoring methods (visual versus acoustic) to help identify their respective strengths and weaknesses.
(i) Notify the on-duty PSVO(s) immediately of a vocalizing marine mammal so a power-down or shut-down can be initiated, if required;
(ii) Enter the information regarding the vocalization into a database. The
L-DEO reports on the number of acoustic detections made by the PAM system within the post-cruise monitoring reports as required by the IHA. The report also includes a description of any acoustic detections that were concurrent with visual sightings, which allows for a comparison of acoustic and visual detection methods for each cruise.
The post-cruise monitoring reports also include the following information: the total operational effort in daylight (hrs), the total operational effort at night (hrs), the total number of hours of visual observations conducted, the total number of sightings, and the total number of hours of acoustic detections conducted.
LGL Ltd., Environmental Research Associates (LGL), a contractor for L-DEO, has processed sighting and density data, and their publications can be viewed online at:
(i) Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction of the airguns or vessel (
(ii) Time, location, heading, speed, activity of the vessel (including number of airguns operating and whether in state of ramp-up or power-down), Beaufort wind force and sea state, visibility, and sun glare.
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to 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 shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with L-DEO to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. L-DEO may not resume their activities until notified by NMFS via letter or e-mail, or telephone.
In the event that L-DEO discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that L-DEO discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related
Twenty-five marine mammal species (18 cetacean, 6 pinniped, and the sea otter) are known to or could occur in the GOA study area. Several of these species are listed as endangered under the U.S. Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
The marine mammals that occur in the survey area belong to four taxonomic groups: odontocetes (toothed cetaceans, such as dolphins), mysticetes (baleen whales), pinnipeds (seals, sea lions, and walrus), and fissipeds (sea otter). Cetaceans and pinnipeds are the subject of the IHA application to NMFS. Walrus sightings are rare in the GOA. Sea otters generally inhabit nearshore areas inside the 40 m (131.2 ft) depth contour (Riedman and Estes, 1990) and could be encountered in coastal waters, but likely would not be encountered in the deep, offshore waters of the study area. The sea otter and Pacific walrus are two marine mammal species mentioned in this document that are managed by the U.S. Fish and Wildlife Service (USFWS) and are not considered further in this analysis; all others are managed by NMFS. The Cook Inlet DPS of beluga whales, California sea lions (
Table 1 presents information on the abundance, distribution, population status, conservation status, and density of the marine mammals that may occur in the survey area during June to August, 2011.
Refer to Section III and IV of L-DEO's application for detailed information regarding the abundance and distribution, population status, and life history and behavior of these species and their occurrence in the project area. The application also presents how L-DEO calculated the estimated densities for the marine mammals in the survey
Acoustic stimuli generated by the operation of the airguns, which introduce sound into the marine environment, may have the potential to cause Level B harassment of marine mammals in the survey area. The effects of sounds from airgun operations might include one or more of the following: Tolerance, masking of natural sounds, behavioral disturbance, temporary or permanent hearing impairment, or non-auditory physical or physiological effects (Richardson
Permanent hearing impairment, in the unlikely event that it occurred, would constitute injury, but temporary threshold shift (TTS) is not an injury (Southall
The notice of the proposed IHA (76 FR 26255, May 6, 2011) included a discussion of the effects of sounds from airguns on mysticetes, odontocetes, and pinnipeds including tolerance, masking, behavioral disturbance, hearing impairment, and other non-auditory physical effects. NMFS refers the reader to L-DEO's application, and EA for additional information on the behavioral reactions (or lack thereof) by all types of marine mammals to seismic vessels.
NMFS included a detailed discussion of the potential effects of this action on marine mammal habitat, including physiological and behavioral effects on marine fish, fisheries, and invertebrates in the notice of the proposed IHA (76 FR 26255, May 6, 2011). While NMFS anticipates that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, this impact to habitat is temporary and reversible which NMFS considered in further detail in the notice of the proposed IHA (76 FR 25255, May 6, 2011) as behavioral modification. The main impact associated with the activity would be temporarily elevated noise levels and the associated direct effects on marine mammals.
Recent work by Andre
In order to issue an ITA 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 adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses.
L-DEO has based the mitigation measures described herein, to be implemented for the seismic survey, on the following:
(1) Protocols used during previous L-DEO seismic research cruises as approved by NMFS;
(2) Previous IHA applications and IHAs approved and authorized by NMFS; and
(3) Recommended best practices in Richardson
To reduce the potential for disturbance from acoustic stimuli associated with the activities, L-DEO and/or its designees will implement the following mitigation measures for marine mammals:
(1) EZs;
(2) Power-down procedures;
(3) Shut-down procedures;
(4) Ramp-up procedures; and
(5) Special procedures for situations and species of concern.
Reducing the size of the energy source was also considered, but it was decided that the 6,600 in
Measurements were not reported for a single airgun, so model results will be used. The tow depth has minimal effect on the maximum near-field output and the shape of the frequency spectrum for the single airgun; thus, the predicted EZ are essentially the same at different tow depths. The L-DEO model does not allow for bottom interactions, and thus is most directly applicable to deep water and to relatively short ranges; correction factors were used to estimate EZs in shallow and intermediate depth water as was done for previous L-DEO surveys from the
Based on the corrected propagation measurements (airgun array) and modeling (single airgun), the distances from the source where sound levels are predicted to be 190, 180, and 160 dB re 1 μPa (rms) were determined (see Table 2 below). The 180 and 190 dB radii are shut-down criteria applicable to cetaceans and pinnipeds, respectively, as specified by NMFS (2000); these levels were used to establish the EZs. If the PSVO detects marine mammal(s) within or about to enter the appropriate EZ, the airguns will be powered-down (or shut-down, if necessary) immediately.
Table 2 summarizes the predicted distances at which sound levels (160, 180, and 190 dB [rms]) are expected to be received from the 36 airgun array and a single airgun operating in deep water depths.
If the PSVO detects a marine mammal outside the EZ, but it is likely to enter the EZ, L-DEO will power-down the airguns before the animal is within the EZ. Likewise, if a mammal is already within the EZ, when first detected L-DEO will power-down the airguns immediately. During a power-down of the airgun array, L-DEO will also operate the 40 in
Following a power-down, L-DEO will not resume airgun activity until the marine mammal has cleared the EZ. L-DEO will consider the animal to have cleared the EZ if:
• A PSVO has visually observed the animal leave the EZ, or
• A PSVO has not sighted the animal within the EZ for 15 min for species with shorter dive durations (
During airgun operations following a power-down (or shut-down) whose duration has exceeded the time limits specified previously, L-DEO will ramp-up the airgun array gradually (see Shut-down and Ramp-up Procedures).
(1) If an animal enters the EZ of the single airgun after L-DEO has initiated a power-down; or
(2) If an animal is initially seen within the EZ of the single airgun when more than one airgun (typically the full airgun array) is operating.
L-DEO will not resume airgun activity until the marine mammal has cleared the EZ, or until the PSVO is confident that the animal has left the vicinity of the vessel. Criteria for judging that the animal has cleared the EZ will be as described in the preceding section.
Ramp-up will begin with the smallest airgun in the array (40 in
If the complete EZ has not been visible for at least 30 min prior to the start of operations in either daylight or nighttime, L-DEO will not commence the ramp-up unless at least one airgun (40 in
• The airguns will be shut down immediately if ESA-listed species for which no takes are being requested (
• Concentrations of humpback, fin, and/or killer whales will be avoided if possible, and the array will be powered down if necessary. For purposes of this survey, a concentration or group of whales will consist of three or more individuals visually sighted that do not appear to be traveling (
• Seismic operations in Chignik Bay will be conducted from nearshore to offshore waters.
• Avoidance of areas where subsistence fishers are fishing, if requested (or viewed as necessary).
NMFS has carefully evaluated the applicant's mitigation measures and has considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. NMFS's evaluation of potential measures included consideration of the following factors in relation to one another:
(1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
(2) The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
(3) The practicability of the measure for applicant implementation.
Based on NMFS's evaluation of the applicant's measures, as well as other measures considered by NMFS or recommended by the public, NMFS has determined that the mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an 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 IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.
L-DEO will sponsor marine mammal monitoring during the present project, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the IHA. L-DEO's Monitoring Plan is described below this section. The monitoring work described here has been planned as a self-contained project independent of any other related monitoring projects that may be occurring simultaneously in the same regions. L-DEO is prepared to discuss coordination of its monitoring program with any related work that might be done by other groups insofar as this is practical and desirable.
L-DEO's PSVOs will be based aboard the seismic source vessel and will watch for marine mammals near the vessel during daytime airgun operations and during any ramp-ups at night. PSVOs will also watch for marine mammals near the seismic vessel for at least 30 min prior to the start of airgun operations after an extended shut-down (
During seismic operations in the western GOA, at least four PSOs (PSVO and/or PSAO) will be based aboard the
Two PSVOs will also be on visual watch during all nighttime ramp-ups of the seismic airguns. A third PSAO will monitor the PAM equipment 24 hours a day to detect vocalizing marine mammals present in the action area. In summary, a typical daytime cruise would have scheduled two PSVOs on duty from the observation tower, and a third PSAO on PAM. Other crew will also be instructed to assist in detecting marine mammals and implementing mitigation requirements (if practical). Other crew will also be instructed to assist in detecting marine mammals and implementing mitigation requirements. Before the start of the seismic survey, the crew will be given additional instruction on how to do so.
The
When marine mammals are detected within or about to enter the designated EZ, the airguns will immediately be powered-down or shut-down if necessary. The PSVO(s) will continue to maintain watch to determine when the animal(s) are outside the EZ by visual confirmation. Airgun operations will not resume until the animal is confirmed to have left the EZ, or if not observed after 15 min for species with shorter dive durations (small odontocetes and pinnipeds) or 30 min for species with longer dive durations (mysticetes and large odontocetes, including sperm, killer, and beaked whales).
PAM will complement the visual monitoring program, when practicable. Visual monitoring typically is not effective during periods of poor visibility or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range. Acoustical monitoring can be used in addition to visual observations to improve detection, identification, and localization of cetaceans. The acoustic monitoring will serve to alert visual observers (if on duty) when vocalizing cetaceans are detected. It is only useful when marine mammals call, but it can be effective either by day or by night, and does not depend on good visibility. It will be monitored in real time so that the PSVOs can be advised when cetaceans are detected.
The PAM system consists of hardware (
One Protected Species Acoustic Observer (PSAO, an expert bioacoustician in addition to the four PSVOs), with primary responsibility for PAM, will be onboard the
When a vocalization is detected while visual observations are in progress, the PSAO will contact the PSVO immediately, to alert him/her to the presence of cetaceans (if they have not already been seen), and to allow a power-down or shut-down to be initiated, if required. When bearings (primary and mirror-image) to calling cetacean(s) are determined, the bearings will be related to the PSVO(s) to help him/her sight the calling animal. The information regarding the call will be entered into a database. Data entry will include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position and water depth when first detected, bearing if determinable, species or species group (
PSVOs will record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. Data will be used to estimate numbers of animals potentially “taken” by harassment (as defined in the MMPA). They will also provide information needed to order a power-down or shut-down of the airguns when a marine mammal is within or near the EZ. Observations will also be made during daytime periods when the
When a sighting is made, the following information about the sighting will be recorded:
1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (
2. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare.
The data listed under (2) will also be recorded at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.
All observations and power-downs or shut-downs will be recorded in a standardized format. Data will be entered into an electronic database. The accuracy of the data entry will be verified by computerized data validity checks as the data are entered and by subsequent manual checking of the database. These procedures will allow initial summaries of data to be prepared during and shortly after the field program, and will facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving.
Results from the vessel-based observations will provide:
1. The basis for real-time mitigation (airgun power-down or shut-down).
2. Information needed to estimate the number of marine mammals potentially taken by harassment, which must be reported to NMFS.
3. Data on the occurrence, distribution, and activities of marine mammals in the area where the seismic study is conducted.
4. Information to compare the distance and distribution of marine mammals relative to the source vessel at times with and without seismic activity.
5. Data on the behavior and movement patterns of marine mammals seen at times with and without seismic activity.
L-DEO will submit a report to NMFS and NSF within 90 days after the end of the cruise. The report will describe the operations that were conducted and sightings of marine mammals near the operations. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report will summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report will also include estimates of the number and nature of exposures that could result in “takes” of marine mammals by harassment or in other ways.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to 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).
In the event that L-DEO discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that L-DEO discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
Except with respect to certain activities not pertinent here, 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].
Only take by Level B harassment is anticipated and authorized as a result of the marine seismic survey in the western GOA. Acoustic stimuli (
The following sections describe L-DEO's methods to estimate take by incidental harassment and present the applicant's estimates of the numbers of marine mammals that could be affected during the seismic program. The estimates are based on a consideration of the number of marine mammals that could be disturbed appreciably by operations with the 36 airgun array to be used during approximately 2,553 km of survey lines in the western GOA.
L-DEO assumes that, during simultaneous operations of the airgun array and the other sources, any marine mammals close enough to be affected by the MBES and SBP would already be affected by the airguns. However, whether or not the airguns are operating simultaneously with the other sources, marine mammals are expected to exhibit no more than short-term and inconsequential responses to the MBES and SBP given their characteristics (
There are several sources of systematic data on the numbers and distributions of marine mammals in the coastal and nearshore areas of the GOA, but there are fewer data for offshore areas. Zerbini
Dahlheim
Most surveys for pinnipeds in Alaska waters have estimated the number of animals at haul-out sites, not in the water (
Table 2 (Table 5 of the EA) gives the estimated average (best) and maximum densities in each of three depth ranges for each species of marine mammals expected to occur in the waters of the central and western GOA. L-DEO used the densities reported by MacLean and Koski (2005) and Hauser and Holst (2009), and those calculated from effort and sightings in Dahlheim and Towell (1994), Waite (2003), and Rone
Table 2 (Table 5 of the EA) incorporates the densities from the aforementioned studies plus those from the following surveys. L-DEO included the killer whale and mysticete densities from the easternmost blocks (1 to 10) surveyed by Zerbini
There is some uncertainty about the representativeness of the data and the assumptions used in the calculations below for three main reasons:
(1) The timing of most of the survey effort (17,806 km [9,614.5 nmi]) (
(2) Surveys by MacLean and Koski (2005), Hauser and Holst (2009), and Dahlheim and Towell (1994) were conducted primarily in southeast Alaska (east of the study area); and
(3) Only the McLean and Koski (2005), Hauser and Holst (2009), and Rone
Also, to provide some allowance for these uncertainties, “maximum estimates” as well as “best estimates” of the densities present and numbers potentially affected have been derived. Best estimates of density are effort-weighted mean densities from all previous surveys, whereas maximum estimates of density come from the individual survey that provided the highest density. For pinnipeds in deep water where only one density was available (DON, 2009), that density was used as the best estimate and the maximum is 1.5 times the best estimate.
For one species, the Dall's porpoise, density estimates in the original reports are much higher than densities expected during the survey, because this porpoise is attracted to vessels. L-DEO estimates for Dall's porpoises are from vessel-based surveys without seismic activity; they are overestimates possibly by a factor of 5 times, given the tendency of this species to approach vessels (Turnock and Quinn, 1991). Noise from the airgun array during the survey is expected to at least reduce and possibly eliminate the tendency of this porpoise to approach the vessel. Dall's porpoises are tolerant of small airgun sources (MacLean and Koski, 2005) and tolerated higher sound levels than other species during a large-array survey (Bain and Williams, 2006); however, they did respond to that and another large airgun array by moving away (Calambokidis and Osmek, 1998; Bain and Williams, 2006). Because of the probable overestimates, the best and maximum estimates for Dall's porpoises shown in Table 2 (Table 3 of the IHA application) are one-quarter of the reported densities. In fact, actual densities are probably slightly lower than that.
L-DEO's estimates of exposures to various sound levels assume that the
L-DEO estimated the number of different individuals that may be exposed to airgun sounds with received levels greater than or equal to 160 dB re 1 μPa (rms) on one or more occasions by considering the total marine area that would be within the 160 dB radius around the operating airgun array on at least one occasion and the expected density of marine mammals. The number of possible exposures (including repeated exposures of the same individuals) can be estimated by considering the total marine area that would be within the 160 dB radius around the operating airguns, including areas of overlap. In the survey, the seismic lines are widely spaced in the survey area, so few individual marine mammals would be exposed more than once during the survey. The area including overlap is only 1.3 times the area excluding overlap. Thus, few individual marine mammals would be exposed more than once during the survey. Moreover, it is unlikely that a particular animal would stay in the area during the entire survey.
For each depth stratum, the number of different individuals potentially exposed to received levels greater than or equal to 160 re 1 μPa (rms) was calculated by multiplying:
(1) The expected species density, either “mean” (
(2) The anticipated area to be ensonified to that level during airgun operations excluding overlap.
The area expected to be ensonified was determined by entering the planned survey lines into a MapInfo Geographic Information System (GIS), using the GIS to identify the relevant areas by “drawing” the applicable 160 dB isopleth (see Table 1 of the IHA application) around each seismic line, and then calculating the total area within the isopleths. Areas of overlap (because of lines being closer together than the 160 dB radius) were limited and included only once when estimating the number of individuals exposed.
Applying the approach described above, approximately 49,679 km
Table 3 (Table 4 of the IHA application) shows the best and maximum estimates of the number of different individual marine mammals that potentially could be exposed to greater than or equal to 160 dB re 1 μPa (rms) during the seismic survey if no animals moved away from the survey vessel. The requested take authorization, given in Table 3 (the far right column of Table 4 of the IHA application), is based on the best estimates rather than the maximum estimates of the numbers exposed, because there was little uncertainty associated with the method of estimating densities. For cetacean species not listed under the ESA that could occur in the study area but were not sighted in the surveys from which density estimates were calculated—gray whale (<0.1%), Risso's dolphin (<0.1%), short-finned pilot whale (NA), and Stejneger's beaked whale (NA)—the average group size has been used to request take authorization. For ESA-listed cetacean species unlikely to be encountered during the study (North Pacific right, sei, blue, and beluga whales), the requested takes are zero.
The “best estimate” of the number of individual cetaceans that could be exposed to seismic sounds with received levels greater than or equal to 160 dB re 1 μPa (rms) during the survey is 4,392 (see Table 4 of the IHA application) for all three depth ranges combined. That total includes 1,824 humpback whales, 60 minke whales, 598 fin whales, 5 sperm whales, 12 Cuvier's beaked whales, 4 Baird's beaked whales, 127 Pacific white-sided dolphins, 415 killer whales, and180 harbor porpoises which would represent 8.8%, 0.2%, 3.7%, 0.1%, 0.1%, 0.1%, 0.1%, 4.9%, and 0.1% of the regional populations, respectively. After humpback whales, Dall's porpoises are expected to be the most common species in the study area; the best estimate of the number of Dall's porpoises that could be exposed is 1,167 or about 0.1% of the regional population. This may be a slight overestimate because the estimated densities are slight overestimates. Estimates for other species are lower. The “maximum estimates” total 12,625 cetaceans for the three depth ranges combined.
“Best estimates” of 270 Steller sea lions and 218 harbor seals could be exposed to airgun sounds with received levels greater than or equal to 160 dB re 1 μPa (rms). These estimates represent 0.3% of the Steller sea lion regional population and less than 0.1% of the harbor seal regional population. The estimated numbers of pinnipeds that could be exposed to received levels greater than or equal to 160 dB re 1 μPa (rms) are probably overestimates of the actual numbers that will be affected. Northern fur seals and northern elephant seals are at their rookeries in August. No take has been requested for North Pacific right, sei, and blue whales, beluga whales, Northern elephant seals, Northern fur seals, or California sea lions because they are unlikely to be encountered in the study area.
L-DEO and NSF will coordinate the planned marine mammal monitoring program associated with the seismic survey in the western GOA with other parties that may have an interest in the area and/or be conducting marine mammal studies in the same region during the seismic survey. L-DEO and NSF will coordinate with applicable U.S. Federal, State, and Borough agencies, and will comply with their requirements. Actions of this type that are underway include (but are not limited to) the following:
• Coordination with the Alaska Department of Fish and Game concerning fisheries issues in state waters.
• Contact Alaska Native Harbor Seal Commission, the Aleut Marine Mammal Commission, and the Alaska Sea Otter and Steller Sea Lion Commission with regard to potential concerns about interactions with fisheries and subsistence hunting.
• Contact USFWS regarding concerns about possible impacts on sea otters and critical habitat (for ESA).
• Contact USFWS avian biologists (Kathy Kuletz and Tim Bowman) regarding potential interaction with seabirds (for ESA).
• Contact Mike Holley, U.S. Army Corps of Engineers (ACOE), to confirm that no permits will be required by the ACOE for the survey.
• A Coastal Project Questionnaire and Certification statement will be submitted with a copy of the EA to the State of Alaska to confirm that the project is in compliance with state and local Coastal Management Programs.
• Contact the National Weather Service (NWS; Jack Endicott) about the survey with regard to the location of NWS buoys in the survey area and the tracklines.
• Contact the logistics coordinator of the local commercial fish processor, to ensure that there will be minimal interference with the local salmon fishery.
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.” In making a negligible impact determination, NMFS evaluated factors such as:
(1) The number of anticipated injuries, serious injuries, or mortalities;
(2) The number, nature, intensity, and duration of Level B harassment (all relatively limited);
(3) The context in which the takes occur (
(4) The status of stock or species of marine mammals (
(5) Impacts on habitat affecting rates of recruitment or survival; and
(6) The effectiveness of monitoring and mitigation measures (
For reasons stated previously in this document, and in the proposed notice of an IHA (76 FR 26255, May 6, 2011), the specified activities associated with the marine seismic survey are not likely to cause PTS, or other non-auditory injury, serious injury, or death because:
(1) The likelihood that, given sufficient notice through relatively slow ship speed, marine mammals are expected to move away from a noise source that is annoying prior to its becoming potentially injurious;
(2) The potential for temporary or permanent hearing impairment is relatively low and would likely be avoided through the incorporation of the required monitoring and mitigation measures (described above);
(3) The fact that pinnipeds would have to closer than 460 m (1,509.2 ft) in deep water, 615 m (2,017.7 ft) in intermediate water, and 770 m (2,526.3 ft) in shallow water when the 36 airgun array and 12 m (39.4 ft) in deep water, 18 m (59.1 ft) in intermediate water, and 150 m (492.1 ft) in shallow water when the single airgun is in use at 6 to 12 m (19.7 to 39.4 ft) tow depth from the vessel to be exposed to levels of sound believed to have even a minimal chance of causing PTS;
(4) The fact that cetaceans would have to be closer than 1,100 m (3,608.9 ft) in deep water, 1,810 m (5,938.3 ft) in intermediate water, and 2,520 m (8,267.7 ft) in shallow water when the 36 airgun array is in use at 12 m tow depth, and 40 m (131.2 ft) in deep water, 60 m (196.9 ft) in intermediate water, and 296 m (971.1 ft) in shallow water when the single airgun is in use at 6 to 12 m tow depth from the vessel to be exposed to levels of sound believed to have even a minimal chance of causing PTS; and
(5) The likelihood that marine mammal detection ability by trained PSOs is high at close proximity to the vessel.
No injuries, serious injuries, or mortalities are anticipated to occur as a result of L-DEO's planned marine seismic survey, and none are authorized by NMFS. Only short-term, behavioral disturbance is anticipated to occur due to the brief and sporadic duration of the survey activities. Table 3 in this document outlines the number of Level B harassment takes that are anticipated as a result of the activities. Due to the nature, degree, and context of Level B (behavioral) harassment anticipated and described (see Potential Effects on Marine Mammals section above) in this notice, the activity is not expected to impact rates of recruitment or survival for any affected species or stock.
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (
As mentioned previously, NMFS estimates that 19 species of marine mammals under its jurisdiction could be potentially affected by Level B harassment over the course of the IHA. For each species, these numbers are small (each, one percent or less, except for humpback [8.8%], fin [3.7%], and killer [4.9%] whales) relative to the regional population size. The population estimates for the marine mammal species that may be taken by harassment, were provided in Table 1 of this document.
NMFS's practice has been to apply the 160 dB re 1 µPa (rms) received level threshold for underwater impulse sound levels to determine whether take by Level B harassment occurs. Southall
NMFS has determined, provided that the aforementioned mitigation and monitoring measures are implemented, that the impact of conducting a marine geophysical survey in the western GOA, June to August, 2011, may result, at worst, in a temporary modification in behavior and/or low-level physiological effects (Level B harassment) of small numbers of certain species of marine mammals. See Table 3 (above) for the authorized take numbers of cetaceans and pinnipeds.
While behavioral modifications, including temporarily vacating the area during the operation of the airgun(s), may be made by these species to avoid the resultant acoustic disturbance, the availability of alternate areas within these areas and the short and sporadic duration of the research activities, have led NMFS to determine that this action will have a negligible impact on the species in the specified geographic region.
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 mitigation and monitoring measures, NMFS finds that L-DEO's planned research activities, will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from the marine seismic survey
Marine mammals are hunted legally in Alaska waters by coastal Alaska Natives. In the GOA, the marine mammals under NMFS jurisdiction that are hunted are Steller sea lions and harbor seals. In 2007, a total of 1,428 harbor seals were taken by Alaska Natives (Wolfe
In 2007, a total of 217 Steller sea lions were taken by Alaska Natives, excluding St. Paul Island (Wolfe
The project could potentially impact the availability of marine mammals for harvest in a very small area immediately around the
Section 101(a)(5)(D) also requires NMFS to determine that the authorization will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. Based on the information above, subsistence uses of marine mammals in the study area (waters of the western GOA) that implicate MMPA section 101(a)(5)(D) are not expected to be impacted.
Of the species of marine mammals that may occur in the survey area, several are listed as endangered under the ESA, including the North Pacific right, humpback, sei, fin, blue, and sperm whales, as well as the Cook Inlet DPS of beluga whales and the western stock of Steller sea lions. The eastern stock of Steller sea lions is listed as threatened. Critical habitat for the North Pacific right whale and Steller sea lion is also found within the GOA. Under section 7 of the ESA, NSF has initiated formal consultation with the NMFS, Office of Protected Resources, Endangered Species Division, on this seismic survey. NMFS's Office of Protected Resources, Permits, Conservation and Education Division, has initiated formal consultation under section 7 of the ESA with NMFS's Office of Protected Resources, Endangered Species Division, to obtain a Biological Opinion (BiOp) evaluating the effects of issuing the IHA on threatened and endangered marine mammals and, if appropriate, authorizing incidental take. In June 2011, NMFS issued a BiOp and concluded that the action and issuance of the IHA are not likely to jeopardize the continued existence of North Pacific right, humpback, sei, fin, blue, and sperm whales, Cook Inlet DPS of beluga whales, and Steller sea lions. The BiOp also concluded that designated critical habitat for these species would not be affected by the survey. NSF and L-DEO must comply with the Relevant Terms and Conditions of the Incidental Take Statement (ITS) corresponding to NMFS's BiOp issued to NSF, L-DEO, and NMFS's Office of Protected Resources. L-DEO must also comply with the mitigation and monitoring requirements included in the IHA in order to be exempt under the ITS in the BiOp from the prohibition on take of listed endangered marine mammal species otherwise prohibited by section 9 of the ESA.
To meet NMFS's NEPA (42 U.S.C. 4321
NMFS has issued an IHA to L-DEO for the take, by Level B harassment, of small numbers of marine mammals incidental to conducting a marine geophysical survey in the western GOA, June to August, 2011, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of open meeting.
This notice announces a public meeting of the Commerce Spectrum Management Advisory Committee (Committee). The Committee provides advice to the Assistant Secretary of Commerce for Communications and Information on spectrum management policy matters.
The meeting will be held on July 27, 2011, from 1 p.m. to 4 p.m., Mountain Daylight Savings Time.
The meeting will be held at the Institute for Telecommunication Sciences, Conference Room 1107, 325 Broadway, Boulder, Colorado. Public comments may be mailed to Commerce Spectrum Management Advisory Committee, National
Bruce M. Washington, Designated Federal Officer, at (202) 482-6415 or
United States Patent and Trademark Office, Commerce.
Notice.
The United States Patent and Trademark Office (“USPTO”) issued the third edition of the
The USPTO prefers that any suggestions for improving the form and content of the TBMP be submitted via electronic mail message to
Angela Lykos, Administrative Trademark Judge, by electronic mail at:
On May 6, 2011, the USPTO issued the third edition of the TBMP, which provides Trademark Trial and Appeal Board (“TTAB”) judges and attorneys, trademark applicants and registrants, and attorneys and representatives for trademark applicants and registrants a comprehensive reference on the practices and procedures for inter partes and ex parte proceedings before the TTAB. The guidance provided by the manual does not have the force and effect of law. Its guidelines have been developed as a matter of internal Office
The third edition incorporates TTAB practice, changes to the Trademark Rules of Practice, the Federal Rules of Civil Procedure and Federal Rules of Evidence where relevant, and case law reported prior to November 15, 2010. The policies stated in this edition supersede any previous policies stated in prior editions or any other statement of USPTO policy, to the extent that there is any conflict. The TBMP may be viewed or downloaded free of charge from the TTAB home page of the USPTO Web site at the address noted above.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and deletions from the Procurement List.
This action adds 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 a service from the Procurement List previously furnished by such agencies.
Effective Date: 8/1/2011.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Barry S. Lineback,
On 4/15/2011 (76 FR 21336-21337); 4/29/2011 (76 FR 23998); and 5/6/2011 (76 FR 26279), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c 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 organizations that will furnish the products and services to the Government.
2. The action will 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. 46-48c) in connection with the products and services proposed for addition to the Procurement List.
Accordingly, the following products and services are added to the Procurement List:
On 4/15/2011 (76 FR 21336-21337), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and service listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c 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 service 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. 46-48c) in connection with the products and service deleted from the Procurement List.
Accordingly, the following products and service are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to 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.
Comments Must Be Received On Or Before: 8/1/2011.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Barry S. Lineback,
This notice is published pursuant to 41 U.S.C 47(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.
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. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. If approved, the action will 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. 46-48c) in connection with the products and services proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products and services are proposed for addition to Procurement List for production by the nonprofit agencies listed:
Department of Defense.
Meeting notice.
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), and 41 CFR 102-3.150, the Department of Defense announces the following Federal advisory committee meeting of the Defense Business Board (DBB).
The public meeting of the Defense Business Board (hereafter referred to as “the Board”) will be held on Thursday, July 21, 2011. The meeting will begin at 9:30 a.m. and end at 12 p.m. (Escort required; See guidance in section below, “Public's Accessibility to the Meeting.”)
Room 3D557 in the Pentagon, Washington, DC (escort required; See guidance in section below, “Public's Accessibility to the Meeting.”)
The Board's Designated Federal Officer (DFO) is Phyllis Ferguson, Defense Business Board, 1155 Defense Pentagon, Room 5B1088A, Washington, DC 20301-1155,
At this meeting, the Board will deliberate draft findings and recommendations from the “Energy Acquisition,” “Military Retirement—Alternative Plans,” “Global Logistics Management” and “Corporate Downsizing Applications for DoD” Task Groups. The Board will also receive updates from the “New Ways to Execute the Joint Requirements Process,” and “Information Technology Modernization” Task Groups. The mission of the Board is to advise the Secretary of Defense on effective strategies for implementation of best business practices of interest to the Department of Defense.
Special Accommodations: Individuals requiring special accommodations to access the public meeting should contact Ms. Duffy at least five (5) business days prior to the meeting so that appropriate arrangements can be made.
Pursuant to 41 CFR 102-3.105(j) and 102-3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, the public or interested organizations may submit written comments to the Board about its mission and topics pertaining to this public session.
Written comments should be received by the DFO at least five (5) business days prior to the meeting date so that the comments may be made available to the Board for their consideration prior to the meeting. Written comments should be submitted via e-mail to the address for the DFO given in this notice in either Adobe Acrobat or Microsoft Word format. Please note that since the Board operates under the provisions of the Federal Advisory Committee Act, as amended, all public presentations will be treated as public documents and will be made available for public inspection, including, but not limited to, being posted on the Board's Web site.
U.S. Army Corps of Engineers, Department of Defense.
Extension of scoping comment period.
In the May 20, 2011 issue of the
Ms. Melissa Riordan, Corps Regulatory Division, Fairbanks, Alaska at (907) 474-2166.
None.
Department of the Navy, DoD.
Notice to alter a system of records.
The Department of the Navy proposes to alter a system of records in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The changes will be effective on August 1, 2011 unless comments are received that would result in a contrary determination.
You may submit comments, identified by docket number and/Regulatory Information Number (RIN) and title, by any of the following methods:
•
•
Ms. Robin Patterson, HEAD, FOIA/Privacy Act Policy Branch, Acting, the Department of the Navy, 2000 Navy Pentagon, Washington, DC 20350-2000, or by phone at (202) 685-6545.
The Department of the Navy systems of records notice subject to the Privacy Act of 1974, (5 U.S.C. § 552a), as amended, has been published in the
The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, were submitted on June 28, 2011, to the House Committee on Government Report, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining records About Individual,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Inspector General (IG) Records (November 20, 2001, 66 FR 58132).
Delete entry and replace with “Naval Inspector General (IG) Investigative Records.”
Delete entry and replace with “Office of the Naval Inspector General, 1254 Ninth Street, SE., Washington Navy Yard, DC 20374-5006; Inspector General offices at major commands and activities throughout the Department of the Navy and other Naval activities that perform inspector general (IG) functions. Official mailing addresses are published as an appendix to the Navy's compilation of systems of records notices.”
Delete entry and replace with “Letters/transcriptions of complaints, allegations and queries; tasking orders from the Department of Defense Inspector General, Secretary of the Navy, Chief of Naval Operations, and Commandant of the Marine Corps; requests for assistance from other Navy/Marine Corps commands and activities; appointing letters; reports of investigations, inquiries, and reviews with supporting attachments, exhibits and photographs; records of interviews and synopses of interviews; witness statements; legal review of case files; congressional inquiries and responses; administrative memoranda; letters and reports of action taken; referrals to other commands; letters to complainants and subjects of investigations; court records and results of non-judicial punishment; letters and reports of adverse personnel actions; financial and technical reports; and case number.
These records may contain Personally Identifiable Information (PII), to include full name, full Social Security Number (SSN), home and work telephone numbers, command or unit work information, home address, gender, marital status, age, rank and/or title, and home and/or work e-mail addresses. Moreover, PII that is mentioned by a witness, subject, or complainant during the course of an interview, even if that PII was not solicited, may become part of an Inspector General record.”
Delete entry and replace with “10 U.S.C. 5014, Office of the Secretary of the Navy; 10 U.S.C. 5020, Naval Inspector General: details; duties; SECNAVINST 5430.57 series, Mission and Functions of the Naval Inspector General; SECNAVINST 5370.5 series, DON Hotline Program; and E.O. 9397 (SSN), as amended.”
Delete entry and replace with “Paper records, computerized database, and electronic documents.”
Delete entry and replace with “By subject's name or SSN; complainant's name; case title or number; command; organization; location; and/or dates.”
Delete entry and replace with “Access is limited to officials/employees of the office who have a need to know. Files are stored in locked cabinets and rooms in a building with controlled access. Computer files are protected by software systems which are password protected and account restricted.”
Delete entry and replace with “Records of historical significance are permanent. Such records will be transferred to the Naval History and Heritage Command 10 years after the case is closed, and transferred to National Archives and Records Administration 50 years after the case is closed and reviewed for declassification. Records of routine investigations are destroyed 10 years after the investigation is closed. Records of requests for assistance and complaints that are not investigated are
Delete entry and replace with “Naval Inspector General, 1254 Ninth Street, SE., Washington Navy Yard, DC 20374-5006 or the local command's IG office. Official mailing addresses are published as an appendix to the Navy's compilation of systems of records notices.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Naval Inspector General, 1254 Ninth Street, SE., Washington Navy Yard, DC 20374-5006 or the relevant command's IG office. Official mailing addresses are published as an appendix to the Navy's compilation of systems of records notices.
The request should include the full name of the requester and/or case number. The records system manager may require an original signature or a notarized signature as a means of proving the identity of the individual requesting access to the records.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Naval Inspector General, 1254 Ninth Street, SE., Washington Navy Yard, DC 20374-5006 or the relevant command's IG office. Official mailing addresses are published as an appendix to the Navy's compilation of systems of records notices.
The request should include the full name of the requester and/or case number. The records system manager may require an original signature or a notarized signature as a means of proving the identity of the individual requesting access to the records.”
Delete entry and replace with “Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).
Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 701, subpart G. For additional information contact the Office of the Naval Inspector General System Manager, Code N1.”
Naval Inspector General (IG) Investigative Records.
Office of the Naval Inspector General, 1254 Ninth Street SE., Washington Navy Yard, DC 20374-5006; Inspector General offices at major commands and activities throughout the Department of the Navy and other Naval activities that perform inspector general (IG) functions. Official mailing addresses are published as an appendix to the Navy's compilation of systems of records notices.
Any person who has been the subject of, witness for, or referenced in an investigation, as well as any individual who submits a request for assistance or complaint to an Inspector General.
Letters/transcriptions of complaints, allegations and queries; tasking orders from the Department of Defense Inspector General, Secretary of the Navy, Chief of Naval Operations, and Commandant of the Marine Corps; requests for assistance from other Navy/Marine Corps commands and activities; appointing letters; reports of investigations, inquiries, and reviews with supporting attachments, exhibits and photographs; records of interviews and synopses of interviews; witness statements; legal review of case files; congressional inquiries and responses; administrative memoranda; letters and reports of action taken; referrals to other commands; letters to complainants and subjects of investigations; court records and results of non-judicial punishment; letters and reports of adverse personnel actions; financial and technical reports; and case number.
These records may contain Personally Identifiable Information (PII), to include full name, full Social Security Number (SSN), home and work telephone numbers, command or unit work information, home address, gender, marital status, age, rank and/or title, and home and/or work e-mail addresses. Moreover, PII that is mentioned by a witness, subject, or complainant during the course of an interview, even if that PII was not solicited, may become part of an Inspector General record.
10 U.S.C. 5014, Office of the Secretary of the Navy; 10 U.S.C. 5020, Naval Inspector General: details; duties; SECNAVINST 5430.57 series, Mission and Functions of the Naval Inspector General; SECNAVINST 5370.5 series, DON Hotline Program; and E.O. 9397 (SSN), as amended.
To determine the facts and circumstances surrounding allegations or complaints against Department of the Navy personnel and/or Navy/Marine Corps activities.
To present findings, conclusions, and recommendations developed from investigations and other inquiries to the Secretary of the Navy, Chief of Naval Operations, Commandant of the Marine Corps, or other appropriate Commanders.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD `Blanket Routine Uses' that appear at the beginning of the Navy's compilation of systems of records notices apply to this system.
Paper records, computerized database, and electronic documents.
By subject's name or SSN; complainant's name; case title or number; command; organization; location; and/or dates.
Access is limited to officials/employees of the office who have a need
Records of historical significance are permanent. Such records will be transferred to the Naval History and Heritage Command 10 years after the case is closed, and transferred to National Archives and Records Administration 50 years after the case is closed and reviewed for declassification. Records of routine investigations are destroyed 10 years after the investigation is closed. Records of requests for assistance and complaints that are not investigated are destroyed after 2 years. Investigation working papers are destroyed after 2 years. Database tracking records are destroyed when no longer needed for reference. All records destruction shall be accomplished by deletion, shredding or other method that will render the data unrecognizable.
Naval Inspector General, 1254 Ninth Street, SE., Washington Navy Yard, DC 20374-5006 or the local command's IG office. Official mailing addresses are published as an appendix to the Navy's compilation of systems of records notices.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Naval Inspector General, 1254 Ninth Street, SE., Washington Navy Yard, DC 20374-5006 or the relevant command's IG office. Official mailing addresses are published as an appendix to the Navy's compilation of systems of records notices.
The request should include the full name of the requester and/or case number. The records system manager may require an original signature or a notarized signature as a means of proving the identity of the individual requesting access to the records.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Naval Inspector General, 1254 Ninth Street, SE., Washington Navy Yard, DC 20374-5006 or the relevant command's IG office. Official mailing addresses are published as an appendix to the Navy's compilation of systems of records notices.
The request should include the full name of the requester and/or case number. The records system manager may require an original signature or a notarized signature as a means of proving the identity of the individual requesting access to the records.
The Navy's rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
Complainants; witnesses; Members of Congress; the media; and other military commands or government agencies.
Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).
Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b) (1), (2), and (3), (c) and (e) and published in 32 CFR part 701, subpart G. For additional information contact the Office of the Naval Inspector General System Manager, Code N1.
Department of Education.
Comment request.
The Department of Education (the Department), 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 and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before August 30, 2011.
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Information Management and Privacy Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. 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.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
Comment request.
The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Interested persons are invited to submit comments on or before August 1, 2011.
Written comments should be addressed to the Office of Information and Regulatory Affairs,
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The OMB is particularly interested in comments which: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
Comment request.
The Department of Education (the Department), 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 and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the reporting burden on the public and helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before August 30, 2011.
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Information Management and Privacy Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. 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.
Copies of the proposed information collection request may be accessed from
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Energy.
Notice of open meeting.
This notice announces an open meeting of the Secretary of Energy Advisory Board (SEAB). SEAB was reestablished pursuant to the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) (the Act). This notice is provided in accordance with the Act.
Wednesday, July 20, 2011 8 a.m.-5 p.m.
U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585.
Amy Bodette, Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585; telephone (202) 586-0383 or facsimile (202) 586-1441; e-mail:
Those not able to attend the meeting or have insufficient time to address the Board are invited to send a written statement to Amy Bodette, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington DC 20585; e-mail to:
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of availability and request for public comment.
The Department of Energy's (DOE) Office of Energy Efficiency and Renewable Energy (EERE) Geothermal Technologies Program (the Program) assembled a geothermal Blue Ribbon Panel (the Panel) on March 22/23, 2011 in Albuquerque, New Mexico for a guided discussion on the future of geothermal energy in the United States and the role of the DOE Program. The Geothermal Blue Ribbon Panel Report captures the discussions and recommendations of the experts and can be accessed at:
Submit electronic or written comments on or before July 29, 2011.
Comments may be submitted by e-mail to:
Comments may also be submitted by surface mail to: Department of Energy, Office of Energy Efficiency and Renewable Energy, JoAnn Milliken (6A-067), 1000 Independence Ave., SW., Washington, DC 20585.
Respondents are encouraged to submit comments electronically to ensure timely receipt. The Geothermal Blue Ribbon Panel Report can be accessed at:
JoAnn Milliken, Acting Geothermal Program Manager, at (202) 586-2480 or
The majority of geothermal energy growth occurred prior to 1990. In recent years, the growth of geothermal capacity in the U.S. has lagged that of solar and wind energy. The purpose of the Blue Ribbon Panel meeting was to identify the obstacles to geothermal energy growth, discuss the appropriate role of DOE in enabling geothermal energy, and recommend priority research and development areas. The 15 panelists included experts from the geothermal and oil/gas industries, finance institutions, utilities, universities, and national laboratories.
This notice requests public comment on the recommendations and discussions captured in the Geothermal Blue Ribbon Panel Report.
It is the policy of the Department to ensure that public participation is an integral and effective part of DOE activities, and that decisions are made with the benefit of significant public input and perspectives.
The Department recognizes the many benefits to be derived from public participation for both stakeholders and DOE. Public participation provides a means for DOE to gather a diverse collection of opinions, perspectives, and values from the broadest spectrum of the public, enabling the Department to make more informed decisions. Public participation benefits stakeholders by creating an opportunity to provide input on decisions that affect their communities and our nation.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before August 1, 2011.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2007-0595, to (1) EPA online using
Jaimee Dong, Office of Transportation and Air Quality, (Mail Code: 6406J), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 343-9672; fax number: (202) 343-2802; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On February 16, 2011 (76
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2007-0595, which is available for online viewing at
Use EPA's electronic docket and comment system at
Environmental Protection Agency.
Notice of extension of public comment period.
EPA is announcing a two week extension of the public comment period for the first external review draft of a document titled, “First External Review Draft Integrated Science Assessment for Lead” (EPA/600/R-10/075A). The original
The public comment period began May 6, 2011. This notice announces an extension of the deadline for public comment from July 5, 2011 to July 19, 2011. Comments must be received by July 19, 2011.
The “First External Review Draft Integrated Science Assessment for Lead” will be available primarily via the Web page under Recent Additions and Publications menus at
For technical information, contact Dr. Ellen Kirrane, NCEA; telephone: 919-541-1340; facsimile: 919-541-2985; or e-mail:
Comments may be submitted electronically via
In accordance with Section 309(a) of the Clean Air Act, EPA is required to make its comments on EISs issued by other Federal agencies public. Historically, EPA met this mandate by publishing weekly notices of availability of EPA comments, which includes a brief summary of EPA's comment letters, in the
Environmental Protection Agency.
Notice of settlement.
Under Section 122(h)(1) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the United States Environmental Protection Agency has entered into a settlement for reimbursement of past response costs concerning the Sikes Oil Service Superfund Site located in Arcade, Jackson County, Georgia for publication.
The Agency will consider public comments on the settlement until August 1, 2011. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate.
Copies of the settlement are available from Ms. Paula V. Painter. Submit your comments, identified by Docket ID No. EPA-RO4-SFUND-2011-0557 or Site name Sikes Oil Service Superfund Site by one of the following methods:
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Paula V. Painter at 404/562-8887.
Federal Deposit Insurance Corporation.
Update listing of financial institutions in liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for a license as a Non-Vessel-Operating Common Carrier (NVO) and/or Ocean Freight Forwarder (OFF)—Ocean Transportation Intermediary (OTI) pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. Chapter 409 and 46 CFR part 515). Notice is also hereby given of the filing of applications to amend an existing OTI license or the Qualifying Individual (QI) for a license.
Interested persons may contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573, by telephone at (202) 523-5843, or by e-mail at
Notice is hereby given that the Order revoking the following licenses are being rescinded by the Federal Maritime Commission pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. Chapter 409) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515.
The Federal Maritime Commission hereby gives notice that the following Ocean Transportation Intermediary licenses have been revoked pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. chapter 409) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515, effective on the corresponding date shown below:
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than July 19, 2011.
A. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528:
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B. Federal Reserve Bank of St. Louis (Glenda Wilson, Community Affairs
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The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
Fetal-Infant Mortality Review: Human Immunodeficiency Virus Prevention Methodology (FHPM)—New—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
Despite advances in interventions to prevent mother-to-child transmission of Human Immunodeficiency Virus (HIV), including antiretroviral drugs, elective cesarean deliveries, and avoidance of breastfeeding, between 100 and 200 infants are perinatally infected with HIV in the United States each year. Many of these cases result from missed prevention opportunities, such as prenatal HIV testing, prenatal care, or antiretroviral prophylaxis.
The Fetal-Infant Mortality Review: Human Immunodeficiency Virus Prevention Methodology (FHPM) is designed to identify and address missed prevention opportunities at the community level. FHPM will be a CDC funded extramural project at 10 sites, conducted in partnership with the National Fetal and Infant Mortality Review Program, CityMatCH, and participating communities. Sites will be selected through a competitive application process, and funds will be administered through CityMatCH, which will also maintain the National FHPM Resource Center to provide training, technical assistance, and capacity building for selected sites. This will be the first program to approach perinatal HIV prevention using a community-based systems investigation and improvement strategy.
In order to address perinatal HIV transmission at the community level, FHPM has adapted the Fetal-Infant Mortality Review (FIMR) methodology. The FIMR methodology is an approach designed to lead to community-level improvements in infant health outcomes. The methodology consists of four steps: Data gathering, case review, community action, and changes in community systems.
FHPM has tailored this methodology to address perinatal HIV prevention. During FHPM's first stage, HIV-infected pregnant or recently postpartum women will be identified based on a pre-established case definition, and will be prioritized for community review. A maternal interview will then be conducted if consent is provided by the woman. Data collection can proceed using hospital records if there is no consent for an interview. After the data collection phase, a multidisciplinary case review team (CRT) will conduct a case review session.
Recommendations of the CRT will then be passed on to a Community Action Team (CAT), which will be a diverse, broad-based group of community leaders and representatives capable of defining and initiating changes in the local systems.
Each of the 10 FHPM sites will conduct 30 maternal interviews each year. De-identified FHPM data will be stored electronically at participating sites. CDC plans to launch the FIMR-HIV Data System (FHDS) in 2011, which will provide a centralized, web-based data system that can be utilized by all participating sites and partner organizations. CDC will not have access to any personal identifiable information that may be collected for the project.
Data collected by FHPM will primarily serve to inform and improve local health systems in order to prevent future perinatal HIV transmissions. This data will provide a clearer picture of the systems-level strengths and weaknesses in participating communities. There is no cost to participants other than their time. The total estimated annual burden hours are 450.
In accordance with Presidential Executive Order No. 13175, November 6, 2000, and the Presidential Memorandum of November 5, 2009 and September 23, 2004, Consultation and Coordination with Indian Tribal Governments, CDC, OSTLTS announces the following meeting and Tribal Consultation Session:
Consultation is an enhanced form of communication that emphasizes trust, respect, and shared responsibility. It is an open and free exchange of information and opinion among parties that leads to mutual understanding and comprehension. CDC believes that consultation is integral to a deliberative process that results in effective collaboration and informed decision making with the ultimate goal of reaching consensus on issues. Although formal responsibility for the agency's overall government-to-government consultation activities rests within the CDC Office of the Director (OD), other CDC Centers, Institutes, and Offices, leadership shall actively participate in TAC meetings and HHS-sponsored regional and national tribal consultation sessions as frequently as possible.
It may be necessary to limit the time of each presenter due to the availability of time.
The agenda is subject to change as priorities dictate.
Information about TAC and CDC's Tribal Consultation Policy and previous meetings may be referenced on the following Web link:
The Director, Management Analysis and Services Office has been delegated the authority to sign
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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The information gathered as part of the project—through the use of survey, interview, and focus group instruments—will be used by CMS to identify transportation barriers to Medicare services for AI/AN Medicare beneficiaries. It will provide the first ever complete evaluation of transportation barriers to health care for this population.;
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Coverage for the prescription drug benefit is provided through contracted prescription drug plans (PDPs) or through Medicare Advantage (MA) plans that offer integrated prescription drug and health care coverage (MA-PD plans). Cost Plans that are regulated under Section 1876 of the Social Security Act, and Employer Group Waiver Plans (EGWP) may also provide a Part D benefit. Organizations wishing to provide services under the Prescription Drug Benefit Program must complete an application, negotiate rates, and receive final approval from CMS. Existing Part D Sponsors may also expand their contracted service area by completing the Service Area Expansion (SAE) application.
Effective January 1, 2006, the Part D program established an optional prescription drug benefit for individuals who are entitled to Medicare Part A or enrolled in Part B. In general, coverage for the prescription drug benefit is provided through PDPs that offer drug-only coverage, or through MA organizations that offer integrated prescription drug and health care coverage (MA-PD plans). PDPs must offer a basic drug benefit. Medicare Advantage Coordinated Care Plans (MA-CCPs) must offer either a basic benefit or may offer broader coverage for no additional cost. Medicare Advantage Private Fee for Service Plans (MA-PFFS) may choose to offer a Part D benefit. Cost Plans that are regulated under Section 1876 of the Social Security Act, and Employer Group Plans may also provide a Part D benefit. If any of the contracting organizations meet basic requirements, they may also offer supplemental benefits through enhanced alternative coverage for an additional premium.
Applicants may offer either a PDP or MA-PD plan with a service area covering the nation (i.e., offering a plan in every region) or covering a limited number of regions. MA-PD and Cost Plan applicants may offer local plans. There are 34 PDP regions and 26 MA regions in which PDPs or regional MA-PDs may be offered respectively. The MMA requires that each region have at least two Medicare prescription drug plans from which to choose, and at least one of those must be a PDP. Requirements for contracting with Part D Sponsors are defined in Part 423 of 42 CFR.
This clearance request is for the information collected to ensure applicant compliance with CMS requirements and to gather data used to support determination of contract awards;
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In general, coverage for the prescription drug benefit is provided through prescription drug plans (PDPs) that offer drug-only coverage or through Medicare Advantage (MA) organizations that offer integrated prescription drug and health care products (MA-PD
Organizations wishing to provide healthcare services under MA and/or MA-PD plans must complete an application, file a bid, and receive final approval from CMS. Existing MA plans may request to expand their contracted service area by completing the Service Area Expansion (SAE) application. Applicants may offer a local MA plan in a county, a portion of a county (i.e., a partial county) or multiple counties. Applicants may offer a MA regional plan in one or more of the 26 MA regions.
This clearance request is for the information collected to ensure applicant compliance with CMS requirements and to gather data used to support determination of contract awards. The information will be collected under the solicitation of Part C application from MA, EGWP Plan, and Cost Plan applicants. The collection information will be used by CMS to: (1) Ensure that applicants meet CMS requirements, (2) support the determination of contract awards. Participation in all Programs is voluntary in nature. Only organizations that are interested in participating in the program will respond to the solicitation. MA-PDs that voluntarily participate in the Part C program must submit a Part D application and successful bid.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web site at
In commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by
1. Electronically. You may submit your comments electronically to
2. By regular mail. You may mail written comments to the following address: CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development,
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web Site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received by the OMB desk officer at the address below, no later than 5 p.m. on
OMB, Office of Information and Regulatory Affairs,
President's Committee for People with Intellectual Disabilities (PCPID), HHS.
Notice of committee meeting via conference call.
Tuesday, July 19, 2011, from 1 p.m. to 2:30 p.m. EST. This meeting, to be held via audio conference call, is open to the public.
Details for accessing the full Committee Conference Call are cited below: Toll Free Dial-In Number: 800-779-1436. Pass Code: PCPID.
Individuals who will need accommodations for a disability in order to participate in the PCPID Meeting via audio conferencing (assistive listening devices, materials in alternative format such as large print or Braille) should notify Genevieve Swift, PCPID Executive Administrative Assistant, at
E-mail:
PCPID acts in an advisory capacity to the President and the Secretary of Health and Human Services, through the Administration on Developmental Disabilities, on a broad range of topics relating to programs, services and supports for persons with intellectual disabilities. The PCPID Executive Order stipulates that the Committee shall: (1) Provide such advice concerning intellectual disabilities as the President or the Secretary of Health and Human Services may request; and (2) provide advice to the President concerning the following for people with intellectual disabilities: (A) Expansion of educational opportunities; (B) promotion of homeownership; (C) assurance of workplace integration; (D) improvement of transportation options; (E) expansion of full access to community living; and (F) increasing access to assistive and universally designed technologies.
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 August 1, 2011.
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 e-mailed to
Elizabeth Berbakos, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-3792,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 502(n) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 352(n)) specifies that ads for prescription drugs and biological products must provide a true statement of information “in brief summary”
In recent years, FDA has become concerned about the adequacy of the brief summary in direct-to-consumer (DTC) print advertisements for prescription drugs. Because the regulations do not specify how to address each risk, sponsors can use discretion in fulfilling the brief summary requirement under § 202.1(e)(3)(iii). Frequently, sponsors print in small type, verbatim, the risk-related sections of the approved product labeling (also called the package insert, professional labeling, prescribing information, and direction circular). This labeling is written for health professionals, using medical terminology. While adequate to fulfill the brief summary requirement for print advertisements, this method may not be the most ideal. Research has shown that while many consumers will make the effort to read the brief summary in prescription drug print advertisements if they are especially interested in the drug, as a general rule consumers typically read little or none of the brief summary information (Ref. 1). Health practitioners themselves have indicated they often have difficulty finding information they actively seek in package inserts (see 65 FR 81082, December 22, 2000, for a discussion of studies supporting the use of a highlights section in physician labeling). There may be other ways to fulfill this requirement that improve consumers' ability to find and comprehend the information in this important document.
There is evidence suggesting that both information content and the format in which it is presented will impact comprehension. For instance, research with the format of over-the-counter (OTC) drug labels (Refs. 2 and 3), the nutrition facts label (Ref. 4), and other information formats (Refs. 5 to 7) demonstrates that information presented with section headings, graphics (such as bullets), and other design elements is more easily read than information presented in paragraph format.
Research conducted by FDA and others has examined the content and format of the brief summary specifically. For instance, FDA conducted a series of relevant studies (OMB control numbers 0910-0591 and 0910-0611). Schwartz, Woloshin, and Welch have compared one format for adding quantitative and qualitative benefit and risk information to the brief summary (Ref. 8). Specifically, Schwartz
The current study will add to previous research by systematically examining these different elements to determine whether and how to add qualitative and quantitative benefit and risk information to the brief summary. The results of this study will inform FDA of the usefulness and parameters of various format and content options for the brief summary.
The test product will be for the treatment of a high prevalence medical condition and modeled on an actual drug used to treat that condition. Participants will be consumers who have been diagnosed with the medical condition of interest. They will be randomly assigned to read one ad version. After reading the ad, participants will answer a series of questions about the drug. We will test how the information type affects
Interviews are expected to last no more than 20 minutes. A total of 11,750 participants will be involved in the study. This will be a one-time (rather than annual) collection of information.
In the
(Comment 1) Several suggestions related to participant demographics, measuring health literacy, and determining what our primary research questions are. One question related to the test DTC advertisements to be used in the study.
(Response) We agree that the study design should include the variables of age, education, ethnicity, and race; these are included in the questionnaire. We will ask whether participants can read, understand, and speak English.
We will measure subjective health literacy and the related concept of numeracy, which is relevant for this research as we are studying the comprehension of quantitative information. To clarify, we will not limit our sample to those who are currently being treated with a prescription drug for the condition being assessed; however, the questionnaire includes questions about prescription drug use.
Regarding the primary research questions, as stated in the 60-day notice, the current study will add to previous research by systematically examining the different elements in the drug facts box tested in previous research (Ref. 8) to determine whether and how to add qualitative and quantitative benefit and risk information to the brief summary. Specifically, we will test whether the inclusion of a qualitative label and/or the inclusion of quantitative information affects consumers' understanding of the information and their perceptions of the product.
We have contracted with an organization that produces realistic ads and stimuli to ensure that we will show respondents realistic materials.
(Comment 2) This comment states that there was not enough detail in the 60-day
(Response) The questionnaire, which has information about how questions will be asked and how behavioral intention will be assessed, was available upon request during the first comment period and will continue to be available during the second comment period. Information about how risk information will be portrayed, what statistical analyses will be performed, subject recruitment, and pretest content is addressed in this document.
We agree that a major challenge of the drug facts box format is deciding the amount and content of risk information to include; however, this type of study cannot address this issue. To replicate and extend past research, we will use the drug facts box from a previous study (Ref. 8) with slight modifications to the risk information (
We agree that qualitative terms depend on many factors; however, this study does not address the feasibility of creating qualitative terms but rather tests whether qualitative terms affect consumer comprehension. As requested, we will note this in our conclusions.
Conducting a cross-over design would significantly increase study length, and repeated exposure to the same stimuli with minor changes may affect participants' responses. We have conducted power analyses and believe we can find interpretable results without conducting a cross-over design.
To ensure that our participants are motivated to consider the information presented in the study and to conserve resources, we will limit our sample to people who have the medical condition of interest.
Cognitive testing will be used to test questionnaire items prior to their use, and similar items have been used in our previous studies. The items have face validity, and several are drawn from well-tested items used in the psychology literature (for example, behavioral intentions; Ref. 9). Finally, we will pretest the study manipulations.
(Comment 3) This comment included three statements about the details of the proposed study. First, the comment questioned why we chose to test percents and frequencies and not relative differences in this study. Second, this comment pointed out that the differences in the stimuli should be stated as percentage points, not as percentages. Third, the comment asks whether the risk and benefit information will be presented in the same mathematical expression and whether they will be presented independently.
(Response) We focus on percents and frequencies because we are replicating and extending previous research on a drug facts box (Ref. 8), which included percents and frequencies but not relative differences. The study found that the drug facts box outperformed a traditional brief summary. The drug facts box tested had several elements that differed from the traditional brief summary, including percents, frequencies (
We will change percentages to percentage points in our stimuli.
To clarify, when participants see benefit information in a certain information type (or mathematical expression, for example, percents), they will also see risk information in that same information type (for example, percents). However, the efficacy level (from smallest to largest effect) will be manipulated in one design, and the risk level (from smallest to largest effect) will be manipulated in a separate design.
(Comment 4) The comment suggested that we redesign the study such that participants would view the study materials and then answer questions about the materials only after consulting with a physician. This comment lists a number of practical issues surrounding how to create drug facts boxes and notes that this study will provide limited practical information on how to format the brief summary for drugs with multiple indication, multiple studies, or multiple outcomes. Another recommendation from the comment is to include conditions that test relative difference. The comment suggests eliminating the “largest effect” cells.
(Response) We cannot ask participants to incur the financial and personal (time) cost of visiting a doctor to discuss a treatment for the purposes of research. This is not feasible or ethical. We cannot ethically ask them to go to their doctor to discuss a fictitious drug (nor would the doctor be able to discuss a fictitious drug with them), and
We agree that there are several practical issues surrounding the utility of the drug facts box; however, these issues are outside the scope of the proposed study. This study does not address how information would be chosen for inclusion in drug facts boxes but rather whether and how consumers can understand the information presented. As stated in the response to comment 7, our first step will be to study a simple version of the drug facts box, with one indication.
We agree that relative difference is an interesting way to present quantitative information and are currently studying this presentation in another study (Refs. 10 and 11). However, as noted in the response to comment 3, in this study we are systematically testing the elements of the drug facts box presented in past research (Ref. 8) to determine which, if any, improves consumer comprehension.
We agree that these “largest effect” cells may be unrealistic and plan to use pretests to determine the number of levels and the content of the levels (
(Comment 5) This comment requested that FDA provide clarity on the timing and strategy for the conduct of this study with respect to other planned studies.
The comment recommends that FDA publish findings from this study and previous studies on the Division of Drug Marketing, Advertising, and Communications (DDMAC) Web page (Ref. 12).
(Response) To clarify, this study will begin after two related studies (Refs. 10 and 11) have been conducted. The results from these studies may inform the execution of this study. The study will not be superseded by related research results, as none of the other research examines the drug facts box format for the brief summary.
We agree and have taken steps to publish reports from our previous research on the DDMAC Web page (Ref. 12). When the current project is concluded, we will post the findings on the DDMAC Web page as well.
(Comment 6) Much of this comment focused on previous research. First, this comment requests that we disclose the results of previous research. Second, this comment recommends that we wait to begin new studies until results of previous research have been publicly reported.
(Response) As stated in the response to comment 5, we agree and have taken steps to publish findings from our previous research on the DDMAC Web page (ref. 12). Unfortunately, the lengthy research process does not allow us to comply with the second request. To continue having an active research program, we must submit new proposals while previous projects are ongoing. As stated in response to comment 5, as research projects develop, we will take results of previous research in account.
(Comment 7) A comment noted that product labeling is multifaceted and recommended that conclusions should be flexible to address these wide variations in product attributes. Another suggestion was to consider a label format that includes multiple endpoints.
(Response) We agree that product labeling is multifaceted and will tailor our conclusions to acknowledge that we tested one simple version of the drug facts box.
As a first step, we plan to study a simple version of the drug facts box, with one indication. If consumers cannot understand the information in a drug facts box with one indication, they are not likely to understand the information in the drug facts box with multiple indications. In addition, testing an ad with one endpoint is realistic as drug ads often promote only one indication even if a drug has multiple indications.
(Comment 8) Another comment suggested that, along with testing the qualitative label, “fewer people taking Drug X had symptom Y,” we should also test the qualitative label, “more people taking Drug X received effective relief from symptom Y.”
(Response) Unfortunately, we do not have the resources to test multiple qualitative labels in this study; however, we will test the qualitative label suggested by the comment in place of our original language.
This study will be conducted in two concurrent parts; one examining variations on the benefit information presented in DTC print advertisements and the other examining variations on the risk information presented in DTC print advertisements. The factors studied will be the type of information (
In the benefit design, we will use the mid-size effect for the risk information in all conditions and vary the information type to match the benefit information type (
The test product will be for the treatment of gastroesophageal reflux disease and modeled on an actual drug used to treat this condition. Participants will be consumers who have heartburn or acid reflux disease. They will be randomly assigned to read one ad version. After reading the ad, participants will answer a series of questions about the drug. We will test how the information type affects perceived efficacy, perceived risk, behavioral intention, and accurate understanding of the benefit and risk information. The questionnaires for the risk and benefit designs will have identical questions; however, the order will differ. In the risk design, questions about risk will appear before questions about benefits; in the benefit design questions about benefits will appear before questions about risks.
Data will be collected using an Internet protocol. Consumers who have heartburn or acid reflux disease will be recruited for the study. Because the task presumes basic reading abilities, all selected participants must speak and read English fluently. Participants must be 18 years or older. We will use Levene's test of homogeneity of variances, analysis of variances, and regressions to test hypotheses.
FDA estimates the burden of this collection of information as follows:
FDA has verified the Web site addresses, but FDA is not responsible for any subsequent changes to the Web sites after this document publishes in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by August 30, 2011.
Submit electronic comments on the collection of information to
Elizabeth Berbakos, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., P150-400B, Rockville, MD 20850, 301-796-3792,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Section 1701(a)(4) of the Public Health Service Act (42 U.S.C. 300u(a)(4)) authorizes the Food and Drug Administration (FDA) to conduct research relating to health information. Section 903(b)(2)(c) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 393(b)(2)(c)) authorizes FDA to conduct research relating to drugs and other FDA regulated products in carrying out the provisions of the FD&C Act.
Regulations specify that sponsors cannot make comparative efficacy claims in advertising for prescription drugs without substantial evidence, most often in the form of well-controlled clinical trials, to support such claims (21 U.S.C. 202.1(e)(6)(ii); 21 U.S.C. 314.126). FDA has permitted some comparisons based on labeled attributes, such as indication, dosing, and mechanism of action. When substantial evidence does not yet exist, sponsors may use communication
Moreover, as part of the American Recovery and Reinvestment Act of 2009 (ARRA), the Agency for Healthcare Research and Quality (AHRQ) is in the process of securing a large compendium of information on the comparative effectiveness of medical treatments in 14 priority medical conditions, including: Arthritis, cancer, dementia, depression, diabetes, and substance abuse.
Comparative advertisements typically compare two or more named or recognizably presented brands of the same product category, although some comparative advertisements implicitly compare a product to other brands by making superiority statements (e.g., “Only Brand A can be cooked in five minutes or less.”). These ads are frequently used for commercial products, such as electronics, food products, and automobiles.
Marketing and advertising studies have investigated the influence of comparative ads, particularly in contrast to noncomparative ads.
Despite extensive research on comparative advertising of consumer products and a limited number of studies on how DTC ads could help consumers compare drugs,
Currently, most DTC ad comparisons focus on drug attributes, such as differences in dosing or administration method.
This study will be conducted in two concurrent parts with random assignment to experimental condition. The goal of Phase I is to: (a) Explore how consumers understand and interpret ads that explicitly compare the efficacy of two similar drugs; and (b) learn whether including the name of the comparison drug affects comprehension and perceptions. We have defined named comparisons as ads that explicitly compare the drug's efficacy to another named medication. An example of this is: “Drug A was shown to be more effective than Drug B at lowering high cholesterol.” We have defined unnamed comparisons as ads that implicitly compare the drug's efficacy to other medications. An example of this is: “Compared to other medications, Drug A lowered cholesterol in more patients.” The control condition will not include a comparison to another drug.
We will explore the issue of named versus unnamed comparisons in print ads and television ads in a 2×3 factorial design as follows:
The goal of Phase II is to determine how ads that include evidence-based comparisons are understood by consumers. These ads often compare factual characteristics from the drug labels (
These factors will be combined in a (2[type of ad] × 2[labeling of comparison drug] × 2[presence of visual] × 4[type of comparison] + 2[controls]) factorial design. For ease of illustration, the design is shown separately for print and television ads.
In both phases, we will examine the effects of these manipulated variables on several dependent measures, including perceived benefit and risk, comprehension of benefit and risk information, and behavioral intentions. We will also include demographic variables (such as gender and education level), and other variables such as health knowledge as covariates to determine if they have any influence on the measures of interest.
The sample will include approximately 8,000 participants who have been diagnosed with osteoarthritis (Phase I) or high cholesterol (Phase II). The protocol will take place via the Internet. Participants will be randomly assigned to view one print or one television ad for a fictitious prescription drug that treats either osteoarthritis or high cholesterol and will answer questions about it. The entire process is expected to take no longer than 20 minutes. This will be a one time (rather than annual) collection of information.
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 availability of grant funds for the support of a cooperative agreement between the Center for Food Safety and Applied Nutrition (CFSAN) and the Marine Environmental Sciences Consortium/Dauphin Island Sea Lab (DISL). The goal of the DISL is marine science education, basic and applied marine science research, coastal zone management policy, and educating the general public.
Important dates are as follows:
1. The application due date is August 1, 2011.
2. The anticipated start date is September, 2011.
3. The opening date is the date the Funding Opportunity is published in the
4. The expiration date is August 2, 2011.
Robert Dickey, Office of Food Safety, Gulf Coast Seafood Laboratory, One Iberville Dr., PO. D1-1, rm. 122 (HFS 400), Dauphin Island, AL 36528,. Tele.: 251-690-3368; e-mail:
Gladys Melendez-Bohler, Office of Acquisition and Grant Services (OAGS), Food and Drug Administration, 5630 Fishers Lane, rm. 1078, Rockville, MD 20857, Tele.: 301-827-7175; e-mail:
For more information on this funding opportunity announcement (FOA) and to obtain detailed requirements, please refer to the full FOA located at
This FOA issued by the FDA/Office of Food Safety is soliciting a sole source grant application from the Dauphin Island Sea Lab (DISL). FDA is authorized to enforce the Federal Food, Drug, and Cosmetic Act (the FD&C Act) as amended (21 U.S.C. 301
The DISL is one of Alabama's most valuable assets and adds immeasurably to the quality of life in the state and beyond. The DISL network of 21 institutions enrolls students worldwide in degree programs delivered in classrooms, laboratories, education centers, and online. The DISL's nationally ranked programs, leading-edge research collaborations, and innovative business partnerships provide an environment to support diverse multidisciplinary exchanges with FDA. The scientific, public health and policy expertise within FDA provide opportunities for collaborations that support the DISL mission and strategic themes to provide access to high-quality education, research discovery, and knowledge-based services responsive to both the promises and demands of the state and the nation in the new century.
FDA Gulf Coast Seafood Laboratory (GCSL) and the Marine Environmental Science Consortium of the DISL (the Parties) have a shared interest in scientific progress in the diverse disciplines that directly and indirectly affect seafood safety and human and animal health. The Parties also endorse scientific training for faculty, students and staff to foster a well-grounded foundation in interdisciplinary fields in which academia and government share mutual interest.
The cooperative agreement will establish terms of collaboration between FDA and DISL to support these shared interests that can be pursued through programs of collaborative research, public outreach, cooperative international initiatives, disciplinary training, and exchange of scientists and staff, including a program of graduate student internships.
The types of activities expected to develop from this agreement include:
• Exchanges between university faculty and staff and FDA scientists and staff;
• Educational opportunities for qualified students (graduate), staff members and faculty members in the Parties' laboratories, classroom and offices;
• Joint meetings for education and research;
• Research collaborations;
• Cooperative international activities including outreach; and
• Sharing of unique facilities and equipment for increased cost efficiencies for scientific endeavors;
• Promulgation and communication of identified collaborative efforts through appropriate means;
• Adjunct, affiliates and research facility appointments for appropriate FDA professional staff, provided that appointment of such candidates will advance specific programmatic
• In an effort to enhance collaborative interactions and communication between both institutions, FDA and DISL will collaborate in the development of regular workshops where faculty from all the institutions within the DISL and FDA scientists and staff share information about ongoing research, education and outreach efforts of mutual interest.
Competition is limited to the DISL. There are no other sources that can provide the required proximity to the FDA/GCSL and independent marine fieldwork capability required. The DISL is a diverse institutional consortium of undergraduate and graduate education and research. University programs faculty at the DISL are actively involved in both basic and applied research in coastal waters of the northern Gulf of Mexico. The DISL operates marine research vessels (boats) crewed by faculty and students for field studies and sample collections. DISL possesses extensive laboratory and wet-laboratory resources relevant to the mission of the FDA/GCSL. The DISL is located within 1 mile of the FDA/GCSL which will engage the proposed program of collaboration and internships. This unique circumstance of capability, capacity and proximity is irreplaceable without extended and costly concessions.
The estimated amount of support in FY12 will be up to $125,000. (direct plus indirect costs) with the possibility of 4 additional years of support for up to $125,000.00 per year, subject to the availability of funds. Future year amounts will depend on annual appropriations and successful contract performance.
The award will provide 1 year of support and include future recommended support for 4 additional years, contingent upon satisfactory performance in the achievement of project and program reporting objectives during the preceding year and the availability of Federal fiscal year appropriations.
To submit a paper application in response to this FOA, applicants should first review the full announcement located at
• Step 1: Obtain a Dun and Bradstreet Data Universal Numbering System (DUNS) Number.
• Step 2: Register With Central Contractor Registration.
• Step 3: Register With Electronic Research Administration (eRA) Commons.
Steps 1 and 2, in detail, can be found at
Gladys Melendez-Bohler, Office of Acquisition and Grant Services (OAGS), Food and Drug Administration, 5630 Fishers Lane, rm. 1078, Rockville, MD 20857.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
Bryan Emery or Rosanna Harvey, Center for Biologics Evaluation and Research (HFM-71), Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852, 301-827-0314, or FDA Advisory Committee Information Line, 1-800-741-8138 (301-443-0572 in the Washington, DC area), and follow the prompts to the desired center or product area. Please call the Information Line for up-to-date information on this meeting. A notice in the
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Bryan Emery or Rosanna Harvey at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Yvette Waples at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Cancer Institute (NCI), the National Institutes of Health (NIH), has submitted to the Office of Management and Budget (OMB) a request to review and approve the information collection listed below. This proposed information collection was previously published in the
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Institute of Child Health and Human Development (NICHD), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval. This proposed information collection was previously published in the
(a)
(b)
(1) Plan, develop, and implement a prospective cohort study, from birth to adulthood, to evaluate the effects of both chronic and intermittent exposures on child health and human development; and
(2) Investigate basic mechanisms of developmental disorders and environmental factors, both risk and protective, that influence health and developmental processes.
(c)
(1) Incorporate behavioral, emotional, educational, and contextual consequences to enable a complete assessment of the physical, chemical, biological, and psychosocial environmental influences on children's well-being;
(2) Gather data on environmental influences and outcomes on diverse populations of children, which may include the consideration of prenatal exposures; and
(3) Consider health disparities among children, which may include the consideration of prenatal exposures.
To fulfill the requirements of the Children's Health Act, the results of formative research will be used to maximize the efficiency (measured by scientific robustness, participant and infrastructure burden, and cost) of tools to assess language, behavior, and neurodevelopment, psychosocial stress, and health literacy and thereby inform data collection methodologies for the National Children's Study (NCS) Vanguard and Main Studies. With this submission, the NCS seeks to obtain OMB's generic clearance to conduct formative research featuring neuro-developmental and psycho-social measures.
The results from these formative research projects will inform the feasibility (scientific robustness), acceptability (burden to participants and study logistics) and cost of NCS Vanguard and Main Study neuro-developmental and psycho-social measures in a manner that minimizes public information collection burden compared to burden anticipated if these projects were incorporated directly into either the NCS Vanguard or Main Study.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Dr. Sarah L. Glavin, Deputy Director, Office of Science Policy, Analysis and Communication, National Institute of Child Health and Human Development, 31 Center Drive Room 2A18, Bethesda, Maryland 20892, or call non-toll free number (301) 496-1877 or E-mail your request, including your address to
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, June 27, 2011, 8:30 a.m. to June 27, 2011, 6 p.m. The River Inn, 924 25th Street, NW., Washington, DC 20037 which was published in the
The meeting will be held July 15, 2011 at One Washington Circle Hotel, One Washington Circle, NW., Washington, DC 20037. The meeting time remains the same. The meeting is closed to the public.
Coast Guard, DHS.
Notice of availability.
The Coast Guard announces the availability of Office of Vessel Activities (CG-543) Policy Letter 11-07 amending its policy concerning qualification for a STCW endorsement as Officer in Charge of a Navigational Watch (OICNW). The policy is currently found in National Maritime Center (NMC) Policy Letters 01-02 and 16-02.
This policy is effective on July 1, 2011.
This notice, as well as NMC Policy Letters 01-02 and 16-02 and the new, amended policy, are available in the docket and can be viewed by going to
If you have questions about this notice, call or e-mail Luke B. Harden, Mariner Credentialing Program Policy Division (CG-5434), U.S. Coast Guard; telephone 202-372-1206, e-mail
Title 46 Code of Federal Regulations (CFR) section 11.903(c) establishes that
The Coast Guard plans to amend the policy for qualifying for an OICNW endorsement. Most notably, the amendment addresses alternatives to formal training for demonstrating competence rather than relying solely on completion of formal training. The amended policy is in the docket. This policy will cancel NMC Policy Letter 01-02 and 16-02.
We issue this notice of policy availability under the authority of 5 U.S.C. 552(a).
Office of Strategic Planning and Management, HUD.
Notice of Order of Succession.
In this notice, the Director, Office of Strategic Planning and Management, designates the Order of Succession for the Office of Strategic Planning and Management. This is the first order of succession established for this office.
Nina M. Coward, Office of Strategic Planning and Management, Department of Housing and Urban Development, 451 7th Street, SW., Room 10156, Washington DC 20410, telephone number 202-402-3897. (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 1-800-877-8339.
The Director, Office of Strategic Planning and Management, is issuing this Order of Succession of officials authorized to perform the functions and duties of the Office of Strategic Planning and Management when, by reason of absence, disability, or vacancy in office, the Director is not available to exercise the powers or perform the duties of the office. This Order of Succession is subject to the provisions of the Federal Vacancies Reform Act of 1998 (5 U.S.C. 3345-3349d). This is the first order of succession established for this office.
Subject to the provisions of the Federal Vacancies Reform Act of 1998, during any period when, by reason of absence, disability, or vacancy in office, the Director, Office of Strategic Planning and Management, is not available to exercise the powers or perform the duties of the Director, the following officials within the Office of Strategic Planning and Management are hereby designated to exercise the powers and perform the duties of the Office:
(1) Deputy Director of the Office of Strategic Planning and Management;
(2) Division Director—Change Management;
(3) Division Director—Performance Management;
(4) Division Director—Process & Technology; and
(5) Division Director—American Recovery and Reinvestment Act.
These officials shall perform the functions and duties of the office in the order specified herein, and no official shall serve unless all the other officials, whose position titles precede his/hers in this order, are unable to act by reason of absence, disability, or vacancy in office.
Section 7(d), Department of Housing and Urban Development Act, 42 U.S.C. 3535(d).
Office of the Chief Operating Officer, HUD.
Notice of redelegation of authority.
Through this notice, the Chief Operating Officer of HUD (COO) redelegates to the Director, Office of Strategic Planning and Management, authority and responsibility for the development and execution of the department's strategic plan.
Nina M. Coward, Office of Strategic Planning and Management, Department of Housing and Urban Development, 451 7th Street, SW., Room 10156, Washington, DC 20410-6000, telephone number 202-402-3897. (This is not a toll-free number). Persons with hearing- or speech-impairments may access this number though TTY by calling the toll-free Federal Relay Service at 1-800-877-8339.
The COO hereby redelegates to the Director, Office of Strategic Planning and Management, authority and responsibility for the development and execution of the department's strategic plan. In carrying out this responsibility, the Director, Office of Strategic Planning and Management, shall, among other duties:
1. Implement the Department's program performance measurement and management process.
2. Manage and support the execution of the Transformation Initiative, the Department's multiyear, multifaceted organizational change program.
3. Oversee the implementation of the economic stimulus funding allocated to the Department through the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5, approved February 17, 2009).
4. Advise the Secretary on matters related to management of the Department.
The Director, Office of Strategic Planning, is authorized to redelegate to employees of HUD any of the authority delegated under Section A above.
There are no previous redelegations of authority.
The Chief Operations Officer may revoke the authority authorized herein, in whole or part, at any time.
Section 7(d), Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).
Office of the Secretary, Interior.
Notice and call for nominations.
The Department of the Interior is announcing the establishment of the 21st Century Conservation Service Corps Advisory Committee (Committee). The purpose of the Committee is to provide recommendations to the Secretary of the Interior on how to create a 21st Century Conservation Service Corps (21CSC) to engage young Americans in public lands and water restoration. The 21CSC will focus on helping young people, including low-income, underserved, and diverse youth, gain valuable training and work experience while accomplishing needed conservation work on public lands.
The Department of the Interior is seeking nominations for individuals to be considered as Committee members. Nominations should describe and document the proposed member's qualifications for membership to the Committee, and include a resume listing their name, title, address, telephone, e-mail, and fax number.
Written nominations must be received by August 1, 2011.
Send nominations to: Gabrielle Horner, Partnerships Coordinator, Office of the Secretary, Department of the Interior, 1849 C Street, NW., Mailstop 3559, Washington DC 20240;
Gabrielle Horner, Partnerships Coordinator, Office of the Secretary, Department of the Interior, 1849 C Street, NW., Mailstop 3559, Washington DC 20240;
In accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. App. 2) and with the concurrence of the General Services Administration, the Department of the Interior is announcing the establishment of an advisory committee for the 21st Century Conservation Service Corps. The Committee is a discretionary advisory committee established under the authority of the Secretary of the Interior, in furtherance of the Take Pride in America Program, 16 U.S.C. 4601
The purpose of the Committee is to provide recommendations on: (1) Developing a framework for the 21CSC, including program components, structure, and implementation, as well as accountability and performance evaluation criteria to measure success; (2) the development of certification criteria for 21CSC providers and individual certification of 21CSC members; (3) strategies to overcome existing barriers to successful 21CSC program implementation; (4) identifying partnership opportunities with corporations, private businesses or entities, foundations, and non-profit groups, as well as state, local, and tribal governments, to expand support for conservation corps programs, career training and youth employment opportunities; (5) and developing pathways for 21 CSC participants for future conservation engagement and natural resource careers.
Members of the Committee shall include representatives from among, but not limited to, the following interest groups: Youth including High School, College and Graduate Students; State, Tribal, Local, or Private/Non-Profit Youth Employment Programs and/or Conservation Corps; Veteran Employment and Training Organizations; Philanthropic Organizations, Corporations or Industry Associations Investing in Youth Service or Employment and/or Conservation Programs; Groups Investing in Connecting Diverse or Underserved Youth to Conservation Service or Employment Opportunities; Outdoor Recreation Organizations & Associations; National Conservation or Environmental Groups; Hunting and Fishing Groups; Cultural and Historic Preservation Groups; Labor Organizations or Trade Groups; Colleges, Universities, and/or Community Colleges; and the Federal government including the Department of the Interior; Department of Agriculture; Environmental Protection Agency; Department of Labor; Department of Commerce; Department of Health and Human Services; U.S. Army Corps of Engineers; Office of Personnel Management; Council on Environmental Quality; and the Corporation for National and Community Service.
No individual who is currently registered as a Federal lobbyist is eligible to serve as a member of the Committee.
The Committee will meet approximately 4-6 times annually, and at such times as designated by the DFO.
Members of the Committee will serve without compensation.
The Bureau of Ocean Energy Management, Regulation and Enforcement, Interior.
Notice of the availability of environmental documents prepared for OCS mineral proposals by the Gulf of Mexico OCS Region.
The Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), in accordance with Federal Regulations that
Public Information Unit, Information Services Section at the number below. Bureau of Ocean Energy Management, Regulation and Enforcement, Gulf of Mexico OCS Region, Attention: Public Information Office (MS 5034), 1201 Elmwood Park Boulevard, Room 250, New Orleans, Louisiana 70123-2394, or by calling 1-800-200-GULF.
BOEMRE prepares SEAs and FONSIs for proposals that relate to exploration, development, production, and transport of oil, gas, and mineral resources on the Federal OCS. These SEAs examine the potential environmental effects of activities described in the proposals and present BOEMRE conclusions regarding the significance of those effects. Environmental Assessments are used as a basis for determining whether or not approval of the proposals constitutes a major Federal action that significantly affects the quality of the human environment in accordance with NEPA Section 102(2)(C). A FONSI is prepared in those instances where BOEMRE finds that approval will not result in significant effects on the quality of the human environment. The FONSI briefly presents the basis for that finding and includes a summary or copy of the SEA.
This notice constitutes the public notice of availability of environmental documents required under the NEPA Regulations.
Persons interested in reviewing environmental documents for the proposals listed above or obtaining information about SEAs and FONSIs prepared by the Gulf of Mexico OCS Region are encouraged to contact BOEMRE at the address or telephone listed in the
Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), Interior.
Notice of Availability (NOA) of a Draft Supplemental Environmental Impact Statement (SEIS) and Public Meetings.
This NOA is published pursuant to the regulations (40 CFR 1503) implementing the provisions of the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321
BOEMRE has prepared a Draft SEIS on an oil and gas lease sale tentatively scheduled in mid-2012 for CPA consolidated Lease Sale 216/222, which is the final CPA lease sale in the 2007-2012 5-Year OCS Program. The proposed sale is in the Gulf of Mexico's CPA off the States of Louisiana, Mississippi, and Alabama. This Draft SEIS updates the environmental and socioeconomic analyses for the CPA Lease Sale 216/222, originally evaluated in the Gulf of Mexico OCS Oil and Gas Lease Sales: 2007-2012; WPA Sales 204, 207, 210, 215, and 218; Central Planning Area (CPA) Sales 205, 206, 208, 213, 216, and 222, Final EIS (OCS EIS/EA MMS 2007-018) (Multisale EIS), completed in April 2007. This Draft SEIS also updates the environmental and socioeconomic analyses for the CPA Lease Sale 216/222 in the GOM OCS Oil and Gas Lease Sales: 2009-2012; CPA Sales 208, 213, 216, and 222; WPA Sales 210, 215, and 218; Final Supplemental EIS (OCS EIS/EA MMS 2008-041) (2009-2012 SEIS), completed in September 2008.
BOEMRE developed the Draft SEIS for CPA Lease Sale 216/222 to consider new information made available since completion of the Multisale EIS and 2009-2012 SEIS, including information concerning the
To obtain a single printed or CD-ROM copy of the Draft SEIS for CPA Lease Sale 216/222, you may contact BOEMRE, Gulf of Mexico OCS Region, Public Information Office (MS 5034), 1201 Elmwood Park Boulevard, Room 114, New Orleans, Louisiana 70123-2394 (1-800-200-GULF). An electronic copy of the Draft SEIS (as well as links to the Multisale EIS and the 2009-2012 SEIS) is available at BOEMRE's Internet Web site at
Federal, State, and local government agencies and other interested parties are requested to send their written comments on the Draft SEIS in one of the following two ways:
1. In written form enclosed in an envelope labeled “Comments on the CPA Lease Sale 216/222 Draft Supplemental EIS” and mailed (or hand carried) to the Regional Supervisor, Leasing and Environment (MS 5410), Bureau of Ocean Energy Management, Regulation and Enforcement, Gulf of Mexico OCS Region, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123-2394.
2. Electronically to the BOEMRE e-mail address:
BOEMRE will hold public meetings to obtain additional comments and information regarding the Draft SEIS. These meetings are scheduled as follows:
• August 2, 2011—Bureau of Ocean Energy Management, Regulation and Enforcement, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123, beginning at 1 p.m. C.D.T.;
• August 9, 2011—Houston Airport Marriott at George Bush Intercontinental, 18700 John F. Kennedy Boulevard, Houston, Texas 77032, beginning at 1 p.m. C.D.T.; and
• August 11, 2011—Renaissance Mobile Riverview Plaza Hotel, 64 South Water Street, Mobile, Alabama 36602, beginning at 1 p.m. C.D.T, and a second meeting beginning at 6 p.m. C.D.T.
For more information on the Draft SEIS or the public meetings, you may contact Mr. Gary D. Goeke, Bureau of Ocean Energy Management, Regulation and Enforcement, Gulf of Mexico OCS Region, 1201 Elmwood Park Boulevard (MS 5412), New Orleans, Louisiana 70123-2394, or by e-mail at
Fish and Wildlife Service, Interior.
Notice of public meeting and webcast.
We, the U.S. Fish and Wildlife Service (Service), will host a Wind Turbine Guidelines Advisory Committee (Committee) meeting in-person and via webcast. The meeting and webcast are open to the public. The meeting agenda will include a presentation and discussion of the Service's Draft Land-Based Wind Energy Guidelines.
The meeting and webcast will take place over 2 days: On July 20, from 8:30 a.m. to 5 p.m., and on July 21, from 8:30 a.m. to 12 p.m. Eastern Time. If you are a member of the public wishing to attend in person or participate via webcast, you must register online no later than July 13, 2011 (
Rachel London, Division of Habitat and Resource Conservation, U.S. Fish and Wildlife Service, U.S. Department of the Interior, (703) 358-2161.
On March 13, 2007, the Department of the Interior published a notice of establishment of the Committee in the
The Draft Land-Based Wind Energy Guidelines were made available for public comment on February 18, 2011, with a comment-period ending date of May 19, 2011 (76 FR 9590). The purpose of the Guidelines, once finalized, will be to provide recommendations on measures to avoid, minimize, and compensate for effects to fish, wildlife, and their habitats.
Please note that the meeting location is accessible to wheelchair users. If you require additional accommodations, please notify us at least 1 week in advance of the meeting.
All Committee meetings are open to the public. The public has an opportunity to comment at all Committee meetings.
We require that all persons planning to attend in person or participate via webcast register at
Bureau of Indian Affairs, Interior.
Notice of Availability.
The Bureau of Indian Affairs (BIA) as lead agency, with the Los Coyotes Band of Cahuilla and Cupeño Indians, National Indian Gaming Commission (NIGC), U.S. Environmental Protection Agency (USEPA), and the City of Barstow as cooperating agencies, intends to file a Draft Environmental Impact Statement (DEIS) with the USEPA for the Los Coyotes Band of Cahuilla and Cupeño Indians Fee-to-Trust and Casino-Hotel Project proposed to be located within the City of Barstow, San Bernardino County, California. This notice also announces that the DEIS is now available for public review and the date, time, and location of a public hearing to receive comments on the DEIS.
The DEIS will be available for public comment on July 1, 2011. Written comments on the DEIS must arrive by September 14, 2011. The public hearing will be held on July 27, 2011, starting at 6 p.m. and will run until the last public comment is received.
The public hearing will be held at the Barstow Community College Gymnasium, 2700 Barstow Road, Barstow, California.
You may mail or hand-deliver comments to Amy Dutschke, Regional Director, Pacific Regional Office, Bureau of Indian Affairs, 2800 Cottage Way, Sacramento, California 95825. See the
John Rydzik, Bureau of Indian Affairs, Pacific Regional Office, 2800 Cottage Way, Sacramento, California 95825,
Public review of the DEIS is part of the administrative process for the evaluation of tribal applications seeking to have the United States take land into trust for gaming pursuant under 25 U.S.C. 465, 25 CFR part 151, 29 CFR part 292, and 25 U.S.C. 2719(b)(1)(B). Pursuant to Council on Environmental Quality (CEQ) National Environmental Policy Act (NEP A) regulations (40 CFR 1506.10), the publication of this Notice of Availability in the
The Los Coyotes Band of Cahuilla and Cupeño Indians (Tribe) has requested that the BIA take into trust 23 acres of land currently held in fee by the Tribe, on which the Tribe proposes to construct a gaming facility, hotel, parking areas and other facilities. The approximately 23.1-acre project site is located within the incorporated boundaries of the City of Barstow, San Bernardino County, California, just east of Interstate 15. The parcels are located within Section 27, Township 9N, Range 2W, San Bernardino Base Meridian (SBM), as depicted on the Barstow, U.S. Geological Survey (USGS) topographic quadrangle. The project site consists of the following assessor's parcel numbers (APNs): 428-171-66, 428-171-67, and 428-171-68.
The proposed project includes the development of a casino with approximately 57,070 square feet of gaming floor. Associated facilities would include food and beverage services, retail space, banquet/meeting space, and administration space. Food and beverage facilities would include two full service restaurants, a drive-in restaurant, a buffet, a coffee shop, three service bars, and a lounge. The hotel tower would have approximately 100 rooms and a full-service restaurant. Both the gaming facility and the hotel would be open 24 hours a day, seven days a week. A total of 1,405 parking spaces would be provided.
The following alternatives are considered throughout the DEIS: (A) Barstow casino and hotel complex project, (B) Barstow Reduced Casino Hotel Complex (Proposed Project described above), (C) a reduced-intensity casino at a 19-acre site within the Los Coyotes Reservation, (D) a non-gaming alternative, specifically the development of a campground facility within the Los Coyotes, and (E) a no-action alternative. Environmental issues addressed in the DEIS include land resources, water resources, air quality, biological resources, cultural resources, socioeconomic conditions, environmental justice, transportation, land use, agriculture, public services, noise, hazardous materials, visual resources, cumulative effects, indirect effects, growth inducing effects and mitigation measures.
The BIA serves as the Lead Agency for compliance with NEPA (42 U.S.C. 4321
The DEIS is also available on the following Web site:
To obtain a compact disk copy of the DEIS, please provide your name and address in writing or by voice-mail to John Rydzik, Chief of the Division of Environmental, Cultural Resources Management and Safety listed in the
This notice is published pursuant to Sec. 1503.1 of the Council of Environmental Quality Regulations (40 CFR parts 1500 through 1508) and Sec. 46.305 of the Department of Interior Regulations (43 CFR part 46), implementing the procedural requirements of the NEPA of 1969, as amended (42 U.S.C. 4371,
Bureau of Land Management, Interior.
Notice of Decision Approving Lands for Conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that the Bureau of Land Management (BLM) will issue an appealable decision to Bristol Bay Native Corporation. The decision approves conveyance of the surface and subsurface estates in the lands described below pursuant to the Alaska Native Claims Settlement Act. The lands are in the vicinity of Port Heiden, Alaska, and are located in:
Containing approximately 6,389 acres.
Containing approximately 12,855 acres.
Aggregating approximately 19,244 acres.
Notice of the decision will also be published four times in the
Any party claiming a property interest in the lands affected by the decision may appeal the decision within the following time limits:
1. Unknown parties, parties unable to be located after reasonable efforts have been expended to locate, parties who fail or refuse to sign their return receipt, and parties who receive a copy of the decision by regular mail which is not certified, return receipt requested, shall have until August 1, 2011 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
3. Notices of appeal transmitted by electronic means, such as facsimile or e-mail, will not be accepted as timely filed.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4, subpart E, shall be deemed to have waived their rights.
A copy of the decision may be obtained from:
The BLM by phone at 907-271-5960 or by e-mail at
Bureau of Land Management, Interior; and U.S. Forest Service, Agriculture.
Notice.
This notice constitutes an open call to the public to submit nomination applications for positions on the Santa Rosa and San Jacinto Mountains National Monument Advisory Committee.
Nomination applications must be submitted to the address listed below no later than September 29, 2011.
Santa Rosa and San Jacinto Mountains National Monument Office, Attn: National Monument Manager, Advisory Committee Nomination Application, 1201 Bird Center Drive, Palm Springs, California 92262.
Jim Foote, National Monument Manager, Santa Rosa and San Jacinto Mountains National Monument, telephone (760) 833-7136; e-mail
Please submit nomination applications for the following positions on the Santa Rosa and San Jacinto Mountains National Monument Advisory Committee.
• Representative of the City of Palm Desert.
• Representative of the City of Rancho Mirage.
• Representative of the Agua Caliente Band of Cahuilla Indians.
• Representative of the Pinyon Community Council.
• Representative with expertise in natural science and research selected from a regional college or university.
• Alternate representative of the City of Palm Desert.
• Alternate representative of the City of Rancho Mirage.
• Alternate representative of the Agua Caliente Band of Cahuilla Indians.
• Alternate representative of the Pinyon Community Council.
• Alternate representative with expertise in natural science and research selected from a regional college or university.
In accordance with the Santa Rosa and San Jacinto Mountains National Monument Act of 2000 (Pub. L. 106-351), the Secretary of the Interior and the Secretary of Agriculture (Secretaries) jointly established an advisory committee for the Santa Rosa and San Jacinto Mountains National Monument under the provisions of the Federal Advisory Committee Act. The purpose of the National Monument Advisory Committee (MAC) is to advise the Secretaries with respect to preparation and implementation of the National Monument Management Plan.
The MAC holds public meetings at least once per year. The Designated Federal Official, or his/her designee, may convene additional meetings as necessary. All MAC members are volunteers serving without pay, but will be reimbursed for travel and per diem expenses at the current rates for government employees in accordance with 5 U.S.C. 5703, when appropriate. Members of the MAC may be reappointed upon expiration of the member's current term.
All applicants must be citizens of the United States. Members are appointed by the Secretary of the Interior with concurrence by the Secretary of Agriculture. Applicants must be qualified through education, training, knowledge, or experience to give informed advice regarding an industry, discipline, or interest to be represented. The Obama Administration prohibits individuals who are currently federally registered lobbyists to serve on all FACA and non-FACA boards, committees, or councils.
There is no limit to the number of nomination applications which may be submitted for each open position. Any individual may nominate himself or herself for appointment. Completed nomination applications must include letters of reference and/or recommendations from the represented interests or organizations, and any other information explaining the nominee's qualifications (
Nomination application packages are available at the Santa Rosa and San Jacinto Mountains National Monument Office, 1201 Bird Center Drive, Palm Springs, California; through the Santa Rosa and San Jacinto Mountains National Monument Web site at
Each application package must include forms from the Department of the Interior and Department of Agriculture. All submitted nomination applications become the property of the Department of the Interior, Bureau of Land Management, Santa Rosa and San Jacinto Mountains National Monument, and will not be returned. Nomination applications are good only for the current open public call for nominations.
Bureau of Land Management, Interior.
Notice.
Members of the public are hereby invited to participate with Blue Mountain Energy, Inc. on a pro rata cost-sharing basis in a program for the exploration of coal deposits owned by the United States of America in lands located in Moffat and Rio Blanco Counties, Colorado.
Any party electing to participate in this exploration program must send written notice to both the Bureau of Land Management (BLM) and Blue Mountain Energy, Inc., as provided in the
The proposed exploration license and plan is available for review from 9 a.m. to 4 p.m., Monday through Friday in the BLM Colorado State Office, 2850 Youngfield Street, Lakewood, Colorado, and the BLM White River Field Office, 220 E. Market St., Meeker, Colorado.
A written notice to participate in the exploration license should be sent to the State Director, BLM Colorado State Office, 2850 Youngfield Street, Lakewood, Colorado 80215 and Blue Mountain Energy, Inc.,
Kurt M. Barton by telephone at 303-239-3714 or by e-mail at
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The exploration activities will be performed pursuant to the Mineral Leasing Act of 1920, as amended, 30 U.S.C. 201(b), and to the regulations at 43 CFR part 3410. The purpose of the exploration program is to gain additional geologic knowledge of the coal underlying the exploration area for the purpose of assessing the coal resources. The exploration program is fully described and will be conducted pursuant to an exploration license and plan approved by the BLM. The exploration plan may be modified to accommodate the legitimate exploration needs of persons seeking to participate. The lands to be explored for coal deposits in exploration license COC 74817 are described as follows:
These lands contain 1,375 acres, more or less.
The proposed exploration program will be conducted pursuant to an exploration plan to be approved by the BLM. The plan may be modified to accommodate the legitimate exploration needs of persons seeking to participate.
The foregoing is published in the
Bureau of Land Management, Interior.
Notice of Availability.
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 Bureau of Land Management (BLM) has prepared a Draft California Desert Conservation Area (CDCA) Plan Amendment, and a Draft Environmental Impact Statement (EIS) for the West Chocolate Mountains Renewable Energy Evaluation Area. By this notice, the BLM is announcing the opening of the comment period.
To ensure that comments will be considered, the BLM must receive written comments on the Draft CDCA Plan Amendment and Draft EIS within 90 days following the date the Environmental Protection Agency publishes its Notice of Availability for the Draft EIS in the
You may submit comments related to the West Chocolate Mountains Renewable Energy Evaluation Area by any of the following methods:
•
•
•
Copies of the Draft EIS and Draft CDCA Plan Amendment for the West Chocolate Mountains Renewable Energy Evaluation Area are available in the
Joseph Vieira, BLM Project Manager, telephone (719) 852-6213; or e-mail
The Draft EIS analyzes the potential environmental impacts associated with amending the CDCA Plan to make available approximately 20,762 acres of BLM-managed surface lands (acquired lands included) for solar, wind and geothermal testing and development in a renewable energy evaluation area located near Niland, California. The Draft EIS also analyzes the potential environmental impacts of approving a pending geothermal lease application within the renewable energy evaluation area.
This CDCA Draft Plan Amendment/Draft EIS analyzes 6 alternatives, including (1) No Action Alternative (the CDCA Plan would not be amended, and existing plan decisions, stipulations, and allocations would not change as a direct result of this planning process), (2) No Development Alternative, (3) Renewable Energy Development Emphasis, (4) Geothermal Development Only, (5) Solar Development Emphasis with Moderate Geothermal Development and No Wind Development, and (6) Geothermal Development Emphasis with Moderate Solar Development and No Wind Development. If an alternative is selected that establishes the evaluation area as available for solar energy development, it will be identified as a solar energy zone.
The principal issues identified thus far include Native American concerns; potential land use conflicts including recreation; cumulative impacts considering existing, proposed, and potential geothermal projects in the area; and potential impacts on cultural resources, wildlife, visual resources, and surface and groundwater resources. The Draft EIS also addresses geology, mining, geothermal resources, vegetation, threatened or endangered species, air quality, noise, transportation, human health and safety, and social and economic issues, as well as other issues raised during the scoping process.
The Draft EIS identifies stipulations and mitigation measures that could be applied to future energy projects. This document will not authorize any specific energy developments at this time. Additional project-specific environmental analyses would need to be conducted before on-the-ground development activities could occur.
The BLM, in compliance with FLPMA, NEPA, and all other relevant Federal laws, Executive orders, and management policies of the BLM, used an interdisciplinary approach in developing the EIS, working collaboratively in order to consider the variety of resource issues and concerns identified.
Please note that public comments and information submitted including names, street addresses, and e-mail addresses of persons who submit comments will be available for public review and disclosure at the above address during regular business hours (8 a.m. to 4 p.m.), Monday through Friday, except holidays.
Before including your address, phone number, e-mail 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.
40 CFR 1506.6, 1506.10, and 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice of Filing of Plats of Survey; Arizona.
The plats of survey of the described lands were officially filed in the Arizona State Office, Bureau of Land Management, Phoenix, Arizona, on dates indicated.
The plat representing the amended protraction diagram of partially surveyed Township 30 North, Range 6 East, accepted April 5, 2011, and officially filed April 8, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of partially surveyed Township 31 North, Range 6 East, accepted April 5, 2011, and officially filed April 8, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of partially surveyed Township 32 North, Range 6 East, accepted April 7, 2011, and officially filed April 8, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 32
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 33 North, Range 6 East, accepted April 11, 2011, and officially filed April 13, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 30 North, Range 7 East, accepted April 5, 2011, and officially filed April 8, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 31 North, Range 7 East, accepted April 7, 2011, and officially filed April 8, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing amended protraction diagram of Township 32 North, Range 7 East, accepted April 7,
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 32
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 33 North, Range 7 East, accepted April 11, 2011, and officially filed April 13, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat (in 2 sheets) representing the establishment of the southwest and northwest township corners and an electronic control monument, Township 36 North, Range 7 East, accepted March 29, 2011, and officially filed March 31, 2011, for Group 1080, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 36 North, Range 7 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1080, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat (in 2 sheets) representing the establishment of the southeast, southwest, northeast and northwest township corners and an electronic control monument, Township 37 North, Range 7 East, accepted March 29, 2011, and officially filed March 31, 2011, for Group 1080, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 37 North, Range 7 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1080, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 30 North, Range 8 East, accepted April 5, 2011, and officially filed April 8, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 31 North, Range 8 East, accepted April 7, 2011, and officially filed April 8, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 32 North, Range 8 East, accepted April 11, 2011, and officially filed April 13, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 32
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 33 North, Range 8 East, accepted March 7, 2011, and officially filed March 11, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the dependent resurvey of the Second Guide Meridian East (east boundary) and the south boundary and the survey of the west and north boundaries and the subdivisional lines, Township 34 North, Range 8 East, accepted February 23, 2011, and officially filed February 25, 2011, for Group 1080, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the dependent resurvey of the Second Guide Meridian East (east boundary) and the survey of the west and north boundaries and the subdivisional lines, Township 35 North, Range 8 East, accepted March 2, 2011, and officially filed March 4, 2011, for Group 1080, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the establishment of the northwest township corner and an electronic control monument, Township 36 North, Range 8 East, accepted March 29, 2011, and officially filed March 31, 2011, for Group 1080, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 36 North, Range 8 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1080, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 30 North, Range 9 East, accepted April 5, 2011, and officially filed April 8, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 31 North, Range 9 East, accepted April 7, 2011, and officially filed April 8, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 32 North, Range 9 East, accepted March 7, 2011, and officially filed March 11, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 33 North, Range 9 East, accepted April 11, 2011, and officially filed April 13, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 33
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 34 North, Range 9 East, accepted April 13, 2011, and officially filed April 15, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 35 North, Range 9 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 36 North, Range 9 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 33
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 34 North, Range 10 East accepted April 20, 2011, and officially filed April 21, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 35 North, Range 10 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 36 North, Range 10 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 33 North, Range 11 East, accepted April 13, 2011, and officially filed April 15, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing amended protraction diagram of Township 33
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 34 North, Range 11 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 35 North, Range 11 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 36 North, Range 11 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 33 North, Range 12 East, accepted April 13, 2011, and officially filed April 15, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 33
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 34 North, Range 12 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the dependent amended protraction diagram of Township 35 North, Range 12 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 36 North, Range 12 East, accepted April 20, 2011, and officially filed April 21, 2011, for Group 1059, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 33 North, Range 12
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 33
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 34 North, Range 12
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 35 North, Range 12
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the amended protraction diagram of Township 36 North, Range 12
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the survey of the south and north boundaries, a Sectional Guide Meridian and the subdivisional lines and the subdivision of certain sections, Township 22 North, Range 14 East, accepted April 12, 2011, and officially filed April 14, 2011, for Group 1070, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the dependent resurvey of the subdivisional lines and the subdivision of section 14,Township 18 North, Range 19 East, accepted February 7, 2011, and officially filed February 9, 2011, for Group 1082, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
The plat representing the survey of a portion of the Tenth Standard Parallel North (north boundary), the south and west boundaries and the subdivisional lines, and the subdivision of certain sections, Township 40 North, Range 19 East, accepted June 2, 2011, and officially filed June 7, 2011, for Group 1077, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the dependent resurvey of the Sixth Standard Parallel North through Range 21 East and a portion of range 20 east (north boundary), the Fifth Guide Meridian East, through Township 24 North (west boundary), the east boundary and the subdivisional lines, and the subdivision of certain sections, Township 24 North, Range 21 East, accepted June 6, 2011, and officially filed June 8, 2011, for Group 1068, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the dependent resurvey of a portion of the subdivisional lines, the subdivision of section 34 and a metes-and-bounds survey in section 34, Township 6 North, Range 29 East, accepted April 5, 2011, and officially filed April 7, 2011, for Group 1086, Arizona.
This plat was prepared at the request of the United States Forest Service.
The plat representing the dependent resurvey of the Tenth Standard Parallel North (south boundary) and the north boundary, and the survey of the subdivisional lines and the subdivision of certain sections, Township 41 North, Range 29 East, accepted February 17, 2011, and officially filed February 23, 2011, for Group 1078, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Navajo Regional Office.
The plat representing the metes-and-bounds survey of a portion of the Mount Tipton Wilderness Area Boundary in section 17, Township 25 North, Range 18 West, accepted April 26, 2011, and officially filed April 28, 2011, for Group 1073, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
The plat representing the survey of a portion of the south boundary, Township 10 South, Range 3 West, accepted March 21, 2011, and officially filed March 23, 2011, for Group 1091, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
The plat representing the dependent resurvey of a portion of the subdivisional lines, the subdivision of section 3 and the metes-and-bounds survey of Parcel Number 1, within section 3, and the metes-and bounds survey of lot 5, within section 3, Township 5 South, Range 9 East, accepted February 11, 2011, and officially filed February 16, 2011, for Group 1075, Arizona.
This plat was prepared at the request of the Bureau of Indian Affairs, Western Regional Office.
This plat representing the corrective resurvey of a portion of the metes-and-bounds survey of the Aravaipa Canyon Wilderness Area Boundary, in section 7, Township 6 South, Range 18 East, accepted March 30, 2011, and officially filed March 31, 2011, for Group 860, Arizona.
This plat was prepared at the request of the Bureau of Land Management.
This plat representing the supplemental plat of the W
This plat was prepared at the request of the United States Forest Service.
A person or party who wishes to protest against any of these surveys must file a written protest with the Arizona State Director, Bureau of Land Management, stating that they wish to protest.
A statement of reasons for a protest may be filed with the notice of protest to the State Director, or the statement of reasons must be filed with the State Director within thirty (30) days after the protest is filed.
These plats will be available for inspection in the Arizona State Office, Bureau of Land Management, One North Central Avenue, Suite 800, Phoenix, Arizona 85004-4427. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
Bureau of Land Management, Interior.
Notice of Public Meeting.
In accordance with the Federal Land Policy and Management Act of 1976 (FLPMA), the U.S. Department of the Interior, Bureau of Land Management (BLM) will hold a public meeting regarding the proposed Fort Carson and Pinon-Canyon Maneuver Site withdrawal extension. The U.S. Army will be present. The proposed withdrawal extension was published in the
The BLM will hold the public meeting on August 2, 2011, in Pueblo, Colorado.
The meeting will begin at 6 p.m. and adjourn at approximately 8 p.m. and will include an opportunity for public comment.
The public meeting will be held at the Sangre De Cristo Arts and Conference Center, 210 N. Santa Fe Ave., Pueblo, Colorado.
John D. Beck, Chief, Branch of Lands and Realty, BLM Colorado State Office, (303) 239-3882. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The BLM, accompanied by the U.S. Army, will hold a public meeting to discuss the proposed extension of the Fort Carson and Pinon-Canyon Maneuver Site military lands withdrawal. Public Law 104-201 of September 23, 1996, (110 Stat. 2807) withdrew 3,133 acres of public lands and 11,415 acres of Federally-owned minerals from all forms of appropriation under all appropriate public land laws including mining and mineral laws, geothermal leasing laws and mineral materials disposal laws, to protect the Fort Carson military reservation. The proposed withdrawal extension also includes withdrawal of 2,517 acres of public lands and approximately 130,139 acres of federally-owned minerals from all forms of appropriation under all appropriate public land laws including mining and mineral laws, geothermal leasing laws and mineral materials disposal laws to protect the Army's Pinon-Canyon Maneuver Site. The public domain lands and minerals are in El Paso, Pueblo, Fremont, and Las Animas counties, Colorado. The extension, if approved, would withdraw these lands for an additional 15 years.
This meeting is open to the public and will include time for public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited.
43 CFR 2310.3-1.
National Park Service, Interior.
Notification of boundary revision.
Notice is hereby given that, pursuant to 16 U.S.C. 4601-9(c)(1), the boundary of the Virgin Islands National Park is modified to include an
National Park Service, Chief, Southeast Region Land Resources Program Center, 1924 Building, 100 Alabama Street, SW., Atlanta, Georgia 30303, (404) 507-5664.
The effective date of this boundary revision is July 1, 2011.
16 U.S.C. 4601-9(c)(1) provides that, after notifying the House Committee on Natural Resources and the Senate Committee on Energy and Natural Resources, the Secretary of the Interior is authorized to make this boundary revision upon publication of notice in the
National Park Service, Department of Interior.
Notice of Termination of Environmental Impact Statement for the General Management Plan, Tumacacori National Historical Park, in favor of an Environmental Assessment.
The National Park Service (NPS) is terminating preparation of an environmental impact statement (EIS) for the General Management Plan, Tumacacori National Historical Park, Arizona. A notice of intent to prepare the EIS for the Tumacacori National Historical Park General Management Plan was published in the January 9, 2009,
The Tumacacori National Historical Park Boundary Revision Act of 2002 (Pub. L. 107-218) added approximately 310 acres to the boundary of the park to enhance the visitor experience at Tumacacori by developing access to these associated mission resources. A general management plan (GMP) will establish the overall management direction of the park including these new lands for the next 15 to 20 years. The plan was originally scoped as an EIS. Publication of the
The NPS planning team has developed three alternative management concepts for the addition lands. The “No-Action” concept would allow for the continuation of existing conditions, and the park would continue to be managed based on the GMP completed in 1996. This 1996 plan did not address management in the lands added to the park in 2002. Current land uses, and activities would remain, and resources would not necessarily be well protected.
Alternative 2 would focus on the restoration/rehabilitation of natural and cultural resources while providing a greater array of visitor opportunities that reflect the complex history of the Pimeria Alta, connections to the larger mission system, the significance of place, and the importance of natural resources to communities over time.
Under Alternative 3, the Santa Cruz River would provide a foundation to connect the three units in Tumacacori National Historical Park to its many communities.
In September 2010, the planning team issued a newsletter that described these alternatives. An open house was also held on October 6, 2010, to talk about the alternatives. Few comments were received on the alternatives, and none of the comments will result in substantive changes in the alternatives or raised significant impacts of the alternatives.
The two action alternatives propose only a few small facilities in areas that have been disturbed in the past. The alternatives focus primarily on improving the visitor experience, in rehabilitating the natural landscape, and in developing partnerships to improve management, resource protection, and cultural connections. Preliminary analysis of the alternatives has revealed no major or significant potential effects on the quality of the human environment, nor any potential for impairment of park resources and values. Most of the impacts of the alternatives are expected to be beneficial, while adverse impacts are expected to be mostly negligible to minor in magnitude, with the remainder being moderate.
For these reasons, the National Park Service determined that the requisite conservation planning and environmental impact analysis necessary for the general management plan can appropriately be completed through preparation of an environmental assessment.
The draft general management plan/EA is expected to be distributed for public comment in early 2012. The National Park Service will notify the public by mail, local and regional media, Web site, and other means, of public review periods and meetings associated with the draft general management plan/EA; all announcements will include information on where and how to obtain a copy of the EA, how to comment on the EA, and the length of the public comment period. All public review and other written public information will be made available online at
Lisa Carrico, Superintendent, Tumacacori National Historical Park, P.O. Box 8067, Tumacacori, Arizona 85640; telephone, (520) 398-2341; or by e-mail at
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the antidumping duty order on stainless steel wire rod from India would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
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 the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
The public record for this review may be viewed on the Commission's electronic docket (EDIS) at
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and E-mail address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this review by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) Net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the antidumping duty orders on certain welded stainless steel pipe from Korea and Taiwan would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
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 the
The public record for these reviews may be viewed on the Commission's electronic docket (EDIS) at
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. § 207, the post employment statute for Federal employees, and Commission rule 201.15(b)(19 CFR § 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR § 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and E-mail address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in these reviews by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) Net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm to produce the Subject Merchandise in each
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the
By order of the Commission.
Institution of five-year review concerning the countervailing duty order on welded carbon steel pipe and tube from Turkey and the antidumping duty orders on certain pipe and tube from Brazil, India, Korea, Mexico, Taiwan, Thailand, and Turkey.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the countervailing duty order on welded carbon steel pipe and tube from Turkey, the antidumping duty orders on welded carbon steel pipe and tube from India, Thailand, and Turkey, the antidumping duty orders on circular welded nonalloy steel pipe from Brazil, Korea, Mexico, and Taiwan, and the antidumping duty orders on small diameter carbon steel pipe and tube and light-walled rectangular pipe and tube from Taiwan would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
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 the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
Following five-year reviews by Commerce and the Commission, effective August 22, 2000, Commerce issued a continuation of the countervailing duty order on imports of welded carbon steel pipe and tube from Turkey (65 FR 50960) and the antidumping duty orders on imports of certain pipe and tube from Brazil, India, Korea, Mexico, Taiwan, Thailand, and Turkey (65 FR 50955-50958).
Following second five-year reviews by Commerce and the Commission, effective August 8, 2006, Commerce issued a continuation of (1) The countervailing duty order on imports of welded carbon steel standard pipe from Turkey, (2) the antidumping duty orders on imports of circular welded non-alloy pipes and tubes from Brazil, Korea, and Mexico, and (3) the antidumping duty orders on imports of welded carbon steel pipe from India, Thailand and Turkey (71 FR 44996). Effective August 9, 2006, Commerce issued a continuation of the antidumping duty order on imports of light-walled welded rectangular carbon steel tubing from Taiwan (71 FR 45521). Effective August 14, 2006, Commerce issued a continuation of the antidumping duty orders on imports of certain circular welded carbon steel pipes and tubes from Taiwan and circular welded non-alloy steel pipe from Taiwan (71 FR 46447). The Commission is now conducting third reviews to determine whether revocation of the orders would be likely to lead to continuation or recurrence of material injury to the domestic industry within a reasonably foreseeable time. It will assess the adequacy of interested party responses to this notice of institution to determine whether to conduct full or expedited reviews. The Commission's determinations in any expedited reviews will be based on the facts available, which may include information provided in response to this notice.
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b)(19 CFR 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter,
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and E-mail address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in these reviews by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) The quantity and value of U.S. commercial shipments of the
(d) The quantity and value of U.S. internal consumption/company transfers of the
(e) The value of (i) Net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) The quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) The quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether termination of the suspended investigation on uranium from Russia would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-
The public record for this review may be viewed on the Commission's electronic docket (EDIS) at
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(2) The
(3) The
(4) The
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b)(19 CFR 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR § 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and E-mail address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the Domestic Like Product, a U.S. union or worker group, a U.S. importer of the Subject Merchandise, a foreign producer or exporter of the Subject Merchandise, a U.S. or foreign trade or business association, or another interested party (including an explanation). If you are a union/worker group or trade/business association, identify the firms in which your workers are employed or which are members of your association.
(3) A statement indicating whether your firm/entity is willing to participate in this review by providing information requested by the Commission.
(4) A statement of the likely effects of the termination of the suspended investigation on the Domestic Industry in general and/or your firm/entity specifically. In your response, please discuss the various factors specified in section 752(a) of the Act (19 U.S.C. 1675a(a)) including the likely volume of subject imports, likely price effects of subject imports, and likely impact of imports of Subject Merchandise on the Domestic Industry.
(5) A list of all known and currently operating U.S. producers of the Domestic Like Product. Identify any known related parties and the nature of the relationship as defined in section 771(4)(B) of the Act (19 U.S.C. § 1677(4)(B)).
(6) A list of all known and currently operating U.S. importers of the Subject Merchandise and producers of the Subject Merchandise in the Subject Country that currently export or have exported Subject Merchandise to the United States or other countries after 2005.
(7) A list of 3-5 leading purchasers in the U.S. market for the Domestic Like Product and the Subject Merchandise (including street address, World Wide Web address, and the name, telephone number, fax number, and E-mail address of a responsible official at each firm).
(8) A list of known sources of information on national or regional prices for the Domestic Like Product or the Subject Merchandise in the U.S. or other markets.
(9) If you are a U.S. producer of the Domestic Like Product, provide the following information on your firm's operations on that product during calendar year 2010, except as noted. Report quantity data in (1) Pounds of natural uranium concentrate (concentrated U
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the Domestic Like Product accounted for by your firm's(s') production;
(b) Capacity (quantity) of your firm to produce the Domestic Like Product (i.e., the level of production that your establishment(s) could reasonably have expected to attain during the year, assuming normal operating conditions (using equipment and machinery in place and ready to operate), normal operating levels (hours per week/weeks per year), time for downtime, maintenance, repair, and cleanup, and a typical or representative product mix);
(c) the quantity and value of U.S. commercial shipments of the Domestic Like Product produced in your U.S. plant(s);
(d) the quantity and value of U.S. internal consumption/company transfers of the Domestic Like Product produced in your U.S. plant(s); and
(e) the value of (i) Net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the Domestic Like Product produced in your U.S. plant(s) (include both U.S. and export commercial sales, internal consumption, and company transfers) for your most recently completed fiscal year (identify the date on which your fiscal year ends).
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the Subject Merchandise from the Subject Country, provide the following information on your firm's(s') operations on that product during calendar year 2010. Depending upon the form in which it is imported, report quantity data in (1) Pounds of natural uranium concentrate (concentrated U
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of Subject Merchandise from the Subject Country accounted for by your firm's(s') imports;
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of Subject Merchandise imported from the Subject Country; and
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of Subject Merchandise imported from the Subject Country.
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the Subject
(a) Production (quantity) and, if known, an estimate of the percentage of total production of Subject Merchandise in the Subject Country accounted for by your firm's(s') production;
(b) Capacity (quantity) of your firm to produce the Subject Merchandise in the Subject Country (i.e., the level of production that your establishment(s) could reasonably have expected to attain during the year, assuming normal operating conditions (using equipment and machinery in place and ready to operate), normal operating levels (hours per week/weeks per year), time for downtime, maintenance, repair, and cleanup, and a typical or representative product mix); and
(c) the quantity and value of your firm's(s') exports to the United States of Subject Merchandise and, if known, an estimate of the percentage of total exports to the United States of Subject Merchandise from the Subject Country accounted for by your firm's(s') exports.
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the Domestic Like Product that have occurred in the United States or in the market for the Subject Merchandise in the Subject Country after 2005, and significant changes, if any, that are likely to occur within a reasonably foreseeable time. Supply conditions to consider include technology; production methods; development efforts; ability to increase production (including the shift of production facilities used for other products and the use, cost, or availability of major inputs into production); and factors related to the ability to shift supply among different national markets (including barriers to importation in foreign markets or changes in market demand abroad). Demand conditions to consider include end uses and applications; the existence and availability of substitute products; and the level of competition among the Domestic Like Product produced in the United States, Subject Merchandise produced in the Subject Country, and such merchandise from other countries.
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the Domestic Like Product and Domestic Industry; if you disagree with either or both of these definitions, please explain why and provide alternative definitions.
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
On the basis of the record
The Commission instituted this review on November 1, 2010 (75 FR 67102) and determined on February 4, 2011 that it would conduct an expedited review (76 FR 11267, March 1, 2011).
The Commission transmitted its determination in this review to the Secretary of Commerce on June 27, 2011. The views of the Commission are contained in USITC Publication 4239 (June 2011), entitled
By order of the Commission.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On May 11, 2011, a petition was filed with the Commission and Commerce by Norris Cylinder Company, Longview, Texas, alleging that an industry in the United States is materially injured or threatened with material injury by reason of LTFV and subsidized imports of high pressure steel cylinders from China. Accordingly, effective May 11, 2011, the Commission instituted countervailing duty investigation No. 701-TA-480 and antidumping duty investigation No. 731-TA-1188 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on June 27, 2011. The views of the Commission are contained in USITC Publication 4241 (July 2011), entitled
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of full reviews pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) (the Act) to determine whether revocation of the countervailing duty order or revocation of the antidumping duty order on fresh and chilled Atlantic salmon from Norway would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. The Commission has determined to exercise its authority to extend the review period by up to 90 days pursuant to 19 U.S.C. 1675(c)(5)(B). For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Effective Date: June 23, 2011
Jennifer Merrill (202-205-3188), 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 the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
Background.—On April 8, 2011, the Commission determined that responses to its notice of institution of the subject five-year reviews were such that full reviews pursuant to section 751(c)(5) of the Act should proceed (76 FR 22422, April 21, 2011). A record of the Commissioners' votes, the Commission's statement on adequacy, and any individual Commissioner's statements are available from the Office of the Secretary and at the Commission's Web site.
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the reviews must be served on all other parties to the reviews (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 reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
30-Day notice of information collection under review: Annual certification report and equitable sharing agreement.
The Department of Justice (DOJ), Criminal Division, Asset Forfeiture and Money Laundering Section (AFMLS) 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. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until August 1, 2011. This process is conducted in accordance with 5 CFR 1320.10.
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: DOJ Desk Officer. The best way to ensure your comments are received is to e-mail them to
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)
(2)
(3)
(4)
(5)
(6)
If Additional Information is Required Contact: Jerri Murray, Department Clearance Officer, United States
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), the United States hereby publishes below its Response to public comments received on the proposed Final Judgment in
Copies of the comments and the Response are available for inspection at the Department of Justice Antitrust Division, 450 Fifth Street, NW., Suite 1010, Washington, DC 20530 (
Pursuant to the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h) (“APPA” or “Tunney Act”), the United States hereby files the public comments concerning the proposed Final Judgment in this case and the United States' response to those comments. Most of the comments applaud the settlement for lessening the restraints on competition in the General Purpose Card industry. None of the comments contends that the proposed Final Judgment is contrary to the public interest or should not be approved by the Court. The United States has carefully considered the various questions and suggestions contained in the comments and continues to believe that the proposed Final Judgment will provide an effective and appropriate remedy for the antitrust violations alleged in the Amended Complaint against Defendants MasterCard International Incorporated (“MasterCard”) and Visa Inc. (“Visa”). The United States will therefore move the Court for entry of the proposed Final Judgment after the public comments and this Response have been published in the
The United States and seven Plaintiff States filed the Complaint in this case on October 4, 2010. Simultaneously, the Plaintiffs filed a proposed Final Judgment as to Defendants MasterCard and Visa and a Stipulation consenting to entry of the proposed Final Judgment after compliance with the Tunney Act. Defendants American Express Company and American Express Travel Related Services Company, Inc., are not parties to the proposed settlement and the litigation against them will continue. On December 21, 2010, the United States filed an Amended Complaint adding eleven additional States as Plaintiffs and an Amended Stipulation including those States in the proposed settlement.
As required by the Tunney Act, the United States (1) filed on October 4, 2010, a Competitive Impact Statement (“CIS”) explaining the settlement with MasterCard and Visa; (2) caused the proposed Final Judgment and CIS to be published in the
The Amended Complaint challenges certain of Defendants' rules, policies, and practices that impede merchants from providing discounts or benefits to promote the use of a competing credit card that costs the merchant less to accept (“Merchant Restraints”).
The Visa Merchant Restraints challenged in the Amended Complaint prohibit a merchant from offering a discount at the point of sale to a customer who chooses to use a competitor's General Purpose credit or charge Card (“General Purpose Card”) instead of a Visa General Purpose Card. Visa's rules do not allow discounts for other General Purpose Cards, unless such discounts are equally available for Visa transactions.
The Merchant Restraints at issue deter or obstruct merchants from freely promoting interbrand competition among networks by offering discounts, other benefits, or information to encourage customers to use a less-expensive General Purpose Card brand or other payment method. The Merchant Restraints block merchants from taking steps to influence customers and foster competition among networks at the point of sale, such as: Promoting a less-expensive General Purpose Card brand more actively than any other brand; offering customers a discount or other benefit for using a particular General Purpose Card that costs the merchant less; posting a sign expressing a preference for another General Purpose Card brand; prompting customers at the point of sale to use another General Purpose Card brand in their wallets; posting the signs or logos of General Purpose Card brands that cost less to the merchant more prominently than signs or logos of more costly brands; or posting truthful information comparing the relative costs of different General Purpose Card brands.
The Amended Complaint alleges that the Merchant Restraints allow Defendants to maintain high prices for network services with confidence that no competitor will take away significant transaction volume through competition in the form of merchant discounts or benefits to customers to use lower-cost payment options. Defendants' prices for network services to merchants are therefore higher than they would be without the Merchant Restraints.
Absent the Merchant Restraints, merchants would be free to use various methods, such as discounts or non-price benefits, to encourage customers to use the brands of General Purpose Cards that impose lower costs on the merchants. In order to retain merchant business, the networks would need to respond to merchant preferences by competing more vigorously on price and service terms. The increased competition among networks would lead to lower merchant fees and better service terms.
Because the Merchant Restraints result in higher merchant costs, and merchants generally pass costs on to consumers, retail prices are higher for consumers. Customers who pay with lower-cost methods of payment pay more than they would if Defendants did not prevent merchants from encouraging network competition at the point of sale. For example, because credit cards that offer rewards tend to be held by more affluent buyers, less affluent purchasers using less expensive payment forms such as debit cards, cash, and checks effectively subsidize expensive premium card benefits and rewards enjoyed by premium cardholders.
The Amended Complaint also alleges that the Merchant Restraints have produced a number of other anticompetitive effects, including reducing output of lower-cost payment methods, stifling innovation in network services and card offerings, and denying information to customers about the relative costs of General Purpose Cards that would cause more customers to choose lower-cost payment methods. Defendants' Merchant Restraints also have heightened the already high barriers to entry and expansion in the network services market. Merchants' inability to encourage their customers to use less-costly General Purpose Card networks makes it more difficult for existing or potential competitors to challenge Defendants' market power.
As more fully explained in the Competitive Impact Statement, the proposed Final Judgment prohibits Visa and MasterCard from adopting, maintaining, or enforcing any rule, or entering into or enforcing any agreement, that prevents any merchant from: (1) Offering the customer a price discount, rebate, free or discounted product or service, or other benefit if the customer uses a particular brand or type of General Purpose Card or particular form of payment; (2) expressing a preference for the use of a particular brand or type of General Purpose Card or particular form of payment; (3) promoting a particular brand or type of General Purpose Card or particular form of payment through posted information; through the size, prominence, or sequencing of payment choices; or through other communications to the customer; or (4) communicating to customers the reasonably estimated or actual costs incurred by the merchant when a customer pays with a particular brand or type of General Purpose Card. Proposed Final Judgment § IV.
The purpose of the proposed Final Judgment is to free merchants to provide customers helpful information, discounts, benefits, and choices at the point of sale to influence the method of payment customers use. Merchants will be able to encourage customers, using the methods described in Section IV.A of the proposed Final Judgment, to use, for example, a Discover General Purpose Card instead of a Visa General Purpose Card. Merchants will also be able to encourage the use of any other payment form, such as cash, checks, or debit cards, by using the methods described in Section IV.A.
To facilitate merchants' ability to encourage customers to use particular General Purpose Cards, the proposed Final Judgment prevents Visa and MasterCard from blocking their acquiring banks from supplying merchants with information that might assist merchants' identification of the less costly General Purpose Cards.
The proposed Final Judgment requires Visa and MasterCard, within five days of entry of the Judgment, to “delete, discontinue, and cease to enforce” any rule that would be prohibited by Section IV of the Final Judgment and to implement specific changes to their existing rules and regulations governing merchant conduct. Visa and MasterCard, through their acquiring banks, must notify merchants of the rules changes mandated by the Final Judgment, and of the fact that merchants are now permitted to encourage customers to use a particular General Purpose Card or form of payment. Visa and MasterCard must also provide notice to the Plaintiffs of certain future rule changes.
The prohibitions and required conduct in the proposed Final Judgment achieve all the relief sought from Visa and MasterCard in the Complaint, and thus fully resolve the competitive concerns raised by those Defendants' Merchant Restraints challenged in this lawsuit.
The Tunney Act requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e)(1). In making that determination, the court, in accordance with the statute as amended in 2004, is required to consider:
(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory factors, the court's inquiry is necessarily a limited one as the United States is entitled to “broad discretion to settle with the defendant within the reaches of the public interest.”
As the United States Court of Appeals for the District of Columbia Circuit has held, a court considers under the APPA, among other things, the relationship between the remedy secured and the specific allegations set forth in the United States' complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties.
[t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court's role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is “
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.' ”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments,
During the 60-day comment period, the United States received six public comments. While the comments raise a variety of issues, no commenter contends that the proposed Final Judgment is contrary to the public interest or that it should not be entered by the Court. Some of the comments seek clarifications or explanations, and these are provided below. Some of the comments contain suggestions for modifying the terms of the proposed Final Judgment. For the reasons explained below, the United States has concluded that these proposed changes are either outside the scope of the Amended Complaint; unnecessary, in light of market facts, to achieve sufficient relief; or unnecessary due to the existing provisions of the proposed Final Judgment. Accordingly, the United States believes that the Court should enter the proposed Final Judgment as originally submitted.
Counsel for merchant class plaintiffs in
If the Antitrust Division is successful in its action seeking to force American Express to rescind its “anti-steering rules” (as described in the Complaint in the above titled action), would the Proposed Final Judgment prevent the Antitrust Division at that point from seeking to compel Visa and MasterCard to rescind their no-surcharge rules?
The answer to this question is “no.” Nothing in the proposed Final Judgment would prevent the Antitrust Division from challenging any rule of Visa or MasterCard under the antitrust laws in the future. In fact, Section VIII of the proposed Final Judgment specifically provides that nothing in the Final Judgment “shall limit the right of the United States or of the Plaintiff States to investigate and bring actions to prevent or restrain violations of the antitrust laws concerning any Rule of MasterCard or Visa, including any current Rule and any Rule adopted in the future.”
Counsel for the “Individual Plaintiffs in direct action (
While the comment supports entry of the proposed Final Judgment, it observes that the proposed Final Judgment does not remove other Visa and MasterCard restraints, including their prohibitions on merchants imposing a fee (surcharge) on consumers to cover merchants' costs of accepting Visa and MasterCard General Purpose Cards. The comment acknowledges that the United States made clear in the CIS that “the Government is not challenging the networks' no-surcharge rules or other network restraints ‘[a]t this time,’' and has left open the possibility that it could do so in the future.” To the extent the comment can be construed as suggesting that the United States should have challenged the Defendants' no-surcharge rules as well, this consideration is not relevant to the Court's Tunney Act analysis. In its Tunney Act review, the Court may consider only those claims that the United States, in the exercise of its prosecutorial discretion, asserted in its Complaint.
Consumer World states that it “is a leading public service consumer education website.” It is concerned that the discounts that merchants are permitted to offer under the proposed Final Judgment might turn into surcharges. In Consumer World's view, merchants might choose to advertise “cash only” prices, and those who choose not to pay with cash “might be asked to pay a higher price—a surcharge—if choosing to use plastic.” To prevent this, Consumer World suggests that “the settlement should specifically ban surcharges.” Relatedly, Consumer World is also concerned that, unless the proposed Final Judgment imposes a requirement that merchants fully disclose to consumers that prices may vary depending on the payment method used, consumers might perceive that they are paying a higher price for using credit and charge cards. Consumer World suggests that the decree create rules about how merchants disclose prices in advertisements, in-store displays, and online. Consumer World believes these rules should be implemented through Visa's and MasterCard's merchant agreements.
With respect to Consumer World's suggestion that the proposed Final Judgment “should specifically ban surcharges,” the United States notes that the Amended Complaint in this case does not challenge the Defendants' prohibitions on surcharges.
Consumer World's suggestion that the proposed Final Judgment should impose restraints on merchant behavior is not appropriate for several reasons. First, merchants are not parties to this case and cannot be bound by the proposed Final Judgment. The Amended Complaint challenges only the Defendants' rules and does not allege that any merchants are violating the antitrust laws. Moreover, because merchant practices concerning price labeling and product advertising are not challenged in the Amended Complaint, relief directed at those practices would not be justified.
Consumer World's suggestion that the decree should require Visa and MasterCard to incorporate restrictions on merchant pricing and advertising practices is inconsistent with the primary goal of the decree, which is to remove Visa and MasterCard restrictions on merchant competitive practices that may encourage, or steer, customers to choose a less-expensive payment choice over a more-expensive one. Finally, to the extent Consumer World is concerned about merchants engaging in misleading “bait advertising” or similar deceptive practices that would result in consumers paying higher prices, the United States notes that the decree does not displace any existing state and Federal consumer protection statutes that address these practices. For these reasons, Consumer World's proposals should not be adopted.
The Retail Industry Leaders Association (“RILA”) “welcomes the settlement reached by Plaintiffs and MasterCard International Incorporated and Visa Inc. as it could help facilitate competition in the General Purpose Card market, particularly price competition that could benefit merchants and consumers.” RILA advocates certain additional relief and requests clarification of two provisions in the proposed Final Judgment. The United States responds to each of these points separately below, accepting the two clarifications and noting that the requested additional relief is addressed in part by an electronic service Visa offers and MasterCard will soon offer.
The proposed Final Judgment removes restrictions on three kinds of merchant competitive behavior: (a) Steering among General Purpose Card brands, or networks (
RILA observes that, to effectively steer consumers “from expensive Visa and MasterCard credit cards to cheaper forms of payments * * * merchants need to know which type of cards they are receiving at the point of sale.” RILA expresses concern that merchants cannot always distinguish a General Purpose Card with a high interchange fee from one with a lower interchange fee. The issue RILA raises is an important one. If a merchant cannot distinguish, for instance, a Visa rewards card carrying a high interchange fee from a lower-cost card (issued by either Visa or another network) or another less-costly form of payment, the merchant would be limited in its ability to steer consumers to, for example, the lower-cost General Purpose Card.
In response to RILA's comment, the United States explored with Visa and MasterCard how to address the concern that merchants' ability to distinguish among types of General Purpose Cards is limited. RILA sought an “electronic means to identify the Types of Visa and MasterCard General Purpose Cards that qualify for distinct interchange tiers, based on the Type of Card.” RILA Comment at 15. The United States learned that Visa offers, and MasterCard will soon offer, such an electronic means to differentiate among card types.
The United States recognizes that these services are not a complete solution for merchants as some may require additional terminal programming and coordination with the merchants' Acquiring Banks,
Merchants are able to determine the type of Visa card presented at the point of sale using an electronic inquiry currently available through the Visa network. Visa has many different types of General Purpose Cards. Declaration of Judson Reed ¶ 3 (attached as Exhibit 14). A merchant wishing to identify the type of a Visa General Purpose Card presented by a customer would be able to initiate an inquiry to the Visa network using Visa's “Product Eligibility Inquiry Service.”
MasterCard will soon have a similar electronic inquiry system. MasterCard assigns unique product identification codes and account category indicators to its various card types. Declaration of Brad Tomchek ¶ 4 (attached as Exhibit 16). MasterCard has represented to the United States that, in August 2011, it will introduce an electronic inquiry service, called the “Product Validation Service.”
Merchants or their Acquiring Banks can use the product type information supplied by each network's service to determine the interchange fees associated with the credit card swiped by the consumer.
Both Visa and MasterCard have represented to the United States that they are not charging a fee, either to merchants or to Acquiring Banks, for their electronic inquiries.
RILA seeks clarification on two other portions of the proposed Final Judgment. As explained below, the United States concurs in the interpretations RILA seeks.
First, RILA requests clarification that Section IV.D of the proposed Final Judgment “would prohibit Visa and MasterCard from preventing, in any way, merchant access to electronic information or data that can be used to identify Types of General Purpose Cards, including the Types of General Purpose Cards that qualify for distinct interchange tiers.” RILA Comment at 15 n.12.
The proposed Final Judgment does prohibit the conduct that RILA identifies. As discussed above, Section IV.D of the proposed Final Judgment prohibits Visa and MasterCard from preventing Acquiring Banks from providing to merchants “information regarding the costs or fees the Merchant would incur in accepting a General Purpose Card, including a particular Type of General Purpose Card, presented by the Customer as payment for the Customer's transaction.” This prohibition would cover any information or data that is reasonably necessary for a merchant to determine its costs or fees for acceptance of a General Purpose Card or of a particular Type of General Purpose Card, including the “electronic information or data” to which RILA's comment refers. Visa and MasterCard may not prohibit Acquiring Banks from sharing such information with merchants. In addition, the language in Section IV.A that restrains Visa and MasterCard from “directly or indirectly” blocking merchants from engaging in certain
Second, RILA seeks confirmation that “Section [IV.B.4] will not be interpreted to enable Visa and MasterCard to maintain rules that would prevent merchants from steering consumers from more expensive Visa or MasterCard rewards credit cards issued by one bank to a less expensive Visa or MasterCard credit card issued by another bank.” RILA believes “it would be helpful to clarify that the Section [IV.B.4] will not derogate from the rights merchants are to be provided under Section IV.A of the Final Judgment.”
RILA is correct that Section IV.B.4 does not derogate from the rights provided in Section IV.A. Section IV.B.4 is intended to allow Visa and MasterCard to maintain network rules that prohibit merchants from engaging in steering based on the identity of the issuing bank (as the Amended Complaint does not challenge such rules). The proposed Final Judgment allows Visa and MasterCard to block merchants from discriminating against the cards of one issuing bank over another issuing bank, based on the identity of the bank. Section IV.B.4, however, does not limit the ability of merchants to steer on the basis of card brand or type. Therefore, in RILA's hypothetical example, Visa or MasterCard could not prohibit a merchant from steering from Bank A's rewards Visa card to Bank B's non-rewards Visa card on the basis of card type (rewards vs. non-rewards), even though the two cards were issued by different banks. Similarly, a merchant would be permitted to steer from Bank A's Visa to Bank B's MasterCard on the basis of brand (Visa vs. MasterCard). Section IV.B.4, however, does allow Visa and MasterCard to have rules prohibiting merchants from distinguishing between Bank A's and Bank B's General Purpose Cards based solely on the identities of the banks. Thus, Section IV.B.4 is not in conflict with the rights conferred by Section IV.A.
Sears Holdings Corporation, “the nation's fourth-largest broad line retailer,” states that it “supports the DOJ's and participating Attorneys General efforts to remove anti-competitive network rules that do not foster competition.” Sears proposes that Section IV.A.8 of the proposed Final Judgment “be interpreted to require that the networks and issuing banks clearly identify what type of account is being presented to the merchant so that the merchant could readily determine if a discount was warranted.” Sears believes this step is needed because “[u]nder current practices, the merchant cannot know from the face of the card which type of card is being presented.” The United States understands Sears' comment to be substantively identical to the comment submitted by RILA, to which the United States responded above.
Sears also comments that “[a]nother practice that has the effect of subverting the Proposed Final Judgment and Stipulation is the lack of standards for identifying commercial debit cards.” It explains that commercial debit cards “are assessed a much higher merchant discount fee” than consumer debit cards. The “lack of standards precludes the merchant from discerning which [debit] cards would qualify for the discount versus those that do not.”
Whatever the merits of this point, it is beyond the scope of this case. The Amended Complaint alleges violations relating only to the General Purpose Card product market, a market that does not include debit cards. Therefore, relief related to the labeling of debit cards is outside the scope of the Amended Complaint and is not part of the Court's review under the Tunney Act.
The proposed class of merchants in
The comment states that the proposed Final Judgment would be more effective if it were interpreted to allow two particular hypothetical practices. We will address each separately.
The comment describes the first practice as follows: “if merchants could display separate prices at the point of sale for purchases made on various methods of payment, the merchant could inform the consumer of the relative prices of payment methods without placing a `surcharge' on the transaction amount.”
Based on this description, it appears that this practice would be permitted by the proposed Final Judgment. In general, the proposed Final Judgment effectively removes restraints on a wide variety of merchant practices to encourage consumers to use a different payment option. With respect to this hypothetical practice—the display of “separate prices at the point of sale for purchases made on various methods of payment”—the United States notes that provisions of the proposed Final Judgment generally would not allow Visa or MasterCard to block this practice. First, the proposed Final Judgment permits merchants, without interference from Visa or MasterCard:
Merchants may also engage in “practices substantially equivalent” to these practices (§ IV.A.8). Thus, the proposed Final Judgment prevents Visa or MasterCard from prohibiting a merchant from displaying a list of various price options for an item depending on payment method.
The second hypothetical practice is described as follows: “if a consumer had a payment device that could process a transaction over multiple networks, a merchant could obtain a similar result by programming its POS device to offer the consumer the option of paying with the cheapest network first.” The same provisions of the proposed Final Judgment discussed in the preceding paragraph would also be relevant to this second practice. It is not clear from the comment what type of consumer “payment device” is envisioned, or what information the merchant's point-of-sale device would convey. However, Visa and MasterCard cannot prevent a merchant from promoting “a particular Brand or Type of General Purpose Card or a particular Form or Forms of Payment through * * * sequencing of payment choices * * * ” (§ IV.A.6). This provision allows merchants to prompt a customer at the point of sale to use one or more preferred means of payment.
The comment states that the Court's Tunney Act review “requires assessments of the future” that take into account not only the Proposed Final Judgment, but also events that have not yet come to pass, including “recently-enacted (but not yet implemented) legislation, the outcome of MDL 1720, the outcome of merchant litigation against American Express and future technological changes that may affect the relevant markets.” Comment at 3.
The comment makes the observation, which is applicable to all settlements, that there is some uncertainty about the future impact and effectiveness of any proposed relief. Markets can change over time to enhance or diminish the impact of a consent decree. Nevertheless, under the Act, the Court must base its decision on the facts in the record today. The United States' predictions about how the proposed Final Judgment will stimulate competition among General Purpose Card networks and benefit consumers,
The proposed Final Judgment is not measured by how it resolves all of the concerns about the General Purpose Card industry raised by the comment—concerns which, in most cases, are not mentioned in the Amended Complaint. The issue before the Court is whether the relief resolves the violation identified in the Amended Complaint in a manner that is within the reaches of the public interest. Although the case or the relief may be narrower than the commenter may prefer, the comment acknowledges that the asserted “narrowness of the Proposed Final Judgment does not by itself stand in the way of approval.” Comment at 14. The United States will continue to monitor the General Purpose Card industry and expressly retains the power to bring other enforcement actions where appropriate.
Lastly, the comment states that “this Court should consider in its retention of jurisdiction requiring periodic reports from the Department of Justice, Visa and MasterCard providing information and data regarding levels of interchange fees and the price discrimination by which Visa, MasterCard and their member banks have exercised their substantial market power.”
After careful consideration of the public comments, the United States concludes that entry of the proposed Final Judgment will provide an effective and appropriate remedy for the antitrust violations alleged in the Amended Complaint and is therefore in the public interest. Accordingly, after the comments and this Response are published, the United States will move this Court to enter the proposed Final Judgment.
I hereby certify that on June 14, 2011, I caused the Response of Plaintiff United States to Public Comments on the Proposed Final Judgment to be filed via the Court's CM/ECF system, which will electronically serve a copy upon the following:
Mississippi River Commission.
9 a.m., August 15, 2011.
On board MISSISSIPPI V at City Front, New Madrid, MO.
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the Memphis District; and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
9 a.m., August 16, 2011.
On board MISSISSIPPI V at Mud Island, Memphis, TN.
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the Memphis District; and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
9 a.m., August 17, 2011.
On board MISSISSIPPI V at Lake Providence Port, Lake Providence, MS.
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries; (2) District Commander's overview of current project issues within the Vicksburg District; and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
9 a.m., August 19, 2011.
On board MISSISSIPPI V at Port Commission, Morgan City, LA.
Open to the public.
(1) Summary report by President of the Commission on national and regional issues affecting the U.S. Army Corps of Engineers and Commission programs and projects on the Mississippi River and its tributaries;
(2) District Commander's overview of current project issues within the New Orleans District, and (3) Presentations by local organizations and members of the public giving views or comments on any issue affecting the programs or projects of the Commission and the Corps of Engineers.
Mr. Stephen Gambrell, telephone 601-634-5766.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
U.S. Office of Personnel Management (OPM).
Notice.
This gives notice of OPM decisions granting authority to make appointments under Schedules A, B, and C in the excepted service as required by 5 CFR 213.103.
Roland Edwards, Senior Executive Resource Services, Executive Resources and Employee Development, Employee Services, 202-606-2246.
Appearing in the April 1, 2011, and April 31, 2011. These notices are published monthly in the
No Schedule A authorities to report during April 2011.
No Schedule B authorities to report during April 2011.
The following Schedule C appointments were approved during April 2011.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218.
75 FR 37161 (June 24, 2011).
An item has been added to the closed portion of the meeting: Item 9—Personnel—discussion of the impact of an employment action on EEO reporting.
Stephen L. Sharfman, General Counsel, 202-789-6820.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 7034 regarding co-location fees for additional power and cable options. The text of the proposed rule change is available 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 Rule 7034 regarding co-location fees for additional power and cable options. The Exchange proposes to offer a new choice of a pair of power receptacles (60 amps 208 volts), which would provide enough power for a high density cabinet. The proposed fee for installation of the pair of the 60 amp 208 volt power receptacles is $3,000. There are ten other power choices already available and this new receptacle choice is being offered as more clients are requesting higher power density cabinets. Additionally, the Exchange proposes to offer a new choice of patch cable, twinaxial (otherwise known as “Twinax”) cables, in lengths of one meter to five meters. The proposed fee for the Twinax cables is $34 + $10 per meter. The Exchange is making the Twinax cables available as a convenience to customers, and notes that use of Exchange-provided patch cords is completely voluntary, and that such patch cords may be freely obtained from other vendors for use by customers in the datacenter.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange operates in a highly competitive market, in which exchanges offer co-location services as a means to facilitate the trading activities of those members who believe that co-location enhances the efficiency of their trading. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of such members. If a particular exchange charges excessive fees for co-location services, affected members will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including co-locating with a different exchange, placing their servers in a physically proximate location outside the exchange's data center, or pursuing trading strategies not dependent upon co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also revenues associated with the execution of orders routed to it by affected members. The Exchange believes that this competitive dynamic imposes powerful restraints on the ability of any exchange to charge unreasonable fees for co-location services.
It should be noted, however, that the costs associated with operating a co-location facility, like the costs of operating the electronic trading facility with which the co-location facility is associated, are primarily fixed costs, and in the case of co-location are primarily the costs of renting or owning data center space and retaining a staff of technical personnel. Accordingly, the Exchange establishes a range of co-location fees with the goal of covering these fixed costs, covering less significant marginal costs, such as the cost of electricity, and providing the Exchange a profit to the extent the costs are covered. Because fixed costs must be allocated among all customers, the Exchange's fee schedule reflects an effort to assess a range of relatively low fees for specific aspects of co-location services, which, in the aggregate, will allow the Exchange to cover its costs and to the extent the costs are covered, allow the Exchange to earn a profit.
In the case of the proposed fees for a pair of the 60 amp power receptacles and the Twinax cables, the proposed fees cover the marginal costs of establishing and maintaining the electrical installation, the costs of obtaining the cable equipment from the Exchange's vendors, and allow the Exchange to earn a profit; [sic] to the extent the costs are covered. Accordingly, the Exchange believes that it is reasonable to use fees assessed on this basis as a means to recoup a share of fixed costs associated with the proposed power and cable options, provide a convenience for the customers and to the extent the costs are covered, provide a profit to the Exchange.
The Exchange also notes that the fees charged by the Exchange are generally lower or comparable to prices charged by other exchanges or unregulated vendors for similar services. For instance, NYSE Arca, Inc. charges for the power installation by including it in a higher install for the co-location cabinet.
Furthermore, because the proposed services are available to all members through optional co-location services, the Exchange's fees for proposed co-location services are reasonable and equitably allocated across the membership. All co-location customers are offered the same range of products and services and there is no differentiation among customers with regard to the fees charged for a particular product, service, or piece of equipment.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 9, 2011, BATS Exchange, Inc. (the“Exchange” or “BATS”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
First, the Exchange proposes to change its order handling procedures to allow both Non-Displayed Orders
The Exchange's first proposed change noted above, amending BATS Rules 11.9 and 11.13, is intended to address two specific scenarios that currently exist on the Exchange: (1) Non-Displayed Orders posted opposite same-priced displayed orders and (2) orders subject to price sliding under BATS Rule 11.9(g) that are ranked at a price equal to an opposite-side displayed order (collectively “Resting Orders”).
The Exchange proposes to provide for the execution of these Resting Orders under certain circumstances. For bids or offers equal to or greater than $1.00 per share, in the event that an order submitted to the Exchange on the side opposite such Resting Order is a market order or a limit order priced more aggressively than the locking price, the Exchange proposes to amend BATS Rule 11.13 to provide for the execution of the Resting Order at, in the case of a Resting Order bid, one-half minimum price variation less than the locking price, and, in the case of a Resting Order offer, at one-half minimum price variation more than the locking price.
The Exchange notes that its proposal to modify its handling of Resting Orders is intended to address specific conditions that are a current, natural consequence of the Exchange's order handling procedures because such orders are priced at the very inside of the market but are temporarily un-executable at their full limit price due to the Exchange's priority rule and order handling procedures.
The Exchange's second proposed change is to clarify, by amending BATS Rule 11.9, that an order subject to NMS price sliding can be ranked at the same price as an order displayed on the other side of the BATS Book.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act
The Commission believes that the proposed order handling rule change providing for the execution, under certain circumstances, of certain Non-Displayed Orders and orders subject to price sliding that are not executable at their most aggressive prices should serve to enhance the quality of execution on the Exchange by facilitating executions that would not occur pursuant to the Exchange's current order handling process. In addition to facilitating executions that currently would not take place, the proposed rule change will offer price improvement to the orders executed under the new order handling process. The Commission believes that the new order handling process should benefit market participants by, among other things, providing greater opportunities for buy and sell orders to interact with each other and potentially reducing certain trading costs for market participants. The Commission further believes that any potential abuses are mitigated by the Exchange's addition of Interpretation and Policy .01 to BATS Rule 11.13 and its commitment to monitor relevant trading on its market. Additionally, the Commission believes that this proposed order handling process is consistent with Rule 612 of Regulation NMS because any executions in an increment smaller than $0.01 are the result of bids, offers or orders that are priced in increments at least equal to $0.01.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 9, 2011, BATS Y-Exchange, Inc.. (The “Exchange” or “BYX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
First, the Exchange proposes to change its order handling procedures to allow both Non-Displayed Orders
The Exchange's first proposed change noted above, amending BYX Rules 11.9 and 11.13, is intended to address two specific scenarios that currently exist on the Exchange: (1) Non-Displayed Orders posted opposite same-priced displayed orders and (2) orders subject to price sliding under BYX Rule 11.9(g) that are ranked at a price equal to an opposite-side displayed order (collectively “Resting Orders”).
The Exchange proposes to provide for the execution of these Resting Orders under certain circumstances. For bids or offers equal to or greater than $1.00 per share, in the event that an order submitted to the Exchange on the side opposite such Resting Order is a market order or a limit order priced more aggressively than the locking price, the Exchange proposes to amend BYX Rule 11.13 to provide for the execution of the Resting Order at, in the case of a Resting Order bid, one-half minimum price variation less than the locking price, and, in the case of a Resting Order offer, at one-half minimum price variation more than the locking price.
The Exchange notes that its proposal to modify its handling of Resting Orders is intended to address specific conditions that are a current, natural consequence of the Exchange's order handling procedures because such orders are priced at the very inside of the market but are temporarily un-executable at their full limit price due to the Exchange's priority rule and order handling procedures.
The Exchange's second proposed change is to clarify, by amending BYX Rule 11.9, that an order subject to NMS price sliding can be ranked at the same price as an order displayed on the other side of the BATS Book.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act
The Commission believes that the proposed order handling rule change providing for the execution, under certain circumstances, of certain Non-Displayed Orders and orders subject to price sliding that are not executable at their most aggressive prices should serve to enhance the quality of execution on the Exchange by facilitating executions that would not occur pursuant to the Exchange's current order handling process. In addition to facilitating executions that currently would not take place, the proposed rule change will offer price improvement to the orders executed under the new order handling process. The Commission believes that the new order handling process should benefit market participants by, among other things, providing greater opportunities for buy and sell orders to interact with each other and potentially reducing certain trading costs for market participants. The Commission further believes that any potential abuses are mitigated by the Exchange's addition of Interpretation and Policy .01 to BYX Rule 11.13 and its commitment to monitor relevant trading on its market. Additionally, the Commission believes that this proposed order handling process is consistent with Rule 612 of Regulation NMS because any executions in an increment smaller than $0.01 are the result of bids, offers or orders that are priced in increments at least equal to $0.01.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 7034 regarding co-location fees for additional power and cable options. The text of the proposed rule change is available 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 Rule 7034 regarding co-location fees for additional power and cable options. The Exchange proposes to offer a new choice of a pair of power receptacles (60 amps 208 volts), which would provide enough power for a high density cabinet. The proposed fee for installation of the pair of the 60-amp 208-volt power receptacles is $3,000. There are ten other power choices already available and this new receptacle choice is being offered as more clients are requesting higher power density cabinets. Additionally, the Exchange proposes to offer a new choice of patch cable, twinaxial (otherwise known as “Twinax”) cables, in lengths of one meter to five meters. The proposed fee for the Twinax cables is $34 + $10 per meter. The Exchange is making the Twinax cables available as a convenience to customers, and notes that use of Exchange-provided patch cords is completely voluntary, and that such patch cords may be freely obtained from other vendors for use by customers in the datacenter.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange operates in a highly competitive market, in which exchanges offer co-location services as a means to facilitate the trading activities of those members who believe that co-location enhances the efficiency of their trading. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of such members. If a particular exchange charges excessive fees for co-location services, affected members will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including co-locating with a different exchange, placing their servers in a physically proximate location outside the exchange's data center, or pursuing trading strategies not dependent upon co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also revenues associated with the execution of orders routed to it by affected members. The Exchange believes that this competitive dynamic imposes powerful restraints on the ability of any exchange to charge unreasonable fees for co-location services.
It should be noted, however, that the costs associated with operating a co-location facility, like the costs of operating the electronic trading facility with which the co-location facility is associated, are primarily fixed costs, and in the case of co-location are primarily the costs of renting or owning data center space and retaining a staff of technical personnel. Accordingly, the Exchange establishes a range of co-location fees with the goal of covering these fixed costs, covering less significant marginal costs, such as the cost of electricity, and providing the Exchange a profit to the extent the costs are covered. Because fixed costs must be allocated among all customers, the Exchange's fee schedule reflects an effort to assess a range of relatively low fees for specific aspects of co-location services, which, in the aggregate, will allow the Exchange to cover its costs and to the extent the costs are covered, allow the Exchange to earn a profit.
In the case of the proposed fees for a pair of the 60-amp power receptacles and the Twinax cables, the proposed fees cover the marginal costs of establishing and maintaining the electrical installation, the costs of obtaining the cable equipment from the Exchange's vendors, and allow the Exchange to earn a profit; to the extent the costs are covered. Accordingly, the Exchange believes that it is reasonable to use fees assessed on this basis as a means to recoup a share of fixed costs associated with the proposed power and cable options, provide a convenience for the customers and to the extent the costs are covered, provide a profit to the Exchange.
The Exchange also notes that the fees charged by the Exchange are generally lower or comparable to prices charged by other exchanges or unregulated vendors for similar services. For instance, NYSE Arca, Inc. charges for the power installation by including it in a higher install for the co-location cabinet.
Furthermore, because the proposed services are available to all members through optional co-location services, the Exchange's fees for proposed co-location services are reasonable and equitably allocated across the membership. All co-location customers are offered the same range of products and services and there is no differentiation among customers with regard to the fees charged for a particular product, service, or piece of equipment.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 8.
This is an amendment of the Presidential declaration of a major disaster for the State of Arkansas (FEMA-1975-DR), dated 05/02/2011.
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 Presidential disaster declaration for the State of ARKANSAS, dated 05/02/2011 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of North Dakota (FEMA-1981-DR), dated 05/10/2011.
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 North Dakota, dated 05/10/2011, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for the State of North Carolina (FEMA-1969-DR), dated 04/19/2011.
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 Presidential disaster declaration for the State of North Carolina, dated 04/19/2011 is hereby amended to include the following areas as adversely affected by the disaster:
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the government for maturities similar to the average SBA direct loan. This rate may be used as a base rate for guaranteed fluctuating interest rate SBA loans. This
Pursuant to 13 CFR 120.921(b), the maximum legal interest rate for any third party lender's commercial loan which funds any portion of the cost of a 504 project (
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of North Dakota (FEMA-1981-DR), dated 06/24/2011.
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 06/24/2011, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 126536 and for economic injury is 126540.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Indiana (FEMA-1997-DR), dated 06/23/2011.
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 06/23/2011, 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 number assigned to this disaster for physical damage is 12651B and for economic injury is 12652B.
Tennessee Valley Authority.
60-Day notice of submission of information collection approval and request for comments.
The proposed information collection described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). The Tennessee Valley Authority is soliciting public comments
Requests for information, including copies of the information collection proposed and supporting documentation, should be directed to the Agency Clearance Officer: Mark Winter, Tennessee Valley Authority, 1101 Market Street (MP-3C), Chattanooga, Tennessee 37402-2801; (423) 751-6004.
Comments should be sent to the Agency Clearance Officer no later than
Office of the Secretary of Transportation, DOT.
Interim notice of funding availability, request for comments.
This interim notice announces the availability of funding and requests proposals for the Department of Transportation's National Infrastructure Investments, or “TIGER Discretionary Grants.” In addition, this interim notice announces selection criteria and pre-application and application requirements for these grants.
On April 15, 2011, the President signed the Full-Year Continuing Appropriations, 2011 (Div. B of the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (Pub. L. 112-010, Apr. 15, 2011)) (“FY 2011 Continuing Appropriations Act”). The FY 2011 Continuing Appropriations Act appropriated $526.944 million to be awarded by the Department of Transportation (“DOT”) for National Infrastructure Investments. This appropriation is similar, but not identical to the appropriation for the Transportation Investment Generating Economic Recovery, or “TIGER Discretionary Grant”, program authorized and implemented pursuant to the American Recovery and Reinvestment Act of 2009 (the “Recovery Act”), and the National Infrastructure Investments or “TIGER II Discretionary Grant” program under the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act for 2010 (“FY 2010 Appropriations Act”). Because of the similarity in program structure, DOT has referred to the grants for National Infrastructure Investments under the FY 2010 Appropriations Act as “TIGER II Discretionary Grants”. Given that funds have now been appropriated for these similar programs in three separate statutes, DOT is referring to the grants for National Infrastructure Investments under the FY 2011 Continuing Appropriations Act simply as “TIGER Discretionary Grants.” As with the TIGER and TIGER II programs, funds for the FY2011 TIGER program are to be awarded on a competitive basis for projects that will have a significant impact on the Nation, a metropolitan area or a region. Through this interim notice, DOT is soliciting applications for TIGER Discretionary Grants.
This interim notice requests comments on the proposed selection criteria and guidance for awarding funds. DOT will take all comments into consideration and may publish a supplemental notice revising some elements of this notice. If substantive changes to this notice are necessary, DOT will publish a supplemental Federal Register notice. In the event that this solicitation does not result in the award and obligation of all available funds, DOT may decide to publish an additional solicitation(s).
Comments must be received by July 18, 2011, at 5 p.m. EDT. Late-filed comments will be considered to the extent practicable. Pre-applications should be submitted by October 3, 2011, at 5 p.m. EDT (the “Pre-Application Deadline”). Final applications must be submitted through Grants.gov by October 31, 2011, at 5 p.m. EDT (the “Application Deadline”). The DOT pre-application system will open on or before August 23, 2011 to allow prospective applicants to submit pre-applications. Subsequently, the Grants.gov “Apply” function will open on October 5, 2011, allowing applicants to submit applications. While applicants are encouraged to submit pre-applications in advance of the Pre-Application Deadline, pre-applications will not be reviewed until after the pre-application deadline. Similarly, while applicants are encouraged to submit applications in advance of the Application Deadline, applications will not be evaluated, and awards will not be made, until after the Application Deadline.
For further information concerning this notice please contact the TIGER Discretionary Grant program manager via e-mail at
This notice is substantially similar to the Final notice published for the TIGER II Discretionary Grant program in the
1. Unlike the FY 2010 Appropriations Act, the FY 2011 Continuing Appropriations Act does not provide any funding for projects solely for the planning, preparation, or design of capital projects (“TIGER Planning Grants”); however these activities may be eligible to the extent that they are part of an overall construction project that receives TIGER Discretionary Grants funding
2. As specified in section VI of this notice, any applicant that is applying for a TIGER TIFIA Payment must also submit a TIFIA letter of interest along with their application.
3. As specified in section VII (A) of this notice, eligible applicants may submit, as a lead applicant, no more than three applications for consideration. However, multistate applications, will not count towards the lead applicant's three application limit. Additionally, applicants may be identified as a partnering agency on the application of another lead applicant and such an application will not count towards a partnering applicant's three application limit as a lead applicant.
On February 17, 2009, the President of the United States signed the Recovery Act, which appropriated $1.5 billion of discretionary grant funds to be awarded by DOT for capital investments in surface transportation infrastructure. DOT has referred to these grants as Grants for Transportation Investment Generating Economic Recovery or “TIGER Discretionary Grants”. DOT solicited applications for TIGER Discretionary Grants through a notice of funding availability published in the
On December 16, 2009, the President signed the FY 2010 Appropriations Act that appropriated $600 million to DOT for National Infrastructure Investments using language that was similar, but not identical, to the language in the Recovery Act authorizing the TIGER Discretionary Grants. DOT has referred to those grants for National Infrastructure Investments as TIGER II Discretionary Grants.
The FY 2010 Appropriations Act permitted DOT to use an amount not to exceed $35 million of the available TIGER II funds for projects that involved solely the planning, preparation, or design of Eligible Projects, and not their construction (“TIGER II Planning Grants”). The Recovery Act did not explicitly provide funding for similar activities under the TIGER Discretionary Grant program.
DOT solicited applications for TIGER II Discretionary Grants through a notice of funding availability published in the
On April 15, 2011, the President signed the FY 2011 Continuing Appropriations Act. This Act appropriated $526.944 million to DOT for National Infrastructure Investments using language that is similar, but not identical to the language in the FY 2010 Appropriations Act authorizing the TIGER II Discretionary Grants. DOT is referring to these grants for National Infrastructure Investments as TIGER Discretionary Grants.
The most significant difference between the 2010 and 2011 appropriations is that there is no funding available for TIGER Planning Grants in the 2011 Act.
Section 1101 of the FY 2011 Continuing Appropriations Act, Title I—General Provisions, states that the appropriations are for such amounts as may be necessary, at the level specified and under the authority and conditions provided in applicable appropriations Act for fiscal year 2010, for projects or activities for which appropriations, funds, or other authority were made available under the Consolidated Appropriations Act, 2010 (Pub. L. 111-117). Because of this general provision in the FY 2011 Continuing Appropriations Act, DOT is applying the authority and conditions outlined in the following section.
Like the TIGER and TIGER II Discretionary Grants, this year's TIGER Discretionary Grants are for capital investments in surface transportation infrastructure and are to be awarded on a competitive basis for projects that will have a significant impact on the Nation, a metropolitan area, or a region. Key requirements of the TIGER Discretionary Grant program are summarized below, and material differences from the previous TIGER Discretionary Grant programs are highlighted.
“Eligible Applicants” for TIGER Discretionary Grants are State, local, and tribal governments, including U.S. territories, tribal governments, transit agencies, port authorities, metropolitan planning organizations (MPOs), other political subdivisions of State or local governments, and multi-State or multi-jurisdictional groups applying through a single lead applicant (for multi-jurisdictional groups, each member of the group, including the lead applicant, must be an otherwise eligible applicant as defined in this paragraph).
Projects that are eligible for TIGER Discretionary Grants under the FY 2011 Continuing Appropriations Act (“Eligible Projects”) include, but are not limited to: (1) highway or bridge projects eligible under title 23, United States Code; (2) public transportation projects eligible under chapter 53 of title 49, United States Code; (3) passenger and freight rail transportation projects; and (4) port infrastructure investments. Federal wage rate requirements included in subchapter IV of chapter 31 of title 40, United States Code, apply to all projects receiving funds. This description of Eligible Projects is identical to the description of eligible projects under the TIGER II Discretionary Grant program.
However, while in the past applicants could submit as many applications as they wished, for the Fiscal Year 2011 TIGER Discretionary Grant Program, to help ensure that applicants submit only those applications that are most likely to align well with DOT's selection criteria, each applicant may submit no more than three applications for consideration. While applications may include requests to fund more than one project, applicants should not bundle together unrelated projects in the same application for purposes of avoiding the three application limit that applies to each applicant. Please note that the three application limit applies only to applications where the applicant is the lead applicant, and there is no limit on applications for which an applicant can be listed as a partnering agency. Also, DOT will not count any application for a multistate project against the three application limit to the extent multiple states are partnering to submit the application.
The FY 2011 Continuing Appropriations Act requires a new solicitation of applications and, therefore, any unsuccessful applicant for a TIGER or TIGER II Discretionary Grant that wishes to be considered for a TIGER Discretionary Grant this year must reapply according to the procedures in this notice. Additionally, TIGER II planning grant recipients must reapply to be considered for a TIGER Discretionary Grant for capital funding, if they meet the eligibility criteria and schedule requirements for TIGER and are ready to proceed to the construction phase of the project.
The FY 2011 Continuing Appropriations Act specifies that TIGER Discretionary Grants may be not less than $10 million (except in rural areas) and not greater than $200 million. Based on DOT's experience with the TIGER and TIGER II Discretionary Grant programs, it is unlikely that the $200 million maximum grant size for this year's TIGER Discretionary Grant program will be reached for any project. The FY 2011 Continuing Appropriations Act, like the FY 2010 Appropriations Act, does not provide authority to waive the minimum $10 million grant size for TIGER Discretionary Grants. For projects located in rural areas (as defined in section V
Pursuant to the FY 2011 Continuing Appropriations Act, no more than 25 percent of the funds made available for TIGER Discretionary Grants (or $131.736 million) may be awarded to projects in a single State. This maximum State share is consistent with the maximum State share under the TIGER II Discretionary Grants program. The comparable figure for TIGER II Discretionary Grants was also 25 percent (or $150 million).
The FY 2011 Continuing Appropriations Act directs that not less than $140 million of the funds provided for TIGER Discretionary Grants is to be used for projects located in rural areas. The comparable amount set aside for rural areas under the FY 2010 Appropriations Act was also $140 million. In awarding TIGER Discretionary Grants pursuant to the FY 2011 Continuing Appropriations Act, DOT must take measures to ensure an equitable geographic distribution of grant funds, an appropriate balance in addressing the needs of urban and rural areas and the investment in a variety of transportation modes. The FY 2010 Appropriations Act included the same provisions for the TIGER II Discretionary Grant program.
TIGER Discretionary Grants may be used for up to 80 percent of the costs of a project, but priority must be given to projects for which Federal funding is required to complete an overall financing package and projects can increase their competitiveness by demonstrating significant non-Federal contributions.
The Recovery Act required DOT to give priority to projects that were expected to be completed by February 17, 2012. Like the FY 2010 Appropriations Act, the FY 2011 Continuing Appropriations Act does not include any similar requirements for the TIGER Discretionary Grants, although this year's TIGER funds are only available for obligation through September 30, 2013. The limited amount of time for which the funds will be made available means that DOT will consider the extent to which a project is ready to proceed with obligation of grant funds when evaluating applications.
The Recovery Act emphasized the generation of near-term economic effects from expenditures on project costs, such as construction job creation. However, the FY 2010 and FY 2011 Continuing Appropriations Acts do not include explicit emphasis on job creation and instead focus more broadly on the impact of projects on the Nation, a metropolitan area, or a region including the medium and long-term benefits that would accrue post-project completion. Therefore, in all cases, TIGER Discretionary Grant applications will need to be competitive on the merits of the medium to long-term impacts of the projects themselves, as demonstrated by a project's alignment with the Long-Term Outcomes selection criterion described in Section II(A) (Selection Criteria) below. However, because communities nationwide continue to face difficult economic circumstances, including high unemployment, DOT will also continue to incorporate near-term impacts like job creation in its evaluation of TIGER applications, as demonstrated by a project's alignment with the Job Creation & Near-Term Economic Activity selection criterion described in Section II(A) below. Consideration of near-term benefits will apply particularly in the case of projects that will employ people in Economically Distressed Areas as discussed in more detail in Section II(A) below.
The FY 2011 Continuing Appropriations Act allows for an amount not to exceed $150 million of the $526.944 million to be used to pay the subsidy and administrative costs of the Transportation Infrastructure Finance and Innovation Act of 1998 (“TIFIA”) program, a Federal credit assistance program, if it would further the purposes of the TIGER Discretionary Grant program. DOT is referring to these payments as “TIGER TIFIA Payments.” The FY 2010 Appropriations Act also authorized DOT to use up to $150 million of the amount available for TIGER II Discretionary Grants for similar purposes.
Based on the subsidy amounts required for projects in the TIFIA program's existing portfolio, DOT estimates that $150 million of TIGER TIFIA Payments could support approximately $1.5 billion in TIFIA credit assistance. The amount of budget authority required to support TIFIA credit assistance is calculated on a project-by-project basis. Applicants for TIGER TIFIA Payments should submit an application pursuant to this notice and a separate TIFIA letter of interest, as described below in Section VI (
DOT reserves the right to offer a TIGER TIFIA Payment to an applicant that applied for a TIGER Discretionary Grant even if DOT does not choose to fund the requested TIGER Discretionary Grant and the applicant did not specifically request a TIGER TIFIA Payment. Therefore, as described below in Section VI (
The FY 2011 Continuing Appropriations Act provides that the Secretary of Transportation may retain up to $25 million of the $526.944 million to fund the award and oversight of TIGER Discretionary Grants. Portions of the $25 million may be transferred for these purposes to the Administrators of the Federal Highway Administration, the Federal Transit Administration, the Federal Railroad Administration, and the Federal Maritime Administration.
The purpose of this notice is to solicit applications for TIGER Discretionary Grants.
This section specifies the criteria that DOT will use to evaluate applications for TIGER Discretionary Grants. The criteria incorporate the statutory eligibility requirements for this program, which are specified in this notice as relevant. This section is divided into two parts. Part A (
TIGER Discretionary Grants will be awarded based on the selection criteria as outlined below. There are two categories of selection criteria, “Primary Selection Criteria” and “Secondary Selection Criteria.”
The Primary Selection Criteria include (1) Long-Term Outcomes and (2) Job Creation & Near-Term Economic Activity. The Secondary Selection Criteria include (1) Innovation and (2) Partnership. The Primary Selection Criteria are intended to capture the primary objective of the TIGER provisions of the FY 2011 Continuing Appropriations Act, which is to invest in infrastructure projects that will have a significant impact on the Nation, a metropolitan area, or a region. The Secondary Selection Criteria are intended to capture the benefits of new and/or innovative approaches to achieving this programmatic objective.
DOT will give priority to projects that have a significant impact on desirable long-term outcomes for the Nation, a metropolitan area, or a region. Applications that do not demonstrate a likelihood of significant long-term benefits in this criterion will not proceed in the evaluation process. The following types of long-term outcomes will be given priority:
(i)
(ii)
(iii)
(iv)
(v)
While the TIGER Discretionary Grant program is not a Recovery Act program, job creation and near-term economic activity remain a top priority of this Administration; therefore, DOT will give priority (as it did for the TIGER and TIGER II Discretionary Grant programs) to projects that are expected to quickly create and preserve jobs and promote rapid increases in economic activity, particularly jobs and activity that benefit economically distressed areas as defined by section 301 of the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. 3161) (“Economically Distressed Areas”).
DOT will give priority to projects that use innovative strategies to pursue the long-term outcomes outlined above.
DOT will give priority to projects that demonstrate strong collaboration among a broad range of participants and/or integration of transportation with other public service efforts.
The following additional guidance explains how DOT will evaluate each of the selection criteria identified above in Section II(A) (Selection Criteria). Applicants are encouraged to demonstrate the responsiveness of a project to any and all of the selection criteria with the most relevant information that applicants can provide, regardless of whether such information has been specifically requested, or identified, in this notice. Any such information shall be considered part of the application, not supplemental, for purposes of the application size limits specified below in Section VII(D) (
In order to measure a project's alignment with this criterion, DOT will assess the public benefits generated by the project, as measured by the extent to which a project produces one or more of the following outcomes.
(i)
(ii)
Priority consideration will be given to projects that: (i) Improve long-term efficiency, reliability or cost-competitiveness in the movement of workers or goods (including, but not limited to, projects that have a significant effect on reducing the costs of transporting export cargoes), or (ii) make improvements that increase the economic productivity of land, capital or labor at specific locations, particularly Economically Distressed Areas. Applicants may propose other methods of demonstrating a project's contribution to the economic competitiveness of the country and such methods will be reviewed on a case-by-case basis.
Economic competitiveness may be demonstrated by the project's ability to increase the efficiency and effectiveness of the transportation system through integration or better use of all existing transportation infrastructure (which may be evidenced by the project's involvement with or benefits to more than one mode and/or its compatibility with and preferably augmentation of the capacities of connecting modes and facilities), but only to the extent that these enhancements lead to the economic benefits that are identified in the opening paragraph of this section.
For purposes of demonstrating economic benefits, applicants should estimate National-level or region-wide economic benefits on productivity and production (
Finally, the TIGER program strives to promote long-term economic growth in a manner that will be sustainable for generations to come. Therefore, for projects designed to enhance economic competitiveness, applicants should also provide evidence that the project will achieve the goals of this outcome in an environmentally sustainable manner. To satisfy this condition, applicants should reference the fourth criterion in this Section II(B) “Environmental Sustainability” for more information on what features promote sustainable growth and be sure to address the extent to which sustainability features are incorporated into the proposed project's economic impact.
(iii)
(1) Will significantly enhance or reduce the average cost of user mobility through the creation of more convenient transportation options for travelers;
(2) will improve existing transportation choices by enhancing points of modal connectivity, increasing the number of modes accommodated on existing assets, or reducing congestion on existing modal assets;
(3) will improve accessibility and transport services for economically disadvantaged populations, non-drivers, senior citizens, and persons with disabilities, or will make goods, commodities, and services more readily available to these groups; and/or
(4) is the result of a planning process which coordinated transportation and land-use planning decisions and encouraged community participation in the process.
Livability improvements may include projects for new or improved biking and walking infrastructure. Particular attention will be paid to the degree to which such projects contribute significantly to broader traveler mobility through intermodal connections, enhanced job commuting options, or improved connections between residential and commercial areas. Projects that appear designed primarily as isolated recreational facilities and do not enhance traveler mobility as described above will not be funded.
(iv)
(1) improve energy efficiency, reduce dependence on oil and/or reduce greenhouse gas emissions, (applicants are encouraged to provide quantitative information regarding expected reductions in emissions of CO
(2) maintain, protect or enhance the environment, as evidenced by its avoidance of adverse environmental impacts (for example, adverse impacts related to air or water quality, wetlands, and endangered species) and/or by its environmental benefits (for example, improved air quality, wetlands creation or improved habitat connectivity).
Applicants are encouraged to provide quantitative information that validates the existence of substantial transportation-related costs related to energy consumption and adverse environmental effects and evidence of the extent to which the project will reduce or mitigate those costs.
(v)
Therefore, applicants for TIGER Discretionary Grants are generally required to identify, quantify, and compare expected benefits and costs, subject to the following qualifications:
All applicants will be expected to prepare an analysis of benefits and costs; however, DOT understands that the level of expense that can be expected in these analyses for surveys, travel demand forecasts, market forecasts, statistical analyses, and so on will be less for smaller projects than for larger projects. The level of resources devoted to preparing the benefit-cost analysis should be reasonably related to the size of the overall project and the amount of grant funds requested in the application. Any subjective estimates of benefits and costs should still be quantified, and applicants are expected to provide whatever evidence they have available to lend credence to their subjective estimates. Estimates of benefits should be presented in monetary terms whenever possible; if a monetary estimate is not possible, then at least a quantitative estimate (in physical, non-monetary terms, such as ridership estimates, emissions levels, etc.) should be provided.
The lack of a useful analysis of expected project benefits and costs may be the basis for denying an award of a TIGER Discretionary Grant to an applicant. If it is clear to DOT that the total benefits of a project are not reasonably likely to outweigh the project's costs, DOT will not award a TIGER Discretionary Grant to the project. Consistent with the broader goals of DOT and the FY 2011 Continuing Appropriations Act, DOT can consider some factors that do not readily lend themselves to quantification or monetization, including equitable geographic distribution of grant funds and an appropriate balance in addressing the needs of urban and rural areas and investment in a variety of transportation modes.
Detailed guidance for the preparation of benefit-cost analyses is provided in
DOT recognizes that some categories of costs and benefits are more difficult to quantify or monetize than others. In presenting benefit-cost analyses, applicants should include qualitative discussion of the categories of benefits and costs that they were not able to quantify, noting that these benefits and costs are in addition to other benefits and costs that were quantified. However, in the event of an unreasonable absence of data and analysis, or poor applicant effort to put forth a robust quantification of benefits and costs, the application is unlikely to receive further consideration. In general, the lack of a useful analysis comparing benefits and costs for any such project is ground for denying the award of a TIGER Discretionary Grant.
In order to measure a project's alignment with this criterion, DOT will assess whether the project promotes the short- or long-term creation or preservation of jobs and whether the project rapidly promotes new or expanded business opportunities during construction of the project or thereafter. Demonstration of a project's rapid economic impact is critical to a project's alignment with this criterion. Applicants are encouraged to provide information to assist DOT in making these assessments, including the total amount of funds that will be expended on construction and construction-related activities by all of the entities participating in the project and, to the extent measurable, the number and type of jobs to be created and/or preserved by the project by calendar quarters during construction and annually thereafter. Applicants should also identify any business enterprises to be created or benefited by the project during its construction and once it becomes operational.
Consistent with the Recovery Act, the Updated Implementing Guidance for the American Recovery and Reinvestment Act of 2009 issued by the Office of Management and Budget (“OMB”) on April 3, 2009 (the “OMB Guidance”), which were applied both to TIGER I and TIGER II, and which DOT will continue to apply to the TIGER Discretionary Grants program as a matter of policy, and consistent with applicable Federal laws, applicants are encouraged to provide information to assist DOT in assessing (1) whether the project will promote the creation of job opportunities for low-income workers through the use of best practice hiring programs and apprenticeship (including pre-apprenticeship) programs; (2) whether the project will provide maximum practicable opportunities for small businesses and disadvantaged business enterprises, including veteran-owned small businesses and service disabled veteran-owned small businesses; (3) whether the project will make effective use of community-based organizations in connecting disadvantaged workers with economic opportunities; (4) whether the project will support entities that have a sound track record on labor practices and compliance with Federal laws ensuring that American workers are safe and treated fairly; and (5) whether the project implements best practices, consistent with our Nation's civil rights and equal opportunity laws, for
To the extent possible, applicants should indicate whether the populations most likely to benefit from the creation or preservation of jobs or new or expanded business opportunities are from Economically Distressed Areas. In addition, to the extent possible, applicants should indicate whether the project's procurement plan is likely to create follow-on jobs and near-term economic activity for manufacturers and suppliers that support the construction industry. A key consideration in assessing projects under this criterion will be how quickly jobs are created.
In evaluating a project's alignment with this criterion, DOT will assess whether a project is ready to proceed rapidly upon receipt of a TIGER Discretionary Grant, as evidenced by:
(i)
(ii)
To demonstrate satisfaction of this requirement, applicants should provide assurances with their pre-applications and evidence with their applications that NEPA review is complete or substantially complete and submit relevant draft or final NEPA documentation—preferably by way of a Web site link—for DOT review. DOT is unlikely to select a project for TIGER Discretionary Grant funding if it involves, or potentially involves, significant environmental impacts and has not begun or has not substantially completed required environmental and regulatory reviews. For such projects that have not begun, or have not substantially completed these reviews, it may be difficult to complete environmental and regulatory review as well as all activities needed to be complete prior to construction and meet the obligation deadline of September 30, 2013.
DOT will consider exceptions to the requirement that NEPA be substantially complete upon application in accordance with this paragraph. If an applicant has not substantially completed the NEPA process the applicant should provide information on the project's current status in the NEPA process and an estimate of the latest date that the NEPA process is reasonably expected to be completed. If an applicant has not initiated the NEPA process the applicant must provide a reasonable justification for why the NEPA process has not yet been initiated as of the date of this notice, and an assurance that the necessary environmental reviews can be completed with enough time for any post-NEPA, pre-obligation activities to be completed by June 30, 2013, in order to give DOT comfort that all of the TIGER Discretionary Grant funds are likely to be obligated in advance of the September 30, 2013 statutory deadline, and that any unexpected delays will not put TIGER Discretionary Grant funds at risk of expiring before they can be obligated (see
An applicant seeking to justify an exception to this requirement should submit the information listed below with its application:
a. The information required under Sections VII(C)(2)(V) and VII(F)-(G) (
b. Environmental studies or other documents—preferably by way of a Web site link—that describe in detail known potential project impacts, and possible mitigation for those impacts;
c. A description of completed, or planned and anticipated coordination with Federal and State regulatory agencies for permits and approvals;
d. An estimate of the time required for completion of NEPA and all other required Federal, State or local environmental approvals; and
e. An identification of the proposed NEPA class of action (
(iii)
(iv)
(v)
(vi)
DOT reserves the right to revoke any award of TIGER Discretionary Grant funds and to award such funds to another project to the extent that such funds are not timely expended and/or construction does not begin in accordance with the project schedule. Because projects have different schedules DOT will consider on a case-by-case basis how much time after selection for award of a TIGER Discretionary Grant each project has before funds must be obligated (consistent with law) and construction started. This deadline will be specified for each TIGER Discretionary Grant in the project-specific grant agreements signed by the grant recipients and will be based on critical path items identified by applicants in response to items (i) through (vi) above, but all deadlines will reflect DOT's preference that pre-conditions be complete and TIGER Discretionary Grants funds obligated on or before June 30, 2013 in order to give DOT comfort that all TIGER Discretionary Grant funds will be obligated before the statutory deadline of September 30, 2013. For example, if an applicant reasonably anticipates that NEPA requirements will be completed and a final decision made within 30 to 60 days of announcement of the award of a TIGER Discretionary Grant, this timeframe will be taken into account in evaluating the application, but also in establishing a deadline for obligation of funds and commencement of construction. By statute, DOT's ability to obligate funds for TIGER Discretionary Grants expires on September 30, 2013 and DOT has no authority to extend the deadline.
In order to measure a project's alignment with this criterion, DOT will assess the extent to which the project uses innovative technology (including, for example, intelligent transportation systems, dynamic pricing, rail wayside or on-board energy recovery, smart cards, real-time dispatching, active traffic management, radio frequency identification (RFID), or others) to pursue one or more of the long-term outcomes outlined above and/or to significantly enhance the operational performance of the transportation system. DOT will also assess the extent to which the project incorporates innovations that demonstrate the value of new approaches to, among other things, transportation funding and finance, contracting, project delivery, congestion management, safety management, asset management, or long-term operations and maintenance. The applicant should clearly demonstrate that the innovation is designed to pursue one or more of the long-term outcomes outlined above and/or significantly enhance the transportation system.
Innovative, multi-modal projects are often difficult to fund under traditional transportation programs. DOT will consider the extent to which innovative projects might be difficult to fund under other programs and will give priority to projects that align well with the Primary Selection Criteria but are unlikely to receive funding under traditional programs.
(i)
In compliance with the FY 2011 Continuing Appropriations Act, DOT will give priority to projects for which a TIGER Discretionary Grant will help to complete an overall financing package. An applicant should clearly demonstrate in the application the extent to which the project cannot be readily and efficiently completed without Federal assistance, and the extent to which other sources of Federal assistance are or are not readily available for the project. DOT will assess the amount of private debt and equity to be invested in the project or the amount of co-investment from State, local or other non-profit sources.
DOT will also assess the extent to which the project application demonstrates collaboration among neighboring or regional jurisdictions to achieve National, regional or metropolitan benefits. Multiple States or jurisdictions may submit a joint application and should identify a lead State or jurisdiction as the primary point of contact. Where multiple States or jurisdictions are submitting a joint application, the application should demonstrate how the project costs are apportioned between the States or jurisdictions to assist DOT in making the distributional determinations described below in Section III(C) (
(ii)
TIGER Discretionary Grant applications will be evaluated in accordance with the below discussed
1. The project is an Eligible Project;
2. NEPA is complete or underway, as described above in Section II(B)(2)(b)(ii) (
3. The project is included in the relevant State, metropolitan, and local planning documents, or will be included, if applicable;
4. The project expects to be ready to obligate all of the TIGER Discretionary Grant funds no later than June 30, 2013;
5. Local matching funds to support 20 percent or more of the costs for the project are identified and committed.
To the extent the pre-application evaluation team determines that a pre-application does not satisfy these key threshold requirements, DOT will inform the project sponsor that an application for the project will not be reviewed unless the application submitted on or prior to the Application Deadline can demonstrate that the requirement has been addressed.
DOT will establish application evaluation teams to review each application that is received by DOT prior to the Application Deadline. These evaluation teams will be organized and led by the Office of the Secretary and will include members from each of the Cognizant Modal Administrations. These representatives will include technical and professional staff with relevant experience and/or expertise. The evaluation teams will be responsible for evaluating and rating all of the projects and making funding recommendations to the Secretary. The evaluation process will require team members to evaluate and rate applications individually before convening with other members to discuss ratings. The composition of the evaluation teams will be finalized after the Pre-Application Deadline, based on the number and nature of pre-applications received.
DOT will not assign specific numerical scores to projects based on the selection criteria outlined above in Section II(A) (
DOT will give more weight to the two Primary Selection Criteria (
For the Job Creation & Near-Term Economic Activity criterion, projects need not receive a rating of “highly recommended” in order to be recommended for funding, although a project that is not ready to proceed quickly, as evidenced by the items requested in Section II(B)(1)(b)(i)-(vi) (
The following table summarizes the weighting of the selection criteria, as described in the preceding paragraphs:
As noted below in Section III(C) (
To be selected for a TIGER Discretionary Grant, a project must be an Eligible Project and the applicant must be an Eligible Applicant. DOT may consider one or more components of a large project to be an Eligible Project, but only to the extent that the components have independent utility, meaning the components themselves, not the project of which they are a part, are Eligible Projects and satisfy the selection criteria identified above in Section II(A) (
To the extent that an application requests a substantial amount of grant funds for a larger project or a group of related projects, DOT reserves the right to award funds for a part of the project, not the full project, if a part of the project has independent utility and aligns well with the selection criteria specified in this notice. To the extent applicants expect that DOT may wish to consider funding one or more parts of a project and not the full project that is the subject of the application, then applicants should clearly identify in their applications the separate parts of the project and the benefits that each part of the project provides, and how these benefits align with the selection criteria. Similarly, if a project is not viable unless DOT funds the full project, this should be stated in the application.
As noted above in Section I (
As noted above in Section II(B)(2)(b)(i) (
In the interest of transparency, DOT will disclose as much of the information related to its evaluation process as is practical and consistent with law. DOT expects that the TIGER Discretionary Grant program may be reviewed and/or audited by Congress, the U.S. Government Accountability Office, DOT's Inspector General, or others, and has taken, and will continue to take steps to document its decisionmaking process.
DOT expects that each TIGER Discretionary Grant will be administered by one of the Cognizant Modal Administration, pursuant to a grant agreement between the TIGER Discretionary Grant recipient and the Cognizant Modal Administration. In accordance with the FY 2011 Continuing Appropriations Act, the Secretary has the discretion to delegate such responsibilities to the appropriate operating administration.
Applicable Federal laws, rules and regulations of the Cognizant Modal Administration administering the project will apply to projects that receive TIGER Discretionary Grants.
As noted above in Section II(B)(1)(b) (
The FY 2011 Continuing Appropriations Act directs that not less than $140 million of the funds provided for TIGER Discretionary Grants are to be used for projects in rural areas. For purposes of this notice, DOT is generally defining “rural area” as any area not in an Urbanized Area, as such term is defined by the Census Bureau,
For projects located in rural areas the FY 2011 Appropriation Act does not require matching funds (although the
Up to $150 million of the $526.944 million available for TIGER Discretionary Grants may be used for TIGER TIFIA Payments. Based on the average subsidy cost of the existing TIFIA portfolio, $150 million in TIGER TIFIA Payments could support approximately $1.5 billion in Federal credit assistance.
Applicants seeking TIGER TIFIA Payments should apply in accordance with all of the criteria and guidance specified in this notice for TIGER Discretionary Grant applications and will be evaluated concurrently with all other applicants. Any applicant seeking a TIGER TIFIA Payment is also required to submit a TIFIA letter of interest concurrent with the TIGER TIFIA Payment application. If selected for a TIGER TIFIA Payment, the applicant must comply with all of the TIFIA program's standard application and approval requirements including submission of a complete TIFIA application and $50,000 application fee (the TIFIA program guide can be downloaded from
Applicants should demonstrate that the TIFIA loan will be ready to close on or before September 30, 2013, in accordance with the guidance specified above in Section II(B)(1)(b) (
Applicants seeking TIGER TIFIA Payments may also apply for a TIGER Discretionary Grant for the same project and must indicate the type(s) of funding for which they are applying clearly on the face of their applications. An applicant for a TIGER TIFIA Payment must submit an application pursuant to this notice for a TIGER TIFIA Payment even if it does not wish to apply for a TIGER Discretionary Grant.
DOT reserves the right to offer a TIGER TIFIA Payment to an applicant that applied for a TIGER Discretionary Grant even if DOT does not choose to fund the requested TIGER Discretionary Grant request and the applicant did not request a TIGER TIFIA Payment. Therefore, applicants for TIGER Discretionary Grants, particularly applicants that require a substantial amount of funds to complete a financing package, should indicate whether or not they have considered applying for a TIGER TIFIA Payment. To the extent an applicant thinks that TIFIA may be a viable option for the project, applicants should provide a brief description of a project finance plan that includes TIFIA credit assistance and identifies a source of revenue which may be available to support the TIFIA credit assistance.
Unless otherwise expressly noted herein, any and all requirements that apply to TIGER Discretionary Grants pursuant to the FY 2011 Continuing Appropriations Act, this notice, or otherwise, apply to TIGER TIFIA Payments.
The application cycle for TIGER Discretionary Grants has two stages:
1.
2.
Pre-applications should be submitted to DOT by the Pre-Application Deadline, which is October 3, 2011, at 5 p.m. EST. Final applications must be submitted through Grants.gov by the Application Deadline, which is October 31, 2011, at 5 p.m. EST. The Grants.gov “Apply” function will open on October 5, 2011, allowing applicants to submit applications. While applicants are encouraged to submit pre-applications in advance of the Pre-Application Deadline, pre-applications will not be reviewed until after the Pre-Application Deadline. Similarly, while applicants are encouraged to submit applications in advance of the Application Deadline, applications will not be evaluated, and selections for awards will not be made, until after the Application Deadline.
Pre-applications (stage 1) must be submitted to the DOT. The pre-application form will be available on the DOT Web site at
Applications (Stage 2) must be submitted through Grants.gov. To apply for funding through Grants.gov, applicants must be properly registered. Complete instructions on how to register and submit applications can be found at
To help ensure that applicants submit only those applications that are most likely to align well with the department's selection criteria, each applicant may submit no more than three applications for consideration under the TIGER Discretionary Grant Program. While applications may include requests to fund more than one project, applicants should not bundle together unrelated projects in the same application for purposes of avoiding the three application limit that applies to each applicant. Please note that the three application limit applies only to applications where the applicant is the lead applicant, and there is no limit on applications for which an applicant can be listed as a partnering agency. Also, DOT will not count any application for a multistate project against the three application limit to the extent multiple states are partnering to submit the application.
An applicant for a TIGER Discretionary Grant should provide all of the information requested below in its pre-application form. DOT reserves the right to ask any applicant to supplement the data in its pre-application, but expects pre-applications to be complete upon submission. Applicants must complete the pre-application form and send it to
i. Name of applicant (if the application is to be submitted by more than one entity, a lead applicant must be identified);
ii. Applicant's DUNS (Data Universal Numbering System) number;
iii. Type of applicant (State government, local government, U.S. territory, Tribal government, transit agency, port authority, metropolitan planning organization, or other unit of government);
iv. State(s) where the project is located;
v. County(s) where the project is located;
vi. City(s) where the project is located;
vii. Information about the geographic location of the project for mapping purposes using one of the following methods:
1. A geographic information system (GIS) file that indicates the location of the project;
2. For locating point specific projects, latitude and longitude in decimal degrees to an accuracy of 5 decimal places (e.g. 0.12345) using the WGS 84 datum (the default datum used by Global Positioning System (GPS) equipment); or
3. For linear projects on existing roads, route number (Interstate, U.S. Route, or State Route) or road name and the latitude and longitude in decimal degrees to an accuracy of 5 decimal places (e.g. 0.12345) of the beginning and ending points of the project;
viii. Project title (descriptive);
ix. Project type: highway, transit, rail, port, multimodal, or bicycle and pedestrian activity (if the project is a multimodal project, the pre-application form will require that applicants provide additional information identifying the affected modes);
x. Whether the project is requesting a TIGER TIFIA Payment;
xi. Project description (describe the project in plain English terms that would be generally understood by the public, using no more than 50 words (e.g. “the project will replace the existing bridge over the W river on interstate-X between the cities of Y and Z”; please do not describe the project's benefits, background, or alignment with the selection criteria in this description);
xii. Total cost of the project;
xiii. Total amount of TIGER Discretionary Grant funds requested;
xiv. Contact name, phone number, e-mail address, and physical address for applicant;
xv. Congressional districts affected by the project;
xvi. Type of jurisdiction where the project is located (urban or rural, as defined above in Section V (
xvii. Whether or not the project is in an Economically Distressed Area, as defined in Section II(A) (
xviii. An assurance that the NEPA and/or environmental review process is complete, substantially complete, or in progress (and the expected outcome of the process), unless an exception is justified pursuant to Section II(B)(1)(b)(ii) (
xix. The schedule for completing right-of-way acquisition and final design; approval of plans, specifications, and estimates;
xx. The date that the project is expected to be ready for obligation of grant funds, which should be no later than June 30, 2013 in order to give DOT comfort that the funds will be obligated before they expire on September 30, 2013; and
xxi. An assurance that local matching funds to support 20 percent or more of the
To the extent the pre-application does not provide adequate assurances for items xvii through xxii, DOT will inform the project sponsor that an application for the project will not be reviewed unless the application submitted on or prior to the Application Deadline can demonstrate that each requirement has been addressed.
An applicant for a TIGER Discretionary Grant must include all of the information requested below in its application. DOT reserves the right to ask any applicant to supplement the data in its application, but expects applications to be complete upon submission. To the extent practical, DOT encourages applicants to provide data and evidence of project merits in a form that is publicly available or verifiable. For TIGER TIFIA Payments, these requirements apply only to the applications required under this notice; the standard TIFIA letter of interest and loan application requirements, including the standard $50,000.00 application fee, are separately described in the Program Guide and Application Form found at
Please see
The project narrative must respond to the application requirements outlined below. DOT recommends that the project narrative be prepared with standard formatting preferences (
A TIGER Discretionary Grant application must include information required for DOT to assess each of the criteria specified in Section II(A)
All applications should include a detailed description of the proposed project and geospatial data for the project, including a map of the project's location and its connections to existing transportation infrastructure. An application should also include a description of how the project addresses the needs of an urban and/or rural area. An application should clearly describe the transportation challenges that the project aims to address, and how the project will address these challenges. The description should include relevant data such as, for example, passenger or freight volumes, congestion levels, infrastructure condition, or safety experience.
DOT recommends that the project narrative generally adhere to the following basic outline, and include a table of contents, maps and graphics that make the information easier to review:
I. Project Description (including a description of the transportation challenges that the project aims to address, and how the project will address these challenges);
II. Project Parties (information about the grant recipient and other project parties);
III. Grant Funds and Sources/Uses of Project Funds (information about the amount of grant funding requested, availability/commitment of funds sources and uses of all project funds, total project costs, percentage of project costs that would be paid for with TIGER Discretionary Grant funds, and the identity and percentage shares of all parties providing funds for the project (including Federal funds provided under other programs));
IV. Selection Criteria (information about how the project aligns with each of the primary and secondary selection criteria and a description of the results of the benefit-cost analysis):
a. Long-Term Outcomes
i. State of Good Repair
ii. Economic Competitiveness
iii. Livability
iv. Sustainability
v. Safety
b. Job Creation & Near-Term Economic Activity
c. Innovation
d. Partnership
e. Results of Benefit-Cost Analysis
V. Project Readiness and NEPA (information about how ready the project is to move forward quickly, including information about the project schedule, environmental approvals, legislative approvals, state and local planning, technical feasibility, and financial feasibility);
VI. Federal Wage Rate Certification (an application must include a certification, signed by the applicant, stating that it will comply with the requirements of subchapter IV of chapter 31 of title 40, United States Code (Federal wage rate requirements), as required by the FY 2011 Continuing Appropriations Act); and
VII. To the extent relevant, the final page of the application should describe (in one page or less) any material changes that need to be made to the pre-application form, including changes to the assurances provided in items xvii through xxii regarding initiation of NEPA, planning, and required cost sharing.
The purpose of this recommended format is to ensure that applications are provided in a format that clearly addresses the application requirements and makes critical information readily apparent and easy to locate.
The project narrative may not exceed 25 pages in length. Documentation supporting the assertions made in the narrative portion may also be provided, but should be limited to relevant information. If possible, Web site links to supporting documentation (including a more detailed discussion of the benefit-cost analysis) should be provided rather than copies of these materials. At the applicant's discretion, relevant materials provided previously to a Cognizant Modal Administration in support of a different DOT discretionary program (for example, New Starts or TIFIA) may be referenced and described as unchanged. To the extent referenced, this information need not be resubmitted for the TIGER Discretionary Grant application (although provision of a Web site link would facilitate DOT's consideration of the information). DOT recommends use of appropriately descriptive file names (
Contact information is requested as part of the SF-424. DOT will use this information to inform parties of DOT's decision regarding selection of projects, as well as to contact parties in the event that DOT needs additional information about an application.
An application for a TIGER Discretionary Grant must detail whether the project will significantly impact the natural, social and/or economic environment. If the NEPA process is completed, an applicant must indicate the date of, and provide a Web site link or other reference to, the final Categorical Exclusion, Finding of No Significant Impact or Record of Decision. If the NEPA process is underway but not complete, the application must detail where the project is in the process, indicate the anticipated date of completion and provide a Web site link or other reference to copies of any NEPA documents prepared.
An application for a TIGER Discretionary Grant must indicate whether the proposed project requires actions by other agencies (
All information submitted as part of or in support of any application shall use publicly available data or data that
DOT expects to identify and report on the benefits of the projects that it funds with TIGER Discretionary Grants. To this end, DOT will request that recipients of TIGER Discretionary Grants cooperate in Departmental efforts to collect and report on information related to the benefits produced by the projects that receive TIGER Discretionary Grants.
The benefits that DOT reports on may include the following: (1) Improved condition of existing transportation facilities and systems; (2) improved economic competitiveness in the form of reduced travel time, less traffic congestion, improved trip reliability, fewer vehicle miles traveled, or lower vehicle operating costs; (3) long-term growth in employment, production or other high-value economic activity; (4) improved livability of communities across the United States through expansion of transportation options, efficiency, and reliability; (5) improved energy efficiency, reduced dependence on oil and reduced greenhouse gas emissions; (6) reduced adverse impacts of transportation on the natural environment; (7) reduced number, rate and consequences of surface transportation-related crashes, injuries and fatalities; (8) greater use of technology and innovative approaches to transportation funding and project delivery; (9) greater collaboration with state and local governments, other public entities, private entities, nonprofit entities, or other non-traditional partners; (10) greater integration of transportation decision making with decision making by other public agencies with similar public service objectives; or (11) any other benefits claimed in the project's benefit-cost analysis.
Because of the limited nature of this program, these benefits are likely to be reported on a project-by-project basis and trends across projects that were selected for TIGER Discretionary Grants may not be readily available. In addition, because many of these benefits are long-term outcomes, it may be years before the value of the investments can be quantified and fully reported. DOT is considering the most appropriate way to collect and report information about these potential project benefits.
For further information concerning this notice please contact the TIGER Discretionary Grant program manager via e-mail at
As previously discussed in the Notice, the lack of a useful analysis of expected project benefits and costs may be a basis for denying an award of a TIGER Discretionary Grant to any applicant. Additionally, if it is clear that the total benefits of a project are not reasonably likely to outweigh the project's costs, the Department will not award a TIGER Discretionary Grant to the project. Consequently, it is incumbent upon the applicant to prepare a thorough benefit-cost analysis that demonstrates clearly the derivation of both the costs and the benefits of the project. However, DOT understands that the level of expense that can be expected in these analyses for surveys, travel demand forecasts, market forecasts, statistical analyses, and so on will be less for smaller projects than for larger projects. The level of resources devoted to preparing the benefit-cost analysis should be reasonably related to the size of the overall project and the amount of grant funds requested in the application. Any subjective estimates of benefits and costs should still be quantified, and applicants are expected to provide whatever evidence they have available to lend credence to their subjective estimates. Estimates of benefits should be presented in monetary terms whenever possible; if a monetary estimate is not possible, then at least a quantitative estimate (in physical, non-monetary terms, such as ridership estimates, emissions levels,
This appendix provides general information and guidance on conducting an analysis. In addition to this guidance, applicants should also refer to OMB Circulars A-4 and A-94 in preparing their analysis (
A benefit-cost analysis attempts to measure the dollar value of the benefits and the costs to all the members of society (in this context, “society” means all residents of the United States) on a net present value basis. The benefits represent a dollar measure of the extent to which people are made better off by the project—that is, the benefits represent the amount that all the people in the society would jointly be willing to pay to carry out the project, and feel as if they had generated enough benefits to justify the project's costs, after accounting for the relative timing of those benefits and costs. In some cases, benefits may be difficult to measure in dollar terms. Applicants must at least describe the nature of each of the major types of benefits described in this guidance. To the extent possible, applicants must also quantify each of those types of benefits (e.g., in terms of the number of users making use of a transportation facility). Finally, applicants must attempt to measure those benefits in dollar terms (
As a starting point for any analysis, applicants should provide a Project Summary describing the project and what it changes. The Project Summary should provide:
• A description of the current infrastructure baseline (
• A description of what the proposed project is and how it would change the current infrastructure baseline (
• A general justification for the project and how it affects the long-term outcomes relative to the current baseline;
• A description of who would be the users of the project or what groups of people would benefit from it; and
• A description of what types of economic effects the project is expected to have.
If an application contains multiple separate projects (but that are linked together in a common objective), each of which has independent utility, the applicant should provide a separate summary (and analysis) for each project.
The summary should also identify the types of societal benefits the project might generate. The applicant should list the types of benefits here and then clearly demonstrate in the analysis how it estimated benefits for each category. The summary should also include the full cost of a project, including Federal, State, local, and private funding, as well as expected operations and maintenance costs, and not simply the requested grant amount or the local amount.
Each application must include in its analysis estimates of the project's expected benefits with respect to each of the five long-term outcomes specified in Section II(A)
First, it is important to recognize that a benefit-cost analysis is not an economic impact analysis. Applicants are required to provide a benefit-cost analysis in support of their proposed projects. An economic impact analysis is not a substitute for a benefit-cost analysis.
A benefit-cost analysis attempts to measure the dollar value of the benefits and the costs to all the members of society (in this context, “society” means all residents of the United States). The benefits represent a dollar measure of the extent to which people are made better off by the project—that is, the benefits represent the amount that all the people in the society would jointly be willing to pay to carry out the project, and feel as if they had generated enough benefits to justify the project's costs.
An economic impact analysis, on the other hand, typically focuses on local and regional impacts rather than national impacts. Some of the impacts that are counted in an economic impact analysis, such as diversion of economic activity from one region of the country to another, represent gains to one part of the country but losses to another part, so they are not gains from the standpoint of the nation as a whole.
Moreover, economic impact analyses estimate “impacts” rather than “benefits,” and the “impacts” are normally quite different from the “benefits.” For example, the total payroll of workers on a project is usually considered one of the “impacts” in an economic impact analysis. The total payroll is not a measure of the “benefits” of the project, however, for two reasons. First, a payroll is a cost to whoever pays the employees, at the same time that it is a benefit to the employees, so it is not a net benefit. Second, even for the employees, the employees have to work for their wages, so the amount they are paid is not a net benefit to them—it is a benefit only to the extent that they value their wages more than the cost to them of having to be at work every day.
Economic impact analyses also often treat real estate investments induced by a project as one of the economic “impacts.” The full value of such an investment is not a “benefit,” however, because the benefit of those investments to the community in which they are made is balanced by the cost of the investment to the investor. Because these investments are a cost as well as a benefit, they are not a net benefit for purposes of a benefit-cost analysis.
There is often an element of benefit in these “impacts.” A worker who gets a higher-paying job as a result of a transportation investment project benefits if he or she works just as hard as he or she did at his or her previous job but is paid more. Such projects produce benefits by increasing the productivity of labor. A transportation investment project that increases the value and productivity of land and thus induces real estate investment can also provide a benefit, but the benefit must be measured net of the cost of making the real estate investment. Measuring these labor and land productivity effects requires a careful analysis of the local labor market and how that market is changed by the transportation investment. Similarly, measuring the effects of transportation projects on the productivity of land requires a careful netting out of increases in land values that are compensated by costs of real estate investment and increases in land values that in effect capitalize other types of benefits that have already been counted, such as time savings.
In summary, applicants must be careful to measure only the net benefits of a project, and should avoid using software packages that are designed primarily to produce economic impact analyses. An application containing only an economic impact analysis does not meet the program's requirements and may be denied an award for that reason.
Applicants should measure costs and benefits of a proposed project against a baseline (also called a “base case” or a “no build” case). The baseline should be an assessment of the way the world would look if the project did not receive the requested TIGER Discretionary Grant funding. Usually, it is reasonable to forecast that that baseline world resembles the present state. However, it is important to factor in any projected changes
Many projects have multiple parts or multiple phases, only one or two of which would actually receive funding from a TIGER Discretionary Grant. It is important in these cases that both the costs and the benefits pertain to the same portion of the project. If the part or phase of the project funded by a TIGER Discretionary Grant has independent utility, then the analysis should compare the costs and the benefits of just that part or phase. If the part or phase of the project funded by a TIGER Discretionary Grant does not have independent utility, then the applicant must first demonstrate that funding is committed for the entire project (or for an entire portion of the project, including the TIGER Discretionary Grant-funded portion, that has independent utility). In this case, the applicant should compare the benefits and costs of the entire project (or the entire portion of the project that has independent utility). The applicant must make clear exactly what portions of the project form the basis of the estimates of benefits and costs. It is incorrect to claim benefits for the entire project but only count as costs the costs of the portion of the project funded by the TIGER Discretionary Grant. Thus, it would be incorrect to attribute all the benefits from a new port facility to a TIGER Discretionary Grant when the costs that are counted only cover a portion of the project funded by the TIGER Discretionary Grant, for example, paving a loading area. In some cases, the applicant may choose to allocate the benefits of the project proportionately to the costs of the project that would be funded by the TIGER Discretionary Grant, but this should generally be done only if (1) the TIGER Discretionary Grant funds are commingled with non-TIGER Discretionary Grant funds for a single, non-divisible structure that has independent utility) and (2) the project has sufficient funding in place to be completed as a whole unit. If a project is being funded by multiple Federal, State, and local sources, it would be inappropriate to attribute the full benefit of the project to only one source of funding (such as the local share or the TIGER Discretionary Grant itself).
All costs and benefits of the project should be evaluated, including benefits and costs that fall outside of the jurisdiction sponsoring the project. It is also important that the applicant assume the continuation of reasonable and sound management practices in establishing a baseline. Assuming a baseline scenario in which the owner of the facility does no maintenance on the facility and ignores traffic problems and maintenance is not realistic and will lead to the overstatement of project benefits.
In addition to the baseline, the applicant should present and consider reasonable alternatives in the analysis. Smaller-scale and more focused projects should be evaluated for comparison purposes. For example, if an applicant is requesting funds to replace a pier, it should also analyze the alternative of rehabilitating the current pier. Similarly, if an applicant seeks funds to establish a relatively large streetcar project, it should also evaluate a more focused project serving only the more densely populated corridors or an area.
Applicants should clearly identify the population that the project will affect and measure the number of passengers (for a passenger project) and the amount of freight (for a freight project) affected by the project. If possible, passenger and freight traffic should be measured in passenger-miles and freight ton-miles (and possibly value of freight). If, as is often the case (
Applicants should discount future benefits and costs to present values using a real discount rate (
As a first step, applicants should present the year-by-year stream of benefits and costs from the project. Applicants should clearly identify when they expect costs and benefits to occur. The beginning point for the year-by-year stream of benefits should be the first year in which the project will start generating costs or benefits. The ending point should be far enough in the future to encompass most or all of the significant costs and benefits resulting from the project (at least 20 years in the future) but not to exceed the usable life of the asset without capital improvement.
Benefit-cost analyses of transportation projects almost always depend on forecasts of projected levels of usage (road traffic, port calls,
As noted above, the estimate of costs must pertain to the same project as the estimate of benefits. If the TIGER Discretionary Grant is to pay for only part of the project, but the project is indivisible (
The analysis of costs should be equally as rigorous as the analysis of benefits. The lack of a useful analysis of expected project costs may be a basis for denying the award of a TIGER Discretionary Grant to an applicant. In general, applicants should use a life-cycle cost analysis approach in estimating the costs of the project. The Department expects applicants to include operating, maintenance, and other life-cycle costs of the project, along with capital costs. In addition to construction costs, other direct costs may include design and land acquisition. If the time period considered in the analysis is long enough to require the rehabilitation of the facility during the period of analysis, then the costs of that rehabilitation should be included. External costs, such as noise, increased congestion, and environmental pollutants resulting from the use of the facility or related changes in usage on other facilities in the same network, should be considered as costs in the analysis. Additionally, applicants should include, to the extent possible, costs to users during construction, such as delays and increased vehicle operating costs associated with work zones or detours. The applicant should correctly discount annual costs to arrive at a present value of the project's cost.
There are several potential benefits that a project could generate that affect livability. The most important aspect of livability is accessibility to non-single-occupancy vehicle modes of transportation, such as transit, bicycle paths, and sidewalks. Measuring the benefits of increased accessibility should start with a quantitative measure of the increase in accessibility—how many people will have access to these alternative modes who did not have access before? The analysis should go on to estimate how many people are actually likely to use these newly available transportation modes and how much of their existing single-occupancy vehicle travel are those people likely to divert to these alternative modes. Finally, the analysis should attempt to estimate the monetary value that people place on access to these newly available transportation modes. In some cases, monetary values may be estimated based on existing market transactions—e.g., bicycle rentals. In others, differentials in the market values of land or rents between residences and businesses that are already easily accessible (
One useful source of guidance on measuring benefits of bicycle facilities is Transportation Research Board, National Cooperative Highway Research Program Report 552,
Transit and bicycle paths may provide greater accessibility to alternative transportation modes, but they will not actually enhance livability unless people actually want to use them, and the desire to use them will depend in part on where these modes go and on the amenities provided with them. An important part of accessibility is making sure not only that people's residences are accessible to these modes, but that the modes connect to workplaces, schools, shopping, and other desired destinations. Assessments of enhanced accessibility should describe where these alternative modes go as well as where they start.
Land use changes are also an important aspect of livability. When people live closer to their workplaces, their schools, and shopping, they will be more likely to use these alternative transportation modes. Transportation changes that encourage more mixed-use land development (where residences are intermixed with workplaces and shopping) will shorten the length of travel and encourage more use of non-highway modes. The analysis should evaluate the extent to which the proposed transportation project will encourage these changes in land use and be coordinated with zoning changes and other public and private investments.
Changes in land use that result in shorter travel distances can result in long-term travel time savings, and the quantitative extent of these time savings can be estimated. Values of time can then be used to estimate the monetary value of these time savings. The applicant should propose a subjective estimate of the monetary value of land use changes. Land use changes can also reduce the total cost of transportation for the affected population, so applicants should attempt to measure the effects of the project and associated land use changes on average household transportation expenditures.
In using differentials in property values or rents to measure the value of changes in accessibility, applicants must identify other factors that might have caused property values and/or rents to change and isolate the portion of the change that is attributable to the change in accessibility. Applicants must also be careful to avoid double-counting. If the applicant has already counted reductions in travel time as a benefit, the value of those reductions in travel time may get capitalized in changes in property values or rents, and the applicant must be careful not to count those benefits again as part of the change in property values.
Finally, an important aspect of livability is the availability of transportation to disadvantaged communities, such as low-income people, non-drivers, people with disabilities, and senior citizens. Applicants should assess the extent to which their projects will improve transportation opportunities and quality of life for members of these disadvantaged communities. While there may not be well-defined methodologies for assigning monetary values to these enhancements to accessibility, applicants should attempt to measure the size of the disadvantaged community affected and make subjective judgments of the monetary values that should be assigned to these improvements.
Economic competitiveness benefits might include reduced operating costs due to infrastructure improvements. In some cases,
One particular form of reduced operating costs is travel time savings. Road improvements or other projects whose purpose is to relieve congestion frequently generate travel time savings for travelers and shippers that contribute to economic competitiveness and quality of life to non-business travelers. Where this is the case, applicants should clearly demonstrate how the travel time savings are calculated and should account for induced travel demand to the extent practical or applicable. If travel time savings vary over time, the applicant must clearly show savings by year. Once the applicant generates its estimate of hours saved, it should apply the Department's guidance on the value of time to those estimates (
Freight-related projects that improve roads, rails, and ports frequently generate savings to shippers (
Applicants should also guard against analysis that double-counts other kinds of benefits. Analysis should distinguish between real benefits and transfer payments. Benefits reflect real resource usage and overall benefits to society, while transfers represent payments by one group to another and do not represent a net increase in societal benefits. Employment or output multipliers that purport to measure secondary effects should not be included as societal benefits because these secondary effects are generally the same (per dollar spent) regardless of what kind of project is funded.
As noted earlier in this Appendix (see
With respect to economic development, estimates of capital investments or property tax revenues are not legitimate benefits in a benefit-cost analysis. A property tax is a benefit to the tax assessor, but it is a cost to the taxpayer. An applicant can potentially claim an increase in the value of land as a benefit if the transportation project increases the value and productivity of the land. However, the applicant needs to count the increase in the value of the land carefully to avoid double counting and transfer payments. For example, if the property value goes up by the exact same value as the developer's investment, then this is not a benefit. Property value increases over and above the developer's investment may potentially be a benefit from the project. However, if this property value increase is due to improved travel times that the applicant has already included as a benefit then there is no additional benefit here. The analysis should also consider to what extent an increase in land values induced by the project in one area causes a reduction in land values in some other area. Only the net increase in land value can be counted as a benefit. Applicants must carefully net out any embedded time savings in the property value increase before claiming any benefits. Simply asserting that there is a property tax increase net of time savings is inadequate. The Department expects any applicant claiming these types of benefits to provide a rigorous justification of the benefit that shows how it is derived from the project (rather than from some other non-project investment) and that shows how increases in property values attributable to other benefits (such as travel time savings) have been deducted. Applicants should note that any claimed societal benefit from a property value increase is only a one-time stock benefit. Applicants can not treat it as a stream of benefits accruing annually.
Road projects can also improve the safety of transportation. A well-designed project can reduce fatalities and injuries as well as reduce other crash costs, such as hazardous materials releases. The applicant should clearly demonstrate how the project will improve safety. For example, to claim a reduction in fatalities, an applicant must clearly demonstrate how the existence of the project would have prevented the types of fatalities that commonly occur in that area. Applicants should use crash causation factors or similar analyses of causes of crashes to show the extent to which the type of improvements proposed would actually reduce the likelihood of the kinds of crashes that actually had occurred. Alternatively, when only a few cases are involved, the applicant should provide a description of the incidents and demonstrate the linkage between the proposed project and crash reduction. In some cases, safety benefits may occur because of modal diversion from a less safe mode to a more safe mode. When this type of benefit is claimed, the applicant should provide a clear analysis of why the forecasted modal diversion will take place. Once the applicant has established a reasonable count of the incidents that are likely to be prevented by the project, it should apply the Department's guidance on value of life and injuries (
Many infrastructure projects that improve the state of good repair of transportation infrastructure can reduce long-term maintenance and repair costs. These benefits are in addition to the benefits of reductions in travel time, shipping costs, and crashes which the applicant should account for separately. Applicants should include these maintenance and repair savings as benefits. Improving state of good repair may also reduce operating costs and congestion by reducing the amount of time that the
Transportation can generate environmental costs in the form of emissions of “criteria pollutants” (
The Interagency Working Group on Social Cost of Carbon has recently issued its guidance on “Social Cost of Carbon for Regulatory Impact Analysis Under Executive Order 12866” (
Applicants should make every effort to make the results of their analyses as transparent and reproducible as possible. Applicants should clearly set out basic assumptions, methods, and data underlying the analysis and discuss any uncertainties associated with the estimates.
A Department reviewer reading the analysis should be able to understand the basic elements of the analysis and the way in which the applicant derived the estimates. If the application refers the reader to more detailed documentation to explain how the calculations were done, that documentation must go beyond merely providing spreadsheets. It must include a thorough verbal description of how the calculation was done, including references to tabs and cells in the spreadsheet. This verbal description should include specific sources for all the numbers in the spreadsheet that are not calculated from the spreadsheet itself.
If an applicant uses a “pre-packaged” economic model to calculate net benefits, the applicant should provide annual benefits and costs by benefit and cost type for the entire analysis period. In any case, applicants must provide a detailed explanation of the assumptions used to run the model (
Ideally, the applicant should be able to summarize the results of all pertinent data and cost and benefit calculations in a single spreadsheet tab (or table in
Most applicant analyses will be more complicated than this example and will likely include several benefit categories. However, the summary cost and benefit data should be as transparent and as easy to follow and replicate as the example above.
Applications (Stage 2) for TIGER Discretionary Grants must be submitted through Grants.gov. To apply for funding through Grants.gov, applicants must be properly registered. Complete instructions on how to register and apply can be found at
Registering with Grants.gov is a one-time process; however, processing delays may occur and it can take up to several weeks for first-time registrants to receive confirmation and a user password. It is highly recommended that applicants start the registration process as early as possible to prevent delays that may preclude submitting an application by the deadlines specified. Applications will not be accepted after the relevant due date; delayed registration is not an acceptable reason for extensions. In order to apply for TIGER Discretionary Grant funding under this announcement and to apply for funding through Grants.gov, all applicants are required to complete the following:
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Note: When uploading attachments please use generally accepted formats such as .pdf, .doc, and .xls. While you may imbed picture files such as .jpg, .gif, .bmp, in your files, please do not save and submit the attachment in these formats. Additionally, the following formats will not be accepted: .com, .bat, .exe, .vbs, .cfg, .dat, .db, .dbf, .dll, .ini, .log, .ora, .sys, and .zip.
If you experience unforeseen Grants.gov technical issues beyond your control that prevent you from submitting your application by the deadline of October 31, 2011 at 5 p.m. EDT, you must contact Robert Mariner at 202-366-8914 or
To ensure a fair competition for limited discretionary funds, the following conditions are not valid reasons to permit late submissions: (1) Failure to complete the registration process before the deadline date; (2) failure to follow Grants.gov instructions on how to register and apply as posted on its Web site; (3) failure to follow all of the instructions in the funding availability notice; and (4) technical issues experienced with the applicant's computer or information technology (IT) environment.
As applicants develop their applications, there are some guidelines on project readiness that they should consider. The TIGER Discretionary Grant funds are available for a limited period of time (DOT's ability to obligate the funds expires after September 30, 2013), and DOT may be limited as to when they may obligate the TIGER Discretionary Grant funds to a project if it is not far enough along in the project development process. The application package should provide concrete evidence of project milestones, financial capacity and commitment in order to support project readiness. Each operating administration with the responsibility for obligating the TIGER Discretionary Grant funds has its own regulations, policies, and procedures that they may apply for projects that have been selected for TIGER Discretionary Grant funds. In some cases, an operating administration may obligate a portion of the overall amount of funds that an applicant has been selected to receive so that such an applicant may use that portion of the TIGER Discretionary Grant funds for eligible pre-construction activities, delaying the balance of the obligation of funds until all pre-construction requirements have been completed.
The guidelines below provide additional details about some of these pre-obligation steps (including, but not limited to, planning requirements, environmental approvals, right-of-way acquisitions, and design completion) and suggest milestones each project should aim to achieve in order be able to obligate the full amount of awarded TIGER Discretionary Grant funds in advance of the obligation deadline of September 30, 2013.
Applicants should demonstrate that they can reasonably expect to complete all of these pre-obligation requirements no later than June 30, 2013, in order to give DOT comfort that the TIGER Discretionary Grant funds are likely to be obligated in advance of the September 30, 2013 statutory deadline, and that any unexpected delays will not put TIGER Discretionary Grant funds at risk of expiring before they can be obligated. Applicants that are unfamiliar with, or have questions about, the requirements that a proposed project or projects may need to complete in order for the operating administration to obligate TIGER Discretionary Grant funds may contact
If the project is not included in the relevant planning documents at the time the
If the obligation of TIGER Discretionary Grant funds for construction or other activities is contingent on completion of other approvals that can only take place after the environmental approvals process, the applicant should demonstrate that they can reasonably expect to have all environmental approvals by March 30, 2013, or other date sufficiently in advance of June 30, 2013, in order to give DOT comfort that the TIGER Discretionary Grant funds are likely to be obligated in advance of the September 30, 2013 statutory deadline, and that any unexpected delays will not put TIGER Discretionary Grant funds at risk of expiring before they can be obligated, because it may be difficult to complete environmental and regulatory review as well as any other necessary pre-obligation activities prior to the statutory obligation deadline of September 30, 2013.
To demonstrate that this suggested milestone is achievable, applicants should provide information about the anticipated class of action, the budget for completing NEPA, including hiring a consultant if necessary, and a schedule that demonstrates when NEPA will be complete. The schedule should show how the suggested milestones described in this section will be complied with, and include any anticipated coordination with Federal and State regulatory agencies for permits and approvals. The budget should demonstrate how costs to complete NEPA factor into the overall cost to complete construction of the project. The budget and schedule for completing NEPA should be reasonable and be comparable to a budget and schedule of a typical project of the same type. The applicant should provide evidence of support based on input during the NEPA process from State and local elected officials as well as the public. Additionally, the applicant should provide environmental studies or other documents (preferably by way of a Web site link) that describe in detail known potential project impacts and possible mitigation for these impacts. The applicant should supply sufficient documentation for DOT to adequately review the project's NEPA status.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of RTCA Special Committee 223: Airport Surface Wireless Communications meeting.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 223: Airport Surface Wireless Communications.
The meeting will be held August 9-10, 2011 from 9 a.m. to 5 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street NW., Suite 910, NW., Washington, DC 20036.
RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC, 20036; telephone (202) 833-9339; fax (202) 833-9434; Web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., and Appendix 2), notice is hereby given for a RTCA Special Committee 223: Airport Surface Wireless Communications meeting.
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 221 meeting: Aircraft Secondary Barriers and Alternative Flight Deck Security Procedures.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 221: Aircraft Secondary Barriers and Alternative Flight Deck Security Procedures.
The meeting will be held July 19-20, from 9:00 a.m. to 5:00 p.m., unless stated otherwise in agenda.
The meeting will be held at RTCA, Inc., 1150 18th Street, Suite 910, NW., Washington, DC 20036.
RTCA Secretariat, 1150 18th Street, Suite 910, NW., Washington, DC 20036, telephone (202) 833-9339, fax (202) 833-9434, Web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., and Appendix 2), notice is hereby given for a Special Committee 221, Aircraft Secondary Barriers and Alternative Flight Deck Security Procedures.
• Welcome/Introductions and Administrative Remarks
• Approval of Summary of the Ninth Meeting held May 2011, RTCA Paper No. 125-11//SC221-026
• Leadership Comments
• Review of WG Actions—Status Reports
• Incorporate Comments and Finalize New Document—
• SC-221 Follow on Tasks—Discussion
• Other Business
• Adjourn at 5 p.m.
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 225 meeting: Rechargeable Lithium Batteries and Battery Systems—Small and Medium Sizes.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 225: Rechargeable Lithium Batteries and Battery Systems—Small and Medium Sizes.
The meeting will be held July 26-27, 2011, from 8:30 a.m. to 5 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street, Suite 910, NW., Washington, DC 20036.
RTCA Secretariat, 1150 18th Street, Suite 910, NW., Washington, DC 20036, telephone (202) 833-9339 or e-mail
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., and Appendix 2), notice is hereby given for a Special Committee 225, Rechargeable Lithium Batteries and Battery Systems—Small and Medium Sizes.
• Welcome/Introductions/Administrative Remarks.
• Review of the meeting agenda.
• Review and approval of summary from the second plenary meeting RTCA paper no. 120-11/SC225-004.
• Review of action items.
• Review progress on requirement development from working group.
• Review new action items.
• Review agenda for Wednesday, July 27.
• Review meeting agenda, other actions.
• Working Groups meeting.
• Working Group report, review progress and actions.
• Other Business.
• Establish Agenda for Fourth Plenary Meeting.
• Administrative Items (Meeting Schedule).
• Review all action items.
• Adjourn.
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 220 Meeting: Automatic Flight Guidance and Control.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 220: Automatic Flight Guidance and Control
The meeting will be held August 9-11, 2011, from 9 a.m. to 5 p.m., unless stated otherwise.
The meeting will be held at RTCA, Inc., 1150 18th Street, Suite 910, NW., Washington, DC, 20036. For hotel information please view the following Web site:
RTCA Secretariat, 1150 18th Street, Suite 910, NW., Washington, DC, 20036, telephone (202) 833-9339, fax (202) 833-9434, Web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., and Appendix 2), notice is hereby given for a Special Committee 220, Automatic Flight Guidance and Control.
• Introductions and Administrative Items.
• Review of Meeting Agenda.
• Review and approval of summary from the first plenary meeting RTCA paper no. 011-11/SC220-024.
• Presentation of progress of Working Group-2.
• Presentation of progress of Working Group-3.
• Break-out sessions for Working Groups 2 and 3.
• Continue Break-out sessions for Working Groups 2 and 3.
• Continue development of Installation Guidance White Papers.
• Return to general plenary meeting.
• Review of Working Group 2 Status—Progress, Issues and Plans.
• Review of Working Group 3 Status—Progress, Issues and Plans.
• Review of Action Items.
• Administrative items (meeting schedule, location, and next meeting agenda).
• Any other business.
• Adjourn at 2 p.m.
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 224 meeting: Airport Security Access Control Systems (Update to DO-230B).
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 224: Airport Security Access Control Systems.
The meeting will be held July 15, 2011, from 10 a.m. to 1 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street, NW., Suite 910, Washington, DC 20036.
RTCA Secretariat, 1150 18th Street, NW., Suite 910, Washington, DC 20036, telephone (202) 833-9339, fax (202) 833-9434, Web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., and Appendix 2), notice is hereby given for a Special Committee 224, Airport Security Access Control Systems (Update to DO-230B):
• Welcome/Introductions/Administrative Remarks.
• Review/Approve Summary—Sixth Meeting.
• Discussion—Develop Plans for Next Document Versions.
• Any Other Business.
• Adjourn.
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Bureau of the Public Debt, Fiscal Service, Treasury.
Notice.
For the period beginning July 1, 2011, and ending on December 31, 2011, the prompt payment interest rate is 2
Effective July 1, 2011, to December 31, 2011.
Comments or inquiries may be mailed to Dorothy Dicks, Reporting Team Leader, Federal Borrowings Branch, Division of Accounting Operations, Office of Public Debt Accounting, Bureau of the Public Debt,
Kimberly Poling, Acting Manager, Federal Borrowings Branch, Office of Public Debt Accounting, Bureau of the Public Debt, Parkersburg, West Virginia 26106-1328, (304) 480-5103; Dorothy Dicks, Reporting Team Leader, Federal Borrowings Branch, Division of Accounting Operations, Office of Public Debt Accounting, Bureau of the Public Debt, Parkersburg, West Virginia 26106-1328, (304) 480-5115; Paul Wolfteich, Chief Counsel, Office of the Chief Counsel, Bureau of the Public Debt, (202) 504-3705; or Brenda L. Hoffman, Attorney-Advisor, Office of the Chief Counsel, Bureau of the Public Debt, (202) 504-3706.
An agency that has acquired property or service from a business concern and has failed to pay for the complete delivery of property or service by the required payment date shall pay the business concern an interest penalty. 31 U.S.C. 3902(a). The Contract Disputes Act of 1978, Sec. 12, Public Law 95-563, 92 Stat. 2389, and the Prompt Payment Act of 1982, 31 U.S.C. 3902(a), provide for the calculation of interest due on claims at the rate established by the Secretary of the Treasury.
The Secretary of the Treasury has the authority to specify the rate by which the interest shall be computed for interest payments under section 12 of the Contract Disputes Act of 1978 and under the Prompt Payment Act. Under the Prompt Payment Act, if an interest penalty is owed to a business concern, the penalty shall be paid regardless of whether the business concern requested payment of interest. 31 U.S.C. 3902(c)(1). Agencies must pay the interest penalty calculated with the interest rate, which is in effect at the time the agency accrues the obligation to pay a late payment interest penalty. 31 U.S.C. 3902(a). “The interest penalty shall be paid for the period beginning on the day after the required payment date and ending on the date on which payment is made.” 31 U.S.C. 3902(b).
Therefore, notice is given that the Secretary of the Treasury has determined that the rate of interest applicable for the period beginning July 1, 2011, and ending on December 31, 2011, is 2
Human Resources and Administration, Department of Veterans Affairs.
Notice.
The Human Resources and Administration (HRA), 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 August 30, 2011.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Lillette Turner at (202) 501-2680 or Fax (202) 501-2811.
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 being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, HRA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of HRA's functions, including whether the information will have practical utility; (2) the accuracy of HRA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 30, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or Fax (202) 275-5947.
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 being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Department of Veterans Affairs, Veterans Benefits Administration.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 30, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or Fax (202) 275-5947.
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 being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Department of Veterans Affairs, Veterans Benefits Administration.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 30, 2011.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Nancy J. Kessinger at (202) 461-9769 or Fax (202) 275-5947.
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 being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Environmental Protection Agency (EPA).
Final rule.
The EPA is finalizing a Federal Implementation Plan (FIP) under the Clean Air Act (CAA or Act) for Indian country. The FIP includes two New Source Review (NSR) regulations for the protection of air resources in Indian country. The first rule applies to new and modified minor stationary sources (minor sources) and to minor modifications at existing major stationary sources (major sources) throughout Indian country. The second rule (nonattainment major NSR rule) applies to new and modified major sources in areas of Indian country that are designated as not attaining the National Ambient Air Quality Standards (NAAQS). These rules will be implemented by EPA or a delegate Tribal agency assisting EPA with administration of the rules, until replaced by an EPA-approved implementation plan.
This final rule is effective on August 30, 2011.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2003-0076. All documents in the docket are listed on the
Ms. Jessica Montañez, Air Quality Policy Division, Office of Air Quality Planning and Standards (C504-03), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number (919) 541-3407, facsimile number (919) 541-5509, e-mail address:
The information in this preamble is organized as follows:
Entities potentially affected by this final rule include owners and operators of emission sources in all industry groups located in Indian country, EPA and Tribal governments that are delegated administrative authority to assist EPA with the implementation of these Federal regulations. Categories and entities potentially affected by this action are expected to include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in the final minor and major NSR programs for Indian country, 40 CFR 49.151 through 49.161 and through 49.175, respectively. If you have any questions regarding the applicability of this action to a particular entity, contact the person listed in the preceding
In addition to being available in the docket, an electronic copy of this final rule will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this final rule will be posted in the regulations and standards section of our NSR home page located at
The EPA is ensuring that air resources in Indian country will be protected in the manner intended by the Act by establishing a preconstruction permitting program for new or modified minor sources, minor modifications at major sources, and new major sources or major modifications in nonattainment areas. In addition, we are establishing a minor source permitting mechanism for major sources that wish to voluntarily limit emissions to become synthetic minor sources
The minor NSR rule applies to new and modified minor sources and to minor modifications at major sources. New minor sources with a potential to emit (PTE) equal to or greater than the minor NSR thresholds or modifications at minor sources with allowable emissions increases equal to or greater than the minor NSR thresholds must apply for and obtain a minor NSR permit prior to commencing construction of the new source or modification. At an existing major source, if a proposed modification does not qualify as a major modification (which would be subject to major NSR) based on the actual-to-projected-actual test, it is considered a minor modification and is subject to the minor NSR program requirements, if the net emissions increase from the actual-to-projected-actual test is equal to or exceeds the minor NSR thresholds listed in Table 1 of section IV.A.3 of this preamble. A major source with such a minor modification must apply for and obtain a minor NSR permit prior to commencing construction of the minor modification. In addition, these sources must install and operate control technology as determined by the reviewing authority on a case-by-case basis. At the discretion of the reviewing authority, such sources may also be required to submit air quality impact analyses as part of their permit applications. For minor sources, as an alternative to a site-specific permit, some sources can request for coverage under a general permit.
This rule will also allow otherwise major sources in Indian country to voluntarily accept emission limitations on their PTE to become “synthetic minor sources.” Synthetic minor sources may include sources that emit regulated NSR pollutants and/or hazardous air pollutants (HAPs)
Synthetic minor sources will undergo site-specific permitting; that is, general permits will not be issued to synthetic minor sources. However, we intend to develop general permits for some common types of emissions units and minor sources to streamline the permitting process. The initial establishment of the general permit will include control technology review and associated emission limits. Thus, sources will not be required to conduct a case-by-case control technology review when they apply for coverage under a general permit.
Under the nonattainment major NSR rule, affected sources are required to comply with the provisions of 40 CFR part 51, Appendix S, a transitional rule which generally applies to areas that do not have an approved nonattainment major NSR program for a particular pollutant in their State Implementation Plan (SIP). Sources subject to this rule must meet requirements for Lowest Achievable Emission Rate (LAER) control technology, emissions offsets and compliance certification.
We are adopting these final rules after further evaluation of the proposed provisions and consideration of the public comments. On August 21, 2006 (71 FR 48696), EPA proposed the “Review of New Sources and Modifications in Indian Country” (
The final rules adopt many elements of the proposal, but differ from the proposal in several important respects. For the minor NSR rule, we had proposed a 30-day public comment period for the initial establishment of the general permit and also proposed that coverage of individual sources under general permits would not undergo a public comment period. In the final rule, to address concerns from Tribes, we have slightly changed the proposed notification provisions. A source that wants to request coverage under the general permit will be required to submit such request to the reviewing authority. At the same time, the source owner must also submit a copy of this request to the Tribe in the area where the source is locating. We will also post notice of the coverage request under a general permit on our Web site. During our review of your request for coverage under the general permit, commenters can only notify us of any concerns about the eligibility of your source to obtain coverage under that general permit and not on any other issue. For the minor NSR rule, we had also proposed Plantwide Applicability Limitations (PALs) and project netting. A minor source PAL would have been a source-wide limitation on allowable emissions of a regulated NSR pollutant expressed in tons per year (tpy) that was enforceable as a practical matter. However, we are not finalizing minor source PALs after consideration of the comments we received. At this time, we are also not finalizing project netting, the calculation of the total emissions increase that would result from a proposed modification by summing both the increases and decreases resulting from the modification, since we decided not to take final action on project netting for the major NSR program. (
Regarding the proposed list of emissions units and activities that will be exempted from the minor NSR program, we are finalizing an amended list. This list takes into consideration the comments received and the recent
Furthermore, to address commenters' concerns about EPA's ability to issue minor NSR permits on a timely basis, we have decided to phase in the implementation dates of these rules. For example, we are delaying the implementation date of this rule for new and modified true minor sources by the earlier of 6 months after the general permit for a source category is published in the
For the major NSR rule, we are not finalizing the proposed Appendix S, paragraph VI as an option for offset
We are finalizing the minor NSR and the nonattainment major NSR permit programs pursuant to section 110(a)(2)(C), part D of title I and section 301(d) of the Act.
The major NSR program contained in parts C and D of title I of the Act is a preconstruction review and permitting program applicable to new major sources and major modifications at such sources. In areas not meeting health-based NAAQS and in ozone transport regions (OTR), the program is implemented under the requirements of part D of title I of the Act. We call this program the “nonattainment” major NSR program. In areas meeting the NAAQS (“attainment” areas) or for which there is insufficient information to determine whether they meet the NAAQS (“unclassifiable” areas), the NSR requirements under part C of title I of the Act apply. We call this program the Prevention of Significant Deterioration (PSD) program. Collectively, we also commonly refer to these programs as the major NSR program. These rules are contained in title 40 of the Code of Federal Regulations (CFR), §§ 51.165, 51.166, 52.21 and 52.24 (40 CFR 51.165, 51.166, 52.21 and 52.24) and 40 CFR part 51, Appendices S and W.
For newly constructed, “greenfield” sources, the determination of whether a source is subject to the major NSR program is based on the source's PTE. The Act, as implemented by our rules, sets applicability thresholds for major sources in both attainment and nonattainment areas. For nonattainment areas, these thresholds are 100 tpy of any pollutant subject to regulation under the Act or smaller amounts, depending on the nonattainment classification. For attainment areas the thresholds are 100 or 250 tpy, depending on the source type.
For existing major sources, major NSR applies to a major modification. For a modification to be major, the following three criteria have to be met:
(1) A physical change in or change in the method of operation of a major source must occur;
(2) The increase in emissions resulting from this change must be significant (equal to or above the significance levels defined in 40 CFR 52.21(b)(23) for PSD or 40 CFR part 51, Appendix S, paragraph II.A.10 for nonattainment major NSR); and
(3) The increase in emissions resulting from the change must result in a significant net emissions increase. In other words, when the increase from the project is added to other contemporaneous increases and decreases in actual emissions
Major sources and major modifications subject to nonattainment major NSR must apply state-of-the-art emissions control technologies, including any pollution prevention measures, to achieve the lowest achievable emission rate. The lowest achievable emission rate is based on the most stringent emission limitation in the implementation plan of any state or achieved in practice, for the source category under review.
Each major source subject to nonattainment major NSR must also offset its emissions increase by obtaining emissions reductions from other sources in the area or in an area of equal or higher nonattainment classification that contributes to nonattainment in the proposed major source's area. The ratio of the offset relative to the proposed increase must be at least one-to-one and is based on the severity of the area's nonattainment classification. For ozone and particulate matter less than or equal to 10 microns in aerodynamic diameter (PM
Additionally, each nonattainment major NSR permit applicant must also conduct an analysis of alternative sites, sizes, production processes and environmental control techniques demonstrating that the benefits of the proposed emissions source significantly outweigh the environmental and social costs of its location, construction or modification. Moreover, each nonattainment major NSR permit applicant must demonstrate that all other major sources under her/his control in the same state are in compliance or on a schedule of compliance with all emission limitations and standards of the Act.
Under the PSD program for attainment areas, a major source or modification must apply Best Available Control Technology (BACT), which may be based on pollution prevention techniques. In addition, the source must analyze the impact of the project on ambient air quality to assure that no violation of the NAAQS or PSD increments will result and must analyze impacts on soil, vegetation and visibility. Sources or modifications that would impact Class I areas (
Section 110(a)(2)(C) of the Act requires that every SIP include a program to regulate the construction and modification of stationary sources, including a permit program as required by parts C and D of title I of the Act, to ensure attainment and maintenance of the NAAQS. Parts C and D address the major NSR program for major sources and the permitting program for minor sources is addressed by section 110(a)(2)(C) of the Act. We commonly refer to the latter program as the minor NSR program. A minor source means a source whose PTE is lower than the major NSR applicability threshold for a particular pollutant as defined in the applicable nonattainment major NSR program or PSD program.
States must develop minor NSR programs to attain and maintain the NAAQS and the Federal requirements for state minor NSR programs are outlined in 40 CFR 51.160 through 51.164. These Federal requirements for minor NSR programs are considerably less prescribed than those for major sources and as a result there is a larger variation of requirements in the state minor NSR programs.
Furthermore, Section 110(a)(2)(C) of the Act provides us with a broad degree of discretion in developing a program to regulate new and modified minor source construction activities in Indian country.
The Tribal Authority Rule (TAR) authorizes eligible Indian Tribes to implement EPA-approved nonattainment major NSR (part D of title I of the Act), PSD (part C of title I of the Act) and other programs under the Act in the same manner as states. This is accomplished when Indian Tribes develop Tribal Implementation Plans (TIPs), which are plans similar to SIPs. If a Tribe develops a TIP to implement a CAA program, the TIP, once it is approved, will replace the Federal program as the requirement for that area of Indian country and the Tribe will become responsible for implementing that particular program. However, if Indian Tribes are unable or choose not to include a CAA program such as NSR in a TIP, we will implement the program under these rules.
The Act provides us with broad authority to protect air resources throughout the Nation, including air resources in Indian country.
Further, under the Act, Tribes may also apply to administer Tribal air quality programs for non-reservation areas over which they can show jurisdiction.
In the preamble to the TAR, we also concluded that the Act authorizes us to protect air quality throughout Indian country.
In addition, section 301(a) of the Act provides us broad authority to issue such regulations as are necessary to carry out the mandates of the Act. Several provisions of the Act call for Federal implementation of a program where, for example, a state or in this case a Tribe, fails to adopt a program or adopts an inadequate program.
This interpretation is most evident from Congress' grant of authority to the EPA under section 301(d)(4) of the Act. Section 301(d)(4) authorizes the Administrator to directly administer provisions of the Act so as to achieve the appropriate purpose where Tribal implementation of those provisions is inappropriate or administratively infeasible. We determined that it is inappropriate to subject Tribes, among other things, to the mandatory submittal deadlines and to the related Federal oversight mechanisms in section 110(c)(1) of the Act, which are triggered when we make a finding that states have failed to meet required deadlines or disapprove a state plan submittal.
By determining that Tribes should not be treated similarly to states for purposes of the specific FIP obligation under section 110(c)(1) of the Act, we are not relieved of the general obligation
Under section 301(d)(4) of the Act, Congress authorized the EPA to maintain the territorial approach by implementing the Act in Indian country in the absence of an EPA-approved program. We believe that Congress authorized us, consistent with our Indian policy, to avoid the checker-boarding of Indian reservations based on land ownership by Federally implementing the Act over all reservation sources in the absence of an EPA-approved Tribal program.
Our interpretation of section 301(d) of the Act as authorizing our implementation throughout Indian country is also supported by the legislative history.
Therefore, with these final rules, we will exercise our authority to administer the minor NSR permitting program and the nonattainment major NSR program in Indian country, which is generally the area over which a Tribe may potentially receive approval of programs under the Act. As noted in the final TAR, we interpret the Act as establishing a territorial approach to implementation of the Act within Indian country by delegating to eligible Tribes authority over all reservation sources without differentiating among the various categories of on-reservation lands (63 FR 7254-7258). In addition, the Act authorizes eligible Tribes to implement Tribal programs under the Act in non-reservation areas over which a Tribe has jurisdiction, generally including all areas of Indian country (63 FR 7258-7259).
In order to further our commitment to use our authority under the Act to protect air quality throughout Indian country by directly implementing the Act's requirements, we are now exercising the rulemaking authority entrusted to us by Congress to directly implement the minor NSR permitting program and nonattainment major NSR permitting program throughout all areas of Indian country.
No Tribe is currently administering an EPA-approved PSD program. Therefore, EPA has been implementing a FIP for major sources in attainment areas and has been issuing PSD permits in Indian country.
As we stated previously, sections 301(d) and 110(o) of the Act give the Tribes the authority to develop their own Tribal programs and we encourage eligible Tribes to develop their own minor and nonattainment major NSR programs for incorporation into TIPs. However, we understand that not all Tribes have the resources to design and implement NSR programs; therefore, in the absence of an EPA-approved program, this final rulemaking provides a Federal program for implementing the minor NSR and the major NSR program in nonattainment areas of Indian country. Tribes may use this program as a model if they choose to develop their own Tribal Implementation plans and obtain our approval.
Since, in most cases and in the absence of an EPA-approved program, it would be neither practical nor administratively feasible for us to develop and implement a separate program for each area of Indian country,; these final rules will implement a flexible FIP for Indian country that provides new and modified minor sources and major sources in nonattainment areas with procedures to demonstrate that they will be operating in a manner that is protective of air resources and the NAAQS. In addition, these rules will ensure that any economic growth occurring in Indian country will be in harmony with the preservation of Clean Air Act resources.
Prior to undertaking this rulemaking, we sought to include Tribes early in the rulemaking process. On June 24, 2002, we sent approximately 500 letters to Tribal leaders seeking their recommendations for effective consultation and their involvement in developing these rules.
We received responses from 75 Tribes. Of these 75 Tribes, 69 designated an environmental staff member to work with us on developing the rules. Aside from the designated staff, many Tribal leaders asked that we keep them informed of our progress through e-mail, meetings with the EPA Regional Offices, newsletters and Web sites. In addition, 53 percent of the Tribal leaders also requested direct phone calls or conference calls to discuss the subject and 16 percent of the respondents requested face-to-face consultation. Of these, six Tribes requested senior EPA staff to meet with Tribal leaders.
As a result of this feedback, we developed a consultation plan that included three meetings held at the reservations of the Menominee Tribe in Wisconsin, the Mohegan Tribe in Connecticut and the Chehalis Tribe in Washington. A fourth meeting was held
Although much of our effort focused on outreach to the Tribes, we also interacted with state and local air pollution control agencies during development of these rules. We had two meetings with the State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officers (STAPPA/ALAPCO) to present the draft rules.
We considered feedback from all stakeholders and proposed the “Review of New Sources and Modifications in Indian Country” rules on August 21, 2006 (71 FR 48696). However, Tribal government representatives expressed concerns that the long gap between consultation/outreach and action by the Agency undermined the effectiveness of these interactions. Thus, after proposal of the rule, we started an extensive outreach program in the years 2006 and 2007 to inform and seek comments from the public, especially Tribes.
We again sent over 500 letters to Tribal leaders to inform them about the proposal. We did not receive any formal responses to these letters and did not receive any request for formal consultation from the Tribes, but they contacted us either through e-mail or phone calls and asked to keep them informed of our progress through e-mail, meetings, training sessions, newsletters and/or Web sites. To enhance understanding of the proposal and what it would mean for Indian country, we supplemented the 2006 outreach efforts by holding four training sessions using Web conferencing not only for Tribes, but also for EPA Regional Offices, air program managers and Tribal organizations. We also held training sessions in 2006 and at the request of the Tribes for interested Tribal and other environmental professionals at the Pechanga Band of Luiseño Indians in California and Salt River Pima-Maricopa Indian Community in Arizona. In addition, we held training sessions for all interested parties at EPA Region V's Tribal Air Meeting in Illinois (2006) and EPA's Region X's office in Washington (2007).
We participated in numerous national and regional forums including the forums sponsored by the Institute of Tribal Environmental Professionals, the National Tribal Air Association and at meetings with Tribal consortia, such as the United Southern and Eastern Tribes. We also interacted with state and local air pollution agencies during this outreach period and had meetings with the NACAA.
Furthermore, we extended and reopened the comment period for the proposed rules twice (from November 20, 2006 to January 19, 2007 and from January 19, 2007 to March 20, 2007) at the request of the Tribes. During this time, we also recorded and presented a webcast video for all interested stakeholders to train more environmental professionals about the NSR program and the rules themselves.
To address the concern about the long gap between the proposal and finalization of the rules and to ensure that the Tribes are aware of the proposed rules and their provisions, we held a series of meetings in 2010 with the National Tribal Operations Committee, interested Regional Tribal Operations Committees and interested Tribal environmental staff. In 2011, we sent letters to all Tribes to ask them about their interest in an additional round of consultation and outreach and, based on their responses, we have conducted consultation and outreach meetings with several Tribes. These meetings included a face-to-face meeting in Denver, Colorado with a number of Tribes within EPA Region VIII and four conference calls with Tribes from across the country.
After these rules are promulgated, we intend to conduct similar outreach efforts with all stakeholders, including extensive training to facilitate easier implementation of the rules.
This rulemaking finalizes provisions for a minor NSR program in Indian country, codified at 40 CFR 49.151 through 49.165. The program includes requirements for preconstruction review for minor sources and minor modifications, general permits and synthetic minor source permits. The minor NSR program also serves as a mechanism for case-by-case MACT determinations and establishes a registration system for existing minor sources to improve the Tribal source emission inventory.
Our primary goal in developing this program is to ensure that air resources in Indian country will be protected in the manner intended by the Act. In addition, we seek to establish a flexible preconstruction permitting program for minor sources in Indian country that is comparable to similar programs in neighboring states in order to create a more level regulatory playing field for owners and operators within and outside of Indian country.
This final rulemaking is not intended to establish a new set of minimum criteria that a Tribe or a state would need to follow in developing its own minor source permitting program. Rather, these rules simply represent how we will implement the program in Indian country in the absence of an EPA-approved Tribal implementation plan. However, if a Tribe is developing its own program, this can serve as one example of a program that meets the objectives and requirements of the Act. This final minor source permitting program addresses, on a national level, many environmental and regulatory issues that are specific to Indian country. We understand that different Tribes may face different issues and may therefore, like states developing SIPs, choose to develop TIPs tailored to their individual Tribal circumstances and needs. This rule will allow Tribes to develop their own TIPs, consistent with the overarching requirement that the Tribe ensure that the TIP will not interfere with any applicable requirement of the CAA.
We are finalizing under 40 CFR 49.152 that a minor source, for the purposes of this rule, means a source, not including the exempt emissions units and activities listed in § 49.153(c), that has the potential to emit regulated NSR pollutants in amounts that are less than the major source thresholds in 40 CFR § 49.167 or § 52.21, as applicable, but equal to or greater than the minor NSR thresholds in § 49.153. The potential to emit includes fugitive emissions, to the extent that they are quantifiable, only if the source belongs to one of the source categories listed in 40 CFR part 51, Appendix S, paragraph II.A.4(iii) or 52.21(b)(1)(iii), as applicable.
A source's PTE for a pollutant is expressed in tpy and generally is calculated by multiplying the maximum hourly emissions rate in pounds per hour (lbs/hr) times 8,760 hours (which is the number of hours in a year) and dividing by 2,000 (which is the number of pounds in a ton). If a source is restricted by permit conditions that limit its emissions and are enforceable as a practical matter (as defined in 40 CFR 49.152), its PTE (and allowable emissions) are calculated based on the permit restrictions.
For the NSR program in Indian country, the major source thresholds are defined in the PSD program (
This minor source definition differs from the definition in the proposal by providing the following clarifications. We clarified that
A few commenters asked us to accommodate in the minor source definition references to the
Furthermore, we have amended the minor source definition to specify that the PTE of a source includes fugitive emissions, to the extent that they are quantifiable, only if the source belongs to one of the source categories listed in 40 CFR 52.21(b)(1)(iii) (for PSD) and 40 CFR part 51, Appendix S, paragraph II.A.4(iii) (for nonattainment major NSR) of the major NSR rules pursuant to section 302(j) of the Act. This action is explained further in the next section.
As stated in the proposal, in all NSR applicability determinations, you must evaluate each regulated NSR pollutant individually because the area where your source is located may be attainment for some pollutants and nonattainment for others. For a given new source or modification, a particular pollutant may be subject to review under PSD, nonattainment major NSR or minor NSR or may not be subject to any of these programs.
For proposed new sources, the first step is to calculate the potential to emit of each regulated NSR pollutant. The second step is to determine whether the source is subject to the applicable major NSR program (
If your proposed new source is not subject to major NSR for a particular regulated NSR pollutant, the next step is to determine whether the source is subject to the requirements of this minor NSR rule for that pollutant,
In determining if the source's potential to emit of a pollutant is equal to or greater than the applicable minor NSR threshold listed in Table 1 of this final rule, fugitive emissions will be included to the extent that they are quantifiable, only if the source belongs to one of the source categories listed pursuant to section 302(j) of the Act (
We are finalizing this provision after seeking comment in the proposal as to whether in calculating the emission levels for applicability purposes, you should include fugitive emissions, to the extent they are quantifiable, for all sources or include them only for source categories listed pursuant to section 302(j) of the Act or exclude them for all sources.
Commenters who supported the approach of including fugitive emissions for all sources believed that the mandate of the minor NSR program is based on protection of air quality throughout the nation. Additionally, they believed that fugitive emissions are a large proportion of the air pollutants in Indian country and therefore EPA must require fugitive emissions to be included in determining applicability. However, many commenters argued that fugitive emissions at minor sources are minuscule and a requirement to include them would be excessive. Some of these commenters believed that the costs for complying with minor NSR for fugitive emissions could potentially be substantial and that fugitive emissions are inherently difficult to quantify. In addition, one commenter added that fugitive emissions should only be included for source categories listed under section 302(j) of the Act, citing an extensive analysis of the history of regulating fugitive emissions under NSR.
Based on the comments received, we are finalizing provisions that require including fugitive emissions in the minor NSR applicability determination, to the extent that they are quantifiable, only if the source belongs to one of the source categories listed pursuant to section 302(j) of the Act (
For the source categories listed pursuant to section 302(j) we have historically identified these source
We have the discretion under CAA section 110(a)(2)(c) to follow a similar approach in the minor source program as long as the NAAQS are protected and we are using that discretion because we believe it would be unreasonably cumbersome and costly to expect the wide variety of minor source types not on the section 302(j) list to be able to quantify their fugitive emissions.
Without discounting the fact that fugitive emissions from individual sources or source categories may be significant contributors to air pollution, we believe that, as a whole, the air quality impacts of emissions from the number of sources that would likely be excluded from minor NSR because of exclusion of their fugitive emissions are likely to be small and therefore not commensurate with the regulatory and economic burden we would impose on minor sources in Indian country if we were to require the estimation of fugitive emissions for all minor sources and subject them to permitting based on those emissions. This is especially the case since we are developing a program that applies generically to sources in Indian country regardless of whether fugitive emissions from major or minor sources are a significant source of air pollution in a specific location. Given this diversity and the potential costs, our approach strikes a reasonable balance.
Finally, this approach in our final rule is consistent with how fugitive emissions are treated in some state minor source programs. Therefore, we are finalizing the new minor source applicability requirements mainly as proposed and under 40 CFR 49.153(a).
Under this final rule, a modification means any physical or operational change that would cause an increase in the allowable emissions of a minor source or an increase in the actual emissions (based on the applicable test under the major NSR program) of a major source for any regulated NSR pollutant or that would cause the emission of any regulated NSR pollutant not previously emitted. Allowable emissions of a minor source include fugitive emissions, to the extent that they are quantifiable, only if the source belongs to one of the source categories listed in 40 CFR 52.21(b)(1)(iii) for PSD and 40 CFR part 51, Appendix S, paragraph II.A.4(iii) for nonattainment major NSR. The following exemptions apply:
• A physical or operational change does not include routine maintenance, repair or replacement.
• An increase in the hours of operation or in the production rate is not considered an operational change unless such change is prohibited under any permit condition that is enforceable as a practical matter (as defined in 40 CFR 49.152).
• A change in ownership at a stationary source.
• The emissions units and activities listed in 40 CFR 49.153(c).
We are finalizing this definition under 40 CFR 49.152 after requesting comments as to whether the term modification should be based on an increase in allowable emissions or actual emissions.
Commenters who supported our proposal to adopt a definition of the term “modification” based on an increase in allowable emissions (allowable-to-allowable test) believed that this test would be a simpler test than the actual-to-projected-actual test that applies to the major NSR program; it will be less costly, less time consuming and less complicated for Tribal minor sources and it is legal under the CAA and consistent with some state and local minor NSR programs that we have approved in SIPs pursuant to section 110 of the Act. On the other hand, commenters who opposed the allowable emissions test believed that this test is less stringent than the alternative tests and/or it is contrary to the Act and recent court decisions. They also believed that the allowable-to-allowable test will be inconsistent with the major NSR program and it does not ensure that the NAAQS are achieved (
For the most part, we agree with those commenters that endorsed the concept of defining the term modification for the minor NSR program as a change in allowable emissions. As we stated in the proposal (71 FR 48696), we evaluated the three basic types of applicability tests (actual-to-potential, actual-to-projected-actual and allowable-to-allowable) and determined that the allowable-to-allowable test is the most suitable for Indian country because, apart from being a simple test, it will help with implementation of the program for the minor sources in Indian country that, to date, have little experience with air regulations. Since minor sources in Indian country have been unregulated until now, many of these sources have not kept track of actual emissions data, making the initial application of any test based on actual emissions virtually impossible. In addition, we understand that some state minor NSR programs use an allowable-to-allowable test which would make this program for Indian country consistent with the programs in these states.
In addition and as we discussed in the proposal preamble, we believe that we have the discretion to use an allowable-to-allowable test for this minor NSR program because the statutory basis for minor NSR is section 110(a)(2)(C) of the Act. By contrast, parts C and D of title I of the Act provide the statutory basis for the major NSR program and refer to section 111(a)(4) of the Act (the definition of “modification” for purposes of the new source performance standards (NSPS)) in defining “modification” for purposes of the major NSR program. The DC Circuit Court of Appeals has ruled that, based on the wording of the definition of
To address the concerns of those commenters who expressed that the allowable-to-allowable test is less stringent than an actual-emissions-based test or that this test is at odds with section 110(a)(2)(C) of the Act, we commit to conducting a study to collect actual emissions data for a period of 5 years from the minor source registration program
Furthermore, because of our concern that some minor modifications at major sources might escape review under the minor NSR program as proposed, we are finalizing that the applicability of the minor NSR program to minor modifications at major sources be based on the actual-to-projected-actual test used in the applicable major NSR program. Thus, in the final rule, if a proposed modification at an existing major source does not qualify as a major modification (which would be subject to major NSR) based on the actual-to-projected-actual test, it is considered a minor modification and is subject to the minor NSR program if the net emissions increase from the actual-to-projected-actual test is equal to or exceeds the minor NSR thresholds listed in Table 1 in section IV.A.3 of this preamble. The rationale for using an allowable-to-allowable test for modifications at minor sources in Indian country—that actual emissions data are not available for minor sources and an actual-emissions-based test would be beyond the capabilities of many minor sources—does not apply to modifications at major sources. We believe this approach will be simpler and more efficient than an approach requiring the use of a second, allowable-to-allowable test for the minor NSR program. Hence, we are revising the definition of modification under 40 CFR 49.152 accordingly.
We are also making a change to the definition of modification related to the treatment of fugitive emissions. Now this definition includes provisions to account for fugitive emissions, to the extent they are quantifiable, only if the source belongs to one of the source categories listed pursuant to section 302(j) of the Act (
To determine if your proposed physical or operational change is subject to the minor NSR program (
For a physical or operational change at your existing minor source, you will first determine if the change qualifies as a major source by itself (
For modifications at existing minor sources that do not qualify as major sources by themselves, the total increase in allowable emissions resulting from the proposed change at your source, including fugitive emissions to the extent they are quantifiable, only if the source belongs to one of source categories listed pursuant to section 302(j) of the Act, would be the sum of the following:
• For each new emissions unit that is to be added, the emissions increase would be the potential to emit of the unit.
• For each emissions unit with an allowable emissions limit that is to be changed or replaced, the emissions increase would be the allowable emissions of the emissions unit after the change or replacement minus the allowable emissions prior to the change or replacement. However, this may not be a negative value. If the allowable emissions of an emissions unit would be reduced as a result of the change or replacement, use zero in the calculation.
• For each unpermitted emissions unit (
If the total increase in allowable emissions resulting from your proposed modification at your minor source causes an increase in allowable emissions for one or more regulated NSR pollutants above the applicable minor NSR threshold (
If the total allowable emissions increase from your modification is less than the corresponding minor NSR threshold listed in Table 1, the modification is not subject to this minor NSR rule. Under this scenario, if a permitted allowable emissions limit of one or more emissions units increases, you must apply for an administrative permit revision to amend the allowable
At proposal, we asked for comments as to whether minor sources in Indian country should be allowed to take credit for concurrent emissions reductions that would result from a proposed modification under the concept commonly known as “project netting.”
Several commenters supported our proposal to allow “project netting” in the minor NSR program for determining whether a proposed project qualifies as a modification. However, we are not finalizing the “project netting” concept at this time to be consistent with our position in the major NSR program (
As proposed, the “minor NSR thresholds” in this final rule establish cutoff levels for which sources with emissions lower than the thresholds would typically be exempt from the minor NSR rules (
Various commenters supported the development of thresholds and no comments were received against this concept. However, some commenters wanted us to finalize less [
After consideration of comments received and further evaluation of the proposed thresholds, we are finalizing the minor NSR thresholds as proposed, except for the NO
Furthermore, we continue to believe that the sources with emissions below the thresholds will be inconsequential to attainment or maintenance of the NAAQS because the national source distribution analysis in the proposal (71 FR 48702) applied to the national source distribution at the time (sources inside and outside of Indian country) and not only to estimates of the possible number of existing sources in Indian country. For each pollutant, we found that only around 1 percent (or less) of total emissions would be exempt from review under the minor NSR program. At the same time, the thresholds would promote an effective balance between environmental protection and source burden because anywhere from 42 percent to 76 percent of sources (depending on the pollutant) would be too small to be subject to preconstruction review.
In addition, we believe that such thresholds are included in many of the minor NSR programs in surrounding states, which will allow us to begin leveling the playing field with the surrounding state programs and will result in a more cost-effective program by reducing the burden on sources and reviewing authorities.
These thresholds, however, are neither the most stringent nor the least stringent of the levels found in existing state minor NSR rules since they represent a reasonable balance between environmental protection and economic
Certain emissions units and activities at minor sources either do not emit regulated NSR pollutants to the ambient air or emit these pollutants in negligible amounts. Therefore, under 40 CFR 49.153(c), we are finalizing a list of units and activities at minor sources that are exempt from this rule:
1. Mobile sources;
2. Ventilating units for comfort that do not exhaust air pollutants into the ambient air from any manufacturing of other industrial processes;
3. Noncommercial food preparation;
4. Consumer use of office equipment and products;
5. Janitorial services and consumer use of janitorial products;
6. Internal combustion engines used for landscaping purposes; and
7. Bench scale laboratory activities, except for laboratory fume hoods and vents.
This list we have finalized is an amended list from the exempted units and activities we proposed since we are not exempting air-conditioning units for comfort and heating units for comfort until we can study the implications of the new rules for greenhouse gases (
Furthermore, we would like to clarify that the list of exemptions included in the proposal's regulatory text included mobile sources, although mobile sources were inadvertently left out of the exempted units and activities discussion in the proposal's preamble. Therefore, we have added mobile sources to the list in this preamble and have decided to keep mobile sources in the list of exempted units and activities in this final rule because we continue to believe that it is not appropriate to include mobile sources in a stationary source permitting program and we did not receive any comments suggesting that mobile sources should be removed from the list of exemptions.
Nevertheless, many commenters noted that state and local agencies often exempt many more types of emissions units and activities and suggested that we should expand the exemptions included in the final minor NSR rule. Some of these commenters also argued that failure to expand the list of exemptions will significantly burden operators of minor sources wishing to locate in Indian country, especially the oil and gas industry and will thereby disadvantage Tribes.
In light of the comments received, we agree that the list of exempted units and activities might need to be expanded. Therefore, we intend to propose and finalize a separate rule to seek public comment on the issue of whether additional units or activities should be exempted from the minor NSR program.
As the owner or operator of a proposed new minor source or a proposed modification that is subject to the rule (see 40 CFR 49.154), you must submit a complete application to the reviewing authority requesting a minor NSR permit specific to your source (unless you are seeking a “general permit”). In addition to basic information identifying and describing your source, your application must include a list of all affected emissions units. “Affected emissions units” are defined as all the emissions units at your proposed new minor source or all the new, modified and replacement emissions units that comprise your proposed modification (excluding the exempt emissions units and activities listed in proposed 40 CFR 49.153(c)).
Your application must also document the increase in emissions of regulated NSR pollutants that will result from your new source or modification so that the reviewing authority can verify that you are subject to this minor NSR program, rather than to major NSR. For each new emissions unit that you list, you must provide the PTE in tpy for each regulated NSR pollutant, along with supporting documentation. For any modified or replacement unit that you list, you must provide the allowable emissions of each regulated NSR pollutant in tpy before and after the modification or replacement, along with supporting documentation. For emissions units that do not have an established allowable emissions level prior to the modification, you must provide the pre-change PTE. For the post-change allowable emissions for these units, you may provide the unrestricted post-change PTE or may propose a lower level of allowable emissions. The allowable emissions for any emissions unit are calculated considering any emissions limitations that are enforceable as a practical matter on the unit's PTE. In calculating these emissions levels for applicability purposes you should include fugitive emissions, to the extent they are quantifiable, only for source categories listed pursuant to section 302(j) of the Act (and as described in sections IV.A.1 and IV.A.2 of this preamble).
Furthermore, you may include in your application proposed emission limitations for the listed emissions units. If you do, you must account for these limitations in your calculations for post-construction PTE and/or allowable emissions.
The application also must identify and describe any existing air pollution control equipment and compliance monitoring devices or activities relevant to the affected emissions units, as well as any existing emissions limitations or work practice requirements to which any affected emissions units are subject.
No commenters expressed concern with the proposed permit application requirements described above except for the concept of PAL.
Based on the comments received, we are finalizing the permit application requirements mainly as proposed, with only two exceptions.
In addition, we would like to clarify that if your source is in a source category covered by a general permit issued under proposed 40 CFR 49.156, you may apply for the general permit for that source category instead of a site-specific permit. The permit application requirements for a particular general permit will be specified in that general permit. General permits, including the comments we received about them, are discussed further in section IV.C of this preamble.
After determining that your application is complete (
As required under section 110(a)(2)(C) of the Act, this minor NSR permitting program for Indian country is primarily designed to assure that the NAAQS are achieved and to prohibit any minor source from emitting any air pollutant in amounts that would contribute to nonattainment or interfere with maintenance of the NAAQS. Therefore, with this single program applicable to all areas of Indian country where there is no EPA-approved implementation plan, we are trying to ensure the NAAQS protection required by the CAA, while still allowing sufficient flexibility in control technology requirements for minor sources located in Indian country. By control technology, we mean pollution prevention techniques; add-on pollution control equipment; design and equipment specifications; work practices and operational restrictions.
For this review, the reviewing authority will consider local air quality needs, typical control technology used by similar sources in surrounding areas, anticipated economic growth in the area and cost-effective control alternatives. At a minimum, the reviewing authority must require control technology that assures that the NAAQS are achieved and that each affected emissions unit will comply with all requirements of 40 CFR parts 60, 61 and 63 that apply. The required control technology resulting from such a review may range from no control technology, to control technology that is less stringent than the reasonably available control technology (RACT) level of control (which is typically required for existing major sources in nonattainment areas), to technology that is the BACT level of control (which is the level required for new major sources and major modifications in attainment areas). The control technology chosen would depend on the air quality needs of the area, other applicable regulatory programs of the Act and technical and economic feasibility.
Furthermore and based on the results of the control technology review, the emission limitations required by the reviewing authority may consist of numerical limits on the quantity, rate or concentration of emissions; pollution prevention techniques; design standards; equipment standards; work practice standards; operational standards or any combination thereof. If it is technically and economically feasible, the reviewing authority must require a numerical limit on the quantity, rate or concentration of emissions for each affected emissions unit at your source.
For a new minor source that is subject to this rule, the case-by-case control technology review would be conducted for all emissions units (except the exempt emissions units and activities discussed in section IV.A.4 and listed in the final 40 CFR 49.153(c)) that emit or have the potential to emit the pollutant(s) for which the source is subject to this rule. For a modification, such control technology review would apply only to the affected emissions unit(s) at your source.
At proposal, we sought comment on the proposed case-by-case control technology review for all new and modified sources subject to this minor NSR program. Therefore, we sought comment on whether a control technology requirement is necessary to achieve the purposes of the Act or whether other approaches can achieve these purposes just as well with less cost and administrative burden.
Several commenters supported the case-by-case control technology review. These commenters believed that a case-by-case control technology review would allow and promote economic growth and development that is tailored to the needs in Indian country, while one of these commenters added that having no capacity to impose controls on minor sources would seem to defeat the purpose of a permitting process for such facilities because a paper permit that could not impose any controls adds nothing to existing regulation or protection of public health and the environment. Furthermore, several commenters supported a clearly defined, standardized method for determining the required level of control, while one commenter stated that a system that requires a single set of controls for all minor sources across Indian country does not provide the needed flexibility to adapt regulation to the needs of individual areas of Indian country or to take into account the benefit of a level playing field with the surrounding areas.
On the other hand, other commenters opposed any control technology requirement. These commenters believed that a Federal program is likely to be applied inconsistently, resulting in a competitive disadvantage for sources located in certain areas; EPA has no authority to impose a control technology requirement under section 110(A)(2)(C) of the Act and a separate control technology review process under minor NSR is unnecessary when the threat of PSD review will otherwise accomplish the ultimate objective—protection of air resources (
We disagree with commenters that oppose any control technology requirement or who suggested that we have no authority to require such controls. Section 110(a)(2)(c) requires us to assure that the NAAQS are achieved and we believe that requiring control technologies when necessary will ensure the NAAQS are protected as established in this section. Furthermore, section 110(a)(2)(c) does not preclude us from requiring additional provisions that will further the goal of NAAQS protection and the fact that the statutory language requires a control technology review under some statutory provisions does not mean that the statute prohibits EPA from requiring it under other provisions.
We also disagree with those commenters that would like us to implement consistent control technologies across the nation. As we stated in the proposal, it would be impossible to create a single program that creates precisely equivalent regulations among all areas of Indian country. We wish to ensure that Indian country is not seen as a potential “pollution haven” where minor sources can go to escape air pollution control requirements and we also do not want to put Tribes or owners and operators locating in Indian country at a competitive disadvantage by requiring substantially more stringent controls in a particular area of Indian country than are required in the surrounding areas. Therefore, a case-by-case control technology review provides the reviewing authority with the flexibility to create requirements that protect public health and environment, but also takes into consideration the needs of the area in question based on its current air quality situation, the potential air quality impacts from the growth associated with the source and the technological and economic feasibility of the control technology as well as the control technologies in use in the surrounding states.
Therefore, we are finalizing the case-by-case control technology review requirements as proposed. The final rules require your reviewing authority to perform a control technology review on a case-by-case basis when issuing a site-specific minor NSR permit.
If your reviewing authority has reason to be concerned that the construction of your minor source or modification could cause or contribute to a NAAQS or PSD increment violation, your reviewing authority may require you to conduct an AQIA using dispersion modeling in accordance with 40 CFR part 51, Appendix W, to determine the impacts that will result from your new source or modification. If the AQIA demonstrates that the construction of your source or modification would cause or contribute to a NAAQS or PSD increment violation, you would be required to further reduce its impact before you could obtain a permit.
Various commenters supported requiring an AQIA and added that they would like us to develop guidance on when and how an AQIA analysis should be performed. On the other hand, several commenters believed that AQIAs would be excessive, very costly and time consuming for small businesses.
Based on the comments received, we are finalizing the AQIA provisions as proposed at 40 CFR 49.154(d). We continue to believe that allowing reviewing authority discretion for when an AQIA might be required ensures that construction of new minor sources or modifications at existing minor sources do not cause or contribute to a NAAQS or PSD increment violation when needed, but limits overburdening all minor sources in Indian country with these types of air quality analysis. Nevertheless, to aid the reviewing authorities in the determination of when an AQIA might be needed for minor NSR sources in Indian country and to address the commenters' suggestions, we intend to develop guidance on the scope of the AQIA that will consider the suggestions presented by these commenters. We are also eliminating the language in the proposal preamble that stated (71 FR 48704) that AQIAs will be required “[i]n rare instances.” Since the reviewing authority has the discretion to require an AQIA, it is difficult to predict that such AQIAs will be required only in rare instances.
The requirements for permits issued pursuant to site-specific preconstruction review include the following (
• The effective date of the permit and the date by which you must commence construction on your approved project in order for your permit to remain valid (
• The emissions units subject to the permit and their associated emissions limitations.
• Monitoring, recordkeeping, reporting and testing requirements to assure compliance with the emission limitations.
In addition, the permit should include a number of standard permit terms. These include emission limitations, monitoring recordkeeping and reporting requirements as well as terms such as a severability clause (to ensure the continued validity of the other portions of the permit in the event of a challenge to a portion of the permit), a requirement to comply with all conditions of the permit, a requirement that the permitted source does not cause or contribute to a NAAQS violation and inspection and entry provisions requiring that you allow representatives of the reviewing authority to enter and inspect your source.
Your permit must include 2 types of emission limitations:
• The emissions limitations for each affected emissions unit determined by the reviewing authority based on the case-by-case technology review discussed previously in section IV.B.2 of this preamble.
• Limits on annual allowable emissions in tpy.
Emission limitation, as defined in 40 CFR 49.152, means a requirement established by the reviewing authority that limits the quantity, rate or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emissions reduction and any design standard, equipment standard, work practice, operational standard or pollution prevention technique. Allowable emissions (also as defined under 40 CFR 49.152) means “allowable emissions” as defined in 40 CFR 52.21(b)(16), except that the allowable emissions for any emissions unit are calculated considering any emissions limitations that are enforceable as a practical matter on the emissions units' potential to emit. Once established in the permit, annual allowable emissions become the basis for determining whether a later change at your source will result in an increase in allowable emissions subject to permitting under this program.
We did not specifically receive comments on these two types of emissions limitations that must be included in your permit. Therefore we are finalizing these emissions limitations at 40 CFR 49.155(a)(2) as proposed.
Additionally, we would like to clarify, as some commenters requested, a couple
Therefore, we want to clarify that the reviewing authority may not only require annual emissions limits in the minor NSR permits, but also short-term limits as necessary. Short-term emission limits may also be required as part of any enforceable emission limitation and, if applicable, depending on the relevant ambient air quality standard associated with the regulated pollutant.
Furthermore, the term “on a continuous basis” in the definition of emission limitation does not imply that every emission limitation must be complied with on an instantaneous time period and accompanied by a CEMS. The term “on a continuous basis,” as the commenter suggests, means that the limitation applies “at all times,” but not that the emission limitation has to be accompanied by a CEMS. There are various ways to monitor compliance with limitations that apply on a continuous basis as we mention in the next section.
The monitoring, recordkeeping and reporting requirements have been finalized under 40 CFR 49.155. Specifically, the final monitoring requirements are under 40 CFR 49.155(a)(3), the final recordkeeping requirements under 49.155(a)(4) and the final reporting requirements under 40 CFR 49.155(a)(5).
We did not receive any specific comments regarding the monitoring and recordkeeping requirements, but several commenters commented on the reporting requirements. Some of these commenters specifically asserted that requiring annual monitoring reports for minor sources is overly burdensome, while another commenter would like us to require monitoring reports to be submitted at least annually, to give the reviewing authority flexibility to require semiannual monitoring reports and in accordance with the title V reporting schedule. Other commenters recommended that for reporting deviations the word “prompt” should be defined within the regulation.
We disagree with those commenters that state that the monitoring, recordkeeping and reporting requirements are too burdensome because, as stated in the proposal, sections 110(a)(2)(A) and 110(a)(2)(C) of the Act require that a preconstruction permitting program provide for the enforcement of measures that include “enforceable emission limitations and other control measures, means or techniques * * * as well as schedules and time-tables for compliance.” In addition, section 110(a)(2)(F) requires that a permitting program may require “the installation, maintenance and replacement of equipment and the implementation of other necessary steps by owners and operators of stationary sources to monitor emissions from such sources,” as well as periodic reports on the nature and amounts of emissions and emissions-related data from such sources. Therefore, we believe that, for example, annual reporting requirements will ensure that sources are complying with their annual emissions limits as well as any other limits determined by the reviewing authority.
However, we do not believe that requiring monitoring reports more frequently than annually, as one commenter suggested, would be appropriate for minor sources. Minor sources are typically much smaller than the title V sources the commenter is referring to and therefore requiring monitoring reports more frequently than annually might be overly burdensome for these sources. However, we encourage reviewing authorities to develop annual monitoring schedules in accordance with title V permit monitoring schedules if that facilitates the reporting of emissions to the reviewing authority.
We also disagree with the commenters that would like us to define the word “prompt” for the reporting of deviations. We continue to believe that deferring the definition of this term to the reviewing authority is more appropriate to ensure that the respective permits are protective of the NAAQS while also ensuring that the particular needs of the area where the source is being permitted are considered. For example, if a source is locating in a particular area of Indian country, the reviewing authority might define this term by considering the provisions of the state and/or the air quality control districts surrounding the area of Indian country where the source is locating as well as technical and economical feasibility. Therefore, we are finalizing the monitoring, recordkeeping and reporting requirements as proposed and these requirements will be included in each permit as necessary to assure compliance with the source's emission limitations.
Under 40 CFR 49.155(a)(7), we have finalized other permit requirements. Specifically, these requirements include inspection and entry provisions under 40 CFR 49.155(a)(7)(vii) that state that upon presentation of proper credentials, you, as the permittee, must allow a
• Enter upon your premises where a source is located or emissions-related activity is conducted or where records are required to be kept under the conditions of the permit;
• Have access to and copy, at reasonable times, any records that are required to be kept under the conditions of the permit;
• Inspect, during normal business hours or while the source is in operation, any facilities, equipment (including monitoring and air pollution control equipment), practices or operations regulated or required under the permit;
• Sample or monitor, at reasonable times, substances or parameters for the purpose of assuring compliance with the permit or other applicable requirements; and
• Record any inspection by use of written, electronic, magnetic and photographic media.
Commenters on these requirements wanted us to clarify that as the reviewing authority representative enters the source premises for any inspection, the reviewing authority “must comply with the safety requirements of the permittee.” Upon further evaluation of these provisions, we do believe that the representative of the reviewing authority should follow standard safety requirements identical to the ones that apply to the permittee's employees.
Under 40 CFR 49.154(b), we have finalized definite timelines for the overall minor source permit issuance process that vary depending on the type of source being regulated under the minor NSR program. The timelines are described as follows:
• For minor sources seeking a site-specific permit, the permit issuance process timeline includes a period of 45 days for the application completeness review as well as a 30-day public comment period. Any site-specific permit will be granted or denied no later than 135 days after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided.
• For minor modifications at major sources seeking coverage under a site-specific permit, the permit issuance process timeline includes a period of 60 days for the application completeness review as well as a 30-day public comment period. Any site-specific permit will be granted or denied no later than 1 year after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided.
• For minor sources seeking coverage under a general permit (discussed in section IV.C of this preamble and under 40 CFR 49.156), the permit issuance process timeline includes a completeness review period of 45 days. Any request for coverage by individual sources under a general permit will be granted or denied within 90 days of the receipt of such request for coverage by the reviewing authority. We believe that since the general permit requirements have been subject to public notice when the general permit was developed, a shorter permit issuance process is warranted for determining whether a source is eligible for coverage under the general permit.
• For synthetic minor sources (discussed in section IV.D of this preamble and under 40 CFR 49.158), the permit issuance process timeline includes, as proposed, a period of 60 days for the application completeness review as well as a 30-day public comment period. Any synthetic minor permit will be granted or denied no later than 1 year after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided.
The application for a permit under this program will be reviewed by the reviewing authority within 45 days of its receipt for site-specific permits (60 days from its receipt for synthetic minor permits and minor modification at major sources) to determine whether the application contains all the information necessary for processing the application. If the reviewing authority determines that the application is not complete, it will request additional information as necessary to process the application. If the reviewing authority determines that the application is complete, it will notify you in writing. The reviewing authority's completeness determination or request for additional information should be postmarked within 45 days of receipt of the permit application by the reviewing authority for site-specific permits (60 days of receipt of the permit application by the reviewing authority for synthetic minor permits and minor modifications at major sources). If you do not receive a request for additional information or a notice of complete application postmarked within 45 days of receipt of the permit application by the reviewing authority for site-specific permits (60 days for synthetic minor permits and minor modification at major sources), your application will be deemed complete. Once the application is complete, your reviewing authority will develop a draft permit and provide public notice seeking comments on the draft permit for a 30-day period. After considering all timely, relevant comments, if your reviewing authority determines that your new source or modification meets all applicable requirements, it will issue you a final permit. Otherwise, the reviewing authority will send you a letter denying your permit application with reasons for the denial.
We decided to finalize a definite timeline for the overall minor source permit issuance process that varies depending on the type of source being regulated under the minor NSR program because we agree with those commenters who believed that this timeline will provide regulatory certainty for the regulated community and the public, as well as time for the regulated community and the reviewing authority to plan for the permit issuance process. Specifically, commenters believed that the proposed permit issuance process was too lengthy and/or too uncertain for minor sources. They argued that state minor NSR programs are bound by shorter and more definite time lines. In addition, a few commenters believed that the proposed language could allow a permit application to be held without a final decision for an unreasonable period, resulting in serious financial burden, lost business opportunities, a delay in the project and even cancellation of the project.
Furthermore, we have amended our proposed completeness review procedures, as suggested by some commenters and we will no longer require that if the source has not received a notice of completeness or a request for additional information in 50 days, that the application would be deemed complete. We agree with those commenters that expressed concerns that this provision can be confusing. Therefore and as we stated previously, if you do not receive a request for additional information or a notice of complete application postmarked within 45 days of receipt of the permit application by the reviewing authority for site-specific permits (60 days for synthetic minor permits and minor modification at major sources), your application will be deemed complete. The permit issuance procedures for general permits are discussed in section IV.C.5 of this preamble.
Under 40 CFR 49.155(b), we have finalized provisions that state that your permit remains valid as long as you commence construction on your project within 18 months after the effective date of the permit, you do not discontinue construction for a period of 18 months or more and you complete construction in a reasonable time. The reviewing authority may extend the 18-month period where justified and that 18-month limit does not apply to the time period between construction of approved phases of a phased construction program. In those cases, you must commence construction of each such phase within 18 months of the approved commencement date for that phase.
We received only one comment about the permit term provisions. This commenter had concerns about the proposal preamble language that stated that: “a preconstruction permit does not expire.” Specifically, this commenter stated that it may be appropriate to specify that the permit does expire after a specified period, subject to renewal for a specified period upon showing of diligence by the source. If a preconstruction permit does not expire, the commenter argues that the permit term provisions may be administratively impractical to implement.
Upon further review of these provisions, we have noticed that the language we used in the proposal preamble was not consistent with the provisions we proposed under 40 CFR 49.155(b). Under 40 CFR 49.155(b), we proposed provisions for when permits become invalid and did not state that “a preconstruction permit does not expire.” Therefore, we have eliminated the proposal preamble language that stated that permits do not expire and we are finalizing the proposed provisions as stated under 40 CFR 49.155(b).
In addition, we would like to clarify that permits under this program would not be revoked at the source's request when there is a rapid decrease in production, as a few commenters recommended. In such a case, the limits of these permits might be revised appropriately to account for the reduction, but the permit would not be revoked. Permits will be revoked only if the source officially shuts down its operation and notifies the reviewing authority about the business closure.
We have finalized our public participation requirements under 40 CFR 49.157 for site-specific permits, minor modification at major sources, synthetic minor sources and the initial development of a general permit for a source category. Pursuant to these requirements, the reviewing authority is required to prepare a draft permit and provide adequate public notice to ensure that the affected community and the general public have reasonable access to the application and draft permit information. The reviewing authority must make such information available for public inspection at the appropriate EPA Regional Office and in at least one location in the area affected by the source, such as the Tribal environmental office or a local library. The public notice must provide an opportunity for public comment and a public hearing on the draft permit. The appropriate types of notice may vary depending on the proposed project and the area of Indian country that would be affected.
In all cases, the reviewing authority must mail a copy of the notice to you (the permit applicant); the appropriate Indian governing body and the Tribal, state and local air pollution authorities having jurisdiction adjacent to the area of Indian country potentially impacted by the air pollution source. In addition, the reviewing authority may elect to provide public notice for a given situation as appropriate and depending on such factors as the nature and size of your source, local air quality considerations and the characteristics of the population in the affected area. The optional methods of notifying the public include the following:
• Mailing or e-mailing a copy of the notice to persons on a mailing list developed by the reviewing authority consisting of those persons who have requested to be placed on such a mailing list.
• Posting the notice on its Web site.
• Publishing the notice in a newspaper of general circulation in the area affected by the source. Where possible, the notice may also be published in a Tribal newspaper or newsletter.
• Providing copies of the public notice for posting at locations in the area affected by your source. We expect that such locations might include post offices, libraries, Tribal environmental offices, community centers and other gathering places in the community.
• Other appropriate means of notification.
Furthermore, the reviewing authority must provide for a 30-day public comment period on the draft permit. After considering all relevant public comments, the reviewing authority will make a final decision to issue or deny your permit. The public (including you, the permit applicant) will have an opportunity to appeal the final decision under 40 CFR 49.159. Final permit issuance and the opportunity for appeal are discussed further in the next section of this preamble.
Several commenters supported the proposed public participation requirements stating that they like the proposed mix of mandatory and optional approaches to notices, while others suggested that the overall permitting process should be shortened. On the other hand, other commenters argued that the proposed public participation requirements were too burdensome, time consuming and will be open to abuse by persons who oppose any sort of development including development from very small projects. Therefore, some of these opposing commenters suggested adding a
After careful consideration of these comments, we are finalizing our public participation requirements for site-specific permits, minor modifications at major sources, synthetic minor permits and the initial development of a general permit for a source category as proposed, with the clarification that the appropriate types of notice will take into consideration any seasonal activities that may conflict with the public participation of the local community (
We are not matching the public participation requirements to the environmental significance of the project, as some commenters suggested, because we believe that the public has the right to know about any permitting actions occurring in their area notwithstanding the environmental significance of the project and that a 30-day public comment period on a permitting action, as in our existing regulations, is an appropriate timeline for this purpose.
In addition, we do not believe that our public participation requirements need to be strengthened at this time, as some commenters suggested, because we used the existing regulations under 40 CFR 51.161 as the basis for our public noticing requirements and added additional optional provisions to ensure that factors such as the nature and size of the source, the local air quality and the characteristics of the population in the area are considered. Therefore, we believe that these requirements are more detailed than the requirements in our existing regulations under 40 CFR 51.161 and do not need to be strengthened even further at this time.
We also continue to believe that, as proposed, the reviewing authority should be able to hold a public hearing at its own discretion. We believe that the reviewing authority is in the best position to determine whether there is significant interest in a hearing on a case-by-case basis and to decide whether it is more administrative and economically prudent to ask a small number of commenters to submit their comments in writing.
To address any concerns about the length of the entire permit issuance process, we are finalizing definite timelines for the overall permitting process depending on the source type.
In general, these provisions are based closely on selected provisions of part 124, subpart A. The specific provisions are as follows:
Under 40 CFR 49.159(a), we have finalized provisions regarding how final action on a permit will occur. Specifically we state that after a decision to issue or deny your permit, the reviewing authority must notify you, the permit applicant, of the decision in writing and, if the permit is denied, provide the reasons for the denial and the procedures for appeal. If the reviewing authority issues a final permit to you, the reviewing authority must provide adequate public notice of the final permit decision to ensure that the affected community, general public and any individuals who commented on the draft permit have reasonable access to the decision and supporting materials.
Furthermore, under 40 CFR 49.159(b) we have finalized provisions regarding how long the reviewing authority will retain permit-related records and under 40 CFR 49.159(c) the requirements on what must be in that record. For example, the records must be kept by the reviewing authority for not less than 5 years. The administrative record must include the application and any supporting data furnished by the applicant and all comments received during the public comment period, including any extension or reopening.
A few commenters supported the proposed provisions for providing notice of final permit actions, which included making a copy of the final permit available at all of the locations where the draft permit was made available. These commenters believed that such notice should be provided in the same manner that it was provided during the public comment on the draft permit and not depend, as we proposed, “upon the circumstances of your permit”.
On the other hand, a few commenters indicated that the proposed notification requirements are excessive. They believed that the proposed requirements are more stringent than the requirements for major sources under the PSD program and/or the part 71 program, which they believed is unwarranted because the impact for minor sources on public health and/or the environment would be much lower than major sources. Furthermore, some of these commenters argued that EPA may find the proposed requirements burdensome and expensive unless the method of notice is limited to something such as publication on EPA's Web site.
Based on the comments received, we agree that, for site-specific permits, making a copy of the permit available at all of the locations where the draft permit was made available might be too burdensome for the reviewing authorities. Accordingly, we are amending 40 CFR 49.159(a) to require copy of the final permit decision to be made available at all of the locations where the draft permit was made available for synthetic minor sources and minor modifications at major sources, but we are requiring the reviewing authority to only elect one or more of the methods for public noticing under 40 CFR 49.157(b)(1)(ii) for site-specific permits. As proposed, sources are required to post, prominently, a copy of the letter granting the request for coverage under the general permit at the site where the source is locating. More details about the general permit provisions are provided in section IV.C of this preamble.
Regarding the administrative record for a permit decision, several commenters commented on how long the reviewing authority should retain permit-related records. These commenters agreed with the provision of keeping records for not less than 5 years, while one commenter specifically asked us to require the reviewing authority to retain permit records for the life of the source. We believe that keeping permit records for the life of the source will be too burdensome, especially when we do not require permit records for major sources under some provisions of the major NSR program to be kept for more than 5 years either. Therefore, we have finalized, as proposed and under 40 CFR 49.159(b), that the reviewing authority must retain permit-related records for not less than 5 years.
No comments were received on what must be kept on the administrative record and thus, we have also finalized these provisions, under 40 CFR 49.159(c), as proposed.
Under 40 CFR 49.159(e) we have finalized provisions regarding when your permit can be reopened. These provisions state that the reviewing authority may reopen a final, currently-in-effect permit for cause on its own initiative, such as if the permit contains a material mistake or fails to assure compliance with applicable requirements. However, except for those permit reopenings that do not increase the emissions limitations in the permit, such as permit reopenings that correct typographical errors, all other permit reopenings shall be carried out after the opportunity for public notice and comment and in accordance with one or more of the public participation requirements under 40 CFR 49.157(b)(1)(ii).
These final provisions amend the proposed provisions, which stated, among other requirements, that any person (including the permittee) may petition the reviewing authority to reopen a permit for cause, based on the comments we received. Commenters were concerned about allowing anyone—regardless of motive or lack of
We agree, as some commenters suggested, that the provisions we proposed might open potential avenues for any person, even if uninformed or maliciously intentioned, to harass and disrupt permitting operations. In addition, we did not intend to excessively restrict the reasons for why a permit should be reopened by us, as the reviewing authority, by stating in the proposal that the reviewing authority may not reopen a permit for a cause unless it contains a material mistake or fails to assure compliance with the applicable requirements. We do agree that the reasons for reopening the permit by the reviewing authority should not be limited to the permit containing a material mistake or failing to assure compliance with applicable requirements. Therefore and as stated previously, we have amended the proposed provisions by adopting the language finalized at 40 CFR 49.159(e).
Under 40 CFR 49.159(f), we have finalized provisions to allow for minor changes in the permit without these changes being subject to the permit application, issuance, public participation or administrative and judicial review requirements of the program. For example, an administrative permit revision is a permit revision that could make a change such as: (1) Correcting a typographical error, (2) requiring more frequent monitoring or reporting by the permittee or (3) identifying a change in the name, address or phone number of any person identified in the permit. However, proposed physical or operational changes that could not be implemented within the requirements of an existing permit would necessitate a permit revision, even if they are not otherwise subject to major or minor NSR. (
We agree with those commenters that support the administrative permit revision provisions for the situations outlined in the proposal and hence we are finalizing these provisions as proposed at 40 CFR 49.159(f). We believe that permit changes involving typographical errors, more frequent monitoring and reporting requirements and/or changes in ownership should not go through the overall permitting process.
We understand, however and as the opposing commenter suggested, that there might be particular concerns with the provision at 40 CFR 49.159(f)(v) where an administrative permit revision is allowed for an increase in an emissions unit's annual allowable emissions limit for a regulated NSR pollutant, when the action that necessitates such increase is not otherwise subject to review under major NSR or under this program. For example, this case could be one where a source introduces a new coating to a process line that will increase the emissions of that unit but the emissions increases from the source will not trigger the minor NSR requirements.
Although this type of change does not trigger the major or the minor NSR thresholds, we continue to believe that we need to account for these changes in emissions in the permit to know the source's current allowable emissions and to ensure that the source is complying with the applicable requirements. Therefore, an administrative permit revision can be used when the increase in an unit's allowable emissions limit for a regulated NSR pollutant is not subject to major or minor NSR.
At 40 CFR 49.159(d), we have finalized the provisions under which permit decisions may be appealed. Permit decisions may be appealed to the Environmental Appeals Board (EAB) within 30 days after a final permit decision has been issued and a final permit typically will not become effective until 30 days after the service of notice of the final permit decision. Upon filing a petition for review, the permit would be stayed (
Several commenters supported Option 1 because they believed that the EAB has greater environmental expertise and is likely to resolve issues more quickly. These commenters also argued that citizen appeals to the EAB represent an easier threshold to meet for the layperson that is aggrieved by a final agency action. They believed it is easier for most citizens to write a letter to the EAB requesting an appeal than it is to hire an attorney to sue a governmental agency.
Supporting commenters also argued that it makes more sense to delay the effective date of the permit while the issues are being resolved (rather than allowing the source to begin construction), while some of these supporting commenters would like us to allow the permit to become effective immediately upon issuance unless a later date is specified. These latter commenters believed this option will allow for development in Indian country while encouraging participation from environmental experts should an appeal occur.
Other commenters opposed Option 1. These commenters stated that delaying final permit effectiveness for 30 days after issuance will compound an already lengthy permitting process. They also argued that these provisions are not consistent with the process that most states follow with their minor NSR programs and that these provisions are
On the other hand, several commenters specifically endorsed Option 2 because it allows the source to determine whether to commence construction at its own risk. Some of these commenters also noted that this option is more consistent with most state minor NSR programs and it eliminates an intermediate step, the EAB review. These commenters also argued that Option 2 is more appropriate due to the size and amount of emissions from minor NSR sources and it expedites the permitting process. Another commenter added that for Tribes that have or will be seeking, delegation of the NSR program, the rule should allow for Tribal administrative and Tribal court review prior to going to Federal court.
Based on the comments received, we agree with those commenters that support the option of filing a petition for permit review through the Environmental Appeals Board. We believe, as some commenters stated, that the EAB has greater environmental expertise, is likely to solve issues more quickly and it will be easier for the public to file a petition through the EAB than to hire an attorney to go through the appeals process.
However, we are not allowing permits to become effective immediately upon the service of notice of the final permit decision under the EAB option, as some commenters suggested, because the proposed provisions are based upon the EAB regulations under 40 CFR 124.15 and we did not propose to allow a different approach under this rule. The EAB regulations clearly state, under 40 CFR section 124.15(b), that a final permit decision shall become effective 30 days after the service of notice of the decision unless: (1) A later effective date is specified in the decision; (2) a review is requested on the permit under 40 CFR 124.19 or (3) no comments requested a change in the draft permit, in which case the permit shall become effective immediately upon issuance. In other words, EPA regulations specify that the only permits that become effective upon issuance are those for which no comments were submitted. Furthermore, we do not believe we can allow sources to construct while the EAB process is pending, because while a permit is being reviewed by the EAB, it is not effective and thus it does not authorize construction.
Regarding the commenter that stated that delegated programs should allow for Tribal administrative and Tribal court review prior to going to Federal court, we disagree. This is because under a delegated Federal program, the delegated Indian Tribe would be assisting EPA with the administration of Federal requirements on EPA's behalf and under these Federal regulations. Any Federal requirement administered by a delegated Tribe and any permit issued by such a delegated Tribe would remain Federal actions subject to EPA enforcement and EPA appeal procedures under Federal law. On the other hand, if a Tribe develops and EPA approves a TIP that includes a NSR program, Tribally-issued NSR permits would be subject to administrative and judicial review under the applicable Tribal program as approved by EPA. Therefore, we are finalizing the administrative and judicial review procedures for Option 1 as proposed at 40 CFR 49.159(d).
A “general permit” is a preconstruction permit that may be applied to a number of similar emissions units or minor sources. The purpose of a general permit is to simplify the permit issuance process for similar facilities so that a reviewing authority's limited resources need not be expended for site-specific permit development for such facilities. A general permit may be written to address a single emissions unit, a group of the same type of emissions units or an entire minor source. We believe that general permits offer a cost-effective means of issuing permits and provide a quicker and simpler alternative mechanism for permitting minor sources than the site-specific permitting process discussed previously.
We received strong support for the development of general permits. These commenters believed that the development of general permits for sources of similar operation and emissions will simplify the permit issuance process. On the other hand, one commenter urged EPA to issue guidance for particular source categories, rather than use general permits to streamline permitting. The commenter believed that developing guidance documents is a better method.
We agree with those commenters who supported the development of general permits because we believe, as some commenters suggested, that general permits will simplify the permit issuance process, avoid the need for case-by-case control technology review for those source categories/units for which the general permit was established and reduce the administrative burden of the reviewing authorities. However, we disagree with the commenter that preferred guidance rather than general permits for the minor NSR program in Indian country. We understand that general permits are not appropriate in all circumstances, but we believe it is appropriate to develop general permits for certain source categories/units, especially for those source categories/units for which the control technology or technologies available are fairly standard. Therefore, we are finalizing the option of developing general permits as proposed under 40 CFR 49.156.
In addition, upon consideration of other alternatives to streamline minor source permitting, we plan to propose permits-by-rule for suitable source categories not covered by general permits. The permits-by-rule content and requirements will be addressed in a separate rulemaking action.
Under 40 CFR 49.156(b), we have finalized the provisions for the general permits issuance process. The reviewing authority may issue a general permit for a category of emissions units or sources that are similar in nature, have substantially similar emissions and would be subject to the same or substantially similar requirements governing operations, emissions, monitoring, reporting and recordkeeping. “Similar in nature” refers to size, processes and operating conditions.
A general permit must be issued according to the requirements for public participation in 40 CFR 49.157 and the requirements for final permit issuance and administrative and judicial review in 40 CFR 49.159. Issuance of a general permit is considered final action with respect to all aspects of the general permit except its applicability to an individual source. The sole issue that may be appealed after an individual source is approved to construct under a general permit is the applicability of the general permit to a particular source. We did not receive comments regarding the proposed general permit issuance procedures under 49.156(b). Consequently, we are finalizing the provisions under 49.156(b) as proposed.
Under 40 CFR 49.156(c), we have finalized provisions allowing the reviewing authority to determine which categories of individual emissions units, groups of similar emissions units or
General permits may be issued to cover any category of numerous similar sources, provided that such sources meet the appropriate criteria. For example, permits can be issued to cover small businesses such as gas stations or dry cleaners. General permits may also, in some circumstances, be issued to cover discrete emissions units, such as individual solvent cleaning machines at industrial complexes.
In addition, in setting criteria for sources to be covered by general permits, your reviewing authority will consider the following factors. First, categories of sources or emissions units covered by a general permit should be generally homogeneous in terms of operations, processes and emissions. All sources or emissions units in the category should have essentially similar operations or processes and emit pollutants with similar characteristics. Second, the sources or emissions units should be expected to warrant the same or substantially similar permit requirements governing operation, emissions, monitoring, recordkeeping and reporting.
A few commenters specifically requested establishing general permits for the oil and gas sector. Other commenters were more general in their general permits recommendations and stated that general permits should be adopted for categories of similar sources and emissions units and developed before the minor NSR program is adopted in Indian country. These commenters also added that EPA needs to define further the criteria for developing general permits and the categories of emissions sources to which the program may apply. For example, some of these commenters would like us to develop general permits that are consistent across all of Indian country.
Based on the comments received, we are in the process of developing general permits for various source categories under the factors mentioned. The permits will be consistent across all of Indian country, as some commenters suggested, unless there is a need to develop specific provisions or a specific general permit, for a particular area of Indian country. We also plan to develop these general permits, after the opportunity for public notice and comment, using the public noticing procedures under 40 CFR 49.157. Furthermore, we plan to update general permits, also after the opportunity of notice and comment under 40 CFR 49.157, as appropriate to account for advances in control technology or for other pertinent reasons. However, when we update a general permit, sources operating under the existing general permit will be able to continue to operate under that existing permit until such time when the source is modified.
General permits must contain the same permit elements required for permits issued under the site-specific preconstruction review rules. These permit elements are described in section IV.B of this preamble and listed in final 40 CFR 49.155(a).
In addition, the general permit must identify the specific category of emissions units or sources to which the general permit applies, including any criteria that your emissions unit must meet to be eligible for coverage under the general permit. The general permit must also include information required to apply for coverage under the general permit, such as the name and address of your reviewing authority, how to obtain application forms and the information you must provide to demonstrate that you are eligible for coverage. Finally, the reviewing authority may include other general permit terms and conditions as it deems necessary.
We did not receive any comments on the permit content requirements for general permits. Therefore, we are finalizing the general permit content requirements as proposed under 49.156(d).
Under 40 CFR 49.156(e), we have finalized provisions that state that once a general permit has been issued for a source category or category of emissions units, you may submit a request for coverage under that general permit if your proposed new minor source or modification qualifies for that permit. Alternatively, you may apply for a site-specific permit under the provisions of 40 CFR 49.154.
If your source qualifies for a general permit, you may request coverage under that general permit to the reviewing authority 4 months after the effective date of the general permit, that is, 6 months after publication of the general permit in the
Your reviewing authority must comply with a 45-day completeness review period to determine if your request for coverage under a general permit is complete. Therefore, within 30 days after the receipt of your coverage request, your reviewing authority must make an initial request for any additional information necessary to process this request and you must submit such information within 15 days. If you do not submit the requested information within 15 days from the date of the request for additional information and this results in a delay that is beyond the 45-day completeness review period, the 90-day permit issuance period for your general permit will be extended by the additional days you take to submit the requested information beyond the 45-day period. If the reviewing authority fails to notify you within a 30-day period of any additional information necessary to process your coverage request, you will still have 15 days to submit such information and the reviewing authority must still grant or deny your request for coverage under a general permit within the 90-day general permit issuance period and without any time extension.
If the reviewing authority determines that your request for coverage under a general permit has all the relevant information and is complete, we will notify you in writing as soon as that determination is made. If you do not receive from the reviewing authority a request for additional information or a notice that your request for coverage under a general permit is complete within the 45-day completeness review period described previously, your request for coverage under a general permit will be deemed complete.
As proposed, your reviewing authority shall grant or deny your request for coverage under a general permit without another 30-day public comment period. However, you must submit a copy of such request to the Tribe in the area where your source is locating. We will also post notice of the coverage request under the general permit on our Web site. During our review of your request for coverage under the general permit, commenters can only notify us of any concerns about the eligibility of your source to obtain coverage under that general permit and not on any other issue. Your reviewing authority shall grant or deny your request for coverage under a general permit as expeditiously as possible by sending you a letter notifying you of the approval or denial of your request. This letter is a final action for purposes of judicial review (
You will be subject to enforcement action for failure to obtain a preconstruction permit if you construct the emission unit(s) or source under the general permit and your source is later determined not to qualify for the conditions and terms of the general permit. Any source eligible to request coverage under the general permit may alternatively apply for a site-specific permit under 40 CFR 49.154.
We received a few comments regarding the timeline in which the reviewing authority must notify you of the final decision on a request for coverage under a general permit. These commenters argued that the 90-day period we proposed for the reviewing authority to determine coverage under the general permit should be eliminated or at least reduced to 30 days. However, we continue to believe that a 90-day permit issuance timeframe is appropriate since reviewing authorities need adequate time to determine if your request for coverage has all the relevant information and is complete. If not, the reviewing authority will need to request additional information.
Moreover, we believe it is appropriate to add a completeness review time period for sources requesting coverage under a general permit, as one commenter suggested, to ensure that both sources and reviewing authorities act on the request for coverage under a general permit as expeditiously as possible.
In regards to a 30-day public comment period for when a source requests to be covered under a general permit, some commenters expressed concerns about this provision arguing that this will significantly delay or disrupt the permitting process. Other commenters were more concerned about being informed about the sources planning to construct in their area. To address these comments, we have decided not to require a 30-day comment period for sources seeking coverage under a general permit. However, as stated previously, you and the reviewing authority must implement the other notification procedures.
Regarding the requirement to post prominent notice of the letter approving your request for coverage under a general permit, we received two comments. One of these commenters believed that we should allow the general permit and letter to be maintained at the operator's office closest to the emission source since, specifically, many oil and gas sites are unmanned. Another commenter believed that requiring an applicant to post information at the source about the fact that now a general permit will be applied to this source is duplicative of the public review and comment period and thus unnecessary.
We continue to believe that posting, prominently, a copy of the letter granting your request for coverage under a general permit at the site where the source is locating is appropriate since this will facilitate any inspection by the reviewing authority. Moreover, this will allow the public to be informed about the sources locating in their area. The original copy of this letter of approval can be kept in a safe place, for example, a corporate office, especially for source locations that are unmanned.
Accordingly, we are finalizing the general permit issuance procedures under 40 CFR 49.156(e) mainly as proposed. In addition, in the final rule we are including provisions for addressing when a general permit becomes invalid that mirror the corresponding site-specific permit provisions (see section IV.B.4.b of this preamble for more information on these provisions).
Finally we want to add that if a general permit has been issued for your source category, you have the option to request coverage under that general permit 4 months after the effective date of the permit (
Some sources have the potential to emit one or more pollutants in major source amounts, but have actual emissions that are below the major source thresholds. These sources are called “synthetic minor sources” and the term means a source that otherwise has the potential to emit regulated NSR pollutants in amounts that are at or above those for major sources in 40 CFR 49.167, 40 CFR 52.21 or 40 CFR 71.2, as applicable, but has taken a restriction so that its potential to emit is less than such amounts for major sources. Such restrictions must be enforceable as a practical matter (as defined in 40 CFR 49.152).
The designation of synthetic minor source is allowed for both regulated NSR pollutants and HAPs and although you may choose to obtain such emission limitations at your own discretion, once you have accepted an enforceable emission limitation, you must comply with that limitation. This is necessary to ensure that you are legally prohibited from operating as a major source. In addition, if you apply for a synthetic minor source or synthetic minor HAP source, you must comply with the same public participation requirements and the same procedures for final permit issuance and administrative and judicial review found at 40 CFR 49.157 and 40 CFR 49.159 respectively.
In our proposal we explained that our 1999 policy memo on synthetic minor sources in Indian country currently provides guidance on how sources that would otherwise be major sources under section 302 or part D of title I of the Act can become synthetic minor sources if their actual emissions remain below 50 percent of the relevant major source PTE threshold and they comply with all other requirements of the policy memo.
Several commenters supported the proposal to allow synthetic minor source permits because this option has been previously available for sources located outside of Indian country. On the other hand, two commenters opposed the proposal to allow for synthetic minor source permits since they believe that synthetic minor source permits are not available outside of Indian country and therefore HAP sources would rush to Indian country to avoid MACT standards.
Another commenter opined that the proposed synthetic minor rule will hinder some Tribes' ability to develop or maintain their own sustainable title V major source permitting programs. This commenter argued that allowing for synthetic minor source permits in Indian country will decrease the number of major sources under this program thereby reducing the permitting fees collected and used by Tribes to run their title V permitting programs. One commenter also added that general permits should be allowed for synthetic minor sources.
We agree with those commenters that would like us to allow synthetic minor source permits for both criteria pollutants and HAPs. We believe that allowing synthetic minor source permits could be beneficial to the environment by reducing the amount of pollution that could have been emitted to the air otherwise. In addition, this option has been available for sources outside of Indian country for both regulated NSR pollutants and HAP sources for many years. Thus, we disagree with the commenters who believed that we will be creating pollution havens in Indian country for HAP sources because HAP sources who obtain synthetic minor permits need to comply with emissions limits that are enforceable as a practical matter (as defined in 40 CFR 49.152) and with the applicable regulations under 40 CFR Part 63.
We do not believe that synthetic minor source permits will significantly reduce the number of title V major sources in Indian country and hence the associated permit fees, since we do not anticipate many sources to change their current status to synthetic minor status once this rule is final. The PTE transition policy had already allowed sources in Indian country, until this FIP becomes final, to limit their potential to emit to avoid major source status for purposes of the title V program. However, if a Tribe is concerned that existing title V programs may be unsustainable after a certain number of sources change their existing title V permits to synthetic minor source permits, the Tribe will have to consider raising their title V fees as necessary to ensure that, as stated in section 502(b)(3) of the Act, the fees collected under the title V program are “sufficient to cover all reasonable (direct and indirect) costs required to develop and administer the permit program requirements.”
We also disagree with the commenter that would like us to allow the use of general permits for synthetic minor sources since these sources are major sources until they are approved to construct under a synthetic minor source permit. We believe that the size and amount of emissions from these sources warrants a case-by-case review of the source and their proposed emission limitations. Therefore, in the final rule, we are not allowing general permits for synthetic minor sources.
In this final rule apart from specifying the circumstances under which a new source may obtain a synthetic minor source permit, we are also clarifying the possible mechanisms under which synthetic minor source permits have been issued to date and the requirements these sources may have to comply with after the effective date of this rule.
Consequently, we are finalizing provisions under 40 CFR 49.158 that state that you may obtain a synthetic minor source permit under this program to establish a synthetic minor source for PSD, nonattainment major NSR and title V purposes and/or a synthetic minor HAP source for MACT standards and title V purposes. Any source that becomes a synthetic minor for NSR and title V purposes but has other applicable requirements or becomes a synthetic minor for NSR but is major for title V purposes, must also apply for a part 71 title V permit. In addition, you, as the permit applicant, will have to submit a permit application pursuant to the provisions of 40 CFR 49.158(a) and 40 CFR 49.154 and you will also be subject to the permit requirements at 40 CFR 49.155 and 49.158 which include, among other things, case-by-case control technology review as well as monitoring, recordkeeping and reporting requirements.
Hence, we are finalizing the synthetic minor source permit application procedures mainly as proposed, with the exception that we are requiring the reviewing authority to notify you of the permit application completeness determination in writing and thus eliminating the requirement that you, as the permit applicant, should contact the reviewing authority to find out the date of receipt of the application. The final synthetic minor source permit application requirements state that you must submit a permit application to the reviewing authority and within 60 days after receipt of an application, the reviewing authority will determine if it contains the information specified in 40 CFR 49.158(a). If the reviewing authority determines that the application is not complete, it will request additional information from you as necessary to process the application. If the reviewing authority determines that the application is complete, it will notify you in writing. The reviewing authority's completeness determination or request for additional information should be postmarked within 60 days of receipt of the permit application by the reviewing authority.
We are also adding a provision, to be consistent with the site-specific and general permit provisions, to state that if you do not receive a request for additional information or a notice of complete application postmarked within 60 days of receipt of the permit application by the reviewing authority, your application would be deemed complete. The reviewing authority must provide an opportunity for public participation and public comment on the draft synthetic minor source permit as set out in 40 CFR 49.157. The final synthetic minor source permit will be issued and will be subject to administrative and judicial review as set out in 40 CFR 49.159.
The provisions of the final rule address the various possible scenarios for synthetic minor source permits as follows:
• If you own or operate an existing major source and you wish to obtain a synthetic minor source permit pursuant 40 CFR 49.158 to establish a synthetic minor source and/or a synthetic minor HAP source,
• If you wish to commence construction of a new synthetic minor source and/or a new synthetic minor HAP source,
• If your existing synthetic minor source and/or synthetic minor HAP source was established pursuant to the FIPs applicable to the Indian reservations in Idaho, Oregon and Washington or was established under an EPA-approved rule or permit program limiting potential to emit, you do not need to take any action under this program unless you propose a modification for your existing synthetic minor source and/or synthetic minor HAP source on or after the effective date of this rule, that is, on or after August 30, 2011. For these modifications, you must obtain a permit pursuant to 40 CFR 49.158 prior to commencing construction.
• If your existing synthetic minor source and/or synthetic minor HAP source was established under a permit with enforceable emissions limitations issued pursuant to the part 71 program, the reviewing authority has the discretion to require you to submit a permit application pursuant to 40 CFR 49.158 for a synthetic minor source permit under this program within 1 year after the effective date of the final rule (that is, by September 4, 2012) or to require you to submit a permit application for a synthetic minor source permit under this program (pursuant to 40 CFR 49.158) at the same time that you apply to renew your part 71 permit or to allow you to continue to maintain synthetic minor status through your part 71 permit. If the reviewing authority requires you to obtain a synthetic minor source permit and/or a synthetic minor HAP source permit under this program (pursuant to 40 CFR 49.158), it also has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.
• If your existing synthetic minor source and/or synthetic minor HAP source
If you submit your application and any requested additional information in the timelines indicated above, your source will continue to be considered a synthetic minor source or synthetic minor HAP source (as applicable) until your synthetic minor source permit under this program has been issued. Should you fail to submit your application and any requested additional information in the timelines indicated above, your source will no longer be considered a synthetic minor source or synthetic minor HAP source (as applicable) and will become subject to all requirements for major sources.
Section 112(g)(2)(B) of the Act provides that you may not construct or reconstruct a major source of HAPs unless the appropriate permitting authority determines that MACT for new sources will be met. If the Administrator has not established a MACT standard for the source category, the Act requires that MACT be determined on a case-by-case basis.
The regulations implementing section 112(g)(2)(B) are at 40 CFR 63.40 through 63.44. The regulations at 40 CFR 63.43(c) set forth several options for procedures that can be used to accomplish case-by-case MACT determinations. These options include using title V administrative procedures if a pre-construction or reconstruction (63.43(c)(1)) title V permit is required or can be obtained, applying for and obtaining a Notice of MACT Approval (63.43(c)(2)(i)) and “any other administrative procedures for preconstruction review and approval established by the permitting authority for a state or local jurisdiction which provide for public participation * * *” (63.43(c)(2)(ii)).
Currently, no Tribes have an EPA-approved title V permitting program or have adopted any other program to implement section 112(g), although one Tribe has been delegated authority to assist us with implementation of the Federal part 71 operating permit program (
Furthermore, while we can accomplish a section 112(g) case-by-case MACT determination through a part 71 permit issued pre-construction or reconstruction or a Notice of MACT Approval, we believe that if your source is a major source only for HAPs and a minor source for regulated NSR pollutants, the minor NSR program is an appropriate “other administrative procedures” under 63.43(c)(2)(ii) for obtaining a case-by-case MACT determination. In addition, if your source is or could be minor for regulated NSR pollutants and is or could be major for HAPs, it would also be administratively convenient for you and for us, as the reviewing authority, to combine the construction permit process for both regulated NSR pollutants and case-by-case MACT determinations under the final minor NSR program, rather than to address regulated NSR pollutants under the minor NSR program and also go through the part 71 permit for preconstruction or reconstruction or Notice of MACT Approval process to address case-by-case MACT requirements. Note that even with this approach to preconstruction review, the source is still a major source for HAP under the MACT program (unless the source becomes a synthetic minor source) and thus you ultimately will have to obtain a part 71 operating permit for your major source of HAPs.
Several commenters supported the proposal to provide for case-by-case MACT determinations in the minor NSR program because they stated this will be consistent with the practice of most state programs, it would be administratively convenient and regulation of HAPs is important to health. On the other hand, one commenter argued that if a source is major for HAPs, the source should not apply for a minor source permit because
We agree with those commenters that supported the use of the minor NSR program as one of the mechanisms for obtaining a case-by-case MACT determination. As we stated previously, it is administratively convenient for us, as the reviewing authority and for you as the source owner to combine the preconstruction permit review process for both regulated NSR pollutants and case-by-case MACT determinations under this minor NSR program. If not, the minor NSR source that is also major for HAPs would have to apply for a minor NSR permit and a separate preconstruction or reconstruction part 71 permit or Notice of MACT Approval for its case-by-case MACT determination of its HAP emissions. We want to clarify, however and as the opposing commenter suggested, that using the minor NSR program as the mechanism for a section 112(g) case-by-case MACT determination does not mean that a major source will escape the major source requirements under the MACT program. The source still needs to comply with the requirements of 40 CFR 63.40 through 63.44 that apply to case-by-case MACT determinations using “other administrative procedures.” In addition, any source that is required to obtain a case-by-case MACT determination is a major source of HAPs and will have to obtain a part 71 permit.
In addition, we would like to clarify that for case-by-case MACT determinations under this minor NSR program, we will apply the public noticing requirements under 40 CFR 49.157 and the administrative and judicial review procedures under 40 CFR 49.159.
In the proposal preamble, we raised the question of whether it may be appropriate to also regulate existing minor sources in Indian country under this minor NSR program to help attain and maintain the NAAQS. At proposal, we discussed four options for the treatment of existing minor sources, as follows:
•
•
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Numerous commenters supported Option 1. These commenters believed that this option is consistent with state minor NSR programs, is the least burdensome on existing sources and the EPA and Tribes do not have the resources available to implement any of the other options. In addition, these commenters opined that regulation of existing sources is not needed to maintain the NAAQS. On the other hand, a few commenters opposed this option, mainly because they believed it would not address any air quality impacts resulting from existing sources.
Regarding Option 2, a few commenters supported this option if it were to be used in combination with other options such as Option 1 or 3. However, two commenters specifically opposed Option 2 because they believe this option represents extremely onerous provisions for sources and reviewing authorities.
Several commenters supported Option 3 because they believed it would only place a small administrative burden on existing sources to report their existing emissions while providing Tribes with important information about the existing emissions within their jurisdictions. Nevertheless, one commenter opposed this option because the commenter believed Option 3 will be unduly burdensome and overbroad and could significantly disadvantage minor sources already operating in Indian country.
A few commenters supported Option 4 by noting that states have generally regulated minor sources and thus that experience could aid the implementation of this option. Another commenter added that EPA could meet the requirements under Option 4 if we used a “sunset clause.” A “sunset clause” would allow sources some time to come into compliance and thereby avoid undue economic burden all at once. On the other hand, other commenters opposed this option because they generally believe it is extremely onerous for both sources and reviewing authorities.
After considering the comments, we have decided to finalize Option 3 for true minor sources. For synthetic minor sources, we are finalizing provisions as stated in section IV.D of this final rule preamble, which include provisions that require certain sources to obtain permits under this program 1 year after the effective date of this rule.
We are not finalizing our preferred option for “true” minor sources, Option 1, because even though we agree that this option is consistent with state minor NSR programs and it is the least burdensome option for existing minor sources, we believe that collecting source inventory data for minor sources in Indian country is necessary to successfully implement the minor NSR program. In addition, these source inventory data are needed to assess the feasibility of an actual emissions based applicability test and to determine if we need to modify the minor NSR thresholds at a later time. We are also not finalizing Option 4 at this time because we believe that Option 4 would overwhelm limited EPA resources even if we were to use a “sunset clause.”
Thus, under the program we are finalizing, we are creating a registration program for minor sources in Indian country. Under the minor source registration program, if you own or operate an existing true minor source in Indian country (as defined in 40 CFR 49.152(d)) you must register your source with your reviewing authority in your area within 18 months after the effective date of this program, that is, by March 1, 2013. This date has been modified from the 12 months we proposed to provide existing sources additional time to comply with these requirements. These provisions are discussed further in section VII.C of this preamble. If your true minor source commences construction in the time period between the effective date of this rule and September 2, 2014, you must register your source with the reviewing authority in your area within 90 days after the source begins operation.
If construction or modification of your source commenced any time on or after September 2, 2014 and your source is subject to this rule, you must report your source's actual emissions (if available) as part of your permit application and your permit application information will be used to fulfill all the other registration requirements described in 40 CFR 49.160(c)(2).
This registration will be a one-time registration (not an annual registration) of your source's estimated actual and allowable emissions as provided in 40
In this final action, we are establishing a major NSR program for new major sources and major modifications at existing major sources in nonattainment areas of Indian country at 40 CFR 49.166 through 49.175. This program is designed to meet the requirements of part D of title I of the Act and, as proposed, sources subject to this program would be required to comply with the requirements of 40 CFR part 51, Appendix S (Appendix S).
Appendix S is titled “Emission Offset Interpretative Ruling” and sets forth preconstruction review requirements for major sources and modifications locating in nonattainment areas where the state does not have an EPA-approved nonattainment major NSR program. In general, Appendix S is a transitional nonattainment major NSR program that covers the period after an area has been newly designated as nonattainment, up until the time that the state has amended its SIP's nonattainment major NSR program, as needed, to address the new nonattainment area. The requirements under Appendix S are essentially the same as our requirements for state nonattainment major NSR programs at 40 CFR 51.165.
We are finalizing our proposal to apply Appendix S to nonattainment areas in Indian country for a number of reasons. Primarily, we believe it is appropriate to apply Appendix S provisions in Indian country for administrative convenience. Additionally, since Appendix S generally applies in nonattainment areas where there is no approved nonattainment major NSR program and since no Tribe currently has such a program, we believe that Appendix S should also apply in Indian country. Another reason for requiring sources subject to this program to comply with Appendix S requirements is that the EPA Regional Offices (which will be implementing the program until an EPA-approved implementation plan is in place) and owners/operators of several major sources in Indian country are familiar with the implementation and provisions of Appendix S.
We considered and rejected the option of amending Appendix S to extend its application to Indian country, since we believe that sources in Indian country are more likely to look for regulations applicable to them under part 49, which is solely dedicated to regulations that apply in Indian country. We also considered drafting a parallel major NSR regulation to apply to sources in Indian country, but rejected this option since it would essentially re-propose Appendix S provisions, which have been in effect outside of Indian country for many years. We wanted to avoid any potential confusion or possible perception that these parallel regulation requirements would be different than the Appendix S requirements.
Pursuant to paragraph IV of Appendix S, we have finalized that a reviewing authority may issue a permit for a new major source or a major modification locating in a nonattainment area, if it complies with the following conditions:
1. The new major source or a major modification meets the LAER for that source using add-on controls or pollution prevention measures.
2. The applicant certifies that all existing major sources owned or operated by the applicant (or any entity controlling, controlled by or under common control with the applicant) in the same state as the proposed source are in compliance with (or under a Federally-enforceable compliance schedule for) all applicable emission limitations and standards under the Act.
3. Emission reductions (offsets) from existing sources in the area of the proposed source (whether or not under the same ownership) are obtained such that there will be reasonable progress towards attainment of the applicable NAAQS.
4. The emission offsets provide a net air quality benefit in the affected area.
5. The permit applicant conducts an analysis of alternative sites, sizes, production processes and environmental control techniques for such proposed source that demonstrates that the benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction or modification.
We received only a few comments regarding the use of Appendix S for Indian country. A couple of commenters did not explicitly support or oppose the use of Appendix S in Indian country, while one commenter suggested that Appendix S failed to address provisions under the CAA. The commenter pointed out that section 173(a)(5) of the Act provides for permits in a nonattainment area to be issued if “an analysis of alternative sites, sizes, production processes and environmental control techniques for such proposed source demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction or modification.” However, the provisions under 40 CFR Part 51, Appendix S did not include such requirement even when this requirement is included in every approved SIP in the country. Therefore, by requiring only the provisions of Appendix S, the commenter believed that the proposed nonattainment major NSR program failed to satisfy the requirements of the Act. The commenter suggested that a requirement for an adequate alternate site assessment should be added to the proposed regulations as a complementary requirement to Appendix S.
Upon further review of Appendix S, we agree that the section 173 alternate site provision was inadvertently missing from Appendix S regulations. Therefore, we have amended Appendix S to include the section 173 alternatives site provision to ensure that the provisions of the 1990 amendments, including the CAA section 173 alternative sites analysis provision, is codified in implementing regulations.
Tribal representatives have repeatedly stated that requirements for emission offsets are problematic in Indian country because: (1) Many Tribes believe that transport is a major cause of pollution in Indian country, (2) Tribes generally do not have many existing sources within their area of Indian country from which offsets can be obtained, and (3) administrative barriers may hinder Tribal access to otherwise available offsets. Therefore, Tribal representatives have advocated for additional flexibility to address offsets, such as the provision of NSR offset set-
We recognize the unique circumstances that Tribes face. Unlike states that have a SIP, a huge industrial base with several hundred existing sources and a broad range of measures to attain and maintain NAAQS, a Tribe generally has neither a TIP nor many existing sources from which to generate offsets. Because of these circumstances, we proposed two options to address the lack of availability of offsets for Tribes: (1) The Economic Development Zone (EDZ) option, and (2) the Appendix S, paragraph VI option.
For this option we rely on section 173(a)(1)(B) of the Act under which the Administrator, in consultation with the Secretary of Housing and Urban Development (HUD), may identify zones within nonattainment areas as EDZs such that sources subject to major NSR located in EDZs in Indian country would be exempt from the offset requirement in section 173(a)(1)(A) of the Act.
Section 173(a)(1) of the Act provides for the issuance of permits to construct and operate a new or modified major stationary source if the reviewing authority determines that (A) “* * * sufficient offsetting emissions reductions have been obtained * * *” or (B) “in the case of a new or modified major stationary source which is located in a zone (within a nonattainment area) identified by the Administrator, in consultation with the Secretary of Housing and Urban Development, as a zone to which economic development should be targeted, that emissions of such pollutant resulting from the proposed new or modified major stationary source will not cause or contribute to emissions levels which exceed the allowance permitted for such pollutant for such area from new or modified major stationary sources under section 172(c).”
Once the Administrator has identified an area that should be targeted for economic development in consultation with HUD, major sources that construct or modify within that area are relieved of the offset requirement if the state/Tribe can demonstrate that the new permitted emissions are consistent with the achievement of reasonable further progress pursuant to section 172(c)(4) of the Act and will not interfere with attainment of the applicable NAAQS by the applicable attainment date.
To be identified as an EDZ, HUD's Initiative for Renewal Communities, Urban Empowerment Zones and Urban Enterprise Communities generally require that participating communities demonstrate pervasive poverty, high unemployment and general distress throughout the designated area. The United States Department of Agriculture requires similar eligibility criteria for participating communities located in rural areas. We believe that some areas of Indian country may meet these criteria and hence could qualify for this offset relief provision.
As we proposed, the Administrator will consult with HUD only once to develop a general set of approval criteria, such that a consultation with HUD is not required every time a Tribe applies for its area of Indian country to be designated as an EDZ. Also as proposed, EPA intends to provide assistance as needed for a Tribe to complete an EDZ designation request. If the Administrator approves such a request from a Tribe, a new major source or a major modification locating in that EDZ would be exempt from the offset provisions.
Paragraph VI of Appendix S notes that in some cases the dates for attainment of the primary or secondary NAAQS may not have passed. In such cases, Appendix S provides that a new source locating in a nonattainment area may be exempt from the requirements of paragraph IV.A of Appendix S (discussed in section VI.A of this preamble), including the offset requirement, if the following conditions are met:
• The new source complies with the applicable implementation plan emission limitations;
• The new source will not interfere with the attainment date for a regulated NSR pollutant; and
• We have determined that the preceding two conditions are satisfied and such determination is published in the
It is important to note that this option only provides temporary offset relief because it will cease to be available once the attainment date for a pollutant has passed.
Several commenters gave general support to waiving the requirement for offsets in Indian country, either through support of one or both of the proposed options or through advocating a general waiver on other grounds. For example, some commenters suggested that:
• EPA should allow sources in Indian country to obtain offsets not just from the Indian country area itself, but from adjacent or upwind areas. Section 173(c) of the Act specifically provides that offsets may be used if they are from an area with an equal or higher nonattainment classification and if emissions from that area contribute to a violation of the NAAQS in the area needing the offsets.
• EPA should allow Tribes to participate in state offset pools. With the approach of opening offset pools to Tribes, those Tribes wishing to develop major sources in nonattainment areas would still be able to do so, but would be treated like other sources needing to obtain an offset to maintain air quality.
• EPA should implement a set-aside program in which Tribes receive a certain amount of offset emissions that would need to be made up by the other sources in the state. The commenter believed that this would be fair because most nonattainment problems in Indian country are caused by sources that are not under Tribal control.
• EPA, the states, the Tribe and sources could collaborate to identify acceptable offsets outside of Indian country.
• EPA should launch a concerted effort to improve the availability of offsets in all areas that need them (not just in Indian country) by encouraging the development of protocols to allow the creation of offsets from nontraditional sources, especially mobile and area/minor sources.
• Tribes should be afforded the opportunity to request a permanent offset waiver based on language in the TAR. The TAR: “provide[s] an opportunity for Indian Tribes to assume responsibility for the development and implementation of CAA programs on lands within the exterior boundaries of their reservations or other areas within their jurisdiction.” Thus, the commenter believed that the waiver will allow the opportunity for Tribes to be able to develop and implement the nonattainment major NSR program.
However, other commenters believe that offsetting of major NSR projects should be a requirement of the nonattainment major NSR program and no waivers should be given. These commenters opined that offset waivers would: (1) Likely be illegal under the Act, (2) cause air quality concerns, and (3) be unfair for sources located or locating outside of Indian country. For example, one of the commenters indicated that there is a significant shortage of offsets in virtually every
• Setting up an offset bank within an area of Indian country would be difficult because no source on Tribal land is currently subject to NSR and therefore there are currently no offsets from sources on Tribal land to be bought or sold. The commenter believed that with no available offsets, when NSR is enacted on Tribal lands, the price of the first offsets will be unaffordable for most if not all sources on Tribal lands.
• There would be problems in allowing sources on Tribal lands access to the State offset banks. The commenter believed that states will be apprehensive to allow sources on Tribal lands access to state-established offset banks because states will not receive the tax revenue from offsets purchased by sources on Tribal lands as they do with sources within the state.
• EPA, state and Tribal collaboration should not make it necessary for Tribes to go to the states to obtain offsets for economic development on the reservation since it denigrates the government-to-government relations.
• Offsets should not be traded between Indian country and the states due to Tribal sovereignty issues and potential for confusion involving monitoring and tracking costs, as well as who receives tax revenue from the offsets.
In regards to the EDZ option, supporting commenters believed that this option provides the flexibility for EPA not to require emissions offsets for a project where economic development and environmental protection are equally important concerns, while opposing commenters believed that the EDZ option cannot lawfully be applied in the present circumstances. According to one commenter, under section 173(a)(1)(B) of the Act, the affected source must not cause or contribute to emissions levels “which exceed the allowance permitted for such pollutant for such area from new or modified stationary sources under section 172(c).” The latter section, at section 172(c)(4) of the Act, provides that the implementation plan shall identify and quantify the emissions, if any, that will be allowed to be used under section 173(a)(1)(B) (the EDZ section) and shall “demonstrate to the satisfaction of the Administrator that the emissions quantified for this purpose will be consistent with the achievement of reasonable further progress and will not interfere with attainment of the applicable national ambient air quality standard by the applicable attainment date.” Thus, the commenter believed that, in the absence of a TIP that quantifies the allowance and makes the required demonstration, this precondition for offset relief in EDZs would not generally be met within Indian country.
Furthermore, another commenter believed that, by definition, the proposed rule does not apply where there is a TIP and thus EPA would need to look at the relevant SIP of the surrounding or adjacent state for the applicable “allowance of emissions” for EDZ sources. The commenter noted that in many cases there may be no such allowance and that even if the relevant State SIP includes an allowance, that allowance would almost certainly not have been calculated under the assumption that areas in Indian country could access the allowance. Under these circumstances, the commenter asserted, the affected state would be entitled under the Act to determine in the first instance what, if any, access to the allowance it wished to make available to sources in Indian country. The commenter concluded that as a matter of law the EDZ option is unavailable unless and until the relevant state creates and makes available an appropriate allowance.
Another commenter also noted that as proposed, EPA would consult with the Secretary of Housing and Urban Development only once to develop a general set of approval criteria for EDZs. The commenter stated that this approach appears to conflict with the language of the Act, which requires consultation on each individual zone.
In regards to the Appendix S, paragraph VI option, several commenters supported it because, as one of these commenters stated, this option provides equivalent environmental protection. The reviewing agency has to demonstrate that the proposed source will not interfere with the attainment date for the regulated NSR pollutant(s) in the area.
However, a number of commenters had misgivings about the paragraph VI option, generally based on legal or environmental grounds. Two commenters stated that the paragraph VI option is inapplicable and unlawful because: (1) There is no applicable implementation plan in Indian country, so no source can “comply with applicable implementation plan emissions limitations” (in addition, one of these commenters conceded that if we interpret this to require the source to meet the SIP limits in the surrounding or adjacent state, this requirement could be met), (2) if there is no applicable implementation plan, it will be impossible to demonstrate that a source will not interfere with the attainment date for a nonattainment pollutant, (3) the Act requires that for every major source, the source must provide sufficient offsetting emissions reductions such that there is a reduction in emissions amounting to reasonable further progress, when considered together with emissions from other new and existing sources (
Other commenters stated that the paragraph VI option is not acceptable because it would be difficult for some Tribes to meet the criteria. They stated that such a waiver does not balance legitimate development needs with environmental protection or that a major source could not interfere with attainment. One of these commenters also noted that these waivers would expire at attainment dates and added that these “expiration dates” established by states should not be imposed on Tribes.
As we stated previously, we recognize the unique circumstances that Tribes face as well as the difficulty in obtaining offsets in certain parts of the country; however, we do not have the legal authority to waive the offset requirement under section 173 of the Act or under the TAR.
Thus and to address the lack of offsets availability, both inside and outside of Indian country, we encourage states and Tribes to work together in the creation and use of offset banks for their lands since we agree that, where appropriate, Tribes can obtain offsets from surrounding areas. For example, Tribes may enter into a Memorandum of Understanding (MOU) with their neighboring states to allow Tribal access to offsets in the state offset bank and vice-versa if and when Tribes develop
Furthermore, we are addressing the lack of availability of offsets in general. For example, in the final rule titled, “Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM
Regarding the offset waivers we proposed, we want to clarify that these waivers are currently available under the CAA and implementing regulations for both states and Tribes. The EDZ option is currently available under section 173(a)(1)(B) of the Act and the Appendix S paragraph VI option is currently available under 40 CFR part 51 Appendix S. Therefore, we disagree with those commenters that believed that if the proposed offset waivers would only be available for Indian country, then states would be at an economic disadvantage and/or that we would be creating pollution havens in Indian country.
Nevertheless, based on the opposing comments we received, including comments from the Tribes, regarding the implementation issues under the Appendix S Paragraph VI option, we are only allowing the EDZ option that is currently available under the statute for both Tribes and States as a potential option for offset waiver and we are not finalizing the Appendix S Paragraph VI option in this final rule.
After reviewing all the comments received, we believe that the EDZ option as established by statute is available for offset relief as long as the area meets the statutory criteria in order to qualify. In other words, Tribes who develop TIPs might request EPA to establish their area as an EDZ so they can avail themselves of the offset provision under section 173 of the Act.
However, we disagree with the commenter who believed that, by definition, the proposed rule does not apply where there is a TIP and thus EPA would need to look at the relevant SIP of the surrounding or adjacent state for the applicable “allowance of emissions” for EDZ sources. We do not see why the commenter believed that a TIP is not an appropriate mechanism for the EDZ provision under section 173 since the TAR provides that Tribes will be treated in the same manner as states for virtually all CAA programs and states generally lack jurisdiction under the Act over facilities in Indian country.
The ability of an area to qualify would be determined on a case-by-case basis, but criteria for including Tribes in the EDZs and for consultation with the Tribes will need to be developed in advance and in coordination with the Secretary of Housing and Urban Development. These criteria will ensure that Tribal and state input are included and that considerations are put in place to avoid industries coming into an area strictly for the offset relief. Therefore, we disagree with the commenter that believed that a general set of approval criteria will be in conflict with the language of the Act.
We are not finalizing the Appendix S provision as an option for offset waiver, since the provision is only available temporarily and it will be challenging for EPA or the Tribe to demonstrate that the proposed source will not interfere with the attainment date.
Pursuant to the statewide compliance certification requirements of section 173(a)(3) of the Act, as reflected in Appendix S at Condition 2 of paragraph IV.A, an owner or operator of a proposed new or modified major stationary source must demonstrate that all other major sources under his/her control in the same state are in compliance or on a schedule for compliance with all emission limitations and standards under the Act. In the context of Indian country, we sought comment on whether this requirement should be expressed as an Indian country-wide compliance certification or remain a statewide certification. In other words, we requested comment on whether you should be required to certify that all your sources in the state where your proposed source is locating are in compliance or that all your sources in all of Indian country are in compliance.
We received a variety of comments on this issue. Several commenters believed that the certification should be on a state-wide basis because: (1) It will not provide sources in Indian country with a competitive advantage over sources in non-Indian country, and (2) obtaining certification for all of Indian country would be very difficult since it is a vast area and sources under common control may be operated by different business units of the same parent company. On the other hand, one commenter believed that state-wide compliance certification would give EPA overreaching authority to facilities that are operating under SIP-approved programs within the state since other sources within the same state may not be within Indian country and thus regulated by the state rather than EPA.
Regarding the Indian country-wide certification, one commenter supported it. The commenter believed this type of certification will benefit Tribes by allowing for the development of compliance databases, assisting Tribes with monitoring patterns of noncompliance, minimizing risk of noncompliance and building and enhancing consumer and market confidence.
Other commenters provided comments supporting a national certification (not proposed) since they believed that expanding the requirement will ensure that the sources attempting to locate in Indian country will operate within regulatory parameters and several reservations exist in more than one state. Other commenters supported a certification for each applicable area of Indian country since these commenters believe that: (1) It would be too burdensome to require such certification across all of Indian country and (2) this is more consistent with treatment of individual Tribes as states under applicable EPA regulations.
After consideration of comments, we are finalizing a state-wide compliance certification requirement consistent with section 173(a)(3) of the Act. We believe that a state-wide compliance certification: (1) Provides a broad enough look at the compliance history of the company, without overburdening the review process and (2) reflects a geographic approach to the certification rather than an approach based on the entity that is sovereign. An Indian country-wide certification would not have the proximity and geographic contiguity that a state-wide approach would have.
We believe that the public participation requirements of 40 CFR 51.161 apply to permitting under Appendix S. Additionally, for the nonattainment major NSR program in Indian country, we are finalizing detailed public participation requirements at 40 CFR 49.171. As proposed, the final public participation
In general, these provisions are based closely on selected provisions of part 124, subpart A. The specific provisions are as follows:
This final rule requires that after making a decision to issue or deny your permit, the reviewing authority must notify you of the decision in writing and, if the permit is denied, provide the reasons for the denial. If the reviewing authority issues a final permit to you, it must make a copy of the permit available at any location where the draft permit was made available. In addition, the reviewing authority must provide adequate public notice of the final permit decision to ensure that the affected community, general public and any individuals who commented on the draft permit have reasonable access to the decision and supporting materials.
The reviewing authority's final decision on your permit must be based on an administrative record and the final rule includes requirements on what must be in that record. For example, the administrative record must include the application and any supporting data furnished by the applicant and all comments received during the public comment period, including any extension or reopening.
A few commenters largely supported the proposed provisions for providing notice of final permit actions. However, the commenters recommended that such notice be provided in the same manner that it was provided during the public comment on the draft permit. The commenters believed that numerous inconsistencies will occur if the agency uses subjective discretion based, as we proposed, “upon the circumstances of your permit.”
Based on the comments received, we are finalizing slightly different final permit public notice requirements for the nonattainment major NSR program and the minor NSR program. We believe that for major sources in nonattainment areas making a copy of the permit available at all of the locations where the draft permit was made available will not be too burdensome for the reviewing authorities and will ensure that the affected community and the general public have reasonable access to the applicable information. These provisions are included in 40 CFR 49.171 of this final rule. However, for minor sources, we continue to believe that depending on the circumstances of your permit, the reviewing authority may elect to provide notice directly to the individuals who commented on the draft permit and/or use any of the other methods of public notice discussed in section IV.B.4 of this preamble because providing the same public noticing procedures as those that were used during the comment period for the draft permit might be too burdensome for minor sources. These provisions are included in 40 CFR 49.157 of this final rule.
Regarding the administrative record for a permit decision, we are finalizing these provisions as proposed and under 40 CFR 49.172(b) and (c). The records, including any required applications for each draft and final permit or application for permit revision, must be kept by the reviewing authority for no less than 5 years. These provisions are the same as the ones for the minor NSR program and details of the comments received and the rationale behind finalizing these provisions are included in section IV.B.3 of this preamble. We did not receive any comments about these provisions specifically for the nonattainment major NSR program.
Regarding the permit reopening provisions, the final rule requires that a permit may be reopened for cause by the reviewing authority on its own initiative, such as if it contains a material mistake or fails to assure compliance with permit requirements.
At 40 CFR 49.172(d), we have finalized the provisions under which permit decisions for major nonattainment NSR permits may be appealed. Details of the comments received and the rationale behind finalizing these provisions are included in section IV.B.5 of this preamble. We did not receive any comments about these provisions specifically for the nonattainment major NSR program.
As we explain in more detail in section V.A. of this preamble, we are amending Appendix S to include the alternative sites analysis provisions of CAA section 173. Therefore, we are finalizing a change to Appendix S that will add a Condition 5 to the provisions under 40 CFR Appendix S Paragraph IV.A. This condition will state that the permit applicant shall conduct an analysis of alternative sites, sizes, production processes and environmental control techniques for such proposed source that demonstrates that the benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction or modification.
In addition and as proposed, we are finalizing a minor change to Appendix S that is related to the “emission limitations and standards of the Act.” Existing paragraph II.B of Appendix S requires the reviewing authority to review each proposed new major source and major modification to determine whether it will meet “any applicable NSPS in 40 CFR part 60 or any national emission standard for HAPs in 40 CFR part 61.” While we have incorporated this requirement into final 40 CFR 49.169(a), we believe that it should be expanded to include the newer national emission standards for HAPs codified at 40 CFR part 63 (commonly referred to as MACT standards). Accordingly, we are revising paragraph II.B of Appendix S to add these standards under the Act and to match the revised language of this paragraph with the final 40 CFR 49.169(a). We did not receive any comments for this proposed provision.
As we have described in section III of this preamble, in the absence of an EPA-approved program, we are authorized to develop a FIP to protect air quality by directly implementing provisions of the Act throughout Indian country.
For the nonattainment major NSR program and the minor NSR program in Indian country, no Tribes have been administering an EPA-approved nonattainment major NSR program and only a few Tribes have been administering EPA-approved minor NSR programs.
It is important to recognize, however, that even though we are adopting this Federal program that applies in Indian country, the Tribes may still develop TIPs, similar to SIPs, to implement these programs. If a Tribe develops a TIP to implement NSR, the TIP, once it is approved by EPA, will replace the Federal program as the requirement for that area of Indian country and the Tribe will become the reviewing authority under its TIP.
A few commenters remarked upon EPA's analysis of its jurisdiction in Indian country (citing various court cases as well as legislative history). These commenters believed that in general Congress placed the primary responsibility of preventing air pollution on states and thus states have the responsibility to adopt or enforce any emission standards in Indian country. Some of these commenters also added that this FIP violates the CAA because the Administrator has failed to make a finding that any specific state or Tribe has failed to submit an implementation plan or that any specific implementation plan either fails to satisfy the minimum criteria under the Act or has been disapproved in whole or in part. In addition, the commenter believed that the Act only authorizes the adoption of a FIP on a jurisdiction-by-jurisdiction basis, not nationally. Two of these commenters also stated that even if the EPA adopts the proposed nationwide FIP, the FIP cannot supersede and EPA must acknowledge, the State of Oklahoma's right to administer its state air quality programs in areas of Indian country within Oklahoma under the Federal Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users (2005). We disagree with these commenters to the extent they believe EPA does not have authority under the Act to implement these programs in Indian country.
Although many facilities in these areas may have historically followed state and local government air quality programs, with rare exception, EPA has never approved those governments to exercise regulatory authority under the CAA in any area of Indian country. In addition, EPA has never approved a state or local government to implement a minor NSR or nonattainment major NSR program in Indian country.
Because only a few Tribes have yet sought eligibility to administer a minor NSR program and no Tribe has yet sought eligibility for the nonattainment major NSR program, a gap for implementation of these programs currently exists in Indian country. Given the longstanding air quality concerns in some areas and the need to establish requirements in all areas to maintain CAA standards, EPA believes that these FIP provisions are appropriate to protect air quality in Indian country where no EPA-approved minor NSR or nonattainment major NSR program is in place.
The rules published here are based on the same CAA authority as EPA has used elsewhere in rulemaking that have been affirmed by the courts. The EPA's interpretation of its authority has been affirmed by the U.S. Court of Appeals for the District of Columbia Circuit in
Furthermore, with regard to Indian reservations, EPA interprets the CAA as establishing unitary management of air resources and as a delegation of Federal authority to eligible Tribes to implement the CAA over all sources within reservations, including non-Indian sources on fee lands. Accordingly, even if a state could demonstrate authority over non-Indian sources on fee lands within an Indian reservation, EPA believes that the CAA generally provides the Agency the discretion to Federally implement the CAA over all Indian reservation sources in order to ensure an efficient and effective transition to Tribal CAA programs and to avoid the administratively undesirable checker-boarding of reservation air quality management based on land ownership. The EPA believes that Congress intended that EPA take a territorial view of implementing air programs within reservations. The EPA also believes that air quality planning for a checker-boarded reservation area would be more difficult and that it would be inefficient if a state were to exercise regulation over piecemeal tracts of land within such areas, possibly with similar Indian country sources being subject to different substantive requirements. The EPA's approach provides for coherent and consistent environmental regulation within Indian country.
Although EPA does not recognize state or local air regulations as being effective within Indian country for purposes of the CAA, absent an express approval by EPA of those regulations for an area of Indian country, this rulemaking does not address the validity of state and local law and regulations with respect to sources in Indian country or the authority of state and local agencies to regulate such sources, for purposes other than the Federal CAA. We are specifically not making a determination that these Federal CAA rules override or preempt any other laws that have been established outside the scope of the Federal CAA. The EPA does not, therefore, believe that any further preemption analysis suggested by the commenters is needed in these circumstances. As described above, EPA believes that its authority under the CAA to implement these programs in Indian country is clear and well-established and has been upheld by reviewing courts in similar circumstances.
With regard to the comments relating to Indian country and the State of Oklahoma, EPA recognizes that the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 (SAFETEA) contains a provision (section 10211) relating to implementation of environmental regulatory programs under Federal environmental laws, including the CAA, in Indian country in Oklahoma. However, to date, neither the State of Oklahoma, nor any Indian Tribe in Oklahoma, has applied for EPA approval to administer either of the CAA programs included in this rulemaking for any area of Indian country. In the absence of an EPA-approved program, these FIPs will apply throughout Indian country, including Indian country in Oklahoma. In promulgating these FIPs, EPA is not acting on any potential request by the State of Oklahoma to administer any CAA or other regulatory program in Indian country, nor is EPA acting on any potential treatment-in-the-same-manner-as-a-state application for an environmental regulatory program by any Indian Tribe in Oklahoma. The EPA would address any such applications when necessary and on a case-by-case basis and in full consideration of the requirements of Section 10211 of SAFETEA. Section 10211 of the SAFETEA is thus not implicated in this rulemaking and is not a relevant consideration in EPA's promulgation of the minor and nonattainment major NSR programs for Indian country, including Indian country in Oklahoma.
With this action, we are finalizing the provisions on administrative delegation to Tribes as proposed. Our authority for such delegations is discussed in the following paragraphs.
Under the procedures set forth in the TAR, Tribes may seek to demonstrate eligibility for approval of Tribal programs under the Act, including a Tribal NSR program, under Tribal law.
We have well-established processes for delegating our Federal authority to states and/or Tribes for administering Federal rules under the Act, including
This administrative delegation is to be distinguished from the TAS process under the TAR whereby Tribes seek approval to run programs under Tribal law. Tribes would not need to seek TAS under the TAR in order to request delegation of administration of aspects of these Federal NSR programs. Tribes would, however, need to provide the relevant application information described in sections 40 CFR 49.161 and 49.173.
As described in the preamble to the TAR,
In contrast, the administrative delegation approach finalized in these rules provides for us to delegate administration of the Federal program operating under Federal law to interested Tribes that provide the information described in final 40 CFR 49.161(b)(1) and 49.173(b)(1). Since this program operates throughout Indian country under Federal authority, Tribes will not need to demonstrate either Congressionally-delegated authority over air resources within the exterior boundaries of their reservations or authority of non-reservation areas of Indian country. Instead, Tribal agencies will assist us in implementing the Federal program by taking delegation of the administration of particular activities conducted under our authority in Indian country. Under final 40 CFR 49.161(b)(1)(iii)(C) and 49.173(b)(1)(iii)(C), Tribes will only need to show that their laws provide adequate capacity and authority to carry out the delegated activities. For example, where a Tribe seeks administrative delegation for permit issuing activities of the Federal program, the Tribe may, among other things, need to show it has in place an appropriate agency with legal authority to review applications and issue permits on behalf of the delegate Tribal government. For these administratively delegated programs, Federal program requirements will continue to be subject to enforcement by EPA, not the delegate Tribal agency, under Federal law. Administrative appeals of permitting decisions will also continue to be made directly to the EAB under our administrative procedures with any subsequent judicial review to be conducted in Federal court. In the final rules we make it clear that we will not delegate enforcement or appeal components of the program to Tribal agencies.
When delegation is approved, a Partial Delegation of Administrative Authority Agreement between the Administrator and the Tribal agency will set forth the terms and conditions of the delegation and will also specify the rules and provisions that the Tribal agency is authorized to implement. Once the delegation becomes effective, the Tribal agency will have the authority under the Act, to the extent specified in the Agreement, to administer the rules in effect for the particular area of Indian country and to act on behalf of the Administrator. The Federal requirements administered by the delegate Tribal agency will be subject to enforcement by EPA under Federal law.
When we have delegated administration of the portion of the Federal minor or major NSR program that includes receipt of permit application materials and preparation of draft permits, the delegate Tribal agency must provide us a copy of each permit application (including any application for permit revision) and each draft permit.
We did not receive any comments expressly supporting our delegation provisions. However, a number of commenters opined that when a Tribe has administrative delegation of the program, enforcement authority should be delegated to the Tribes as well. These comments are addressed in section VII.B of this preamble.
Other commenters oppose delegation of the program to the Tribes. One of these commenters believed that
As described previously, EPA continues to believe that the CAA authorizes us to use the administrative delegation approach to assist EPA in carrying out implementation of our Federal program.
As described above, delegation of the authority to assist EPA with administration of elements of the Federal NSR programs is a process that is distinct from approval of Tribal eligibility and Tribal programs under CAA section 301(d) and the TAR. To the extent the commenters are concerned that administrative delegation acts as an approval of Tribal authority, EPA reiterates that irrespective of any such delegation, the minor NSR and nonattainment major NSR programs established here will continue to operate under Federal authority subject to EPA appeal procedures before EPA's Environmental Appeals Board and to enforcement solely by EPA. The administrative delegation provision simply allows EPA to delegate certain functions to qualified Tribes that may then assist EPA with administration of the programs.
EPA also notes that because the minor and nonattainment major NSR programs will continue to operate under Federal authority (irrespective of administrative delegation of any functions to qualified Tribes), none of the jurisdictional issues raised in the comments should arise. Indeed, as described elsewhere, EPA's well-established Federal authority to implement CAA programs in Indian country in the absence of an EPA-approved program should provide jurisdictional certainty to all sources covered by these programs. Similarly, issues of Tribal jurisdiction over covered sources should not arise since no showing or finding of such jurisdiction is needed for administration of the Federal programs.
As noted in EPA's proposal of the minor NSR and nonattainment major NSR rules, EPA also intends to consult with other Federal, state, Tribal or local governmental entities or other governmental agencies in the area, prior to finalizing a delegation agreement with a Tribal agency. Although the CAA does not require such consultations or any specific process, to approve administrative delegations, EPA believes that this approach provides an appropriate opportunity for such governmental entities to express views regarding the potential delegation agreement and will assist EPA in identifying any unanticipated issues.
The EPA also notes that our establishment of criteria for the delegation provisions of the minor and nonattainment major NSR rules for Tribes seeking to assist EPA with administration of the Federal programs does not change the criteria EPA would evaluate in reviewing and acting upon Tribal applications for TAS under CAA section 301(d) and the TAR. CAA section 301(d) and the TAR at 40 CFR 49.6 and 49.7 establish the criteria Tribes must demonstrate and the types of information to be included in Tribal applications, to obtain TAS eligibility to administer Tribal programs under Tribal law.
Although the TAS and delegation criteria overlap in certain respects, they also contain significant differences, most notably in the required demonstration of authority. Tribes seeking TAS eligibility to administer approved Tribal regulatory programs under Tribal law must demonstrate their relevant authority, including appropriate enforcement authority, to regulate air quality in the areas to be covered by the program.
In the past, sources in some areas of Indian country may have received permits from states. However, states generally lack jurisdiction under the Act over these facilities and generally were not authorized under the Act to issue such permits in Indian country.
A couple of commenters believed that the permit reapplication process set out in the proposed 40 CFR 49.158(c)(1) and 49.168(b) seems unnecessarily complex and thus these commenters argued that these permits should be transferred “en masse” from one agency to the other with a simple notification to the operator of the transfer or jurisdiction. One of these commenters added that if EPA feels that the “en masse” transfer methods are impracticable, then the source should be able to transfer the permit by submitting a transfer request (not a complete application) with a copy of the permit to both agencies, while the other commenter stressed that sources with state minor NSR permits should be
On the other hand, one commenter maintained that while previous state permit conditions may be appropriate to be included in the new Federal permit, this should not be automatic. The commenter also stated that government-to-government consultation between EPA and the affected Tribe must take place during this process. Furthermore, two commenters pointed out that the proposal did not discuss what enforcement mechanism would be used if a source failed to convert a state permit to a Federal permit in the given time frame and thus one of these commenters recommended that EPA should consider using Tribal courts for this purpose since the infraction would occur on Tribal lands and within Tribal jurisdiction.
After considering these comments, we believe that transforming state nonattainment major NSR permits into Federal nonattainment major NSR permits in Indian country is appropriate to protect air quality in Indian country. However, we do not believe that these permits should be transferred “en masse” from one agency to another or be automatically transferred because we need to determine if the permit complies with the applicable requirements under the NSR program. If it does not, a new permit with appropriate requirements would have to be public noticed and issued. If a source fails to obtain a required Federal permit by the established timeline and/or does not meet the applicable requirements under this rule, it may be subject to potential enforcement action. We also believe that since any failure of a source to convert a state permit into a Federal permit would be a violation of this rule, the violation is of the Federal requirement and thus administratively enforceable by EPA and in Federal court, not Tribal court. Because these programs are operated under Federal authority, there is no finding (and no need for a finding) of Tribal jurisdiction.
Many Tribal commenters suggested that the NSR program should include a mechanism that allows Tribes or the EPA to collect fees to offset the costs of the program, especially when a Tribe has been given delegation of the program. Two of these commenters pointed out that Tribes that do accept delegation of the program will need resources, such as funds to train and support personnel who will be reviewing and commenting on the permitting applications and funds for providing technical assistance to businesses regarding compliance issues. Some of these commenters also indicated that EPA should provide funding for Tribal implementation of the NSR program, for example, through cooperative agreements and grants.
The Agency is aware of and concerned about the resource needs of the rule, but the CAA does not give the Agency explicit authority to charge permit fees for pre-construction permitting. However, under a delegation agreement, EPA and the delegated Tribe could, as appropriate, establish mechanisms to fund the work by Tribal staff, that may include Federal funding assistance through cooperative agreements and grants and/or user fees and charges established by the Tribe [under Tribal law] for the purpose of funding its administrative activities on behalf of EPA (
Numerous Tribal commenters recommended that administrative delegation of the program to Tribes should include enforcement authority. Where they were specific, most of these commenters specified delegation of civil enforcement authority (including the ability to collect civil penalties to help support the program), but a number of commenters also favored delegation of criminal enforcement authority. In addition, commenters stated that by declining to administratively delegate enforcement (whether civil or criminal) of Federal permits to Tribes, EPA is acting inconsistently with other delegations which, in the commenters' view, withhold only criminal enforcement, but include civil enforcement. Other commenters also added that Tribes should be allowed to negotiate the level of enforcement authority on a case-by-case basis. We disagree with these commenters.
The EPA believes that these commenters mistake the distinction between approvals of Tribal programs under Tribal law provided for in the TAR and the administrative delegations at issue here. Where EPA approves an eligible Tribe for TAS under CAA section 301(d) and the TAR, EPA will continue to review the applicant Tribe's authority, including its authority to enforce, in an appropriate Tribal forum, any approved Tribal program operated under Tribal law. In such circumstances, EPA has recognized that certain limitations on Tribal criminal authority should not constitute a bar to Tribal program approval and has determined to fill any gap in Tribal criminal authority by retaining primary criminal enforcement at the Federal level for all circumstances in which a Tribe is precluded from exercising such authority.
By contrast, any permits issued under the Federal NSR programs (even where issued by a Tribe acting on EPA's behalf pursuant to a delegation agreement) remain Federal in character and continue to be enforceable (whether civilly or criminally) in Federal court. EPA does not believe that it would be appropriate to delegate enforcement of a Federal permit in Federal court to an Indian Tribe assisting EPA with administration of the NSR program. Indeed, in similar circumstances EPA has consistently withheld enforcement in Federal court from any administratively delegated entity, whether a state or a Tribe. For instance, under certain other CAA programs (
The EPA's approach to administrative delegation of the Federal NSR programs is thus consistent with other administrative delegation regulations and with EPA's approach to approval of Tribal programs under the TAR. The EPA notes that Tribes interested in enforcing NSR permits issued in their areas may continue to seek TAS eligibility and program approval pursuant to established procedures under the TAR. Indeed, EPA expects that the approach to administrative delegation of elements of the Federal NSR program may benefit such Tribes by providing opportunities for Tribes that are building air quality programs to gain experience by assisting EPA with administration of the Federal rules without needing to first develop Tribal air programs under Tribal law. To the extent such Tribes do subsequently obtain TAS eligibility and NSR program approval, their approved Tribal programs under Tribal law would replace the relevant Federal rule. In addition, EPA recognizes that some Tribes may choose not to develop air programs under Tribal law, but may still want to participate in air quality management in their areas of Indian country. Administrative delegation of elements of the Federal rules may provide an appropriate opportunity for such Tribal involvement.
Consequently, EPA believes the distinction between delegation of administration of aspects of the Federal NSR rules and approval of eligible Tribal programs under CAA section 301(d) and the TAR is significant and warrants EPA's retention of Federal enforcement of Federal NSR permits in Federal court. The EPA also believes that this approach does not create any inconsistency with its treatment of Tribal programs under the TAR or with EPA's approach to administrative delegations of other CAA programs to Tribes and states.
At proposal we stated that all the provisions of these final rules will be effective 60 days from publication of the final rule based on the information we had at the time about the number of sources that might need to seek permits under the minor NSR program. In the proposal, we noted that the data on minor sources in Indian country were very limited, but we projected that 288 new minor sources and 112 modifications will be required to obtain permits during the first six years of implementation of the minor NSR program (71 FR at 48724). Since then, however, the Agency has obtained additional information about sources in Indian country and the Agency now estimates that several thousand new and modified minor sources will be created in Indian country during the first six years following issuance of this rule (see section VIII of this preamble for more information about the projected number of new and modified sources that might be subject to this program).
Furthermore, a few commenters believed that neither EPA nor Tribal agencies had adequate resources to implement the NSR program without significant permitting delays. One commenter in particular was very concerned about the workload EPA Regions will have, especially those Regions that oversee large areas of Indian country, given EPA's presupposition that few, if any, Tribes will be prepared to pursue delegation of the responsibility to implement these requirements.
Therefore, upon review of our updated estimate of the projected number of covered sources and the comments we received pertaining to this issue, we agree that it would be very challenging for us, as the reviewing authority until a Tribe requests delegation or obtains approval of a TIP, to implement all elements of the final rules simultaneously beginning on the rules' effective date. We currently experience resource constraints and these rules will create new workload for the Agency, especially for those EPA Regions where EPA, as the reviewing authority, would oversee a large number of Tribes. Consequently, to ensure timely permit issuance, we have decided to delay the implementation date of the minor NSR permitting requirement for true minor sources for a period of 36 months after this rule's effective date, that is, September 2, 2014. The implementation dates of other parts of the program depending on the type of source being permitted are as follows:
• If you wish to commence construction of a minor modification at an existing major source on or after the effective date of the final rule (that is, on or after August 30, 2011), you must obtain a permit pursuant to 40 CFR 49.154 and 49.155 (or a general permit pursuant to 40 CFR 49.156, if applicable) prior to commencing construction.
• If you wish to obtain a synthetic minor source permit pursuant to 40 CFR 49.158 to establish a synthetic minor source and/or a synthetic minor HAP source at your existing major source, you may submit a synthetic minor source permit application on or after August 30, 2011. However, if your permit application for a synthetic minor source and/or synthetic minor HAP source pursuant to the FIPs for reservations in Idaho, Oregon and Washington has been determined complete prior to August 30, 2011 you do not need to apply for a synthetic minor source permit under this program.
• If you wish to commence construction of a new synthetic minor source and/or a new synthetic minor HAP source
• If your existing synthetic minor source and/or synthetic minor HAP source was established pursuant to the FIPs applicable to the Indian reservations in Idaho, Oregon and Washington or was established under an EPA-approved rule or permit program limiting potential to emit, you do not need to take any action under this program unless you propose a modification for this existing synthetic minor source and/or synthetic minor HAP source, on or after the effective date of this rule, that is, on or after August 30, 2011. For these modifications, you need to obtain a permit pursuant to 40 CFR 49.158 prior to commencing construction.
• If your existing synthetic minor source and/or synthetic minor HAP source was established under a permit with enforceable emissions limitations
• If your existing synthetic minor source and/or synthetic minor HAP source was established through a mechanism other than those described in the preceding paragraphs, you must submit an application pursuant to 40 CFR 49.158 for a synthetic minor source permit within 1 year after the effective date of the final rule, that is, by September 4, 2012. The reviewing authority has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.
• If you own or operate an existing true minor source in Indian country (as defined in 40 CFR 49.152(d)), you must register your source with your reviewing authority in your area within 18 months after the effective date of this program, that is, by March 1, 2013. If your true minor source commences construction in the time period after the effective date of this rule and September 2, 2014, you must also register your source with the reviewing authority in your area within 90 days after the source begins operation. You are exempt from this registration requirement if your source is subject to 40 CFR 49.138—“Rule for the registration of air pollution sources and the reporting of emissions.”
• If you wish to commence construction of a new true minor source or a modification at an existing true minor source that is subject to this program, you must obtain a permit pursuant to 40 CFR 49.154 and 49.155 (or a general permit pursuant to 40 CFR 49.156, if applicable) by the earlier of 6 months after the general permit for a source category is published in the
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it raises novel legal or policy issues arising out of legal mandates, the President's priorities or the principles set forth in the Executive Order. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
In addition, EPA prepared an analysis of the potential costs and impacts associated with this action. This rule is not considered economically significant because EPA estimates the total annualized costs of the rule to be substantially lower than $100 million.
Given that during the first three years following the rule's effective date, all new and modified sources are either required to register or request coverage under the general permit available for their source category (unless the source decides to apply for a site-specific permit at the time the source had to request coverage under that general permit), the EPA estimates lower bound
The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the
The information collection requirements resulting from this final rule are associated with certain records and reports that are necessary for the Tribal agency (or the EPA Administrator in non-delegated areas), for example, to: (1) Confirm the compliance status of stationary sources, (2) identify any stationary sources not subject to the standards and identify stationary sources subject to the rules, and (3) ensure that the stationary source control requirements are being achieved. The information would be used by the EPA or Tribal enforcement personnel to (1) identify stationary sources subject to the rules, (2) ensure that appropriate control technology is being properly applied, and (3) ensure that the emission control devices are being properly operated and maintained on a continuous basis. Based on the reported information, the delegate Tribes (or the EPA Administrator in non-delegated areas) can decide which plants, records or processes should be inspected.
The nonattainment major NSR rule would have little impact on existing major sources in Indian country because it would only affect such owners and operators if they propose a major modification and only one is expected during the first 6 years after promulgation (
With regard to the minor source permitting rule (including new minor
Minor sources will incur approximately 47,220 hours in monitoring, recordkeeping and reporting burden, incurring an estimated $549,402 ($2008) in burden during this 36 month period to complete registration or request coverage under a general permit. In addition, 32,970 existing true and synthetic minor sources will incur a one-time burden of 169,590 hours or an estimated $2.1 million, to complete registration for true minor sources and to secure new permits for existing synthetic minor sources. The Agency is estimated to incur 76,550 hours or $6.91 million ($2008) in burden to administer the minor source program during the first 3 years after rule promulgation. This Agency burden does not include costs associated with development and implementation of new general permits, as these costs are not known at this time. Burden is defined at 5 CFR 1320.3(b).
An agency may not conduct or sponsor and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.
For purposes of assessing the impacts of this final rule on small entities, “small entity” is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government or a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities potentially regulated by this final rule in Indian country are:
• New and modified minor sources of regulated NSR pollutants;
• Sources of regulated NSR pollutants choosing to accept enforceable emission limitations to avoid major source regulations (synthetic minors);
• Sources of HAP choosing to accept enforceable emission limitations to avoid major source regulations (synthetic minors);
• Minor modifications to major sources of regulated NSR pollutants;
• New major sources of regulated NSR pollutants in nonattainment areas; and
• Major modifications to major sources of regulated NSR pollutants in nonattainment areas.
We have determined that the new major sources and major modifications at existing major sources in nonattainment areas will incur no incremental costs or will experience cost savings due to the final rule because the rule only changes the regulatory mechanism in which these sources can request a permit (it does not change the compliance requirements). The costs of the source-specific FIP (the alternative mechanism in the absence of this rule) would have been comparable to the estimated costs of complying with this rule. In addition, since the permitting process may be less uncertain under the final rule, new and modifying major sources could potentially experience cost savings compared to baseline conditions.
Therefore, the screening assessment focused on costs for new and modified minor sources, minor modifications at major sources and synthetic minor sources. To analyze potential impacts to small companies owning such sources, we first estimated the number of new sources that would be sited in Indian country over the period of 2011 through 2016. However, since data on minor sources in Indian country are generally very limited, we conducted an exhaustive search for information currently available from EPA databases, the Small Business Administration and EPA Regional Offices. We then collected data from the Economic Census (2002) on the number of establishments of each type in each state and allocated the establishments to Indian country based on Tribes' share of state income. Then, we projected the number of new minor sources of each type that would be created in Indian country by applying the estimated growth rate for American Indian/Alaska Native (AI/AN) population in each state to the estimated baseline number of sources in Indian country in the state. Over the 6-year period after the effective date of the rule (2011 through 2016), we estimate that 7,606 new minor sources will be created in Indian country.
Based on our analysis,
Finally, we estimate that 2 of the 12 major sources in Indian country that make a minor modification to their operations between 2011 and 2016 will be owned by small businesses. Table 2 summarizes the estimated number of affected facilities and small businesses and table 3 disaggregates this information by source category (NAICS code).
To conduct our screening analysis of impacts
Our analysis estimates that small businesses investing in new minor source facilities, minor modifications to existing minor sources, minor modifications to existing major sources and new synthetic minor sources over the period 2011 through 2016 will incur costs that are less than 1 percent of average small company sales revenues for most sectors, but small companies choosing to invest in new auto body refinishing plants, concrete batching plants, sawmills, solid waste landfills, sand and gravel mines and sand and shot blasting operations have the potential to incur costs between 1 percent and 3 percent of sales under upper bound cost estimates. The EPA estimates that at most 20 new and modified sources would be owned by small businesses in these sectors (new auto body refinishing plants, concrete batching plants, sawmills, solid waste landfills, sand and gravel mines and sand and shot blasting operations) during the first 6 years following the effective date of the rule. Because this is a small number of facilities and because EPA believes that very few new sources will incur upper bound costs, this is considered an over-estimate of the potential small business impacts. Thus, EPA does not believe that the rule will impose significant economic impacts on a substantial number of small businesses owning new or modified minor sources.
Although this final rule will not have a significant economic impact on a substantial number of small entities, EPA has tried to reduce the impact of this rule on small entities. We are not requiring existing minor sources to obtain a permit once the rule is effective, but we are requiring them to register within 18 months after the rule's effective date or 90 days after the source begins operation. In addition, we are delaying the implementation of the rule for new and modified minor sources to the earlier of 4 months after the effective date of a general permit (6 months after the final permit is published) or 36 months after the rule's effective date, that is, September 2, 2014, to provide adequate time for the regulated entities and us, the reviewing authority, to prepare for the implementation of this rule.
This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for state, local and Tribal governments, in the aggregate or the private sector in any 1 year.
The EPA cost estimates lower bound total annualized costs of the rule to be $4.6 million, including $2.3 million for industry and $2.3 million for the Agency ($2008) while upper bound total annualized costs of this rule were estimated to be approximately $4.7 million per year, including $2.4 million for industry and $2.3 million for the Agency ($2008). After the first three years following the rule's effective date, total annualized costs for true minor sources would increase since all new and modified true minor sources will have to apply for a site-specific permit or request coverage under a general permit. However, EPA believes that costs for sources choosing to request coverage under a general permit would remain low, as would cost for the Agency. Agency costs do not include the costs of developing general permits, as these costs are unknown at this time. Thus, this rule is not subject to the requirements of sections 202 or 205 of the Unfunded Mandates Reform Act (UMRA).
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule has no requirements applicable to small governments and as such does not impose obligations upon them.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule has no requirements applicable to states. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132 and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicited comment on the proposed rule from state and local officials. To that end, we had two meetings with the STAPPA/ALAPCO
Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000) EPA may not issue a regulation that has Tribal implications, that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by Tribal governments or EPA consults with Tribal officials early in the process of developing the proposed regulation and develops a Tribal summary impact statement.
The EPA has concluded that this action will have Tribal implications. However, it will neither impose substantial direct compliance costs on Tribal governments, nor preempt Tribal law. This action provides two preconstruction air permitting rules for stationary sources in Indian Country, but these rules will neither impose substantial direct compliance costs on Tribal governments nor preempt Tribal law because these rules will be implemented by EPA or a delegate Tribal agency that has requested to assist EPA with administration of the rules, until replaced by an EPA-approved Tribal implementation plan. Nonetheless, EPA conducted substantial outreach and consultation with Tribal officials and other Tribal representatives and has incorporated Tribal views, throughout the course of developing these rules.
The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
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 a
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States.
The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations (which are persons living in Indian country) without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. Indeed, EPA believes that the two preconstruction air quality regulations in this FIP would provide regulatory certainty and fill a regulatory gap in Indian country and result in emissions reductions from sources complying with these regulations. Consequently, the regulations are expected to result in health benefits to persons living in Indian country, many of whom live in low-income and minority communities.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by August 30, 2011 Any such judicial review is limited to only those objections that are raised with reasonable specificity in timely comments. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. Under section 307(b)(2) of the Act, the requirements of this final action may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.
The statutory authority for this action is provided by sections 101, 110, 112, 114, 116 and 301 of the Act as amended (42. U.S.C. 7401, 7410, 7412, 7414, 7416 and 7601).
Administrative practices and procedures, Air pollution control, Environmental protection, Indians, Intergovernmental relations, Reporting and recordkeeping requirements.
Administrative practices and procedures, Air pollution control, Environmental protection, Intergovernmental relations.
For the reasons cited in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401,
(a)
(b)
(1) It establishes a preconstruction permitting program for new and modified minor sources (minor sources) and minor modifications at major sources located in Indian country to meet the requirements of section 110(a)(2)(C) of the Act.
(2) It establishes a registration system that will allow the reviewing authority to develop and maintain a record of minor source emissions in Indian country.
(3) It provides a mechanism for an otherwise major source to voluntarily accept restrictions on its potential to emit to become a synthetic minor source. This mechanism may also be used by an otherwise major source of HAPs to voluntarily accept restrictions on its potential to emit to become a synthetic minor HAP source. Such restrictions must be enforceable as a practical matter.
(4) It provides an additional mechanism for case-by-case maximum achievable control technology (MACT) determinations for those major sources of HAPs subject to such determinations under section 112(g)(2) of the Act.
(5) It sets forth the criteria and procedures that the reviewing authority (as defined in § 49.152(d)) will use to administer the program.
(c)
(1) The provisions of this program apply in Indian country where there is no EPA-approved minor NSR program, according to the following implementation schedule:
(i)
(A) If you wish to commence construction of a minor modification at an existing major source on or after August 30, 2011, you must obtain a permit pursuant to §§ 49.154 and 49.155 (or a general permit pursuant to § 49.156, if applicable) prior to commencing construction.
(B) If you wish to obtain a synthetic minor source permit pursuant § 49.158 to establish a synthetic minor source and/or a synthetic minor HAP source at your existing major source, you may submit a synthetic minor source permit application on or after August 30, 2011. However, if your permit application for a synthetic minor source and/or synthetic minor HAP source pursuant to the FIPs for reservations in Idaho, Oregon and Washington has been determined complete prior to August 30, 2011, you do not need to apply for a synthetic minor source permit under this program.
(ii)
(A) If you wish to commence construction of a new synthetic minor source and/or a new synthetic minor HAP source or a modification at an existing synthetic minor source and/or synthetic minor HAP source on or after August 30, 2011, you must obtain a permit pursuant to § 49.158 prior to commencing construction.
(B) If your existing synthetic minor source and/or synthetic minor HAP source was established pursuant to the FIPs applicable to the Indian reservations in Idaho, Oregon and Washington or was established under an EPA-approved rule or permit program limiting potential to emit, you do not need to take any action under this program unless you propose a modification for this existing synthetic minor source and/or synthetic minor HAP source, on or after the effective date of this rule, that is, on or after August 30, 2011. For these modifications, you need to obtain a permit pursuant to § 49.158 prior to commencing construction.
(C) If your existing synthetic minor source and/or synthetic minor HAP source was established under a permit with enforceable emissions limitations issued pursuant to part 71 of this chapter, the reviewing authority has the discretion to require you to submit a permit application for a synthetic minor source permit under this program by September 4, 2012 and pursuant to § 49.158, to require you to submit a permit application for a synthetic minor source permit under this program (pursuant to § 49.158) at the same time that you apply to renew your part 71 permit or to allow you to continue to maintain synthetic minor status through your part 71 permit. If the reviewing authority requires you to obtain a synthetic minor source permit and/or synthetic minor HAP source permit under this program (pursuant to § 49.158) it also has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.
(D) If your existing synthetic minor source and/or synthetic minor HAP source was established through a mechanism other than those described in paragraphs (c)(1)(ii)(B) and (C) of this section, you must submit an application pursuant to § 49.158 for a synthetic minor source permit under this program by September 4, 2012. The reviewing authority has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.
(iii)
(A) If you own or operate an existing true minor source in Indian country (as defined in 40 CFR 49.152(d)), you must register your source with your reviewing authority in your area within 18 months after the effective date of this program, that is, by March 1, 2013. If your true minor source commences construction in the time period after the effective date of this rule and September 2, 2014, you must also register your source with the reviewing authority in your area within 90 days after the source begins operation. You are exempt from this registration requirement if your source is subject to § 49.138—“Rule for the registration of air pollution sources and the reporting of emissions.”
(B) If you wish to commence construction of a new true minor source or a modification at an existing true minor source that is subject to this program, you must obtain a permit pursuant to §§ 49.154 and 49.155 (or a general permit pursuant to § 49.156, if applicable) by the earlier of 6 months after the general permit for a source category is published in the
(2) The provisions of this program or portions of this program cease to apply in an area covered by an EPA-approved Tribal implementation plan on the date that our approval of that implementation plan becomes effective, provided that the implementation plan includes provisions that comply with the requirements of section 110(a)(2)(C) of the Act for the construction and modification of minor sources and minor modifications at major sources. Permits previously issued under this program will remain in effect and be enforceable as a practical matter until and unless the Tribe issues new permits to these sources based on the provisions of the EPA-approved Tribal implementation plan.
(d)
(1) If you commence construction of a new source or modification that is subject to this program after the applicable date specified in paragraph (c) of this section without applying for and receiving a permit pursuant to this program, you will be subject to appropriate enforcement action.
(2) If you do not construct or operate your source or modification in accordance with the terms of your
(3) If you are subject to the registration requirements of this program, you must comply with those requirements.
(4) Issuance of a permit does not relieve you of the responsibility to comply fully with applicable provisions of any EPA-approved implementation plan or FIP and any other requirements under applicable law.
(5) Nothing in this program prevents a Tribe from administering a minor NSR permit program with different requirements in an approved Tribal Implementation Plan (TIP) as long as the TIP does not interfere with any applicable requirement of the Act.
(e)
(1) You must submit a permit application that meets the requirements of § 49.154(a).
(2) The reviewing authority determines completeness of the permit application as provided in § 49.154(b) within 45 days of receiving the application (60 days for minor modifications at major sources).
(3) The reviewing authority determines the appropriate emission limitations and permit conditions for your affected emissions units under § 49.154(c).
(4) The reviewing authority may require you to submit an Air Quality Impact Analysis (AQIA) if it has reason to be concerned that the construction of your minor source or modification would cause or contribute to a NAAQS or PSD increment violation.
(5) If an AQIA is submitted, the reviewing authority determines that the new or modified source will not cause or contribute to a NAAQS or PSD increment violation.
(6) The reviewing authority develops a draft permit that meets the permit content requirements of § 49.155(a).
(7) The reviewing authority provides for public participation, including a 30-day period for public comment, according to the requirements of § 49.157.
(8) The reviewing authority either issues a final permit that meets the requirements of § 49.155(a) or denies the permit and provides reasons for the denial, within 135 days (or within 1 year for minor modifications at major sources) after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided.
(a) For sources of regulated NSR pollutants in nonattainment areas, the definitions in § 49.167 apply to the extent that they are used in this program (except for terms defined in paragraph (d) of this section).
(b) For sources of regulated NSR pollutants in attainment or unclassifiable areas, the definitions in § 52.21 of this chapter apply to the extent that they are used in this program (except for terms defined in paragraph (d) of this section).
(c) For sources of HAP, the definitions in § 63.2 of this chapter apply to the extent that they are used in this program (except for terms defined in paragraph (d) of this section).
(d) The following definitions also apply to this program:
(1) For a proposed new minor source, all the emissions units.
(2) For a proposed modification, the new, modified and replacement emissions units involved in the modification.
(1) An emission limitation or other standard is legally enforceable if the reviewing authority has the right to enforce it.
(2) Practical enforceability for an emission limitation or for other standards (design standards, equipment standards, work practices, operational standards, pollution prevention techniques) in a permit for a source is achieved if the permit's provisions specify:
(i) A limitation or standard and the emissions units or activities at the source subject to the limitation or standard;
(ii) The time period for the limitation or standard (
(iii) The method to determine compliance, including appropriate monitoring, recordkeeping, reporting and testing.
(3) For rules and general permits that apply to categories of sources, practical enforceability additionally requires that the provisions:
(i) Identify the types or categories of sources that are covered by the rule or general permit;
(ii) Where coverage is optional, provide for notice to the reviewing authority of the source's election to be covered by the rule or general permit; and
(iii) Specify the enforcement consequences relevant to the rule or general permit.
(1) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent and including rights-of-way running through the reservation;
(2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof and whether within or without the limits of a state; and
(3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
(1) A physical or operational change does not include routine maintenance, repair or replacement.
(2) An increase in the hours of operation or in the production rate is not considered an operational change unless such change is prohibited under any permit condition that is enforceable as a practical matter.
(3) A change in ownership at a stationary source.
(4) The emissions units and activities listed in § 49.153(c).
(a)
(1)
(i)
(A)
(B)
(ii)
(A)
(B)
(C)
(2)
(3)
(i) If you own or operate an existing major source and you wish to obtain a synthetic minor source permit pursuant to § 49.158 to establish a synthetic minor source and/or a synthetic minor HAP source, you may submit a synthetic minor source permit application on or after August 30, 2011. However, if your permit application for a synthetic minor source and/or synthetic minor HAP source pursuant to the FIPs for reservations in Idaho, Oregon and Washington has been determined complete prior to August 30, 2011, you do not need to apply for a synthetic minor source permit under this program.
(ii) If you wish to commence construction of a new synthetic minor source and/or a new synthetic minor HAP source or a modification at an existing synthetic minor source and/or synthetic minor HAP source, on or after August 30, 2011, you must obtain a permit pursuant to § 49.158 prior to commencing construction.
(iii) If you own or operate a synthetic minor source or synthetic minor HAP source that was established prior to the effective date of this rule (that is, prior to August 30, 2011) pursuant to the FIPs applicable to the Indian reservations in Idaho, Oregon and Washington or under an EPA-approved rule or permit program limiting potential to emit, you do not need to take any action under this program unless you propose a modification for this existing synthetic minor source and/or synthetic minor HAP source, on or after the effective date of this rule, that is, on or after August 30, 2011. For these modifications, you need to obtain a permit pursuant to § 49.158 prior to commencing construction.
(iv) If you own or operate a synthetic minor source or synthetic minor HAP source that was established prior to the effective date of this rule (that is, prior to August 30, 2011) through a permit with enforceable emissions limitations issued pursuant to the operating permit program in part 71 of this chapter, the reviewing authority has the discretion to require you to apply for a synthetic minor source permit under § 49.158 of this program by September 4, 2012 or at the time of part 71 permit renewal or allow you to maintain synthetic minor status through your part 71 permit.
(v) For all other synthetic minor sources or synthetic minor HAP sources that obtained synthetic minor status or synthetic minor source permits through a mechanism other than those described in paragraphs (a)(3)(iii) and (iv) of this section, you must submit an application for a synthetic minor source permit under this program by September 4, 2012 under § 49.158.
(4)
(b)
(1) For each new emissions unit that is to be added, the emissions increase would be the potential to emit of the emissions unit.
(2) For each emissions unit with an allowable emissions limit that is to be changed or replaced, the emissions increase would be the allowable emissions of the emissions unit after the change or replacement minus the allowable emissions prior to the change or replacement. However, this may not be a negative value. If the allowable emissions of an emissions unit would be reduced as a result of the change or replacement, use zero in the calculation.
(3) For each unpermitted emissions unit (a unit without any enforceable permit conditions) that is to be changed or replaced, the emissions increase is the allowable emissions of the emissions unit after the change or replacement minus the potential to emit prior to the change or replacement. However, this may not be a negative value. If an emissions unit's post-change allowable emissions would be less than its pre-change potential to emit, use zero in the calculation.
(c)
This program does not apply to the following emissions units and activities at a source that are listed in paragraphs (c)(1) through (7) of this section.
(1) Mobile sources.
(2) Ventilating units for comfort that do not exhaust air pollutants into the ambient air from any manufacturing or other industrial processes
(3) Noncommercial food preparation.
(4) Consumer use of office equipment and products.
(5) Janitorial services and consumer use of janitorial products.
(6) Internal combustion engines used for landscaping purposes.
(7) Bench scale laboratory activities, except for laboratory fume hoods or vents.
This section applies to you if you are subject to this program under § 49.153(a) for the construction of a new minor source, synthetic minor source or a modification at an existing source.
(a)
(1)
(i) The reviewing authority may develop permit application forms for your use.
(ii) The permit application need not contain information on the exempt emissions units and activities listed in § 49.153(c).
(iii) The permit application for a modification need only include information on the affected emissions units as defined in § 49.152(d).
(2)
(i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact.
(ii) A description of your source's processes and products.
(iii) A list of all affected emissions units (with the exception of the exempt emissions units and activities listed in § 49.153(c)).
(iv) For each new emissions unit that is listed, the potential to emit of each regulated NSR pollutant in tpy (including fugitive emissions, to the extent that they are quantifiable, if the emissions unit or source is in one of the source categories listed in part 51, Appendix S, paragraph II.A.4(iii) or § 52.21(b)(1)(iii) of this chapter, as applicable), with supporting documentation. In your calculation of the potential to emit for an emissions unit, you must account for any proposed emission limitations.
(v) For each modified emissions unit and replacement unit that is listed, the allowable emissions of each regulated NSR pollutant in tpy both before and after the modification (including fugitive emissions, to the extent that they are quantifiable, if the emissions unit or source belongs to one of the source categories listed in part 51, Appendix S, paragraph II.A.4(iii) or § 52.21(b)(1)(iii) of this chapter, as applicable), with supporting documentation. For emissions units that do not have an allowable emissions limit prior to the modification, report the potential to emit. In your calculation of annual allowable emissions for an emissions unit after the modification, you must account for any proposed emission limitations.
(vi) The following information to the extent it is needed to determine or regulate emissions: Fuels, fuel use, raw materials, production rates and operating schedules.
(vii) Identification and description of any existing air pollution control equipment and compliance monitoring devices or activities.
(viii) Any existing limitations on source operation affecting emissions or any work practice standards, where applicable, for all NSR regulated pollutants at the source.
(ix) For each emission point associated with an affected emissions unit, provide stack or vent dimensions and flow information.
(3)
(b)
(1) An application for a permit under this program will be reviewed by the reviewing authority within 45 days of its receipt (60 days for minor modifications at major sources) to determine whether the application contains all the information necessary for processing the application.
(2) If the reviewing authority determines that the application is not complete, it will request additional information from you as necessary to process the application. If the reviewing authority determines that the application is complete, it will notify you in writing. The reviewing
(3) If, while processing an application that has been determined to be complete, the reviewing authority determines that additional information is necessary to evaluate or take final action on the application, it may request additional information from you and require your responses within a reasonable time period.
(4) Any permit application will be granted or denied no later than 135 days (1 year for minor modifications at major sources) after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided.
(c)
(1) In carrying out this case-by-case control technology review, the reviewing authority will consider the following factors:
(i) Local air quality conditions.
(ii) Typical control technology or other emissions reduction measures used by similar sources in surrounding areas.
(iii) Anticipated economic growth in the area.
(iv) Cost-effective emission reduction alternatives.
(2) The reviewing authority must require a numerical limit on the quantity, rate or concentration of emissions for each regulated NSR pollutant emitted by each affected emissions unit at your source for which such a limit is technically and economically feasible.
(3) The emission limitations required by the reviewing authority may consist of numerical limits on the quantity, rate or concentration of emissions; pollution prevention techniques; design standards; equipment standards; work practices; operational standards; requirements relating to the operation or maintenance of the source or any combination thereof.
(4) The emission limitations required by the reviewing authority must assure that each affected emissions unit will comply with all requirements of parts 60, 61 and 63 of this chapter as well as any FIPs or TIPs that apply to the unit.
(5) The emission limitations required by the reviewing authority must not be affected in a manner by so much of a stack's height as exceeds good engineering practice or by any other dispersion technique, except as provided in § 51.118(b) of this chapter. If the reviewing authority proposes to issue a permit to a source based on a good engineering practice stack height that exceeds the height allowed by § 51.100(ii)(1) or (2) of this chapter, it must notify the public of the availability of the demonstration study and must provide opportunity for a public hearing according to the requirements of § 49.157 for the draft permit.
(d)
(1) If the reviewing authority has reason to be concerned that the construction of your minor source or modification would cause or contribute to a NAAQS or PSD increment violation, it may require you to conduct and submit an AQIA.
(2) If required, you must conduct the AQIA using the dispersion models and procedures of part 51, Appendix W of this chapter.
(3) If the AQIA reveals that construction of your source or modification would cause or contribute to a NAAQS or PSD increment violation, the reviewing authority must require you to reduce or mitigate such impacts before it can issue you a permit.
This section applies to your permit if you are subject to this program under § 49.153(a) for construction of a new minor source, synthetic minor source or a modification at an existing source.
(a)
(1)
(i) The effective date of the permit and the date by which you must commence construction in order for your permit to remain valid (
(ii) The emissions units subject to the permit and their associated emission limitations.
(iii) Monitoring, recordkeeping, reporting and testing requirements to assure compliance with the emission limitations.
(2)
(3)
(i) Any emissions monitoring, including analysis procedures, test methods, periodic testing, instrumental monitoring and non-instrumental monitoring. Such monitoring requirements shall assure use of test methods, units, averaging periods and other statistical conventions consistent with the required emission limitations.
(ii) As necessary, requirements concerning the use, maintenance and installation of monitoring equipment or methods.
(4)
(i) Records of required monitoring information that include the information in paragraphs (a)(4)(i)(A) through (F) of this section, as appropriate.
(A) The location, date and time of sampling or measurements.
(B) The date(s) analyses were performed.
(C) The company or entity that performed the analyses.
(D) The analytical techniques or methods used.
(E) The results of such analyses.
(F) The operating conditions existing at the time of sampling or measurement.
(ii) Retention for 5 years of records of all required monitoring data and
(5)
(i) Annual submittal of reports of monitoring required under paragraph (a)(3) of this section, including the type and frequency of monitoring and a summary of results obtained by monitoring.
(ii) Prompt reporting of deviations from permit requirements, including those attributable to upset conditions as defined in the permit, the probable cause of such deviations and any corrective actions or preventive measures taken. Within the permit, the reviewing authority must define “prompt” in relation to the degree and type of deviation likely to occur and the applicable emission limitations.
(6)
(7)
(i) You, as the permittee, must comply with all conditions of your permit, including emission limitations that apply to the affected emissions units at your source. Noncompliance with any permit term or condition is a violation of the permit and may constitute a violation of the Act and is grounds for enforcement action and for a permit termination or revocation.
(ii) Your permitted source must not cause or contribute to a NAAQS violation or in an attainment area, must not cause or contribute to a PSD increment violation.
(iii) It is not a defense for you, as the permittee, in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.
(iv) The permit may be revised, reopened, revoked and reissued or terminated for cause. The filing of a request by you, as the permittee, for a permit revision, revocation and re-issuance or termination or of a notification of planned changes or anticipated noncompliance does not stay any permit condition.
(v) The permit does not convey any property rights of any sort or any exclusive privilege.
(vi) You, as the permittee, shall furnish to the reviewing authority, within a reasonable time, any information that the reviewing authority may request in writing to determine whether cause exists for revising, revoking and reissuing or terminating the permit or to determine compliance with the permit. For any such information claimed to be confidential, you must also submit a claim of confidentiality in accordance with part 2, subpart B of this chapter.
(vii) Upon presentation of proper credentials, you, as the permittee, must allow a representative of the reviewing authority to:
(A) Enter upon your premises where a source is located or emissions-related activity is conducted or where records are required to be kept under the conditions of the permit;
(B) Have access to and copy, at reasonable times, any records that are required to be kept under the conditions of the permit;
(C) Inspect, during normal business hours or while the source is in operation, any facilities, equipment (including monitoring and air pollution control equipment), practices or operations regulated or required under the permit;
(D) Sample or monitor, at reasonable times, substances or parameters for the purpose of assuring compliance with the permit or other applicable requirements and
(E) Record any inspection by use of written, electronic, magnetic and photographic media.
(b)
This section applies to general permits for the purposes of complying with the preconstruction permitting requirements for sources of regulated NSR pollutants under this program.
(a)
(b)
(1) A general permit may be issued for a category of emissions units or sources that are similar in nature, have substantially similar emissions and would be subject to the same or substantially similar requirements governing operations, emissions, monitoring, reporting and recordkeeping. “Similar in nature” refers to size, processes and operating conditions.
(2) A general permit must be issued according to the applicable requirements in § 49.154(c), § 49.154(d) and § 49.155, the public participation requirements in § 49.157 and the requirements for final permit issuance and administrative and judicial review in § 49.159.
(3) Issuance of a general permit is considered final agency action with respect to all aspects of the general permit except its applicability to an individual source. The sole issue that may be appealed after an individual source is approved to construct under a general permit (
(c)
(1) The reviewing authority will determine which categories of individual emissions units, groups of similar emissions units or sources are appropriate for general permits in its area.
(2) General permits will be issued at the discretion of the reviewing authority.
(d)
(1) Identification of the specific category of emissions units or sources to which the general permit applies, including any criteria that your emissions units or source must meet to be eligible for coverage under the general permit.
(2) Information required to request coverage under a general permit including, but not limited to, the following:
(i) The name and mailing address of the reviewing authority to whom you must submit your application.
(ii) The procedure to obtain any standard application forms that the reviewing authority may have developed.
(iii) The information that you must provide to the reviewing authority in your application to demonstrate that you are eligible for coverage under the general permit.
(iv) Other application requirements deemed necessary by the reviewing authority.
(e)
(1) If your source qualifies for a general permit, you may request coverage under that general permit to the reviewing authority 4 months after the effective date of the general permit, that is, 6 months after publication of the general permit in the
(2) At the time you submit your request for coverage under a general permit, you must submit a copy of such request to the Tribe in the area where the source is locating.
(3) The reviewing authority must act on your request for coverage under the general permit as expeditiously as possible, but it must notify you of the final decision within 90 days of its receipt of your coverage request.
(4) Your reviewing authority must comply with a 45-day completeness review period to determine if your request for coverage under a general permit is complete. Therefore, within 30 days after the receipt of your coverage request, your reviewing authority must make an initial request for any additional information necessary to process your coverage request and you must submit such information within 15 days. If you do not submit the requested information within 15 days from the request for additional information and this results in a delay that is beyond the 45-day completeness review period, the 90-day permit issuance period for your general permit will be extended by the additional days you take to submit the requested information beyond the 45-day period. If the reviewing authority fails to notify you within a 30-day period of any additional information necessary to process your coverage request, you will still have 15 days to submit such information and the reviewing authority must still grant or deny your request for coverage under a general permit within the 90-day general permit issuance period and without any time extension.
(5) If the reviewing authority determines that your request for coverage under a general permit has all the relevant information and is complete, it will notify you in writing as soon as that determination is made. If you do not receive from the reviewing authority a request for additional information or a notice that your request for coverage under a general permit is complete within the 45-day completeness review period described in paragraph (4) of this section, your request will be deemed complete.
(6) The reviewing authority will send you a letter notifying you of the approval or denial of your request for coverage under a general permit. This letter is a final action for purposes of judicial review (
(7) If the reviewing authority has sent a letter to you approving your request for coverage under a general permit, you must comply with all conditions and terms of the general permit. You will be subject to enforcement action for failure to obtain a preconstruction permit if you construct the emissions unit(s) or source with general permit approval and your source is later determined not to qualify for the conditions and terms of the general permit.
(8) Your permit becomes invalid if you do not commence construction within 18 months after the effective date of your request for coverage under a general permit, if you discontinue construction for a period of 18 months or more or if you do not complete construction within a reasonable time. The reviewing authority may extend the 18-month period upon a satisfactory showing that an extension is justified. This provision does not apply to the time period between construction of the approved phases of a phased construction project; you must commence construction of each such phase within 18 months of the projected and approved commencement date.
(9) Any source eligible to request coverage under a general permit may request to be excluded from the general permit by applying for a permit under § 49.154.
This section applies to the issuance of minor source permits and synthetic minor source permits, the initial issuance of general permits and coverage of a particular source under a general permit.
(a)
(1) All information submitted as part of your application for a permit.
(2) Any additional information requested by the reviewing authority.
(3) The reviewing authority's analysis of the application and any additional information you submitted, including (for preconstruction permits and the initial issuance of general permits) the control technology review.
(4) For minor source permits and the initial issuance of general permits, the reviewing authority's analysis of the effect of the construction of the minor source or modification on ambient air quality.
(5) For coverage of a particular source under a general permit, the reviewing authority's analysis of whether your particular emissions unit or source is within the category of emissions units or sources to which the general permit applies, including whether your emissions unit or source meets any criteria to be eligible for coverage under the general permit.
(6) A copy of the draft permit or the decision to deny the permit with the justification for denial.
(b)
(1) Before issuing a permit under this program, the reviewing authority must prepare a draft permit and must provide adequate public notice to ensure that the affected community and the general public have reasonable access to the application and draft permit information, as set out in paragraphs (b)(1)(i) and (ii) of this section. The public notice must provide an opportunity for public comment and notice of a public hearing, if any, on the draft permit.
(i) The reviewing authority must mail a copy of the notice to you, the appropriate Indian governing body and the Tribal, state and local air pollution authorities having jurisdiction adjacent to the area of Indian country potentially impacted by the air pollution source.
(ii) Depending on such factors as the nature and size of your source, local air quality considerations and the characteristics of the population in the affected area (
(A) The reviewing authority may mail or e-mail a copy of the notice to persons on a mailing list developed by the reviewing authority consisting of those persons who have requested to be placed on such a mailing list.
(B) The reviewing authority may post the notice on its Web site.
(C) The reviewing authority may publish the notice in a newspaper of general circulation in the area affected by the source. Where possible, the notice may also be published in a Tribal newspaper or newsletter.
(D) The reviewing authority may provide copies of the notice for posting at one or more locations in the area affected by the source, such as post offices, trading posts, libraries, Tribal environmental offices, community centers or other gathering places in the community.
(E) The reviewing authority may employ other means of notification as appropriate.
(2) The notice required pursuant to paragraph (b)(1) of this section must include the following information at a minimum:
(i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact.
(ii) The name and address of the reviewing authority processing the permit action;
(iii) For minor source permits, the initial issuance of general permits and coverage of a particular source under a general permit, the regulated NSR pollutants to be emitted, the affected emissions units and the emission limitations for each affected emissions unit;
(iv) For minor source permits, the initial issuance of general permits and coverage of a particular source under a general permit, the emissions change involved in the permit action;
(v) For synthetic minor source permits, a description of the proposed limitation and its effect on the potential to emit of the source;
(vi) Instructions for requesting a public hearing;
(vii) The name, address and telephone number of a contact person in the reviewing authority's office from whom additional information may be obtained;
(viii) Locations and times of availability of the information (listed in paragraph (a) of this section) for public inspection and
(ix) A statement that any person may submit written comments, a written request for a public hearing or both, on the draft permit action. The reviewing authority must provide a period of at least 30 days from the date of the public notice for comments and for requests for a public hearing.
(c)
(1) Any person may submit written comments on the draft permit and may request a public hearing. These comments must raise any reasonably ascertainable issue with supporting arguments by the close of the public comment period (including any public hearing). The reviewing authority must consider all comments in making the final decision. The reviewing authority must keep a record of the commenters and of the issues raised during the public participation process and such records must be available to the public.
(2) The reviewing authority must extend the public comment period under paragraph (b) of this section to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing.
(3) A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised at the hearing.
(4) The reviewing authority must hold a hearing whenever there is, on the basis of requests, a significant degree of public interest in a draft permit. The reviewing authority may also hold a public hearing at its discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision. The reviewing authority must provide notice of any public hearing at least 30 days prior to the date of the hearing. Public notice of the hearing may be concurrent with that of the draft permit and the two notices may be combined. Reasonable limits may be set upon the time allowed for oral statements at the hearing.
(5) The reviewing authority must make a tape recording or written transcript of any hearing available to the public.
You may obtain a synthetic minor source permit under this program to establish a synthetic minor source for purposes of the applicable PSD, nonattainment major NSR or Clean Air Act title V program and/or a synthetic minor HAP source for purposes of part 63 of the Act or the applicable Clean Air Act title V program. Any source that becomes a synthetic minor source for NSR and title V purposes but has other applicable requirements or becomes a synthetic minor for NSR but is major for title V purposes, remains subject to the applicable title V program. Note that if you propose to construct or modify a synthetic minor source, you are also subject to the preconstruction permitting requirements in §§ 49.154 and 49.155, except for the permit application content and permit application completeness provisions included in § 49.154(a)(2) and § 49.154(b).
(a)
(1) Your application must include the following information:
(i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact.
(ii) For each regulated NSR pollutant and/or HAP and for all emissions units to be covered by an emissions limitation, the following information:
(A) The proposed emission limitation and a description of its effect on actual emissions or the potential to emit. Proposed emission limitations must have a reasonably short averaging period, taking into consideration the operation of the source and the methods to be used for demonstrating compliance.
(B) Proposed testing, monitoring, recordkeeping and reporting requirements to be used to demonstrate and assure compliance with the proposed limitation.
(C) A description of the production processes.
(D) Identification of the emissions units.
(E) Type and quantity of fuels and/or raw materials used.
(F) Description and estimated efficiency of air pollution control equipment under present or anticipated operating conditions.
(G) Estimates of the current actual emissions and current potential to emit, including all calculations for the estimates.
(H) Estimates of the allowable emissions and/or potential to emit that
(iii) Any other information specifically requested by the reviewing authority.
(2) Estimates of actual emissions must be based upon actual test data or in the absence of such data, upon procedures acceptable to the reviewing authority. Any emission estimates submitted to the reviewing authority must be verifiable using currently accepted engineering criteria. The following procedures are generally acceptable for estimating emissions from air pollution sources:
(i) Source-specific emission tests;
(ii) Mass balance calculations;
(iii) Published, verifiable emission factors that are applicable to the source;
(iv) Other engineering calculations or
(v) Other procedures to estimate emissions specifically approved by the reviewing authority.
(b)
(1) If you wish to obtain a synthetic minor source permit under this program, you must submit a permit application to the reviewing authority. The application must contain the information specified in paragraph (a) of this section.
(2) Within 60 days after receipt of an application, the reviewing authority will determine if it contains the information specified in paragraph (a) of this section.
(3) If the reviewing authority determines that the application is not complete, it will request additional information from you as necessary to process the application. If the reviewing authority determines that the application is complete, it will notify you in writing. The reviewing authority's completeness determination or request for additional information should be postmarked within 60 days of receipt of the permit application by the reviewing authority. If you do not receive a request for additional information or a notice of complete application postmarked within 60 days of receipt of the permit application by the reviewing authority, your application will be deemed complete
(4) The reviewing authority will prepare a draft synthetic minor source permit that describes the proposed limitation and its effect on the potential to emit of the source.
(5) The reviewing authority must provide an opportunity for public participation and public comment on the draft synthetic minor source permit as set out in § 49.157.
(6) After the close of the public comment period, the reviewing authority will review all comments received and prepare a final synthetic minor source permit.
(7) The final synthetic minor source permit will be granted or denied no later than 1 year after the date the application is deemed complete and all additional information necessary to make an informed decision has been provided.
(8) The final synthetic minor source permit will be issued and will be subject to administrative and judicial review as set out in § 49.159.
(c)
(1) If your existing synthetic minor source and/or synthetic minor HAP source was established pursuant to the FIPs applicable to the Indian reservations in Idaho, Oregon and Washington or was established under an EPA-approved rule or permit program limiting potential to emit, you do not need to take any action under this program unless you propose a modification for this existing synthetic minor source and/or synthetic minor HAP source, on or after the effective date of this rule, that is, on or after August 30, 2011. For these modifications, you need to obtain a permit pursuant to § 49.158 prior to commencing construction.
(2) If your existing synthetic minor source and/or synthetic minor HAP source was established under a permit with enforceable emissions limitations issued pursuant to part 71 of this chapter, the reviewing authority has the discretion to do any of the following:
(i) Allow you to maintain the synthetic minor status for your source through your permit under part 71 of this chapter, including subsequent renewals of that permit.
(ii) Require you to submit an application for a synthetic minor source permit under this program by September 4, 2012, subject to the provisions in paragraphs (a) and (c)(4)(i) through (iii) of this section. The reviewing authority also has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.
(iii) Require you to submit an application for a synthetic minor source permit under this program at the same time that you apply to renew your permit under part 71 of this chapter, subject to the provisions in paragraphs (a) and (c)(4)(i) through (iii) of this section. The reviewing authority also has the discretion to require any additional requirements, including control technology requirements, based on the specific circumstances of the source.
(3) If your existing synthetic minor source and/or synthetic minor HAP source was established through a mechanism other than those described in paragraphs (c)(1) and (c)(2) of this section, you must submit an application for a synthetic minor source permit under this program by September 4, 2012, subject to the provisions in paragraphs (a) and (c)(4)(i) through (iii) of this section
(4) If you are required to obtain a synthetic minor source permit under this program for your existing synthetic minor source and/or synthetic minor HAP source, the following provisions apply:
(i) After submitting your synthetic minor source permit application, you must respond in a timely manner to any requests from the reviewing authority for additional information.
(ii) Provided that you submit your application as required in paragraph (c)(2)(ii), (c)(2)(iii) or (c)(3) (as applicable) and any requested additional information as required in paragraph (c)(4)(i) of this section, your source will continue to be considered a synthetic minor source or synthetic minor HAP source (as applicable) until your synthetic minor source permit under this program has been issued. Issuance of your synthetic minor source permit under this program will be in accordance with the applicable requirements in §§ 49.154 and 49.155 and all other provisions under this section.
(iii) Should you fail to submit your application as required in paragraph (c)(2)(ii), (c)(2)(iii) or (c)(3) (as applicable) or any requested additional information as required in paragraph (c)(4)(i) of this section, your source will no longer be considered a synthetic minor source or synthetic minor HAP source (as applicable) and will become subject to all requirements for major sources. In the case of sources subject to section (c)(2)(iii) of this section, the renewed part 71 permit will not contain enforceable emissions limitations and instead will include applicable major source requirements.
(a)
(1) A later effective date is specified in the permit or
(2) Review of the final permit is requested under paragraph (d) of this section (in which case the specific terms and conditions of the permit that are the subject of the request for review must be stayed) or
(3) The reviewing authority may make the permit effective immediately upon issuance if no comments requested a change in the draft permit or a denial of the permit.
(b)
(c)
(1) The reviewing authority must base final permit decisions on an administrative record consisting of:
(i) The application and any supporting data furnished by you, the permit applicant;
(ii) The draft permit or notice of intent to deny the application;
(iii) Other documents in the supporting files for the draft permit that were relied upon in the decision-making;
(iv) All comments received during the public comment period, including any extension or reopening;
(v) The tape or transcript of any hearing(s) held;
(vi) Any written material submitted at such a hearing;
(vii) Any new materials placed in the record as a result of the reviewing authority's evaluation of public comments;
(viii) The final permit and
(ix) Other documents in the supporting files for the final permit that were relied upon in the decision-making.
(2) The additional documents required under paragraph (c)(1) of this section should be added to the record as soon as possible after their receipt or preparation by the reviewing authority. The record must be complete on the date the final permit is issued.
(3) Material readily available or published materials that are generally available and that are included in the administrative record under the standards of paragraph (c)(1) of this section need not be physically included in the same file as the rest of the record as long as it is specifically referred to in that file.
(d)
(1) The Administrator delegates authority to the Environmental Appeals Board (the Board) to issue final decisions in permit appeals filed under this program. An appeal directed to the Administrator, rather than to the Board, will not be considered. This delegation does not preclude the Board from referring an appeal or a motion under this program to the Administrator when the Board, in its discretion, deems it appropriate to do so. When an appeal or motion is referred to the Administrator by the Board, all parties shall be so notified and the provisions of this program referring to the Board shall be interpreted as referring to the Administrator.
(2) Within 30 days after a final permit decision has been issued, any person who filed comments on the draft permit or participated in the public hearing may petition the Board to review any condition of the permit decision. Any person who failed to file comments or failed to participate in the public hearing on the draft permit may petition for administrative review only to the extent that the changes from the draft to the final permit or other new grounds were not reasonably ascertainable during the public comment period on the draft permit. The 30-day period within which a person may request review under this section begins with the service of notice of the final permit decision, unless a later date is specified in that notice.
(3) The petition must include a statement of the reasons supporting the review, including a demonstration that any issues being raised were raised during the public comment period (including any public hearing) to the extent required by these regulations, unless the petitioner demonstrates that such objections were not reasonably ascertainable within such period and, when appropriate, a showing that the condition in question is based on:
(i) A finding of fact or conclusion of law that is clearly erroneous or
(ii) An exercise of discretion or an important policy consideration that the Board should, in its discretion, review.
(4) The Board may also decide on its own initiative to review any condition of any permit issued under this program.
(5) Within a reasonable time following the filing of the petition for review, the Board will issue an order either granting or denying the petition for review. To the extent review is denied, the conditions of the final permit decision become final agency action. If the Board grants review in response to requests under paragraph (d)(2)-(3) or (4) of this section, public notice must be given as provided in § 49.157(b). Public notice must set forth a briefing schedule for the appeal and must state that any interested person may file an amicus brief. If the Board denies review, you, the permit applicant and the person(s) requesting review must be notified through means that are adequate to assure reasonable access to the decision, which may include mailing a notice to each party.
(6) The reviewing authority, at any time prior to the rendering of a decision under paragraph (d)(5) of this section to grant or deny review of a permit decision, may, upon notification to the Board and any interested parties, withdraw the permit and prepare a new draft permit addressing the portions so withdrawn. The new draft permit shall proceed through the same process of public comment and opportunity for a public hearing as would apply to any other draft permit subject to this subpart and in accordance with § 49.157.
(7) A petition to the Board under paragraph (d)(2) of this section is, under section 307(b) of the Act, a prerequisite to seeking judicial review of the final agency action.
(8) For purposes of judicial review, final agency action occurs when a final permit is issued or denied by the reviewing authority and agency review procedures are exhausted. A final permit decision will be issued by the reviewing authority:
(i) When the Board issues notice to the parties that review has been denied;
(ii) When the Board issues a decision on the merits of the appeal and the decision does not include a remand of the proceedings or
(iii) Upon the completion of remand proceedings if the proceedings are remanded, unless the Board's remand order specifically provides that appeal of the remand decision will be required to exhaust administrative remedies.
(9) Motions to reconsider a final order must be filed within 10 days after service of the final order. Every such
(10) For purposes of this section, time periods are computed as follows:
(i) Any time period scheduled to begin on the occurrence of an act or event must begin on the day after the act or event.
(ii) Any time period scheduled to begin before the occurrence of an act or event must be computed so that the period ends on the day before the act or event, except as otherwise provided.
(iii) If the final day of any time period falls on a weekend or legal holiday, the time period must be extended to the next working day.
(iv) Whenever a party or interested person has the right or is required to act within a prescribed period after the service of notice or other paper upon him or her by mail, 3 days must be added to the prescribed time.
(e)
(f)
(1) An administrative permit revision is a permit revision that makes any of the following changes:
(i) Corrects typographical errors.
(ii) Identifies a change in the name, address or phone number of any person identified in the permit or provides a similar minor administrative change at the source.
(iii) Requires more frequent monitoring or reporting by the permittee.
(iv) Allows for a change in ownership or operational control of a source where the reviewing authority determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage and liability between the current and new permittee has been submitted to the reviewing authority.
(v) Establishes an increase in an emissions unit's annual allowable emissions limit for a regulated NSR pollutant, when the action that necessitates such increase is not otherwise subject to review under major NSR or under this program.
(vi) Incorporates any other type of change that the reviewing authority has determined to be similar to those in paragraphs (f)(1)(i) through (v) of this section.
(2) An administrative permit revision is not subject to the permit application, issuance, public participation or administrative and judicial review requirements of this program.
(a)
(b)
(1) You are exempt from this registration program if any of the following paragraphs applies to your source:
(i) Your source is subject to the registration requirements under § 49.138—“Rule for the registration of air pollution sources and the reporting of emissions.”
(ii) Your source has a part 71 permit.
(iii) Your source is a synthetic minor source or a synthetic minor HAP source or a minor modification at a major source as defined in § 49.152(d).
(2) For purposes of determining the potential to emit, allowable or actual emissions of your source, you are not required to include emissions from the exempted emissions units and activities listed in § 49.153(c).
(c)
(1)
(i) If you own or operate an existing true minor source (as defined in 40 CFR 49.152(d)), you must register your source with your reviewing authority 18 months after the effective date of this program, that is, March 1, 2013.
(ii) If your true minor source commences construction in the time period between the effective date of the rule and September 2, 2014, you must register your source with your reviewing authority within 90 days after the source begins operation.
(iii) If construction or modification of your source commenced any time on or after September 2, 2014 and your source is subject to this rule, you must report your source's actual emissions (if available) as part of your permit application and your permit application information will be used to fulfill the registration requirements described in § 49.160(c)(2).
(2)
(i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact.
(ii) A description of your source's processes and products.
(iii) A list of all emissions units (with the exception of the exempt emissions units and activities listed in § 49.153(c)).
(iv) For each emissions unit that is listed, both the allowable and estimated actual annual emissions of each regulated NSR pollutant in tpy (including fugitive emissions, to the extent that they are quantifiable, if the emissions unit or source is in one of the source categories listed in § 51, Appendix S, paragraph II.A.4(iii) or § 52.21(b)(1)(iii) of this chapter), with supporting documentation.
(v) The following information: Fuels, fuel use, raw materials, production rates and operating schedules.
(vi) Identification and description of any existing air pollution control equipment and compliance monitoring devices or activities.
(vii) Any existing limitations on source operation affecting emissions or any work practice standards, where applicable, for all NSR regulated pollutants at the source.
(viii) Any other information specifically requested by the reviewing authority.
(3)
(i) Estimates of allowable emissions must be consistent with the definition of that term in § 49.152(d). Allowable
(ii) Estimates of actual emissions must take into account equipment, operating conditions and air pollution control measures. For a source that operated during the entire calendar year preceding the initial registration submittal, the reported actual emissions typically should be the annual emissions for the preceding calendar year, calculated using the actual operating hours, production rates, in-place control equipment and types of materials processed, stored or combusted during the preceding calendar year. However, if you believe that the actual emissions in the preceding calendar year are not representative of the emissions that your source will actually emit in coming years, you may submit an estimate of projected actual emissions along with the actual emissions from the preceding calendar year and the rationale for the projected actual emissions. For a source that has not operated for an entire year, the actual emissions are the estimated annual emissions for the current calendar year.
(iii) The allowable and actual emission estimates must be based upon actual test data or, in the absence of such data, upon procedures acceptable to the reviewing authority. Any emission estimates submitted to the reviewing authority must be verifiable using currently accepted engineering criteria. The following procedures are generally acceptable for estimating emissions from air pollution sources:
(i) Source-specific emission tests;
(ii) Mass balance calculations;
(iii) Published, verifiable emission factors that are applicable to the source;
(iv) Other engineering calculations or
(v) Other procedures to estimate emissions specifically approved by the Regional Administrator.
(4)
(d)
(1)
(2)
(3)
(a)
(1) If the Administrator has approved a TIP that includes a minor NSR program for sources in Indian country that meets the requirements of section 110(a)(2)(C) of the Act and §§ 51.160 through 51.164 of this chapter, the Tribe is the reviewing authority and it will administer the approved minor NSR program under Tribal law.
(2) If the Administrator has not approved an implementation plan, the Administrator may delegate the authority to assist EPA with administration of portions of this Federal minor NSR program implemented under Federal authority to a Tribal agency upon request, in accordance with the provisions of paragraph (b) of this section. If the Tribal agency has been granted such delegation, it will have the authority to assist EPA according to paragraph (b) of this section and it will be the reviewing authority for purposes of the provisions for which it has been granted delegation.
(3) If the Administrator has not approved an implementation plan or granted delegation to a Tribal agency, the Administrator is the reviewing authority and will directly administer all aspects of this Federal minor NSR program in Indian country under Federal authority.
(b)
(1)
(i) Identifies the specific provisions for which delegation is requested;
(ii) Identifies the Indian Reservation or other areas of Indian country for which delegation is requested;
(iii) Includes a statement by the applicant's legal counsel (or equivalent official) that includes the following information:
(A) A statement that the applicant is a Tribe recognized by the Secretary of the Interior;
(B) A descriptive statement that is consistent with the type of information described in § 49.7(a)(2) demonstrating that the applicant is currently carrying out substantial governmental duties and powers over a defined area and
(C) A description of the laws of the Tribe that provide adequate authority to administer the Federal rules and provisions for which delegation is requested and
(iv) A demonstration that the Tribal agency has the technical capability and adequate resources to administer the FIP provisions for which the delegation is requested.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(c)
(1) The Administrator's authority to object to the issuance of a minor NSR permit.
(2) The Administrator's authority to enforce permits issued pursuant to this program.
(d)
(1) The Administrator will suspend the issuance of minor NSR permits under this program promptly upon publication of notice of approval of a Tribal implementation plan with a minor NSR permit program for that area.
(2) The Administrator may retain jurisdiction over the permits for which the administrative or judicial review process is not complete and will address this issue in the notice of program approval.
(3) After approval of a program for issuing minor NSR permits and the suspension of issuance of minor NSR permits by the Administrator, the Administrator will continue to administer minor NSR permits until permits are issued under the approved Tribal implementation plan program.
(4) Permits previously issued under this program will remain in effect and be enforceable as a practical matter until and unless the Tribe issues new permits to these sources based on the provisions of the EPA-approved Tribal implementation plan.
(a)
(b)
(1) It establishes a preconstruction permitting program for new major sources and major modifications at existing major sources located in nonattainment areas in Indian country to meet the requirements of part D of title I of the Act.
(2) It requires that major sources subject to this program comply with the provisions and requirements of part 51, Appendix S of this chapter (Appendix S). Additionally, it sets forth the criteria and procedures in Appendix S that the reviewing authority (as defined in § 49.167) will use to approve permits under this program. Note that for the purposes of this program, the term SIP as used in Appendix S means any EPA-approved implementation plan, including a Tribal Implementation Plan (TIP). While some of the important provisions of Appendix S are paraphrased in various paragraphs of this program to highlight them, the provisions of Appendix S govern.
(3) It also sets forth procedures for appealing a permit issued under this program as provided in § 49.172.
(c)
(1) The provisions of this program apply to new major sources and major modifications at existing major sources located in nonattainment areas in Indian country where there is no EPA-approved nonattainment major NSR program beginning on August 30, 2011. The provisions of this program apply only to new sources and modifications
(2) The provisions of this program cease to apply in an area covered by an EPA-approved implementation plan on the date that our approval of that implementation plan becomes effective, provided that the plan includes provisions that comply with the requirements of part D of title I of the Act and § 51.165 of this chapter for the construction of new major sources and major modifications at existing major sources in nonattainment areas. Permits previously issued under this program will remain in effect and be enforceable as a practical matter until and unless the Tribe issues new permits to these sources based on the provisions of the EPA-approved Tribal implementation plan.
(d)
(1) If you propose to construct a new major source or a major modification at an existing major source in a nonattainment area in Indian country, you must obtain a major NSR permit under this program before beginning actual construction. If you commence construction after the effective date of this program without applying for and receiving a permit pursuant to this program, you will be subject to appropriate enforcement action.
(2) If you do not construct or operate your source or modification in accordance with the terms of your major NSR permit issued under this program, you will be subject to appropriate enforcement action.
(3) Issuance of a permit under this program does not relieve you of the responsibility to comply fully with applicable provisions of any EPA-approved implementation plan or FIP and any other requirements under applicable law.
(4) Nothing in this program prevents a Tribe from administering a nonattainment major NSR permit program with different requirements in an approved TIP as long as the TIP meets the requirements of part D of title I of the Act.
For the purposes of this program, the definitions in part 51, Appendix S, paragraph II.A of this chapter apply, unless otherwise stated. The following definitions also apply to this program:
(1) An emission limitation or other standard is legally enforceable if the reviewing authority has the right to enforce it.
(2) Practical enforceability for an emission limitation or for other standards (design standards, equipment standards, work practices, operational standards, pollution prevention techniques) in a permit for a source is achieved if the permit's provisions specify:
(i) A limitation or standard and the emissions units or activities at the source subject to the limitation or standard;
(ii) The time period for the limitation or standard (
(iii) The method to determine compliance, including appropriate monitoring, recordkeeping, reporting and testing.
(3) For rules and general permits that apply to categories of sources, practical enforceability additionally requires that the provisions:
(i) Identify the types or categories of sources that are covered by the rule or general permit;
(ii) Where coverage is optional, provide for notice to the reviewing authority of the source's election to be covered by the rule or general permit and
(iii) Specify the enforcement consequences relevant to the rule or general permit.
(1) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent and including rights-of-way running through the reservation;
(2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof and whether within or without the limits of a state and
(3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
(a) In a nonattainment area for a pollutant in Indian country, the requirements of this program apply to you under either of the following circumstances:
(1) If you propose to construct a new major source (as defined in part 51, Appendix S, paragraph II.A.4 of this chapter) of the nonattainment pollutant.
(2) If you propose to construct a major modification at your existing major source (as defined in part 51, Appendix S, paragraph II.A.5 of this chapter), where your source is a major source of the nonattainment pollutant and the proposed modification is a major modification for the nonattainment pollutant.
(b) If you own or operate a major source with a state-issued nonattainment major NSR permit, you must apply to convert such permit to a Federal permit under this program by September 4, 2012.
(c) If you propose to establish a synthetic minor source or synthetic minor HAP source or to construct a minor modification at your major source, you will have to comply with the requirements of the Federal minor NSR program in Indian country at
(a)
(b)
(1) The lowest achievable emission rate (LAER) requirement for any NSR pollutant subject to this program.
(2) Certification that all existing major sources owned or operated by you in the same state as the state including the Tribal land where the proposed source or modification is locating are in compliance or under a compliance schedule.
(3) Emissions reductions (offsets) requirement for any source or modification subject to this program.
(4) A demonstration that the emission offsets will provide a net air quality benefit in the affected area.
(5) An analysis of alternative sites, sizes, production processes and environmental control techniques for such proposed source that demonstrates that the benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction or modification.
An Indian governing body may seek an exemption from the emission offset requirement (
(a) The new major source or major modification is located in a geographical area which meets the criteria for an EDZ and the Administrator has approved a request from a Tribe and declared the area an EDZ and
(b) The state/Tribe demonstrates that the new permitted emissions are consistent with the achievement of reasonable further progress pursuant to section 172(c)(4) of the Act and will not interfere with attainment of the applicable NAAQS by the applicable attainment date.
(a)
(1) All information submitted as part of your application for a permit.
(2) Any additional information requested by the reviewing authority.
(3) The reviewing authority's analysis of the application and any additional information submitted by you, including the LAER analysis and, where applicable, the analysis of your emissions reductions (offsets), your demonstration of a net air quality benefit in the affected area and your analysis of alternative sites, sizes, production processes and environmental control techniques.
(4) A copy of the draft permit or the decision to deny the permit with the justification for denial.
(b)
(1) Before issuing a permit under this program, the reviewing authority must prepare a draft permit and must provide adequate public notice to ensure that the affected community and the general public have reasonable access to the application and draft permit information, as set out in paragraphs (b)(1)(i) and (ii) of this section. The public notice must provide an opportunity for public comment and notice of a public hearing, if any, on the draft permit.
(i) The reviewing authority must mail a copy of the notice to you, the appropriate Indian governing body and the Tribal, state and local air pollution authorities having jurisdiction adjacent to the area of Indian country potentially impacted by the air pollution source.
(ii) Depending on such factors as the nature and size of your source, local air quality considerations and the characteristics of the population in the affected area (
(A) The reviewing authority may mail or e-mail a copy of the notice to persons on a mailing list developed by the reviewing authority consisting of those persons who have requested to be placed on such a mailing list.
(B) The reviewing authority may post the notice on its Web site.
(C) The reviewing authority may publish the notice in a newspaper of general circulation in the area affected by the source. Where possible, the notice may also be published in a Tribal newspaper or newsletter.
(D) The reviewing authority may provide copies of the notice for posting at one or more locations in the area affected by the source, such as Post Offices, trading posts, libraries, Tribal environmental offices, community centers or other gathering places in the community.
(E) The reviewing authority may employ other means of notification as appropriate.
(2) The notice required pursuant to paragraph (b)(1) of this section must include the following information at a minimum:
(i) Identifying information, including your name and address (and plant name and address if different) and the name and telephone number of the plant manager/contact.
(ii) The name and address of the reviewing authority processing the permit action;
(iii) The regulated NSR pollutants to be emitted, the affected emissions units and the emission limitations for each affected emissions unit;
(iv) The emissions change involved in the permit action;
(v) Instructions for requesting a public hearing;
(vi) The name, address and telephone number of a contact person in the
(vii) Locations and times of availability of the information (listed in paragraph (a) of this section) for public inspection and
(viii) A statement that any person may submit written comments, a written request for a public hearing or both, on the draft permit action. The reviewing authority must provide a period of at least 30 days from the date of the public notice for comments and for requests for a public hearing.
(c)
(1) Any person may submit written comments on the draft permit and may request a public hearing. These comments must raise any reasonably ascertainable issue with supporting arguments by the close of the public comment period (including any public hearing). The reviewing authority must consider all comments in making the final decision. The reviewing authority must keep a record of the commenters and of the issues raised during the public participation process and such records must be available to the public.
(2) The reviewing authority must extend the public comment period under paragraph (b) of this section to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing.
(3) A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised at the hearing.
(4) The reviewing authority must hold a hearing whenever there is, on the basis of requests, a significant degree of public interest in a draft permit. The reviewing authority may also hold a public hearing at its discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision. The reviewing authority must provide notice of any public hearing at least 30 days prior to the date of the hearing. Public notice of the hearing may be concurrent with that of the draft permit and the two notices may be combined. Reasonable limits may be set upon the time allowed for oral statements at the hearing.
(5) The reviewing authority must make a tape recording or written transcript of any hearing available to the public.
(a)
(1) A later effective date is specified in the permit or
(2) Review of the final permit is requested under paragraph (d) of this section (in which case the specific terms and conditions of the permit that are the subject of the request for review must be stayed) or
(3) The draft permit was subjected to a public comment period and no comments requested a change in the draft permit or a denial of the permit, in which case the reviewing authority may make the permit effective immediately upon issuance.
(b)
(c)
(1) The reviewing authority must base final permit decisions on an administrative record consisting of:
(i) All comments received during any public comment period, including any extension or reopening;
(ii) The tape or transcript of any hearing(s) held;
(iii) Any written material submitted at such a hearing;
(iv) Any new materials placed in the record as a result of the reviewing authority's evaluation of public comments;
(v) Other documents in the supporting files for the permit that were relied upon in the decision-making;
(vi) The final permit;
(vii) The application and any supporting data furnished by you, the permit applicant;
(viii) The draft permit or notice of intent to deny the application or to terminate the permit and
(ix) Other documents in the supporting files for the draft permit that were relied upon in the decision-making.
(2) The additional documents required under paragraph (c)(1) of this section should be added to the record as soon as possible after their receipt or publication by the reviewing authority. The record must be complete on the date the final permit is issued.
(3) Material readily available or published materials that are generally available and that are included in the administrative record under the standards of paragraph (c)(1) of this section need not be physically included in the same file as the rest of the record as long as it is specifically referred to in that file.
(d)
(1) The Administrator delegates authority to the Environmental Appeals Board (the Board) to issue final decisions in permit appeals filed under this program. An appeal directed to the Administrator, rather than to the Board, will not be considered. This delegation does not preclude the Board from referring an appeal or a motion under this program to the Administrator when the Board, in its discretion, deems it appropriate to do so. When an appeal or motion is referred to the Administrator by the Board, all parties shall be so notified and the provisions of this program referring to the Board shall be interpreted as referring to the Administrator.
(2) Within 30 days after a final permit decision has been issued, any person who filed comments on the draft permit or participated in the public hearing may petition the Board to review any condition of the permit decision. Any person who failed to file comments or failed to participate in the public hearing on the draft permit may petition for administrative review only to the extent that the changes from the draft to the final permit or other new grounds were not reasonably ascertainable during the public comment period on the draft permit. The 30-day period within which a person may request review under this section begins with the service of notice of the final permit decision, unless a later date is specified in that notice.
(3) The petition must include a statement of the reasons supporting the review, including a demonstration that any issues being raised were raised during the public comment period (including any public hearing) to the extent required by these regulations, unless the petitioner demonstrates that it was impracticable to raise such objections were not reasonably
(i) A finding of fact or conclusion of law that is clearly erroneous or
(ii) An exercise of discretion or an important policy consideration that the Board should, in its discretion, review.
(4) The Board may also decide on its own initiative to review any condition of any permit issued under this program.
(5) Within a reasonable time following the filing of the petition for review, the Board will issue an order either granting or denying the petition for review. To the extent review is denied, the conditions of the final permit decision become final agency action. If the Board grants review in response to requests under paragraph (d)(2)-(3) or (4) of this section, public notice must be given as provided in § 49.171(b). Public notice must set forth a briefing schedule for the appeal and must state that any interested person may file an amicus brief. If the Board denies review, you, the permit applicant and the person(s) requesting review must be notified through means that are adequate to assure reasonable access to the decision, which may include mailing a notice to each party.
(6) The reviewing authority, at any time prior to the rendering of the decision under paragraph (d)(5) of this section to grant or deny review of a permit decision, may, upon notification to the Board and any interested parties, withdraw the permit and prepare a new draft permit addressing the portions so withdrawn. The new draft permit shall proceed through the same process of public comment and opportunity for a public hearing as would apply to any other draft permit subject to this part.
(7) A petition to the Board under paragraph (d)(2) of this section is, under section 307(b) of the Act, a prerequisite to seeking judicial review of the final agency action.
(8) For purposes of judicial review, final agency action occurs when a final permit is issued or denied by the reviewing authority and agency review procedures are exhausted. A final permit decision will be issued by the reviewing authority:
(i) When the Board issues notice to the parties that review has been denied;
(ii) When the Board issues a decision on the merits of the appeal and the decision does not include a remand of the proceedings or
(iii) Upon the completion of remand proceedings if the proceedings are remanded, unless the Board's remand order specifically provides that appeal of the remand decision will be required to exhaust administrative remedies.
(9) The reviewing authority shall promptly publish in the
(10) Motions to reconsider a final order must be filed within 10 days after service of the final order. Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Motions for reconsideration under this provision must be directed to and decided by, the Board. Motions for reconsideration directed to the Administrator, rather than to the Board, will not be considered, except in cases the Board has referred to the Administrator pursuant to § 49.172(d)(1) and in which the Administrator has issued the final order. A motion for reconsideration will not stay the effective date of the final order unless specifically so ordered by the Board.
(11) For purposes of this section, time periods are computed as follows:
(i) Any time period scheduled to begin on the occurrence of an act or event must begin on the day after the act or event.
(ii) Any time period scheduled to begin before the occurrence of an act or event must be computed so that the period ends on the day before the act or event, except as otherwise provided.
(iii) If the final day of any time period falls on a weekend or legal holiday, the time period must be extended to the next working day.
(iv) Whenever a party or interested person has the right or is required to act within a prescribed period after the service of notice or other paper upon him or her by mail, 3 days must be added to the prescribed time.
(e)
(a)
(1) If the Administrator has approved a TIP that includes a major NSR program for sources in nonattainment areas of Indian country that meets the requirements of part D of title I of the Act and § 51.165 of this chapter, the Tribe is the reviewing authority and will administer the approved major NSR program under Tribal law.
(2) If the Administrator has not approved an implementation plan, the Administrator may delegate the authority to assist EPA with administration of portions of this Federal nonattainment major NSR program implemented under Federal authority to a Tribal agency upon request, in accordance with the provisions of paragraph (b) of this section. If the Tribal agency has been granted such delegation, it will have the authority to assist EPA according to paragraph (b) of this section and it will be the reviewing authority for purposes of the provisions for which it has been granted delegation.
(3) If the Administrator has not approved an implementation plan or granted delegation to a Tribal agency, the Administrator is the reviewing authority and will directly administer all aspects of this Federal nonattainment major NSR program in Indian country under Federal authority.
(b)
(1)
(i) Identifies the specific provisions for which delegation is requested;
(ii) Identifies the Indian Reservation or other areas of Indian country for which delegation is requested;
(iii) Includes a statement by the applicant's legal counsel (or equivalent official) that includes the following information:
(A) A statement that the applicant is a Tribe recognized by the Secretary of the Interior;
(B) A descriptive statement that is consistent with the type of information described in § 49.7(a)(2) demonstrating that the applicant is currently carrying out substantial governmental duties and powers over a defined area and
(C) A description of the laws of the Tribe that provide adequate authority to administer the Federal rules and provisions for which delegation is requested and
(iv) A demonstration that the Tribal agency has the technical capability and adequate resources to administer the FIP provisions for which the delegation is requested.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(c)
(1) The Administrator's authority to object to the issuance of a major NSR permit.
(2) The Administrator's authority to enforce permits issued pursuant to this program.
(d)
(1) The Administrator will suspend the issuance of nonattainment major NSR permits under this program promptly upon publication of notice of approval of a TIP with a major NSR permit program for nonattainment areas.
(2) The Administrator may retain jurisdiction over the permits for which the administrative or judicial review process is not complete and will address this issue in the notice of program approval.
(3) After approval of a program for issuing nonattainment major NSR permits and the suspension of issuance of nonattainment major NSR permits by the Administrator, the Administrator will continue to administer nonattainment major NSR permits until permits are issued under the approved Tribal implementation plan program.
(4) Permits previously issued under this program will remain in effect and be enforceable as a practical matter until and unless the Tribe issues new permits to these sources based on the provisions of the EPA-approved Tribal implementation plan.
23 U.S.C. 101; 42 U.S.C. 7401-7671q.
II. * * *
B.
IV. * * *
A. * * *
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7266, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Theresa Ritta, Division of Property Management, Program Support Center, HHS, Room 5B-17, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 for detailed instructions or write a letter to Mark Johnston at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
Environmental Protection Agency (EPA).
Proposed rule.
Under the Clean Air Act Section 211(o), the Environmental Protection Agency is required to set the renewable fuel standards each November for the following year. In general the standards are designed to ensure that the applicable volumes of renewable fuel specified in the statute are used. However, the statue specifies that EPA is to project the volume of cellulosic biofuel production for the upcoming year and must base the cellulosic biofuel standard on that projected volume if it is less than the applicable volume set forth in the Act. EPA is today proposing a projected cellulosic biofuel volume for 2012 and annual standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and renewable fuels that would apply to all gasoline and diesel produced or imported in year 2012. In addition, today's action proposes an applicable volume of biomass-based diesel that would apply in 2013. This action also presents a number of proposed changes to the RFS2 regulations that are designed to clarify existing provisions and to address several unique circumstances that have come to light since the RFS2 program became effective on July 1, 2010. Finally, today's rule also proposes to make a minor amendment to the gasoline benzene regulations regarding inclusion of transferred blendstocks in a refinery's early benzene credit generation calculations.
Comments must be received on or before August 11, 2011.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2010-0133, by one of the following methods:
•
•
•
•
Julia MacAllister, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor MI 48105; Telephone number: 734-214-4131; Fax number: 734-214-4816; E-mail address:
Entities potentially affected by this proposed rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such as ethanol and biodiesel. Potentially regulated categories include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this proposed action. This table lists the types of entities that EPA is now aware could potentially be regulated by this proposed action. Other types of entities not listed in the table could also be regulated. To determine whether your activities would be regulated by this proposed action, you should carefully examine the applicability criteria in 40 CFR part 80. If you have any questions regarding the applicability of this proposed action to a particular entity, consult the person listed in the preceding section.
Do not submit confidential business information (CBI) to EPA through
When submitting comments, remember to:
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• 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.
The Renewable Fuel Standard (RFS) program began in 2006 pursuant to the requirements in Clean Air Act (CAA) section 211(o) which were added through the Energy Policy Act of 2005 (EPAct). The statutory requirements for the RFS program were subsequently modified through the Energy Independence and Security Act of 2007 (EISA), resulting in the promulgation of revised regulatory requirements on March 26, 2010.
Under RFS2, EPA is required to determine and publish the applicable annual percentage standards for each compliance year by November 30 of the previous year. As part of this effort, EPA must determine the projected volume of cellulosic biofuel production for the following year. If the projected volume of cellulosic biofuel production is less than the applicable volume specified in section 211(o)(2)(B)(i)(III) of the statute, EPA must lower the applicable volume used to set the annual cellulosic biofuel percentage standard to the projected volume of production. When we lower the applicable volume of cellulosic biofuel in this manner, we are also authorized to lower the applicable volumes of advanced biofuel and/or total renewable fuel by the same or a lesser amount. Since these evaluations will be based on evolving information about emerging segments of the biofuels industry, and may result in the applicable volumes differing from those in the statute, we believe that it is appropriate to establish the applicable volumes through a notice-and-comment rulemaking process. Today's notice provides our proposed evaluation of the projected production of cellulosic biofuel for 2012, our proposed evaluation of whether to lower the applicable volumes of advanced biofuel and total renewable fuel, and the proposed percentage standards for compliance year 2012. We will complete our evaluation based on comments received in response to this proposal, the estimate of projected biofuel volumes that the EIA is required to provide to EPA by October 31, and other information that becomes available, and will make final determinations of applicable volumes and percentage standards for 2012 by November 30, 2011.
The statute also requires EPA to determine and promulgate the applicable volume of biomass-based diesel that will be required in 2013 and beyond, as the statute does not specify the applicable volumes for years after 2012. This determination must be made at least 14 months prior to the year in which the volume will be required. Thus, for the 2013 compliance year, we must specify the applicable volume of biomass-based diesel by November 1, 2011. The statute identifies a number of factors that EPA must take into consideration in establishing the applicable volume of biomass-based diesel for years after 2012. Today's notice includes our proposed assessment of these factors and proposed applicable volume of biomass-based diesel for 2013.
Today's proposed rule does not include an assessment of the environmental impacts of the percentage standards we are proposing for 2012. All of the impacts of the RFS2 program were addressed in the RFS2 final rule published on March 26, 2010, including impacts of the biofuel standards specified in the statute. Today's rulemaking simply proposes the standards for 2012 whose impacts were already analyzed previously. However, as described more fully in Section IV.A, we are required to analyze a specified set of environmental and economic impacts for the biomass-based diesel volume we are proposing for 2013.
Today's notice also proposes a number of changes to the RFS2 regulations. These changes are designed to reduce confusion among regulated parties and streamline implementation by clarifying certain terms and phrases and addressing unique circumstances that came to light after the RFS2 program went into effect on July 1, 2010. Additionally, this notice also proposes to make a minor amendment to the gasoline benzene regulations regarding inclusion of transferred blendstocks in a refinery's early benzene credit generation calculations. Further discussion of all of these proposed changes can be found in Section V.
Finally, we note that in the RFS2 final rule we also stated our intent to make two announcements each year:
• Set the price for cellulosic biofuel waiver credits that will be made available to obligated parties in the event that we reduce the volume of cellulosic biofuel below the volume required by EISA.
• Announce the results of our assessment of the aggregate compliance approach for verifying renewable biomass requirements for U.S. crops and crop residue, and our conclusion regarding whether the aggregate compliance provision will continue to apply.
To estimate the volume of cellulosic biofuel that could be made available in the U.S. in 2012, we researched all potential production sources by company and facility. This included sources that were still in the planning stages, those that were under construction, and those that are already producing some volume of cellulosic ethanol, cellulosic diesel, or some other type of cellulosic biofuel. Facilities primarily focused on research and development work with no intention of marketing any fuel produced were not considered for this assessment. From this universe of potential cellulosic biofuel sources we identified the subset that had a possibility of producing some volume of qualifying cellulosic biofuel for use as transportation fuel in 2012. For the final rule, we will specify the projected available volume for 2012 that will be the basis for the percentage standard for cellulosic biofuel. To determine this final projected available volume, we will consider additional factors such as the current and expected state of funding, the status of the technology, and progress towards construction and production goals along with any other significant factors that could potentially impact fuel production or the ability of the produced fuel to generate cellulosic RINs. This information, to the extent that it is publically available, is
In our assessment we focused on domestic sources of cellulosic biofuel. While imports of cellulosic biofuels are possible and would be eligible to generate RINs, we believe this is unlikely due to local demand for cellulosic biofuels in the countries in which they are produced as well as the cost associated with transporting these fuels to the U.S. Of the domestic sources, we estimated that nine facilities have the potential to make volumes of cellulosic biofuel available for transportation use in the U.S. in 2012. These facilities are listed in Table I.A.1-1 along with our estimate of the potentially available volume.
The volumes in Table I.A.1-1 for each facility represent the volume that would be produced in 2012 based upon the owner's expected month of startup and an assumed period of production rampup to full capacity for testing and process validation purposes. However, none of the facilities we evaluated are currently producing cellulosic biofuel at the rates they project for 2012. Moreover, there are other uncertainties associated with each facility's projected volume that could result in less production volume in 2012 than the potentially available values shown in Table I.A.1-1. Therefore, we are proposing a range of volumes for cellulosic biofuel for 2012, with 15.7 million ethanol-equivalent gallons as the upper end of the range. For the lower end of the range, we believe that a volume of 3.55 million ethanol-equivalent gallons could be justified based on currently available information. This volume is based on consideration of only those facilities that are structurally complete at the time of this proposal and that anticipate commercial production of cellulosic biofuels by the end of 2011. More complete information on the progress of the industry in 2011 will be available for the final rule, and will allow us to make a more accurate projection of cellulosic biofuel volume for 2012. A more detailed discussion of these uncertainties is presented in Section II.B.
The statute indicates that we may reduce the applicable volume of advanced biofuel and total renewable fuel if we determine that the projected volume of cellulosic biofuel production for 2012 falls short of the statutory volume of 500 million gallons. As shown in Table I.A.1-1, we are proposing a determination that this is the case. Therefore, we also must evaluate the need to lower the applicable volumes for the advanced biofuel and total renewable fuel.
To address the need to lower the advanced biofuel standard, we first consider whether it appears likely that the biomass-based diesel volume of 1.0 billion gallons specified in the statute can be met in 2012. As discussed in Section II.E, we believe that the 1.0 billion gallon standard can indeed be met. Since biodiesel has an Equivalence Value of 1.5, 1.0 billion physical gallons of biodiesel would provide 1.5 billion ethanol-equivalent gallons that can be counted towards the advanced biofuel standard of 2.0 billion gallons. Of the remaining 0.5 bill gallons, up to 0.016 bill gallons would be met with the proposed volume of cellulosic biofuel. Based on our analysis as described in Section II.D, it appears likely that there will be sufficient volumes of other advanced biofuels, such as imported sugarcane ethanol, additional biodiesel, or renewable diesel, such that the standard for advanced biofuel could remain at the statutory level of 2.0 billion gallons. However, uncertainty in the potential volumes of these other advanced biofuels coupled with the range of potential production volumes of cellulosic biofuel could provide a rationale for lowering the advanced biofuel standard. If we lowered the applicable volume of advanced biofuel without simultaneously lowering the applicable volume for total renewable fuel, the result would be that additional volumes of conventional renewable fuel, such as corn-starch ethanol, would be produced, effectively replacing some advanced biofuels. In today's NPRM we are proposing that neither the required 2012 volumes for advanced biofuel nor total renewable fuel be lowered below the statutory volumes. However, we request comment on whether the advanced biofuel and/or total renewable fuel volume requirements should be lowered if, as we propose, EPA lowers the required cellulosic biofuel volume from that specified in the Act.
The renewable fuel standards are expressed as a volume percentage, and are used by each refiner, blender or importer to determine their renewable fuel volume obligations. The applicable percentages are set so that if each regulated party meets the percentages, and if EIA projections of gasoline and diesel use are accurate, then the amount of renewable fuel, cellulosic biofuel, biomass-based diesel, and advanced
To calculate the percentage standard for cellulosic biofuel for 2012, we have used a potential volume range of 3.55-15.7 million ethanol-equivalent gallons (representing 3.45-12.9 million physical gallons). For the final rule, EPA intends to pick a single value from within this range to represent the projected available volume on which the 2012 percentage standard for cellulosic biofuel will be based. We are also proposing that the applicable volumes for biomass-based diesel, advanced biofuel, and total renewable fuel for 2012 will be those specified in the statute. These volumes are shown in Table I.A.3-1.
Four separate standards are required under the RFS2 program, corresponding to the four separate volume requirements shown in Table I.A.3-1. The specific formulas we use to calculate the renewable fuel percentage standards are contained in the regulations at § 80.1405 and repeated in Section III.B.1. The percentage standards represent the ratio of renewable fuel volume to projected non-renewable gasoline and diesel volume. The projected volume of gasoline used to calculate the standards in today's proposal is provided by EIA's Short-Term Energy Outlook (STEO).
Because DOE's 2009 analysis
While section 211(o)(2)(B) specifies the volumes of biomass-based diesel (BBD) through year 2012, it directs the EPA to establish the applicable volume of BBD for years after 2012 no later than 14 months before the first year for which the applicable volume will apply. In today's action we are proposing an applicable volume of 1.28 bill gallons for biomass-based diesel (BBD) for 2013. This is the volume that was projected for 2013 in the RFS2 final rulemaking, and we are proposing it for 2013 based on consideration of the factors specified in the statute, including a consideration of biodiesel production, consumption, and infrastructure issues. As required under the statute, we also assessed the likely impact of BBD production and use in a variety of areas, including climate change, energy security, the agricultural sector, air quality, and others. Section IV provides additional discussion of our assessment of the proposed volume of 1.28 bill gallons of BBD.
In today's action we are also proposing a number of changes to the RFS2 regulations. These proposed changes are intended to:
• Clarify certain provisions because we have learned that there is some confusion among some regulated parties
• Clarify the application of certain provisions to unique circumstances
• Provide greater specificity in the definition of certain terms
• Correct regulatory language that inadvertently misrepresented our intent
The American Petroleum Institute (API) and the National Petrochemical and Refiners Association (NPRA) jointly submitted a Petition for Reconsideration of EPA's final rule establishing the RFS standards for 2011. The petition requests that we lower the 2011 cellulosic biofuel standard to no more than 3.94 mill gallons, lower the 2011 advanced biofuel standard in concert with the reduction in the cellulosic biofuel standard from 250 mill gallons, and reconsider the regulatory provision for delayed RINs. We are proposing to deny this petition. See Section VI for further discussion.
In order to project production volume of cellulosic biofuel in 2012 for use in setting the percentage standard, we collected information on individual facilities that have the potential to produce qualifying volumes for
While the proposed 2012 volume projections in today's NPRM were based on our own assessment of the cellulosic biofuel industry, by the time we announce the final 2012 volumes and percentage standards we will have additional information. First, in addition to comments in response to today's proposal, we will have updated and more detailed information about how the industry is progressing in 2011. Second, all registered producers and importers of renewable fuel must submit Production Outlook Reports describing their expectations for new or expanded biofuel supply for the next five years, according to § 80.1449. Finally, by October 31, 2011, the Energy Information Administration (EIA) is required by statute to provide EPA with an estimate of the volumes of transportation fuel, biomass-based diesel, and cellulosic biofuel that they project will be sold or introduced into commerce in the U.S. in 2012.
The volumes of renewable fuel to be used under the RFS2 program each year (absent an adjustment or waiver by EPA) are specified in CAA 211(o)(2). These volumes for 2012 are shown in Table II.A-1.
By November 30 of each year, the EPA is required under CAA 211(o) to determine and publish in the
The statute requires that if EPA determines that the projected volume of cellulosic biofuel production for the following year is less than the applicable volume shown in Table II.A-1, then EPA is to reduce the applicable volume of cellulosic biofuel to the projected volume available during that calendar year. In addition, if EPA reduces the required volume of cellulosic biofuel below the level specified in the statute, the Act also indicates that we may reduce the applicable volume of advanced biofuels and total renewable fuel by the same or a lesser volume.
As described in the final rule for the RFS2 program, we intend to examine EIA's projected volumes, comments on this proposal, production outlook reports, and other available data in making a final determination of the appropriate cellulosic biofuel volumes to require for 2012.
The task of projecting the volume of cellulosic biofuel production for 2012 remains a difficult one. Currently there are very few, if any, facilities consistently producing cellulosic biofuel for commercial sale. Announcements of new projects and project funding, changes in project plans, project delays, and cancellations occur frequently. Biofuel producers face not only the challenge of the scale up of innovative, first-of-a-kind technology, but also the challenge of securing funding in a difficult economy. The cellulosic biofuel industry also is influenced by various tax credits and subsidies, and changes to these programs could have an impact on cellulosic biofuel production.
In order to project cellulosic biofuel production for 2012, EPA has tracked the progress of over 100 biofuel production facilities. From this list of facilities we used publically available information, as well as information provided by DOE and USDA, to make a preliminary determination of which facilities are the most likely candidates to produce cellulosic biofuel and make it commercially available in 2012. Each of these companies was investigated further in order to determine the current status of their facilities and their likely cellulosic biofuel production volumes for the coming years. Information such as the funding status of these facilities, announced construction and production ramp up periods, and annual fuel production targets were taken into account. Our projection of the range of cellulosic biofuel production in 2012 is based on this information as well as our own assessment of the likelihood of these facilities successfully producing cellulosic biofuel in the volumes indicated. A brief description of each of the companies we believe may produce cellulosic biofuel and make it commercially available in 2012 can be found below. We will continue to gather more information to help inform our decision on the final cellulosic biofuel standard for 2012, and we will specify a single volume in the final rule that will be the basis for the cellulosic biofuel percentage standard for 2012.
The rule that established the required 2011 cellulosic biofuel volume identified five production facilities that we projected would produce cellulosic biofuel and make the fuel commercially available in 2011. Each of these production facilities are now structurally complete, however they are in various stages of biofuel production. All of these facilities have either produced some volume of cellulosic biofuel in 2011, or are on schedule to do so later in the year. Only Range Fuels, however, has completed its registration as a cellulosic biofuel production facility under the RFS2 program and as such they are currently the only facility of the five listed here currently eligible to generate cellulosic biofuel RINs. For
DuPont Danisco Cellulosic Ethanol (DDCE) successfully started up their small demonstration facility in Vonore, Tennessee in late 2010. This facility has a maximum production capacity of 250,000 gallons of ethanol per year and uses an enzymatic hydrolysis process to convert corn cobs into ethanol. In conversations with EPA in early 2011 DDCE indicated that they had not encountered any unexpected difficulties in their production of cellulosic ethanol and were on target to meet their 2011 production goal of 150,000 gallons of cellulosic ethanol. It is likely that in 2012 cellulosic biofuel production at this facility will approach the production capacity of 250,000 gallons of cellulosic ethanol.
Fiberight uses an enzymatic hydrolysis process to convert the biogenic portion of separated municipal solid waste (MSW) into ethanol. Construction on the first stage of Fiberight's Blairstown, Iowa facility was completed in the summer of 2010. The production capacity of the first stage of this project is 2 million gallons of ethanol per year. Fiberight had planned to begin production of cellulosic biofuel from this facility in late 2010 but poor economic conditions, due in part to low cellulosic RIN values in 2010, caused them to postpone fuel production. Fiberight had also planned to begin construction on an expansion of this facility in late 2010 that would increase the production potential to 6 million gallons of ethanol per year, but were unable to secure funding to carry out the construction as planned. They have since secured funding and began construction on the expansion of their Blairstown facility in April 2011. Fiberight anticipates that they will begin fuel production in the late summer of 2012 and will ramp up production at this facility throughout 2012, producing approximately 3 million gallons of cellulosic ethanol in 2012.
KiOR continues to produce a small volume of renewable crude from agricultural residue at their demonstration facility in Houston, Texas using a technology they call Biomass Catalytic Cracking (BCC). This technology uses heat and a proprietary catalyst to convert biomass to a renewable crude with a relatively low oxygen content. This facility currently lacks the infrastructure to upgrade this renewable crude to finished transportation fuel, however KiOR plans to add this capability at this facility in late 2011. While KiOR has not yet registered under the RFS2 program, their fuel, if refined to gasoline or diesel fuel would be eligible to generate RINs. EPA currently projects a production volume of 200,000 gallons of cellulosic fuel from KiOR, which could potentially generate 300,000 RINs.
KL Energy has developed a process to convert cellulose and hemicelluloses into cellulosic sugars using a thermal-mechanical pretreatment process followed by an enzymatic hydrolysis. They had initially planned to used woody biomass as their feedstock for cellulosic biofuel production; however their production process is versatile enough to allow for a wide variety of cellulosic feedstocks to be used. In August 2010 KL Energy announced a joint development agreement with Petrobras America Inc. As part of the agreement Petrobras will invest $11 million to modify KL Energy's facility in Upton, Wyoming to allow it to process bagasse and other waste products. These modifications are expected to be completed in 2011, and fuel production is likely to begin soon after. If successful, Petrobras and KL Energy plan to work together to integrate the technology into currently existing ethanol production facilities in Brazil. KL Energy has also indentified several sites in the United States for possible future expansion. EPA currently projects that KL Energy could produce up to 1 million gallons of cellulosic ethanol in 2012 in the United States.
Range Fuels began production of methanol at their Soperton, Georgia facility in the third quarter of 2010. This facility uses a thermochemical technology to produce syngas (consisting of mostly hydrogen and carbon monoxide) from a woody biomass feedstock. The syngas is then converted into fuel with the aid of a chemical catalyst developed by Range. Range has developed the capability to produce both methanol and ethanol, depending on the catalyst used. In January 2011, after producing a small volume of ethanol from this facility and proving this capability, Range Fuels shut down the Soperton facility in order to work through technical difficulties they had been experiencing. No timeline has been given for the restart of this facility. EPA will continue to gather information and monitor progress at the Soperton facility. At this time, however, since no timeline has been provided for production from this facility, we are not projecting any volume from this facility in 2012.
EPA is also aware of five new cellulosic biofuel production facilities that are currently planning to begin commercial production at some point in 2012. These facilities are at various stages in the construction process, and as such have various degrees of uncertainty associated with any projected 2012 commercial production. While it is possible that several of these facilities will not begin production of cellulosic biofuels until 2013, they are nevertheless considered here since some commercial volumes can potentially be produced in 2012.
Fulcrum Bioenergy is planning to build a facility capable of producing 10.5 million gallons of cellulosic ethanol and 16 megawatts of renewable electricity per year. They have developed a thermochemical technology to produce ethanol from separated MSW via syngas using a chemical catalyst. In November 2010 Fulcrum announced that they had received a term sheet for a $80 million loan guarantee from DOE and were entering into the final phase of the loan guarantee program. Prior to that Fulcrum had announced that they had signed long term feedstock supply contracts for this facility as well as engineering, procurement, and construction contracts. In January 2011 Fulcrum announced they had closed on a $75 million Series C financing that would provide the remaining necessary capital for the construction of their first commercial production facility pending the closing of their DOE loan guarantee. They announced that they are now planning to begin construction in the second quarter of 2011 and complete the facility by late 2012. EPA currently projects a potential production volume of up to 0.5 million gallons of cellulosic ethanol from this facility in 2012.
INEOS Bio has developed a process for producing cellulosic ethanol by first gasifying feedstock material into a syngas and then using naturally occurring bacteria to ferment the syngas into ethanol. In January 2011 USDA announced a $75 million loan guarantee for the construction of INEOS Bio's first commercial facility to be built in Vero Beach, Florida. This facility will be capable of producing 8 million gallons of cellulosic biofuel as well as 6 megawatts of renewable electricity from a variety of feedstocks including yard, agricultural, and wood waste, as well as separated MSW. On February 9, 2011 INEOS Bio broke ground on this facility. INEOS Bio expects to complete construction on this facility in April 2012 and plans to begin commercial production of cellulosic ethanol soon
After successful operation of their demonstration plant in Houston, Texas KiOR is planning to begin construction on their first commercial scale facility in early 2011. This facility, located in Columbus, Mississippi, will convert biomass to a low oxygen biocrude using a process KiOR calls Biomass Catalytic Cracking (BCC). BCC uses a catalyst developed by KiOR in a process similar to Fluid Catalytic Cracking currently used in the petroleum industry. KiOR's Columbus facility will also be capable of upgrading this biocrude into finished gasoline and diesel as well as a small quantity of fuel oil. KiOR plans to begin production from this facility sometime in the first half of 2012. KiOR has also announced plans to construct several more commercial scale biofuel production facilities in Mississippi and across the southeastern United States. However, it is unlikely any of these facilities will begin production of biofuel in 2012. Given this timeline EPA currently projects a potential production of up to 4.0 million gallons of gasoline and diesel (6.4 million ethanol equivalent gallons) from the Columbus facility in 2012.
Terrabon completed construction of a small demonstration scale facility for the conversion of MSW and other waste materials into gasoline in 2010 and is planning to begin production at their first commercial scale facility in 2012. Terrabon utilizes a unique production process that can be used to produce gasoline, diesel, or jet fuel. Feedstock is first fermented into carboxylic acids by a variety of micro organisms. These carboxylic acids are then neutralized to form carboxylate salts that are dewatered, dried, and thermally converted to ketones. Finally, the ketones are hydrogenated to form alcohols which can then be refined into gasoline, diesel, or jet fuel. While currently no pathway exists for the generation of RINs representing cellulosic gasoline in the RFS2 regulations, EPA is planning to initiate a rulemaking to create such a pathway in our regulations. This would allow for facilities such as Terrabon and others who may produce cellulosic gasoline in the future to register and generate RINs under the RFS2 program (provided they meet the fuel registration, renewable biomass, and other requirements of the program as well). EPA currently projects the production of up to 0.7 million gallons (1.0 million ethanol equivalent gallons) of cellulosic gasoline in 2012 from Terrabon's first commercial facility.
ZeaChem has begun construction on a small demonstration scale facility in Boardman, Oregon capable of producing 250,000 gallons of cellulosic ethanol per year. Their production process uses a combination of biochemical and thermochemical technologies to produce ethanol and other renewable chemicals from cellulosic materials. The feedstock is first fractionated into two separate streams containing cellulosic sugars and lignin. The cellulosic sugars are fermented into ethyl acetate using a naturally occurring acetogen, which can then be hydrogenated into ethanol. The hydrogen necessary for this process is produced by gasifying the lignin stream from the cellulosic biomass. ZeaChem's process is flexible and is capable of producing a wide range of renewable chemical and fuel molecules in addition to ethanol. ZeaChem plans to begin production of cellulosic ethanol from their facility in Boardman, Oregon in late 2011, and EPA currently projects a potential production volume of up to 0.25 million gallons of ethanol from this facility in 2012.
Another potential source of cellulosic biofuel in 2012 is a technology being developed by EdeniQ. EdeniQ is developing a suite of enzymes capable of breaking down cellulose into simple sugars that can then be fermented into ethanol. Rather than build their own production facilities EdeniQ plans to license their enzymes to existing corn ethanol facilities. Such licensing would be accompanied by the Cellunator, an advanced milling device they have developed to reduce the particle size of corn kernels to enable greater conversion of starch to ethanol as well as the conversion of cellulose to simple sugars. EdeniQ claims that their technology would allow corn ethanol facilities to increase ethanol production by 1-2% by converting the cellulosic portion of the corn kernel into ethanol. They are also working to increase the effectiveness of their enzymes in order to enable ethanol production increases of 3-4% from the cellulose in the corn kernel in the future. EdeniQ plans to begin commercial trials of their technology in the second half of 2011. This technology has the potential to be implemented rapidly and produce significant amounts of cellulosic ethanol in 2012 as it requires relatively small capital additions to already existing corn ethanol facilities. While this technology is promising, there is currently no pathway in the RFS2 regulations for the generation of cellulosic biofuel RINs using the cellulosic portion of the corn kernel as a feedstock. Moreover, EdeniQ has not announced any agreements with corn ethanol producers to install this technology to enable the production of cellulosic ethanol. For these reasons, EPA has not included any cellulosic ethanol production from EdeniQ's technology in our 2012 projections. We will continue to monitor their process in the coming months for signs of progress towards commercialization of their technology and will consider adding production volumes from EdeniQ into our final projections if appropriate.
In addition to the facilities mentioned above, EPA is also aware of three companies planning to begin the production of cellulosic biofuels in early 2013. Coskata, Enerkem, and Poet are planning on completing construction on their first commercial scale cellulosic biofuel facilities in late 2012 or early 2013 and producing commercial volumes of biofuels in 2013. While it is possible that construction of any of these facilities could be completed ahead of schedule and a small volume of fuel could be produced in 2012, history in this industry suggests that this is unlikely. EPA has therefore not projected that any volume of cellulosic biofuel will be produced from these facilities in 2012. These facilities, along with several other commercial cellulosic biofuel facilities planning to begin production in 2013, notably the first commercial scale facilities from Abengoa and Mascoma, indicate that the potential exists for the rapid expansion of production volumes in future years.
While domestically produced cellulosic biofuels are the most likely source of cellulosic biofuel available in the United States, producers and/or importers of cellulosic biofuel produced in other countries may also generate RINs and participate in the RFS2 program. While the RFS2 program does provide a financial incentive for companies to import cellulosic biofuels into the United States, the combination of local demand, financial incentives from other governments, and transportation costs for the cellulosic biofuel has resulted in no cellulosic biofuel being imported to the United States thus far. EPA believes this situation is likely to continue in the near future. Additionally, the majority of internationally based cellulosic biofuel facilities that currently exist or plan to complete construction by the end of 2012 are small research and development or pilot facilities not designed for the commercial production of fuel.
Two notable exceptions, both located in Canada, are Enerkem and Iogen. Enerkem has a currently existing commercial production facility in Westbury, Quebec and is expecting to complete construction on a second facility in Edmonton, Alberta in late 2011. Iogen has a small demonstration facility in Ottawa and is currently exploring the possibility of building their first commercial facility near Prince Albert, Saskatchewan. The large expected production volumes and relatively small distance this fuel would have to be transported to reach the United States make these facilities the most likely candidates to import cellulosic biofuel into the United States. In conversations with EPA, however, both companies indicated that they had no current intentions of importing fuel from their Canadian production facilities into the United States. On September 1, 2010 the government of Canada finalized regulations requiring all gasoline sold in Canada to have a renewable content of 5% and all diesel fuel and heating oil to have a renewable content of 2%. These regulations will further increase local demand for any cellulosic biofuel produced from these two facilities and decrease the likelihood of any of this fuel being exported to the United States. For these reasons we have not included any cellulosic biofuel production from foreign facilities in our projections of cellulosic biofuel availability in 2012.
The information EPA has gathered on the potential cellulosic biofuel producers in 2012, described above, allows us to identify potential volumes that could be achieved by each facility in 2012. This information is summarized in Table II.B.4-1 below.
The potentially available volume of 12.9 million gallons of cellulosic biofuel, or 15.7 million ethanol equivalent gallons, represents the higher end of the range of cellulosic biofuel volumes that EPA believes at this time could reasonably be expected to be produced or imported and made available for use as transportation fuel, heating oil, or jet fuel in 2012. It incorporates reductions from the annual production capacity of each facility based on when the facilities anticipate fuel production will begin and assumptions regarding a ramp up period to full production. Other factors such as the funding status, risks associated with new technologies, and the current status of project construction were considered for each facility.
For the lower end of the range, we believe that a volume of 3.55 million ethanol-equivalent gallons could be justified based on currently available information. This volume is based on a consideration of only those facilities that are structurally complete at the time of this proposal and which have indicated that they anticipate commercial production of cellulosic biofuels by the end of 2011. The production facilities meeting these criteria include Dupont Danisco Cellulosic Ethanol, Fiberight (2 million gallon per year first stage), KiOR (Houston, TX facility), and KL Energy. While there is still some uncertainty regarding the projected volumes from these facilities, by completing construction and anticipating fuel production by the end of 2011 there is less uncertainty associated with these facilities than for the others listed as potential cellulosic biofuel producers for 2012.
Therefore, in today's NPRM we are proposing a range of values, from 3.55 million ethanol equivalent gallons to 15.7 million ethanol equivalent gallons for the 2012 cellulosic biofuel standard. The low end of the range represents a projection of higher confidence and less uncertainty, with greater emphasis placed on established/demonstrated production capacity. The high end of the range represents a projection of less confidence and higher uncertainty, with greater emphasis placed on productions plans. As time progresses and we are able to track whether or not the cellulosic biofuels producers are able to meet the construction and ramp up schedules they have presented, and as we consider public comments on this proposal and the EIA estimated 2012 volume of cellulosic biofuel production that they are required to provide to us by October 31 of this year, we will have a better idea of the appropriate volume of fuel that we can reasonably expect to be produced and made commercially available in 2012. Congress did not specify the degree of certainty that should be reflected in our projections of cellulosic biofuel volumes. We expect that the volume that we project in the final rule for 2012 will represent a reasonable balance of the degree of uncertainty or confidence in the projected production volume and the risk of unnecessarily reducing the applicable volumes set forth in the Act.
Although we are proposing a range of values from 3.55 to 15.7 million ethanol equivalent gallons based on information available at the time of this NPRM, we also request comment on alternative
In addition to production capacity, a variety of other factors have the potential to limit the amount of cellulosic biofuel that can be produced and used in the U.S. For instance, there may be limitations in the availability of qualifying cellulosic feedstocks at reasonable prices. Most of the cellulosic biofuel producers that we anticipate will produce commercial volumes in 2012 have indicated that they will use some type of cellulosic waste, such as separated municipal solid waste, wastes from the forestry industry, and agricultural residues. Based on the analyses of cellulosic feedstock availability in the RFS2 final rule, we believe that there will be significantly more than enough sources of these feedstocks for 2012. For producers that intend to use dedicated energy crops, we do not believe that the amount of qualifying cropland for renewable fuel production under RFS2 will limit production in 2012. We plan to continue to evaluate the availability of valid feedstocks in future years as the required volumes of cellulosic biofuel increase.
We anticipate that the relatively small incremental increase in total biofuel volumes in 2012 that would be attributed to cellulosic biofuels can be accommodated by the fuel distribution system. The RFS2 final rule analysis concluded that biofuel distribution challenges as the RFS2 volume requirements ramp up could be overcome in a timely fashion. In the RFS2 final rule analysis, we assumed that most cellulosic biofuel production facilities would be constructed in the nation's heartland similar to corn ethanol production facilities. Based on more recent information, we now believe that cellulosic production facilities will be more geographically dispersed. This is the case for the specific cellulosic biofuels production facilities that we expect would produce fuel in 2012. The greater geographic dispersion would tend to lessen the distance to transport biofuels to petroleum terminals, thereby reducing the overall distribution burden. We believe that the cellulosic biofuel volumes that would be produced in 2012 could be accommodated by fuel retailers without necessitating the installation of new refueling infrastructure such as that which would be needed for E85.
Under CAA 211(o)(7)(D)(i), EPA has the discretion to reduce the applicable volumes of advanced biofuel and total renewable fuel in the event that the projected volume of cellulosic biofuel production is determined to be below the applicable volume specified in the statute. As described in Section II.B above, we are indeed projecting the volume of cellulosic biofuel production for 2012 at significantly below the statutory applicable volume of 500 million gallons. Because cellulosic biofuel is used to satisfy the cellulosic biofuel standard, the advanced biofuel standard, and the total renewable fuel standard, any reductions in the applicable volume of cellulosic biofuel will also affect the means through which obligated parties comply with the advanced biofuel standard and the total renewable fuel standard. Therefore, we have considered whether and to what degree to propose lowering the advanced biofuel and total renewable fuel applicable volumes for 2012.
If the required volume of cellulosic biofuel for a given year is less than the volume specified in the statute, it is important to evaluate whether there would be sufficient volume of advanced biofuels to satisfy the applicable volume of advanced biofuel volume set forth in the statute. Even with a reduced volume of cellulosic biofuel, other advanced biofuels, such as biomass-based diesel, sugarcane ethanol, or other biofuels, may be available in sufficient volumes to make up for the shortfall in cellulosic biofuel. We believe that it would be consistent with the energy security and greenhouse gas reduction goals of EISA to not reduce the applicable volume of advanced biofuel set forth in the statute if there are sufficient volumes of advanced biofuels available, even if those volumes do not include the amount of cellulosic biofuel that Congress may have desired. Our authority to lower the advanced biofuel and/or total renewable fuel applicable volumes is discretionary, and in general we believe that actions to lower these volumes should only be taken if insufficient volumes of qualifying biofuel can be made available, based on such circumstances as insufficient production capacity, insufficient feedstocks, competing markets, constrained infrastructure, or the like. As discussed below, we project that sufficient volumes of advanced biofuel can be made available in 2012 such that the 2.0 bill gallon advanced biofuel requirement need not be reduced.
If we were to maintain the advanced biofuel, biomass-based diesel, and total renewable fuel volume requirements at the levels specified in the statute, while also lowering the cellulosic biofuel standard to 3.55-15.7 million ethanol-equivalent gallons, then 1,504-1,516 million gallons of the 2.0 billion gallon advanced biofuel mandate would be satisfied automatically through the satisfaction of the cellulosic and biomass based diesel standards. An additional 484-496 million ethanol-equivalent gallons of additional advanced biofuels would be needed. See Table II.D-1.
The most likely sources of additional advanced biofuel would be imported sugarcane ethanol and biomass-based diesel, though there may also be some volumes of other types of advanced biofuel available as discussed below. To determine if there are likely to be sufficient volumes of these biofuels to meet the need for 484-496 million gallons of other advanced biofuel, we first examined historical data on ethanol imports and projections from EIA and USDA for 2012. Brazilian imports have made up a sizeable portion of total ethanol imported into the U.S. in the past, and these volumes were predominantly produced from sugarcane. Ethanol imports averaged about 380 million gallons per year over the last five years, and reached an all-time high of 730 million gallons in 2006.
Future projections from other sources also suggest that a large portion of the 484-496 million gallons of advanced biofuel needed could be supplied by imported sugarcane ethanol. For instance, in the Early Release of its Annual Energy Outlook 2011, EIA projects ethanol imports of approximately 400 million gallons for 2012.
We also examined the potential for excess biodiesel to help meet the need for 484-496 million gallons of advanced biofuel. The applicable volume of biomass based diesel established in the statute for 2012 is 1.0 billion gallons (which corresponds to 1500 ethanol-equivalent gallons). As discussed more fully in Section II.E below, we believe that the biodiesel industry has the potential for producing volumes above 1.0 billion gallons if demand for such volume exists, potentially up to an additional several hundred million gallons.
Another potential source of advanced biofuels is electricity generated from renewable biomass that is used as a transportation fuel. EIA data indicates that in 2009, the most recent year for which data is available, 35.6 million megawatt-hours of electricity was generated from wood and wood derived fuels, and an additional 18.4 million megawatt-hours was generated from other biomass in the United States.
In addition to verifying that the feedstocks used to generate renewable electricity meet the renewable biomass definition producers would also be required to document that the electricity they produce is used as a transportation fuel in order to be eligible to generate RINs. Until recently there were very few vehicles capable of using electricity as a transportation fuel. Expected increases in the number of vehicles with this capability, such as electric vehicles and plug in hybrids, has the potential to dramatically increase the degree to which electricity is able to be used as a transportation fuel. Verifying that the renewable electricity produced is used as a transportation fuel would still remain a challenge, however the potential for capitalizing on the RIN value, without the necessity of making major changes in the areas of fuel production, distribution, or end use, may be a large enough incentive to overcome this challenge. While the many uncertainties associated with the generation of advanced biofuel RINs from renewable electricity prevent EPA from making a quantitative projection for 2012, such RINs may nevertheless play a role in meeting the advanced biofuel standard.
Finally, there are also other potential sources of advanced biofuels. For instance, several companies are making progress on opening advanced biofuel production facilities as early as 2012. Gevo purchased a dry mill corn ethanol plant in Minnesota and is in the process of converting it to produce up to 10 million gallons of biobutanol per year. Solazyme produced over 150,000
By adding up the potential volumes of imported sugarcane ethanol, excess biodiesel, and other sources of advanced biofuel, there are likely to be sufficient volumes of advanced biofuels to meet the need for 484-496 million gallons. As a result, we do not believe that the advanced biofuel standard need be lowered below the 2.0 billion gallon level specified in the Act. Thus, we are not proposing to reduce the applicable volume of advanced biofuel for 2012. In addition, since we are not proposing to lower the advanced biofuel standard for 2012, we do not believe that there is a need to lower the total renewable fuel standard. Nevertheless, since there is some uncertainty in both the availability of advanced biofuels in 2012 and the market conditions which would support their availability, we request comment on whether the advanced biofuel and total renewable fuel standards should be lowered, and the basis for such a reduction in the applicable volumes from the statute.
As described more fully in Section II.D above, we must determine whether the required volumes of advanced biofuel and/or total renewable fuel should be reduced if we reduce the required volume of cellulosic biofuel. The amount of biomass-based diesel that we project will be available directly affected our proposed consideration for this NPRM of adjustments to the volumetric requirements for advanced biofuel and total renewable fuel.
To evaluate whether the applicable volume of 1.0 bill gallons for biomass-based diesel is achievable in 2012, and whether even greater volumes could be produced, we examined recent production rates, production capacity of the industry, and projections for future production. Although there are a variety of potential fuel types that can qualify as biomass-based diesel, biodiesel is by far the predominant type. Thus, our assessment focused primarily on biodiesel, though we also investigated potential volumes of renewable diesel.
According to the Energy Information Administration, biodiesel production in 2010 reached 311 mill gallons.
However, many of the activities of the biodiesel industry in 2010 were due to unique circumstances that may not apply in 2012. It is likely that a contributing factor to the lower production volumes in 2010 was the expiration of the biodiesel tax credit at the end of 2009, and the uncertainty throughout 2010 regarding whether and when it might be reinstated. This situation may have led to hesitation on the part of obligated parties for establishing binding contracts for purchases of biodiesel.
Historical production of biodiesel has varied significantly depending on market demand as shown in Figure II.E-1 below.
The biodiesel industry's production potential supports the view that it can more than satisfy the applicable volume of biomass-based diesel specified in the statute for 2012. As of January, 2011, the aggregate production capacity of biodiesel plants in the U.S. was estimated at 2.8 billion gallons per year across approximately 170 facilities.
Projections of production for 2012 strongly suggest that 1.0 bill gallons of biomass-based diesel is achievable. For instance, the U.S. Department of Agriculture projects that over 400 mill gallons of biodiesel will be produced from soybean oil in 2012, and adds that “Although some other first-use vegetable oils are also used to produce biodiesel, most of the remaining biodiesel production needed to reach the 1-billion-gallon mandate of the 2007 Energy Act uses animal fats or recycled vegetable oil as the feedstock.”
We also believe that there will be sufficient sources of qualifying renewable biomass to more than meet the needs of the biodiesel industry in 2012. The largest sources of feedstock for biodiesel in 2012 are expected to be soy oil, canola oil, rendered fats, and potentially some corn oil extracted during production of fuel ethanol, as this technology continues to proliferate. Moreover, information we received from a large rendering company suggests that there will be adequate fats and greases feedstocks to supply biofuels production as well as other historical uses.
Based on our review of the production potential of the biodiesel industry, and projections from several sources, and our assessment of available feedstocks, we believe that the 1.0 billion gallons needed to satisfy the applicable volume of biomass-based diesel specified in the statute can be produced in 2012. Therefore, we are not proposing to lower the biomass-based diesel standard of 1.0 billion gallons that is specified in the Act. Moreover, based on production capacity and availability of feedstocks, we believe that volumes of biomass-based diesel in excess of 1.0 bill gallons could be made available given sufficient market demand.
The renewable fuel standards are expressed as a volume percentage, and are used by each refiner, blender or importer to determine their renewable volume obligations (RVO). Since there are four separate standards under the RFS2 program, there are likewise four separate RVOs applicable to each obligated party. Each standard applies to the sum of all gasoline and diesel produced or imported. The applicable percentage standards are set so that if each regulated party meets the percentages, then the amount of renewable fuel, cellulosic biofuel, biomass-based diesel, and advanced biofuel used will meet the volumes required on a nationwide basis.
As discussed in Section II.B.4, we are proposing a required volume of cellulosic biofuel for 2012 in the range of 3.45-12.9 million gallons (3.55-15.7 million ethanol equivalent gallons). The single volume we select for the final rule will be used as the basis for setting the percentage standard for cellulosic biofuel for 2012. We are also proposing that the advanced biofuel and total renewable fuel volumes would not be reduced below the applicable volumes specified in the statute. The proposed 2012 volumes used to determine the four percentage standards are shown in Table III.A-1.
The formulas used in deriving the annual renewable fuel standards are based in part on estimates of the volumes of gasoline and diesel fuel, for both highway and nonroad uses, that will be used in the year in which the standards will apply. Producers of other transportation fuels, such as natural gas, propane, and electricity from fossil fuels, are not subject to the standards, and volumes of such fuels are not used in calculating the annual standards. Since the standards apply to producers and importers of gasoline and diesel, these are the transportation fuels used to set the standards, and then again to determine the annual volume obligations of an individual gasoline or diesel producer or importer.
The following formulas are used to calculate the four percentage standards applicable to producers and importers of gasoline and diesel (see § 80.1405):
The four separate renewable fuel standards for 2012 are based on the 49-state gasoline and diesel consumption volumes projected by EIA. The Act requires EPA to base the standards on an EIA estimate of the amount of gasoline and diesel that will be sold or introduced into commerce for that year. The projected volume of gasoline used to calculate the final 2012 percentage standards will be provided directly by EIA. For the purposes of this proposal, we have used the April 2011 issue of STEO for the gasoline projection. The projected volume of transportation diesel used to calculate the final 2012 percentage standards will be provided by EIA. For the purposes of this proposal, we have used the Early Release version of AEO2011. Gasoline and diesel volumes are adjusted to account for renewable fuel contained in the EIA projections. The projected volumes of ethanol and biodiesel used to calculate the final percentage standards will be provided by EIA; for 2011, the final values were based on EIA's Short-Term Energy Outlook (STEO). For the purposes of this proposal, we have used the April 2011 values for ethanol and biodiesel provided in the STEO. Although EIA will be providing fuel consumption projections for the final rule, using the most recent available EIA data for purposes of this proposal allows us to provide the affected industries with a reasonable estimate of the standards for planning purposes.
In CAA section 211(o)(9), enacted as part of the Energy Policy Act of 2005, Congress provided a temporary exemption to small refineries (those refineries with a crude throughput of no more than 75,000 barrels of crude per day) through December 31, 2010. In RFS1, we exercised our discretion under section 211(o)(3)(B) and extended this temporary exemption to the few remaining small refiners that met the Small Business Administration's (SBA) definition of a small business (1,500 employees or less company-wide) but did not meet the statutory small refinery definition as noted above. Because EISA did not alter the small refinery exemption in any way, the RFS2 program regulations exempted gasoline and diesel produced by small refineries and small refiners in 2010 from the
Under the RFS program, Congress provided two ways that small refineries can receive a temporary extension of the exemption beyond 2010. One is based on the results of a study conducted by the Department of Energy (DOE) to determine if small refineries would face a disproportionate economic hardship under the RFS program. The other is based on EPA determination of disproportionate economic hardship on a case-by-case basis in response to refiner petitions.
In January 2009, DOE issued a study which did not find that small refineries would face a disproportionate economic hardship under the RFS program.
Following the release of DOE's 2009 small refinery study, Congress directed DOE to complete a reassessment and issue a revised report. DOE recently re-evaluated the impacts of the RFS program on small entities and concluded that some small refineries would suffer a disproportionate hardship if required to participate in the program.
As finalized in the March 26, 2010 RFS2 rule, the standards are expressed in terms of energy-equivalent gallons of renewable fuel, with the cellulosic biofuel, advanced biofuel, and total renewable fuel standards based on ethanol equivalence and the biomass-based diesel standard based on biodiesel equivalence. However, all RIN generation is based on ethanol-equivalence. More specifically, the RFS2 regulations provide that production or import of a gallon of biodiesel will lead to the generation of 1.5 RINs. In order to ensure that demand for 1.0 billion physical gallons of biomass-based diesel will be created in 2012, the calculation of the biomass-based diesel standard provides that the required volume be multiplied by 1.5. The net result is a biomass-based diesel gallon being worth 1.0 gallons toward the biomass-based diesel standard, but worth 1.5 gallons toward the other standards.
The levels of the percentage standards would be reduced if Alaska or a U.S. territory chooses to participate in the RFS2 program, as gasoline and diesel produced in or imported into that state or territory would then be subject to the standard. Neither Alaska nor any U.S. territory has chosen to participate in the RFS2 program at this time, and thus the value of the related terms in the calculation of the standards is zero.
Note that the terms for projected volumes of gasoline and diesel use include gasoline and diesel that has been blended with renewable fuel. Because the gasoline and diesel volumes estimated by EIA include renewable fuel use, we must subtract the total renewable fuel volume from the total gasoline and diesel volume to get total non-renewable gasoline and diesel volumes. The values of the variables described above are shown in Table III.B.3-1.
Using the volumes shown in Table III.B.3-1, we have calculated the proposed percentage standards for 2012 as shown in Table III.B.3-2.
In today's action we are proposing an applicable volume for biomass-based diesel for 2013, based on the statutory requirement to establish the applicable volume of biomass-based diesel for years after 2012 no later than 14 months before the first year for which the applicable volume will apply. To do this, we have reviewed RFS program implementation to date and analyzed a number of factors specified in the statute as part of this effort. We have investigated what the demand for biomass-based diesel is likely to be in 2013 taking into consideration the applicable advanced biofuel volume specified in the statute, the analyses we
Note that, in proposing the 2013 applicable volume of biomass-based diesel, we are not at this time proposing the percentage standards that would apply to obligated parties in 2013. Instead, the percentage standards will be determined after projections of gasoline and diesel volume are provided by the Energy Information Administration (EIA) in the fall of 2012, and will be announced by November 30, 2012. Moreover, in today's proposal we are not addressing potential exemptions for small refineries and/or small refiners in 2013, since such exemptions are only relevant in the context of specifying the percentage standards and their applicability. Finally, we are not proposing any applicable volumes of biomass-based diesel for 2014 or later years.
Section 211(o)(2)(B)(i) of the Clean Air Act specifies the applicable volumes of renewable fuel on which the annual percentage standards must be based, unless the applicable volumes are waived or adjusted by EPA in accordance with specific authority and directives specified in the statute.
• The impact of the production and use of renewable fuels on the environment, including on air quality, climate change, conversion of wetlands, ecosystems, wildlife habitat, water quality, and water supply;
• The impact of renewable fuels on the energy security of the United States;
• The expected annual rate of future commercial production of renewable fuels, including advanced biofuels in each category (cellulosic biofuel and biomass-based diesel);
• The impact of renewable fuels on the infrastructure of the United States, including deliverability of materials, goods, and products other than renewable fuel, and the sufficiency of infrastructure to deliver and use renewable fuel;
• The impact of the use of renewable fuels on the cost to consumers of transportation fuel and on the cost to transport goods; and
• The impact of the use of renewable fuels on other factors, including job creation, the price and supply of agricultural commodities, rural economic development, and food prices.
It is useful to note that the statutory provisions described above are silent in two important areas. First, the statute does not provide numerical criteria or thresholds that must be attained in the determination of applicable volumes (other than specifying a minimum volume of 1.0 bill gal), nor does it describe any overarching goals such as maximizing GHG or energy security benefits or minimizing cost. The EPA, in coordination with DOE and USDA, is thus effectively charged with making a determination of the applicable volumes based on a judgment of their reasonableness in the context of a review of program implementation and analysis of the factors described above. Second, the statute does not provide authority to raise the applicable volumes of advanced biofuel or total renewable fuel above those specified in the statute for years up to and including 2022. Thus, any increase in the biomass-based diesel volume requirement above that specified for 2012 would not have any impact on the advanced biofuel or total renewable fuel volume requirements. Rather, increasing the biomass-based diesel volume requirement above 1.0 bill gallons would likely result in a change in the makeup of biofuels used to meet the advanced biofuel and the total renewable fuel standards, but would not change the total required volumes of those fuels (in terms of ethanol-equivalent gallons).
Finally, the statute also specifies the timeframe within which these volumes must be promulgated: The rules establishing the applicable volumes must be finalized no later than 14 months before the first year for which such applicable volume will apply. For the biomass-based diesel volume that would apply beginning on January 1, 2013, then, we must finalize the applicable volume by November 1, 2011.
As described in Section IV.A, we are required to review the implementation of the RFS program for years prior to 2013, and to use information from this review in determining the applicable volume of biomass-based diesel for 2013. However, given the short history of the RFS program, we believe this review is of limited value. Prior to the beginning of the RFS2 program on July 1, 2010, the RFS1 program had no volume requirement specific to biomass-based diesel. Although RINs were generated for biodiesel under the RFS1 program and those RINs were available for use in satisfying obligated parties' RFS1 total renewable fuel Renewable Volume Obligation (RVO), we do not believe that the RFS1 program contributed significantly to producers' production decisions. Rather, biodiesel production was driven by market demand apart from the RFS program requirements coupled with a tax credit for biodiesel blends. We believe that little can be discerned from the RFS1 history about the operation of the biodiesel industry under a future RFS2 volume mandate.
In the short time since the RFS2 program went into effect, biodiesel production volumes have not increased substantially above historical levels due most likely to factors such as the availability of carryover RINs from 2008 and 2009 and the expiration of the biodiesel tax credit (which was reinstituted at the end of 2010). Domestic biodiesel consumption varied little in the 2008-2010 timeframe, averaging about 330 mill gallons each year.
Given the increases in the biomass-based diesel volumes that are required in the statute for 2011 and 2012, we expect production and consumption volumes of biodiesel to increase
With the limited information available on the current and historical operation of the RFS program, we believe it would be prudent for 2013 to consider only moderate increases above the statutory minimum of 1.0 bill gallons. One possible benchmark is provided by the increments and growth pattern of those increments that Congress established for the years 2009-2012, shown in Table IV.B-1.
In the final rulemaking establishing the RFS2 program, we developed renewable fuel volume scenarios for all years between 2010 and 2022. For 2013, we estimated a biomass-based diesel volume of 1.28 bill gallons. This volume was based primarily on a projection of the qualifying feedstocks that could be available. Our analyses of feedstock availability in the RFS2 final rule concluded that the 2013 minimum biomass-based diesel volume of 1.0 bill gallons could be met and, indeed, that 1.28 billion gallons could be reasonably produced.
The demand for biomass-based diesel in 2013 will be a function of not only the biomass-based diesel standard, but also the advanced biofuel standard, since the standards under the RFS2 program are nested. That is, every RIN that is valid for meeting the biomass-based diesel standard is also valid for meeting the advanced biofuel standard. Moreover, there are currently only a small number of biofuels that are likely to be available for meeting the advanced biofuel standard. In addition to biomass-based diesel, these would include any RINs used to meet the cellulosic biofuel standard, coprocessed renewable diesel, and sugarcane ethanol. To the degree that there are limits in these other advanced biofuels, additional biomass-based diesel may be needed to make up any shortfall.
Since the advanced biofuel standard is an important factor in determining the demand for biomass-based diesel in 2013, we considered how it should be treated in light of the fact that we must determine the applicable 2013 volume for biomass-based diesel this year, but we will not set the 2013 standards (including the advanced biofuel standard for 2013) until next year. EPA has the authority to reduce the applicable volume of advanced biofuel in the event that it reduces the applicable volume of cellulosic biofuel. EPA will consider using this authority at the time it evaluates whether the 2013 applicable volume of cellulosic biofuel set in the statute should be lowered in light of projected production volumes. In both 2010 and 2011 EPA lowered the applicable volume of cellulosic biofuel without lowering the applicable volume of advanced biofuel. EPA is today proposing the same approach for 2012. In light of this history, and the fact that EPA cannot finally evaluate the issue of potentially lowering the applicable volume of advanced biofuel for 2013 until it sets the 2013 standards in November of 2012, we assume for purposes of today's evaluation of biomass-based diesel demand in 2013 that the applicable volume of 2.75 bill gallons of advanced biofuel specified in the statute for 2013 will be used in setting the 2013 advanced biofuel standard.
As described in Section II, the cellulosic biofuel industry continues to develop, with numerous projects under development, planned or underway. Nevertheless, the actual production volumes continue to fall far below the applicable volumes specified in the statute. For instance, we are proposing a cellulosic biofuel volume of 3.55-15.7 mill gallons for 2012, compared to the applicable volume of 500 mill gal specified in the statute. In 2013, the applicable volume doubles to 1.0 bill gallons. While we have not projected specific volumes of cellulosic biofuel that may be available in 2013, it is highly likely that they will fall significantly short of 1.0 bill gallons, and are likely to comprise only a small portion of the 2.75 bill gal applicable volume for advanced biofuel in 2013.
Imported sugarcane ethanol can also be used to meet the advanced biofuel standard. Between years 2000 and 2009, the volume of ethanol imported into the U.S. has ranged from 46-730 million gallons per year, or on average, approximately 200 million gallons per year. These volumes were comprised almost exclusively of sugarcane ethanol from Brazil. In 2010, imports of ethanol into the U.S. were among the lowest in the past 10 years, reaching only 17 million gallons.
Longer-term market projections can help to better understand the potential outlook for imports of sugarcane ethanol as a function of international agricultural and energy markets. One source that evaluates trends and issues for U.S. energy markets is the U.S. Energy Information Administration's (EIA) Annual Energy Outlook (AEO).
Since ethanol supplies can flow to countries other than the U.S., an important part of understanding potential imports into the U.S. are the current and future biofuel mandates and goals of other nations. Such mandates include, for instance, Canada's 5% fuel ethanol mandate which started in late 2010, requiring approximately 500 million gallons per year. Another goal is that of the EU, the renewable energy directive, which includes a minimum target of 10% renewable energy use in transport by 2020, a portion of which is expected to be met with ethanol. Other countries with ethanol mandates and goals are India, Indonesia, Philippines, Costa Rica, Peru, and Argentina, to name a few. According to Hart Energy Consulting, most countries will be in a potential supply deficit for ethanol by 2020, and the primary country in a position to supply the global ethanol market will be Brazil.
The demand for ethanol in Brazil is also increasing, further limiting volumes that will likely be exported. For instance, the sales share of flex-fuel vehicles (FFVs) in Brazil are reported to have risen dramatically in the last decade, contributing to an in-use fleet that is increasingly capable of operating on pure ethanol. By 2014, 70% of the in-use fleet is expected to be FFVs, compared to only 33% in 2009. While the aforementioned FAPRI report projected that 2013 Brazilian demand for ethanol could be 7.7 billion gallons, S&D estimated that 2013 demand could potentially reach as high as 11 billion gallons, outpacing Brazilian production capacity.
We believe that given the discussions above, it is reasonable to conclude that Brazilian sugarcane ethanol will continue to provide limited volumes of advanced biofuel in the U.S. in the near term due to other competitive uses. While imports of sugarcane ethanol into the U.S. in 2013 could exceed the 190 million gallons estimated in RFS2, they are unlikely to reach the historical high of 730 mill gallons for the reasons described above.
In addition to cellulosic biofuel and imported sugarcane ethanol, there is also some potential for other advanced biofuels that could be used to meet the advanced biofuel standard of 2.75 bill gallons. The most likely of these is sugar-based ethanol from domestic sugarcane. Several companies have announced plans for sugar-based ethanol production in California, Louisiana, and Florida. Two of these companies have announced plans for multiple ethanol production facilities, however none of these companies have yet begun construction. In addition, coprocessed renewable diesel is uncertain, though there could conceivably be up to a hundred million gallons by 2013. Potential production of other advanced biofuels such as renewable butanol or ethanol from non-corn starches in biomass-fueled facilities is even less certain for 2013. However, as described in Section II.D, companies such as Gevo, Solazyme, and LS9 are in the process of building or converting facilities to produce advanced biofuels in the form of butanol, jet fuel, and renewable diesel, respectively, that may count as advanced biofuel. We expect all these other sources of advanced biofuel to contribute about one or two hundred million gallons in 2013.
In summary, we believe that the total volume of cellulosic biofuel, imported sugarcane ethanol, and other advanced biofuels that may be available in 2013 is likely to be less than about 1 billion gallons. In order to reach an advanced biofuel volume of 2.75 billion gallons, then, it is likely that more than 1.0 bill gallons of biomass-based diesel (representing more than 1.5 billion ethanol-equivalent gallons) will be needed. The volume of biomass-based diesel that may be needed in excess of 1.0 bill gallons could potentially be on the order of hundreds of millions of gallons. This result is similar to the assumption made by IHS Global Insight in their recent report, in which they assume that an additional 300 million gallons of biodiesel will be needed over and above the 1.0 billion gallons mandate for biomass-based diesel in order for the advanced biofuel standard to be met.
As mentioned above, we do not believe it would be prudent to set the biomass-based diesel applicable volume for 2013 such that the increment over 2012 volumes is excessive in comparison to the increments, and trajectory of increments, established by Congress for the years 2009-2012. As a result, we believe that a biomass-based diesel volume of 1.28 bill gallons would both reflect likely increased demand for biomass-based diesel in 2013 and provide an increment that is not excessive when compared to those established by Congress.
As described above, in the final rulemaking establishing the RFS2 program we developed renewable fuel volume scenarios for all years between 2010 and 2022. For 2013, we estimated a biomass-based diesel volume of 1.28 bill gallons. This volume was based primarily on a projection of the qualifying feedstocks that could be available, as summarized in Table IV.B.2-1.
We continue to believe that the feedstock volumes shown in Table IV.B.2-1 are reasonable projections for 2013. For instance, according to the U.S. Census Bureau, the total volume of yellow grease and other greases (most likely trap grease) produced in 2010 was about 340 mill gallons.
The 300 million gallons of biodiesel produced from corn oil extracted from distillers grains produced at ethanol facilities is based on projections of the percentage of the ethanol industry using corn oil extraction technology and the amount of oil extracted per bushel of corn in 2013. The RFS2 final rule projected that by 2013, 34% of all dry mill ethanol facilities would extract corn oil from the by-products of ethanol production. A recent survey of the ethanol industry found that by 2008 over 30% of all dry mill ethanol plants were already extracting corn oil from their co-products.
With regard to virgin vegetable oil, the modeling we conducted for the RFS2 final rule assumed that it would be composed entirely of soybean oil. For the purposes of today's proposal we examined recent and historical soybean oil production and consumption volumes from the U.S. Census Bureau to verify that 600 million gallons was a reasonable potential volume for biodiesel production in 2013. As shown in Figure IV.B.2-1, soy oil production has increased steadily over the last 30 years, reaching 2.5 bill gal in 2009. If these production trends continue, domestic soy oil production could reach nearly 2.9 bill gal by 2013.
To determine what portion of domestically produced soy oil could be available for use in the production of biomass-based diesel in 2013, we also examined recent historical trends for domestic consumption and exports. Domestic consumption of soy oil for purposes other than biofuel has also increased steadily over the last 30 years, but was notably lower in the period 2007-2009 compared to previous years. If consumption returns to historical trends for years after 2009, consumption could be as high as 2.5 bill gal by 2013. However, as shown in Figure IV.B.2-2 below, this would require a significant increase in consumption from 2009 to 2010. Thus 2013 consumption could be lower than 2.5 bill gal.
Based on these projections, then, the volume of soy oil that would be available for the production of biomass-based diesel would be at least 400 million gallons (2.9-2.5 bill gal). However, soy oil that has historically been exported represents another potential source of soy oil for biodiesel production. Exports of soy oil have followed only a very weak increasing trend, averaging about 230 mill gal/year over the same 30 year period, and about 250 mill gal/year over the last 10 years. If these exports were diverted to the production of biomass-based diesel, the total volume of soy oil available for the production of biodiesel and/or renewable diesel would exceed 600 mill gallons.
Although we assumed that all virgin vegetable oils used in biomass-based diesel production would be soy oil in the RFS2 final rule, in fact other seed oils may contribute meaningful volumes to the pool available for the production of biomass-based diesel. For instance, on September 28, 2010 we approved a RIN-generating pathway for biodiesel made from canola oil.
IHS Global Insight recently released an independent report in which they conducted macroeconomic modeling to investigate biodiesel growth scenarios and related impacts on commodities such as oilseed crops. Their agricultural modeling indicated that a slightly more diverse mix of feedstocks would be used to meet a total domestic biodiesel production volume of 1.3 bill gallons in 2013. These volumes are shown in Table IV.B.2-2.
Total production capacity of the biodiesel industry has exceeded 1.28 bill gallons for a number of years. As of January 2011, total production capacity was more than 2.8 bill gallons for 168 plants
Most of the 90 registered plants are currently producing at significantly under capacity, as evidenced by the fact that total production volumes in 2010 were 300-400 million gallons, and the registered plants have a capacity of over 1.9 billion gallons. If these plants increase production to meet the 800 million gallon volume requirement for 2011, on average, then, registered biodiesel producers will be producing at about half of their capacity this year. Nevertheless, we believe based on the registered capacity of existing plants and the relative ease of expanding current production within this capacity that the biodiesel industry can produce at least 1.28 bill gallons in 2013 with little leadtime needed for facilities to ramp up to higher production levels, and/or for currently idle facilities to come back online.
Biodiesel is registered with the EPA under 40 CFR part 79 as a legal fuel for use in highway vehicles. Under this registration, it can legally be used at any blend level, from 1% (B1) to 100% (B100). However, other factors typically limit the concentration of biodiesel in conventional diesel fuel. Since the consumption of biodiesel at lower blend levels would tend to increase the geographic areas where biodiesel must be marketed, it is an important consideration in how much biodiesel can be consumed in the U.S. as a whole as well as how the infrastructure may need to change to accommodate 1.28 bill gallons in 2013.
Most engine manufacturers have explicit statements in their engine warranties regarding acceptable biodiesel blend levels. Although a few permit B100 to be used in their engines without any adverse impact on their warranties, most limit biodiesel blends to B20 or less, and about half allow no more than B5
Cold weather operability represents another reason for preferential use of B5 and even B2. The most common measure of cold weather operability is the fuel cloud point. The cloud point is the temperature at which gelling begins (as indicated by solid crystals beginning to form in the fuel), and thus is an indicator of when potential engine filter plugging issues could arise. The higher the cloud point temperature of the fuel, the more likely such problems are to be experienced in cold weather. Biodiesel generally has a higher cloud point than conventional, petroleum-based diesel fuel, with fat-based biodiesel such as tallow having a higher cloud point than virgin oil-based biodiesel such as a fuel made with soybean and canola oil. While cloud point issues with conventional, petroleum-based diesel are generally mitigated through blending with lighter grades (
Based on highway and nonroad diesel consumption projections for 2013 from the EIA, a biodiesel volume of 1.28 bill gallons would represent about 2.8% of all diesel fuel.
We believe that distributing and consuming 1.28 bill gallons of biodiesel in 2013 is achievable. A number of states already have mandates for the use of biodiesel in 2013, and efforts are underway to ensure that these mandates can be met. These include Minnesota, Oregon, Washington, Pennsylvania, New Mexico, and Louisiana. Collectively, these states account for approximately 13 percent of the nationwide consumption of diesel. Other states have implemented other forms of incentives as shown in Table IV.B.4-1.
Collectively, these states account for approximately 37% of the nationwide consumption of biodiesel. A variety of states also have requirements for the use of biodiesel in state fleets, provisions that allow biodiesel to be used as an alternative to meeting alternative fuel vehicle mandates, and credits/rebates
Altogether, therefore, more than half of the states in the U.S. have mandates and/or incentives that will induce them to address biodiesel infrastructure issues. Efforts in these areas will directionally help the nation to meet a 1.28 bill gal biomass-based diesel requirement in 2013.
Biodiesel/petroleum based diesel fuel blends have limited ability to be transported using the existing petroleum product distribution system. There has been limited transportation of up to B5 blends by certain pipelines that do not carry jet fuel. However, concerns over potential contamination of jet fuel with biodiesel currently prevent biodiesel blends from being transported by the majority of pipelines.
Heated and insulated rail cars, tank trucks, barges, storage tanks, and blending equipment are required for biodiesel distribution to protect against fuel gelling during the cold season. Following are the cloud points of biodiesel manufactured from various feedstocks: Canola oil biodiesel 32F, soy biodiesel 34F, yellow grease biodiesel 41F, jatropha oil biodiesel 46F, tallow biodiesel 54F-63F, and palm oil biodiesel 63F.
Approximately 82 petroleum terminals blended biodiesel into petroleum-based diesel fuel in 2010.
The RFS2 final rule estimated that additional manifest rail and barge receipt facilities would be needed to accept shipments of biofuels of all types including biodiesel.
We assume that terminals adding biodiesel capability would install segregated biodiesel storage, in-line biodiesel blending equipment, and facilities to receive shipments of biodiesel by tank truck. In-line blending refers to the process of blending biodiesel into petroleum-based diesel fuel in the delivery line that feeds into the tank truck from the terminal storage tanks. This process ensures an accurate blend ratio and a fully mixed biodiesel/petroleum diesel batch. We also assume that all equipment at terminals as well as the vessels used to transport biodiesel would be heated and insulated to prevent gelling during the cold season. We anticipate that some terminals may splash blend biodiesel before installing in-line biodiesel injection equipment. Splash blending refers to the process of first loading petroleum-based diesel fuel into a tank truck followed by biodiesel so that the final blend meets the desired blend ratio. However, we expect that this approach will be temporary due to the heightened concerns over achieving a correct blend ratio and a fully mixed biodiesel blend that accompanies splash blending. Some terminals may also delay the need to install segregated/heated biodiesel storage by storing 50/50 blends of biodiesel/petroleum-based diesel fuel that is subsequently used to manufacture B2/B5/B20 blends for distribution to end users. These practices may provide additional flexibility if some terminals wish to temporarily defer installing in-line blending equipment and segregated biodiesel storage equipment.
The RFS2 FRM analysis concluded that industry would have the capability to add the necessary facilities to distribute biodiesel in a timely fashion to meet the envisioned volumes.
Renewable diesel/petroleum diesel fuel blends can be transported in existing petroleum product transportation infrastructure from the point of production to the end-user.
We estimate that a total of 5 tank trucks will be needed to transport 80 mill gallons/yr of renewable diesel to the locations where it is blended with petroleum-based diesel fuel in 2012 and 2013.
Based in the above discussion, we believe that sufficient fuel distribution infrastructure will be available to support the use of 1 bill gal of biomass-based diesel in 2012 and 1.28 bill gal in 2013.
In order to evaluate the impacts of a biomass-based diesel volume of 1.28 bill gal in the areas required under the statute (see Section IV.A), we first considered what the appropriate reference would be. Since the statute requires that the biomass-based diesel volume we set for 2013 be no lower than 1.0 bill gal, this would appear to be a reasonable reference point. Therefore, in the discussion that follows, we have focused on either a volume of 1.28 bill gal biomass-based diesel, or an increment of 0.28 bill gal biomass-based diesel, depending on the specific sources of information and analyses available.
As described in Section IV.B.1 above, even if we set the applicable volume for biomass-based diesel at 1.0 bill gal, the demand for biomass-based diesel in 2013 is likely to be on the order of 1.28 bill gal or more due to the limited projected availability of other advanced biofuels (including cellulosic biofuel, imported sugarcane ethanol, and others). Since the actual demand for biomass-based diesel would likely be 1.28 bill gal or higher regardless of whether we set the biomass-based diesel requirement at 1.0 or 1.28 bill gal, the net impact of setting the biomass-based diesel volume requirement at 1.28 bill gallons in 2013 could be seen as zero.
We recognize that this conclusion is based on an applicable advanced biofuel volume of 2.75 bill gallons. While we will be considering the possibility of lowering the 2013 advanced biofuel applicable volume below 2.75 bill gal in next year's rulemaking, we have not presumed any such reduction in today's NPRM. Such reductions in advanced biofuel must occur in the context of determining the applicable volume of cellulosic biofuel for 2013, and using information available at that time regarding advanced biofuel volumes that are projected to be available in 2013.
Nevertheless, the statute requires that we analyze specified environmental and other impacts in deriving an applicable biomass-based diesel volume for 2013 and other years, and these analyses can be conducted for 1.28 bill gal biomass-based diesel (or an increment of 0.28 bill gal). Most of the areas we are required to analyze were covered in the RFS2 final rule in some form, and we believe that we can use this information in satisfying our statutory obligations to analyze specified factors in determining the applicable volume of biomass-based diesel for 2013.
Some of the analyses presented in the RFS2 final rule were for the specific case of 1.28 bill gallons in 2013. These analyses included an investigation of the expected annual rate of commercial production of biomass-based diesel in 2013, impacts on agricultural commodity supply and price, and the cost to consumers of transportation fuel. Some of these were discussed in Section IV.B above. Most of the analyses in the RFS2 final rule, however, were conducted to represent full implementation of the RFS2 program in 2022. In these analyses, the biomass-based diesel volume was estimated to be 1.82 bill gallons, and was compared to
Since biodiesel has a GHG benefit exceeding 50% compared to the petroleum-based diesel it is replacing, an increase in biomass-based diesel of 0.28 Bill gal from 2012 to 2013 would lead to a displacement of conventional diesel fuel, with corresponding GHG emissions reductions. This increased use of biomass-based diesel will contribute to lower climate change impacts in comparison to the petroleum-based diesel it is replacing.
However, due to the nested nature of the RFS2 standards, biomass-based diesel is also used to meet the advanced biofuel standard. Moreover, both biomass-based diesel and advanced biofuel must meet a GHG reduction threshold of 50%. If the 2013 advanced biofuel standard were to remain at the 2.75 bill gal specified in the statute, an increase in the biomass-based diesel volume requirement from 1.0 to 1.28 bill gal would not change the total volume of advanced biofuel, and thus the total volume of biofuels that must meet a 50% reduction in GHGs would remain unchanged. Under such circumstances, a standard of 1.28 bill gal of biomass-based diesel would have essentially no impact on climate change in the context of the full mix of biofuels used to meet the RFS2 requirements.
An analysis of the energy security impacts of the increased use of renewable fuels was conducted in support of the RFS2 rulemaking. Based on that analysis, increasing usage of renewable fuels including biomass-based diesel helps to reduce U.S. petroleum imports. A reduction of U.S. petroleum imports reduces both financial and strategic risks associated with a potential disruption in supply or a spike in cost of a particular energy source. This reduction in risks is a measure of improved U.S. energy security. In the RFS2 final rule, we described in detail the methodology and the Agency's estimate of the energy security impacts of the RFS2 rule. While EPA's analysis of energy security benefits of the RFS2 volumes considered the full volume of biofuels mandated by 2022 (of which biodiesel was only a part), the production of biodiesel is largely from domestic feedstocks. In contrast, the diesel fuel displaced is produced from petroleum sources which are increasingly from foreign sources. Therefore biodiesel production and use will contribute to a U.S. energy security benefit.
For the RFS2 rule, we examined the impacts of increased renewable fuels production on commodity prices, food prices and trade in agricultural products. This analysis considered the impacts of all the biofuel feedstock sources anticipated to meet the 2022 biofuel volume requirements, not just biodiesel. For the RFS2, EPA used two primary models for its agricultural economic impacts analysis, the Food and Agriculture Sector Optimization Model (FASOM), and the Food and Agricultural Policy Research Institute-Center for Agriculture and Rural Development (FAPRI-CARD) models. The FASOM model is a long-term economic model of the U.S. forest and agriculture sectors that maximizes the net present value of the sum of producer and consumer surplus across the two sectors over time subject to market, technology, and other constraints. The FAPRI-CARD models are a system of econometric models covering many agricultural commodities in the U.S. and internationally. They are based on historical data analysis, current academic research, and a reliance on accepted economic, agronomic, and biological relationships in agricultural production and markets.
To meet the RFS2 renewable fuel volumes, a number of price effects on the agricultural commodities were estimated for 2022. For instance, FASOM estimates that an increase in renewable fuel volumes to meet the RFS2 would result in an increase in the U.S. soybean prices of $1.02 per bushel (10.3 percent) above the Reference Case price in 2022. FASOM also projected the price of soybean oil would increase by $183 per ton (37.9 percent) over the 2022 Reference Case price (all prices are
A recent report by IHS Global Insight
For the analyses performed for the RFS2 final rule, EPA estimated a $10 per person per year increase in food costs due to the total annual impact of the RFS2 program by 2022 compared to a Reference case that assumed no RFS2 renewable fuel requirements. Again, the biodiesel impacts would represent only a small portion of these overall impacts and would like be even smaller in 2013 due to the smaller volume of feedstock required.
This section discusses our assessment of the impacts of 1.28 bill gal of biomass-based diesel on emissions and air quality. We are relying on the analyses of renewable fuel impacts conducted in support of the RFS2 rule
In the RFS2 rule, we analyzed both changes in pollutant emissions (measured in tons) and changes in ambient air quality associated with the changes in pollutant emissions. The changes in pollutant emissions were calculated by comparing the 2022 RFS2 renewable fuel volumes to volumes if the RFS2 mandate was not in place (the reference scenario).
Biodiesel emission impacts from the RFS2 rule emissions inventory analysis are presented in Table IV.C.4-1. A complete discussion of the emissions inventory analysis conducted for the RFS2 rule can be found in Chapter 3 of the RFS2 Regulatory Impact Analysis (RIA).
The air quality analysis for the RFS2 rule used photochemical modeling to characterize primary pollutants that are emitted directly into the atmosphere and secondary pollutants that are formed as a result of complex chemical reactions within the atmosphere. Included in the air quality modeling scenarios for the RFS2 rule were large volumes of ethanol as well as other renewable fuels, and the nature of these complex chemical interactions makes it difficult to determine the air quality impacts of biodiesel alone. Specifically, the RFS2 air quality analysis reflects a roughly 21 bill gal increase in ethanol, far outweighing the volume increase in biodiesel (0.43 bill gal). A complete discussion of the RFS2 air quality analysis and its limitations can be found in Chapter 3 of the RFS2 Regulatory Impact Analysis (RIA).
The RFS2 air quality analysis was completed earlier than the final emissions inventory analysis because of the length of time needed to conduct photochemical modeling.
Given the small emissions impact of a 0.43 bill gal increase in biodiesel on the total U.S. emissions inventory (the basis for our air quality modeling scenarios), we would expect the portion of air quality impacts attributable to a move from 1.0 to 1.28 bill gal (a 0.28 bill gal biodiesel increase) to be small enough that on a nationwide basis the air quality impact would likely not be noticeable.
We note that Clean Air Act section 211(v) requires EPA to analyze and mitigate, to the greatest extent achievable, adverse air quality impacts of the renewable fuels required by the RFS2 rule. We intend to address any potential adverse impacts from increased renewable fuel use through that study and will promulgate appropriate mitigation measures separate from today's NPRM.
For the RFS2 final rulemaking, we estimated the year-by-year per-gallon costs for diesel fuel due to the RFS2 biofuel requirements. For 2013, we based our diesel fuel cost estimate on the production and use of biodiesel, renewable diesel fuel and some cellulosic diesel fuel. The unsubsidized cost increase is 0.2 cents per gallon, but accounting for the subsidy, we estimated a cost savings to consumers for diesel fuel of 1.7 cents per gallon. This assumes a crude oil price of 81 dollars per barrel, which is within the range of crude oil prices over the last several years which have ranged from $35 per barrel to $147 per barrel.
EPA evaluated in the RFS2 final rule the impacts on the U.S. transportation network from the distribution of the total additional volume of biofuels that would be used to meet the RFS2 standards. Oakridge National Laboratory (ORNL) conducted an analysis of biofuel transportation activity from production plants to petroleum terminals by rail, barge, and tank truck to identify potential distribution constraints to help support the assessment in the RFS2 final rule.
As directed by CAA section 211(o)(2)(B)(ii), in setting the 2013 biodiesel volume requirements, EPA is to consider the impacts of biodiesel production and use on wetlands, ecosystems and wildlife habitat.
The most complete and up-to-date assessment of these impacts is contained in the draft analysis prepared by EPA in response to the requirements set out in CAA section 204. This report has been released in draft form in order to allow interested parties to provide comments on the analyses and policy implications. Concluding this review and the peer review, updates will be made to the report, and then the final report will be published in 2012 on the EPA Biofuels Web site. Nevertheless, since this draft report includes an assessment of the impact of biofuels on a number of the areas that we are required to analyze in the process of determining the 2013 biomass-based
This draft report relies on information available as of July 2010. The report does not attempt to quantify the impacts of biofuel production and use as these impacts are dependent on local or regional conditions. Nevertheless the draft provides qualitative assessments and reasonable expectations of trends which can be used to consider the environmental impacts of increases in biodiesel production and use. These trends are only summarized here while the draft report provides extensive detail.
The draft assessment focuses on the use of oil from soy beans as the feedstock for biodiesel production. Other oil seed feedstock sources represent a very small portion of biofuel production in 2013 so would be expected to have much less of an impact than soy oil. Corn oil extracted during the ethanol production process is increasing, adds a very small increment of process GHG and will offset demands for soy and other oil seed crops, thus reducing potential agricultural impact of biodiesel production and adding to the net reduction in GHG emissions. Finally, waste fats, oils and greases would be expected to have negligible environmental impact as a feedstock since they do not impact agricultural land use and would otherwise be used for some lower value purpose or simply discarded.
Wetlands can be adversely affected by agricultural production through runoff that can result in nutrient loading (particularly from fertilizers) or from sedimentation (from erosion). Soy production tends to use less fertilizer than corn production (the most likely alternative crop) and can reduce the amount of fertilizer required for corn when planted in rotation with corn. However, compared to other crops, erosion can be higher from fields planted in row crops such as corn and soy beans. While the impacts of nutrient loading and erosion tend to be site specific, good farming practices including the optimum fertilizer use and the set aside of sensitive lands via the CRP program can significantly help control these adverse affects. Wetlands can also be adversely affected through diversion of surface and ground water for agricultural irrigation. Soy bean production less frequently relies on irrigation than corn and some other crops. More discussion on water usage is included below in the section on water use and water quality impacts.
Ecosystems and wildlife habitat can be adversely affected if CRP lands are converted to crop production, if row crops such as soy beans replace grassy crops and in general if new lands with diverse vegetation are converted to crop production. As noted in the RFS2 rule, we do not expect the RFS program production to result in an increase in total acres of agricultural land under production in the US compared to a reference case without the impact of the RFS2 volumes. The relatively small increase of 0.28 bill gall should not appreciably affect the amount of land devoted to oil seed production. Further, since soy beans are traditionally planted in rotation with other crops such as corn, this small increase in soy oil demand for biodiesel production is unlikely to replace grassy crops or result in the indirect increase in land under crop production. Additionally, the USDA commitment to support the CRP program should minimize the likelihood of any significant change in the amount of CRP land. Therefore, while some very local changes may result due to an individual farmer's planting decisions, since no new crop land are expected in the U.S. due to this increase in biodiesel production and sensitive lands will be protected via programs such as CRP, no measureable impact in aggregate ecosystems or wildlife habitat is expected.
The water quality and quantity impacts of biodiesel are primarily related to the type of feedstock and the production practices used to both produce the feedstock and to convert the feedstock into biodiesel. Soybeans are the principal feedstock used for biodiesel production and are predicted to account for 600 million gallons of the 1.28 billion gallons evaluated for 2013. Non-food grade corn oil extracted during ethanol production, animal fats and recycled fats account for most of the remaining biodiesel feedstocks. Since these fats are the byproduct of another use and not produced specifically for biodiesel manufacture and since corn oil extracted is a by-product of corn ethanol production, this analysis will focus on soybeans.
From a water quality perspective, the primary pollutants of concern from soybean production are fertilizers (nitrogen and phosphorus) and sediment. There are three major pathways for these potential pollutants to reach water from agricultural lands: runoff from the land's surface, subsurface tile drains, or leaching to ground water. Climate, hydrological, and management factors influence the potential for these contaminants to reach water from agricultural lands.
After corn, soybeans are the second largest agricultural crop in terms of acreage in the U.S. As with the production of any agricultural crop, the impact on water quality depends on a variety of factors including production practices, use of conservation practices and crop rotations by farmers, and acreage and intensity of tile drained lands. Additional factors outside agricultural producers' control include soil characteristics, climate, and proximity to water bodies.
Soybeans are typically grown in the same locations as corn since farmers commonly rotate between the two crops. In 2005, the latest year for which USDA collected data, the U.S. average nitrogen fertilization rate for soybeans was 16 pounds per acre. In contrast, the average nitrogen fertilization rate for corn was 138 pounds per acre.
Agricultural conservation systems can reduce the impact of soybean production on the environment. The systems components include (1) controlled application of nutrients and pesticides through proper rate, timing, and method of application, (2) controlling erosion in the field (
The effectiveness of conservation practices, however, depends upon their adoption. The USDA`s Conservation Effects Assessment Project (CEAP) quantified the effects of conservation practices used on cultivated cropland in the Upper Mississippi River Basin. It found that, while erosion control practices are commonly used, there is considerably less adoption of proper nutrient management to mitigate nitrogen loss to water bodies.
Water for soybean cultivation predominately comes from rainfall, although about 11 percent of soybean acres in the U.S. are irrigated.
Biological oxygen demand (BOD), total suspended solids, and glycerin pose the major water quality concerns in wastewater discharged from biodiesel facilities. Actual impacts depend on a range of factors, including the type of feedstock processed, biorefinery technology, effluent controls, and water re-use/recycling practices, as well as the facility location and source and receiving water.
Despite the existing commercial market for glycerin and the likely expanded uses for glycerin as discussed in the RFS2 final rule, the rapid development of the biodiesel industry has caused a temporary glut of glycerin production, resulting in some instances of facilities disposing glycerin. Glycerin disposal may be regulated under several EPA programs, depending on the practice. However, there have been incidences of glycerin dumping, including an incident in Missouri that resulted in a large fish kill.
Biodiesel can also impact water bodies as a result of spills. However, biodiesel degrades approximately four times faster than petroleum diesel including in aquatic environments.
Biodiesel facilities use much less water than ethanol facilities to produce biofuel. The primary consumptive water use at biodiesel plants is associated with washing and evaporative processes. Water use is variable, but is usually less than one gallon of water for each gallon of biodiesel produced; some facilities recycle wash water, which reduces overall water consumption.
The RFS2 is anticipated to increase employment and spur income expansion in rural areas and farming communities. Income expansion in rural areas from renewable fuel production will contribute to rural economic development. As mentioned above, industry activities are currently progressing to ramp up biodiesel consumption from the approximately 380 mill gallons estimated to be used in the U.S. in 2010 to the 800 mill gallons that is estimated to be used in 2011 to meet the RFS2 biomass-based diesel volume requirement. In addition, it is anticipated that biodiesel production capacity idled due to lack of demand will be brought back on line as biodiesel volumes ramp up. Also, expansions to the fuel distribution infrastructure (
We are proposing an applicable volume of 1.28 bill gal biomass-based diesel for 2013, consistent with our projection for 2103 in the RFS2 final rule. The 0.28 bill gal increment over the 2012 applicable volume that is reflected in this proposal does not deviate substantially from the trend in annual increments that Congress established in specifying applicable volumes for biomass-based diesel for 2009 through 2012. As noted in Section IV.B, because we are not proposing to change the 2013 advanced biofuel applicable volume in this rulemaking, we have used the 2.75 bill gallon applicable volume for the analyses in today's proposal. Given an advanced biofuel applicable volume of 2.75 bill gallons for 2013, the proposed 1.28 bill gal biomass-based diesel volume requirement is not expected to force any additional biomass-based diesel
However, compared to a reference case without the RFS2 mandates, 1.28 bill gal of biomass-based diesel will lead to displacement of fossil-based fuel, which will result in reduced GHG emissions from the transportation sector and increased energy security. There are likely to be some negative consequences associated with increased air and water pollution, increased food prices, impacts to wetlands,
EPA is directed under CAA 211(o)(2) to determine the required biomass-based diesel volumes no less than 14 months ahead of the first year that they would be applicable, and thus we could propose biomass-based diesel volumes for 2014 and beyond in today's NPRM. Doing so would provide certainty for the industry and stability for future investments and contracts. However, we are not proposing biomass-based diesel standards for 2014 and beyond in today's NPRM since we believe we will be in a better position in the future to evaluate all of the factors related to establishing an applicable volume for 2014 and later years.
We are aware of two sources that provide projections of biomass-based diesel for years after 2013: the RFS2 final rulemaking, and a recent report released by the IHS Global Insight.
As the RFS2 program got underway in the second half of 2010, we discovered that a number of regulatory provisions were causing confusion among regulated parties. In some cases the confusion was due to a lack of specificity in terms, while in others it was due to unique circumstances that were not sufficiently addressed in the RFS2 regulations. A few amendments are being proposed in order to correct regulatory language that inadvertently misrepresented our intent as reflected in the preamble to the final RFS2 regulations. Finally, as we have worked with regulated parties to ensure that the RFS program is operating as intended, we identified areas in the regulations that could benefit from clarification and/or streamlining. We also identified one provision in the gasoline benzene regulations that misrepresented our intent as stated in the preamble. As a result, we are proposing a number of amendments to the RFS regulations, and one amendment to the gasoline benzene regulations, in 40 CFR part 80.
Below is a table listing the provisions that we are proposing to amend in today's action. We have provided additional explanation for several of these amendments in Sections V.B through V.F below.
A producer or importer of renewable fuels is required to submit an equivalence value (EV) application in accordance with § 80.1415(c) for any renewable fuel that does not have an EV listed in § 80.1415(b). In addition, a producer or importer could apply for an alternative EV if the producer or importer has reason to believe that a different EV than that listed in § 80.1415(b) is warranted. Section 80.1415(c) provides the calculation equation for the EV of the renewable fuel and the requirements for the technical justification to be submitted in the EV application.
We have received many inquiries from producers and importers of renewable fuels requesting clarification of the specific requirements for the technical justification listed in § 80.1415(c). In addition, based on the many EV applications we have evaluated, we have found that we needed to request additional information from producers and importers to better understand the composition of the renewable fuel they produced, such as intermediate steps and energy inputs in production process, sources of renewable and non-renewable feedstock, and so forth, to better evaluate and assign the correct EV to the producer or importer's renewable fuel.
Therefore, we are proposing to amend § 80.1415(c)(2) to provide clarification to the current requirements and to include additional requirements for the technical justification to be submitted in the EV application. The proposed amendments to § 80.1415(c)(2) include:
As explained in the preamble of the RFS2 final rulemaking, EPA extended modeling for cellulosic biofuel made from corn stover and biodiesel/renewable diesel made from waste oils/fats/greases to annual cover crops, based on the expectation that cultivation of annual cover crops, as defined in § 80.1401, will have little impact on the agricultural commodity markets and therefore little or no land use impact associated with them. Therefore, certain fuels (as specified in Table 1 to § 80.1426) derived from annual cover crop feedstocks qualify for D-codes under the advanced biofuel, biomass-based diesel, and cellulosic renewable fuel categories.
Section 80.1401 of the final RFS2 rule defines “annual cover crop.” We are proposing to amend the definition of annual cover crop in order to more clearly define those feedstocks that meet the intent of including cover crops in several pathways in Table 1 to § 80.1426.
In order to extend our modeling to cover crops, we used the rationale that annual cover crops would have no land use impact since they are planted on land otherwise used for crop production. Greenhouse gas emissions would only be associated with growing, harvesting and transporting the cover crop, and then processing into biofuel. (See 75 FR 14794 col. 3.) Thus, we assumed that no additional land would be required to plant annual cover crops, that cover crops would not displace primary crop production, and that the use of the cover crop as a feedstock for renewable fuels would not have secondary impacts on other agricultural commodity markets. This implies that annual cover crops would not be planted and harvested for the purpose of being sold to existing markets. If a cover crop already had an existing market, then the increased use of cover crops as feedstocks for renewable fuel production could potentially impact the existing markets. Therefore, we propose to amend the current definition for “annual cover crop” to clarify that for purposes of the RFS program the term only includes crops that have no existing market to which they can be sold except for the use of the feedstock
EPA recognizes that there may be additional fuel pathways requiring lifecycle greenhouse gas (GHG) assessments and the assignment of appropriate RIN D-Codes, including those using feedstocks that do not meet the proposed amended definition of annual cover crop. For further guidance on the process for requesting EPA evaluation of new fuel pathways, please refer to the following sites:
In the RFS2 final rule, we included several RIN-generating pathways in Table 1 for naphtha made from renewable biomass. We also provided a definition of naphtha in § 80.1401. However, the definition we finalized was overly broad and did not adequately represent our intent to limit naphtha to gasoline blendstocks. As a result, some biofuel producers have expressed interest in interpreting the term “naphtha” to include materials that, while falling within the boiling range of gasoline, are not used as a blendstock to produce gasoline.
To remedy this situation, we are proposing to revise the definition of naphtha to also specify that it applies only to blendstocks which are composed of only hydrocarbons, are commonly or commercially known as naphtha, and are used to produce gasoline.
We propose to amend section 80.1429 to limit the amount of RINs a company who is an obligated party solely by virtue of importation of obligated fuel can separate to their Renewable Volume Obligation (RVO). This change would address the instance where a party may import a small amount of obligated volumes and then separate all the RINs that it owns. This change is designed to prevent abuse of the obligated party RIN separation provision by a company that imports a relatively small amount of an obligated volume, but then separates a large amount of RINs. The proposed provision is also designed to help prevent the hoarding of RINs by parties that do not need them for compliance purposes, and to generally increase liquidity of RINs.. EPA structured the original RFS1 separation regulations around facilitating compliance by obligated parties meeting their RVOs. The proposed change keeps with the original design and also ensures that importers can separate enough RINs to meet their obligations.
In some instances, renewable fuel producers or importers may improperly generate RINs in EMTS as a result of calculation errors, meter malfunctions or clerical errors. Pursuant to § 80.1431(a), improperly generated RINs are invalid, and cannot be used to achieve compliance with any Renewable Volume Obligations (RVOs). The regulations also prohibit any party from creating or transferring invalid RINs. These invalid RIN provisions apply regardless of the good faith belief of a party that the RINs are valid. Because of the “buyer beware” aspect of the RIN program, RIN generators should take all appropriate actions to ensure that they are properly generating RINs, and all parties in the RIN distribution system should take all appropriate actions to ensure that they are not trading invalid RINs or using invalid RINs for compliance purposes.
The “buyer beware” aspect of the RIN program provides an important incentive for the regulated community to comply with the regulations. Although EPA believes that these self-policing mechanisms are a critical component of the RFS2 regulations, we seek comment on the possibility of amending § 80.1431 to provide the regulated community with limited flexibility to allow certain RINs that were improperly generated to nevertheless be transferred and used for compliance. We envision that this type of flexibility could reduce disruptions to the RIN market while, if appropriately limited, continuing to apply appropriate pressure on parties that generate, transfer and use RINs to comply with the regulations. Parties that improperly generate RINs would remain liable for generating invalid RINs.
We believe that the following general limitations should apply to any flexibility to allow improperly generated RINs to be transferred and used for compliance: (1) The RINs must have been improperly generated as a result of an inadvertent error, (2) the improperly generated RINs must have the correct D code, (3) the RIN generator must correct the information submitted to EMTS and retire an equivalent number and type of any excess RINs that were generated as a result of the error within fixed time period, (4) the flexibility to allow improperly generated RINs to be used for compliance would only apply if the number of excess RINs generated for a particular batch exceeds the number of RINs that should have been generated by some fixed percentage, and (5) the flexibility to allow improperly generated RINs to be used for compliance could not be repeatedly used by a renewable fuel producer.
We are seeking comment on whether EPA should amend the regulations to include this flexibility, whether the conditions set forth above are appropriate, and whether there are additional or alternative conditions that should be imposed if the flexibility is granted. We seek comment on specifying a 60-day time period for a RIN-generator to correct RIN information submitted to EMTS and limiting the availability of this flexibility to situations where the number of excess RINs generated for a particular batch exceeds the number of RINs that should have been generated by no more than 2%. In addition, we seek comment on the possibility of establishing a limit on the number of times this flexibility could be used within a compliance period by a given RIN generator. Such a limitation could encourage RIN generators to take appropriate measures to avoid generating invalid RINs, and limit the possibility that RIN generators would intentionally generate invalid RINs to take advantage of short term RIN price spikes. EPA seeks comment on all aspects of this proposal
In the final RFS2 regulations, in § 80.1449(a), EPA set the annual deadline for submitting Production Outlook Reports as March 31 of each year. However, EPA has determined that, in order for the information contained in the Production Outlook Reports to be most useful when setting the RFS2 volume requirements and associated percentage standards for the following calendar year, the reports should contain the most accurate projections possible. Since the accuracy of projections tends to increase the closer those projections are made to the following calendar year, we believe that the March 31 deadline should be moved to June 1. This revised deadline would still allow the information contained in the Production Outlook Reports to be used in the development of the final
In the final RFS2 regulations, EPA required in § 80.1464(c)(1)(i) and (c)(2)(ii) that RIN owners conduct attest procedures for RIN transaction and RIN activity reports that involve RIN separations. This requirement was intended to be included in the attest procedures for obligated parties and exporters as well as for renewable fuel producers and RIN-generating importers, in order to confirm that RINs are being properly separated by all parties participating in the RIN market. Thus, today's rule proposes amendments to § 80.1464(a)(2)(i) and (a)(3)(ii) for obligated parties and exporters as well as to § 80.1464(b)(2)(i) and (3)(ii) for renewable fuel producers and RIN-generating importers to include attest procedures concerning verification of RIN separation.
Additionally, in the final RFS2 regulations, EPA required in § 80.1464 that auditors of RIN generation reports verify that product transfer documents (PTDs) include the required information. EPA believes it would be beneficial for auditors to verify the required information is present on PTDs for RIN transactions for all parties, including obligated parties, renewable fuel producers and importers and RIN owners. Thus, today's rule proposes amendments to § 80.1464(a)(2), (b)(2) and (c)(1) to require auditors to verify that the PTDs for a representative sample of RINs sold and purchased contains the information required in § 80.1453.
On September 28, 2010, EPA published a “Supplemental Determination for Renewable Fuels Produced Under the Final RFS2 Program from Canola Oil” (FR Vol. 75, No. 187, pg 59622-59634). We are proposing to clarify two aspects of the supplemental determination. First we propose to amend the regulatory language in Table 1 to 40 CFR 80.1426 to clarify that the currently-approved pathway for canola also applies more generally to rapeseed. While “canola” was specifically described as the feedstock evaluated in the supplemental determination, we had not intended the supplemental determination to cover just those varieties or sources of rapeseed that are identified as canola, but to all rapeseed. We currently interpret the reference to “canola” in Table 1 to 40 CFR 1426 to include any rapeseed. To eliminate ambiguity caused by the current language, however, we propose to replace the term “canola” in that table with the term “canola/rapeseed”. Canola is a type of rapeseed. While the term “canola” is often used in the American continent and in Australia, the term “rapeseed” is often used in Europe and other countries to describe the same crop. We believe that this change will enhance the clarity of the regulations regarding the feedstocks that qualify under the approved canola biodiesel pathway.
Second, we wish to clarify that although the GHG emissions of producing fuels from canola feedstock grown in the U.S. and Canada was specifically modeled as the most likely source of canola (or rapeseed) oil used for biodiesel produced for sale and use in the U.S., we also intended that the approved pathway cover canola/rapeseed oil from other countries, and we interpret our regulations in that manner. We expect the vast majority of biodiesel used in the U.S. and produced from canola/rapeseed oil will come from U.S. and Canadian crops. Incidental amounts from crops produced in other nations will not impact our average GHG emissions for two reasons. First, our analyses considered world-wide impacts and thus considered canola/rapeseed crop production in other countries. Second, other countries most likely to be exporting canola/rapeseed or biodiesel product from canola/rapeseed are likely to be major producers which typically use similar cultivars and farming techniques. Therefore, GHG emissions from producing biodiesel with canola/rapeseed grown in other countries should be very similar to the GHG emissions we modeled for Canadian and U.S. canola, though they could be slightly (and insignificantly) higher or lower. At any rate, even if there were unexpected larger differences, EPA believes the small amounts of feedstock or fuel potentially coming from other countries will not impact our threshold analysis. Therefore, EPA interprets the approved canola pathway as covering canola/rapeseed regardless of country origin.
The registration requirements in § 80.1450(b)(1)(vi) state that for facilities claiming the exemption described in § 80.1403(c) or (d), evidence must be submitted demonstrating the date that construction commenced. However, the registration requirements do not explicitly require the submission of evidence demonstrating that they meet certain of the other requirements described in § 80.1403(c)(1) and (2) or (d)(1), (2) and (3).
In order to verify that facilities which claim to qualify for an exemption under § 80.1403(c) or (d) in fact meet all of the qualification requirements for such an exemption, we are proposing to amend § 80.1450(b)(1)(vi) to include requirements that the owner or operator of facilities claiming exemption under § 80.1403(c) submit evidence demonstrating that construction was not discontinued for a period of 18 months after construction began, and that construction was completed by December 19, 2010. Similarly, we are proposing that for facilities claiming the exemption under § 80.1403(d), evidence be submitted demonstrating that construction was not discontinued for a period of 18 months after construction began and that construction was completed within 36 months of the date that construction commenced.
In addition, we are proposing to add a general provision in (§ 80.1450(b)(1)(vi)(D) requiring the submission of additional documentation and information as requested by the Administrator. This authority would be used in the event that documents submitted in accordance with requirements § 80.1450(b)(1)(vi)(A) and (B) are not sufficient for EPA to verify that the facility has met all requirements described in § 80.1403(c) or (d).
The regulations stipulate that producers of renewable fuels and foreign ethanol producers are required to update their registration information, and submit an updated independent third-party engineering review, every 3 years after their initial registration in accordance with § 80.1450(d)(3). We have received many inquiries regarding the start date that EPA uses to determine the 3 year period after which the producer must submit an updated independent third party engineering review (such as the registration acceptance date, the third-party professional engineer's signature date on the engineering review report, or when the engineering review is due for grandfathered and non-grandfathered facilities).
Given the lack of clarity in the current regulations, we are proposing amendments to specify the time frame for submission of updated independent third-party engineering reviews. We are proposing, a simplified method that would group producers according to the calendar year they were or will be registered, and setting a fixed time
We are proposing that the amendments to the registration requirements in § 80.1450 also apply to foreign ethanol producers. As defined in § 80.1401, foreign ethanol producers are foreign producers that produce ethanol for use in transportation fuel, heating oil or jet fuel but who do not add denaturant to their product. Therefore, foreign ethanol producers do not technically produce “renewable fuel” as defined in our regulations. As discussed in the preamble to the Direct Final Rule published on May 1, 2010 (see 75 FR 26032), the result of the amendments made in the Direct Final Rule is to require foreign ethanol facilities that produce ethanol that ultimately becomes part of a renewable fuel for which RINs are generated to provide EPA the same registration information as foreign renewable fuel facilities that export their product to the United States. In both cases the required registration information is important for enforcement purposes, including verifying the use of renewable biomass as feedstock and the assignment of appropriate D codes. Therefore, we believe amendments to the registration requirements that we make in this proposed rule should also be applicable to foreign ethanol producers for same reasons.
We have received many inquires as to whether an addendum to the existing independent third-party engineering review is sufficient to meet the requirement that all producers of renewable fuel and foreign ethanol producers submit an updated independent third-party engineering review if they make changes to their facility that will qualify the renewable fuel that is produced for a renewable fuel category or D code that is not already reflected in the producer's registration information. In some circumstances the majority of the information verified in the existing independent third-party engineering review would remain the same, and duplicating the entire effort does not appear necessary. We believe the concept of allowing the submission of an addendum in lieu of a updated independent third-party engineering review is reasonable and therefore we are proposing to amend the requirements in § 80.1450(d)(1) to state that a producer of renewable fuel or foreign ethanol producer may submit an addendum to the existing independent third-party engineering review on file with EPA provided the addendum meets all the requirements in § 80.1450(b)(2) and verifies for EPA the most up-to-date information at the producer's existing facility. The updated independent third-party engineering review or addendum shall be submitted at least 60 days prior to producing the new type of renewable fuel and must meet all the same requirements stipulated in § 80.1450(b)(2) for the independent third-party engineering review, including a new site visit conducted by the third-party to verify any changes to the facility that allows it to produce a different renewable fuel that is not currently reflected in their registration on file with EPA.
In RFS2, EPA finalized provisions allowing importers to generate RINs for renewable fuel imported from a foreign producer only under certain circumstances. The importer may only generate RINs for fuel imported from a foreign renewable fuel producer or foreign ethanol producer if that producer is registered with EPA and has received EPA company and facility identification numbers pursuant to § 80.1450. Pursuant to § 80.1426(c)(4), the importer is prohibited from generating RINs for fuel imported from a foreign producer that is not registered with EPA. In today's rule, EPA is clarifying that when an importer is generating RINs for fuel imported from a registered foreign renewable fuel producer or foreign ethanol producer, the importer must submit to EPA via EMTS the importer's company identification number, the facility identification number of the import facility where the batch was imported, and the facility identification number for the foreign renewable fuel or ethanol producer that produced the batch of fuel for which the importer is generating RINs. These clarifications are being made in § 80.1452(b)(4) and (5).
We are proposing to amend paragraphs (e)(1), (e)(2) and (g)(2) of § 80.1467 to make them consistent with § 80.1467(g)(1). These amendments attempt to clarify that the amount of the posted bond must post must cover the number of gallon RINs that are sold and/or transferred, and also those RINs held and/or obtained by the foreign entity, including those held and/or obtained to comply with a foreign importer's RVO requirements. We are also proposing to amend §§ 80.1465-80.1467 by striking §§ 80.1465(h)(2)(iii), 80.1466(h)(2)(iii) and 80.1467(e)(2)(iii), which allowed entities to make alternative commitments in lieu of posting bonds. EPA believes that this method is vague, unnecessary, and unenforceable.
We are proposing to amend § 80.1426(f)(5)(ii)(A) to remove the requirement that the separated yard waste plan and separated food waste plan must be approved by EPA, and instead only require that these two plans be submitted and accepted by EPA under the registration procedures specified in § 80.1450(b)(1)(vii). The details and information required to be submitted in the separated yard waste plan and separated food waste plan are not overly burdensome or complex, and therefore we believe it does not warrant a specific EPA approval, but that EPA acceptance of these plans through the registration procedures is sufficient.
Today's rule also proposes one minor correction to the gasoline benzene regulations which would clarify how refiners should account for transferred blendstocks in their early benzene credit generation calculations. Under current rules, refineries which generated early
As described in the preamble of the gasoline benzene final rule, EPA intended that refineries not be allowed to generate early benzene credits exclusively through blendstock trading, without making any other qualifying reductions (see 72 FR 8487), but that refineries could generate early benzene credits in part through qualifying reductions and “in part” through other means such as blendstock transfers (see 72 FR 8496-97). However, the current regulations do not allow this approach, and this inconsistency has caused confusion among refiners about how to calculate the amount of early credits generated. Refiners have generally followed the approach set out in the preamble (as EPA in fact intended), and included all blendstocks transferred to a refinery in the refinery's early credit generation calculations. Refiners typically keep records on transferred blendstocks for 1-2 years, and thus do not have sufficient data to exclude transferred blendstocks from their early credit generation calculations.
EPA recently became aware of this inconsistency and is proposing to change the regulations to make them consistent with EPA's intent as described in the preamble. Today's proposed rule would amend the gasoline benzene regulations at 40 CFR 80.1275(d)(3) by deleting that provision. This would allow a refinery to include blendstocks transferred to the refinery in the refinery's early benzene credit generation calculations (all other conditions, including treatment which removes benzene in transferred reformate streams still applying, of course). Consistent with EPA's original intent, today's rule also allows a refinery to include transferred blendstocks in past early credit generation calculations, provided the refinery met all of the other requirements for generating early benzene credits. EPA is proposing to include transferred blendstocks in past early credit generation calculation not only because this was EPA's intent at the time of the benzene gasoline rulemaking, but because some refiners have reasonably relied upon that stated intent in devising their compliance strategies.
On February 7, 2011, the American Petroleum Institute (API) and the National Petrochemical and Refiners Association (NPRA) jointly submitted a Petition for Reconsideration of EPA's final rule establishing the RFS standards for 2011.
The petition is available in docket EPA HQ OAR 2010-0133. It makes three primary assertions:
1. EPA's 2011 cellulosic biofuel volume requirement of 6.6 million gallons (6.0 million ethanol-equivalent gallons) is unrealistically high. At the most, EPA should have used the estimate of 3.94 mill gallons provided by the Energy Information Administration (EIA).
2. EPA's determination that there are sufficient sources of advanced biofuel to warrant not reducing the advanced biofuel standard lacks adequate factual support.
3. EPA's treatment of delayed RINs injects undesirable uncertainty into the regulatory environment, and is contrary to the basic regulatory framework established by Congress.
The petition requests that EPA reconsider the regulatory requirements in all three areas.
The API/NPRA petition was submitted under the reconsideration provisions of section 307(d)(7)(B) of the Clean Air Act (CAA). This section strictly limits petitions for reconsideration both in time and scope. It states that:
Thus the requirement to convene a proceeding to reconsider a rule is based on the petitioner demonstrating to EPA: (1) That it was impracticable to raise the objection during the comment period, or that the grounds for such objection arose after the comment period but within the time specified for judicial review (
Regarding the first procedural criterion for reconsideration, a petitioner must show why the issue could not have been presented during the comment period, either because it was impracticable to raise the issue during that time or because the grounds for the issue arose after the period for public comment (but within 60 days of publication of the final action). Thus, CAA section 307(d)(7)(B) does not provide a forum to request EPA to reconsider issues that actually were raised, or could have been raised, prior to promulgation of the final rule.
Regarding the second procedural criterion for reconsideration, in EPA's view, an objection is of central relevance to the outcome of the rule only if it provides substantial support
For the concerns raised in the petition related to the treatment of the advanced biofuel requirement for 2011 and the provision for delayed RINs, API and NPRA essentially restate the positions that they took in their comments in response to the 2010 NPRM. For instance, with regard to advanced biofuels, the petitioners did not reference any new data on imports of sugarcane ethanol or the production potential of biodiesel to demonstrate that the statutory applicable volume of 1.35 bill gallons of advanced biodiesel cannot be met in 2011. Likewise with regard to delayed RINs, the petitioners did not cite new circumstances or new information in their assertion that this provision will inject uncertainty into the regulatory system and RIN market. Thus the petition does not provide new information with regard to these two issues or assert arguments that could not have been raised during the comment period. As a result, we do not believe that the petition's request for a reconsideration of these regulatory requirements is justified under CAA 307(d)(7)(B), and we propose to deny the petition with respect to these two issues. We believe that our approach to these matters in the final rulemaking establishing the 2011 RFS standards was appropriate, for the reasons described in the preamble to that rule.
Regarding the 2011 cellulosic biofuel requirement of 6.0 million ethanol-equivalent gallons, petitioners make two principal arguments: (1) That the statutory requirement that the cellulosic biofuel requirement be “based on” the estimate provided by the EIA requires EPA to use the 3.94 million ethanol-equivalent gallon EIA estimate regardless of any other information, and (2) that EPA lacked a reasonable basis for its projection of 6.0 million ethanol-equivalent gallons.
The first issue raised by petitioners was discussed in the RFS2 proposed rule. In the preamble to the 2010 RFS2 Notice of Proposed Rulemaking, we stated that when projecting cellulosic biofuel production volumes annually “[w]e intend to examine EIA's projected volumes and other available data including the production outlook reports * * * ” that EPA proposed to require renewable fuel producers to submit annually.
Petitioners had another opportunity to raise this same issue in the context of the rulemaking establishing the 2011 standards. EPA again made it clear in its proposed rule that the projection that would be provided to us by the EIA would only be one of several sources of information we would use to determine the applicable cellulosic biofuel volume for 2011:
We will complete our evaluation based on comments received in response to this proposal, the Production Outlook Reports due to the Agency on September 1, 2010, the estimate of projected biofuel volumes that the EIA is required to provide to EPA by October 31, and other information that becomes available, and will finalize the standards for 2011 by November 30, 2010.
These standards are to be based in part on transportation fuel volumes estimated by the Energy Information Administration (EIA) for the following year.
As described in the final rule for the RFS2 program, we intend to examine EIA's projected volumes and other available data including the Production Outlook Reports required under § 80.1449 in making the determination of the appropriate volumes to require for 2011.
As a substantive matter, even if the petitioners were not foreclosed from raising this argument at this time, EPA would propose to deny their claim because the statute specifies that it is EPA, not EIA, that is to make the determination of projected cellulosic biofuel volumes. EPA's decision is to be “based on” the EIA estimate (as, indeed it was), but EPA interprets the statute to allow it to consider other available information as well in making its determination. EPA looked at all available information, including public comments on its proposal, and decided that 6.0 million ethanol-equivalent gallons was a reasonable projection for 2011. This is a reasonable interpretation of an ambiguous statutory provision, where Congress said “based on” the estimate provided by EIA but did not mandate that the determination be based solely upon this information. EPA carefully considered EIA's projection and explained why EPA's determination was different. See, for example,
The petition also contends that EPA is required to project the volume of cellulosic biofuel that will “actually” be
The requirement to make a projection of cellulosic biofuel volumes for the following year necessarily means that the projection will be an estimate, and may not be exactly the volume that is “actually” produced. As described in the 2010 NPRM, there are many factors that may result in the actual volume deviating from the projected volume:
• Difficulty/delays in securing necessary funding.
• Delays in permitting and/or construction.
• Difficulty in scale up, especially for 1st of their kind technologies.
• Volumes from pilot and demonstration plants may not be sold commercially.
• Not all feedstocks may qualify to produce cellulosic Renewable Identification Numbers (RINs); some still awaiting evaluation of lifecycle impacts.
• Likelihood that fuels produced internationally will be exported to the United States rather than consumed locally.
As discussed in the rule that set the 2011 cellulosic standard, we believe that the volume of cellulosic biofuel actually produced in a given year is likely to be strongly influenced by the standard we set. At this early point in the RFS program, the volume of cellulosic biofuel actually made available will in general not exceed the standard that we set, and there is no recourse for increasing the cellulosic biofuel standard if our projection were to fall short of actual production. Therefore, setting a standard that is lower than what the industry could reasonably achieve could strand investments and/or further delay the industry's ability to move towards the higher levels of commercial production envisioned in the statute. We believe it is appropriate to consider these factors in projecting production volumes, and that we are not compelled to rely solely on volumes actually in production at the time we make our decision, as petitioners would prefer.
In the final rule establishing the 2011 projected volume of cellulosic biofuel, we explained our approach to recognizing and accounting for uncertainty in the projections:
In directing EPA to project cellulosic biofuel production for purposes of setting the annual cellulosic biofuel standard, Congress did not specify what degree of certainty should be reflected in the projections. We believe that the cellulosic biofuel standard should provide an incentive for the industry to grow according to the goals that Congress established through EISA. However, we also believe that the cellulosic biofuel standard that we set should be within the range of what can be attained based on projected domestic production and import potential. Any estimate we use to set the biofuel standard for 2011 will have some uncertainty in terms of actual attainment, and the level of such uncertainty generally rises with the volume mandate. Our intention is to balance such uncertainty with the objective of providing an incentive for growth in the industry. To this end we explored the 2011 volumes for individual companies as projected by EIA to determine not only what volumes might be anticipated, but more importantly what volumes were potentially attainable. Our final projected available volume of cellulosic biofuel for 2011 reflects these considerations.
The API/NPRA petition does not suggest that the projection of 6.0 mill ethanol-equivalent gallons of cellulosic biofuel was not achievable or was not a reasonable balance as discussed above, based on the information available at the time of the final rule. Instead, the petition focuses on balancing these interests in a manner that places the highest priority on achieving a low or very low degree of uncertainty in whether the projected volumes will in fact be produced. The petition focuses almost solely on the uncertainties associated with this volume and requests that the uncertainties be reduced by lowering the applicable volume of cellulosic biofuel to no more than the EIA projection of 3.94 mill gallons. Little if any priority or emphasis is placed on the importance of establishing conditions that reasonably can promote the growth in the production of cellulosic renewable fuel. EPA disagrees that this would be the appropriate balance to draw in implementing this provision, at least in these early years of the RFS2 program.
In arguing for a lower volume based on the uncertainties, the petition highlights the recent history for three companies: Bell BioEnergy, Cello Energy, and Range Fuels. The
With regard to Range Fuels, we reasonably projected a 2011 volume production of 2.3 mill ethanol-equivalent gallons out of the 6.0 mill ethanol-equivalent gallon volume that we determined was achievable in 2011. Information made available since issuance of the final rule indicates that the facility was idled early in 2011. Nevertheless, this fact does not invalidate the projection of 6.0 mill gallons we made in December 2010, since their facility was complete, operational, and had produced some volume at that time. As indicated by the removal of Bell BioEnergy and Cello Energy from the list of companies we considered in the final rule, and the addition of KiOr and Range Fuels to this same list, it is clear that projections made at any point in time for some companies may ultimately prove too high while the projections for other companies may ultimately prove too low.
This petition for reconsideration under CAA section 307(d) should be considered in the context of the specific statutory provisions related to the annual standard-setting process for the RFS program and the compliance flexibilities in the program. Congress established a standard-setting process for cellulosic biofuel that creates a considerably shorter leadtime than in most other EPA programs, and a standard that applies for only a single year. We are required to project volumes of cellulosic biofuel and determine the applicable percentage standard by November 30 of the year before the annual standard applies. This structure is well designed to facilitate use of the most up-to-date information available before the standard goes into effect. In other contexts, API and NPRA have argued that it is important that EPA not miss this November 30 deadline for setting the annual standards, so as to provide industry with all of the lead time in advance of the compliance year that is afforded by the statute.
The panoply of compliance flexibilities provided in the statute provides meaningful options for industry in the event that that actual production of cellulosic biofuel in 2011, or any year, falls below EPA projected levels. This, combined with the relatively short period of time at issue for a petition to reconsider a one-year volume standard, and the fact that any change in the standards would occur within the year in which it applies, impacts the kind of circumstances under which it would be appropriate to reconsider the standard. The compliance flexibilities, the short time period at issue, and the disruption that would occur from a change in the standard within the compliance year, indicate that a relatively larger change in circumstances with respect to cellulosic production would need to occur before EPA would determine that new circumstances provide substantial support for revising the volume standard for cellulosic biofuel for a specific year.
EPA believes that the single change that petitioners have identified in their petition, closure of the Range Fuels plant, is not of a sufficiently large magnitude to warrant a standard revision. It may be a substantial percentage of the volume standard, but it remains a relatively minor change compared to the total volume that Congress mandated for 2011. After reducing that volume by 98%, the remaining change in circumstances amounts to a generally small change in an absolute sense, compared to the total volume of renewable fuel and the transportation fuel covered by the RFS2 program. In addition, it can be reasonably addressed by industry through utilization of program flexibilities, including use of carry over credits from 2010, use of cellulosic biofuel RINs for 2011, and deficit carryover into 2012. This approach will avoid the disruption and lack of certainty in the program that could follow if EPA readily re-opened the annual standard to revision during the single year it applied based on relatively small modifications resulting from an individual company's plans. For all of the reasons described above, EPA proposes to deny the petition for reconsideration of the 2011 cellulosic biofuel standard. EPA requests comment on this proposal.
While we are proposing to deny the petition to reconsider the cellulosic biofuel volume requirement for 2011, we nevertheless must take into account the current status of the cellulosic biofuel industry when making our projections for 2012. This includes a review of the progress being made in 2011 by the five companies we used to project the cellulosic biofuel volume of 6.0 mill gallons, including Range Fuels. As noted in Section II.B.1, based on the information we have obtained to date on the status of their facility in Soperton, Georgia, we have not included Range Fuels in the list of companies that we project could produce cellulosic biofuel in 2012. We do not believe that this is inconsistent with our proposal to deny the API/NPRA petition for reconsideration. Our proposal to deny the petition is based on the availability of program flexibilities to allow industry to comply with the unadjusted 2011 standard, the relative magnitude of the
In a similar fashion, we do not believe that identifying the low end of the range of 2012 projected cellulosic biofuel volumes as 3.55 mill gallons is inconsistent with our proposal to deny the API/NPRA petition for reconsideration. As described in Section II.B, we based the low end of the range for applicable 2012 volumes on consideration of only those facilities that are structurally complete at the time of this proposal and which anticipate commercial production of cellulosic biofuels by the end of 2011. While Range Fuel is structurally complete, they have not explicitly provided information to date indicating that they anticipate commercial production in 2011. Absent such information, for today's proposal we have excluded Range Fuels from the low end of the range of potential volumes for 2012.
We request comment on all aspects of this proposal. This section describes how you can participate in this process.
We are opening a formal comment period by publishing this document. We will accept comments during the period indicated under
Your comments will be most useful if you include appropriate and detailed supporting rationale, data, and analysis. Commenters are especially encouraged to provide specific suggestions for any changes that they believe need to be made. You should send all comments, except those containing proprietary information, to our Air Docket (see
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit Confidential Business Information (CBI) or information that is otherwise protected by statute, please follow the instructions in Section VII.B.
Do not submit information that you consider to be CBI electronically through the electronic public docket,
In addition to one complete version of the comments that include any information claimed as CBI, a copy of the comments that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
The economic impacts of the RFS2 program on regulated parties, including the impacts of the required volumes of renewable fuel, were already addressed in the RFS2 final rule promulgated on March 26, 2010 (75 FR 14670). This action proposes the percentage standards applicable in 2012 based on the volumes that were analyzed in the RFS2 final rule. This action also proposes technical amendments to the RFS2 regulations that have been determined to have no adverse economic impact on regulated parties since they generally clarify existing requirements.
This action does not impose any new information collection burden. While there are three proposed regulatory changes in today's NPRM that affect the recordkeeping and reporting burdens for regulated parties, we believe that the information collections already approved for the RFS2 program's general recordkeeping and reporting requirements, or the information collection already under review, would also cover the proposed changes in today's NPRM.
The proposed regulatory changes are listed in Table VIII.B-1.
On October 14, 2010, EPA published a notice in the
The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations at 40 CFR part 80, Subpart M under the provisions of the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise, which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on small entities, we certify that this proposed action will not have a significant economic impact on a substantial number of small entities. This rule proposes the annual standard for cellulosic biofuels for 2012 and biomass-based diesel for 2013, regulatory provisions for new RIN-generating pathways, and clarifying changes and minor technical amendments to the regulations. However, the impacts of the RFS2 program on small entities were already addressed in the RFS2 final rule promulgated on March 26, 2010 (75 FR 14670). Therefore, this proposed rule will not impose any additional requirements on small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.
This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Thus, 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 might 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 government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action only applies to gasoline, diesel, and renewable fuel producers, importers, distributors and marketers and makes relatively minor corrections and modifications to the RFS2 regulations. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed rule will be implemented at the Federal level and impose compliance costs only on
EPA specifically solicits additional comment on this proposed action from Tribal officials.
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks and because it implements specific standards established by Congress in statutes.
This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action does not relax the control measures on sources regulated by the RFS2 regulations and therefore will not cause emissions increases from these sources.
Statutory authority for this action comes from section 211 of the Clean Air Act, 42 U.S.C. 7545. Additional support for the procedural and compliance related aspects of today's proposal, including the proposed recordkeeping requirements, come from sections 114, 208, and 301(a) of the Clean Air Act, 42 U.S.C. 7414, 7542, and 7601(a).
Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Diesel fuel, Fuel additives, Gasoline, Imports, Labeling, Motor vehicle pollution, Penalties, Petroleum, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 40 CFR part 80 is proposed to be amended as follows:
1. The authority citation for part 80 continues to read as follows:
42 U.S.C. 7414, 7542, 7545, and 7601(a).
2. In § 80.1275, remove paragraph (d)(3).
3. Section 80.1401 is amended by revising the definitions of “Annual cover crop” and “Naphtha” to read as follows:
4. Section 80.1405 is amended by revising paragraphs (a) through (c) to read as follows:
(a) (1)
(i) The value of the cellulosic biofuel standard for 2011 shall be 0.003 percent.
(ii) The value of the biomass-based diesel standard for 2011 shall be 0.69 percent.
(iii) The value of the advanced biofuel standard for 2011 shall be 0.78 percent.
(iv) The value of the renewable fuel standard for 2011 shall be 8.01 percent.
(2)
(i) The value of the cellulosic biofuel standard for 2012 shall be 0.002-0.010 percent.
(ii) The value of the biomass-based diesel standard for 2012 shall be 0.91 percent.
(iii) The value of the advanced biofuel standard for 2012 shall be 1.21 percent.
(iv) The value of the renewable fuel standard for 2012 shall be 9.21 percent.
(b) EPA will calculate the value of the annual standards and publish these values in the
(c) EPA will calculate the annual renewable fuel percentage standards using the following equations:
5. Section 80.1415 is amended by revising paragraph (c)(2) to read as follows:
(c) * * *
(2) The application for an equivalence value shall include a technical justification that includes all the following:
(i) A calculation for the requested equivalence value according to the equation in paragraph (c)(1) of this section, including supporting documentation for the value of EC used in the calculation such as a certificate of analysis from a laboratory that verifies the lower heating value in Btu per gallon of the renewable fuel produced.
(ii) For each feedstock, component, or additive that is used to make the renewable fuel, provide a description, the percent input, and identify whether or not it is renewable biomass or is derived from renewable biomass.
(iii) For each feedstock that also qualifies as a renewable fuel, state whether or not RINs have been previously generated for such feedstock.
(iv) A description of the renewable fuel and the production process, including a block diagram that shows all inputs and outputs at each step of the production process with a sample quantity of all inputs and outputs for one batch of renewable fuel produced.
6. Section 80.1426 is amended as follows:
a. By revising paragraph (f)(1).
b. By revising Table 1 to § 80.1426.
c. By revising paragraphs (f)(5)(ii)(A) and (f)(5)(ii)(B).
(f) * * *
(1)
(5) * * *
(ii)(A) A feedstock qualifies under paragraph (f)(5)(i)(A) or (f)(5)(i)(B) of this section only if it is collected according to a plan submitted to and accepted by U.S. EPA under the registration procedures specified in § 80.1450(b)(1)(vii).
(B) A feedstock qualifies under paragraph (f)(5)(i)(C) of this section only if it is collected according to a plan submitted to and approved by U.S. EPA.
7. Section 80.1429 is amended by revising paragraphs (b)(2) and (b)(9) introductory text to read as follows:
(b) * * *
(2) Except as provided in paragraph (b)(6) of this section, any party that owns a volume of renewable fuel must separate any RINs that have been assigned to that volume once the volume is blended with gasoline or fossil-based diesel to produce a transportation fuel, heating oil, or jet fuel. A party may separate up to 2.5 RINs per gallon of blended renewable fuel.
(9) Except as provided in paragraphs (b)(2) through (b)(5) and (b)(8) of this section, parties whose non-export renewable volume obligations are solely related to either the importation of products listed in § 80.1407(c) or § 80.1407(e) or to the addition of blendstocks into a volume of finished gasoline, finished diesel fuel, RBOB, or CBOB, can only separate RINs from volumes of renewable fuel if the number of gallon-RINs separated in a calendar year is less than or equal to a limit set as follows:
8. Section 80.1449 is amended by revising paragraph (a) introductory text to read as follows:
(a) By June 1 of each year (September 1 for the report due in 2010), a registered renewable fuel producer or importer must submit and an unregistered renewable fuel producer may submit all of the following information for each of its facilities, as applicable, to EPA:
9. Section 80.1450 is amended as follows:
a. By revising paragraph (b)(1)(vi).
b. By revising paragraphs (d)(1)-(d)(3).
(b) * * *
(1) * * *
(vi) For facilities claiming the exemption described in § 80.1403(c) or (d), evidence demonstrating all of the following:
(A) The date that construction commenced (as defined in § 80.1403(a)(1)), including all the following:
(
(
(B) That construction was not discontinued for a period of 18 months after commencement of construction.
(C) That construction was completed by December 19, 2010, for facilities claiming an exemption pursuant to § 80.1403(c); or within 36 months of commencement of construction for facilities claiming an exemption pursuant to § 80.1403(d).
(D) Other documentation and information as requested by the Administrator.
(d) * * *
(1) Any producer of renewable fuel, and any foreign ethanol producer who makes changes to his facility that will allow him to produce renewable fuel, as defined in § 80.1401 that is not reflected in the producer's registration information on file with EPA must update his registration information and submit a copy of an updated independent third-party engineering review on file with EPA at least 60 days prior to producing the new type of renewable fuel. The producer may also submit an addendum to the independent third-party engineering review on file with EPA provided the addendum meets all the requirements in paragraph (b)(2) of this section and verifies for EPA the most up-to-date information at the producer's existing facility.
(2) Any producer of renewable fuel and any foreign ethanol producer who
(3) All producers of renewable fuel and foreign ethanol producers must update registration information and submit an updated independent third-party engineering review according to the schedule in paragraph (d)(3)(i) or (d)(3)(ii) of this section, and including the information specified in paragraph (d)(3)(iii) of this section:
(i) For all producers of renewable fuel and foreign ethanol producers registered in calendar year 2010, the updated registration information and independent third-party engineering review shall be submitted to EPA by October 1, 2013, and by October 1 of every third calendar year thereafter; or
(ii) For all producers of renewable fuel and foreign ethanol producers registered in any calendar year after 2010, the updated registration information and independent third-party engineering review shall be submitted to EPA by October 1 of every third calendar year after the first year of registration.
(iii) In addition to conducting the engineering review and written report and verification required by paragraph (b)(2) of this section, the updated independent third-party engineering review shall include a detailed review of the renewable fuel producer's calculations used to determine V
10. Section 80.1451 is amended by revising paragraph (a)(1)(xi) to read as follows:
(a) * * *
(1) * * *
(xi) A list of all RINs generated prior to July 1, 2010 that were retired for compliance in the reporting period.
11. Section 80.1452 is amended revising paragraphs (b)(2), (b)(4), and (b)(5) to read as follows:
(b) * * *
(2) The EPA company registration number of the renewable fuel producer or foreign ethanol producer, as applicable.
(4) The EPA facility registration number of the facility at which the renewable fuel producer or foreign ethanol producer produced the batch, as applicable.
(5) The EPA facility registration number of the importer that imported the batch, if applicable.
12. Section 80.1460 is amended by adding a new paragraph (b)(6) to read as follows:
(b) * * *
(6) Generate a RIN for fuel for which RINs have previously been generated.
13. Section 80.1464 is amended as follows:
a. By revising paragraphs (a)(2) introductory text and (a)(2)(i).
b. By adding paragraphs (a)(2)(iii) and (a)(2)(iv).
c. By revising paragraph (a)(3)(ii).
d. By revising paragraphs (b)(2) introductory text and (b)(2)(i).
e. By adding paragraphs (b)(2)(iii) and (b)(2)(iv).
f. By revising paragraph (b)(3)(ii).
g. By revising paragraph (c)(1) introductory text.
h. By adding paragraphs (c)(1)(iii) and (c)(1)(iv).
(a) * * *
(2)
(i) Obtain and read copies of a representative sample, selected in accordance with the guidelines in § 80.127, of each RIN transaction type (RINs purchased, RINs sold, RINs retired, RINs separated, RINs reinstated) included in the RIN transaction reports required under § 80.1451(a)(2) for the compliance year.
(iii) Verify that the product transfer documents for the representative samples under paragraph (a)(2)(i) of this section of RINs sold and the RINs purchased contain the applicable information required under § 80.1453 and report as a finding any product transfer document that does not contain the required information.
(iv) Verify the accuracy of the information contained in the product transfer documents reviewed pursuant to paragraph (a)(2)(iii) of this section and report as a finding any exceptions.
(3) * * *
(ii) Obtain the database, spreadsheet, or other documentation used to generate the information in the RIN activity reports; compare the RIN transaction samples reviewed under paragraph (a)(2) of this section with the corresponding entries in the database or spreadsheet and report as a finding any discrepancies; compute the total number of current-year and prior-year RINs owned at the start and end of each quarter, purchased, separated, sold, retired and reinstated, and for parties that reported RIN activity for RINs assigned to a volume of renewable fuel, the volume and type of renewable fuel (as defined in § 80.1401) owned at the end of each quarter; as represented in these documents; and state whether this information agrees with the party's reports to EPA.
(b) * * *
(2)
(i) Obtain and read copies of a representative sample, selected in accordance with the guidelines in § 80.127, of each transaction type (RINs purchased, RINs sold, RINs retired, RINs separated, RINs reinstated) included in the RIN transaction reports required under § 80.1451(b)(2) for the compliance year.
(iii) Verify that the product transfer documents for the representative samples under paragraph (b)(2)(i) of this section of RINs sold and the RINs purchased contain the applicable information required under § 80.1453 and report as a finding any product transfer document that does not contain the required information.
(iv) Verify the accuracy of the information contained in the product transfer documents reviewed pursuant to paragraph (b)(2)(iii) of this section and report as a finding any exceptions.
(3) * * *
(ii) Obtain the database, spreadsheet, or other documentation used to generate the information in the RIN activity reports; compare the RIN transaction samples reviewed under paragraph (b)(2) of this section with the corresponding entries in the database or spreadsheet and report as a finding any discrepancies; report the total number of each RIN generated during each quarter and compute and report the total number of current-year and prior-year RINs owned at the start and end of each
(c) * * *
(1)
(iii) Verify that the product transfer documents for the representative samples under paragraph (c)(1)(i) of this section of RINs sold and RINs purchased contain the applicable information required under § 80.1453 and report as a finding any product transfer document that does not contain the required information.
(iv) Verify the accuracy of the information contained in the product transfer documents reviewed pursuant to paragraph (c)(1)(iii) of this section and report as a finding any exceptions.
14. Section 80.1465 is amended by revising paragraph (h)(2) to read as follows:
(h) * * *
(2) Bonds shall be posted by any of the following methods:
(i) Paying the amount of the bond to the Treasurer of the United States.
(ii) Obtaining a bond in the proper amount from a third party surety agent that is payable to satisfy United States administrative or judicial judgments against the foreign refiner, provided EPA agrees in advance as to the third party and the nature of the surety agreement.
15. Section 80.1466 is amended by revising paragraph (h)(2) to read as follows:
(h) * * *
(2) Bonds shall be posted by any of the following methods:
(i) Paying the amount of the bond to the Treasurer of the United States.
(ii) Obtaining a bond in the proper amount from a third party surety agent that is payable to satisfy United States administrative or judicial judgments against the foreign producer, provided EPA agrees in advance as to the third party and the nature of the surety agreement.
16. Section 80.1467 is amended by revising paragraphs (e)(1), (e)(2), and (g)(2) to read as follows:
(e) * * *
(1) The foreign entity shall post a bond of the amount calculated using the following equation:
(2) Bonds shall be posted by any of the following methods:
(i) Paying the amount of the bond to the Treasurer of the United States.
(ii) Obtaining a bond in the proper amount from a third party surety agent that is payable to satisfy United States administrative or judicial judgments against the foreign RIN owner, provided EPA agrees in advance as to the third party and the nature of the surety agreement.
(g) * * *
(2) Any RIN that is obtained, sold, transferred, or held that is in excess of the number for which the bond requirements of this section have been satisfied is an invalid RIN under § 80.1431.
This Circular is published annually for the information of Federal bond-approving officers and persons required to give bonds to the United States consistent with 31 CFR 223.16. Copies of the Circular and interim changes may be obtained directly from the internet at
The most current list of Treasury authorized companies is always available through the Internet at
Please note that the underwriting limitation published herein is on a per bond basis but this does not limit the amount of a bond that a company can write. Companies are allowed to write bonds with a penal sum over their underwriting limitation as long as they protect the excess amount with reinsurance, coinsurance or other methods as specified at 31 CFR 223.10-11. Please refer to Note (b) at the end of this publication.
The following companies have complied with the law and the regulations of the U.S. Department of the Treasury. Those listed in the front of this Circular are acceptable as sureties and reinsurers on Federal bonds under Title 31 of the United States Code, Sections 9304 to 9308 [
If we can be of any assistance, please feel free to contact the Surety Bond Branch at (202) 874-6850.
(a) All Certificates of Authority expire June 30, and are renewable July 1, annually. Companies holding Certificates of Authority as acceptable sureties on Federal bonds are also acceptable as reinsuring companies.
(b) The Underwriting Limitations published herein are on a per bond basis. Treasury requirements do not limit the penal sum (face amount) of bonds which surety companies may provide. However, when the penal sum exceeds a company's Underwriting Limitation, the excess must be protected by co-insurance, reinsurance, or other methods in accordance with 31 CFR Section 223.10, Section 223.11. Treasury refers to a bond of this type as an Excess Risk. When Excess Risks on bonds in favor of the United States are protected by reinsurance, such reinsurance is to be effected by use of a Federal reinsurance form to be filed with the bond or within 45 days thereafter. In protecting such excess risks, the underwriting limitation in force on the day in which the bond was provided will govern absolutely. For further assistance, contact the Surety Bond Branch at (202) 874-6850.
(c) A surety company must be licensed in the State or other area in which it provides a bond, but need not be licensed in the State or other area in which the principal resides or where the contract is to be performed [28 Op. Atty. Gen. 127, Dec. 24, 1909; 31 CFR Section 223.5 (b)]. The term “other area” includes the District of Columbia, American Samoa, Guam, Puerto Rico, and the Virgin Islands.
License information in this Circular is provided to the Treasury Department by the companies themselves.
(d) FEDERAL PROCESS AGENTS: Treasury Approved surety companies are required to appoint Federal process agents in accord with 31 U.S.C. 9306 and 31 CFR 224.
(e) Companies holding Certificates of Authority as acceptable reinsuring companies are acceptable only as reinsuring companies on Federal bonds and may not directly write Federal bonds.
(f) Some companies may be Approved surplus lines carriers in various states. Such approval may indicate that the company is authorized to write surety in a particular state, even though the company is not licensed in the state. Questions related to this may be directed to the appropriate State Insurance Department. Refer to the list of state insurance departments at the end of this publication.
Centers for Disease Control and Prevention, HHS.
Interim final rule with request for comments.
Title I of the James Zadroga Health and Compensation Act of 2010 amended the Public Health Service Act (PHS Act) by adding Title XXXIII, which establishes the World Trade Center (WTC) Health Program. Sections 3311, 3312, and 3321 of Title XXXIII of the PHS Act require that the WTC Program Administrator develop regulations to implement portions of the WTC Health Program established within the Department of Health and Human Services (HHS). The WTC Health Program, which will be administered in part by the Director of the National Institute for Occupational Safety and Health (NIOSH), within the Centers for Disease Control and Prevention (CDC), will provide medical monitoring and treatment to eligible firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers who responded to the September 11, 2001, terrorist attacks in New York City, Shanksville, PA, and at the Pentagon, and to eligible survivors of the New York City attacks. This interim final rule establishes the processes by which eligible responders and survivors may apply for enrollment in the WTC Health Program, obtain health monitoring and treatment for WTC-related health conditions, and appeal enrollment and treatment decisions. This interim final rule also establishes a process for the certification of health conditions, and reimbursement rates for providers who provide initial health evaluations, treatment, and health monitoring.
Effective July 1, 2011. Written comments from interested parties on this interim final rule and on the information collection approval request sought under the Paperwork Reduction Act must be received by August 30, 2011.
You may submit comments, identified by “RIN 0920-AA44,” by any of the following methods:
•
•
•
Roy M. Fleming, Sc.D., Senior Science Advisor, World Trade Center Health Program, Office of the Director, National Institute for Occupational Safety and Health, 1600 Clifton Road, NE., MS-E74, Atlanta, GA 30329; telephone 866-426-3673 (this is a toll-free number). Information requests may also be submitted by e-mail to
This preamble is organized as follows:
Interested persons or organizations are invited to participate in this rulemaking by submitting written views, opinions, recommendations, and data. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. HHS will consider those submissions and may revise the final rule as appropriate.
Comments are invited on any topic related to this interim final rule. In addition, HHS invites comments specifically on the following questions related to this rulemaking:
1. The PHS Act requires “1 day” of presence for a number of eligibility criteria for firefighters and related personnel (see § 88.4(a)(1) of the interim final rule text), members of the New York City Police Department (see § 88.4((a)(2)(ii)), and vehicle maintenance-workers (see § 88.4(a)(5))to be enrolled. For the purposes of this regulation, the Department has interpreted the statutory intent of 1 day to be a full work shift, of at least 4 hours but less than 24 hours. Is there a different interpretation of 1 day that the Department should consider?
2. The medical necessity standard established in this interim final rule relies heavily on the medical protocols to be developed by the Data Centers and approved by the WTC Program Administrator, and incorporates the qualitative factors that treatment be reasonable and appropriate based on scientific evidence, professional standards of care, expert opinion, and other relevant information. Is the substantial reliance on approved medical protocols appropriate? Are the factors specified necessary and sufficient? Are there specific standards currently in use by other programs, either Federal or in private sector health care organizations that would be appropriate for use in the WTC Health Program?
3. The interim final rule implements Federal Employees Compensation Act (FECA) rates for reimbursing initial health evaluations, health monitoring, and medically necessary treatment
Since the tragic events of September 11, 2001, HHS, CDC, and NIOSH have facilitated health evaluations for those firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers who responded to the WTC disaster sites. A health screening program for responders began in 2002 under contracts awarded to the Mount Sinai School of Medicine (Mount Sinai) and the Fire Department, City of New York. Mount Sinai subcontracted with other specialty occupational health clinics in the New York metropolitan area to expand enrollment and provide a standardized and comprehensive health screening protocol.
In 2003, Congress appropriated further funding to implement longer term medical monitoring for these responders. The occupational health specialty clinics involved in the screening program were each directly funded through cooperative agreements with NIOSH to work collaboratively and provide periodic standardized medical monitoring exams. Participants in the initial screening program were enrolled beginning in 2004.
In 2006, Congress appropriated additional funds for diagnostic and treatment services to support medical care for health conditions associated with WTC-related work exposures. After receiving appropriations for treatment, the program was re-named the WTC Medical Monitoring and Treatment Program (MMTP) to reflect expanded services to eligible firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers The established program providers were funded as Clinical Centers of Excellence (Clinical Centers), reflecting their multidisciplinary expertise and extensive program experience with the WTC responder population. The MMTP made monitoring exams and treatment available to firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers living outside the New York metropolitan area and geographically distant from the established Clinical Centers through a network of providers. The health conditions covered under the MMTP were identified by the Clinical Centers based on assessments of the health needs of the firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers and with input from scientific and medical experts, and included certain upper and lower airway diseases, esophageal disorders from acid reflux, musculoskeletal injuries, and mental health problems (most notably post-traumatic stress disorder, anxiety, and depression).
In 2008, Congress appropriated additional funds for the WTC Environmental Health Center (EHC) Community Program, which provided initial health evaluations, diagnostic and treatment services for residents, students, and others in the community who were affected by the September 11, 2001, terrorist attacks in New York City.
Title I of the James Zadroga 9/11 Health and Compensation Act of 2010, (Pub. L. 111-347), amended the PHS Act to add Title XXXIII
The WTC Health Program will expand to include any eligible firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers who responded to the September 11, 2001, terrorist attacks at the Pentagon and Shanksville, PA. Section 3311(a)(2)(C)(ii) of Title XXXIII requires that the WTC Program Administrator develop eligibility criteria for Pentagon and Shanksville, PA emergency responders after consultation with the WTC Scientific/Technical Advisory Committee. HHS is in the process of establishing this new Federal advisory committee and the WTC Program Administrator will obtain the required consultation as soon as possible. However, because no Pentagon or Shanksville, PA responders have participated in the existing health program, the WTC Program Administrator currently lacks information that may serve as a basis for such enrollment, including information on participation in the response at these two sites and on hazard exposure circumstances at these sites relevant to currently established WTC health conditions. The WTC Program Administrator will be collecting such information.
Title XXXIII of the PHS Act directs the Secretary of HHS to designate a Department official to be the WTC Program Administrator (Title XXXIII, § 3306(14)). Certain specific activities of the WTC Program Administrator are reserved to the Secretary to delegate at her discretion; other WTC Program Administrator duties not explicitly reserved to the Secretary are assigned to the Director of NIOSH or his or her designee. This rule implements portions of the PHS Act which were both given to the Director of NIOSH and others for which the HHS Secretary has designated the Director of NIOSH to be the WTC Program Administrator. Another HHS component, Centers for Medicare & Medicaid Services, has been delegated responsibilities for disbursing payments to providers under the WTC Health Program (see Delegation of Authority, 76 FR 31337, May 31, 2011). All references to the WTC Program Administrator in this notice mean the NIOSH Director or his or her designee.
Under § 3306 of Title XXXIII of the PHS Act, the WTC Program Administrator is responsible for a program to enroll qualified firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers who responded to the New York City, Pentagon, and Shanksville, PA disaster sites; screen and certify qualified survivors of the New York City attacks; and to establish a nationwide system of healthcare providers to provide monitoring and treatment to those individuals found eligible. The WTC Program Administrator is also required to promulgate regulations to determine medical necessity with respect to
Title XXXIII of the PHS Act also authorizes the WTC Program Administrator to establish a process by which health conditions, including types of cancer, may be considered for addition to the list of WTC-related health conditions. Those provisions are included in a notice of proposed rulemaking published elsewhere in this issue of the
Title XXXIII of the PHS Act further authorizes the WTC Program Administrator to promulgate regulations to add eligibility criteria for Pentagon and Shanksville, PA responders after consultation with the WTC Health Program Scientific/Technical Advisory Committee. The eligibility criteria for those responders will be developed by future rulemaking.
As required by Title XXXIII of the PHS Act, this regulation establishes the process by which individuals who were firefighters and related personnel, law enforcement officers, rescue, recovery and cleanup workers who responded to the September 11, 2001, terrorist attacks in New York City or survivors associated with the September 11, 2001, terrorist attacks in New York City may be enrolled in the WTC Health Program. For firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers who were included in the previous MMTP program before July 1, 2011, enrollment in the newly established WTC Health Program will not require any new application, although enrollment is predicated on ensuring that the individual's name is not found to be a positive match to the terrorist watch list maintained by the Federal government. Similarly, survivors of the New York City terrorist attack who have been identified as eligible for medical treatment and follow-up monitoring services in the WTC EHC Community Program as of January 2, 2011, will not be required to file a new application to the WTC Health Program, but are also subject to watch list screening.
All firefighters and related personnel, law enforcement officers and rescue, recovery and cleanup workers who responded to the New York City attack who will be newly seeking medical monitoring and treatment and survivors of the attack who were not covered by the WTC EHC Community Program on or before January 2, 2011, may apply to obtain coverage under the new WTC Health Program established by this rule. The application process for responders and survivors is established by this interim final rule.
An individual who believes that he or she qualifies as a WTC responder (a ‘WTC responder’ is defined in the interim final rule text as an individual who has been identified as eligible for monitoring and treatment as described in § 88.3 of the interim final rule, or who meets the eligibility criteria in § 88.4) must fill out an application form indicating that he or she meets certain eligibility criteria described in § 88.4. Firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers may submit an application to the WTC Health Program beginning on July 1, 2011. An individual who can demonstrate that he or she was firefighter or related personnel, law enforcement officer, or rescue, recovery or cleanup worker who participated at or within a certain distance of the Ground Zero site or at a specified location for the requisite amount of time may be enrolled in the WTC Health Program. If no documentation of eligibility is submitted with the application (
A similar application process is established for survivors who were not enrolled in the WTC EHC Community Program prior to January 2, 2011. Those survivors may submit applications to the WTC Health Program beginning on July 1, 2011. An individual who believes that he or she can qualify as a screening-eligible survivor must fill out an application form indicating that he or she meets certain eligibility criteria described in § 88.8 of the regulatory text. An individual who can demonstrate that he or she was a survivor who was present in the New York City disaster area may be found eligible to receive medical screening to determine if he or she has a health condition covered by the WTC Health Program. As with the WTC responder application, if no documentation of eligibility (
Once enrolled in the WTC Health Program, a WTC responder or certified-eligible survivor may receive treatment for specific physical and mental health conditions that have been certified by the WTC Health Program and that are included on the list of WTC-related health conditions. The list of these health conditions was established by Congress and is repeated in § 88.1, the definitions section of this rule. The list may be amended in the future to add other health conditions
The eligibility criteria and application process for individuals who responded to the September 11, 2001, terrorist attacks at the Pentagon and Shanksville, PA, will be developed as soon as possible. As discussed above, this will require additional research and consultation that could not be completed prior to this rulemaking (see Section II.B.).
Rulemaking under the Administrative Procedure Act (APA) generally requires a public notice and comment period and consideration of the submitted comments prior to promulgation of a final rule having the effect of law (5 U.S.C. 553). However, the APA provides for exceptions to its notice and comment procedures when an agency finds that there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. In the case of this interim final rule, we have determined that under 5 U.S.C. 553(b)(B), good cause exists for waiving the notice and comment procedures. For similar reasons, HHS has also determined that good cause exists under 5 U.S.C. 553(d)(3) for this
The James Zadroga 9/11 Health and Compensation Act of 2010 was signed by the President on January 2, 2011. It amended the PHS Act to establish the WTC Health Program, administered by the WTC Program Administrator, and mandated that this program begin on July 1, 2011, just 6 months after enactment.
HHS has determined that interim regulatory provisions are necessary to implement certain provisions of Title XXXIII relating to: (1) The WTC Health Program's ability to ensure that those currently identified responders and survivors who are already receiving care under the previous program continue to receive medical monitoring and treatment benefits without interruption; (2) the WTC Health Program's ability to accept applications from responders beginning July 1, 2011 and survivors shortly thereafter; (3) the right of applicants and enrollees to appeal determinations made by the WTC Health Program; and (4) the guidelines by which WTC-related health conditions are diagnosed and certified. HHS has determined that it is not possible to complete the steps necessary for the usual notice and comment under the APA in time for the WTC Health Program to become effective by July 1, 2011.
There is a strong public interest in ensuring the continuation of monitoring and treatment benefits for those responders and survivors who were previously receiving such care. Congress has also expressed the need for ensuring the continuation of monitoring and treatment (Title XXXIII, § 3305(b)(1)(C)). In addition, there is an immediate need to initiate the process to continue to enroll those who responded to this nation's worst terrorist attacks and were harmed in the performance of their duties. These concerns are clearly reflected in the Congressional mandate to swiftly implement this program. It is especially important that currently identified responders and survivors who will be transferring to the new WTC Health Program be provided prompt guidance on how it will operate.
For similar reasons, HHS is making this interim final rule effective immediately. In making this determination, we have balanced the need for an immediately-effective rule in order to allow for continued treatment and care for responders and survivors against fairness considerations and the needs of affected parties to have time to adjust to the rule's requirements.
While developing this interim rule, HHS reached out to the affected community through a public meeting (76 FR 7862, February 11, 2011), a request for comments on the implementation of Title XXXIII of the PHS Act (76 FR 12360, March 7, 2011), and other outreach efforts to interested parties. Although HHS is adopting this rule on an interim final basis, we request public comment on this rule. After full consideration of public comments, HHS will work as expeditiously as possible to publish a final rule with any necessary changes.
The section-by-section summaries provided below describe the components of the WTC Health Program for which the WTC Program Administrator has been delegated authority by the Secretary of HHS, under Title XXXIII. The components implemented here include: enrollment of WTC responders; certification of screening-eligible or certified-eligible survivors; and payment for initial health evaluation, monitoring, and treatment of covered individuals. Certain paragraphs are reserved for provisions that will be promulgated by notice-and-comment rulemaking at such time as is determined by the WTC Program Administrator.
This section of the regulation includes definitions for the principal terms used in part 88. It includes terms specifically defined in Title XXXIII.
The “WTC Program Administrator” is defined, for purposes of this regulation, as the Director of the National Institute for Occupational Safety and Health or his or her designee.
“WTC responder,” “screening-eligible survivor,” and “certified-eligible survivor,” refer to individuals who are found to be eligible to participate in certain aspects of the WTC Health Program. “WTC responder” is a term defined in Title XXXIII. It is used to refer not only to people who worked or volunteered in rescue, recovery, and clean-up at the site of the terrorist attacks in New York City but also to those individuals who participated in those activities at the sites in Shanksville, PA and the Pentagon. “Screening-eligible survivors” are individuals who meet the initial eligibility requirements found in § 88.8 and are thus approved to have an initial health evaluation. “Certified-eligible survivors” are individuals who have at least one WTC-related health condition for which he or she qualified for treatment benefits and follow-up monitoring services.
The terms “list of WTC-related health conditions,” and “WTC-related health condition” refer to those conditions specifically designated in Title XXXIII and to any future conditions that may be added to that list by the WTC Program Administrator in subsequent rulemakings. A “health condition medically associated with a WTC-related health condition” is a condition that results from the treatment of a condition on the list of WTC-related health conditions or from the natural progression of one of those conditions.
“Clinical Centers of Excellence” and the “nationwide provider network” are the medical providers meeting specified statutory requirements and are affiliated with the WTC Health Program by contract.
“Terrorist watch list” is included to incorporate the statutory requirement that no individual who is determined to be a positive match to the watch list maintained by the Federal government shall qualify to become a WTC responder or screening-eligible or certified-eligible survivor. The PHS Act inadvertently identifies the watch list as being maintained by the Department of Homeland Security; the watch list is in fact maintained by the Terrorist Screening Center of the Federal Bureau of Investigation, Department of Justice.
Paragraph (a) of this section establishes that an enrolled WTC responder, a screening-eligible survivor, or a certified-eligible survivor may designate one person to represent their interests related to applying to or seeking treatment from the WTC Health
This section restates the eligibility criteria, as outlined in Title XXXIII, § 3311 of the PHS Act, for WTC responders who have received medical monitoring and treatment benefits from the MMTP program. Under § 88.3(a), responders who have been identified as eligible for program benefits prior to July 1, 2011, by the MMTP will be automatically enrolled in the WTC Health Program. These individuals are not required to submit an application for enrollment. As required by statute, an individual who meets the eligibility criteria under (a) of this section is not qualified to enroll in the WTC Health Program if the individual is determined to be a positive match to the terrorist watch list.
The eligibility criteria in § 88.4 apply to those firefighters, law enforcement officers, certain employees of the Office of the Chief Medical Examiner of New York City, Port Authority Trans-Hudson Corporation Tunnel Workers, vehicle-maintenance workers, and other rescue, recovery, and cleanup workers not previously identified as eligible under the MMTP. New applicants will be considered for enrollment according to the criteria provided in paragraph(a), which describes individuals who conducted rescue, recovery, and cleanup at the World Trade Center sites (including Ground Zero, the Staten Island Landfill, or the New York City Chief Medical Examiner's Office), for specific lengths of time during the dates specified.
Paragraphs (b) and (c) are reserved for eligibility criteria for responders to the September 11, 2001, terrorist attack sites in Shanksville, PA and at the Pentagon. Paragraph (d) is reserved for any modified eligibility criteria that may be developed in the future.
Paragraph (e) states that the WTC Program Administrator will keep a list of enrolled WTC responders.
This section informs applicants who believe they meet the eligibility criteria for a WTC responder how to apply for enrollment in the WTC Health Program. The provisions of this section require that the individual submit an application and provide evidence of eligibility under the provisions of § 88.4. The applicant must provide documentary evidence of his or her employment and type of work activity during the rescue, recovery, and debris cleanup periods after the terrorist attacks. The WTC Health Program will accept a pay stub, official personnel roster, site credentials or other similar documents to establish that the applicant meets the eligibility criteria. If no documentation is submitted with the application, the applicant must explain how he or she attempted to find documentation and why he or she was unsuccessful. The application must be signed by the applicant, under penalty of perjury. An applicant who knowingly provides false information may be subject to fines and criminal penalties under 18 U.S.C. 1001 and 18 U.S.C. 1621.
This section explains how and when the WTC Program Administrator will promptly notify the applicant of the enrollment decision. The WTC Program Administrator will evaluate applications on a first-come, first-served basis; applicants will be promptly notified if there are any deficiencies in the application or supporting materials.
An applicant will be denied enrollment in the Program if he or she does not meet the eligibility criteria in § 88.4; if the numerical limitations established by Congress are met, or the WTC Program Administrator determines that funds are insufficient to continue accepting new enrollees into the Program; or if the individual is determined to be a positive match to the terrorist watch list maintained by the Federal government. Individuals denied enrollment because of the numerical limitation will be placed on a waitlist, and notified promptly when they are removed from the waitlist and enrolled in the Program.
Title XXXIII expressly states that the total number of newly-enrolled WTC responders “shall not exceed 25,000 at any time,” and similarly limits the total number of new certified-eligible survivors to 25,000 (§ 3311(a)(4), § 3321(a)(3)). The WTC Program Administrator is authorized to limit enrollment to a number of WTC responders and certified-eligible survivors that is less than the limit set by Congress. That determination must be based on the best available information and on the amount available funding necessary to provide treatment and monitoring benefits to all individuals who are enrolled in the program.
The qualified applicant will be notified in writing no later than 60 days after the application date. An applicant who is found ineligible for enrollment will be provided an explanation, as appropriate for that determination, and given the opportunity to appeal.
This section establishes that survivors who have been identified as eligible for medical treatment and monitoring benefits by the WTC EHC Community Program as of January 2, 2011, will be automatically enrolled in the WTC Health Program. These individuals are not required to submit an application for enrollment. As required by Title XXXIII of the PHS Act, an individual who meets the eligibility criteria under (a) of this section is not qualified to enroll in the WTC Health Program if the individual is determined to be a positive match to the terrorist watch list.
This section restates the eligibility criteria for screening-eligible survivors established in Title XXXIII of the PHS Act. Individuals who wish to apply for benefits under the WTC Health Program may do so beginning on July 1, 2011.
New applicants to the WTC Health Program will be considered for status as a screening-eligible survivor according to the criteria provided in (a), which describes an individual who is not a WTC responder, who claims symptoms of a WTC-related health condition, and who is not an individual identified in § 88.7. Individuals who would be eligible for an initial health evaluation were, during the dates and durations specified, either present in the dust cloud; worked, lived, or attended school or daycare in the New York City disaster area; performed cleanup or maintenance work in the New York City disaster area; received a grant from the Lower Manhattan Development Corporation Residential Grant Program for a residence he or she leased or owned and lived in; or was employed in the
Paragraph (b) explains that screening-eligible survivors can become certified-eligible survivors by obtaining an initial health evaluation, provided by the WTC Health Program. If the exam results in a physician's diagnosis of a WTC-related health condition, the WTC Program Administrator may certify that condition. In that case, the survivor will be considered certified-eligible.
This section informs applicants who believe they meet the eligibility criteria for a WTC survivor how to apply for screening-eligible status in the WTC Health Program. The provisions of this section require that the individual submit an application and provide documentation of his or her presence, residence, or employment in the New York City disaster area. The WTC Health Program will accept various forms of proof of presence, residence, or work activity including a written statement, under penalty of perjury, from the applicant or the applicant's employer. An applicant who is unable to submit any required documentation must instead offer a written explanation of what the individual did to try to find proof of presence, residence, or work activity and why he or she was unsuccessful. The application will be signed under penalty of perjury. Any applicant who knowingly supplies false information may be subject to fines and criminal prosecution under 18 U.S.C. 1001 and 18 U.S.C. 1621. As required by Title XXXIII, § 3321(a)(1)(A)(ii), the applicant would also be required to claim symptoms of a WTC-related health condition. A WTC-related health condition is defined as a health condition associated with exposure to adverse conditions resulting from the September 11, 2001, terrorist attacks, and identified in Title XXXIII of the PHS Act and in § 88.1. Paragraph (b) explains that an individual is not required to submit an additional application to become certified-eligible.
This section explains how and when the WTC Program Administrator will notify the applicant of the decision to enroll the individual as a screening-eligible or certified-eligible survivor. The WTC Program Administrator will evaluate applications for screening-eligible status on a first-come, first-served basis; applicants will be promptly notified if there are any deficiencies in the application or supporting materials.
An applicant will be denied enrollment in the Program if he or she does not meet the eligibility criteria for screening-eligible survivors in § 88.8; if the numerical limitations established by Congress are met, or the WTC Program Administrator determines that funds are insufficient to continue accepting new screening-eligible or certified-eligible survivors into the Program; or if the individual is determined to be a positive match to the terrorist watch list maintained by the Federal government. Individuals denied screening-eligible status because of the numerical limitation on certified-eligible survivors will be placed on a waitlist and notified promptly when they are removed from the waitlist and deemed screening-eligible.
The qualified screening-eligible status applicant will be notified in writing no later than 60 days after the application date. An applicant who is found ineligible for enrollment will be provided an explanation, as appropriate for that determination, and given the opportunity to appeal.
Paragraph (d) explains that a screening-eligible survivor will receive an initial health evaluation from a WTC Health Program Clinical Center of Excellence or a member of the nationwide provider network to determine if the individual has a WTC-related health condition. While the WTC Health Program will offer only one initial health evaluation, nothing in this rule will prohibit the screening-eligible survivor from requesting and paying for additional health evaluations.
This section also establishes that the screening-eligible survivor may be denied certified-eligible status if the individual does not have a diagnosed WTC-related health condition or if the WTC Program Administrator does not find that the physician's determination sufficiently establishes the relationship between the individual's exposure to the conditions resulting from the September 11, 2001, terrorist attacks and the health condition being claimed. The screening-eligible survivor may also be denied certified-eligible status if the numerical limitations established by Congress are met, or the WTC Program Administrator determines that funds are insufficient to continue accepting new certified-eligible survivors into the Program; or if the individual is determined to be a positive match to the terrorist watch list maintained by the Federal government. Individuals denied enrollment because of the numerical limitation will be placed on a waitlist and notified promptly when they are removed from the waitlist and deemed certified-eligible.
The newly certified-eligible survivor will be notified in writing. A screening-eligible survivor who is found ineligible for certified-eligible status will be provided an explanation, as appropriate for that determination, and given the opportunity to appeal.
This section establishes procedures for the appeal of a WTC Program Administrator's decision not to enroll an individual who believes he or she meets the eligibility criteria for enrollment as a WTC responder or screening-eligible survivor. The individual or his or her designated representative may appeal the decision in writing within 60 days of the decision. The appeal must contain the reasons the individual believes the decision is incorrect, and may also include relevant information that was not previously considered by the WTC Program Administrator. If the individual is denied because his or her name is determined to be a positive match to the terrorist watch list, the appeal will be forwarded to the appropriate Federal agency. Upon receipt and review of the appeal, the WTC Program Administrator will designate the NIOSH Associate Director for Science, a Federal official who is independent of the Program, to review the appeal and make a final decision on the matter. Status as a certified-eligible survivor is predicated on certification of a WTC-related health condition; appeal of a WTC Program Administrator denial of status as a certified-eligible survivor will be available only through the appeal process outlined in § 88.15.
This section establishes the basis for a determination that an enrolled WTC responder or survivor has a health condition that can be certified and covered by the WTC Health Program. Paragraph (a) requires that a WTC Health Program physician promptly send his or her diagnosis to the WTC Program Administrator. The physician's diagnosis must include information establishing that the September 11, 2001, terrorist attacks were substantially likely to be a significant factor in aggravating, contributing to or causing the condition being claimed for
This section establishes that the WTC Program Administrator will promptly assess the diagnosis submitted by the physician pursuant to § 88.12. If the WTC Program Administrator determines that a diagnosed condition is a WTC-related health condition (paragraph (a)) or a health condition medically associated with a WTC-related health condition (paragraph (b)), the condition will be certified as eligible for coverage under the WTC Health Program. If the WTC Program Administrator determines that the condition is neither a WTC-related health condition nor a health condition medically associated with a WTC-related health condition, the applicant will be notified in writing. The WTC responder or the screening-eligible or certified-eligible survivor may appeal the decision pursuant to the process in § 88.15. Paragraph (c) establishes that prior authorization for treatment must be received from the WTC Program Administrator while certification of a WTC-related health condition or a health condition medically associated with a WTC-related health condition is pending, unless treatment is necessary for a medical emergency. As established by § 88.16(a)(1), the provider will be reimbursed only for treatment of a certified WTC-related health condition or a health condition medically associated with a WTC-related health condition.
This section establishes the standard for determining whether the treatment for a WTC-related health condition or a health condition medically associated with a WTC-related health condition is medically necessary. Medically necessary treatment is reasonable and appropriate, and is based on scientific evidence, professional standards of care, expert opinion, or other relevant information, and is in accordance with medical treatment protocols developed by the Data Centers and approved by the WTC Program Administrator. Treatment protocols developed using current medical information from previously established guidelines from both national professional standards of care and program-specific expertise will be used until the Data Centers are operational and are able to create a Program-wide, unified operations manual.
This section explains that a WTC responder, a screening-eligible survivor denied status as certified-eligible, a certified-eligible survivor, or a designated representative may appeal the WTC Program Administrator's decision not to certify the health condition or not to authorize treatment for a certified WTC-related health condition or health condition medically associated with a WTC-related health condition.
The individual or his or her designated representative may appeal the decision in writing within 60 calendar days of the decision. The appeal must be in writing and describe why the individual believes the WTC Program Administrator's initial determination not to certify the condition or authorize treatment was in error. Pursuant to paragraph (b)(1), the WTC Program Administrator will appoint the NIOSH Associate Director for Science, a Federal official independent of the WTC Health Program, who may convene one or more qualified experts to review the WTC Program Administrator's initial determination. The expert(s) will conduct a review of the documentation available at the time of the initial determination and submit the findings to the Federal official. The Federal official will review the expert findings and make a final determination which will not be further considered upon request of the WTC responder, screening-eligible or certified-eligible survivor, or designated representative.
This section establishes that the Clinical Center of Excellence or member of the nationwide provider network will be reimbursed by the WTC Health Program for the cost of medical treatment and outpatient prescription pharmaceuticals, and that a WTC responder or certified-eligible survivor may be reimbursed for certain transportation expenses. Under section 3331 of the PHS Act, subject to certain limitations pertinent only to workers' compensation programs and other plans under which New York City is obligated to pay, the WTC Program Administrator may reduce or recoup payment for treatment of a WTC-related health condition if it is determined that the individual's condition is work related, and the individual is covered by a workers' compensation or similar work-related injury or illness plan. For an individual who has a WTC-related health condition that is not work-related and who has coverage under a public or private health insurance plan, the WTC Program Administrator may also take this insurance coverage into account in determining payment for treatment under Title XXXIII of the PHS Act.
Paragraph (a)(1) establishes that payment for medical treatment will be based on the rates set by the Office of Workers' Compensation Programs to administer the Federal Employees Compensation Act (FECA, 5 U.S.C. 8101
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This rulemaking has been determined to be an “economically significant” regulatory action within the meaning of E.O. 12866. Providing medical monitoring and treatment through the WTC Health Program administered pursuant to this regulatory action will have an annual effect on the economy of $100 million or more.
Based on the factors and assumptions set forth below, HHS estimates the aggregate cost of medical monitoring and treatment to be provided and administrative expenses of this regulatory action, which partially implements Title XXXIII, in millions of dollars as presented in Table 1, below. The table represents estimates, and is subject to change based on actual expenditures and future data analyses. These costs represent high and low estimates; actual costs and future estimates may be significantly below or above the estimated ranges.
HHS's estimate of the costs of medical monitoring and treatment to be provided pursuant to the PHS Act and of the administrative costs of providing this monitoring and treatment is based on data from the WTC programs in operation to date. The current NIOSH WTC Medical Monitoring and Treatment Program and Environmental Health Center Program, referred to below as “current NIOSH WTC programs,” have operated over the past 10 years. As a result, the current NIOSH WTC programs now approximate the starting point of the scope of the WTC Health Program's activities to be established by the PHS Act and implemented by this rule. The data from operational experience to date is the basis by which HHS has estimated costs for administrative activities, medical monitoring and treatment, and estimated related rates of enrollment and certification (respectively) of additional responders and survivors not currently participating in the current NIOSH WTC programs. Since the current NIOSH WTC grants are set to expire in FY 2011, the analyses of WTC Health Program costs (and health benefits) that follow use a low estimate reflecting actual costs associated with maintaining the existing program plus additional administrative activities, and a higher level that assumes a significant increase in enrollment and increase in both administrative costs and other health care costs.
The WTC Health Program expects to enroll the approximately 58,000 New York City responders and survivors who are enrolled in the current NIOSH WTC programs on July 1, 2011. In the high estimates, HHS assumes that up to 1,064 new responders and survivors in the final quarter of FY 2011 will be enrolled, resulting in a total of up to 59,064 enrollees in the WTC Health Program for FY 2011. Over the first full year (FY 2012) of the WTC Health Program within the high estimate, HHS expects up to 4,255 new enrollees associated with the New York City terrorist attack, (3,018 responders and 1,237 survivors). The upper bound of this estimated range is based on the highest annual rates of enrollment over the past three years for responders and survivors, respectively. The lower bound assumes no new enrollment as the majority of responders affected by the WTC attacks have insurance and may not want to change healthcare providers. The actual enrollment is likely to fall within these bounds but is highly uncertain. HHS has not estimated enrollment for the Pentagon or Shanksville, PA populations as this is outside the scope of the rulemaking.
HHS estimates administrative costs ranging between $15,000,000 and $22,500,000 annually (higher start-up costs are projected for 2012), covering program management, enrollment of responders and survivors, certification of WTC-related health conditions in enrolled responders and certified eligible survivors, authorization of medical care, payment services, administration of appeals processes, education and outreach, and administration of the advisory and steering committee specified in the PHS Act. The range of the costs estimated reflects uncertainty associated with levels of activity for enrollment, appeals, the establishment and maintenance of new quality management and administrative data systems, and competitively established costs for contractual administrative services.
Initial health evaluations are estimated to cost between $0 and $59,000 in the final quarter of FY 2011 and between $0 and $2,360,000 over the first full year (FY 2012) of the WTC Health Program, depending on the levels of actual enrollment and average
Annual medical monitoring for responders and survivors is estimated to cost between $8,380,000 and $8,990,000 in the final quarter of FY 2011 for 10,875 responders and survivors and between $33,54,000 and $36,630,000 in FY 2012, the first full year of the WTC Health Program for between 43,500 and 44,298 responders and survivors and to increase with enrollment. This is based on an average cost of between $771 and $827 per patient for a medical monitoring exam. The range of average per patient costs is based on the average costs for patients having received a medical monitoring exam through the current NIOSH WTC programs and accounting for uncertainty in medical care inflation (3.4 percent in 2010) and the range of uncertainty in clinical infrastructure costs (discussed below). Based on participation in the current program, these projections assume 75 percent of responders and survivors will obtain annual monitoring examinations. These examinations are provided in the years following the initial health evaluation, which is why there is a 1-year lag with respect to program enrollment numbers in the number of patients projected to receive these exams each fiscal year.
Medical treatment is estimated to cost between $14,550,000 and $15,890,000 in the final quarter of FY 2011 for between 4,205 and 4,282 responders and survivors and between $58,210,000 and $68,130,000 in the first full year (FY 2012) of the WTC Health Program for between 16,820 and 18,363 responders and survivors and to increase with enrollment. This estimate is based on an average cost in the current NIOSH WTC programs for these services of between $3,461 and $3,710 per patient under treatment and an estimated 29 percent of enrolled participants in current NIOSH WTC programs receiving treatment annually. However, there are current grantees that provide treatment services per patient significantly below this average cost. The range of average per patient costs is based on the average costs for patients having received treatment through the current NIOSH WTC programs and accounting for uncertainty in medical care inflation (3.4 percent in 2010) and the range of uncertainty in clinical infrastructure costs (discussed below).
The initial health evaluation, medical monitoring and treatment cost estimates include infrastructure costs for the Clinical Centers of Excellence, which will provide the medical services. The infrastructure costs are those that the Clinical Centers would need to operate the WTC Health Program that are not covered by FECA, such as the costs for retention of participants, case management, medical review and appeals, benefits counseling, quality management, data transfer, interpreter services, and the development of treatment protocols. Beginning in FY 2012, HHS projects annual infrastructure costs ranging from $15,400,000 to $28,220,000, depending on competitively established contractual costs for operating clinical centers of excellence to carry out the functions described above. These infrastructure costs will be obligated through contracts with the Clinical Centers annually. These costs are included within the initial health evaluation, medical monitoring, and treatment cost estimates but are shown as a non-additive total in Table 2 for the fiscal years 2012-2015, without adjustment for inflation.
HHS has compared the cost estimates it has derived above, based on the actual expenditures of the current NIOSH WTC programs, with estimates prepared by the Congressional Budget Office (CBO) during the legislative process that led to the enactment of Title XXXIII of the PHS Act (Congressional Budget Office, June 25, 2010). CBO used different methods and assumptions to produce its estimates. The purpose of the comparison was to consider further the baselines, assumptions and results of the HHS cost estimates. Excluding costs under Title XXXIII extraneous to this rulemaking, the CBO estimates for the first 5 years are somewhat higher than those of HHS for each full year, but well within a factor of two.
Although many of the details of CBO's methodology are not presented in its report, it appears to HHS that this difference is likely to be driven by the difference in the estimation of the prevalence of WTC-related health conditions among responders and survivors and medical costs for their treatment. CBO based its health care cost estimates on national data summarizing medical expenditures for the health conditions covered by the WTC Health Program, whereas these estimates by HHS are based on actual expenditures in the current NIOSH WTC programs for these conditions. While it is unclear what prevalence of each individual health condition CBO applied to calculate its health care costs, the current actual prevalence of these conditions, to the extent they are receiving monitoring and treatment, is integrated in the HHS estimate.
Enrollment estimates projected by CBO fall within the range of estimates provided in the RIA for this interim final rule. CBO estimated a WTC Health Program enrollment of New York City responders and survivors of 3,750 annually. HHS estimated enrollment of up to 4,255 New York City responders and survivors in FY 2012 as the high range, the first full year, and each year following.
CBO estimated a higher overall prevalence of WTC conditions among responders and survivors than HHS. CBO projected 40 percent of enrollees in the WTC Health Program would develop a WTC-related health condition; HHS cost estimates are based on 29 percent of enrollees in current NIOSH WTC programs currently receiving treatment for one or more WTC-related health conditions in the last 12 months.
The purpose of this examination is to describe generally with illustrative detail the benefits that may be expected to result from this rule in terms of improved health of patients treated through the WTC Health Program.
An assessment of the health benefits for patients treated through the WTC Health Program begins with identifying and estimating the prevalence of health conditions for which participants would be treated under this rule and the numbers of participants to be treated for these health conditions. NIOSH has information on the numbers and proportion of responders and survivors receiving medical treatment in the current NIOSH WTC programs and has projected enrollment rates in the WTC Health Program, as specified in the cost discussion above. This information, and projections of increase associated with new enrollments of responders and survivors in the WTC Health Program, is summarized in Table 3, below, which presents the upper bound annual projections of the total expected population of patients who will be treated under the WTC Health Program. These figures assume that the prevalence of each health condition will be and remain the same across all subgroups among responders and survivors in the WTC Health Program as exists presently for the participants in current NIOSH WTC programs. If Table 3 were also to present the lower bound projections of the expected population of patients who will be treated under the program, assuming there would be no increase in the enrolled population from 2010, the figures for FY 2012-2015 would be approximately seven percent lower than the figures presented for FY 2012.
Based on this prevalence information, HHS has examined the health and quality of life improvements associated with medical treatment of several of the most common conditions in the covered population. The expected health benefits of the WTC Health Program are compared with those expected if there was no program after June 30, 2011. Where HHS has estimated such improvements quantitatively, it has assumed that the condition would continue to be represented among new participants in the WTC Health Program with the same prevalence with which it is occurring in current NIOSH WTC programs, as noted above. Notwithstanding these and other uncertainties discussed in more detail in the limitations section below, HHS finds the following information indicative of the nature and scope of health benefits expected to result from implementation of this rule.
Using the expected number of patients for FY 2011-2015 from Table 3, above, and published information on treatment effectiveness, when possible, a rough estimate of patient increased quality of life attributable to the WTC Health Program is presented for several WTC-related health conditions. HHS used quality of life as a common metric of expected treatment effectiveness for all the conditions assessed. The assessment is based on a series of assumptions and relies on very limited information. As a starting point, HHS assumed that participants in the WTC Health Program will receive medical treatment that follows the New York City Department of Health and Mental Hygiene's “Clinical Guidelines for Adults Exposed to the World Trade Center Disaster” (Guidelines) when possible, along with published information about the effectiveness of specific medical treatment. The Guidelines recommend a coordinated approach to assessing and treating mental and physical health conditions but, as noted above, HHS lacks information identifying the occurrence of specific single or multiple health conditions among the patients of current NIOSH WTC programs. Therefore, HHS assessed the medical treatment of each condition expected to be prevalent in WTC Health Program participants individually. HHS also assumes that patients treated through the WTC Health Program will receive the best care available, based on the assumption that WTC Health Program healthcare providers would be experts in treating WTC-related health conditions, both individually and as syndromes. Given the many unaddressed uncertainties of this assessment, HHS deliberately used methods that would underestimate potential benefits. One general method used for all the health conditions addressed was to assume that all responders and survivors will receive some but not optimal treatment for their conditions in the absence of the WTC Health Program. So the benefits estimated represent the incremental improvement in health patients in the WTC Health Program can expect from receiving the optimal treatment provided by the WTC Centers of Clinical Excellence versus standard treatments that are commonly received outside of this program.
Limitations in deriving health benefits estimates include the following. There is considerable uncertainty involved in the findings described below due to the lack of specificity of the condition information (NIOSH does not have access to condition information in current NIOSH WTC programs by specific International Classification of Diseases codes), the availability of multiple medical treatments for each condition, and limitations of published studies on the effectiveness of the medical treatments available. There are other sources of uncertainty as well. For example, some new participants in the WTC Health Program, if they have not obtained treatment previously, may present in worse health and may benefit less from medical treatment than
The recommended treatment for asthma in the Guidelines is a combination of a daily inhaled corticosteroid (ICS) and a short-acting inhaled bronchodilator. HHS assumes that all patients in the WTC Health Program would be treated accordingly, compared to a hypothetical scenario according to which patients would be treated with a bronchodilator only, and compared the quality of life of these two groups. An alternative would have been to compare the presumed quality of life of WTC Health Program patients to that of untreated patients suffering from asthma. HHS chose the former approach because HHS lacks good quality empirical evidence of the effectiveness of treatment inside or outside WTC Health Program, and because this approach likely results in an underestimate of the true health benefits for these patients. Paltiel
According to the Guidelines, medical treatment similar to that for asthma can be provided for patients suffering from RADS. Using the assumptions described above, HHS estimates this would result in 394 total or 93 annualized undiscounted QALYs gained from treatment of RADS. HHS estimates of positive health impact range from a low of 197 total or 47 annualized undiscounted QALYs to a high of 788 total or 186 annualized undiscounted QALYs, when assuming that half or double the effectiveness of treatment in improving quality of life. Assuming that treating one patient results in 0.029 QALYs gained and discounting future health benefits at 3 and 7 percent, results in 67 total or 92 annualized QALYs and 313 total or 90 annualized QALYs, respectively.
The Guidelines do not address COPD treatment in detail. HHS used information from Briggs
The literature provides some evidence that medical treatment of CRS, similar to what is recommended in the Guidelines, would be as effective as surgery for many levels of severity of CRS.
The Guidelines recommend the use of proton pump inhibitors (PPIs) for 4-8 weeks, followed by maintenance PPI (PPI on demand) to treat GERD. Gerson
One of the treatments for PTSD addressed in the Guidelines is exposure therapy (in combination with medication or other treatment as needed). Nacash
In summary, available information indicates the WTC Health Program is likely to provide substantial improvements in health to responders and survivors. The discounted QALY estimates discussed above and summarized in Table 4 below are illustrative of these benefits. Annualized mid-range estimates for these six health conditions, as well as annualized cost estimates, are provided in Table 5 concluding these analyses of costs and benefits. Table 5 presents the benefits in terms of a range from no effect or benefit to the midrange estimated values of benefit to account for uncertainty regarding the number of WTC health program responders and survivors who might receive the same medical treatments for these conditions using other sources of health insurance coverage.
Under E.O. 13563, HHS is required to “identify and assess available alternatives to direct regulation.” The provisions of this rule are either specifically mandated by the PHS Act to be established by regulation or they establish substantive rights for members of the public, which are issued through notice and comment rulemaking and codified as Federal regulations.
E.O. 13563 also requires HHS to “tailor its regulations to impose the least burden on society,” consistent with the regulatory objectives, and to choose among “alternative regulatory approaches those that maximize net benefits.” However, the PHS Act provides only minor discretion or no discretion to HHS for the most significant provisions of the rule. Title XXXIII of the PHS Act specifies without ambiguity the following major elements: eligibility criteria for responders and certain survivors of the New York City attacks and procedures for their enrollment or certification; an initial list of WTC-related health conditions that may be covered by the Program and criteria and certain procedures for determining whether one or more of these conditions shall be covered for a given responder or survivor; criteria and procedures for determining whether a condition medically associated with a WTC-related health condition shall also be covered for a given responder or survivor; procedures for determining the medical necessity and hence the coverage of specific treatments for covered conditions; the opportunity for responders and survivors to appeal adverse decisions determined by the program regarding their enrollment, coverage for specific health conditions, or coverage of specific medical treatments; and the use of Federal Employee Compensation Act (FECA) reimbursement rates for treatments provided, when applicable. As a result, the very limited discretion granted to HHS by the PHS Act does not provide substantial opportunities for policy choices that would have any significant impact on burdens on society. Similarly, the options for alternative regulatory approaches are minor and can have little or no bearing on maximizing net benefits. However, in accordance with this latter requirement, HHS examined several alternative approaches to specific provisions in this rule for which the PHS Act provides discretion in determining the policy to be established. A summary of the three more substantive of these alternatives follows:
HHS decided not to exclusively rely on documentation because experience in the current NIOSH WTC programs has demonstrated that many responders do not have access to such documentation; this includes many of the unpaid volunteers who were involved in the response effort as well as day laborers and other contingent workers common to the construction industry involved in the site remediation activities. The current NIOSH WTC programs have verified the eligibility of applicants despite this documentary limitation by comparing the specific information provided by an applicant during the application process with the applicant's exposure history obtained during the initial health evaluation. The WTC Health Program will continue to verify the responses provided by individuals on the application form by checking them against the responses given during the exposure assessment. Doing so will allow Program staff to evaluate the veracity of information provided by the individual and thereby assess eligibility. HHS has rejected the specification of a more restrictive documentary requirement for verifying the eligibility of responders, which would exclude responders who meet the statutory criteria for enrollment and is unnecessary for effectively assessing eligibility. HHS invites public comment on the appropriateness of this verification process.
Accordingly, in the medical necessity standard included in this rule, HHS coupled the two salient features of other standards, relying on professional standards of care and scientific evidence, as well as the option of relying on expert opinion, with the requirement that treatments adhere to treatment protocols approved by the WTC Program Administrator, as specified in Title XXXIII of the PHS Act. HHS believes that this standard will adequately support the WTC Program Administrator to effectively and efficiently manage determinations of medical necessity in this Program and ensure that responders and survivors receive necessary medical treatments. HHS invites public comment on the appropriateness of this standard and whether any additional elements or criteria should be considered.
Accordingly, HHS has decided it would adopt Medicare payment rates, which are updated periodically and cover all U.S. localities nationally. HHS believes this is optimal for several reasons: (1) The rates are promulgated on the basis of extensive expert analysis, which ensures competence in the rate setting; (2) the rates are already widely applied in every locality throughout the nation and hence, their application for this relatively minor use is unlikely to significantly impact any health care organization involved in this program; and (3) the rates meet the statutory requirement under the PHS Act of not exceeding rates paid by the Department of Labor's Office of Workers' Compensation Programs. HHS invites public comment on the appropriateness of this approach and whether any additional possibilities should be considered.
CDC has determined that this interim final rule contains information collection and record keeping requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3420). A description of these provisions is given below with an estimate of the annual reporting burden. Included in the estimate of the annual reporting burden is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information. In compliance with the requirement of § 3506(c)(2)(A) of the PRA for opportunity for public comment on proposed data collection projects, CDC will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-5960 and send comments to Daniel Holcomb, CDC Reports Clearance Officer, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an e-mail to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information shall have practical utility; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents. Written comments should be received within 60 days of this notice.
This interim final rule contains the data collection requirements that have been approved by OMB through their emergency clearance process under OMB Control Number 0920-0891, with an expiration date of December 31, 2011. The provisions in the interim final rule that contain data collection requirements are:
Two distinct but equivalent application forms will be available, one appropriate to members of the Fire Department, City of New York (FDNY) (and their eligible family members), and a second appropriate to members of specified law enforcement organizations and certain other rescue, recovery, and cleanup workers.
Data collection activities in § 88.12, “Physician's Determination of WTC-Related Health Conditions,” do not fall under the PRA because they are within one of the ten categories of inquiry generally not deemed to constitute information (5 CFR 1320.3(h)(1)-(10)). Medical diagnosis and treatment, which falls under § 88.12 and § 88.14 of this part, includes an initial and follow-up clinical examinations designed to detect health disorders, as well as direct treatment of clinical disorders to improve or prevent progression of the disorders. Results of clinical examinations and treatment will be used in connection with research to understand the disease processes and to develop better prophylactic procedures for healthcare of the served population. Burden associated with epidemiologic and other research regarding certain health conditions related to the September 11, 2001, terrorist attacks is not contemplated as part of this rulemaking.
Data reporting from physicians to the WTC Program Administrator under § 88.12 is subject to the PRA. Physicians will report this data electronically and on paper. HHS expects that 2,300 program physicians will spend approximately 30 minutes extracting the required elements from the patient records and transmitting them to NIOSH, and that approximately 32,361 diagnoses, or 14 per provider, will be reported to the WTC Health Program each year.
Standard U.S. Treasury form SF 3881 (OMB No. 1510-0056) will be used to gather necessary information from Program healthcare providers so that they can be reimbursed directly from the Treasury Department. HHS expects that approximately 200 providers and provider groups will submit SF 3881, which is estimated to take 15 minutes to complete. Providers will submit only one SF 3881.
Pharmacies will electronically transmit reimbursement claims to the WTC Health Program. HHS estimates that 150 pharmacies will submit reimbursement claims for 39,192 prescriptions per year, or 261 per pharmacy; we estimate that each submission will take 1 minute.
WTC responders or certified eligible survivors who travel more than 250 miles to a nationwide network provider for medically necessary treatment may be provided necessary and reasonable transportation and other expenses. These individuals may submit a travel refund request form, which should take respondents 10 minutes. HHS expects no more than 10 claims per year.
The reporting and record keeping requirements contained in these regulations are used by NIOSH to carry out its responsibilities related to the implementation of the WTC Health Program as required by law. The burdens imposed have been reduced to the absolute minimum considered necessary to permit NIOSH to carry out the purpose of the legislation,
This new information collection request is for 19,111 burden hours.
As required by Congress under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
This rule has been drafted and reviewed in accordance with Executive Order 12988, “Civil Justice Reform,” and will not unduly burden the Federal court system. This rule has been reviewed carefully to eliminate drafting errors and ambiguities.
The Department has reviewed this rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” The rule does 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.”
In accordance with Executive Order 13045, HHS has evaluated the environmental health and safety effects of this rule on children. HHS has determined that the rule would have no environmental health and safety effect on children.
In accordance with Executive Order 13211, HHS has evaluated the effects of this rule on energy supply, distribution or use, and has determined that the rule will not have a significant adverse effect.
Under Public Law 111-274 (October 13, 2010), executive Departments and Agencies are required to use plain language in documents that explain to the public how to comply with a requirement the Federal Government administers or enforces. HHS has attempted to use plain language in promulgating this rule consistent with the Federal Plain Writing Act guidelines.
Aerodigestive disorders, Appeal procedures, Health care, Mental health conditions, Musculoskeletal disorders, Respiratory and pulmonary diseases.
For the reasons discussed in the preamble, the Department of Health and Human Services adds 42 CFR Part 88 as follows:
42 U.S.C. 300mm-300mm-61, Pub. L. 111-347, 124 Stat. 3623.
(1) An individual who has been identified as eligible for medical treatment and monitoring as of January 2, 2011; or
(2) A screening-eligible WTC survivor who the WTC Program Administrator certifies to be eligible for follow-up
(1) Uses an integrated, centralized health care provider approach to create a comprehensive suite of health services that are accessible to enrolled WTC responders, screening-eligible WTC survivors, or certified-eligible survivors;
(2) Has experience in caring for WTC responders or screening-eligible and certified-eligible WTC survivors;
(3) Employs health care provider staff with expertise that includes, at a minimum, occupational medicine, environmental medicine, trauma-related psychiatry and psychology, and social services counseling; and
(4) Meets such other requirements as specified by the WTC Program Administrator.
(1) Receive, analyze, and report to the WTC Program Administrator on data that have been collected and reported to the Data Center by the corresponding Clinical Center(s) of Excellence;
(2) Develop monitoring, initial health evaluation, and treatment protocols with respect to WTC-related health conditions;
(3) Coordinate the outreach activities of the corresponding Clinical Centers of Excellence;
(4) Establish criteria for credentialing of medical providers participating in the nationwide provider network;
(5) Coordinate and administer the activities of the WTC Health Program Steering Committees; and
(6) Meet periodically with the corresponding Clinical Center(s) of Excellence to obtain input on the analysis and reporting of data and on development of monitoring, initial health evaluation, and treatment protocols.
(1) Aerodigestive disorders:
(i) Interstitial lung disease.
(ii) Chronic respiratory disorder [fumes/vapors].
(iii) Asthma.
(iv) Reactive airways dysfunction syndrome [RADS].
(v) WTC-exacerbated chronic obstructive pulmonary disease [COPD].
(vi) Chronic cough syndrome.
(vii) Upper airway hyperactivity.
(viii) Chronic rhinosinusitis.
(ix) Chronic nasopharyngitis.
(x) Chronic laryngitis.
(xi) Gastroesophageal reflux disorder [GERD].
(xii) Sleep apnea exacerbated by or related to a condition described in preceding paragraphs (1)(i) through (1)(xi)of this definition.
(2) Mental health conditions:
(i) Posttraumatic stress disorder.
(ii) Major depressive disorder.
(iii) Panic disorder.
(iv) Generalized anxiety disorder.
(v) Anxiety disorder [not otherwise specified].
(vi) Depression [not otherwise specified].
(vii) Acute stress disorder.
(viii) Dysthymic disorder.
(ix) Adjustment disorder.
(x) Substance abuse.
(3) Musculoskeletal disorders for those WTC responders who received any treatment for a World Trade Center (WTC)-related musculoskeletal disorder (as defined in this section) on or before September 11, 2003:
(i) Low back pain.
(ii) Carpal tunnel syndrome [CTS].
(iii) Other musculoskeletal disorders.
(a) Designated representative. (1) An applicant, enrolled responder, screening-eligible survivor, or certified-eligible survivor may appoint one individual to represent his or her interests under the WTC Health Program. The appointment must be in writing.
(2) There may be only one representative at any time. After one representative has been properly appointed, the WTC Health Program will not recognize another individual as a representative until the appointment of the first designated representative is withdrawn.
(3) A properly appointed representative who is recognized by the WTC Health Program may make a request or give direction to the WTC Health Program regarding the eligibility or certification determinations under the WTC Health Program, including appeals. Any notice requirement contained in this part or in the Act is fully satisfied if sent to the designated representative.
(4) An enrolled responder, screening-eligible survivor, or certified-eligible survivor may authorize any individual to represent him or her in regard to the WTC Health Program, unless that individual's service as a representative would violate any applicable provision of law (such as 18 U.S.C. 205 and 208).
(5) A Federal employee may act as a representative only on behalf of the individuals specified in, and in the manner permitted by, 18 U.S.C. 203 and 18 U.S.C. 205.
(6) If a screening-eligible or certified-eligible survivor is a minor, a parent or guardian may act on his or her behalf.
(b) [Reserved]
(a) Responders who were identified as eligible for monitoring and treatment under the arrangements as in effect on January 2, 2011, between NIOSH and the consortium administered by Mount Sinai School of Medicine in New York City and the Fire Department, City of New York, are enrolled in the WTC Health Program.
(1) No individual who is determined to be a positive match to the terrorist watch list maintained by the Federal government will be considered to be enrolled in the WTC Health Program.
(2) [Reserved]
(b) WTC Responders identified as enrolled under this section are not required to submit an application to the WTC Health Program.
(a) Responders to the New York City disaster area who have not been previously identified as eligible as provided for under § 88.3 of this part may apply for enrollment in the WTC Health Program on or after July 1, 2011. Such individuals must meet the criteria in one of the following categories to be considered eligible for enrollment:
(1) Firefighters and related personnel must meet the criteria specified in paragraph (a)(1)(i) or (ii) of this section:
(i) The individual was an active or retired member of the Fire Department, City of New York (whether firefighter or emergency personnel), and participated at least 1 day in the rescue and recovery effort at any of the former World Trade Center sites (including Ground Zero, the Staten Island Landfill, or the New York City Chief Medical Examiner's Office), during the period beginning on September 11, 2001, and ending on July 31, 2002; or
(ii) The individual is:
(A) A surviving immediate family member of an individual who was an active or retired member of the Fire Department, City of New York (whether firefighter or emergency personnel), who was killed at Ground Zero on September 11, 2001, and
(B) Received any treatment for a WTC-related mental health condition on or before September 1, 2008.
(2) Law enforcement officers and WTC rescue, recovery, and cleanup workers must meet the criteria specified in paragraph (a)(2)(i) or (ii) of this section:
(i) The individual worked or volunteered onsite in rescue, recovery, debris cleanup, or related support services in lower Manhattan (south of Canal Street), the Staten Island Landfill, or the barge loading piers, for at least:
(A) 4 hours during the period beginning on September 11, 2001, and ending on September 14, 2001; or
(B) 24 hours during the period beginning on September 11, 2001, and ending on September 30, 2001; or
(C) 80 hours during the period beginning on September 11, 2001, and ending on July 31, 2002.
(ii) The individual was an active or retired member of the New York City Police Department or an active or retired member of the Port Authority Police of the Port Authority of New York and New Jersey who participated onsite in rescue, recovery, debris cleanup, or related support services, for at least:
(A) 4 hours during the period beginning September 11, 2001, and ending on September 14, 2001, in lower Manhattan (south of Canal Street), including Ground Zero, the Staten Island Landfill, or the barge loading piers; or
(B) 1 day beginning on September 11, 2001, and ending on July 31, 2002, at Ground Zero, the Staten Island Landfill, or the barge loading piers; or
(C) 24 hours during the period beginning on September 11, 2001, and ending on September 30, 2001, in lower Manhattan (south of Canal Street); or
(D) 80 hours during the period beginning on September 11, 2001, and ending on July 31, 2002, in lower Manhattan (south of Canal Street).
(3) Office of the Chief Medical Examiner of New York City employee. The individual was an employee of the Office of the Chief Medical Examiner of New York City involved in the examination and handling of human remains from the WTC attacks, or other morgue worker who performed similar post-September 11 functions for such Office staff, during the period beginning on September 11, 2001, and ending on July 31, 2002.
(4) Port Authority Trans-Hudson Corporation Tunnel worker. The individual was a worker in the Port Authority Trans-Hudson Corporation Tunnel for at least 24 hours during the period beginning on February 1, 2002, and ending on July 1, 2002.
(5) Vehicle-maintenance worker. The individual was a vehicle-maintenance worker who was exposed to debris from the former World Trade Center while retrieving, driving, cleaning, repairing, and maintaining vehicles contaminated by airborne toxins from the September 11, 2001, terrorist attacks; and conducted such work for at least 1 day during the period beginning on September 11, 2001, and ending on July 31, 2002.
(b) [Reserved]
(c) [Reserved]
(d) [Reserved]
(e) The WTC Program Administrator will maintain a list of WTC responders.
(a) An application to the WTC Health Program based on the criteria in § 88.4 shall be submitted with documentation of the applicant's employment affiliation (if relevant) and work activity during the dates, times, and locations specified in § 88.4.
(1) Documentation may include but is not limited to a pay stub; official personnel roster; a written statement, under penalty of perjury by an employer; site credentials; or similar documentation.
(2) An applicant who is unable to submit the required documentation must instead offer a written explanation of how he or she tried to obtain proof of presence, residence, or work activity and why the attempt was unsuccessful. The applicant shall attest, under penalty of perjury, that he or she meets the criteria specified in § 88.4.
(b) The application and supporting documentation shall be submitted to the WTC Program Administrator for consideration.
(a) The WTC Program Administrator will prioritize applications in the order in which they are received.
(b) The WTC Program Administrator will determine if the applicant meets the eligibility criteria provided in § 88.4 and notify the applicant in writing (or by e-mail if an e-mail address is provided by the applicant) of any deficiencies in the application or the supporting documentation.
(c) Denial of enrollment.
(1) The WTC Program Administrator will deny enrollment if the applicant fails to meet the applicable eligibility requirements.
(2) The WTC Program Administrator may deny enrollment of a responder who is otherwise eligible and qualified if the WTC Program Administrator determines that the Act's numerical limitations for newly enrolled responders have been met.
(i) No more than 25,000 WTC responders, other than those enrolled pursuant to § 88.3 and § 88.4(a)(1)(ii), may be enrolled at any time.
(A) The WTC Program Administrator may determine, based on the best available evidence, that sufficient funds are available under the WTC Health Program Fund to provide treatment and monitoring only for individuals who are already enrolled as WTC responders at that time.
(B) [Reserved]
(ii) [Reserved]
(3) No individual who is determined to be a positive match to the terrorist watch list maintained by the Federal government may qualify to be enrolled or determined to be eligible for the WTC Health Program.
(d) Notification of enrollment determination.
(1) Applicants who meet the current eligibility criteria for WTC responders in § 88.4 and are qualified shall be notified in writing by the WTC Program Administrator of the enrollment decision within 60 calendar days of the date of receipt of the application.
(2) If the WTC Program Administrator determines that an applicant is denied enrollment, the applicant will be notified in writing and provided an explanation, as appropriate for the determination to deny enrollment. The notification will inform the applicant of the right to appeal the initial denial of eligibility and provide instructions on how to file an appeal.
(a) Survivors who have been identified as eligible for medical treatment and monitoring as of January 2, 2011, are considered certified-eligible in the WTC Health Program.
(1) No individual who is determined to be a positive match to the terrorist watch list maintained by the Federal government will be considered to be a certified-eligible survivor in the WTC Health Program.
(2) [Reserved]
(b) Survivors identified as certified-eligible under this section are not required to submit an application to the WTC Health Program.
(a)
(1) The WTC Program Administrator will determine an applicant's eligibility for an initial health evaluation based on one of the following criteria:
(i) The screening applicant was present in the dust or dust cloud in the New York City disaster area on September 11, 2001.
(ii) The screening applicant worked, resided, or attended school, childcare, or adult daycare in the New York City disaster area, for at least:
(A) 4 days during the period beginning on September 11, 2001, and ending on January 10, 2002; or
(B) 30 days during the period beginning on September 11, 2001, and ending on July 31, 2002.
(iii) The screening applicant worked as a cleanup worker or performed maintenance work in the New York City disaster area during the period beginning on September 11, 2001, and ending on January 10, 2002, and had extensive exposure to WTC dust as a result of such work.
(iv) The screening applicant:
(A) Was deemed eligible to receive a grant from the Lower Manhattan Development Corporation Residential Grant Program;
(B) Possessed a lease for a residence or purchased a residence in the New York City disaster area; and
(C) Resided in such residence during the period beginning on September 11, 2001, and ending on May 31, 2003.
(v) The screening applicant is an individual whose place of employment—
(A) At any time during the period beginning on September 11, 2001, and ending on May 31, 2003, was in the New York City disaster area; and
(B) Was deemed eligible to receive a grant from the Lower Manhattan Development Corporation WTC Small Firms Attraction and Retention Act program or other government incentive program designed to revitalize the lower Manhattan economy after the September 11, 2001, terrorist attacks.
(2) [Reserved]
(b)
(c) The WTC Program Administrator will maintain a list of screening-eligible and certified-eligible survivors.
(a)
(1) Documentation may include but is not limited to: Proof of residence, such as a lease or utility bill; attendance roster at a school or daycare; or pay stub, other employment documentation, or written statement, under penalty of perjury, by an employer indicating employment location during the relevant time period, or similar documentation. The applicant shall also attest to symptoms of a WTC-related health condition.
(2) An applicant who is unable to submit the required documentation must instead offer a written explanation of how he or she tried to obtain proof of location, presence, or residence, and/or work activity and why the attempt was unsuccessful. The applicant shall attest, under penalty of perjury, that he or she meets the criteria specified in § 88.8.
(b)
(a)
(b)
(2) The WTC Program Administrator may deny screening-eligible survivor status if the numerical limitation on certified-eligible survivors in § 88.10(f)(2) has been met.
(3) No individual who is determined to be a positive match to the terrorist watch list maintained by the Federal government, may qualify to be a screening-eligible survivor in the WTC Health Program.
(c)
(2) If the WTC Program Administrator determines that an applicant is denied enrollment, the applicant shall be notified in writing and provided an explanation, as appropriate for the determination to deny enrollment. The notification shall inform the applicant of the right to appeal the initial denial of eligibility and provide instructions on how to file an appeal.
(d)
(2) The WTC Health Program will provide only one initial health evaluation per screening-eligible survivor. The individual may request additional health evaluations at his or her own expense.
(3) If the physician diagnoses the screening-eligible survivor with a WTC-related health condition, the physician shall promptly transmit to the WTC Program Administrator his or her determination, consistent with the requirements of § 88.12(a).
(e)
(2) The WTC Program Administrator will review the physician's determination, render a decision regarding certification of the individual's diagnosed WTC-related health condition, and provide written notice of the decision and the reason for the decision.
(3) If the individual's condition is certified as a WTC-related health condition, the individual will also be certified as a certified-eligible survivor.
(f)
(2) The WTC Program Administrator may deny certified-eligible survivor status of an otherwise eligible and qualified screening-eligible survivor if the WTC Program Administrator determines that the Act's numerical limitations for certified-eligible survivors have been met.
(i) No more than 25,000 individuals, other than those described in § 88.7 of this part, may be determined to certified-eligible survivors at any time.
(A) The WTC Program Administrator may determine, based on the best
(B) [Reserved]
(ii) [Reserved]
(3) No individual who is determined to be a positive match to the terrorist watch list maintained by the Federal government may qualify to be a certified-eligible survivor in the WTC Health Program.
(g)
(2) If the WTC Program Administrator denies certification of the screening-eligible survivor's health condition, the screening-eligible survivor may appeal the WTC Program Administrator's decision to deny certification, as provided under § 88.15.
(a) An individual or his or her designated representative may appeal a denial of enrollment as a WTC responder or a denial of a determination of status as a screening-eligible survivor by sending a written letter to the WTC Program Administrator at the address specified in the notice of denial.
(1) The letter shall be sent within 60 days of the date of the WTC Program Administrator's notification letter, and shall state the reasons why the individual believes the denial was incorrect and may include relevant new evidence not previously considered by the WTC Program Administrator.
(2) Where the denial is based on information from the terrorist watch list, the appeal will be forwarded to the appropriate Federal agency.
(b) The WTC Program Administrator will designate a Federal official independent of the WTC Health Program to review the appeal. The Federal official will issue a final decision after receipt and review.
(c) The WTC Program Administrator may reopen and reconsider a denial at any time.
(a) A physician in a Clinical Center of Excellence or a member of the nationwide provider network shall promptly transmit to the WTC Program Administrator a diagnosis and the basis for the diagnosis of a WTC-related health condition or health condition medically associated with a WTC-related health condition. The physician's diagnosis shall be made based on an assessment of the following:
(1) The individual's exposure to airborne toxins, any other hazard or any other adverse condition resulting from the September 11, 2001, terrorist attacks.
(2) The type of symptoms experienced by the individual and the temporal sequence of those symptoms.
(b) For a health condition medically associated with a WTC-related health condition, the physician's determination shall contain information establishing how the health condition has resulted from treatment of a previously certified WTC-related health condition or how it has resulted from progression of the certified WTC-related health condition.
(a)
(2) If certification is denied, the WTC responder, screening-eligible survivor, or certified-eligible survivor may appeal the WTC Program Administrator's decision to deny certification, as provided under § 88.15.
(b)
(i) In the course of review, the WTC Program Administrator may seek a recommendation about certification from a physician panel with appropriate expertise for the condition.
(ii) [Reserved]
(2) If certification is denied, the WTC responder or certified-eligible survivor may appeal the WTC Program Administrator's decision to deny certification, as provided under § 88.15.
(c)
All treatment provided under the WTC Health Program will adhere to a standard which is reasonable and appropriate; based on scientific evidence, professional standards of care, expert opinion or any other relevant information; and which has been included in the medical treatment protocols developed by the Data Centers and approved by the WTC Program Administrator.
(a) Individuals may appeal the following decisions made by the WTC Program Administrator: not to certify a health condition as a WTC-related condition; not to certify a health condition as medically associated with a WTC-related health condition; or not to authorize treatment due to a determination by the WTC Program Administrator about medical necessity for a certified WTC-related health condition.
(1) A WTC responder, screening-eligible survivor denied status as a certified-eligible survivor, certified-eligible survivor, or designated representative may appeal a determination by the WTC Program Administrator denying certification of the individual's health condition for coverage under the WTC Health Program or a determination that treatment will not be authorized as medically necessary.
(2) Appeal shall be made in writing, describe the reason(s) why the individual believes the determination is incorrect, and be postmarked within 60 calendar days of the date of the WTC Program Administrator's letter notifying the individual of the WTC Program Administrator's adverse determination. No new documentation will be considered in the appeal process that was not available to the WTC Program Administrator at the time of his or her initial determination.
(b)
(2) The Federal official may convene one or more qualified experts, independent of the WTC Health Program, to review the WTC Program Administrator's initial determination. The expert reviewers shall base their review and recommendation on the documentation available to the WTC Program Administrator when the initial determination was made. The reviewers
(3) The Federal official shall review the expert reviewers' findings and make a final determination, which will be sent to the WTC Program Administrator and the individual who filed the appeal. No further requests for review of this final determination will be considered.
(c) At any time, the WTC Program Administrator may reopen a final determination (pursuant to paragraph (b)(2) of this section) and may affirm, vacate, or modify such final determination in any manner he or she deems appropriate.
(a)
(i) The WTC Program Administrator will reimburse a Clinical Center of Excellence or a member of the nationwide provider network for treatment not covered under the Federal Employees Compensation Act pursuant to the applicable Medicare fee for service rate, as determined appropriate by the WTC Program Administrator.
(ii) [Reserved]
(2) Payment for costs of medically necessary outpatient prescription pharmaceuticals for a WTC-related health condition or health condition medically associated with a WTC-related health condition will be reimbursed by the WTC Program Administrator under a contract with one or more pharmaceutical providers.
(b)
(c)
(2) If the WTC Program Administrator determines that the treatment is not medically necessary, reimbursement will be withheld by the WTC Program Administrator.
(d)
Centers for Disease Control and Prevention, HHS.
Notice of proposed rulemaking.
Title I of the James Zadroga Health and Compensation Act of 2010 amended the Public Health Service Act (PHS Act) to establish the World Trade Center (WTC) Health Program. Sections 3311, 3312, and 3321 of Title XXXIII of the PHS Act require that the WTC Program Administrator develop regulations to implement portions of the WTC Health Program established within the Department of Health and Human Services (HHS). The WTC Health Program, which will be administered in part by the Director of the National Institute for Occupational Safety and Health (NIOSH), within the Centers for Disease Control and Prevention (CDC), will provide medical monitoring and treatment to eligible firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers who responded to the September 11, 2001, terrorist attacks in New York City, Shanksville, PA, and at the Pentagon, and to eligible survivors of the New York City attacks. The proposed rule establishes the processes by which the WTC Program Administrator may add a new condition to the list of WTC-related health conditions through rulemaking, including a process for considering petitions by interested parties to add a new condition.
HHS invites written comments from interested parties on this notice of proposed rulemaking and on the proposed information collection request sought under the Paperwork Reduction Act. Comments must be received by August 30, 2011.
You may submit comments, identified by “RIN 0920-AA45,” by any of the following methods:
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Roy M. Fleming, Sc.D., Senior Science Advisor, World Trade Center Health Program, Office of the Director, National Institute for Occupational Safety and Health, 1600 Clifton Road, NE., MS-E74, Atlanta, GA 30329; telephone 866-426-3673 (this is a toll-free number). Information request may also be submitted by e-mail to
This preamble is organized as follows:
J. Plain Writing Act of 2010
Interested persons or organizations are invited to participate in this rulemaking by submitting written views, opinions, recommendations, and data. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. Comments are invited on any topic related to this proposed rule.
Since the tragic events of September 11, 2001, HHS, CDC, and NIOSH have facilitated health evaluations for those firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers who responded to the WTC disaster sites. A health screening program for responders began in 2002 under contracts awarded to Mount Sinai School of Medicine (Mount Sinai) and the Fire Department, City of New York. Mount Sinai subcontracted with other specialty occupational health clinics in the New York metropolitan area to expand enrollment and provide a standardized and comprehensive health screening protocol.
In 2003, Congress appropriated further funding to implement longer term medical monitoring for these responders. The occupational health specialty clinics involved in the screening program were each directly funded through cooperative agreements with NIOSH to work collaboratively and provide periodic standardized medical monitoring exams. Participants in the initial screening program were enrolled beginning in 2004.
In 2006, Congress appropriated additional funds for diagnostic and treatment services to support medical care for health conditions associated with WTC-related work exposures. After receiving appropriations for treatment, the responder program was re-named the WTC Medical Monitoring and Treatment Program (MMTP) to reflect expanded services to eligible firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers. The established program providers were funded as Clinical Centers of Excellence (Clinical Centers) reflecting their multidisciplinary expertise and extensive program experience with the WTC responder population. The MMTP made monitoring exams and treatment
In 2008, Congress appropriated additional funds for the WTC Environmental Health Center (EHC) Community Program, which provided initial health evaluations, diagnostic and treatment services for residents, students, and others in the community who were affected by the September 11, 2001, terrorist attacks in New York City.
Title I of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111-347), amended the Public Health Service Act (PHS Act) to add Title XXXIII
The WTC Health Program will expand the services of the MMTP to include eligible firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers who responded to the September 11, 2001, terrorist attacks at the Pentagon and Shanksville, PA. Section 3311(a)(2)(C)(ii) of Title XXXIII requires that the WTC Program Administrator develop eligibility criteria for Pentagon and Shanksville, PA emergency responders after consultation with the WTC Scientific/Technical Advisory Committee. However, because no Pentagon or Shanksville, PA responders have participated in the existing MMTP, the WTC Program Administrator currently lacks information that may serve as a basis for such enrollment, including information on participation in the response at these two sites and on hazard exposure circumstances at these sites relevant to currently established WTC health conditions. The WTC Program Administrator will be collecting such information.
Title XXXIII of the PHS Act authorizes the Secretary of HHS to designate a Department official to be the WTC Program Administrator (Title XXXIII, § 3306(14)). Certain specific activities of the WTC Program Administrator are reserved to the Secretary to delegate at her discretion; other WTC Program Administrator duties not explicitly reserved to the Secretary are assigned to the Director of NIOSH or his or her designee. This rule implements portions of the Act which were both given to the Director of NIOSH and others for which the HHS Secretary has designated the Director of NIOSH to be the WTC Program Administrator. Another HHS component, Centers for Medicare & Medicaid Services, has been delegated responsibilities for disbursing payments to providers under the WTC Health Program (see Delegation of Authority, 76 FR 31337, May 31, 2011). All references to the WTC Program Administrator in this notice mean the NIOSH Director or his or her designee.
Under section 3306 of Title XXXIII of the PHS Act, the WTC Program Administrator is responsible for a program to enroll qualified firefighters and related personnel, law enforcement officers, and rescue, recovery and cleanup workers who responded to the New York City, Pentagon, and Shanksville, PA disaster sites; screen and certify qualified survivors of the New York City attacks; and to establish a nationwide system of healthcare providers to provide monitoring and treatment to those individuals found eligible. The WTC Program Administrator is also required to promulgate regulations to determine medical necessity with respect to healthcare services and prescription pharmaceuticals; to certify WTC-related health conditions identified in the statute; and to establish processes for appealing adverse WTC Health Program determinations. Those statutory requirements are included in the interim final rule published elsewhere in this issue of the
Title XXXIII of the PHS Act also authorizes the WTC Program Administrator to establish a process by which health conditions, including cancer, may be considered for addition to the list of WTC-related health conditions. Those provisions are included in this NPRM.
The list of WTC-related health conditions defined in sections 3312 and 3322 of Title XXXIII of the PHS Act may be amended in the future to add other conditions
Procedures for the addition of a new condition, which include rulemaking as required by Title XXXIII, are proposed in this notice. The addition of a new condition could be initiated either by petition from an interested party or at the discretion of the WTC Program Administrator, as specified in this proposed rule.
This amendment to Part 88 would add the definition of “interested party” to the list of definitions.
Pursuant to requirements specified in Title XXXIII of the PHS Act, § 88.17 would establish the process by which an interested party could petition the WTC Program Administrator to add a condition to the list of WTC-related health conditions identified in § 88.1. Under the provisions of (a)(1), the petition must include the name and contact information of the interested party; the name and description of the condition the party would like to see added to the list of WTC-related health conditions; and an explanation of the reasons for adding the condition, which must include the medical basis for the association between the September 11, 2001, terrorist attacks and the condition to be added. The provisions of (a)(2) would incorporate specifications in
Subsection (b) would also incorporate the statutory requirement that the WTC Program Administrator may, periodically, publish an NPRM concerning the addition of a WTC-related health condition. The Administrator would consider publishing an NPRM where the review of cancers required by Title XXXIII § 3312(a)(5)(A) of the PHS Act indicates that a type of cancer should be added, or where WTC Health Program monitoring data reveals the prevalence of a condition not previously identified by the Program. Although the WTC Administrator cannot provide a specific scientific review protocol at this time, the protocol would take into account evaluating the exposure data associated with WTC and evaluating available published and unpublished epidemiologic, toxicologic, and medical evidence relevant to evaluating the possible association between the health condition under consideration and WTC exposures. How these various relevant sources of scientific and medical information will be evaluated, separately and in relation to each other would depend on the evidence available for a given health condition under consideration. HHS notes that scientists generally look for consistency in terms of disease-mechanism theories, toxicologic and epidemiologic findings, and medical observation. The addition of any health condition requires rulemaking and the public will have the opportunity to consider and comment on the review methods applied in any actual case. HHS solicits comment on this and other approaches to reviewing evidence.
The WTC Program Administrator may extend the period described above upon finding a good cause. In the case of such an extension, the Administrator shall publish such an extension in the
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives of significant regulatory actions 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 proposed rule is considered a “significant regulatory action” within the meaning of E.O. 12866. The rule establishes processes by which the WTC Program Administrator may consider the addition of health conditions to the current statutory list of WTC-related health conditions covered by this program. This strictly procedural rule does not itself propose the addition of any conditions and hence does not achieve any benefits nor impose any costs, other than the minor incidental administrative costs to HHS of considering possible additions. Under any circumstance, HHS would be required to conduct rulemaking to make an addition, as required by Title XXXIII of the PHS Act. Accordingly, any costs and benefits associated with adding a condition would be addressed in such future rulemaking. This rule does not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; it does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; it does not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; nor does it raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
This regulation has no impact on small businesses or other small entities as specified under the RFA. The rule establishes procedures by which the WTC Health Program Administrator may consider the addition of health conditions to the current statutory list of WTC-related health conditions covered by this program. These procedures do not impose any requirements or direct costs on small entities. They do not involve small entities, except that a small entity could potentially be considered an “interested party” under these procedures, eligible to petition the WTC Program Administrator for the addition of a health condition. Such petitioning by a small entity would be voluntary, however, and hence any costs attendant to submitting a petition would be voluntarily incurred.
The Secretary of HHS has certified to the Chief Counsel, Office of Advocacy of the Small Business Administration, that this rule does not have a significant impact on a substantial number of small entities. Accordingly, no regulatory impact analysis is required.
CDC has determined that this notice of proposed rulemaking contains information collection requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-1420). A description of these provisions is given below with an estimate of the annual reporting burden. Included in the estimate of the annual reporting burden is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information. In compliance with the requirement of § 3506(c)(2)(A) of the PRA for opportunity for public comment on proposed data collection projects, CDC will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-5960 and send comments to Daniel Holcomb, CDC Reports Clearance Officer, 1600 Clifton Road, NE., MS-D74, Atlanta, GA 30333 or send an e-mail to
Comments are invited on (a) whether the proposed collection of information
This section describes the proposed process and data collection requirements that an interested party should follow to petition the WTC Program Administrator to add a condition to the list of WTC-related health conditions. HHS expects to receive no more than 100 petitions annually. We assume that interested parties will be enrolled WTC responders, certified-eligible survivors, or members of groups who advocate on behalf of responders or survivors. We estimate that an individual will spend an average of 40 hours gathering information to substantiate a request to add a health condition and assembling the petition. HHS requests input from the public on these estimates, which are reflected in the table below.
As required by Congress under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
This proposed rule has been drafted and reviewed in accordance with Executive Order 12988, “Civil Justice Reform,” and will not unduly burden the Federal court system. This rule has been reviewed carefully to eliminate drafting errors and ambiguities.
HHS has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” The rule does 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.”
In accordance with Executive Order 13045, HHS has evaluated the environmental health and safety effects of this rule on children. HHS has determined that the rule would have no environmental health and safety effect on children.
In accordance with Executive Order 13211, HHS has evaluated the effects of this proposed rule on energy supply, distribution or use, and has determined that the rule will not have a significant adverse effect.
Under Public Law 111-274 (October 13, 2010), executive Departments and Agencies are required to use plain language in documents that explain to the public how to comply with a requirement the Federal Government administers or enforces. HHS has attempted to use plain language in promulgating the proposed rule consistent with the Federal Plain Writing Act guidelines.
Aerodigestive disorders, Appeal procedures, Health care, Mental health conditions, Musculoskeletal disorders, Respiratory and pulmonary diseases.
For the reasons discussed in the preamble, the Department of Health and Human Services proposes to amend 42 CFR part 88 as follows:
1. The authority citation for part 88 continues to read as follows:
42 U.S.C. 300mm-300mm-61, Pub. L. 111-347, 124 Stat. 3623.
2. Amend § 88.1 by adding the definition of “interested party” to read as follows:
2. Add § 88.17 to read as follows:
(a) Any interested party may petition the WTC Program Administrator to add a condition to the list of WTC-related health conditions.
(1) Each petition shall be in writing and sent to the WTC Program Administrator. The petition shall include:
(i) Name and contact information of the interested party;
(ii) Name and description of the condition to be added; and
(iii) Reasons for adding the condition, including the medical basis for the association between the September 11, 2001, terrorist attacks and the condition to be added.
(2) Not later than 60 days after the receipt of a petition, the WTC Program Administrator shall:
(i) Request a recommendation of the WTC Health Program Scientific/Technical Advisory Committee; or
(ii) Publish in the
(iii) Publish in the
(iv) Publish in the
(b) The WTC Program Administrator may propose to add a condition to the list of WTC-related health conditions by publishing a proposed rule in the
(1) If the WTC Program Administrator requests a recommendation from the WTC Health Program Scientific/Technical Advisory Committee, the Advisory Committee shall submit its recommendation to the WTC Program Administrator no later than 60 days after the date of the transmission of the request or no later than a date specified by the Administrator (but not more than 180 days after the request).
(2) If the WTC Program Administrator decides to publish a proposed rule in the
Department of Transportation, Office of the Secretary.
Notice of Order Soliciting Community Proposals (Order 2011-7-1).
The Department of Transportation is soliciting proposals from communities or consortia of communities interested in receiving a grant under the Small Community Air Service Development Program. The full text of the Department's order is attached to this document. There are two mandatory requirements for filing of applications, both of which must be completed for a community's application to be deemed timely and considered by the Department. The first requirement is the submission of the community's proposal, as described below; the second requirement is the filing of SF424 through
Grant Proposals as well as the SF424 should be submitted no later than August 2, 2011.
Interested parties can submit applications and the SF424 electronically through
Aloha Ley, Office of Aviation Analysis, 1200 New Jersey Ave, SE., W86-310, Washington, DC 20590, (202) 366-2347.
By this order, the Department invites proposals from communities and/or consortia of communities interested in obtaining a Federal grant under the Small Community Air Service Development Program (Small Community Program and/or SCASDP) to address air service and airfare problems in their communities. Proposals, including all required information, must be submitted to
• Determine eligibility (see Page 4);
• Register with
• Submit an Application for Federal Domestic Assistance (SF424);
• Submit a cover sheet including all required information (see
• Submit a completed “Summary Information” schedule (see
• Submit a detailed proposal which meets all required criteria (see
• Attach any letters of support to the proposal, which should be addressed to Aloha Ley, Associate Director, Small Community Program; and,
• Provide separate submission of confidential material, if requested. (see
An application will
This order is organized into the following sections:
The Small Community Program was established under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21), Pubic Law 106-181, and reauthorized under the Vision 100-Century of Aviation Reauthorization Act, Public Law 108-176 (Vision 100). The program is designed to provide financial assistance to small communities to help them enhance their air service. The Department provides this assistance in the form of financial grants that are disbursed on a reimbursable basis.
Authorized grant projects may include activities that extend over a multi-year period under a single grant award; however, because there is a priority established by statute for communities and consortia that show that they can use the assistance “in a timely fashion,” applicants are advised to consider that criterion in developing their proposals.
The Small Community Program is authorized to receive appropriations under 49 U.S.C. 41743(e)(2), as amended. Appropriations are provided for the program pursuant to Section 1104 of the FY 2011 Full-Year Continuing Appropriations Act (Pub. L. 112-10 (extending the FY 2010 Consolidated Appropriations Act (Pub. L. 111-117)). The Department has up to $15 million available for FY 2011 grant awards to carry out the Small Community Program.
The program is limited to a maximum of 40 grant awards, with a maximum of four grants per State, in each year the program is funded. There are no limits on the amounts of individual awards, and the amounts awarded will vary depending upon the features and merits of the proposals selected. In past years, the Department's individual grant sizes have ranged from $20,000 to nearly $1.6 million.
Communities not previously registered are encouraged to register with
Communities are encouraged to contact the Grants.gov help desk for any technical assistance in filing their applications. The Grants.gov “Applicant Resources” page (
When selecting applicants to participate in the Small Community
1. As of calendar year 1997, the airport serving the community was not larger than a small hub airport, and it has insufficient air carrier service or unreasonably high air fares,
2. The airport serving the community presents characteristics, such as geographic diversity or unique circumstances that demonstrate the need for, and feasibility of, grant assistance from the Small Community Program;
3. An applicant may not receive an additional grant to support the same project from a previous grant;
4. An applicant may not receive an additional grant, prior to the completion of its previous grant;
5. No more than 4 communities or consortia of communities, or a combination thereof, from the same State may be selected to participate in the program in any fiscal year; and
6. No more than 40 communities or consortia of communities, or a combination thereof, may be selected to participate in the program in each year for which the funds are appropriated.
In assessing whether a previous grantee's current proposal represents a new project, we compare the goals and objectives of the earlier grant, including the key components of the means by which those goals and objectives were to be achieved, to the current proposal. For example, if a community received an earlier grant to support a revenue guarantee for service to a particular destination or direction, a new application for another revenue guarantee for the same service would be disqualified under Section 41743(c), even if the revenue guarantee were structured differently or the type of carrier were different. However, we do not read Section 41743(c) to disqualify a new application for service to a new destination or direction using a revenue guarantee, or for general marketing of the airport and the various services it offers. We recognize that not all revenue guarantees, marketing agreements, equipment purchases,
The Department is authorized to award grants to communities that seek to provide assistance to:
• An air carrier to subsidize service to and from an underserved airport for a period not to exceed 3 years;
• An underserved airport to obtain service to and from the underserved airport; and/or
• An underserved airport to implement such other measures as the Secretary, in consultation with such airport, considers appropriate to improve air service both in terms of the cost of such service to consumers and the availability of such service, including improving air service through marketing and promotion of air service and enhanced utilization of airport facilities.
• Air fares are higher than the national average air fares for all communities;
• The community or consortium will provide a portion of the cost of the activity from local sources other than airport revenue sources;
• The community or consortium has established or will establish a public-private partnership to facilitate air carrier service to the public;
• The assistance will provide material benefits to a broad segment of the traveling public, including business, educational institutions, and other enterprises, whose access to the national air transportation system is limited; and
• The assistance will be used in a timely manner.
• The geographic location of each applicant, including the community's proximity to larger centers of air service and low-fare service alternatives;
• The proposed Federal grant amount requested compared with the local share offered;
• Whether the applicant community has previously received a grant award under this program and, if so, whether its application includes an explanation of how the community's proposed project differs from its previously funded project;
• The community's demonstrated commitment to and participation in the proposed grant project;
• The extent to which the applicant's proposed solution(s) to solving the problem(s) is new or innovative;
• The population and business activity as well as the relative size of each applicant community;
• The community's existing level of air service and whether that service has been increasing or decreasing;
• Whether the community's proposal, if successfully implemented, could serve as a working model for other communities;
• The grant amount requested compared with total funds available for all communities;
• Whether the community has a viable plan to use the funds in a timely manner;
• The uniqueness of an applicant's claimed problems and whether the proposed project clearly addresses the applicant's claimed problems; and
• Whether the community's proximity to an existing or prior grant recipient could adversely affect either its proposal or the project undertaken by the other recipient.
Full community participation is a key goal of this program as demonstrated by the statute's focus on local contributions and active participation in the project. Therefore, applications that demonstrate broad community support will be more attractive. For example, communities providing proportionately higher levels of cash contributions from other than airport revenues will have more attractive proposals. Communities that provide multiple levels of contributions (state, local, airport, cash and in-kind contributions) also will have more attractive proposals. Similarly, communities that demonstrate participation in the development and execution of the proposed air service project will enhance the attractiveness of their proposals. In this regard, the Department welcomes letters of intent from airlines on behalf of community proposals that are specifically intended to enlist new or expanded air carrier presence. Such letters will be accorded greater weight when authorized by airline planning departments.
Proposals that offer innovative solutions to the transportation issues facing the community will be more attractive. Small communities have faced many problems retaining and improving their air services and in coping with air fares that are higher than typical for larger communities. Therefore, proposals that offer new, creative approaches to addressing these problems, to the extent that they are
In its application, a community that is a previous grant recipient should compare and contrast its proposed project with its previously funded one(s) to demonstrate why its latest proposal represents a new project. Communities should also note that in prior years of the program, interest in participation exceeded the funds available in any one year. For this reason, the fact that a community has already received one or more grants will be a consideration when comparing its new proposal with those of other applicant communities.
Applicant communities should be aware that, if awarded a grant, the Department will not reimburse the community for pre-award expenses such as the cost of preparing the grant application or for any expenses incurred prior to the community executing a
The statute is very general about the types of projects that can be authorized so that communities are provided flexibility in addressing their particular air service and airfare issues. Because circumstances may differ among communities, applicants have some latitude in identifying their own objectives and developing strategies for accomplishing them.
The major objective of the Small Community Program is to help communities secure enhancements that will be responsive to their air transportation/air fare needs on a long-term basis after the financial support of the grant has ended. There are many ways that a community might enhance its current air service or attract new service, such as:
• Promoting awareness among residents of locally available service;
• Attracting a new carrier through revenue guarantees or operating cost offsets;
• Attracting new forms of service, such as on-demand air taxi service;
• Offering an incumbent carrier financial or other incentives to lower its fares, increase its frequencies, add new routes, or deploy more suitable aircraft, including upgrading its equipment from turboprops to regional jets;
• Combining traffic support from surrounding communities with regionalized service through one airport; or
• Providing local ground transportation service to improve access to air service to the community and the surrounding area.
The SCASDP program has already supported numerous standard revenue guarantee and marketing projects; there is an increased prospect for favorable consideration if the proposal offers distinctive or creative aspects or features that have potential for establishing new and better practices. At the same time, proposals must
There is no set format that must be used in submitting grant proposals. At a minimum, however, a proposal must provide the following information:
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•
•
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•
○ Clearly identify the target audience of each component of the proposed transportation initiative, including all advertising and promotional efforts.
○ Set forth a realistic timetable for implementation of the grant project including a timeline chart. Because the statute includes timely use of the grant funds as a priority consideration, a community must have a well-developed project plan and a detailed timetable for implementing that plan. In establishing the timetable, however, the community should be realistic about its ability to meet its project deadlines.
○ For proposals involving new or improved service, explain how the service will become self-sufficient. Under the statute, a community
○ Fully and clearly outline the goals and objectives of the project;
○ Include metrics by which progress towards goals will be measured, the source(s) of those data, and how the data will be analyzed.
○ If the applicant received a Small Community Program grant in the past, explain how its proposed project differs from its earlier one by comparing and contrasting project goals, objectives and methods of achieving them.
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•
•
•
•
•
The statute authorizing the Small Community Program also provides that the Department will designate one of the grant recipients as an Air Service Development Zone. The purpose of the designation is to provide communities interested in attracting business to the area surrounding the airport and/or developing land-use options for the area to work with the Department on means to achieve those goals. The Department will assist the designated community in establishing contacts with and obtaining advice and assistance from appropriate government agencies, including the Department of Commerce as well as other offices within the Department of Transportation, and in identifying other pertinent resources that may aid the community in its efforts to attract businesses and to formulate land-use options. However, the community receiving the designation will be responsible for developing, implementing, and managing activities related to the air service development zone initiative. Only communities that are interested in these objectives and have a plan to accomplish them should compete for the available designation. There are no additional funds associated with this designation, and applying for the designation will provide no special benefit or preference to a community in receiving a grant award under the Small Community Program.
Grant applicants interested in selection for the Air Service Development Zone designation must include in their applications a separate section, titled,
○ Detailed information regarding the property and facilities available for development such as an existing airpark or land for such an airpark;
○ The other modes of transportation that would be available to support additional economic development, such as rail, road, and/or water access;
○ Information concerning historic, existing, and any future business activity in the area that would support further development;
○ Demographic information concerning the community and its environs relevant to the developmental efforts, including population, employment, and per capita income data; and
○ Any other information that the community believes is relevant to its plans to enhance air service development.
The community should provide as detailed a plan as possible, including what goals it expects to achieve from the air service development zone designation and the types of activities on which it would like to work with the Department in achieving those goals. The community should also indicate whether further local government approvals are required in order to implement the proposed activities.
The grant awards will be made as promptly as possible so that selected communities can complete the grant agreement process and proceed to implement their plans. Given the competitive nature of the grant process, the Department will not meet with grant applicants with respect to their grant proposals.
The Department will announce its grant selections via a selection order, which will be served on each grant recipient, all other applicants, and all parties served with this solicitation order. The selection order will also be on the Department's Small Community Program Web page.
Additional information on award administration for selected communities will be provided in the grant agreement.
Applicants are advised to obtain firm assurances from air carriers proposing to offer new air service if a grant is awarded. Many grants have been awarded for the purpose of subsidizing new or additional air service for a small community, with the goal of that service becoming self-sustaining by the end of the subsidy period. In virtually all cases, the community seeking the grant funds received expressions of interest from one or more air carriers. In some instances, these expressions of interest failed to materialize and the community was left without any immediate prospects, at which time it asked for a grant extension to allow more time to pursue other carriers. Because the Department is charged by law to consider timely use of funds when selecting grant recipients, the Department will grant an extension only when the community can provide strong evidence of a firm commitment on the part of an air carrier to deliver the desired service.
To ensure understanding, grantees contemplating amendments to their agreements are urged to discuss their situations with the Small Community Program staff before requesting a formal amendment.
This order is issued under authority delegated in 49 CFR 1.56a(f).
1. Community proposals for funding under the Small Community Air Service Development Program should be submitted via
2. This order will be published in the
An electronic version of this document is available on the World Wide Web at
(a)
(b)
(1) An assessment of the need of the community or consortium for access, or improved access, to the national air transportation system; and
(2) An analysis of the application of the criteria in subsection (c) to that community or consortium.
(c)
(1)
(A) Had insufficient air carrier service; or
(B) Had unreasonably high air fares.
(2)
(3)
(4)
No community, consortia of communities, nor combination thereof may participate in the program in support of the same project more than once, but any community, consortia of communities, or combination thereof may apply, subsequent to such participation, to participate in the program in support of a different project.
(5)
(A) Air fares are higher than the average air fares for all communities;
(B) The community or consortium will provide a portion of the cost of the activity to be assisted under the program from local sources other than airport revenues;
(C) The community or consortium has established, or will establish, a public-private partnership to facilitate air carrier service to the public;
(D) The assistance will provide material benefits to a broad segment of the traveling public, including business, educational institutions, and other enterprises, whose access to the national air transportation system is limited; and
(E) The assistance will be used in a timely fashion.
(d)
(1) To provide assistance to an air carrier to subsidize service to and from an underserved airport for a period not to exceed 3 years;
(2) To provide assistance to an underserved airport to obtain service to and from the underserved airport; and
(3) To provide assistance to an underserved airport to implement such other measures as the Secretary, in consultation with such airport, considers appropriate to improve air service both in terms of the cost of such service to consumers and the availability of such service, including improving air service through marketing and promotion of air service and enhanced utilization of airport facilities.
(e)
(1)
(2)
(f)
(g)
(1) To function as a facilitator between small communities and air carriers;
(2) To carry out this section;
(3) To ensure that the Bureau of Transportation Statistics collects data on passenger information to assess the service needs of small communities;
(4) To work with and coordinate efforts with other Federal, State, and local agencies
(5) To provide policy recommendations to the Secretary and Congress that will ensure that small communities have access to quality, affordable air transportation services.
(h)
The cover page for all applications should bear the title “Proposal Under the Small Community Air Service Development Program, Docket DOT-OST-2011-0119” and should include:
(1) The name of the community or consortium of communities applying for the grant;
(2) The legal sponsor and its Dun and Bradstreet (D&B) Data Universal Numbering System (DUNS) number, including + 4; Employee Identification Number (EIN) or Tax ID; and,
(3) The 2-digit Congressional district code applicable to the sponsoring organization and, if a consortium, to each participating community.
Applicants will be able to provide certain confidential business information relevant to their proposals on a confidential basis. Under the Department's Freedom of Information Act regulations (49 CFR 7.17), such information is limited to commercial or financial information that, if disclosed, would either likely cause substantial harm to the competitive position of a business or enterprise or make it more difficult for the Federal Government to obtain similar information in the future.
Applicants seeking confidential treatment of a portion of their applications must segregate the confidential material in a sealed envelope marked “Confidential Submission of X (the applicant) in Docket DOT-OST-2011-0119,” and include with that material a request in the form of a motion seeking confidential treatment of the material under 14 CFR 302.12 (Rule 12) of the Department's regulations. The applicant should submit an original and two copies of its motion and an original and two copies of the confidential material in the sealed envelope.
The confidential material should
A template for the confidential motion can be found at