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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 National Marine Sanctuaries (ONMS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Final rule.
NOAA is amending the regulations for the Channel Islands, Monterey Bay, Gulf of the Farallones, and Olympic Coast National Marine Sanctuaries by requiring that motorized aircraft maintain certain minimum altitudes above specified locations within the boundaries of the listed sanctuaries and stating that failure to comply with these altitude limits is presumed to disturb marine mammals and seabirds and is a violation of the sanctuary regulations.
These regulations are effective on February 27, 2012.
Office of National Marine Sanctuaries, 1305 East-West Highway, Silver Spring, MD 20910. Phone: (301) 713-3125.
This
The National Marine Sanctuaries Act (NMSA) authorizes NOAA to prohibit or otherwise regulate activities to prevent or minimize the destruction of, loss of, or injury to a resource of a national marine sanctuary (16 U.S.C. 1436(1)).
Regulations for the Monterey Bay, Channel Islands, Gulf of the Farallones and Olympic Coast National Marine Sanctuaries all restrict low altitude overflights within specified zones in each sanctuary (subject to certain exceptions) in order to protect marine mammals and seabirds from disturbance by aircraft. At Monterey Bay, Channel Islands, and Gulf of the Farallones, flights below 1000 feet are prohibited within the designated zones. At Olympic Coast, flights below 2000 feet are prohibited within one nautical mile of Flattery Rocks, Quillayute Needles, or Copalis National Wildlife Refuge, or within one nautical mile seaward from the coastal boundary of the sanctuary.
These regulations vary slightly with each sanctuary. The regulations for the Monterey Bay and Olympic Coast sanctuaries prohibit overflights below a certain level within designated zones—1000 feet in Monterey Bay and 2000 feet in Olympic Coast, as noted above—without requiring a specific showing that marine mammals or seabirds have been disturbed. The regulations for the Channel Islands and the Gulf of the Farallones prohibit disturbing marine mammals or seabirds by flying below 1000 feet within specified zones of the sanctuaries.
With this final rule, NOAA has standardized these regulations by adopting a single, consistent and clear regulatory approach regarding overflights in these sanctuaries. The regulations for each sanctuary now establish a rebuttable presumption that flying motorized aircraft below the existing minimum altitudes within any of the existing zones results in the disturbance of marine mammals or seabirds. This means that if a pilot were observed flying below the established altitude within a designated zone, it would be presumed that marine mammals or seabirds had been disturbed and that a violation of sanctuary regulations had been committed. This presumption of disturbance could be overcome by contrary evidence that disturbance did not, in fact, occur (
Low overflights in these sites clearly pose a risk of harmful disturbance to marine mammals and seabirds, including movement and evacuation in response to low overflights where the young (pups, chicks, eggs) are crushed during an evacuation or exposed to predation as a consequence of loss of parental protection. Indeed, given the connection between low overflights and disturbance, the Southwest Region of the National Marine Fisheries Service developed marine mammal viewing guidelines for its region (which includes the three California sanctuaries), recommending that aircraft avoid flying below 1000 feet over marine mammals. Similarly, the State of California prohibits overflights less than 1000 feet above designated wildlife habitat areas within the state waters of each sanctuary off of California. In the Olympic Coast National Marine Sanctuary, offshore islands of the Flattery Rocks, Quillayute Needles, and Copalis National Wildlife Refuges have high pinnacles that provide important habitats for 14 species of seabirds, warranting the prohibition on flights below 2000 feet in this sanctuary to better protect these sanctuary resources. This prohibition is further consistent with an advisory published by the Federal Aviation Administration (FAA) that applies to these same areas (FAA Advisory Circular AC 91-36D).
The existing NOAA overflight regulations are not indicated on current FAA aeronautical charts. The FAA has advised NOAA that with the promulgation of this final rule, it will revise the notation on current aeronautical charts to indicate the sanctuaries' overflight regulations. The notation on FAA aeronautical charts in no way imposes additional FAA obligations on aircraft operators. Rather,
NOAA is amending ONMS regulations (15 CFR part 922) for these four sanctuaries. The amendments harmonize NOAA's long-standing regulatory provisions prohibiting low overflights over certain areas within these sanctuaries and more clearly connect the adverse impacts upon marine mammals or seabirds caused by low overflights as the regulatory basis for NOAA's overflight regulations.
The comments received on the proposed rule that was published on December 7, 2010 (75 FR 76319) are summarized below, together with responses from NOAA. There were 169 submissions from individuals, organizations, state representatives, state agencies, and Federal agencies. Because many of the submissions contained the same or similar comments, those comments have been grouped together by subject and responded to as one comment.
1.
2.
3.
4.
5.
6.
7.
Additional documentation supporting the need for overflight regulations in order to reduce the risk of harmful disturbance to marine mammals and seabirds was submitted during the public comment period and can be found at
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
NOAA has made two changes to this final rule as compared to the proposed rule. NOAA corrected the Channel Islands National Marine Sanctuary regulatory citation from § 922.72 paragraph (a)(5) to § 922.72 paragraph (a)(7) and the Olympic Coast National Marine Sanctuary regulatory citation from § 922.152 paragraph (a)(6) to § 922.152 paragraph (a)(7).
The amendments to the sanctuary regulations in the four national marine sanctuaries identified in this notice do not have significant environmental impacts and are categorically excluded from the need to prepare an environmental assessment pursuant to the National Environmental Policy Act. Specifically, the proposed amendments to the regulations are legal in nature, establishing a rebuttable presumption regarding disturbance below a certain level and are thus categorically excluded by NOAA Administrative Order 216-6 Section 6.03c.3(i).
This proposed rule has been determined to be not significant within the meaning of Executive Order 12866.
NOAA has concluded this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.
This rule does not contain any new or revisions to the existing information collection requirement that was approved by OMB (OMB Control Number 0648-0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published with the proposed rule and is not repeated here. No comments were received regarding the economic impact of this rule. As a result, a final regulatory flexibility analysis was not prepared.
Administrative practice and procedure, Environmental protection, Fish, Harbors, Marine pollution, Marine resources, Natural resources, Penalties, Recreation and recreation areas, Research, Water pollution control, Water resources, Wildlife, Overflights.
Accordingly, for the reasons set forth above, 15 CFR part 922 is amended as follows:
15 U.S.C. 1431
(a) * * *
(7) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within one nautical mile of any Island, except to engage in kelp bed surveys or to transport persons or supplies to or from an Island. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds.
(a) * * *
(8) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within one nautical mile of the Farallon Islands, Bolinas Lagoon, or any ASBS, except to transport persons or supplies to or from the Islands or for enforcement purposes. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds.
(a) * * *
(6) Disturbing marine mammals or seabirds by flying motorized aircraft, except as necessary for valid law enforcement purposes, at less than 1,000 feet above any of the four zones within the Sanctuary described in Appendix B to this subpart. Failure to maintain a minimum altitude of 1,000 feet above ground level above any such zone is presumed to disturb marine mammals or seabirds.
(a) * * *
(7) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 2,000 feet over the waters within one nautical mile of the Flattery Rocks, Quillayute Needles, or Copalis National Wildlife Refuges or within one nautical mile seaward from the coastal boundary of the Sanctuary, except for activities related to tribal timber operations conducted on reservation lands, or to transport persons or supplies to or from reservation lands as authorized by a governing body of an Indian tribe. Failure to maintain a minimum altitude of 2,000 feet above ground level over any such waters is presumed to disturb marine mammals or seabirds.
United States International Trade Commission.
Interim rule with request for comments.
The United States International Trade Commission (Commission) is adopting interim rules that amend the Commission's Rules of Practice and Procedure to make technical amendments and to provide rules for the conduct of safeguard investigations under statutory provisions that implement bilateral safeguard provisions in free trade agreements that the United States has negotiated with Australia, Bahrain, Chile, Colombia, the Dominican Republic and five Central American countries (Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua), Jordan, Korea, Morocco, Oman, Panama, Peru, and Singapore. With the exception of the free trade agreements with Colombia, Korea, and Panama, all of the aforementioned free trade agreements have entered into force. The free trade
You may submit comments, identified by docket number MISC-039, FTA safeguards rulemaking, by any of the following methods:
James R. Holbein, Secretary, telephone (202) 205-2000 or William Gearhart, Esquire, Office of the General Counsel, United States International Trade Commission, telephone (202) 205-3091. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at (202) 205-1810. General information concerning the Commission may also be obtained by accessing its Web site at
The preamble below is designed to assist readers in understanding these amendments to the Commission Rules. This preamble provides background information, a regulatory analysis of the amendments, a section-by-section explanation of the amendments, and a description of the amendments to the Rules. The Commission encourages members of the public to comment, in addition to any other comments they wish to make on the amendments, on whether the amendments are in language that is sufficiently clear for users to understand.
These amendments are being promulgated in accordance with the Administrative Procedure Act (5 U.S.C. 553) (APA), and will be codified in 19 CFR part 206.
Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures, rules and regulations as it deems necessary to carry out its functions and duties. The Commission is amending its rules governing investigations relating to global and bilateral safeguard actions, market disruption, trade diversion and review of relief actions (Part 206 of its Rules). The amendments principally concern Subpart D of Part 206, Investigations Relating to Bilateral Safeguard Actions, but also include several technical and conforming changes to the general rules in Subpart A of Part 206. The current rules in Subpart D apply only to Commission investigations under the bilateral safeguard provision in the NAFTA Implementation Act with respect to imports from Canada and Mexico. However, in recent years Congress has enacted legislation that implements bilateral safeguard provisions in several additional free trade agreements, including most recently agreements with Colombia, Korea, and Panama. The implementing legislation for each of those free trade agreements directs the Commission, upon receipt of a petition, to conduct an investigation and determine whether, as a result of the reduction or elimination of a duty under the agreement, an article is being imported into the United States in such increased quantities, in absolute terms or relative to domestic production, and under such conditions that imports of such article constitute a substantial cause of serious injury or the threat thereof to the domestic industry producing an article that is like or directly competitive with the imported article. If the Commission makes an affirmative determination, it must recommend a remedy to the President; the President makes the final decision on remedy.
In addition to the NAFTA Implementation Act, the Commission is required to conduct bilateral safeguard investigations and make determinations under section 311(b) of the United States-Australia Free Trade Agreement Implementation Act, section 311(b) of the United States-Bahrain Free Trade Agreement Implementation Act, section 311(b) of the United States-Chile Free Trade Agreement Implementation Act, section 311(b) of the United States-Colombia Trade Promotion Agreement Implementation Act, section 311(b) of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act, section 211(b) of the United States-Jordan Free Trade Area Implementation Act, section 311(b) of the United States-Korea Free Trade Agreement Implementation Act, section 311(b) of the United States-Morocco Free Trade Agreement Implementation Act, section 311(b) of the United States-Oman Free Trade Agreement Implementation Act, section 311(b) of the United States-Panama Trade Promotion Agreement Implementation Act, section 311(b) of the United States-Peru Trade Promotion Agreement Implementation Act, and section 311(b) of the United States-Singapore Free Trade Agreement Implementation Act (for U.S. Code citations to the respective implementation acts, see the text of interim rule section 206.31
These amendments expand upon existing rules in Subpart D of Part 206 that provide for investigations and determinations under the NAFTA Implementation Act. Each of the statutory provisions listed above contains requirements that are similar both substantively and procedurally to the provision in the NAFTA Implementation Act. These amended rules identify the types of entities that may file a petition, describe the information that must be included in a petition, indicate the time for Commission determinations and reporting, and establish procedures for the limited disclosure of confidential business information under administrative protective order in those instances in which the Commission is authorized to make such disclosure.
The Commission ordinarily promulgates amendments to the Code of Federal Regulations in accordance with the rulemaking procedure in section 553 of the Administrative Procedure Act
The Commission's authority to adopt interim amendments without following all steps listed in section 553 of the APA is derived from section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) and section 553 of the APA.
Section 335 of the Tariff Act authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties. The Commission has determined that the need for interim rules is clear in this instance. Recently enacted legislation that implements safeguard provisions in free trade agreements, including agreements with Colombia, Korea, and Panama, requires the Commission to conduct new kinds of investigations and make determinations. It is important that the Commission adopt implementing rules as quickly as possible because the three new agreements are expected to enter into force imminently. The interim amendments will also apply in the case of investigations under legislation that implements safeguard provisions in free trade agreements that have already entered into force with respect to the other countries listed above. In light of the similarity of the provisions in the various implementing statutes, the Commission did not view it as practical to issue a notice of interim rulemaking applicable to investigations involving goods from one or several free trade agreement partners and at the same time issue a substantially identical notice of proposed rulemaking applicable to investigations involving goods from other free trade agreement partners. These interim rules will apply to investigations and determinations under a particular free trade agreement implementation act only after the relevant agreement has entered into force.
Section 553(b) of the APA allows an agency to dispense with publication of a notice of proposed rulemaking when the following circumstances exist: (1) The rules in question are interpretive rules, general statements of policy, or rules of agency organization, procedure or practice; or (2) the agency for good cause finds that notice and public comment on the rules are impracticable, unnecessary, or contrary to the public interest, and the agency incorporates that finding and the reasons therefor into the rules adopted by the agency.
Section 553(d)(3) of the APA allows an agency to dispense with the publication of notice of final rules at least thirty days prior to their effective date if the agency finds that good cause exists for not meeting the advance publication requirement and the agency publishes that finding along with the rules.
In this instance, the Commission has determined that the requisite circumstances exist for dispensing with the notice, comment, and advance publication procedure that ordinarily precedes the adoption of Commission rules. For purposes of invoking the section 553(b) exemption from publishing a notice of proposed rulemaking that solicits public comment, the Commission finds that the interim amendments to Part 206 are “agency rules of procedure and practice.” Moreover, the entry into force of the new agreements, particularly the agreement with Korea, which applies to a significant amount of U.S. import trade and which could not be predicted sufficiently far in advance, makes the establishment of rules a matter of urgency. Hence, it clearly would have been impracticable for the Commission to comply with the notice of proposed rulemaking and public comment procedure.
For the purpose of invoking the section 553(d)(3) exemption from publishing advance notice of the interim amendments to Part 206 at least thirty days prior to their effective date, the Commission finds the fact that the implementing legislation was signed by the President on October 21, 2011, makes such advance publication impracticable and constitutes good cause for not complying with that requirement.
The Commission recognizes that interim rule amendments should not respond to anything more than the exigencies created by the new legislation. Each interim amendment to Part 206 accordingly falls into one or more of the following categories: (1) A revision of a preexisting rule to make it applicable to one or more of the new kinds of investigations of relief actions; (2) clarification of the manner in which a preexisting rule is to be applied to one or more of the new kinds of investigations; or (3) a new rule covering a matter addressed in the new legislation but not covered by a preexisting rule.
After taking into account all comments received and the experience acquired under the interim amendments, the Commission will replace them with final amendments promulgated in accordance with the notice, comment, and advance publication procedure prescribed in section 553 of the APA.
The Commission has determined that the proposed rules do not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, October 4, 1993) and thus do not constitute a significant regulatory action for purposes of the Executive Order.
The Regulatory Flexibility Act (5 U.S.C. 601
These interim rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, August 4, 1999).
No actions are necessary under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501
The interim rules are not major rules as defined by section 804 of the Congressional Review Act (5 U.S.C. 801
The amendments are not subject to section 3504(h) of the Paperwork Reduction Act (44 U.S.C. 3501
Section 206.1 of subpart 206, which lists the statutory authorities and investigations to which subpart 206
Subpart A of Part 206 sets forth rules of general application for Commission safeguard investigations. This subpart is being amended in two principal respects. Section 206.2 is amended to extend to entities filing petitions under bilateral safeguard provisions the requirement that the petitioning entity identify the statutory authority and rule subpart under which the petition is filed. Section 206.6(a)(2) is amended to state that the Commission, if it makes an affirmative determination or is equally divided in its determination, will include in its report such remedy recommendations or proposals as may be appropriate under the statute and an explanation of the basis for each recommendation or proposal. The amendment deletes a reference to a statutory provision that applies only in certain market disruption investigations.
Subpart D of Part 206 is amended to apply to Commission investigations under several statutory authorities that implement FTA safeguard provisions. As amended, Subpart D is divided into seven sections. Section 206.31 lists the statutory authorities under which the Commission conducts such investigations. Section 206.32 sets forth definitions for terms applicable to some or all such investigations, including “substantial cause,” “domestic industry,” “critical circumstances,” “perishable agricultural product,” and “Korean motor vehicle article.” The definitions of “substantial cause,” “domestic industry,” and “Korean motor vehicle article” are not in the current rule; however, they reflect statutory definitions.
Section 206.33(a) lists the types of entities that may file a petition. The list is the same as in the current rule, but the rule is revised to refer to the list of statutory authorities in section 206.31. Current section 206.33(b) is redesignated as section 206.33(d) and is amended to list the countries whose goods might be the subject of a request for provisional relief with respect to a perishable agricultural product. New section 206.33(b) lists the agreements for which U.S. implementing legislation has been enacted that provides for the subject Commission investigations. Current section 206.33(c) is deleted and is replaced by a new section 206.33(c) that relates to allegations of critical circumstances and lists the FTA countries whose goods might be the subject of a request for provisional relief when critical circumstances are alleged. The Commission is deleting current section 206.33(c), which describes the President's authority to provide relief after expiration of the transition period in NAFTA cases, because it finds it impractical and unnecessary to describe more generally the President's authority under the various free trade agreement implementing statutes.
Section 206.34 describes the information that must be included in a petition filed under Subpart D. The information required is similar to that in current section 206.34 for petitions filed under the NAFTA safeguard provisions. Like the current rule, the amended rule recognizes that not all of the requested information may be available to the entity seeking to file a petition. Accordingly, the amended rule directs that the entity provide the requested information to the extent that such information is publicly available from governmental or other sources, or best estimates and the basis therefor if such information is not available.
Section 206.35 sets forth the time period that the Commission has to make its injury determination and transmit its report after an investigation is initiated, and also indicates the time period for making and reporting determinations when provisional relief is requested. These time periods are the same as in the implementing statutes.
Section 206.36, which states that the Commission will make its reports available to the public (with the exception of confidential business information) and will publish a summary in the
New section 206.37 is added to provide for limited disclosure of certain confidential business information under administrative protective order in investigations under implementing statutes that authorize such disclosure. With the exception of the implementing statutes for the NAFTA and the Jordan FTA, each of the implementing statutes listed in section 206.31 provides for such disclosure.
Administrative practice and procedure, Australia, Bahrain, Business and industry, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Imports, Investigations, Jordan, Korea, Mexico, Morocco, Nicaragua, Oman, Panama, Peru, Singapore, Trade agreements.
For the reasons stated in the preamble, the United States International Trade Commission amends 19 CFR Part 206 as follows:
19 U.S.C. 1335, 2112 note, 2251-2254, 2436, 2451-2451a, 3351-3382, 3805 note, 4051-4065, and 4101.
Part 206 applies to proceedings of the Commission under 201-202, 204, 406, and 421-422 of the Trade Act of 1974, as amended (2251-2252, 2254, 2436, 2451-2451a), sections 301-317 of the North American Free Trade Agreement Implementation Act (19 U.S.C. 3351-3382) (hereinafter NAFTA Implementation Act), and the statutory provisions listed in section 206.31 of this part 206 that implement bilateral safeguard provisions in other free trade agreements into which the United States has entered.
An investigation under this part 206 may be commenced on the basis of a petition, request, resolution, or motion as provided for in the statutory provisions listed in §§ 206.1 and 206.31. Each petition or request, as the case may be, filed by an entity representative of a domestic industry under this part 206 shall state clearly on the first page thereof “This is a [petition or request] under section [citing the statutory provision] and Subpart [B, C, D, E, F, or G] of part 206 of the rules of practice and procedure of the United States International Trade Commission.”
(a) * * *
(2) If the determination is affirmative or if the Commission is equally divided in its determination, such remedy recommendation or proposal as may be appropriate under the statute and an
This subpart D applies specifically to investigations under section 311(b) of the United States-Australia Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Bahrain Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Chile Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Colombia Trade Promotion Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (19 U.S.C. 4061(b)), section 211(b) of the United States-Jordan Free Trade Area Implementation Act (19 U.S.C. 2112 note), section 311(b) of the United States-Korea Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Morocco Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 302(b) of the NAFTA Implementation Act (19 U.S.C. 3352(b)), section 311(b) of the United States-Oman Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Panama Trade Promotion Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United States-Peru Trade Promotion Agreement Implementation Act (19 U.S.C. 3805 note), and section 311(b) of the United States-Singapore Free Trade Agreement Implementation Act (19 U.S.C. 3805 note). For other applicable rules, see subpart A of this part and part 201 of this chapter.
For the purposes of this subpart, the following terms have the meanings hereby assigned to them:
(a) The term
(b) The terms
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
A petition under this subpart D shall include specific information in support of the claim that, as a result of the reduction or elimination of a duty provided for under a free trade agreement listed in § 206.33(b), an article is being imported into the United States in such increased quantities, in absolute terms or relative to domestic production, and under such conditions that imports of the article constitute a substantial cause of serious injury, or (except in the case of a Canadian article) threat thereof, to the domestic industry producing an article that is like or directly competitive with the imported article. If provisional relief is requested in a petition concerning an article from Australia, Canada, Jordan, Korea, Mexico, Morocco, or Singapore, the petition shall state whether provisional relief is sought because
(a)
(b)
(1) The names and addresses of the firms represented in the petition and/or the firms employing or previously
(2) The percentage of domestic production of the like or directly competitive domestic article that such represented firms and/or workers account for and the basis for claiming that such firms and/or workers are representative of an industry; and
(3) The names and locations of all other producers of the domestic article known to the petitioner;
(c)
(d)
(e)
(1) With respect to serious injury, data indicating:
(i) A significant idling of production facilities in the industry, including data indicating plant closings or the underutilization of production capacity;
(ii) The inability of a significant number of firms to carry out domestic production operations at a reasonable level of profit; and
(iii) Significant unemployment or underemployment within the industry; and/or
(2) With respect to the threat of serious injury, data relating to:
(i) A decline in sales or market share, a higher and growing inventory (whether maintained by domestic producers, importers, wholesalers, or retailers), and a downward trend in production, profits, wages, productivity, or employment (or increasing underemployment);
(ii) The extent to which firms in the industry are unable to generate adequate capital to finance the modernization of their domestic plants and equipment, or are unable to maintain existing levels of expenditures for research and development;
(iii) The extent to which the U.S. market is the focal point for the diversion of exports of the article concerned by reason of restraints on exports of such article to, or on imports of such article into, third country markets; and
(3) Changes in the level of prices, production, and productivity.
(f)
(g)
(h)
(i)
(a)
(b)
(c)
Except in the case of an investigation under the United States-Jordan Free Trade Area Implementation Act or the NAFTA, the Secretary shall make available to authorized applicants, in accordance with the provisions of § 206.17, confidential business information obtained in an investigation under this subpart.
By order of the Commission.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of a supplemental new animal drug application (NADA) filed by Novartis Animal Health U.S., Inc. The supplemental NADA provides for veterinary prescription use of deracoxib tablets in dogs for the control of postoperative pain and inflammation associated with dental surgery and the addition of a 12-milligram (mg) size tablet.
This rule is effective January 26, 2012.
Amy L. Omer, Center for Veterinary Medicine (HFV-114), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8336, email:
Novartis Animal Health U.S., Inc., 3200 Northline Ave., Suite 300, Greensboro, NC 27408, filed a supplement to NADA 141-203 that provides for veterinary prescription use of DERAMAXX (deracoxib) Chewable Tablets in dogs for the control of postoperative pain and inflammation associated with dental surgery and the addition of a 12-mg size tablet. The supplemental NADA is
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.
Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this supplemental approval qualifies for 3 years of marketing exclusivity beginning on the date of approval.
The Agency 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.
(a)
(d) * * *
(1)
(i) 1 to 2 mg/kilogram (kg) (0.45 to 0.91 mg/pound (lb)), for use as in paragraph (d)(2)(i) of this section.
(ii) 1 to 2 mg/kg (0.45 to 0.91 mg/lb) for 3 days, for use as in paragraph (d)(2)(ii) of this section.
(iii) 3 to 4 mg/kg (1.4 to 1.8 mg/lb) for up to 7 days, for use as in paragraph (d)(2)(iii) of this section.
(2)
(ii) For the control of postoperative pain and inflammation associated with dental surgery.
(iii) For the control of postoperative pain and inflammation associated with orthopedic surgery.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia. The SIP revision adds a new chapter (9VAC5-45—Consumer and Commercial Products) in order to control volatile organic compounds (VOC) from portable fuel containers, consumer products, architectural and industrial (AIM) coatings, adhesives and sealants, and asphalt paving operations within the Northern Virginia and Fredericksburg VOC Emissions Control Areas. The SIP revision also includes new and revised documents incorporated by reference into the Virginia regulations (9VAC5-20-21—Documents Incorporated by Reference) in order to support the new and revised regulations. This action is being taken under the Clean Air Act (CAA).
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2011-0730. All documents in the docket are listed in the
Gregory Becoat, (215) 814-2036, or by email at
On November 8, 2011 (76 FR 69214), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of Virginia's consumer and commercial products regulations. The formal SIP revision was submitted by the Commonwealth of Virginia on March 18, 2010.
The SIP revision consists of the following: (1) Amendments to Chapter 9VAC5-20-21—Documents Incorporated by Reference, in order to make administrative changes for clarity, style, format, renumbering, and incorporate by reference into the Virginia regulations the new and revised regulations; (2) adds a new chapter, 9VAC5-45—Consumer and Commercial Products (Chapter 45) for regulations pertaining to consumer and commercial products; (3) adds special provisions in Chapter 45 that specify monitoring, compliance, notification, general testing, recordkeeping and reporting requirements; (4) establishes standards for portable fuel containers for products manufactured before and after August 1, 2010; (5) establishes standards for consumer products for products manufactured before and after August 1, 2010; (6) establishes standards for architectural and industrial maintenance coatings; (7) establishes standards for adhesives and sealants; and (8) establishes standards for asphalt paving operations. These SIP revisions contain the required elements for a federally enforceable rule: emission limitations, compliance procedures and test methods, compliance dates and record keeping provisions. The Commonwealth of Virginia has adopted the standards and requirements of the consumer and commercial products regulations as recommended by the Ozone Transport Commission model
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
EPA is approving the consumer and commercial products regulations as a revision to the Virginia SIP. This SIP revision will control emissions of VOCs, which will reduce the formation of ozone, and thereby protect public health and welfare.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 26, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to Virginia's consumer and commercial products regulations, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
EPA is approving submittals from the State of Oklahoma pursuant to the Clean Air Act (CAA or the Act) that address the infrastructure elements specified in the CAA, necessary to implement, maintain, and enforce the 1997 8-hour ozone and the 1997 and 2006 fine particulate matter (PM
This final rule is effective on February 27, 2012.
EPA has established a docket for this action under Docket Identification No. EPA-R06-OAR-2008-0637. All documents in the docket are listed at
The state submittal is also available for public inspection during official business hours, by appointment, at the Oklahoma Department of Environmental Quality, 707 North Robinson, P.O. Box 1677, Oklahoma City, Oklahoma 73101-1677.
Terry Johnson, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-2154; fax number (214) 665-7263; email address:
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
The background for today's action is discussed in detail in our November 16, 2011, proposal (76 FR 70940). In that
Our November 16, 2011, proposal provides a detailed description of the submittals and the rationale for EPA's proposed actions, together with a discussion of the opportunity to comment. The public comment period for these actions closed on December 16, 2011, and we did not receive any comments.
We are approving the December 5, 2007, and June 24, 2010, submittals provided by the State of Oklahoma as they demonstrate that the Oklahoma SIP meets the requirements of section 110(a)(1) and (2) of the Act for the 1997 ozone and 1997 PM
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air 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 provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the 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 March 26, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purpose of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (FCC or Commission) adopts a rule that affects the process of tower construction by instituting a pre-application notification process so that members of the public will have a meaningful opportunity to comment on the environmental effects of proposed antenna structures that require registration with the Commission. As an interim measure pending completion of a programmatic environmental analysis and subsequent rulemaking proceeding, the Commission also requires that an EA be prepared for any proposed tower over 450 feet in height.
The rules in this document contain information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the
Mania Baghdadi, Wireless Telecommunications Bureau, (202) 418-2133, email
This is a summary of the Commission's Order on Remand in WT Docket Nos. 08-61 and 03-187, adopted December 6, 2011, and released December 9, 2011. The full text of the Order on Remand is available for public inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It also may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554; the contractor's Web site,
1. In this Order, the Commission takes procedural measures to ensure, consistent with its obligations under Federal environmental statutes, that the environmental effects of proposed communications towers, including their effects on migratory birds, are fully considered prior to construction. The Commission institutes a pre-application notification process so that members of the public will have a meaningful opportunity to comment on the environmental effects of proposed antenna structures that require registration with the Commission. As an interim measure pending completion of a programmatic environmental analysis and subsequent rulemaking proceeding, the Commission also requires that an Environmental Assessment (EA) be prepared for any proposed tower over 450 feet in height. Through these actions and the Commission's related ongoing initiatives, the Commission endeavors to minimize the impact of communications towers on migratory birds while preserving the ability of communications providers rapidly to offer innovative and valuable services to the public.
2. The Commission's actions in this Order respond to the decision of the Court of Appeals for the District of Columbia Circuit in
3. The Commission's action also occurs in the context of its ongoing rulemaking proceeding addressing the effects of communications towers on migratory birds. In 2006, the Commission sought comment on what
4. Specifically, the Commission takes the following actions in this Order:
• The Commission requires that prior to the filing of an ASR application for a new antenna structure, members of the public be given an opportunity to comment on the environmental effects of the proposal. The applicant will provide notice of the proposal to the local community and the Commission will post information about the proposal on its Web site. Commission staff will consider any comments received from the public to determine whether an EA is required for the tower.
• Environmental notice will also be required if an ASR applicant changes the lighting of existing tower to a less preferred lighting style.
• The Commission modifies its procedures so that EAs for those registered towers that require EAs will also be filed and considered prior to the ASR application. Those EAs are currently filed together with either the ASR application or a service-specific license or permit application.
• The Commission institutes an interim procedural requirement that an EA be filed for all proposed registered towers over 450 feet in height. Staff will review the EA to determine whether the tower will have a significant environmental impact. This processing requirement is an interim measure pending completion of the ongoing programmatic environmental analysis of the ASR program.
5. Also pending before the Commission are two Petitions for Expedited Rulemaking: one filed May 2, 2008, by CTIA—The Wireless Association, National Association of Broadcasters, National Association of Tower Erectors, and PCIA—The Wireless Association; and another filed April 24, 2009, by American Bird Conservancy, Defenders of Wildlife and National Audubon Society. In light of the Commission's adoption of an environmental notification process that provides a meaningful opportunity for the public to raise environmental concerns as to prospective ASR applications, together with the commencement of the programmatic EA, the Commission grants in part and dismisses in part these petitions for expedited rulemaking. To the extent that this Order adopts a notification process for prospective ASR applications and otherwise responds to concerns raised by the court, the Petitions are granted in part. Insofar as the Petitions seek relief beyond the scope of this Remand Order, they are dismissed without prejudice. Either Petition may be refiled to seek relief on any issues that may remain relevant following completion of the programmatic NEPA analysis.
6. NEPA requires all Federal agencies, including the FCC, to identify and take into account environmental effects when deciding whether to authorize or undertake a major Federal action. Although NEPA does not impose substantive requirements upon agency decision-making, Title I requires Federal agencies to take a “hard look” at proposed major Federal actions that may have significant environmental consequences and to disseminate relevant information to the public.
7. Section 204 of NEPA, 42 U.S.C. 4344, created the Council on Environmental Quality (CEQ) and entrusted it with oversight responsibility regarding the NEPA activities of Federal agencies. To implement Section 102(2) of NEPA, CEQ promulgated regulations, 40 CFR parts 1500-1508, that “tell federal agencies what they must do to comply with the procedures and achieve the goals of the Act.” 40 CFR 1500.1(a). These regulations are “applicable to and binding on all Federal agencies for implementing the procedural provisions of [NEPA] * * * except where compliance would be inconsistent with other statutory requirements.” 40 CFR 1500.3. Thus, as mandated by NEPA, each Federal agency issues its own regulations and procedures that implement its NEPA responsibility to identify and account for the environmental impacts of projects it undertakes or authorizes. 42 U.S.C. 4332(2)(B). Such regulations must follow the requirements specified in CEQ regulations. 40 CFR 1507.1, 1507.3.
8. CEQ's regulations direct agencies to identify their major Federal actions as falling into one of three categories. 40 CFR 1507.3(b)(2). The first such category encompasses those actions that normally have a significant environmental impact. These actions always require an EIS. 42 U.S.C. 4332(2)(C).
9. The third category of actions—“categorical exclusions”—are those actions agencies have identified “which do not individually or cumulatively have a significant effect on the human environment * * * and for which * * * neither an environmental assessment nor an environmental impact statement is required.”
10. One of NEPA's central goals is to facilitate public involvement in agency decisions that may affect the environment. 40 CFR 1500.1(b), 1500.2(d). Section 1506.6 of CEQ's regulations governs public involvement in federal agencies' implementation of NEPA. 40 CFR 1506.6. Section 1506.6(a) provides generally that agencies shall “make diligent efforts to involve the public in preparing and implementing their NEPA procedures.” Section 1506.6(b) specifically directs agencies to provide “public notice of * * * the availability of environmental documents” to parties who may be interested in or affected by a proposed action. Environmental documents include EAs, EISs, FONSIs, and Notices of Intent (NOIs). 40 CFR 1508.10. For actions “with effects primarily of local concern,” Section 1506.6(b)(3) suggests nine ways of providing local public notice, while Section 1506.6(b)(2) discusses methods of providing notice for actions “with effects of national concern.” In a memorandum to agencies, the CEQ has explained that “[a] combination of methods may be used to give notice, and the methods used should be tailored to the needs of particular cases.”
11.
12. Sections 1.1307(a) and (b) of the Commission's existing rules identify those types of communications facilities that may significantly affect the environment and for which applicants must always prepare an EA that must be evaluated by the Commission as part of its decision-making process. Thus, Commission licensees and applicants must currently ascertain, prior to construction or application for Commission authorization or approval, whether their proposed facilities may have any of the specific environmental effects identified in these rules. 47 CFR 1.1308. The rules currently do not identify facilities that may affect migratory birds as requiring preparation of an EA. The Commission notes, however, that licensees and applicants must consider effects on migratory birds that are listed or proposed as endangered or threatened species under the ESA.
13. Under the existing rules, actions not within the categories for which EAs are required under Sections 1.1307(a) and (b) of the Commission's rules “are deemed individually and cumulatively to have no significant effect on the quality of the human environment and are categorically excluded from environmental processing * * * [e]xcept as provided in Sections 1.1307(c) and (d).” 47 CFR 1.1306(a). Thus, most antenna structure registrations are categorically excluded from environmental processing. Under Sections 1.1307(c) and (d), the agency shall require an EA if it determines that an otherwise categorically excluded action may have a significant environmental impact. These provisions satisfy Section 1508.4 of CEQ's rules, 40 CFR 1508.4, requiring that “[a]ny [categorical exclusion] provisions shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” Thus, even though a potentially significant effect on migratory birds is not one of the categories of proposed actions identified in Section 1.1307(a) of the rules as requiring an EA, the Commission has on several occasions considered the impact of particular proposed construction projects on migratory birds and, in appropriate circumstances, has required modifications to protect them.
14.
15. To register an antenna structure, the antenna structure owner must submit to the Commission a valid ASR application (FCC Form 854, Application for Antenna Registration), along with the No Hazard Determination from the FAA. Because the processing of ASR applications is a major Federal action, the tower owner must certify in response to current Question 38 on Form 854 (the number may change on the revised form) whether the proposed antenna structure may have a significant environmental effect, as defined by Sections 1.1307(a) and (b) of the rules, for which an EA must be prepared. The Commission will not process an ASR application if Question 38 is not answered. A “no” answer signifies that none of the circumstances delineated in Sections 1.1307(a) and (b) of the Commission's rules apply to the proposed tower and that an EA is not required to be submitted with the application. In that event, the ASR system verifies against the FAA's database the accuracy of the lighting and marking specifications provided by the applicant. The ASR system then issues an antenna structure registration (Form 854R) without the Commission
16. If the response to Question 38 is “yes,” the applicant must submit an EA, along with supporting documentation, when it files the ASR application with the Commission. This means that the application will not be processed until the Bureau has resolved the environmental concerns addressed in the EA. 47 CFR 17.4(c). Such an application is placed on public notice for thirty (30) days, by publication of a notice in the Daily Digest. This process affords interested persons an opportunity to comment on the EA and also, pursuant to Section 1.1307(c), to seek environmental review with respect to effects, such as impact on migratory birds, that do not routinely require preparation of an environmental assessment.
17. Under the Commission's rules, applicants for some proposed towers may be required not only to file an ASR application but also to file service-specific applications. For example, applicants for certain public safety and wireless radio service facility authorizations may be required to file both an ASR application and a site-by-site license application. The license application (Form 601, Application for Wireless Telecommunications Bureau Radio Service Authorization) may be placed on public notice pursuant to the Commission's licensing rules. To date, those applicants have been permitted to choose whether to attach any required EA to FCC Form 854 or FCC Form 601. Broadcast construction applicants are, on the other hand, required to submit the EA, if any is required, with the service-specific application and do not submit a copy of the EA with the associated FCC Form 854. Similarly, while pre-construction approval is generally not required for satellite earth stations, if an EA is required, the applicant must submit a service-specific application on FCC Form 312 (Application for Satellite Space and Earth Station Authorizations) and attach the EA to that application, which is then placed on 30-day public notice, prior to construction. 47 CFR 25.115, 25.151.
18.
19.
20.
21.
22.
23. First, the court rejected the Commission's dismissal of petitioners' request for an EIS. The court held that neither the lack of specific evidence concerning the impact of towers on the environment, nor the lack of consensus among scientists regarding the impact of communications towers on migratory birds, was sufficient to render a NEPA analysis unnecessary. Rather, because the court found there is no real dispute that towers
24. Second, the court vacated the Commission's refusal to engage in programmatic consultation with FWS under the ESA. The court remanded the issue, holding that the Commission had failed to describe what kind of showing, short of petitioners conducting an EIS themselves, could demonstrate sufficient environmental effects to
25. Third, the court ordered the Commission on remand to determine how it will provide notice of pending tower registration applications that will ensure meaningful public involvement in implementing NEPA procedures. The court noted that while the Commission's rules permit interested persons to seek environmental review of a particular action otherwise categorically excluded from environmental processing, its process confers “a hollow opportunity to participate in NEPA procedures” because “the Commission provides public notice of individual tower applications only
26. Meanwhile, the Commission had a related proceeding ongoing—the Migratory Birds rulemaking. On August 20, 2003, the Commission had issued the
27. After reviewing the comments and the Avatar Report, the Commission in 2006 issued the
28. The Commission received more than 2400 comments and reply comments in response to the
29.
30. Ten parties filed comments on the Infrastructure Coalition Petition. Comments from communications providers and tower companies generally support the Infrastructure Coalition Petition, with some differences as to certain details. These commenters assert that the Infrastructure Coalition's proposed rules reasonably balance the goals of rapid deployment of wireless infrastructure and public involvement, in compliance with the court's decision. Commenters representing environmental protection groups, however, reject the rules and procedures proposed by the Infrastructure Coalition as not ensuring meaningful public involvement, and they ask for the cessation of registration of all antenna structures until the Commission complies with NEPA.
31. On April 14, 2009, American Bird Conservancy, Defenders of Wildlife, and National Audubon Society (Conservation Groups) filed the Conservation Groups Petition. The Conservation Groups Petition asks the Commission to adopt new rules on an expedited basis to comply with NEPA, the MBTA, and the court's mandate in
32. The Commission received 19 comments and four replies in response to the Conservation Groups Petition. Those conservations organizations that filed comments generally support the Conservation Groups Petition. Opponents of the Conservation Groups Petition argue that communications towers do not have a significant environmental impact on migratory birds, and they challenge the validity of the estimates and evidence submitted in the Conservation Groups Petition. On reply, the Conservation Groups cite additional studies that they state establish a link between bird deaths and towers.
33.
34. In
35. The programmatic EA will provide the basis for the agency to determine whether an EIS is warranted. The Commission will commence the preparation of a programmatic EIS if the programmatic EA demonstrates that “
36. In response to the court's remand and in conjunction with the programmatic EA, the Commission also recently initiated programmatic consultation with FWS under Section 7(a)(1) of the ESA, 16 U.S.C. 1536(a)(1), regarding the effects of registered towers on threatened and endangered species and designated or proposed critical habitats. The Commission already incorporates and implements in Section 1.1307(a) of the Commission's rules its responsibility, under Section 7 of the ESA, to ensure, in consultation with the Secretary of the Interior, that individual proposed Commission actions are not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. However, the court in
37. Below, the Commission first describes a new notice regime to afford members of the public an opportunity to comment on the environmental effects of prospective ASR applications. The Commission then discusses an interim
38. The Commission has consulted with CEQ regarding these rules and procedures as required under CEQ's rules. 40 CFR 1507.3(a). Under CEQ's rules, before adopting procedures implementing NEPA an agency must publish its proposed procedures in the
39. The Commission's final rules take into account the comments submitted in response to the
40. In this Order, the Commission adopts public notice rules and establishes a pre-ASR filing environmental notification process so that members of the public have an avenue for raising environmental concerns, and the agency has a mechanism for addressing those concerns, before an antenna structure registration application is completed and filed with the Commission. We thereby provide a meaningful opportunity for interested parties to seek an EA for actions that do not ordinarily require an EA, as required by the court in
41. Under the process that the Commission adopts today, described in detail below and in a Public Notice that will be issued by the Wireless Telecommunications Bureau before the environmental notification process becomes operational, each prospective applicant for a new tower that requires antenna structure registration, or for a modification of a registered tower that is substantial enough to potentially have a significant environmental impact, must initially submit into the ASR system a partially completed FCC Form 854 that includes information about the proposed antenna structure but is not yet complete for filing. This will consist substantially of information that is already required on Form 854, augmented to include the type of tower structure and the anticipated lighting. The applicant must also provide local notice of its proposed tower through publication in a newspaper or other appropriate means, such as by following the local zoning public notice process. Applicants may provide local notice under both this process and the Commission's procedures implementing Section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. 470f, through a single publication.
42. After local public notice has been provided, the Commission will post the partially completed FCC Form 854 on its ASR Web site in searchable form for 30 days. Members of the public will have an opportunity to file a request for further environmental review (Request) of the proposed tower during this 30-day period. Oppositions will be due 10 calendar days after expiration of the time for filing Requests. Replies will be due 5 business days after expiration of the time for filing oppositions. Oppositions and replies must be served on the parties to the proceeding.
43. Upon completion of the 30-day notice period, the Commission staff, after reviewing any Requests, will notify the applicant whether an EA is required under Section 1.1307(c) or (d) of the Commission's rules. If no EA is required based on the partially completed Form 854 and any Requests, and if the applicant has determined that no EA is otherwise required under Section 1.1307(a) or (b), it may then update and file Form 854 certifying that the tower will have no significant environmental impact. At this point, if all other required information has been provided, the Form 854 will be deemed complete and can be processed accordingly.
44. The Commission recognizes that cases may arise that involve emergency situations, such as where temporary towers need to be built quickly to restore lost communications. Such situations often require grants of special temporary authority (STAs). In such cases, upon an appropriate showing and at the request of the applicant, the processing Bureau may waive or postpone this notice requirement. The Bureau shall ordinarily require in such cases that notice be provided within a short period after authorization or construction, unless the Bureau concludes in a particular case that provision of such notice would be impracticable or not in the public interest. In appropriate circumstances, where a temporary facility constructed in an emergency situation will be replaced by a permanent tower, environmental notification for the temporary and permanent towers may be combined.
45. In addition, after the effective date of these rules, the pre-application process will also become the procedural vehicle for filing and reviewing EAs for registered towers that require an EA. The applicant either may include an EA when it first initiates the environmental notification process if it has determined that the tower meets one of the criteria set forth in Section 1.1307(a) or (b) of the Commission's rules, or it may subsequently submit an EA if the applicant or the Commission later determines that an EA is necessary. The EA will then be posted on the ASR Web site, and members of the public will have the opportunity to object in much the same manner as they can file petitions to deny ASR applications filed with EAs today. However, local notice will be required only once for any tower unless there is a change in location, significant increase in height, or other change in parameters that may cause the tower to have a greater environmental impact. After considering the EA and any Requests, the Commission will
46. The Commission takes these actions pursuant to its “wide discretion in fashioning its own procedures” to implement its environmental obligations.
47. Like the “hard look” rules in
48. The Commission also notes that the record in this proceeding includes two petitions for expedited rulemaking, numerous pleadings in response to two Public Notices seeking comment on the two petitions, and several
49. In this Section, the Commission begins by setting out the actions subject to the new environmental notification process. Second, the Commission discusses the timing of the environmental notification process. Third, the Commission explains its decision to require both local and national notice. Fourth, the Commission discusses the timing and pleading standards governing Requests for further environmental review. Fifth, the Commission discusses applications that require a service-specific application in addition to FCC Form 854. Finally, the Commission discusses the treatment of applications that are pending on the effective date of the new environmental notification rules and procedures.
50.
51.
52. Consistent with this principle, the Commission applies the environmental notification process to all ASR applications for new towers (except as described in paragraph 57,
53. FCC Forms 854 that are submitted for purely administrative purposes or to report modifications of a nature that do not have a potentially significant environmental effect will not be subject to the environmental notification process. Thus, where an applicant is required to submit an FCC Form 854 only for notification purposes, such as to report a change in ownership or contact information, the dismantlement of a registered tower, tower repair, replacement of tower parts, or any modification that does not involve the physical structure, lighting, or geographic location of a registered antenna structure, the applicant will not have to complete the environmental notification process prior to submitting the Form 854. Instead, the applicant will be able to indicate that it is submitting the application form only to effect an administrative change or notification, for which the pre-application environmental notification process is not required.
54. In the case of replacement towers or modifications to existing towers, including collocations on existing towers or other structures, the applicability of the environmental notification process will depend upon the nature of any change to the existing structure. The MOU defines a Replacement Tower for which public notice should not be required as a communications tower the construction of which does not involve a substantial increase in size to the tower it is replacing, as defined in Section III.B. of the Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission (NPA), 47 CFR part 1, appendix C, or construction or excavation more than 30 feet beyond the existing tower property. Consistent with this recommendation, as an interim measure pending completion of its programmatic environmental analysis, the Commission will not require the environmental notification process for any replacement tower at the same location as an existing tower, not involving a change in lighting, so long as it does not involve a substantial increase in size under Section III.B of the NPA or construction or excavation more than 30 feet beyond the tower property. The Commission considers a replacement tower located less than one second longitude and latitude from an existing tower which does not require a new aeronautical study with an FAA determination to be at the same location. Similarly, the Commission will not require notice where an antenna is being placed on an existing tower or non-tower structure and the placement of the antenna does not involve a substantial increase in size or excavation more than 30 feet beyond the property. If a proposed tower replaces another tower but involves a substantial increase in size or construction or excavation more than thirty feet beyond the tower property, it is not exempted from the environmental notification process as a replacement tower. Additionally, where an EA is required to be filed for a replacement tower under Section 1.1307(a) or (b) of the Commission's rules or if the Bureau determines that an EA is required under Section 1.1307(c) or (d) of the Commission's rules, such a tower is not exempted from the environmental notification process.
55. The notice regime for ASR applications that involve changes in lighting to existing towers or replacement towers will depend on the nature of the lighting change. The parties to the MOU developed a ranking of FAA Lighting Styles based on their likely effect on migratory birds and recommended that public notice be required for a change to a less preferred but not to a more preferred FAA Lighting Style. However, recommendations from the Department of Interior Office of Environmental Policy and Compliance and FWS based on recent scientific literature strongly suggest that L-810 steady-burning lights pose the greatest danger of migratory bird mortality and that the differences among styles of flashing or blinking lights are not statistically significant. Therefore, the Commission declines Blooston Commenters' proposal to base decisions regarding environmental processing on whether red or white lights are used. There is insufficient evidence in the record that the color of lighting is a critical factor in determining avian mortality. In addition, Conservation Groups recommend that the Commission verify the continuing accuracy of the order of tower lighting styles specified in the MOU. Furthermore, the FAA may soon consider changes to Advisory Circular AC 70/7460 that would permit use of red flashing or blinking lights without steady-burning L-810s. In these circumstances, pending completion of its programmatic environmental
56. Where information pertaining to a prospective antenna structure registration is amended after environmental notification but prior to grant of an ASR application, the Commission generally will require a new environmental notification only if the amendment is of a nature that would have required environmental notification in the context of an application for replacement or modification of an existing tower. To prevent abuse, however, the Commission will require the applicant to provide a new environmental notification to the public for any amendment that increases the proposed tower height, even if it does not constitute a substantial increase in size.
57.
58.
59. Applicants will be required to complete environmental notification before filing their completed ASR applications, and may do so before receiving the FAA's No Hazard Determination. (A prospective applicant that submits its environmental notification information before receiving a No Hazard Determination should specify the lighting that it expects will be prescribed for the tower. In the event the FAA specifies a less preferred lighting style, it will have to provide a second notice with the corrected information.) Thus, the environmental notification process constitutes a notification, not a certification, and submission of the partially completed Form 854 without an EA is not a representation to the Commission that the tower will have no significant environmental effects. This certification will be required when the environmental notification process is complete and the applicant files its completed FCC Form 854. Completing the pre-ASR filing environmental notification process as an initial step before a complete ASR application can be filed with the Commission ensures that interested persons have a timely opportunity to participate in a manner that can inform the Commission's decision-making with respect to an individual ASR application. This is also consistent with Section 1501.2 of the CEQ regulations, which generally directs that the Federal agency commence the NEPA process as early as possible and before there has been any inadvertent, irretrievable commitment of resources. 40 CFR 1501.2(d)(3). Earlier completion of the notification process further serves the public interest because it requires less change to the automated ASR system, upon which the FAA currently relies to ensure air navigation safety, and that has operated for more than a decade efficiently and without material error. Moreover, from a processing standpoint, applicants can complete the notice process simultaneously with other processes, including environmental reviews that may require consultation with other Federal agencies, obtaining the FAA No Hazard Determination, and local zoning. Therefore, the environmental notification process will not ordinarily cause additional delays unless environmental issues are raised.
60. In addition, under the new process EAs for proposed registered towers will be filed, made available for public comment, and reviewed prior to filing of the ASR application. Accordingly, the 30-day comment period will be announced on the Commission's ASR Web site instead of through a notice published in the
61. The Commission requires both national and local notice for towers that must be registered in the ASR system in order fully to inform all parties that may be interested in or affected by the environmental consequences of a proposed tower. The Commission recognizes that the environmental effects of a specific proposed tower construction may be of national concern, of local concern, or of both national and local concern. Conservation groups and some industry parties have urged that the Commission adopt national notice, while other industry commenters have suggested that the Commission adopt local notice. Their reasons in favor of one approach or another are discussed here, but in effect those reasons support using both forms of notice.
62. National notice provided online at the Commission's Web site was an approach suggested by the
63. Local notice complements the broad reach of national notice by enabling persons likely to be directly affected by the potential environmental effects of proposed antenna structures at specific locations to raise concerns of which national entities may not be aware. It also reaches those persons or entities without an institutional concern in safeguarding a particular aspect of the environment but with a potential interest in the effects of tower sitings in their immediate communities. The Commission has successfully implemented local notice for historic preservation review and for radio broadcast applications, and the local notice requirements the Commission promulgates today are modeled after those regimes.
64. The Commission finds that by requiring both local and national notice, it can best meet its statutory responsibility regarding the development of procedures that incorporate environmental considerations into agency decision-making. 42 U.S.C. 4331(b), 4332(2)(B). In particular, these requirements effectuate the mandate of Section 1506.6(b) of the CEQ regulations that Federal agencies shall “provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies that may be interested or affected.” 40 CFR 1506.6(b). CEQ has further clarified that “[t]he objective is to notify all interested or affected parties,” and that “[a] combination of methods may be used to give notice.”
65. In sum, the Commission will require prospective ASR applicants to provide local notice of their proposals, either by publication in a local newspaper of general circulation or by other appropriate means. The Commission will also post notice of each prospective application on its Web site on the date requested by the applicant, which must be on or after the date the applicant provides local notice. Interested parties will have an opportunity to respond to these notices by filing Requests for further environmental review with the Commission. By requesting the applicant to specify the date for national notice, the Commission allows applicants to coordinate the local and national notice periods as closely as possible, while also assuring that the
66. An interested member of the public who believes that a proposed tower (including a covered tower modification) may have a significant impact on the environment may submit a Request for further environmental review to the Commission pursuant to Section 1.1307(c) of the Commission's rules. The Request must be received by the Commission within 30 days after notice of the proposed tower both has been provided locally and has been made available nationally through the ASR Web site. The time period will be computed according to the general rule prescribed in Section 1.4(c) of the Commission's rules. Requests will be subject to the pleading standard that is set forth in Section 1.1307(c) of the Commission's rules. Late pleadings or pleadings that do not meet the standards in Section 1.1307(c) may be subject to dismissal.
67. In setting the period to file a Request at 30 days, the Commission applies to all ASR filings subject to the environmental notification process the same time period that is currently in place for challenges to ASR filings with EAs. The Commission rejects the Infrastructure Coalition's proposal to set the period to object at 14 days, as well as proposals by other commenters to set the time period at 15 to 20 days, as the Commission finds that such a timeframe is inadequate to allow for meaningful public participation in this context. At the same time, the Commission rejects the 60-day comment period proposed by the Conservation Groups. The Commission does not believe that interested parties should need that much time to file comments, particularly as it does not require the objecting party to include a comprehensive study of impacts to evaluate whether the requirements of applicable environmental laws are properly met. Rather, as discussed below, it is sufficient that a Request “set[s] forth in detail the reasons justifying or circumstances necessitating environmental consideration in the decision-making process.” 47 CFR 1.1307(c). Therefore, the Commission concludes that a 60-day comment period would unnecessarily obstruct the timely deployment of services while providing minimal benefit.
68. Pursuant to Section 1.1307(c) of the Commission's rules, a request for further environmental processing of an otherwise categorically excluded proposed action must “set[] forth in detail the reasons justifying or circumstances necessitating environmental consideration in the decision-making process.” In addition, Section 1.1307(c) cross-references Section 1.1313 of the rules. Section 1.1313(a) provides that “[i]n the case of an application to which section 309(b) of the Communications Act applies, objections based on environmental considerations shall be filed as petitions to deny.” This means, among other things, that the objection must include “specific allegations of fact sufficient to make a
69. In its Petition, the Infrastructure Coalition asks the Commission to require that any objection on environmental grounds filed against an ASR application must be filed as a petition to deny under Section 1.1313(a). It argues that such procedures are necessary to prevent frivolous objections. Several commenters representing licensees and tower owners support the Infrastructure Coalition's petition. The Conservation Groups, however, oppose application of the petition to deny standard to these objections, arguing that it would limit the public's ability to participate in the NEPA process.
70. The Commission declines to apply the petition to deny standard to Requests for further environmental review of prospective registered towers. First, Section 1.1313(a) by its terms does not apply to such Requests. Section 1.1313(a) encompasses objections to applications to which Section 309(b) of the Communications Act applies; i.e., applications for an instrument of authorization for a station in the broadcasting or common carrier services, or in certain other services if the Commission so prescribes by rule. Here, a Request would not be filed in response to any application, but in response to a notification that precedes an application for antenna structure registration. Even if the tower proponent elects to file an associated license application before completion of the environmental notification process, such application will be filed subject to completion of the environmental notification process so that the tower proponent will not yet have made any affirmative certification as to environmental effect. Thus, the Request for environmental processing in response to the environmental notification falls outside the scope of Section 1.1313(a).
71. Moreover, the Commission finds it better as a matter of policy to require these Requests only to set forth detailed reasons for environmental consideration as provided in Section 1.1307(c). Section 1500.2(d) of the CEQ regulations requires Federal agencies to encourage and facilitate public involvement in decisions that affect the quality of the human environment.
72. Under the Commission's rules, some proposed towers are subject to both ASR and service-specific application requirements. The Commission's current rules and procedures vary by licensed service regarding when and how an EA is submitted for towers that may significantly affect the environment where more than one application is filed. Applications for Wireless Radio Authorization (FCC Form 601) involving major modifications (including all applications for facilities that may have a significant environmental effect) are routinely placed on public notice, but that notice does not distinguish applications filed with attached EAs from other license applications that may not involve tower construction or potential environmental effects. An applicant may attach an EA to either its Form 601 or Form 854 application, and may rely on a resulting FONSI to certify on the other application that its action will have no significant environmental effect. Broadcast construction (
73. Some commenters argue that Section 1506.6 of the CEQ rules requires that the Commission notify the public separately regarding each application associated with a proposed antenna structure subject to registration under part 17. Others contend that it is sufficient to provide a single opportunity, in connection with the ASR process, for the public to comment on the environmental effects of each proposed tower. Consistent with current procedures that generally require only one NEPA review for a single proposed antenna structure, the Commission is not persuaded that, from an environmental standpoint, the decision-making involved in processing service-specific construction permits or license applications raises discrete issues from those involved in determining whether to register a tower from which licensed communications service will be provided. The Commission's obligation to accommodate public participation in its NEPA procedures for registering communications towers does not require that the public be afforded multiple opportunities to comment on the environmental effects of a single tower project simply because both a tower registration and a construction permit or license are required to authorize operation from the proposed tower.
74. At the same time, it is important that every registered tower (other than the exceptions discussed above) complete procedures that ensure a specific opportunity for the public to voice environmental concerns, as stated in the court's order. The public may not have this opportunity if applicants can avoid environmental notification by attaching any required EA for a proposed antenna structure to a service-specific construction permit or license application (
75. The Commission also implements procedures that will enable applicants for licenses that require frequency coordination to submit FCC Form 601 before completing the environmental notification process. Under the Commission's current procedures, FCC Form 601 cannot be filed for a facility that requires antenna structure registration until antenna structure registration has been granted. The Land Mobile Communications Council expresses concern that if the Commission were to continue to require grant of ASR before the FCC Form 601 could be filed, a party whose environmental notification generated an environmental Request necessitating review could lose its frequency to a second party whose later notification generated no Requests and that the notice process itself might alert a potential competing applicant to the benefit of such action. To address such concerns, the Commission will permit wireless radio, public safety, and other license applicants whose proposed towers are subject to registration to file FCC Form 601 before completing the environmental notification process so long as the applicant has obtained its FAA No Hazard Determination and notice has been provided both locally and through the Commission's Web site. In addition, in order to guard against speculative reservations of frequencies or sites, the Commission also requires FCC Form 601 applicants that have not yet obtained their ASR Registration Number to provide the Commission with an update of the status of their environmental review every 60 days.
76. The Commission clarifies that the environmental process will not affect the processing of a licensing application for a collocation on an existing tower that has an ASR application pending for a change that is unrelated to the collocation. For example, the tower owner may have a pending application to change the lighting system or increase the tower height to accommodate a different collocator. In such instances, the processing of the license application for the unrelated collocation will proceed independently of the ASR application.
77. The effective date of the environmental notification requirements will be established in a Public Notice to be issued by the Wireless Telecommunications Bureau. ASR applications that are pending on the effective date ordinarily will not be required to complete the environmental notification process. However, an amendment to an ASR filing that occurs after the effective date will be subject to the environmental notification requirements as set forth above. Similarly, amendments to an EA may require environmental notification.
78. The Commission is obligated under NEPA to avoid irretrievable commitments of resources without assessing the environmental effects of its actions and “to predict the environmental effects of a proposed action before the action is taken and those effects are fully known.”
79. Meanwhile, the Commission establishes interim processing procedures to protect migratory birds pending the completion of this process. Specifically, the Commission applies Section 1.1307(d) of its rules, 47 CFR 1.1307(d) to require that an EA that includes a discussion of potential impacts on migratory birds be filed for any proposed new registered tower over 450 feet in height AGL. This requirement will also apply to: replacement towers over 450 feet in height AGL that involve a substantial increase in size to the tower being replaced; expansions of existing towers over 450 feet in height AGL that constitute a substantial increase in size; and conversions of a tower over 450 feet in height AGL to a less preferred lighting style. For all other registered towers, an EA will not be routinely required except as specified in Section 1.1307(a) or (b). The Commission will continue to apply Section 1.1307(c) and (d) on a case-by-case basis to determine whether an EA is required for any such tower, taking into consideration any Requests received during the public notice period.
80. The Commission adopts these interim measures pursuant to the mandate in Section 1.1307(d) of its rules that the processing Bureau shall require an EA if it determines that an otherwise categorically excluded proposal may have a significant environmental effect. In
81. The Commission's selection of 450 feet AGL as the threshold for the interim EA filing requirement is consistent with evidence in the Migratory Birds rulemaking record and elsewhere. As illustrated in Figure 12 of the Draft Programmatic Environmental Assessment of the Antenna Structure Registration Program (Aug. 26, 2011) (Draft Programmatic EA), data from existing studies show no evidence of large-scale mortality for towers less than approximately that height. Data from the peer-reviewed Michigan Bird Study, for instance, confirm the relevance of tower height in assessing the degree of risk to migratory birds at individual towers. That study suggests that avian collisions occur 68-86 percent less frequently at towers between 380 and 480 feet AGL compared with towers greater than 1,000 feet AGL. Joelle Gehring, Paul Kerlinger, and Albert M. Manville II,
82. The Commission adopts the EA requirement for proposed towers over 450 feet in height AGL as a reasonable, temporary measure for the protection of migratory birds pending completion of the programmatic EA, which will evaluate whether scientific evidence supports adoption of permanent measures. Further, the interim measure is temporary and is consistent with the tower height threshold for requiring an EA proposed in the consensus MOU between industry representatives and environmental groups. In particular, under the MOU, new towers taller than 450 feet AGL would require an EA for avian effects. New towers of a height of 450 feet or less AGL, as well as replacement towers and other ASR filings, would not initially require an EA as a categorical matter. The inclusion in the MOU of a 450-foot threshold for an interim EA filing requirement supports the Commission's conclusion that this interim requirement strikes an appropriate balance between protecting migratory birds and ensuring that ASR applications can be processed in a manner that facilitates the rapid deployment of communications services.
83. In assessing, pursuant to Sections 1.1307(c) and (d), whether further environmental processing is necessary for particular towers 450 feet in height or less AGL, the Commission expects that the processing Bureau will consider factors including the height of the tower and the lighting to be used. Consistent with the MOU, the Commission recognizes that a tower close to 450 feet in height AGL is more likely to have a significant environmental impact on migratory birds than a tower closer to 200 feet in height. The Commission further expects that the Bureau will afford significant weight to the absence of public objection in response to the notice of proposed construction that the Commission requires today.
84. The Commission clarifies that if a proposed tower is initially submitted for environmental notification with a height of 450 feet AGL or less and the submission is subsequently amended so that the height will exceed 450 feet AGL, an EA will be required even if the change does not constitute a substantial increase in size. The Commission finds that this provision is necessary in order to ensure that prospective applicants for towers just above 450 feet AGL do not game the system.
85. For purposes of clarity, the Commission adds a note to Section 1.1307(d) of its rules to describe the circumstances in which the Wireless Telecommunications Bureau shall require, or consider whether to require, an environmental assessment with respect to migratory birds for antenna structures subject to registration under part 17 of its rules. This note will remain in effect pending the outcome of the programmatic EA and any subsequent programmatic EIS if required, and pending the completion of this rulemaking by means of a decisional order. The Commission delegates authority to the Wireless Telecommunications Bureau to adopt
86. This Section outlines the environmental notification process that an applicant for the registration of an antenna structure must undertake before filing a completed Antenna Structure Registration (ASR) application on FCC Form 854. Technical details about the process for submitting this pre-filing notification will be provided in a Public Notice that will be released before the rules take effect. The Commission delegates to the Wireless Telecommunications Bureau (WTB) the authority to change procedural aspects of the process outlined below by Public Notice so long as those changes do not affect the substantive rights of any party.
• Applicants will commence the process by submitting information on FCC Form 854, including information regarding the location, height, type, and lighting of the proposed structure. This is a pre-application submission that does not constitute the filing of a completed application.
○ The applicant may commence the environmental notification process on Form 854 either before or after it receives an FAA No Hazard Determination. If the applicant commences the process before the No Hazard Determination is received, the applicant must provide the anticipated lighting and must later amend its submission if the FAA-approved lighting is different.
○ The environmental notification process may be conducted simultaneously with other processes, including environmental reviews that may require consultation with other Federal agencies and local zoning procedures.
○ The FCC will assign the proposed construction a unique file number when the partially completed Form 854 is submitted.
• Following the initial Form 854 submission, the applicant shall provide local notice either by publication in a local newspaper of general circulation or by other appropriate means, such as by following local zoning public notice requirements.
○ The text of the local notice must include:
The descriptive information submitted in the Form 854 as part of the environmental notification process;
Instructions for filing any Request for further environmental review no later than 30 days after information on the proposed tower is posted on the FCC's Web site, including the relevant electronic and regular mail addresses and the unique Form 854 File Number issued by the FCC; and
Instructions for serving a copy of any Request upon the applicant.
○ Applicants may provide through a single publication local notice under both this process and the Commission's procedures implementing section 106 of the National Historic Preservation Act (NHPA),
The single notice satisfies the timing requirements of both provisions, and it clearly describes and distinguishes both the requirement to file environmental Requests with the Commission and the separate process for submitting comments regarding potentially affected historic properties to the applicant.
The applicant forwards any comment that substantially relates to potentially affected historic properties to the State Historic Preservation Officer or Tribal Historic Preservation Officer, in accordance with the terms of the Nationwide Programmatic Agreement.
• The applicant shall state in its initial FCC Form 854 submission the date on which it requests that the FCC provide national notice of the proposed construction. This date must be on or after the date the applicant provides local notice.
○ On or after the national notice date the applicant has requested, the Commission will post the information contained in the applicant's initial Form 854 submission, or a link to such information, in searchable form on its Web site. This information will remain posted for 30 days.
○ If local notice is not provided before the requested national notice date, the applicant must amend its Form 854 submission to provide a new national notice date.
• Facilities That Also Require Service-Specific Applications.
○ Applicants that submit both an ASR application and a service-specific application for a particular tower must complete the environmental notification process on Form 854 and submit any required Environmental Assessment (EA) through that process. Depending on the service, the applicant may also be required to file a copy of the EA with its service-specific application.
• Wireless radio, public safety, and other applicants whose proposed towers are subject to registration and require a license application on FCC Form 601 must have begun the Form 854 environmental notification process before filing Form 601, but may file Form 601 before completing the Form 854 environmental notification process.
○ In the event an EA is required, it shall be filed only with Form 854. WTB will provide instructions at a later date for completing the environmental question on Form 601 in such situations.
○ Applicants whose proposed towers require an EA but do not require registration shall continue to file an EA with Form 601.
• An applicant that chooses to file FCC Form 601 before the environmental notification process is complete must have already obtained an FAA No Hazard Determination and provided local notice of the proposed construction, and the FCC must have posted notification of the proposed construction on its Web site.
○ Such an applicant shall provide its Form 854 File Number in place of the ASR Registration Number that is currently required.
○ Upon grant of the ASR application, the applicant must amend the FCC Form 601 to replace the Form 854 File Number with the ASR Registration Number.
• FCC Form 601 applicants that have not yet obtained their ASR Registration Number must provide the Bureau with an update of the status of their environmental review every 60 days from the date the FCC Form 601 was filed. Failure to provide the update may result in dismissal of the FCC Form 601 application.
○ Such an update must reflect active pursuit of the environmental review.
○ Updates will not be required while action on the environmental notification filing is pending at the Commission, such as when the Commission is considering whether to grant a Request for further environmental processing or is reviewing a filed EA.
○ WTB will prescribe by public notice the procedures for providing such updates.
• An applicant electing to file the associated license application after completion of environmental processing should use its ASR Registration Number to file FCC Form 601 in the first instance, as is the practice today.
• An applicant to build a facility in any broadcast service that also requires the completion of FCC Form 854 will now be required to submit a Form 854 environmental notification filing and,
○ The same EA must be submitted with both the broadcast construction permit application and the Form 854 environmental notification submission.
○ Applicants whose proposals do not require registration but do require an EA under Section 1.1307 (such as construction in a flood plain that does not require ASR) should file the EA only with the construction permit application form.
• The Media Bureau may continue to accept applications requiring ASR that are submitted prior to obtaining an ASR Registration Number, with the caveat that such applications will not be granted until the environmental notification process has been completed and the ASR Registration Number supplied.
○ Applicants whose applications can be filed outside specified filing windows, such as applications for minor changes to existing authorizations, and whose tower projects require registration, may elect to file their construction permit applications either before or after completing the Form 854 environmental notification process.
○ Applicants that file the construction permit application after completing the environmental notification process and obtaining a grant of Antenna Structure Registration shall either answer “Yes,” or “No” with an attached EA, in response to the environmental certification question on the construction permit application.
○ Applicants that file their construction permit applications before completion of the environmental notification process are advised to check “No” in response to the environmental certification question on the construction permit application, indicating that the project has not been determined to be excluded from environmental processing.
Such an applicant should also attach to the Application an Exhibit (called for by the environmental certification item in each broadcast construction permit form) explaining whether or not the applicant has commenced the evaluation of the environmental effects of any proposed construction and where the applicant is in that process.
• Applicants for new construction permits or major changes that are subject to the Commission's competitive bidding procedures initiate the process with the generic FCC Form 175 (Application to Participate in an FCC Auction) rather than a service-specific application (such as those listed above) containing an environmental certification.
○ FCC Form 175 does not contain an environmental certification, and no environmental review or environmental notice is necessary to submit it.
○ Only the winning bidder who has made the final bid payment will need to submit a “long-form,” service-specific application, and it is at that time that an applicant subject to ASR will need to undertake the pre-ASR environmental notification process and complete Form 854.
○ Similarly, after a dispositive preference is awarded under Section 307(b) of the Communications Act, an applicant subject to ASR will need to undertake the pre-ASR environmental notification process and complete Form 854.
• An earth station license applicant using FCC Form 312 or 312EZ, which is required under Part 17 to notify the FAA of its plans to construct an antenna structure (e.g., an earth station), must complete the environmental notification process prior to submission of a complete FCC Form 854 to register the antenna structure.
○ An applicant filing FCC Form 312 will be required to attach a completed FCC Form 854 to its FCC Form 312 application.
○ An applicant filing FCC Form 312EZ electronically will instead be required to provide its ASR Registration Number in the appropriate Section of the FCC Form 312EZ.
○ If an EA was required as part of the environmental notification process and the Bureau issued a Finding of No Significant Impact (FONSI), the applicant will no longer be required to submit an EA with its FCC Form 312 or 312EZ. Instead, the applicant will be able to rely on the FONSI in order to indicate on its license application that the proposed earth station will not have a significant environmental effect.
• Amendments to FCC Form 854 that are filed after the provision of local notice or posting on the FCC's Web site do not require new local or national notice if made only for the following purposes:
○ Changes to administrative information or other changes not affecting the structure's location, height, lighting, or physical configuration.
○ Changes to a more preferred or equally preferred lighting style as set forth in amended rule Section 17.4(c)(1)(iii), including removal of proposed lighting.
○ Reduction in the height of the structure, unaccompanied by any other change in the physical structure of the proposed tower.
• All other changes to the location, physical characteristics, or lighting of the proposed structure will require an additional local notice, an additional national notice, and re-initiation of the 30-day period for interested persons to submit Requests for further environmental review.
○ Such changes include any increase in the height of the structure even if the increase does not constitute a substantial increase in size.
• An amendment to add an EA will require a new posting on the FCC's Web site and opportunity for comment but not a new local notice (see Section F below).
• Requests for further environmental review must be received by the Commission within 30 days after information regarding a proposed construction is posted on the Commission's Web site. Late filed Requests may be subject to dismissal.
○ The Wireless Telecommunications Bureau will make provision for filing of Requests either electronically or by mail. To ensure timely receipt and to facilitate processing, electronic filing will be strongly encouraged.
○ Requests must be served on the prospective applicant.
• Oppositions will be due 10 calendar days after expiration of the time for filing Requests. Replies will be due 5 business days after expiration of the time for filing oppositions. Oppositions and replies must be served on the parties to the proceeding.
• Proceedings involving environmental filings for a specific structure are restricted proceedings under Section 1.1208 of the Commission's rules. Information presented to the Bureau must be served on all parties pursuant to Section 1.1202(d) of the Commission's rules.
• After completion of the 30-day notice period and after reviewing any Requests, the Commission staff will notify the applicant whether an EA is required under Section 1.1307(c) or (d) of its rules. Staff will make every effort to provide this notification as promptly as possible, particularly in cases where no Requests are received.
• If no EA is required based on the Form 854 filing and any Requests, and if the applicant has determined that no EA is otherwise required under Section 1.1307(a) or (b), it may then update Form 854 to certify that the tower will have no significant environmental impact.
• At this point, if all other required information has been provided, the Form 854 will be deemed complete and can be processed accordingly.
• If an applicant is required, under the Commission's rules, to file an Environmental Assessment (EA) in connection with a structure that is required to be registered, such EA must be filed as part of the environmental notification process.
○ An applicant may determine that an EA is necessary when it makes its initial filing, in which case it will attach the EA to that filing.
○ Alternatively, an EA may be supplied at a later date by amending an existing filing, if either the applicant or the Commission determines that a potentially significant environmental effect may exist.
• Regardless of when in the process it is filed, the EA will be placed on notice on the Commission's Web site, thus commencing a 30-day period for public comment.
○ If the EA is filed with the initial Form 854 submission, it must also be placed on local notice in the same manner as an environmental notification filing without an attached EA.
○ If the EA is added to a Form 854 submission that has already gone on local notice, additional local notice is not required in most instances.
The prospective applicant must serve the EA on any party that has filed a Request in response to the earlier notice.
A second publication in a local newspaper of general circulation or equivalent local notice will be required if there has been a change in the proposed structure's geographic location, height, configuration, or lighting, other than a reduction in height or a change to a more preferred or equally preferred lighting style.
• After considering the EA and any Requests, the Bureau will either issue a Finding of No Significant Impact (FONSI), require amendments to the EA, or determine that an Environmental Impact Statement is needed.
• Upon issuance of a FONSI, the applicant may complete the Form 854 filing to certify that the tower will have no significant environmental impact.
87. The Commission has determined that the environmental notification rules and the implementation of interim processing standards, pursuant to Section 1.1307(d), do not require the publication of a general notice of proposed rulemaking so as to require the preparation of a Regulatory Flexibility Analysis pursuant to the Regulatory Flexibility Act, 5 U.S.C. 603, 604 (RFA).
88. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
89. The Commission will send a copy of this Order on Remand to Congress and the Government Accountability Office, pursuant to the Congressional Review Act,
90. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
91. Accordingly,
92.
93.
94.
95.
96.
97.
Administrative practice and procedure, Environmental impact statements, and Reporting and recordkeeping requirements.
Aviation safety, Communications equipment, and Reporting and recordkeeping requirements.
Communications equipment, and Reporting and recordkeeping requirements.
Administrative practice and procedure, Communications equipment, and Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 7, 22, 24, 25, 27, 80, 87 and 90 as follows:
15 U.S.C. 79
(a) * * *
(2) In accordance with § 1.1307 and § 17.4(c) of this chapter, the Bureau will address any environmental concerns prior to processing the registration.
(d)
(1) The antenna structure owner has filed an antenna structure registration application (FCC Form 854);
(2) The antenna structure owner has provided local notice and the Commission has posted notification of the proposed construction on its Web site pursuant to
(3) The antenna structure owner has obtained a Determination of No Hazard to Aircraft Navigation from the Federal Aviation Administration. In such instances, the applicant shall provide the FCC Form 854 File Number on its application. Once the antenna structure owner has obtained the Antenna Structure Registration Number, the applicant shall amend its application to provide the Antenna Structure Registration Number, and the Commission shall not grant the application before the Antenna Structure Registration Number has been provided. If registration is not required, the applicant must provide information in its application sufficient for the Commission to verify this fact.
(e)
(2) For applications that propose any facilities that are not subject to the process set forth in § 17.4(c) of this chapter, the applicant is required to indicate at the time its application is filed whether or not a Commission grant of the application for those facilities may have a significant environmental effect as defined by § 1.1307. If the applicant answers affirmatively, an Environmental Assessment, required by § 1.1311 must be filed with the application and environmental review by the Commission must be completed prior to construction.
(a) * * *
(4) Application or amendment requesting authorization for a facility that may have a significant environmental effect as defined in § 1.1307, unless the facility has been determined not to have a significant environmental effect through the process set forth in § 17.4(c) of this chapter.
(g)
(b) * * *
The specific height of an antenna tower or supporting structure, as well as the specific diameter of a satellite earth station, in and of itself, will not be deemed sufficient to warrant environmental processing,
(d) * * *
Pending a final determination as to what, if any, permanent measures should be adopted specifically for the protection of migratory birds, the Bureau shall require an Environmental Assessment for an otherwise categorically excluded action involving a new or existing antenna structure, for which an antenna structure registration application (FCC Form 854) is required under part 17 of this chapter, if the proposed antenna structure will be over 450 feet in height above ground level (AGL) and involves either:
1. Construction of a new antenna structure;
2. Modification or replacement of an existing antenna structure involving a substantial increase in size as defined in paragraph
3. Addition of lighting or adoption of a less preferred lighting style as defined in § 17.4(c)(1)(iii) of this chapter. The Bureau shall consider whether to require an EA for other antenna structures subject to § 17.4(c) of this chapter in accordance with § 17.4(c)(8) of this chapter. An Environmental Assessment required pursuant to this note will be subject to the same procedures that apply to any Environmental Assessment required for a proposed tower or modification of an existing tower for which an antenna structure registration application (FCC Form 854) is required, as set forth in § 17.4(c) of this chapter.
§§ 4, 303, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, Interpret or apply 301, 309, 48 Stat. 1081, 1085, as amended; 47 U.S.C. 301, 309.
(c) Each prospective applicant must complete the environmental notification process described in this paragraph, except as specified in paragraph (c)(1) of this section.
(1)
(i) For notification only, such as to report a change in ownership or contact information, or the dismantlement of an antenna structure;
(ii) For a reduction in height of an antenna structure or an increase in height that does not constitute a substantial increase in size as defined in paragraph I(C)(1)-(3) of Appendix B to part 1 of this chapter, provided that there is no construction or excavation more than 30 feet beyond the existing antenna structure property;
(iii) For removal of lighting from an antenna structure or adoption of a more preferred or equally preferred lighting style. For this purpose lighting styles are ranked as follows (with the most preferred lighting style listed first and the least preferred listed last): no lights; FAA Lighting Styles that do not involve use of red steady lights; and FAA Lighting Styles that involve use of red steady lights. A complete description of each FAA Lighting Style and the manner in which it is to be deployed can be found in the current version of FAA, U.S. Dept. of Transportation, Advisory Circular: Obstruction Marking and Lighting, AC 70/7460;
(iv) For replacement of an existing antenna structure at the same geographic location that does not require an Environmental Assessment (EA) under § 1.1307(a) through (d) of this chapter, provided the new structure will not use a less preferred lighting style, there will be no substantial increase in size as defined in paragraph I(C)(1)-(3) of Appendix B to part 1 of this chapter, and there will be no construction or excavation more than 30 feet beyond the existing antenna structure property;
(v) For any other change that does not alter the physical structure, lighting, or geographic location of an existing structure; or
(vi) For construction, modification, or replacement of an antenna structure on Federal land where another Federal agency has assumed responsibility for evaluating the potentially significant environmental effect of the proposed antenna structure on the quality of the human environment and for invoking any required environmental impact statement process, or for any other structure where another Federal agency has assumed such responsibilities pursuant to a written agreement with the Commission.
(2)
(3)
(4)
(5)
(i)
(ii)
(6)
(7)
(8)
(9)
47 U.S.C. 154, 222, 303, 309, 332.
(d) * * *
(4) For any construction or alteration that would exceed the requirements of § 17.7 of this chapter, the licensee has notified the appropriate Regional Office of the Federal Aviation Administration (FAA Form 7460-1), secured a valid FAA determination of “no hazard,” and received antenna height clearance and obstruction marking and lighting specifications (FCC Form 854R) from the FCC for the proposed construction or alteration.
47 U.S.C. 154, 301, 302, 303, 309, 332.
(b)
(f)
47 U.S.C. 701-744. Interprets or applies Sections 4, 301, 302, 303, 307, 309, and 332 of the Communications Act, as amended, 47 U.S.C. 154, 301, 302, 303, 307, 309, 332.
(a) Construction permits are not required for satellite earth stations. Construction of such stations may commence prior to grant of a license at the applicant's own risk. Applicants must comply with the provisions of 47 CFR 1.1312 relating to environmental processing prior to commencing construction. Applicants filing applications that propose the use of one or more new or existing antenna structures requiring registration under part 17 of this chapter must also comply with any applicable environmental notification process specified in § 17.4(c) of this chapter.
(c) * * *
(2) * * *
(vi) * * *
(A) * * *
(
47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, 337.
(b)
(f)
47 U.S.C. 154, 303, 307(e), 309, 332.
(b)
(e)
47 U.S.C. 154, 303, 307(e).
(b)
(e)
47 U.S.C. 154(i), 11, 303(g), 303(r), 332(c)(7).
(b)
(f)
(g) The environmental assessment required by §§ 1.1307 and 1.1311 of this chapter, if applicable. If an application filed under this part proposes the use of one or more new or existing antenna structures that require registration under part 17 of this chapter, any required environmental assessment should be submitted pursuant to the process set forth in § 17.4(c) of this chapter rather than with the application filed under this part.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of a closure.
NMFS is opening directed fishing for Pacific cod by non-American Fisheries Act (AFA) crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the Gulf of Alaska (GOA) for seven days. This action is necessary to fully use the A season allowance of the 2012 Pacific cod sideboard limit established for non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), January 23, 2012 through 1200 hrs, A.l.t., January 30, 2012. Comments must be received at the following address no later than 4:30 p.m., A.l.t., February 10, 2012.
You may submit comments on this document, identified by NOAA-NMFS-2012-0010, by any of the following methods:
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Josh Keaton, (907) 586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season allowance of the 2012 Pacific cod sideboard limit established for non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA is 98 metric tons as established by the final 2011 and 2012 harvest specifications for groundfish in the GOA (76 FR 11111, March 1, 2011) and inseason adjustment (77 FR 438, January 5, 2012).
NMFS closed directed fishing for Pacific cod by non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA under § 680.22(e)(3) on January 1, 2012 (76 FR 81860, December 29, 2011).
As of January 17, 2012, NMFS has determined that approximately 98 metric tons remains in the A season allowance of the 2012 Pacific cod sideboard limit established for non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA. Furthermore, NMFS has determined that this remaining amount of Pacific cod is sufficient to support a directed fishery. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2012 Pacific cod sideboard limit established for non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA, NMFS is terminating the previous closure and is reopening directed fishing of Pacific cod by non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA. The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific cod by non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.
In accordance with § 680.22(e)(2)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2012 Pacific cod sideboard limit established for non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA will be reached after seven days. Therefore, the Regional Administrator is establishing a sideboard directed fishing allowance of 88 mt, and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 680.22(e)(3), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow of Pacific cod by non-AFA crab vessels operating as catcher/processors using pot gear in the Western Regulatory Area of the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until February 10, 2012.
This action is required by § 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of Electricity Delivery and Energy Reliability, Department of Energy.
Notice of extension of public comment period.
This document announces that the period for submitting comments on the proposed rule for the coordination of Federal Authorizations for Electric Transmission Facilities has been extended until February 27, 2012.
DOE will accept comments, data, and information regarding the proposed coordination rule published December 13, 2011 (76 FR 77432) until February 27, 2012.
Any comments submitted must be identified as comments on the “Proposed 216(h) Regulations”. Comments may be submitted using any of the following methods:
•
•
•
Brian Mills, Office of Electricity Delivery and Energy Reliability (OE-20), U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585, Phone (202) 586-8267, email
On December 13, 2011, DOE published a proposed rule in the
DOE has determined that an extension of the public comment period is appropriate based on the foregoing reasons and is hereby extending the comment period. DOE will consider any comments received by February 27, 2012.
Federal Housing Finance Agency.
Advance notice of proposed rulemaking; request for comments; Notice of intent to prepare environmental impact statement; request for scoping comments.
The Federal Housing Finance Agency (“FHFA”) hereby issues this Advance Notice of Proposed Rulemaking (“ANPR”) concerning mortgage assets affected by Property Assessed Clean Energy (“PACE”) programs and Notice of Intent (“NOI”) to prepare an environmental impact statement (“EIS”) under the National Environmental Policy Act (“NEPA”) to address the potential environmental impacts of FHFA's proposed action.
The United States District Court for the Northern District of California issued a preliminary injunction ordering FHFA “to proceed with the notice and comment process” in adopting guidance concerning mortgages that are or could be affected by PACE programs. Specifically, the California District Court ordered FHFA to “cause to be published in the
In response to and compliance with the California District Court's order, FHFA is seeking comment on whether the restrictions and conditions set forth in the July 6, 2010 Statement and the February 28, 2011 Directive should be maintained, changed, or eliminated, and whether other restrictions or conditions should be imposed. FHFA has appealed the California District Court's order to the U.S. Court of Appeals for the Ninth Circuit (the “Ninth Circuit”). Inasmuch as the California District Court's order remains in effect pending the outcome of the appeal, FHFA is proceeding with the publication of this ANPR and NOI pursuant to that order. The Ninth Circuit has stayed, pending the outcome of FHFA's appeal, the portion of the California District Court's Order requiring publication of a final rule. FHFA reserves the right to withdraw this ANPR and NOI should FHFA prevail in its appeal, and may in that situation continue to address the financial risks FHFA believes PACE programs pose to safety and soundness through means other than notice-and-comment rulemaking.
Written comments must be received on or before March 26, 2012.
You may submit your comments, identified by regulatory information number (RIN) 2590-AA53, by any of the following methods:
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Alfred M. Pollard, General Counsel, (202) 649-3050 (not a toll-free number), Federal Housing Finance Agency, Eighth Floor, 400 Seventh Street SW., Washington, DC 20024. The telephone number for the Telecommunications Device for the Hearing Impaired is (800) 877-8339.
FHFA invites comments on all aspects of this ANPR and NOI. Commenters should identify by number, the question each of their comments addresses. Copies of all comments will be posted without change, including any personal information you provide, such as your name and address, on the FHFA Web site at
FHFA is an independent federal agency created by the Housing and Economic Recovery Act of 2008 (HERA) to supervise and regulate the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), (together, the Enterprises), and the Federal Home Loan Banks (the “Banks”). FHFA is the exclusive supervisory regulator of the Enterprises and the Banks. Both Enterprises are presently in conservatorship under the direction of FHFA as Conservator. 12 U.S.C. 4501
Fannie Mae and Freddie Mac operate in the secondary mortgage market. Accordingly, they do not directly lend funds to home purchasers, but instead buy mortgage loans from original lenders, thereby providing funds those entities can use to make additional loans. The Enterprises hold in their own portfolios a fraction of the mortgage loans they purchase. The Enterprises also securitize a substantial fraction of the mortgage loans they purchase, packaging them into pools and selling interests in the pools as mortgage-backed securities. Traditionally, the Enterprises guarantee nearly all of the mortgage loans they securitize. Together, the Enterprises own or guarantee more than $5 trillion in residential mortgages.
FHFA's “Director shall have general regulatory authority over each [Enterprise] * * *, and shall exercise such general regulatory authority * * * to ensure that the purposes of this Act, the authorizing statutes, and any other applicable law are carried out.” 12 U.S.C. 4511(b)(2). As regulator, FHFA is charged with ensuring that the Enterprises operate in a “safe and sound manner.” 12 U.S.C. 4513(a). FHFA is statutorily authorized “to exercise such incidental powers as may be necessary or appropriate to fulfill the duties and responsibilities of the Director in the supervision and regulation” of the Enterprises. 12 U.S.C. 4513(a)(2). FHFA's Director is authorized to “issue any regulations or guidelines or orders as necessary to carry out the duties of the Director * * *.”
HERA also authorizes the Director of FHFA to “appoint the Agency as conservator or receiver for a regulated entity * * * for the purpose of reorganizing, rehabilitating or winding up [its] affairs.”
In its role as Conservator, FHFA may take any action “necessary to put the regulated entity into sound and solvent condition” or “appropriate to carry on the business of the regulated entity and preserve and conserve the assets and property of the regulated entity.”
PACE programs provide a means of financing certain kinds of home-improvement projects. Specifically, PACE programs permit local governments to provide financing to property owners for the purchase of energy-related home-improvement projects, such as solar panels, insulation, energy-efficient windows, and other products. Homeowners repay the amount borrowed, with interest, over a period of years through “contractual assessments” added to their property tax bill. Over the last three years, more than 25 states have passed legislation authorizing local governments to set up PACE-type programs. Such legislation leaves most program implementation and standards to local governmental bodies and provides no uniform requirements or enforcement mechanisms.
In most, but not all, states that have implemented PACE programs, the liens that result from PACE program loans have priority over mortgages, including pre-existing first mortgages.
Typically, PACE programs serve as a channel through which private-sector capital flows through the local government to the homeowner-borrower (or the homeowner-borrower's contractors). While PACE programs vary in the particular mechanisms they use to raise capital, in many instances private investors provide the capital by purchasing bonds secured by the payments that homeowner-borrowers make on their PACE obligations. From the capital provider's perspective, one advantage of channeling the funding through a local government, rather than lending directly to the homeowner-borrower or channeling the funds through a private enterprise, is that the local government is able to use the property-tax assessment system as the vehicle for repayment. Because of the “lien-priming” feature of most PACE programs, the capital provider effectively “steps ahead” of all other private land-secured lenders (including mortgage lenders) in priority, thereby minimizing the financial risk to the capital provider while downgrading the priority of first and second mortgages, and of any other property-secured financial obligation.
Proponents of PACE programs have analogized the obligations to repay PACE loans to traditional tax assessments. However, unlike traditional tax assessments, PACE loans are voluntary—homeowners opt in, submit applications, and contract with the city or county's PACE program to obtain the loan. Each participating property owner controls the use of the funds, selects the contractor who will perform the energy retrofit, owns the energy retrofit fixtures and must repair the fixtures should they become inoperable, including during the time the PACE loan remains outstanding. Each locality sets its own terms and requirements for homeowner and project eligibility for PACE loans; no uniform national standards exist. Nothing in PACE requires that local governments adopt and implement nationally uniform financial underwriting standards, such as minimum total loan-to-value ratios that take into account either: (i) Total debt or other liens on the property; or (ii) the possibility of subsequent declines in the value of the property. Many PACE programs also do not employ standard personal creditworthiness requirements, such as limits on FICO score or total debt-to-income ratio, although some include narrower requirements, such as that the homeowner-borrower be current on the mortgage and property taxes and not have a recent bankruptcy history.
Some local PACE programs communicate to homeowners that incurring a PACE obligation may violate the terms of their mortgage documents.
State legislation authorizing PACE programs gained notoriety in 2008. As PACE programs were being considered by more states, FHFA began to evaluate their implementations and potential impact on the portfolios of FHFA-regulated entities. On June 18, 2009, FHFA issued a letter and background paper raising concerns about PACE programs that retroactively created first liens. To discuss the risks to lenders and the Enterprises as well as borrowers, FHFA met over the next year with PACE stakeholders, other federal agencies, and state and local authorities around the country.
On May 5, 2010, in response to continuing questions about PACE programs, Fannie Mae and Freddie Mac issued advisories (“Advisories”) to lenders and servicers of mortgages owned or guaranteed by the Enterprises.
Shortly after the May 5, 2010 Advisories were issued, FHFA received a number of inquiries seeking FHFA's position.
[T]he Federal Housing Finance Agency (FHFA) has determined that certain energy retrofit lending programs present significant safety and soundness concerns that must be addressed by Fannie Mae, Freddie Mac and the Federal Home Loan Banks. * * *
First liens established by PACE loans are unlike routine tax assessments and pose unusual and difficult risk management challenges for lenders, servicers and mortgage securities investors. * * *
They present significant risk to lenders and secondary market entities, may alter valuations for mortgage-backed securities and are not essential for successful programs to spur energy conservation.
On February 28, 2011, the Conservator issued a directive stating the Agency's view that PACE liens
Several parties brought legal challenges to the process by which FHFA issued the July 6, 2010 Statement and the February 28, 2011 Directive, as well as to their substance. The United States District Courts for the Northern District of Florida, the Southern District of New York, and the Eastern District of New York all dismissed lawsuits presenting such challenges. The United States District Court for the Northern District of California (the “California District Court”), however, has allowed such a lawsuit to proceed and has issued a preliminary injunction ordering FHFA “to proceed with the notice and comment process” in adopting guidance concerning mortgages that are or could be affected by PACE programs. Specifically, the California District Court ordered FHFA to “cause to be published in the
In response to and compliance with the California District Court's order, FHFA is seeking comment on whether the restrictions and conditions set forth in the July 6, 2010 Statement and the February 28, 2011 Directive should be maintained, changed, or eliminated, and whether other restrictions or conditions should be imposed. FHFA has appealed the California District Court's order to the U.S. Court of Appeals for the Ninth Circuit (the “Ninth Circuit”). Inasmuch as the California District Court's order remains in effect pending the outcome of the appeal, FHFA is proceeding with the publication of this ANPR and NOI pursuant to that order. The Ninth Circuit has stayed, pending the outcome of FHFA's appeal, the portion of the California District Court's Order requiring publication of a final rule. FHFA reserves the right to withdraw this ANPR and NOI should FHFA prevail in its appeal, and may in that situation continue to address the financial risks FHFA believes PACE programs pose to safety and soundness through means other than notice-and-comment rulemaking.
This ANPR and NOI reviews FHFA's statutory authority as the federal supervisory regulator of the Enterprises, reviews FHFA's statutory role and authority as the Conservator of each Enterprise, summarizes issues relating to PACE that are relevant to FHFA's supervision and direction of the Enterprises, suggests subjects relating to PACE on which FHFA might issue a proposed rule or otherwise provide guidance to the Enterprises within the governing statutory framework, and invites comments from the public.
In light of the California District Court's order and the background information provided above, FHFA seeks comments on the following issues regarding the Enterprises' dealing in mortgages on properties that participate in PACE programs or that could participate in PACE programs.
The California District Court called upon FHFA to seek comments on whether conditions and restrictions relating to the regulated entities' dealing in mortgages on properties participating in PACE programs are necessary; and, if so, what specific conditions and/or restrictions may be appropriate. In the July 6, 2010 Statement and the February 28, 2011 Directive, FHFA imposed certain conditions and restrictions relating to the Enterprises' dealing in mortgages on properties participating in PACE programs. FHFA thus will take comments on whether those restrictions and conditions should be maintained, changed, or eliminated, and whether other restrictions or conditions should be imposed. Accordingly, FHFA requests comment on the following question:
FHFA is concerned that PACE programs that involve subordination of any mortgage holder's security interest in the underlying property to that of the provider of PACE financing may increase the financial risk borne by the Enterprises as holders of mortgages on properties subject to PACE obligations, as well as mortgage-backed securities based on such mortgages. FHFA believes that any such increase in the financial risk on mortgages and mortgage-backed securities already in the Enterprise portfolios, especially if imposed without Enterprise consent, may present significant safety and soundness concerns. In light of that concern, FHFA requests comment on the following three questions regarding financial risks to the Enterprises relating to the subordination of mortgage security interests to PACE liens:
• The total amount of debt secured by the subject property relative to the value of the subject property (
• The amount of funds available to pay for energy-related home-improvement projects after the subtraction of administrative fees or any other program expenses charged or
• The timing and nature of advancements in energy-efficiency technology;
• The timing and nature of changes in potential homebuyers' preferences regarding particular kinds of energy-efficiency projects;
• The timing, direction, and magnitude of changes in energy prices; and,
• The timing, direction, and magnitude of changes of property values, including the possibility of downward adjustments in value?
• The total amount of debt secured by the subject property relative to the value of the subject property (
• The amount of funds available to pay for energy-related home-improvement projects after the subtraction of administrative fees or any other programs expenses charged deducted before funds become available to pay for an actual PACE funded project (FHFA understands such fees and expenses can consume up to 10% or more of the funds a borrower could be obligated to repay under some PACE programs);
• The timing and nature of advancements in energy-efficiency technology;
• The timing and nature of changes in potential homebuyer preferences regarding particular kinds of energy-efficiency projects;
• The timing, direction, and magnitude of changes in energy prices; and,
• The timing, direction, and magnitude of changes of property values, including the possibility of downward adjustments in value?
FHFA is concerned that the risks first-lien PACE programs present to mortgage holders may be unnecessary or unreasonable in light of other market options for financing home-improvement projects relating to energy efficiency that do not subordinate mortgage holders' security interests. In light of that concern, FHFA requests comment on the following four questions relating to PACE programs and the market for home-improvement financing:
FHFA is concerned that PACE programs may not incorporate features that adequately protect the interests of the homeowner-borrower, and that the lack of adequate protection could result in homeowner-borrowers undertaking PACE projects or selecting PACE financing terms that increase the financial risks borne by mortgage holders such as the Enterprises. In light of that concern, FHFA requests comment on the following five questions relating to PACE and protections for the homeowner-borrower:
FHFA is concerned that first-lien PACE programs may not incorporate underwriting standards that adequately ensure that the homeowner-borrower will be able to repay the obligation, and that as a result homeowner-borrowers may undertake PACE projects, or select PACE financing terms, that adversely affect the homeowner-borrower's ability to repay other debt, including mortgage debt. In light of that concern, FHFA requests comment on the following three questions relating to PACE and underwriting standards:
FHFA intends to prepare an EIS to address the potential environmental impacts of any proposed rule that FHFA may issue following its consideration of the comments submitted in response to this ANPR and NOI. To that end, this ANPR and NOI initiates the NEPA scoping process to identify the environmental issues and reasonable alternatives to be examined in the EIS, and requests comments regarding those and other matters related to the scope of the EIS (“EIS Scoping Comments”).
To ensure that all relevant environmental issues and reasonable alternatives are addressed, FHFA invites and encourages EIS Scoping Comments. Interested parties are encouraged to submit their EIS Scoping Comments within a 60-day scoping period, which begins with publication of this notice. EIS Scoping Comments received after the end of the scoping period will be considered to the extent practicable. You may submit EIS Scoping Comments, identified by regulatory information number (RIN) 2590-AA53 and marked “EIS Scoping Comments,” by any of the methods identified in the
FHFA's Proposed Action would direct the Enterprises not to purchase any mortgage that is subject to a first-lien PACE obligation or that could become subject to first-lien PACE obligations without the consent of the mortgage holder. FHFA believes that the Proposed Action is reasonable and necessary to limit, in the interest of safety and soundness, the financial risks that could be involuntarily borne by the Enterprises, thereby preserving and conserving the Enterprises' assets and property while protecting American taxpayers from further loss.
As required by the Council on Environmental Quality regulations that implement NEPA, the EIS will analyze and present the potential environmental impacts associated with reasonable alternatives, including the No Action Alternative.
The No Action Alternative is to withdraw the July 6, 2010 Statement and the February 28, 2011 Directive. This would allow the Enterprises to purchase mortgage loans secured by properties with outstanding first-lien PACE and PACE-like obligations.
In addition to the Proposed Action and No Action alternatives described above, FHFA invites comments on reasonable alternatives that would reduce or avoid known or potential adverse environmental impacts associated with the proposed action while ensuring that the Enterprises operate in a safe and sound manner. Accordingly, FHFA requests that for each reasonable alternative suggested, the commenter explain the positive, neutral or negative environmental impacts, as well as potential changes in the level of financial risk borne by holders of any interest in a mortgage on PACE-affected properties, associated with the suggested alternative. Accordingly, FHFA specifically requests comment on the following question:
To facilitate the scoping process, FHFA has identified a preliminary approach and list of issues and environmental resources that it may consider in the EIS. This list is not intended to be all-inclusive or to predetermine the scope of the EIS, but is intended to serve as a starting point for public comment.
• FHFA intends to develop scenarios (high, medium, and low) that describe three potential levels of uptake of PACE program loans by homeowners (irrespective of the Agency's action). These scenarios would be developed at the regional level and would make assumptions on the types of home improvement projects (
• Potential effects of the Proposed Action and alternatives on the uptake of PACE home improvement projects will be considered. For each alternative analyzed in detail in the EIS, FHFA would estimate PACE project implementation for each of the scenarios listed above and then compare these estimates across the alternatives.
• Using assumptions on the types of home improvement projects that could be implemented, FHFA would estimate the potential energy and water consumption savings associated with each scenario at the regional level for each alternative.
• FHFA proposes to analyze the potential direct, indirect, and cumulative environmental impacts of
FHFA invites comments on all of the issues and questions discussed above, and will consider all comments in developing any proposed rule that FHFA may issue concerning the Enterprises' dealing in mortgages on properties participating in PACE programs. As to all questions enumerated above, commenters should provide supporting data and documentation for each of their responses, as these will assist FHFA in its consideration of comments.
Studies addressing relevant aspects of PACE programs may be submitted for the agency's consideration. FHFA is interested in studies analyzing:
• The effect of PACE-funded improvements on the value of the underlying property, including differential effects over time and across markets;
• The comparative costs of PACE programs with other means of financing such as home equity loans, refinance transactions, and leasing programs;
• Payback periods for projects eligible for PACE funding, considering costs, energy savings, and risks (including risk of changes in energy pricing or in the level of subsidies or tax credits available);
• The economic life of PACE-funded improvements, particularly in relation to the term of the PACE loan;
• Default rates of PACE and non-PACE loans based on populations with comparable borrower, loan and property characteristics; and
• Other subjects relating to PACE and the financial risks PACE programs pose to mortgage holders such as the Enterprises.
All study-related submissions should provide the complete study protocol; the date(s) the study was proposed, initiated, completed, and published or otherwise reported; all key assumptions; the sample size; the data; the results (including sensitivity of reported results to key assumptions); and any published report of the study. Study-related submissions should also identify the persons who developed, implemented, and published or otherwise reported the study, as well as the principal sources of funding for the study. All data should be provided in a reasonably accessible computer-readable format, such as Microsoft Excel files.
Internal Revenue Service (IRS), Treasury.
Withdrawal of notice of proposed rulemaking; notice of proposed rulemaking.
This document contains proposed regulations that provide information reporting rules for certain passport applicants. These regulations do not provide information reporting rules for individuals applying to become permanent residents (green card holders). This document also withdraws the notice of proposed rulemaking (57 FR 61373) published in the
Comments and requests for a public hearing must be received by April 25, 2012.
Send submissions to CC:PA:LPD:PR (REG-208274-86), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-208274-86), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Lynn Dayan or Quyen Huynh at (202) 622-3880; concerning submissions of comments and requests for public hearing, Oluwafunmilayo Taylor, (202) 622-7180 (not toll-free numbers).
The collections of information contained in this notice of proposed rulemaking have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and, pending receipt and evaluation of public comments approved by the Office of Management and Budget under control number 1545-1359. Comments on the collections of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by March 26, 2012. Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the proper performance of the duties of the Internal Revenue Service, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collection of information;
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of service to provide information.
The collection of information in these proposed regulation is in § 301.6039E-1(b). The information is required to be provided by individuals who apply for a United States passport or a renewal of a United States passport. The information provided by passport applicants will be used by the IRS for tax compliance purposes.
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
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains proposed amendments to 26 CFR part 301 under section 6039E of the Internal Revenue Code. Section 6039E provides rules concerning information reporting by U.S. passport and permanent resident applicants, and requires specified Federal agencies to provide certain information to the IRS.
On December 24, 1992, the Treasury Department and the IRS published a notice of proposed rulemaking (REG-208274-86, 1993-1 CB 822) in the
The information required to be provided by passport applicants under section 6039E is collected on the U.S. passport application form submitted by such applicants to the Department of State.
The proposed regulations also withdraw the 1992 proposed regulations.
The proposed regulations set forth rules concerning information reporting by passport applicants under section 6039E. Section 301.6039E-1(a) requires an individual applying for a U.S. passport (passport applicant), other than an individual who applies for an official passport, diplomatic passport or passport for use on other official U.S. government business, to provide certain information with his or her passport application.
Section 301.6039E-1(b)(1) describes the required information to be provided by passport applicants: The applicant's full name and, if applicable, previous name; address of regular or principal place of residence within the country of residence and, if different, mailing address; taxpayer identifying number (TIN); and date of birth. Section 301.6039E-1(b)(2) provides that the required information must be submitted with the passport application, regardless of where the applicant resides at the time it is submitted.
Section 301.6039E-1(c) provides guidance on the circumstances under which the IRS may impose a $500 penalty amount on any passport applicant who fails to provide the required information.
Section 301.6039E-1 is proposed to be applicable to passport applications submitted after the date of publication of the Treasury decision adopting these rules as final regulations in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the
The principal author of these regulations is Quyen P. Huynh of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.
Administrative practice and procedure, Alimony, Bankruptcy, Child support, Continental shelf, Courts, Crime, Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Investigations, Law enforcement, Oil pollution, Penalties, Pensions, Reporting and recordkeeping requirements, Seals and insignia, Statistics, Taxes.
Accordingly, under the authority of 26 U.S.C. 7805, the notice of proposed rulemaking (INTL-978-86; REG-208274-86) that was published in the
Accordingly, 26 CFR part 301 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 301.6039E-1 also issued under 26 U.S.C. 6039E.
(a)
(b)
(i) The passport applicant's full name and, if applicable, previous name;
(ii) Address of the passport applicant's regular or principal place of residence within the country of residence and, if different, mailing address;
(iii) The passport applicant's taxpayer identifying number (TIN), if such a number has been issued to the passport applicant. A TIN means the individual's social security number (SSN) issued by the Social Security Administration. A passport applicant who does not have an SSN must enter zeros in the appropriate space on the passport application; and
(iv) The passport applicant's date of birth.
(2)
(c)
(2)
C, a citizen of the United States, makes an error in supplying information on his passport application. Based on the nature of the error and C's timely response to correct the error after being contacted by the IRS, and considering all the surrounding circumstances, the Commissioner concludes that the mistake is due to reasonable cause and not due to willful neglect. Accordingly, no penalty is assessed.
(d)
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the Illinois State Implementation Plan (SIP) addressing regional haze for the first implementation period. Illinois submitted its regional haze plan on June 24, 2011. The Illinois regional haze plan addresses Clean Air Act (CAA) section 169B and Regional Haze Rule requirements for states to remedy any existing and prevent future anthropogenic impairment of visibility at mandatory Class I areas. EPA is also proposing to approve two state rules and incorporating two permits into the SIP.
Comments must be received on or before February 27, 2012.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2011-0598, by one of the following methods:
1.
2.
3.
4.
5.
Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
Regional haze is visibility impairment that is produced by a multitude of sources and activities located across a broad geographic area that emit fine particles (PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all of the time at most national park and wilderness areas. The average visual range, the distance at which an object is barely discernable, in many Class I areas
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution.” On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources known as, “reasonably attributable visibility impairment” (RAVI). 45 FR 80084. These regulations represented the first phase in addressing visibility impairment. EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling, and scientific knowledge about the relationships between pollutants and visibility impairment were improved.
Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated the Regional Haze Rule (RHR) on July 1, 1999 (64 FR 35713). The RHR revised the existing visibility regulations to integrate into the regulations provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in section III. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia, and the Virgin Islands.
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments, and Federal agencies. Pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, effectively addressing the problem of visibility impairment in Class I areas means that states need to develop coordinated strategies that take into account the effect of emissions from one jurisdiction on the air quality of another state.
EPA has encouraged the states and tribes to address visibility impairment from a regional perspective because the pollutants that lead to regional haze can originate from sources located across broad geographic areas. Five regional planning organizations (RPOs) were developed to address regional haze and
The Midwest RPO (MRPO) is a collaborative effort of state governments and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Midwest. The member states are Illinois, Indiana, Michigan, Ohio, and Wisconsin.
Regional haze SIPs must assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and must require those sources to install emission controls reducing visibility impairment if appropriate. The specific regional haze SIP requirements are discussed in further detail below.
The RHR establishes the deciview
The deciview is used in expressing RPGs, defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by anthropogenic air pollution. The national goal is a return to natural conditions such that anthropogenic sources of air pollution would no longer impair visibility in Class I areas.
To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437) and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP submission and at the progress review every five years, midway through each 10-year implementation period. The RHR requires states with Class I areas (Class I states) to determine the degree of impairment in deciviews for the average of the 20 percent least impaired (best) and 20 percent most impaired (worst) visibility days over a specified time period at each of its Class I areas. Each state must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural, and current visibility conditions in documents titled, EPA's
For the first regional haze SIP, the “baseline visibility conditions” are the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent best days and 20 percent worst days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then current conditions will indicate the amount of progress made. In general, the 2000 to 2004 baseline period is considered the time from which improvement in visibility is measured.
The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the states that establish two distinct RPGs, one for the best days and one for the worst days for every Class I area for each approximately 10-year implementation period. The RHR does not mandate specific milestones or rates of progress, but instead calls for states to establish goals that provide for “reasonable progress” toward achieving natural visibility conditions. In setting RPGs, Class I states must provide for an improvement in visibility for the worst days over the approximately 10-year period of the SIP and ensure no degradation in visibility for the best days.
Class I states have significant discretion in establishing RPGs, but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and, (4) the remaining useful life of any potentially affected sources. The state must demonstrate in its SIP how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have considerable flexibility in how they take these factors into consideration, as noted in EPA's
Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain older large stationary sources to address visibility impacts from these sources. Specifically, CAA section 169A(b)(2)(A) requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate BART as determined by the state. The set of “major stationary sources” potentially subject to BART is listed in CAA section 169A(g)(7). The state can require source-specific BART controls, but it also has the flexibility to adopt an alternative such as a trading program as long as the alternative provides greater progress towards improving visibility than BART.
On July 6, 2005, EPA published the
States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO
States may select an exemption threshold value for their BART modeling under the BART Guidelines, below which a BART-eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. The exemption threshold set by the state should not be higher than 0.5 dv. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual source's impact.
The state must identify potential BART sources in its SIP, described as “BART-eligible sources” in the RHR, and document its BART control determination analyses. In making BART determinations, section 169A(g)(2) of the CAA requires the state to consider the following factors: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source; and, (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. The BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA's approval of the state's regional haze SIP. CAA section 169(g)(4); 40 CFR 51.308(e)(1)(iv). In addition to what is required by the RHR, general SIP requirements mandate that the SIP must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source.
Consistent with the requirement in section 169A(b) of the CAA that states include in their regional haze SIP a 10 to 15 year strategy for making reasonable progress, section 51.308(d)(3) of the RHR requires that states include a long-term strategy (LTS) in their regional haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable RPGs. The LTS must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the RPGs for all Class I areas within or affected by emissions from the state. 40 CFR 51.308(d)(3).
When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another state, the RHR requires the impacted state to coordinate with the contributing states in order to develop coordinated emissions management strategies. 40 CFR 51.308(d)(3)(i). In such cases, the contributing state must demonstrate that it has included in its SIP all measures necessary to obtain its share of the emission reductions needed to meet the RPGs for the Class I area. The RPOs have provided forums for significant interstate consultation, but additional consultations between states may be required to address interstate visibility issues sufficiently.
States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors are taken into account in developing their LTS: (1) Emission reductions due to ongoing air pollution control programs, including measures to address RAVI; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and, (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the LTS. 40 CFR 51.308(d)(3)(v).
EPA revised 40 CFR 51.306(c) as part of the RHR regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment in accordance with 40 CFR 51.308(b) and (c). The state must revise its plan to provide for review and revision of a coordinated LTS for addressing RAVI and regional haze on or before this date. It must also submit the first such coordinated LTS with its first regional haze SIP. Future coordinated LTSs, and periodic progress reports evaluating progress towards RPGs, must be submitted consistent with the schedule for SIP submission and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively.
Section 51.308(d)(4) of the RHR includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. The strategy must be coordinated with the monitoring strategy required in section 51.305 for RAVI. Compliance with this requirement may be met through participation in the IMPROVE network, meaning that the state reviews and uses monitoring data from the network. The monitoring strategy must also provide for additional monitoring sites if the IMPROVE network is not sufficient to determine whether RPGs will be met. The monitoring strategy is due with the first regional haze SIP and must be reviewed every five years.
The SIP must also provide for the following:
• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside of the state;
• Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas in other states.
• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible in electronic format;
• A statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year with available data, and future projected emissions. A state must also make a commitment to update the inventory periodically; and
• Other elements including reporting, recordkeeping, and other measures necessary to assess and report on visibility;
The RHR requires control strategies to cover an initial implementation period extending to the year 2018 with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of section 51.308(d) with the exception of BART. The requirement to evaluate sources for BART applies only to the first regional haze SIP. Facilities subject to BART must continue to comply with the BART provisions of section 51.308(e), as noted above. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.
The RHR requires that states consult with Federal Land Managers (FLMs) before adopting and submitting their SIPs. 40 CFR 51.308(i). States must provide FLMs an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the SIP. This consultation must include the opportunity for the FLMs to discuss their assessment of impairment of visibility in any Class I area and to offer recommendations on the development of the RPGs and on the development and implementation of strategies to address visibility impairment. Further, a state must include in its SIP a description of how it addressed any comments provided by the FLMs. Finally, a SIP must provide procedures for continuing consultation between the state and FLMs regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas.
Illinois submitted its regional haze plan on June 24, 2011, which included revisions to the Illinois SIP to address regional haze.
States are required to address regional haze affecting Class I areas within a state and in Class I areas outside the state that may be affected by the state's emissions. 40 CFR 51.308(d). Illinois does not have any Class I areas within the state. Illinois reviewed technical analyses conducted by MRPO to determine what Class I areas outside the state are affected by Illinois emission sources. MRPO conducted both a back trajectory analysis and modeling to determine the affects of its states' emissions. The conclusion from the technical analysis is that emissions from Illinois sources affect 19 Class I areas. The affected Class I areas are: Sipsey Wilderness Area in Alabama; Caney Creek and Upper Buffalo Wilderness Areas in Arkansas; Mammoth Cave in Kentucky; Acadia National Park and Moosehorn Wilderness Area in Maine; Isle Royale National Park and Seney Wilderness Area in Michigan; Boundary Waters Canoe Wilderness Area in Minnesota; Hercules-Glades and Mingo Wilderness Areas in Missouri; Great Gulf Wilderness Area in New Hampshire; Brigantine Wilderness Area in New Jersey; Great Smoky Mountains National Park in North Carolina and Tennessee; Lye Brook Wilderness Area in Vermont; James River Face Wilderness Area and Shenandoah National Park in Virginia; and, Dolly Sods/Otter Creek Wilderness Area in West Virginia.
The RHR requires states with Class I areas to calculate the baseline and natural conditions for their Class I areas. Because Illinois does not have any Class I areas, it was not required to address the requirements for calculating baseline and natural conditions.
Class I states must set RPGs that achieve reasonable progress toward achieving natural visibility conditions. Because Illinois does not have any Class I areas, it is not required to establish RPGs. Illinois consulted with affected Class I states to ensure that it achieves its share of the overall emission reductions necessary to achieve the RPGs of Class I areas that it impacts. Illinois's coordination with affected Class I states is discussed under Illinois Long Term Strategy, in Section IV. E.
Illinois included the MRPO technical support document (TSD) in its submission. In Section 5 of the TSD, MRPO assessed the reasonable progress for regional haze. It first assessed potential control measures using the four factors required to be considered by Class I states when selecting the RPGs: the cost of compliance, time needed, energy and non-air impacts, and remaining useful life of any potentially affected sources. The cost of compliance factor includes calculating the average cost effectiveness and can include costs to health and industry vitality as well as considering the different visibility effects of different pollutants. The time necessary for compliance factor considers whether control measures can be implemented by 2018. The third factor, energy and non-air quality impacts, considers additional energy consumed by or because of the control measure as well as effects due to waste
MRPO also assessed the visibility benefits of existing programs. MRPO considered existing on-highway mobile source, off-highway mobile source, area source, power plant, and other point source programs. MRPO also included reductions from the Clean Air Interstate Rule (CAIR) in its analysis, as well from rules adopted by Illinois and included in its regional haze SIP requiring the control of emissions from EGUs.
Illinois has a distinctive situation regarding CAIR, insofar as it has adopted state rules that require EGUs to control NO
States are required to submit an implementation plan containing emission limitations representing BART and schedules for compliance with BART for each BART-eligible source that may reasonably be anticipated to cause or contribute to any impairment in a Class I area, unless the State demonstrates that an emissions trading program or other alternative will achieve greater reasonable progress toward natural visibility conditions. 40 CFR 51.308(e).
Using the criteria in the BART Guidance at 40 CFR 51.308(e) and Appendix Y, Illinois first identified all of the BART-eligible sources and assessed whether the BART-eligible sources were subject to BART. Illinois initially identified 26 potential BART facilities—11 EGUs, four petroleum refineries, three chemical process plants, two Portland cement plants, two glass fiber processing plants, one lime plant, and one iron and steel plant. The state further analyzed these facilities to identify those sources subject to BART. Illinois relied on modeling conducted by MRPO using a modeling protocol MRPO developed. MRPO conferred with its states, EPA, and the FLMs in developing its BART modeling protocol. EPA guidance says that, “any threshold that you use for determining whether a source `contributes' to visibility impairment should not be higher than 0.5 dv.” The Guidelines affirm that states are free to use a lower threshold if the location of a large number of BART-eligible sources in proximity of a Class I area justifies this approach. Illinois used a contribution threshold of 0.5 dv for determining which sources warrant being subject to BART. Illinois concluded that the threshold of 0.5 dv was appropriate since its BART-eligible sources are located state-wide and no Class I areas are nearby causing Illinois to correctly conclude that a stricter contribution threshold is not justified. The modeled impact of these facilities indicated that 11 sources have at least 0.5 dv impact (98th percentile) and thus are subject to BART. The 11 sources determined to be subject to BART are nine EGUs and two petroleum refineries. The other 15 potential BART sources were determined not to be subject to BART because the analysis showed impacts well below the 0.5 dv contribution threshold.
The EGUs subject to BART are:
• Dynegy Midwest Generating—Baldwin Boilers 1, 2, and 3.
• Dominion Kincaid Generation—Boilers 1 and 2.
• Ameren Energy Generating—Coffeen Boilers CB-1 and CB-2.
• Ameren Energy Generating—E.D. Edwards Boilers 2 and 3.
• Ameren Energy Generating—Duck Creek Boiler 1.
• Midwest Generation—Powerton Boilers 51, 52, 61, and 62.
• Midwest Generation—Joliet Boilers 71, 72, 81, and 82.
• Midwest Generation—Will County Boiler 4.
• City Water, Light, and Power—Dallman Boiler 1 and 2.
• City Water, Light, and Power—Lakeside Boiler 8.
To address mercury emissions from EGUs, Illinois adopted Part 225 of Illinois's air pollution regulations, entitled “Control of Emissions from Large Combustion Sources.” In this rule, Illinois offered affected utilities two options, one of which imposes stringent limits on mercury emissions alone and the other of which mandates implementation of specific mercury control technology in conjunction with satisfaction of stringent emission limits for SO
The SO
EPA believes this degree of averaging is acceptable in this context. The limits that Illinois has imposed are sufficiently stringent that the companies have only limited latitude to over control at some facilities in trade for having elevated emissions at other facilities. The facilities owned by each company are sufficiently close to each other, relative to their distances from the nearest Class I areas, that modest shifts in emissions from one facility to another should have minimal impact on the combined impact on regional haze at the Class I areas. Furthermore, regional haze is evaluated across a considerable number of days,
Dynegy has five facilities with 10 units covered by MPS, including the three Dynegy Baldwin units that are subject to BART. Emission reductions required for seven other Dynegy units not subject to BART will allow it meet the MPS reduction requirements. MPS will reduce emissions from all Dynegy facilities by 23,831 tons per year (TPY) of NO
Ameren has seven facilities with 21 units covered by MPS. This includes the subject to BART units: Coffeen units 1 and 2, Duck Creek unit 1, and Edwards units 2 and 3. Ameren has installed selective catalytic reduction (SCR) for NO
Midwest Generating operates six facilities with 19 total units that must comply with CPS, including the Midwest Generation units subject to BART: Powerton units 51, 52, 61, and 62; Joliet units 71, 72, 81, and 82; and Will County unit 4. The four Powerton units currently have low NO
A state may opt to implement an alternate measure rather than requiring each subject to BART unit to install, operate, and maintain BART if it demonstrates that the alternate measure will achieve greater reasonable progress. The criteria for the assessment if an alternative measure demonstrates greater reasonable progress are provided in 40 CFR 51.308(e)(2). MPS will reduce emissions from both subject to BART and non-BART units at the Ameren and Dynegy facilities. Similarly, CPS will require emission reductions from Midwest Generation's subject to BART and non-BART units. Illinois elected to use MPS and CPS participation as alternative to requiring BART control on each of the Ameren, Dynegy, and Midwest Generation units subject to BART. Illinois stated that implementation of the MPS and CPS emission limits will provide much deeper NO
Three other EGUs, owned by two other utilities Dominion Energy and the City of Springfield's City Water, Light, and Power (CWLP), are not covered by MPS and CPS but have units subject to BART. CWLP is a smaller utility with a total generating capacity of less than 750 MW and Dominion Energy has only one electric generating facility in Illinois such that these utilities do not have the opportunities for multi-plant averaging of emission limits that the larger utilities have. Rather than adopting an alternative program to address the BART requirements for these two utilities, Illinois is requiring these utilities to meet the BART requirements for the units subject to BART and establish enforceable emission limits for SO
CWLP currently has SCRs and FGD on Dallman units 31 and 32. As of 2010, CWLP has been operating the SCRs to achieve an annual average NO
Dominion's Kincaid facility operates SCRs on its units 1 and 2. The permit for the Kincaid facility limits NO
Illinois issued the Joint Construction and Operating permits pursuant to its
Two petroleum refineries, the CITGO and Exxon Mobil refineries, also have units subject to BART: the CITGO refinery in Lemont, Illinois and the Exxon Mobil refinery south of Joliet, Illinois. Both refineries will be required to reduce emissions by a Federal consent decree resolving an enforcement action brought by EPA against a number of refineries. The consent decrees require the CITGO, Exxon Mobil, and the other refineries to operate controls at the Best Available Control Technology level. Illinois evaluated the subject-to-BART units at the CITGO and Exxon Mobil refineries. It found that the NO
A consent decree between the United States and CITGO Petroleum Corporation was entered in the U.S. District Court for the Southern District of Texas on October 6, 2004 (No. H-04-3883). The consent decree requires the company to operate SCR and a wet scrubbing system at its Fluid Catalytic Cracking Unit (FCCU) that will reduce NO
A consent decree between the United States and Exxon Mobil Corporation was entered in the U.S. District Court for the Northern District of Illinois on October 11, 2005 (No. O5-C-5809). The consent decree for Exxon Mobil requires SCR operation on its FCCU in addition to maintenance of the existing wet scrubbing system. The controls on the FCCU result in a 1,636.2 TPY decrease in NO
These two consent decrees are Federally enforceable and also require that the refineries submit permit applications to Illinois to incorporate the required emission limits into Federally enforceable air permits (other than Title V). Therefore, emission limits established by the consent decrees may be relied upon by Illinois for addressing the BART requirement for these facilities.
Based on modeling, MRPO determined that the visibility impact of directly emitted particulate matter from the facilities with subject to BART units is minimal. In particular, MRPO assessed the impact of the directly emitted particulate matter from all facilities potentially subject to BART in the five MRPO states, and found the impact to be less than 0.5 dv at any Class I area as compared to natural background conditions. Illinois therefore concludes that PM emissions from its subset of these BART sources have a negligible visibility impact. Furthermore, these facilities are already subject to federally enforceable PM emission control requirements mandated by SIP-approved state particulate matter regulations, so that there is minimal potential for further PM emission reductions. Therefore, based particularly on the substantial existing controls on these facilities- fabric filters, electrostatic precipitators, and cyclones; and the minimal benefits of further control, Illinois concluded that BART did not include further control of PM emissions from these facilities.
EPA is satisfied with the state's BART determinations. The emission limits that Illinois adopted generally will require state-of-the-art emission controls, not just at the units subject to BART requirements but also at numerous units that are not subject to BART. The Illinois facilities subject to BART are a long distance from any Class I area such that, so the geographical redistributions of emissions within Illinois do not significantly affect visibility and the benefits of alternate control strategies may be judged simply by comparing the net emission reductions. The MPS and CPS provide emission reduction well in excess of simply implementing BART on subject units. The reduction in NO
Illinois did not rely on the Clean Air Interstate Rule (CAIR) for its BART determinations. Illinois is in the CAIR region. However, it used its state rules, permits, and consent decrees to achieve emission reductions that satisfy BART. This means that Illinois is not reliant on CAIR and, thus, it has avoided the issues of other CAIR region states that relied on CAIR. For similar reasons, Illinois' satisfaction of regional haze rule requirements is not contingent on the Transport Rule and thus is not affected by the stay of that rule.
Under section 169A(b)(2) of the CAA and 40 CFR 51.308(d), states' regional haze programs must include an LTS for making reasonable progress toward meeting the national visibility goal. Illinois's LTS must address visibility improvement for the Class I areas impacted by Illinois sources. Section 51.308(d)(3) requires that Illinois consult with the affected states in order to develop a coordinated emission management strategy. A contributing state, such as Illinois, must demonstrate that it has included, in its SIP, all measures necessary to obtain its share of the emissions reductions needed to meet the RPGs for the Class I areas affected by Illinois sources. As described in section III.D. of this proposed rule, the LTS is the compilation of all control measures Illinois will use to meet applicable RPGs. The LTS must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the RPGs for all Class I areas affected by Illinois emissions.
Illinois complied with the consulting requirements by participating in meetings and conference calls with affected Class I states and RPOs to discuss the states' assessments of visibility conditions, analyses of culpability, and possible measures that could be taken to meet visibility goals. Illinois engaged in extensive
Illinois's LTS includes the modeling and monitoring results on which it relied to determine its share of emission reductions necessary to meet the reasonable progress goals of impacted Class I areas. This information is provided in Chapter 9 of the Illinois regional haze plan. Portions of this technical work were provided by MRPO as it worked with other RPOs to provide this information on Class I areas outside the Midwest.
At 40 CFR 51.308(d)(3)(v), the RHR identifies seven factors that a state must consider in developing its LTS: (A) Emission reductions due to ongoing programs; (B) measures to mitigate impact from construction; (C) emission limits to achieve the RPG; (D) replacement and retirement of sources; (E) smoke management techniques; (F) Federally enforceable emission limits and control measures; and (G) the net effect on visibility due to projected emission changes over the LTS period. Illinois considered the seven factors in developing its LTS. Chapter 8 of the Illinois regional haze plan provides a full analysis of each factor.
Illinois relied on MRPO's modeling and analysis along with its emission information in developing a LTS. Illinois considered the factors set out in 51.308(d)(3)(v) in developing its LTS. Based on these factors and the MRPO's technical analysis, in conjunction with RPGs that were set by the pertinent Class I states in consultation with Illinois and other contributing states, Illinois concludes that existing control programs, together with the BART controls described above, address Illinois's impact on Class I areas. This is because the combination of the existing controls and the BART controls suffice to meet the impacted Class I areas' RPGs by 2018. These existing control programs include Federal motor vehicle emission control program, reformulated gasoline, emission limits for area sources of VOCs, Title IV, the NO
Illinois assessed all point sources in the state that emit at least 1,000 TPY of NO
Illinois maintains a monitoring network that provides data to analyze air quality problems including regional haze. Illinois's monitoring network includes State and Local Air Monitoring Sites (SLAMS), Special Purpose Monitors (SPM), Photochemical Assessment Monitoring Sites (PAMS), and PM
Illinois was required to consult with the FLMs under 40 CFR 51.308(i). Illinois consulted with the FLMs electronically and by telephone. The FLMs were also included in discussions with Illinois during MRPO conference calls and meetings. A draft regional haze plan was submitted for FLMs comments on August 6, 2009. Illinois then provided the FLMs a revised regional haze plan on October 7, 2010 for review. That provided the FLMs enough time to comment prior to the December 6, 2010, public hearing on the regional haze plan. Illinois has included comments from the FLMs in Attachment 9 to its regional haze plan, a document providing the comments Illinois received and its responses. The state has committed to consulting the FLMs on future SIP revisions and progress reports.
Illinois took comments on its proposed regional haze plan. It held a public hearing on December 6, 2010. The public comment period ended on January 5, 2011. Evidence of the public notice and evidence of the public hearing were submitted to EPA.
Illinois's submission includes a document, Attachment 9, which summarized the comments it received from both the FLMs and from the public and provides its responses to the comments. The state revised portions of its plan based on the comments to correct errors and clarify portions that caused confusion. Illinois responded to other comments without revising its plan. EPA concludes that Illinois has satisfied the requirements from 40 CFR Part 51, Appendix V to provide evidence that it gave public notice, took comments, and that it compiled and responded to comments.
EPA is proposing to approve revisions to the Illinois SIP, submitted on June 24, 2011, addressing regional haze for the first implementation period. The revisions address CAA and regional haze rule requirements for states to remedy any existing anthropogenic and prevent future impairment of visibility at Class I areas. EPA finds that Illinois has satisfied all the requirements and, thus, is proposing approval of the regional haze plan. EPA is also proposing to approve two state rules, MPS and CPS, and incorporating two permits, issued to City Water, Light, & Power and to Dominion Energy, into the SIP.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing a limited approval of revisions to the Indiana State Implementation Plan (SIP) addressing regional haze for the first implementation period. Indiana submitted its regional haze plan on January 14, 2011, and supplemented it on March 10, 2011. The Indiana regional haze plan addresses the requirements of the Clean Air Act (CAA or Act) and Regional Haze Rule (RHR) requirements for states to remedy any existing and prevent future anthropogenic impairment of visibility in mandatory Class I areas caused by emissions of air pollutants from numerous sources located over a wide geographic area (also referred to as the “regional haze program”). States are required to assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. EPA is proposing a limited approval of these SIP revisions to implement the regional haze requirements for Indiana on the basis that the revisions, as a whole, strengthen the Indiana SIP. In a separate action, EPA has previously proposed a limited disapproval of the Indiana regional haze SIP because of the deficiencies in Indiana's regional haze SIP submittal arising from the remand by the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) to EPA of the Clean Air Interstate Rule (CAIR). Consequently, we are not proposing to take action in this notice to address the state's reliance on CAIR to meet certain regional haze requirements.
Comments must be received on or before February 27, 2012.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2011-0080, by one of the following methods:
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Charles Hatten, Environmental Engineer, Control Strategy Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6031,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
Regional haze is visibility impairment that is produced by a multitude of sources and activities that are located across a broad geographic area and emit fine particles (PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range, the distance at which an object is barely discernable, in many Class I areas
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I areas which impairment results from manmade air pollution.” On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources known as, “reasonably attributable visibility impairment” (RAVI). See 45 FR 80084. These regulations, codified at 40 CFR part 50, subpart P, represented the first phase in addressing visibility impairment. EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling, and scientific knowledge about the relationships between pollutants and visibility impairment were improved.
Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze, the RHR, on July
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments, and various Federal agencies. Pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another state.
EPA has encouraged the states and tribes to address visibility impairment from a regional perspective because the pollutants that lead to regional haze can originate from sources located across broad geographic areas. Five regional planning organizations (RPOs) were developed to address regional haze and related issues in their geographical area. The five RPOs are the Mid-Atlantic and Northeastern Visibility Union (MANE-VU) for the Northeastern states, the Visibility Improvement State and Tribal Association of the Southeast (VISTAS), the Midwest Regional Planning Organization (MRPO), the Central Regional Air Planning Association (CENRAP), and Western Regional Air Partnership (WRAP). The RPOs first evaluated technical information to better understand how their states and tribes impact Class I areas across the country and then pursued the development of regional strategies to reduce PM
The State of Indiana participated in the planning efforts of the MRPO. The MRPO is a collaborative effort of state governments, tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility and other air quality issues inside the borders of the five States of Illinois, Indiana, Michigan, Ohio, and Wisconsin. Members of MRPO include the five states, the Federal Land Managers (U.S. National Park Service, U.S. Fish & Wildlife Service, and U.S. Forest Service), and EPA.
Regional haze SIPs must assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies (LTS) for making reasonable progress toward meeting this goal. Plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install best available retrofit technology (BART) for the purpose of reducing visibility impairment. The specific regional haze SIP requirements are discussed in further detail below.
The RHR establishes the deciview
The deciview is used in expressing reasonable progress goals (RPGs), defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by anthropogenic air pollution. The national goal is a return to natural conditions such that anthropogenic sources of air pollution would no longer impair visibility in Class I areas.
To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437) and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP is submitted and at the progress review every five years, midway through each 10-year implementation period. The RHR requires states with Class I areas (Class I states) to determine the degree of impairment in deciview for the average of the 20 percent least impaired (best) and 20 percent most impaired (worst) visibility days over a specified time period at each of its Class I areas. Each state must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural, and current visibility conditions in documents titled, EPA's
For the first regional haze SIP, the “baseline visibility conditions” are the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent best days and 20 percent worst days for each calendar year from 2000 to 2004.
The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the states that establish two distinct RPGs, one for the best days and one for the worst days for every Class I area for each approximately 10-year implementation period. The RHR does not mandate specific milestones or rates of progress, but instead calls for states to establish goals that provide for “reasonable progress” toward achieving natural visibility conditions. In setting RPGs, states must provide for an improvement in visibility for the worst days over the approximately 10-year period of the SIP and ensure no degradation in visibility for the best days.
States have significant discretion in establishing RPGs, but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. The state must demonstrate in its SIP how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have considerable flexibility in how they take these factors into consideration, as noted in EPA's
Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain older large stationary sources to address visibility impacts from these sources. Specifically, CAA section 169A(b)(2)(A) requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal including a requirement that certain categories of existing major stationary sources
On July 6, 2005, EPA published the
States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO
Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART-eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. The exemption threshold set by the state should not be higher than 0.50 dv. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual source's impact.
The state must identify potential BART sources in its SIP, described as “BART-eligible sources” in the RHR, and document its BART control determination analyses. In making BART determinations, section 169A(g)(2) of the CAA requires the state to consider the following factors: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source, and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.
A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. The BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA approval of the state's regional haze SIP. See CAA section 169(g)(4); 40 CFR 51.308(e)(1)(iv). In addition to what is required by the RHR, general SIP requirements mandate that the SIP must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source.
The RHR also allows states to implement an alternative program in lieu of BART if desired so long as the alternative program can be demonstrated to achieve greater progress toward the national visibility goal than implementing BART controls. EPA made such a demonstration for CAIR under regulations issued in 2005 revising the regional haze program. 70 FR 39104 (July 6, 2005). EPA's regulations provide that states participating in the CAIR cap-and trade program under 40 CFR part 96 pursuant to an EPA-approved CAIR SIP or which remain subject to the CAIR Federal Implementation Plan (FIP) in 40 CFR part 97 need not require affected BART-eligible EGUs to install, operate, and maintain BART for emissions of SO
CAIR was later found to be inconsistent with the requirements of the CAA and the rule was remanded to EPA. See
On December 30, 2011, EPA proposed to find that the trading programs in the Transport Rule would achieve greater reasonable progress towards the national goal than would be obtained by implementing BART for SO
Consistent with the requirement in section 169A(b) of the CAA that states include in their regional haze SIP a 10 to 15-year strategy for making reasonable progress, section 51.308(d)(3) of the RHR requires that states include an LTS in their regional haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable RPGs. The LTS must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the RPGs for all Class I areas within or affected by emissions from the state. 40 CFR 51.308(d)(3).
When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another state, the RHR requires the impacted state to coordinate with the contributing states in order to develop coordinated emissions management strategies. 40 CFR 51.308(d)(3)(i). In such cases, the contributing state must demonstrate that it has included in its SIP all measures necessary to obtain its share of the emission reductions needed to meet the RPGs for the Class I area. The RPOs have provided forums for significant interstate consultation, but additional consultations between states may be required to address interstate visibility issues sufficiently.
States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors listed below are taken into account in developing their LTS. The seven factors are: (1) Emission reductions due to ongoing air pollution control programs, including measures to address RAVI; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the LTS. 40 CFR 51.308(d)(3)(v).
As part of the RHR, EPA revised 40 CFR 51.306(c), regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment in accordance with 40 CFR 51.308(b) and (c). The state must revise its plan to provide for review and revision of a coordinated LTS for addressing RAVI and regional haze on or before this date. It must also submit the first such coordinated LTS with its first regional haze SIP. Future coordinated LTSs, and periodic progress reports evaluating progress towards RPGs, must be submitted consistent with the schedule for SIP submission and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively. The periodic review of a state's LTS must report on both regional haze and RAVI impairment and be submitted to EPA as a SIP revision.
40 CFR 51.308(d)(4) includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I areas within the state. The strategy must be coordinated with the monitoring strategy required in 40 CFR 51.305. Compliance with this requirement may be met through participation in the IMPROVE network, meaning that the state reviews and uses monitoring data from the network. The monitoring strategy must also provide for additional monitoring sites if the IMPROVE network is not sufficient to determine whether RPGs will be met. The monitoring strategy is due with the first regional haze SIP and it must be reviewed every five years.
The SIP must also provide for the following:
• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside the state;
• Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas in other states;
• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible in electronic format;
• A statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year with available data, and future projected emissions. A state must also make a commitment to update the inventory periodically; and
• Other elements including reporting, recordkeeping, and other measures necessary to assess and report on visibility.
The RHR requires control strategies to cover an initial implementation period extending to the year 2018 with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of 40 CFR 51.308(d) with the exception of BART. The requirement to evaluate sources for BART applies only to the first regional haze SIP. Facilities subject to BART must continue to comply with the BART provisions of 40 CFR 51.308(e), as noted above. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.
The RHR requires that states consult with FLMs before adopting and submitting their SIPs. 40 CFR 51.308(i). States must provide FLMs an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the SIP. This consultation must include the opportunity for the FLMs to discuss their assessment of impairment of visibility in any Class I area and to offer recommendations on the development of the RPGs and on the development and implementation of strategies to address visibility impairment. Further, a state must include in its SIP a description of how it addressed any comments provided by the FLMs. Finally, a SIP must provide procedures for continuing consultation between the state and FLMs regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas.
Indiana submitted its regional haze plan on January 14, 2011, and supplemented it on March 10, 2011.
States are required to address regional haze affecting Class I areas within a state and in Class I areas outside the state that may be affected by that state's emissions. Indiana does not have any Class I areas within its borders, but has been identified as influencing the visibility impairment of Class I areas in other nearby states. Indiana is responsible for developing a regional haze SIP that addresses its visibility impairment on Class I areas it may affect describing its LTS, its role in the consultation processes, and how the SIP meets other elements in EPA's RHR. Since Indiana does not have any Class I areas within its borders, and has no sources that have been identified as causes of RAVI, however, Indiana is not required to address the following Regional Haze SIP elements: (1) Calculation of baseline and natural visibility conditions; (2) establishment of reasonable progress goals; (3) monitoring requirements, and (4) RAVI requirements.
Indiana reviewed technical analyses conducted by MRPO and other RPOs to determine what Class I areas are affected by Indiana's emissions. MPRO conducted both a back trajectory analysis and modeling to determine the affects of its states' emissions. Indiana also used assessments by MANE-VU, VISTAS, and a joint state assessment by Arkansas and Missouri, each of which identified states having non-de minimus impacts on specified Class I areas. The following are Class I areas identified as being affected by Indiana sources:
Appendix 1 of Indiana's Regional Haze SIP contains a list of these Class I areas for all the Midwest states, and the analyses performed to assess the impact from Indiana sources compiled by the MRPO. Class I areas outside the areas listed above were not analyzed further, as there were no significant impacts from Indiana sources shown. Further, no impacts were noted in the WRAP states.
The RHR requires Class I states to estimate the baseline, natural and current visibility conditions of those Class I areas. See 40 CFR 51.308(d)(2). There are no Class I areas within the State of Indiana. Therefore, this element does not apply to Indiana.
Class I states must set RPGs that achieve reasonable progress toward achieving natural visibility conditions. Indiana does not have any Class I areas, so it does not need to set any RPGs. 40 CFR 51.308(d)(1). The states with Class I areas took the lead in establishing RPGs. Indiana consulted with Class I states by participating in the discussions (meetings and conference calls) with MRPO and RPOs outside the Midwest to ensure it achieves its share of emission reductions as those Class I states determine RPGs. In Appendix 9c, of Indiana's Regional Haze SIP, the Lake Michigan Air Directors Consortium (LADCO) document “Reasonable Progress for Class I Areas in the Northern Midwest—Factor Analysis” (July 18, 2007), addresses factor analysis to establish RPG toward achieving natural visibility conditions in mandatory Class I areas. In addition, Appendix 9b of LADCO'S Technical Support Document “Regional Air Quality Analyses for Ozone, PM
Indiana began the BART rulemaking process in August 2006. Following its rulemaking, which included the notices of hearings and comments, Indiana adopted 326 Indiana Administrative Code (IAC), Article 26, Rule 1, Best Available Retrofit Technology, on October 3, 2007; it became effective February 22, 2008.
Indiana conducted a BART analysis using the criteria in the BART Guidance. Using available source emissions and construction date information, Indiana developed a list of 32 BART-eligible sources within the BART source categories by county.
Indiana then applied the results of the screening modeling conducted by the MRPO to determine which BART-eligible sources have significant impacts on any Class I area and thus warrant being subject to BART requirements. In accordance with EPA's recommendation Indiana defined “significant impact” as an impact of at least 0.5 deciviews. By this means, Indiana identified the following non-EGUs as subject to BART: Alcoa Inc., ESSROC Cement Corporation, SABIC Innovative Plastics (formerly GE Plastics), and Mittal Steel USA Inc.-Burns Harbor. Indiana did not consider EGUs in its analysis as it decided to rely on these sources' participation in the CAIR to address the BART requirements for SO
Indiana further analyzed the four non-EGU facilities to determine which sources are subject to BART. Additional more refined modeling analyses submitted for three of the four non-EGU sources (ESSROC Cement Corporation, SABIC Innovative Plastics, and Mittal Steel USA Inc.—Burns Harbor) showed that they did not contribute significantly to the visibility impairment at any Class I areas, so that these sources may be exempted from the BART requirement under the regional haze rule. Modeling of these facilities indicated that just one source, Alcoa of Warrick County, is subject to BART.
Indiana submitted a BART analysis, prepared by Alcoa, which analyzed BART and alternative BART control strategies. Before beginning the five factor case-by-case BART analysis, Alcoa performed a baseline visibility impact analysis for each of the years 2001-2003 using the CALPUFF model with emission rates based on the 24-hour average actual emissions from the highest emitting day. The initial screening model projected the highest visibility impact at Mammoth Cave National Park (MCNP). Other Class I areas screened included Mingo Wilderness Area, Sipsey Wilderness Area, Great Smoky Mountains National Park, Joyce Kilmer—Slick Rock Wilderness Area, Cohutta Wilderness Area, and Shining Rock Wilderness Area. The impact at MCNP exceeded 0.5 dv. Since the visibility impact was highest at MCNP, the BART analysis focused on the impact at MCNP.
Alcoa identified 18 ingot furnaces, three boilers (Boilers #2, #3, and 4), and five aluminum refining furnaces (Potlines 2-6) as meeting BART eligibility criteria. Boilers #2 and #3 are classified as industrial boilers. Boiler #4 is classified as an EGU, and, under Indiana's plan, is addressed by CAIR for SO
After proposing determinations of BART for its BART-subject units, Alcoa proposed an alternative strategy which compensates for less stringent limits at selected BART-subject units by imposing more restrictive limits at a non-BART-subject unit at the facility. In most respects, Indiana's SIP submittal reflects the BART determinations and the alternative strategy that Alcoa proposed. Tables 1 and 2 show summaries of the BART determinations and the alternative BART control strategy that Alcoa proposed.
As shown in Tables 1 and 2, Alcoa recommended that it be subject to an alternative set of control requirements in lieu of being required to implement BART at each BART-subject unit. This alternative would provide additional control of emissions from boiler #1 beyond that required in the baseline years, sufficient to compensate for allowing more SO
Indiana's submittal nominally follows Alcoa's recommendation. Nevertheless, Indiana's submittal does not change the SO
In any case, EPA does not agree that an increase in sulfur content of coke used in the potlines at Alcoa's Warrick County facility, as opposed to a decrease in the sulfur content and thus in the emissions from these units, represents BART at these units. Furthermore, neither the company nor the state has provided evidence that this relaxation of limits on SO
Viewing Indiana's plan in that manner, EPA is satisfied with Indiana's alternative strategy for Alcoa. Modeling conducted by Indiana shows that the alternative achieves greater visibility improvement than BART, equal to 75 percent more reduction in deciviews over the baseline. The alternative BART, though it achieves greater reductions in all pollutants (PM, SO
Under the CAA, BART is required for any BART-eligible source that emits any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in any Class I area. Accordingly, for stationary sources meeting these criteria, states must address the BART requirement when they develop their Regional Haze SIPs. On November 3, 2010, the Indiana Air Pollution Control Board adopted as final Indiana BART Rule, 326 IAC 26-2, to establish BART emission limitations in order to comply with the RHR. Indiana's Regional Haze SIP includes a copy of rule 326 IAC Article 26-2 in Appendix 7.
As described in III. E of this action, the LTS is a compilation of state-specific control measures relied on by the state for achieving its RPGs. The LTS must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the RPGs for all Class I areas affected by Indiana emissions.
Indiana consulted with Class I states on the development of RPGs through its participation in MRPO. MRPO facilitated consultations with other Midwest states and with states in other regions through inter-RPO processes. By coordinating with the MRPO and other RPOs, Indiana has worked to ensure that its LTS provides sufficient emission reductions to mitigate impacts of sources from Indiana on affected Class I areas. Indiana believes that existing control programs will adequately address Indiana's impact on Class I areas. Thus, continued implementation of the control programs will satisfy the long-term strategy requirements.
MPRO considered existing on-highway mobile source, off-highway mobile source, area source, power plant, and other point source programs as the existing control programs in its analysis. Indiana included a technical support document (TSD) produced by MRPO in its submission that details the analysis. Overall, emissions from Indiana and the Midwest, as a whole, are reduced significantly over this time, illustrating that Indiana is making appropriate progress toward reducing emissions.
At 40 CFR 51.308(d)(3)(v), the RHR identifies seven factors that each state must consider in developing its LTS. The state must consider: (1) Emission reductions due to ongoing air pollution control programs, including measures to address RAVI; (2) Measures to mitigate impact from construction activities; (3) Emissions limitations and schedules for
Indiana relied on MPRO's modeling and analysis along with its emission information in developing a LTS. Indiana consulted with Class I states through its participation in MRPO. MRPO facilitated consultations with other Midwest states and with states in other regions through inter-RPO processes. Indiana considered the factors set out in 40 CFR 51.308(d)(3)(v) in developing its LTS. Based on these factors and the MRPO's technical analysis, in conjunction with RPGs that were set by the pertinent states in consultation with Indiana and other states, Indiana concludes that existing control programs adequately address Indiana's impact on Class I areas and suffice to meet their RPGs by 2018 by implementing the control programs already in place. These existing control programs include Federal motor vehicle emission control program, reformulated gasoline, emission limits for area sources of VOCs, Title IV, the NO
As noted in EPA's separate notice proposing revisions to the RHR (76 FR 82219, December 30, 2011), a number of states, including Indiana, fully consistent with EPA's regulations at the time, relied on the trading programs of CAIR to satisfy the BART requirement and the requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress goals. In that notice, we proposed a limited disapproval of Indiana's long-term strategy based on its reliance on CAIR. Comments on that proposed determination may be directed to Docket ID No. EPA-HQ-OAR-2011-0729. We are proposing to find that the remaining elements of Indiana's long-term strategy meet the requirements of the RHR.
Indiana took comments on its proposed regional haze plan. It held a public hearing on January 11, 2011, which concluded the public comment period. As part of the consultation process, Indiana also received comments from the FLMs which were presented at Indiana's public hearing.
Indiana provided the comments it received and its responses with its plan. Indiana revised portions of its plan in response to comments received. EPA considers that Indiana has satisfied this requirement.
EPA is proposing a limited approval of revisions to the Indiana SIP submitted by IDEM on January 11, 2011, and March 10, 2011, addressing regional haze for the first implementation period. The revisions seek to address CAA and regional haze rule requirements for states to remedy any existing anthropogenic and prevent future impairment of visibility at Class I areas.
Indiana's plan satisfies a number of elements of the regional haze requirements. Indiana's plan identifies the Class I areas that the state's emissions affect. Indiana demonstrates that the state has consulted with other states as appropriate in establishing reasonable progress goals and identifying the reductions need in Indiana to meet those goals. Indiana's plan meets the requirement for BART for non-EGUs and for particulate matter emissions from EGUs. For these reasons, and for the SIP strengthening effect of Indiana's plan, EPA is proposing limited approval of Indiana's plan.
In addition to the above actions, EPA is proposing to approve regulation 326 IAC Article 26, Rule 2 into Indiana's SIP which incorporates BART emission limitations in order for sources to comply with EPA's Regional Haze Rule.
It should be noted that rule 326 IAC Article 26-2 contains an erroneous citation, citing limits in 326 IAC 7-4-10(a)(4) rather than 326 IAC 7-4-10(a)(3). EPA nevertheless finds the rule approvable for several reasons: (1) The pertinent limits are already an approved part of Indiana's SIP and are therefore already enforceable; (2) the State's intent is clear; and (3) Indiana intends to correct this referencing.
In a separate action, EPA has previously proposed a limited disapproval of the Indiana regional haze SIP because of deficiencies in the state's regional haze SIP submittal arising from the remand by the U.S. Court of Appeals for the District of Columbia (DC Circuit) to EPA of the Clean Air Interstate Rule (CAIR). 76 FR 82219, December 30, 2011. Consequently, we are not taking action in this notice to address the state's reliance on CAIR to meet certain regional haze requirements.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, and Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing limited approval of a revision to the Pennsylvania State Implementation Plan (SIP) submitted by the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP) on December 20, 2010 that addresses regional haze for the first implementation period. This revision addresses the requirements of the Clean Air Act (CAA) and EPA's rules that require states to prevent any future, and remedy any existing, anthropogenic impairment of visibility in mandatory Class I areas caused by emissions of air pollutants from numerous sources located over a wide geographic area (also referred to as the “regional haze program”). States are required to assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. EPA is proposing a limited approval of this SIP revision to implement the regional haze requirements for Pennsylvania on the basis that the revisions, as a whole, strengthen the Pennsylvania SIP. EPA is also proposing to approve this revision as meeting the infrastructure requirements relating to visibility protection for the 1997 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) and the 1997 and 2006 fine particulate matter (PM
Comments must be received on or before February 27, 2012.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2012-0002 by one of the following methods:
A.
B.
C.
D.
Melissa Linden, (215) 814-2096, or by email at
On December 20, 2010, the PADEP submitted a revision to its SIP to address regional haze for the first implementation period.
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.
Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles (PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range
In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas
Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35714), the RHR. The RHR revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in section II of this notice. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia, and the Virgin Islands.
Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments, and various federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.
Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, EPA has encouraged the states and tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were developed to address regional haze and related issues. The RPOs first evaluated technical information to better understand how their states and tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of particulate matter (PM) and other pollutants leading to regional haze.
The Mid-Atlantic Region Air Management Association (MARAMA), the Northeast States for Coordination Air Use Management (NESCAUM), and the Ozone Transport Commission (OTC) established the Mid-Atlantic/Northeast Visibility Union (MANE-VU) regional planning organization. MANE-VU is a collaborative effort of state governments,
Sections 110(a)(1) and 110(a)(2)(D)(i)(II) of the CAA require that within three years of promulgation of a National Ambient Air Quality Standard (NAAQS), a state must ensure that its SIP, among other requirements, “contains adequate provisions prohibiting any source or other types of emission activity within the State from emitting any air pollutant in amounts which will interfere with measures required to be included in the applicable implementation plan for any other State to protect visibility.” Similarly, section 110(a)(2)(J) requires that such SIP “meet the applicable requirements of part C of (Subchapter I) (relating to visibility protection).”
EPA's 2006 Guidance, entitled “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM
The regional haze program, as reflected in the RHR, recognizes the importance of addressing the long-range transport of pollutants for visibility and encourages states to work together to develop plans to address haze. The regulations explicitly require each state to address its “share” of the emission reductions needed to meet the reasonable progress goals for neighboring Class I areas. States working together through a regional planning process, are required to address an agreed upon share of their contribution to visibility impairment in the Class I areas of their neighbors.
As a result of the regional planning efforts in the MANE-VU, all states in the MANE-VU region contributed information to a Technical Support Committee (TSC) which provides an analysis of the causes of haze, and the levels of contribution from all sources within each state to the visibility degradation of each Class I area. The MANE-VU states consulted in the development of reasonable progress goals, using the products of this technical consultation process to co-develop their reasonable progress goals for the MANE-VU Class I areas. The modeling done by MANE-VU relied on assumptions regarding emissions over the relevant planning period and embedded in these assumptions were anticipated emissions reductions in each of the states in MANE-VU, including reductions from BART and other measures to be adopted as part of the state's long term strategy for addressing regional haze. The reasonable progress goals in the regional haze SIPs that have been prepared by the states in the MANE-VU region are based, in part, on the emissions reductions from nearby states that were agreed on through the MANE-VU process.
Pennsylvania submitted a regional haze SIP on December 20, 2010, to address the requirements of the RHR. On December 7, 2007, Pennsylvania submitted its original 1997 8-Hour Ozone and PM
Regional haze SIPs must assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install BART controls for the purpose of eliminating or reducing visibility impairment. The specific regional haze SIP requirements are discussed in further detail below.
The RHR establishes the deciview as the principal metric or unit for expressing visibility. This visibility metric expresses uniform changes in haziness in terms of common increments across the entire range of visibility conditions, from pristine to extremely hazy conditions. Visibility expressed in deciviews is determined by using air quality measurements to estimate light extinction and then transforming the value of light
The deciview is used in expressing RPGs (which are interim visibility goals toward meeting the national visibility goal), defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by anthropogenic air pollution by reducing anthropogenic emissions that cause regional haze. The national goal is a return to natural conditions,
To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437), and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP submittal and periodically review progress every five years midway through each 10-year implementation period. To do this, the RHR requires states to determine the degree of impairment (in deciviews) for the average of the 20 percent least impaired (“best”) and 20 percent most impaired (“worst”) visibility days over a specified time period at each of their Class I areas. In addition, states must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural and current visibility conditions in documents titled, EPA's
For the first regional haze SIPs that were due by December 17, 2007, “baseline visibility conditions” were the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent least impaired days and 20 percent most impaired days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states are required to calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then current conditions will indicate the amount of progress made. In general, the 2000-2004 baseline period is considered the time from which improvement in visibility is measured.
The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the states that establish two RPGs (
States have significant discretion in establishing RPGs, but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. States must demonstrate in their SIPs how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have considerable flexibility in how they take these factors into consideration, as noted in EPA's
Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources
On July 6, 2005, EPA published the
States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO
Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Any exemption threshold set by the state should not be higher than 0.5 deciview.
In their SIPs, states must identify potential BART sources, described as “BART eligible sources” in the RHR, and document their BART control determination analyses. In making BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors: (1) The costs of compliance, (2) the energy and non-air quality environmental impacts of compliance, (3) any existing pollution control technology in use at the source, (4) the remaining useful life of the source, and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. States are free to determine the weight and significance to be assigned to each factor.
A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA approval of the regional haze SIP.
As noted above, the RHR allows states to implement an alternative program in lieu of BART so long as the alternative program can be demonstrated to achieve greater reasonable progress toward the national visibility goal than would BART. Under regulations issued in 2005 revising the regional haze program, EPA made just such a demonstration for the Clean Air Interstate Rule (CAIR). 70 FR 39104, July 6, 2005. EPA's regulations provide that states participating in the CAIR cap and trade program under 40 CFR part 96 pursuant to an EPA-approved CAIR SIP or which remain subject to the CAIR Federal Implementation Plan (FIP) in 40 CFR part 97, do not require affected BART eligible electric generating units (EGUs) to install, operate, and maintain BART for emissions of SO
Consistent with the requirement in section 169A(b) of the CAA that states include in their regional haze SIP a 10 to 15 year strategy for making reasonable progress, section 51.308(d)(3) of the RHR requires that states include a LTS in their regional haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable RPGs. The LTS must include “enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within, or affected by emissions from, the state.
When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another state, the RHR requires the impacted state to coordinate with the contributing states in order to develop coordinated emissions management strategies.
States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors listed below are taken into account in developing their LTS: (1) Emission reductions due to ongoing air pollution control programs, including measures to address Reasonably Attributable Visibility Impairment; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the LTS.
As noted in EPA's separate notice proposing revisions to the RHR (76 FR 82219, December 30, 2011) a number of states, including Pennsylvania, fully consistent with EPA's regulations at the time, relied on the trading programs of CAIR to satisfy the BART requirement
As part of the RHR, EPA revised 40 CFR 51.306(c) regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment, which was due December 17, 2007, in accordance with 40 CFR 51.308(b) and (c). On or before this date, the state must revise its plan to provide for review and revision of a coordinated LTS for addressing RAVI and regional haze, and the state must submit the first such coordinated LTS with its first regional haze SIP. Future coordinated LTS's, and periodic progress reports evaluating progress towards RPGs, must be submitted consistent with the schedule for SIP submission and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively. The periodic review of a state's LTS must report on both regional haze and RAVI impairment and must be submitted to EPA as a SIP revision.
Section 51.308(d)(4) of the RHR includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. The strategy must be coordinated with the monitoring strategy required in section 51.305 for RAVI. Compliance with this requirement may be met through “participation” in the IMPROVE network,
• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside the state;
• Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas in other states;
• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible, in electronic format;
• Developing a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. A state must also make a commitment to update the inventory periodically; and
• Other elements, including reporting, recordkeeping, and other measures necessary to assess and report on visibility.
The RHR requires control strategies to cover an initial implementation period extending to the year 2018, with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of section 51.308(d) with the exception of BART. The requirement to evaluate sources for BART applies only to the first regional haze SIP. Facilities subject to BART must continue to comply with the BART provisions of section 51.308(e), as noted above. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.
The RHR requires that states consult with FLMs before adopting and submitting their SIPs.
On December 20, 2010, PADEP submitted revisions to the Pennsylvania SIP to address regional haze as required by EPA's RHR.
Pennsylvania has no Class I areas within its borders, but has been identified as influencing the visibility impairment of all MANE-VU Class I areas (Brigantine Wilderness Area in New Jersey; Acadia National Park, Moosehorn Wilderness Area, and Roosevelt/Campobello International Park in Maine; Great Gulf Wilderness Area and Presidential Range/Dry River Wilderness Area in New Hampshire; Lye Brook Wilderness Area in Vermont; Dolly Sods Wilderness and Otter Creek Wilderness Area in West Virginia; and Shenandoah National Park and James River Face Wilderness Area in Virginia). Pennsylvania is responsible for developing a regional haze SIP that addresses these Class I areas, that describes its long-term emission strategy, its role in the consultation processes, and how the SIP meets the other requirements in EPA's regional haze regulations. However, since Pennsylvania has no Class I areas within its borders, Pennsylvania is not required to address the following regional haze SIP elements: (a) Calculation of baseline and natural visibility conditions, (b) establishment of reasonable progress goals, (c) monitoring requirements, and (d) RAVI requirements.
As described in section II. E of this action, the LTS is a compilation of state-specific control measures relied on by the state to obtain its share of emission reductions to support the RPGs established by Maine, New Hampshire, Vermont, and New Jersey, the Class I area states. Pennsylvania's LTS for the first implementation period addresses the emissions reductions from federal, state, and local controls that take effect in the Commonwealth from the baseline period starting in 2002 until 2018.
The LTS was developed by Pennsylvania, in coordination with MANE-VU, identifying the emissions units within Pennsylvania that likely have the largest impacts currently on visibility at the MANE-VU Class I areas, estimating emissions reductions for 2018, based on all controls required under federal and state regulations for the 2002-2018 period (including BART), and comparing projected visibility improvement with the uniform rate of progress for the MANE-VU Class I areas.
Pennsylvania's LTS includes measures needed to achieve its share of emissions reductions agreed upon through the consultation process with Class I area states and includes enforceable emissions limitations, compliance schedules, and other measures necessary to achieve the reasonable progress goals established by MANE-VU for the Class I areas.
The emissions inventory used in the regional haze technical analyses was developed by MARAMA for MANE-VU with assistance from Pennsylvania. The 2018 emissions inventory was developed by projecting 2002 emissions and assuming emissions growth due to projected increases in economic activity as well as applying reductions expected from federal and state regulations affecting the emissions of VOC and the visibility-impairing pollutants NO
MANE-VU developed emissions inventories for four inventory source classifications: (1) Stationary point sources, (2) area sources, (3) off-road mobile sources, and (4) on-road mobile sources. The New York Department of Environmental Conservation also developed an inventory of biogenic emissions for the entire MANE-VU region. Stationary point sources are those sources that emit greater than a specified tonnage per year, depending on the pollutant, with data provided at the facility level. Stationary area sources are those sources whose individual emissions are relatively small, but due to the large number of these sources, the collective emissions from the source category could be significant. Off-road mobile sources are equipment that can move but do not use the roadways. On-road mobile source emissions are automobiles, trucks, and motorcycles that use the roadway system. The emissions from these sources are estimated by vehicle type and road type. Biogenic sources are natural sources like trees, crops, grasses, and natural decay of plants. Stationary point sources emission data is tracked at the facility level. For all other source types emissions are summed on the county level.
There are many federal and state control programs being implemented that MANE-VU and Pennsylvania anticipate will reduce emissions between the baseline period and 2018. Emission reductions from these control programs were projected to achieve substantial visibility improvement by 2018 in the MANE-VU Class I areas. To assess emissions reductions from ongoing air pollution control programs, BART, and reasonable progress goals MANE-VU developed 2018 emissions projections called Best and Final. The emissions inventory provided by the Commonwealth of Pennsylvania for the Best and Final 2018 projections is based on adopted and enforceable requirements.
Pennsylvania also relied on emission reductions from various federal Maximum Achievable Control Technology (MACT) rules in the development of the 2018 emission inventory projections. These MACT rules include the combustion turbine and reciprocating internal combustion engines MACT, the industrial boiler and process heaters MACT and the 2, 4, 7, and 10 year MACT standards.
On July 30, 2007, the U.S. District Court of Appeals mandated the vacatur and remand of the Industrial Boiler MACT Rule.
MANE-VU performed modeling for the regional haze LTS for the 11 Mid-Atlantic and Northeast states and the District of Columbia. The modeling analysis is a complex technical evaluation that began with selection of the modeling system. MANE-VU used the following modeling system:
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CMAQ modeling of regional haze in the MANE-VU region for 2002 and 2018 was carried out on a grid of 12x12 kilometer (km) cells that covers the 11 MANE-VU states (Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont) and the District of Columbia and states adjacent to them. This grid is nested within a larger national CMAQ modeling grid of 36x36 km grid cells that covers the continental United States, portions of Canada and Mexico, and portions of the Atlantic and Pacific Oceans along the east and west coasts. Selection of a representative period of meteorology is crucial for evaluating baseline air quality conditions and projecting future changes in air quality due to changes in emissions of visibility-impairing pollutants. MANE-VU conducted an in-depth analysis which resulted in the selection of the entire year of 2002 (January 1-December 31) as the best period of meteorology available for conducting the CMAQ modeling. The MANE-VU states modeling was developed consistent with EPA's
MANE-VU examined the model performance of the regional modeling for the areas of interest before determining whether the CMAQ model results were suitable for use in the regional haze assessment of the LTS and for use in the modeling assessment. The modeling assessment predicts future levels of emissions and visibility impairment used to support the LTS and to compare predicted, modeled visibility levels with those on the uniform rate of progress. In keeping with the objective of the CMAQ modeling platform, the air quality model performance was evaluated using graphical and statistical assessments based on measured ozone, fine particles, and acid deposition from various monitoring networks and databases for the 2002 base year. MANE-VU used a diverse set of statistical parameters from the EPA's Modeling Guidance to stress and examine the model and modeling inputs. Once MANE-VU determined the model performance to be acceptable, MANE-VU used the model to assess the 2018 RPGs using the current and future year air quality modeling predictions, and compared the RPGs to the uniform rate of progress.
An important step toward identifying reasonable progress measures is to identify the key pollutants contributing to visibility impairment at each Class I area. To understand the relative benefit of further reducing emissions from different pollutants, MANE-VU developed emission sensitivity model runs using CMAQ to evaluate visibility and air quality impacts from various groups of emissions and pollutant scenarios in the Class I areas on the 20 percent worst visibility days.
Regarding which pollutants are most significantly impacting visibility in the MANE-VU region, MANE-VU's contribution assessment, demonstrated
Since the Commonwealth of Pennsylvania does not have a Class I area, it is not required to establish RPGs. However, Pennsylvania has been identified as influencing the visibility impairment of MANE-VU Class I Areas; Dolly Sods Wilderness and Otter Creek Wilderness Area in West Virginia; and Shenandoah National Park and James River Face Wilderness Area in Virginia. As such, Pennsylvania participated in consultations to discuss the reasonable progress goals considered by Visibility Improvement State and Tribal Association of the Southeast (VISTAS) Class I area states, West Virginia and Virginia. West Virginia and Virginia wrote emails to Pennsylvania stating no additional reductions were needed from the Commonwealth to meet their RPGs.
Pennsylvania also identified additional EGUs that would be controlled to meet the reductions required in the MANE-VU Asks for the 167 stacks. These additional sources are listed in Table 4. Pennsylvania averaged the EGU emission reductions for the 15 identified stacks and an additional 6 EGU stacks to meet the 90 percent control needed. EPA agrees that Pennsylvania has met the MANE-VU “Ask” of 90 percent control on its share of the 167 stacks identified. EPA's analysis of Pennsylvania's averaging can be found in the TSD accompanying this rulemaking.
On September 25, 2010, the Pennsylvania Environmental Quality Board (EQB) proposed the Commonwealth's statewide low-sulfur heating and distillate oil regulation, in response to the MANE-VU “Ask” that states adopt a low-sulfur fuel oil strategy. The Commonwealth has not finalized this strategy at the time of this proposal. However, following Pennsylvania's SIP submittal on December 20, 2010, additional point sources have become subject to federally enforceable SO
BART is an element of Pennsylvania's LTS. The BART regional haze requirement consists of three components: (a) Identification of all the BART eligible sources; (b) an assessment of whether the BART eligible sources are subject to BART; and (c) the determination of the BART controls.
The first component of a BART evaluation is to identify all the BART eligible sources. The BART eligible sources were identified by utilizing the criteria in the BART Guidelines as follows:
• Determine whether one or more emissions units at the facility fit within one of the 26 categories listed in the BART Guidelines (70 FR 39158-39159);
• Determine whether the emission unit(s) was in existence on August 7, 1977 and begun operation after August 6, 1962;
• Determine whether potential emissions of SO
The BART Guidelines recommend addressing SO
The second component of the BART evaluation is to identify those BART eligible sources that may reasonably be anticipated to cause or contribute to visibility impairment at any Class I area are subject to BART. As discussed in the BART Guidelines, a state may choose to consider all BART eligible sources to be subject to BART (70 FR 39161). Consistent with the MANE-VU Board's decision in June 2004 that because of the collective importance of BART sources, BART determinations should be made by the MANE-VU states for each BART eligible source. Pennsylvania identified each of its BART eligible sources as subject to BART.
The final component of a BART evaluation is making BART determinations for all BART subject sources. In making BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source; and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. Section (e)(2) of the RHR provides that a state may opt to implement an emissions trading program or other alternative measure rather than to require sources subject to BART to install, operate, and maintain BART. To do so, the state must demonstrate that the emissions trading program or other alternative measure will achieve greater reasonable progress than would be achieved through the installation and operation of BART. The 34 sources in Pennsylvania that the Commonwealth found to be subject to BART are discussed below in Table 7. For the EGUs, Pennsylvania relied on CAIR to satisfy the BART requirements for SO
EPA agrees with PADEP's analyses and conclusions for the BART emission units located in Table 7 above. EPA has reviewed the Pennsylvania analyses and concluded they were conducted in a manner that is consistent with EPA's BART Guidelines. EPA has determined that Pennsylvania's submittals meet the requirements of section 169A(g)(2) of the CAA to consider available technology, the cost of compliance, the energy and nonair quality environmental impacts of compliance, any pollution control equipment in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. Therefore, the conclusions reflect a reasonable application of EPA's guidance to these sources. EPA's analysis of these BART determinations can be found in the accompanying TSD for this rulemaking. The BART determinations for each of the facilities discussed above and the resulting BART emission limits were adopted by Pennsylvania into its regional haze SIP. PADEP incorporated the BART emission limits into Title V permits. The BART units in Pennsylvania are required to comply with these emission limits no later than five years after publication in the
On May 10, 2006, the MANE-VU State Air Directors adopted the Inter-RPO State/Tribal and FLM Consultation Framework that documented the consultation process within the context of regional haze planning, and was intended to create greater certainty and understanding among RPOs. MANE-VU states held ten consultation meetings and/or conference calls from March 1, 2007 through March 21, 2008. In addition to MANE-VU members attending these meetings and conference calls, participants from VISTAS, Midwest RPO, and the relevant Federal Land Managers were also in attendance. In addition to the conference calls and meeting, the FLMs were given the opportunity to review and comment on each of the technical documents developed by MANE-VU.
Pennsylvania submitted a draft regional haze SIP to the relevant FLMs for review and comment pursuant to 40 CFR 51.308(i)(2). The FLM provided comments on the draft regional haze SIP in accordance with 40 CFR 51.308(i)(3). The comments received from the FLMs were addressed and incorporated in Pennsylvania's SIP revision. The FLM's comments and PADEP's responses can be found in Appendix AA of the Pennsylvania submittal. The PADEP provided public notice of the opportunity to comment on the SIP revision and provided public notice of public hearing on October 9, 2010. The PADEP did not receive any comments during the public comment period. Pennsylvania commits in their SIP to ongoing consultation with the FLMs on Regional Haze issues throughout the implementation.
Consistent with the requirements of 40 CFR 51.308(g), Pennsylvania has committed to submitting a report on reasonable progress (in the form of a SIP revision) to the EPA every five years following the initial submittal of its regional haze SIP. The reasonable progress report will evaluate the progress made towards the RPGs for the MANE-VU Class I areas influenced by Pennsylvania.
EPA is proposing a limited approval of the revision to the Pennsylvania SIP submitted by the Commonwealth of Pennsylvania through the PADEP on December 20, 2010 as meeting some of the applicable regional haze requirements as set forth in sections 169A and 169B of the CAA and in 40 CFR 51.300-308, as described previously in this action. Accordingly, EPA is proposing to find that this revision meets the applicable visibility related requirements of CAA section 110(a)(2) including but not limited to 110(a)(2)(D)(i)(II) and 110(a)(2)(J), relating to visibility protection for the 1997 8-Hour Ozone NAAQS and the 1997 and 2006 PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed limited approval of Pennsylvania's Regional Haze Plan does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Visibility, Volatile organic compounds.
42 U.S.C. 7401
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. 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), New Executive Office Building, Washington, DC;
Comments regarding these information collections are best assured of having their full effect if received by February 27, 2012. Copies of the submission(s) may be obtained by calling (202) 720-8681.
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.
Rural Housing Service, USDA.
Announcement of meetings.
This Notice announces a series of teleconferences and/or Web conference meetings regarding the USDA Multi-Family Housing Program. The teleconference and/or Web conference meetings will be scheduled on a quarterly basis, but may be held monthly at the Agency's discretion. This Notice also outlines suggested discussion topics for the meetings and is intended to notify the general public of their opportunity to participate in the teleconference and/or Web conference meetings.
Teleconference and/or Web conference meetings are scheduled to occur during the months of January, April, July, and October of 2012. The dates and times for the teleconference and/or Web conference meetings will be announced via e-mail to parties registered as described below.
Any member of the public wishing to register for the meetings and obtain the call-in number, access code, Web link and other information for any of the public teleconference and/or Web conference meetings may contact Timothy James, Loan and Finance Analyst, Multi-Family Housing, (202) 720-1094, fax at (202) 720-0302, or email address
The objectives of this series of teleconferences are as follows:
Topics to be discussed could include, but will not be limited to, the following:
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).
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482-0336, 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
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).
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482-0336, 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 Wendy Liberante, OMB Desk Officer, Fax number (202) 395-7285 or via the Internet at
Office of the Secretary, Commerce.
General Notice Announcing Population Estimates.
This notice announces the voting age population estimates as of July 1, 2011, for each state and the District of Columbia. We are providing this notice in accordance with the 1976 amendment to the Federal Election Campaign Act, Title 2, United States Code, Section 441a(e).
Enrique Lamas, Chief, Population Division, U.S. Census Bureau, Room HQ-5H174, Washington, DC 20233, at (301) 763-2071.
Under the requirements of the 1976 amendment to the Federal Election Campaign Act, Title 2, United States Code, Section 441a(e), I hereby give notice that the estimates of the voting age population for July 1, 2011, for each state and the District of Columbia are as shown in the following table.
U.S. Census Bureau, Department of Commerce.
Notice of Amendment, Privacy Act System of Records: COMMERCE/CENSUS-6, Population Census Records for 1910 and All Subsequent Decennial Censuses.
In accordance with the Privacy Act of 1974, as amended, Title 5 United States Code (U.S.C.) 552a(e)(4) and (11); and Office of Management and Budget (OMB) Circular A-130, Appendix I, “Federal Agency Responsibilities for Maintaining Records About Individuals,” the Department of Commerce is issuing notice of intent to amend the system of
Please address comments to: Chief Privacy Officer, Room 8H115, U.S. Census Bureau, Washington, DC 20233-3700.
The Decennial Census of Population and Housing is one of the few Federal activities for which authority rests in the Constitution (Article 1, Section 2). Decennial census data collection processes touch the lives of every person in the United States. Decennial census data products provide the basis for apportioning among the states the seats in the U.S. House of Representatives, for developing the districts that members of Congress, state legislators, and other elected individuals represent, for the distribution of billions of dollars each year to governmental entities at all levels, and for untold numbers of governmental and business decisions. Decennial census records may also be used by respondents, their heirs, or legal representatives for proof of age, citizenship, proof of relationship, and limited use for genealogical purposes. The first change updates the safeguards to comprehensively cover the safeguards provided at the U.S. Census Bureau. The second change updates the system manager and corresponding address. Additionally, this amendment provides minor administrative updates to record source categories and exemptions claimed for the system. The entire resulting system of records notice, as amended, appears below.
COMMERCE/CENSUS-6, Population Census Records for 1910 and All Subsequent Decennial Censuses.
None.
U.S. Census Bureau, National Processing Center, 1201 East 10th Street, Jeffersonville, IN 47132.
All persons ever counted during decennial censuses of population (1910 and all subsequent decennial censuses).
The categories of records contain records with direct identifiers (i.e., name) such as: household information: Name, address, relationship to head of household; demographic information: age (at time of census) or month/year (depending on census year), marital status, occupation and limited education data, race of household members, and other similar characteristics as reported in each census.
Title 13, U.S.C. 8.
The purpose of this system is to search the 1910 and all subsequent decennial census records. Official census transcripts of the results are provided to the named person(s), their heirs, or legal representatives, upon receipt of a signed Application for Search of Census Records (Form BC-600). Census transcripts provide proof of age for Social Security or other retirement benefits. They can also be used in making passport applications, to prove relationship in settling estates, in limited genealogy research, or to satisfy other situations where a birth certificate or other legal documentation is needed but is not available. These records may be considered as statistical records pursuant to 5 U.S.C. 552(a), as they were originally collected for statistical purposes, and are now maintained to perform searches at the request of subject individuals under procedures published in the 15 CFR part 50 and in accordance with 13 U.S.C. 8 to provide proof of age, citizenship, proof of relationship, and limited use for genealogical purposes.
None.
None.
Records are stored in a computerized environment, paper, microform, and electronic media. Paper copies, digital media, and electronic media that contain sensitive information are stored in secure facilities within a locked drawer or cabinet, or in secure storage facilities with 24-hour monitoring. Records may also be stored in a highly restricted secure computerized environment with a customized level of authentication and access control.
A limited number of sworn U.S. Census Bureau staff will be permitted to retrieve individual records. Some census records are indexed by the SOUNDEX system—a numerical coding of the surname. The majority of census records are arranged on a geographic basis where the address must be known to determine which roll, microfilm, or electronic media that contains the name(s) for which a search is requested.
The U.S. Census Bureau is committed to respecting respondent privacy and confidentiality. Through the Data Stewardship Program, we have implemented management, operational, and technical controls and practices to ensure high-level data protection to respondents of our censuses and surveys: (1) An unauthorized browsing policy protects respondent information from casual or inappropriate use by any person with access to Title 13 protected data. (2) All employees permitted to access the system are subject to the restriction, penalties, and prohibitions of 13 U.S.C. 9 and 214 as modified by Title 18 U.S.C. 3551,
Records are retained indefinitely. Records are stored at the Census Bureau's National Processing Center in Jeffersonville, Indiana, and also are provided to the National Archives and Records Administration for permanent retention. Records stored at the National Archives and Records Administration are not made public for 72 years.
Associate Director for Field Operations, U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233-8000.
None.
None.
None.
Individuals covered by U.S. Census Bureau decennial censuses.
Pursuant to 5 U.S.C. 552a(k)(4) this system of records is exempt from the notification, access, and contest requirements of the agency procedures (under 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f)). This exemption is applicable as the data are maintained by the U.S. Census Bureau and required by Title 13 to be used solely as statistical records and are not used in whole or in part in making any determination about an identifiable individual. This exemption is made in accordance with the Department's rules, which appear in 15 CFR part 4, subpart B, and in accordance with agency rules published in the rules section of this
U.S. Census Bureau, Department of Commerce.
Notice of Amendment, Privacy Act System of Records; COMMERCE/CENSUS-3, Individual and Household Statistical Surveys and Special Studies Records.
In accordance with the Privacy Act of 1974, as amended, Title 5 United States Code (U.S.C.) 552a(e)(4) and (11); and Office of Management and Budget (OMB) Circular A-130, Appendix I, “Federal Agency Responsibilities for Maintaining Records About Individuals,” the Department of Commerce is issuing notice of intent to amend the system of records COMMERCE/CENSUS-3, Individual and Household Statistical Surveys and Special Studies Records. This amendment would change the name of the system of records to “Special Censuses, Surveys, and Other Studies;” amend certain provisions concerning the purpose of the system of records; update categories of individuals and records covered by the system; change procedures governing retrieval, storage, retention, disposal, and safeguards of the records in the system; and make other minor administrative updates. Accordingly, the system notice for COMMERCE/CENSUS-3, Individual and Household Statistical Surveys and Special Studies Records published in the
Please address comments to: Chief Privacy Officer, Room 8H115, U.S. Census Bureau, Washington, DC 20233-3700.
This update makes four program-related changes. The first of four proposed changes to program-related provisions updates the purpose of the system of records to include collection of statistical data from respondents, as well as the methodological research previously included in the original System of Record Notice (SORN). This update is a result of a re-alignment of the Census Bureau's systems of records to separate Census Bureau surveys protected by Title 13 confidentiality provisions from reimbursable surveys not protected by Title 13 confidentiality provisions. Census Bureau surveys protected by Title 13 confidentiality are now covered in this system of records, and reimbursable surveys are covered in COMMERCE/Census-7, “Other Agency Surveys and Reimbursables.” The second proposed change updates the categories of individuals in the system to include administrative records and cognitive interviews. The third change updates the categories of records in the system to provide additional information and details surrounding the records. The last change updates the policies and practices for storing, retaining, disposing, and safeguarding the records in the system to include recordings of survey and cognitive interviews and comprehensively cover the safeguards provided at the U.S. Census Bureau. The entire resulting system of records notice, as amended, appears below.
Special Censuses, Surveys, and Other Studies.
Bowie Computer Center, U.S. Census Bureau, 17101 Melford Blvd., Bowie, Maryland 20715, and U.S. Census Bureau, National Processing Center, 1201 East 10th Street, Jeffersonville, Indiana 47103; and National Archives and Records Administration, Washington National Records Center, Washington, DC 20409.
This system covers the population of the United States. Survey respondents typically are individuals aged 15 years old or over. Data collected directly from respondents may be supplemented with data from administrative record files received from other federal, state, or
Records in this system of records consist of working statistical files (
Title 13 U.S.C. 8(b), 182, and 196 provide the authority for the U.S. Census Bureau to conduct statistical surveys.
The purpose of this system of records is to collect statistical information from respondents through survey instruments or other means and to conduct methodological research on improving various aspects of surveys authorized by Title 13, U.S.C. 8(b), 182, and 196, such as: survey sampling frame design; sample selection algorithms; questionnaire development, design, and testing; usability testing of computer software and equipment; post data collection processing; data quality review; and non-response research.
None. The data will be used only for statistical purposes. No disclosures which permit the identification of individual respondents, and no determinations affecting individual respondents are made.
None.
Records (including, but not limited to, sound files of survey or cognitive interviews or electronic datasets) will be stored in a secure computerized system and on magnetic media; output data will be electronic files or paper copies. Paper copies or magnetic media will be stored in a secure area within a locked drawer or cabinet. Data sets may be accessed only by authorized personnel. Control lists will be used to limit access to those employees with a need to know; rights will be granted based on job functions.
A limited number of sworn U.S. Census Bureau staff will be permitted to retrieve records containing direct identifiers (such as a name or SSN). Staff producing final statistical products will have access only to data sets from which direct identifiers have been deleted and replaced by unique non-identifying codes internal to the U.S. Census Bureau.
The U.S. Census Bureau is committed to respecting respondent privacy and protecting confidentiality. Through the Data Stewardship Program, we have implemented management, operational, and technical controls and practices to ensure high-level data protection to respondents of our census and surveys. (1) An unauthorized browsing policy
Records are to be retained in accordance with the General Records Schedule and U.S. Census Bureau's records control schedules that are approved by the National Archives and Records Administration. Generally, records are retained for less than 10 years, unless a longer period is necessary for statistical purposes or for permanent archival retention.
Associate Director for Demographic Programs, U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233-8000.
None.
None.
None.
Individuals and populations covered by selected administrative records systems and U.S. Census Bureau surveys and special censuses.
Pursuant to Title 5 U.S.C. 552a(k)(4), this system of records is exempted from the notification, access, and contest requirements of the agency procedures (under 5 Title U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f)). This exemption is applicable as the data are maintained by the U.S. Census Bureau and required by Title 13 to be used solely as statistical records and are not used in whole or in part in making any determination about an identifiable individual. This exemption is made in accordance with the Department's rules, which appear in 15 CFR part 4 subpart B, and in accordance with agency rules published in the rules section of this
U.S. Census Bureau, Department of Commerce.
Notice of Amendment, Privacy Act System of Records; COMMERCE/CENSUS-4, Minority-Owned Business Enterprises Survey Records.
In accordance with the Privacy Act of 1974, as amended, Title 5 United States Code (U.S.C.) 552a(e)(4) and (11); and Office of Management and Budget (OMB) Circular A-130, Appendix I, “Federal Agency Responsibilities for Maintaining Records About Individuals”, the Department of Commerce is issuing notice of intent to amend the system of records entitled COMMERCE/CENSUS-4, “Minority-Owned Business Enterprises Survey Records.” This amendment would change the name of the system of records to “Economic Survey Collection;” would amend certain provisions concerning the purpose of the system of the records, categories of records covered by the system, routine uses of records maintained in the system, retrievability, and safeguards of records in the systems; and would make other minor administrative updates. Accordingly, the COMMERCE/CENSUS-4, Minority-Owned Business Enterprises Survey Records notice published in the
Comment Date: To be considered, written comments on the proposed amended system must be submitted on or before February 27, 2012.
Effective Date: Unless comments dictate otherwise, the amended system of records will become effective as proposed on the date of publication of a subsequent notice in the
Please address comments to: Chief Privacy Officer, Room 8H115, U.S. Census Bureau, Washington, DC 20233-3700.
This update makes five program-related changes. The first of five proposed changes updates the name and purpose of the system of records to expand the scope to include all economic programs, as well as surveys, such as the Survey of Business Owners and Survey of Construction. This update is a result of a System of Records Notice (SORN) re-alignment to cover all economic censuses and surveys authorized by, and kept confidential in accordance with Title 13; this SORN also includes government and building permit economic surveys that utilize public data sources, and, therefore, are not kept confidential in accordance with Title 13. The second proposed change updates the categories of individuals in the system to include the universe of small business owners in the U.S., as well as individuals engaged in business activity. The third proposed change updates the categories of records in the system to include selected administrative records from other federal, state, and local government agencies, or commercial sources,
COMMERCE/CENSUS-4, Economic Survey Collection
None.
The U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233; U.S. Census Bureau, Bowie Computer Center, 17101 Melford Boulevard, Bowie, Maryland 20715; and U.S. Census Bureau, National Processing Center, 1201 East 10th Street, Jeffersonville, Indiana 47132.
This system covers individuals operating a business, data on individuals from federal, state and local governments, and businesses in the United States. Data collected directly from respondents may be supplemented with data from administrative record files received from other federal, state, or local agencies, or commercial sources. Most of these files are collected and processed under the Statistical Administrative Records System. Administrative record files are from agencies including, the Departments of Agriculture, Education, Health and Human Services, Homeland Security, Housing and Urban Development, Labor, Treasury, Veterans Affairs, and from the Office of Personnel Management, the Social Security Administration, the Selective Service System, and the U.S. Postal Service. Comparable data may also be sought from State agencies and commercial sources. Please see the COMMERCE/CENSUS-8, Statistical Administrative Records System SORN for more information.
Records in this system of records consist of working statistical files (
13 U.S.C., Chapter 5, 8(b), 131, 132, and 182.
The economic survey collections covered by this system of records produce a wide-range of products for data users, including compilations of administrative records and survey-collected data, and numerous research and technical studies. For example, the U.S. Census Bureau's non-employer statistics program provides national and sub-national summary information on more than 20 million businesses without paid employees. The economic programs also combine data for non-employer and employer businesses in order to provide a complete picture of the Nation's economic activity. One example survey is, the Survey of Business Owners and Self-Employed Persons (SBO), which provides comprehensive information on demographic and economic characteristics of businesses and business owners. Another example survey is the Survey of Construction (SOC), which tracks a sample of builders from county building permit offices, to gauge the amount of residential construction by geographic area. Additionally, the economic programs provide data on the structure, function, finances, taxation, employment, and retirement systems within the United State's federal, state and local governments. A related purpose is to conduct research on the methodology associated with various aspects of surveys, such as data quality checks and review during post data collection processing. An other purposes of the system of records for economic collections include the integration of non-employer and employer records to form a comprehensive business universe file for subsequent analysis.
(1) Building permit data is compiled from public use data, and, therefore, is not subject to confidentiality restrictions; and may be released to other agencies or individuals.
(2) Economic data related to government operations that are publicly available may be released and used by other federal agencies, state and local legislators, researchers, businesses, and individuals.
None.
Records will be stored in a secure computerized system and on electronic or magnetic media; output data will be either electronic or paper copies. Paper copies and magnetic media will be stored in a secure area within a locked drawer or cabinet. Data sets may be accessed only by authorized personnel. Control lists will be used to limit access to those employees with a need to know; rights will be granted based on job functions. For data that do not require confidentiality protections, security controls are not applied.
A limited number of sworn U.S. Census Bureau staff will be permitted to retrieve records containing direct identifiers (SSN). Staff producing final statistical products will have access only to data sets from which direct identifiers have been deleted and replaced by unique non-identifying codes internal to the Census Bureau. In those cases, information may be retrieved by the unique non-identifying code, name of the business owner, demographic characteristics, or economic characteristics.
The U.S. Census Bureau is committed to respecting respondent privacy and protecting confidentiality. Through the Data Stewardship Program, we have implemented management, operational, and technical controls and practices to ensure high-level data protection to respondents of our census and surveys. (1) An unauthorized browsing policy protects respondent information from casual or inappropriate use by any person with access to Title 13 protected data. (2) All employees permitted to access the system are subject to the restriction, penalties, and prohibitions of 13 U.S.C. 9 and 214, as modified by Title 18 U.S.C. 3551,
Records are to be retained in accordance with the General Records Schedules and U.S. Census Bureau's records control schedules that are approved by the National Archives and Records Administration. Records are retained in accordance with agreements developed with entities who provide the data. Federal tax information administrative record data will be retained and disposed of in accordance with Publication 1075,
Associate Director for Economic Programs, Room 8H132-North Building, U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233-8100.
None.
None.
None.
Individuals, state and local governments, and businesses covered by economic censuses and surveys and selected administrative record systems.
Pursuant to Title 5 U.S.C. 552a(k)(4), this system of records is exempted from the notification, access, and contest requirements of the agency procedures (under Title 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f)). This exemption is applicable as the data are maintained by the U.S. Census Bureau and required by Title 13 to be used solely as statistical records and are not used in whole or in part in making any determination about an identifiable individual. This exemption is made in accordance with the Department's rules which appear in 15 CFR part 4 subpart B and in accordance with agency rules published in the rules section of this
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Port of Portland, grantee of FTZ 45, requesting an expansion of the scope of manufacturing authority approved within Subzone 45F, on behalf of Epson Portland, Inc. (EPI), Hillsboro, Oregon. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on January 19, 2012.
Subzone 45F was approved by the Board in 2005 at the EPI plant (16.6 acres) located at 3950 NW Aloclek Place, Hillsboro, Oregon (Board Order 1406, 70 FR 55106, 9/20/2005). Activity at the facility (450 employees) includes manufacturing (injection molding, assembly, finishing), warehousing and distribution of inkjet printer cartridges.
The current request involves the production of ink for inkjet printer cartridges using foreign and domestic inputs, activity which the applicant is now requesting to conduct under zone procedures. Current production capacity is 9,000 barrels (210 kg per barrel) of ink per year. The finished product would be either inkjet ink (duty rate—1.8%) or inkjet printer cartridges (duty-free). New material inputs sourced from abroad
FTZ procedures could exempt EPI from customs duty payments on the additional foreign components used in export production. The company anticipates that some 55 percent of the plant's shipments will be exported, either as finished inkjet ink or in inkjet cartridges. On its domestic sales, EPI would be able to choose the duty rates during customs entry procedures that apply to inkjet ink (duty rate—1.8%) or inkjet printer cartridges (duty-free) for the additional foreign inputs noted above. EPI would also be exempt from duty payments on foreign materials that become scrap or waste during the production process. The request indicates that the additional savings from FTZ procedures would help improve the plant's international competitiveness.
In accordance with the Board's regulations, Diane Finver of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is March 26, 2012. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to April 10, 2012.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
For further information, contact Diane Finver at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Import Administration, International Trade Administration, Department of Commerce.
David Goldberger (Mexico) or Holly Phelps (Republic of Korea), AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4136 or (202) 482-0656, respectively.
On December 30, 2011, the Department of Commerce (“the Department”) received antidumping duty petitions concerning imports of large residential washers (washing machines) from the Republic of Korea (“Korea”) and Mexico filed in proper form by Whirlpool Corporation (“the petitioner”), a domestic producer of washing machines.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (“the Act”), the petitioner alleges that imports of washing machines from Korea and Mexico are being, or are likely to be, sold in the United States at less than fair value, within the meaning of section 731 of the Act, and that such imports materially injure, or threaten material injury to, an industry in the United States.
The Department finds that the petitioner filed these petitions on behalf of the domestic industry because the petitioner is an interested party as defined in section 771(9)(C) of the Act, and it has demonstrated sufficient industry support with respect to the investigations that it is requesting the Department to initiate (
The products covered by these investigations are washing machines from Korea and Mexico. For a full description of the scope of the investigations, please see the “Scope of the Investigations,” in Appendix I of this notice.
During our review of the petitions, we discussed the scope with the petitioner to ensure that it is an accurate reflection of the products for which the domestic industry is seeking relief. Moreover, as discussed in the preamble to the regulations (
We are requesting comments from interested parties regarding the appropriate physical characteristics of washing machines to be reported in response to the Department's antidumping questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to more accurately report the relevant costs of production, as well as to develop appropriate product comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate listing of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as (1) general product characteristics and (2) the product comparison criteria. We note that it is not always appropriate to use all product characteristics as product comparison criteria. We base product comparison criteria on meaningful commercial differences among products. In other words, while there may be some physical product characteristics utilized by manufacturers to describe washing machines, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in product matching. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.
In order to consider the suggestions of interested parties in developing and issuing the antidumping duty questionnaires, we must receive comments at the above-referenced address by February 8, 2012. Additionally, rebuttal comments must be received by February 15, 2012. All comments must be filed on the records of both the Korea and Mexico antidumping duty investigations. All comments and submissions to the Department must be filed electronically using IA ACCESS, as referenced above.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the industry.
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (“ITC”), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioner does not offer a definition of domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that washing machines constitute a single domestic like product and we have analyzed industry support in terms of that domestic like product. For a discussion of the domestic like product analysis in this case,
In determining whether the petitioner has standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the petitions with reference to the domestic like product as defined in the “Scope of Investigations” section above. To establish industry support, the petitioner provided its shipments of the domestic like product in 2010, and compared its shipments to the estimated total shipments of the domestic like product for the entire domestic industry.
Our review of the data provided in the petitions, supplemental submissions, and other information readily available to the Department indicates that the petitioner has established industry support. First, the petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (
The Department finds that the petitioner filed the petitions on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act and it has demonstrated sufficient industry support with respect to the antidumping duty investigations that it is requesting the Department initiate.
The petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (“NV”). In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioner contends that the industry's injured condition is illustrated by reduced market share, reduced shipments, underselling and price depression or suppression, a decline in financial performance, lost sales and revenue, and an increase in the volume of imports and import penetration.
The period of investigation (“POI”) is October 1, 2010, through September 30, 2011, for both Korea and Mexico.
The following is a description of the allegations of sales at less than fair value upon which the Department has based its decision to initiate investigations with respect to Korea and Mexico. The sources of, and adjustments to, the data relating to U.S. price and NV are discussed in greater detail in the Korea AD Initiation Checklist and the Mexico AD Initiation Checklist.
The petitioner provided three U.S. prices based on average model-specific retail prices obtained from a market survey database. These prices were adjusted to exclude the retailer markup, as well as discounts and rebates, based on the petitioner's experience in, and knowledge of, the market. Originally, the petitioner deducted international freight based on U.S. Customs and Border Protection (“CBP”) data from U.S price for both price-to-price comparisons and price-to-constructed value (CV) comparisons. It subsequently revised these comparisons to remove the deduction for international freight from U.S. price. However, because it is more accurate for price-to-price comparisons to deduct international freight expenses from the U.S. price, we revised the price-to-price margin calculations to deduct international freight.
The petitioner provided three home market prices based on a survey of retail prices in Korea. These prices were adjusted to exclude the retailer markup, as well as discounts and rebates, based on the petitioner's experience in, and knowledge of, the market. The petitioner further adjusted home market price by deducting Korean valued added tax (“VAT”) and other taxes. It made no other adjustments to home market price.
The petitioner provided two U.S. prices based on average model-specific retail prices obtained from a market survey database. These prices were adjusted to exclude the retailer markup, as well as discounts and rebates, based on the petitioner's experience in, and knowledge of, the market. Originally, the petitioner deducted international freight based on CBP data from U.S price for both price-to-price comparisons and price-to-CV comparisons. It subsequently revised these comparisons to remove the deduction for international freight from U.S. price. However, because it is more accurate for price-to-price comparisons to deduct international freight expenses from the U.S. price, we revised the price-to-price margin calculations to deduct international freight.
The petitioner provided two home market prices based on retail prices available in Mexico. These prices were adjusted to exclude the retailer markup, as well as discounts and rebates, based on the petitioner's experience in, and knowledge of, the market. The petitioner further adjusted home market price by deducting Mexican VAT. It made no other adjustments to home market price.
The petitioner provided information demonstrating reasonable grounds to believe or suspect that sales of large residential washing machines in the Korean and Mexican markets were made at prices below the fully-absorbed cost of production (“COP”), within the meaning of section 773(b) of the Act, and requested that the Department conduct a country-wide sales-below-cost investigation. The Statement of Administrative Action (“SAA”), submitted to the Congress in connection with the interpretation and application of the Uruguay Round Agreements Act, states that an allegation of sales below COP need not be specific to individual exporters or producers.
Further, the SAA provides that section 773(b)(2)(A) of the Act retains the requirement that the Department have “reasonable grounds to believe or suspect” that below-cost sales have occurred before initiating such an investigation. Reasonable grounds exist when an interested party provides specific factual information on costs and prices, observed or constructed, indicating that sales in the foreign market in question are at below-cost prices.
Pursuant to section 773(b)(3) of the Act, COP consists of the cost of manufacturing (“COM”); selling, general and administrative (“SG&A”) expenses; financial expenses; and packing expenses. The petitioner relied on its own production experience to calculate the raw material, packing, and freight costs included in the calculation of COM. The petitioner adjusted these inputs to account for known differences between U.S. and Korean prices and for differences in weights and technologies between the petitioner's washing machine models and those of the Korean producers' washing machine models sold in the comparison market and the United States. Inbound freight costs associated with procuring material inputs were calculated based on the petitioner's own experience adjusted for differences in weight between the washing machine models used to calculate COP/CV and the Korean models.
The petitioner relied on its own labor costs, adjusted for known differences between the U.S. and Korean hourly compensation rates for electrical equipment, appliance, and component manufacturing in 2007, as reported by the U.S. Bureau of Labor Statistics. The petitioner relied on its own experience to determine the per-unit factory overhead costs (exclusive of labor) associated with the production of washing machines.
The petitioner stated that the washing machine manufacturing processes in Korea are very similar to its own manufacturing processes, and therefore it is reasonable to estimate the Korean producers' usage rates based on the usage rates experienced by a U.S. washing machine producer.
To determine SG&A expense rates, the petitioner relied on the fiscal year (FY) 2010 unconsolidated financial statements of two Korean producers of washing machines. The petitioner relied on the FY 2010 consolidated financial statements of the same two Korean producers of washing machines to determine the financial expense rates.
Based upon a comparison of the prices of the foreign like product in the home market to the calculated COP of the most comparable product, we find reasonable grounds to believe or suspect that sales of the foreign like product were made below the COP, within the meaning of section 773(b)(2)(A)(i) of the Act. Accordingly, the Department is initiating a country-wide cost investigation.
Because it alleged sales below cost, pursuant to sections 773(a)(4), 773(b) and 773(e) of the Act, the petitioner calculated NV based on CV. The petitioner calculated CV using the same average COM, SG&A, financial expense, and packing figures used to compute the COP. The petitioner relied on the same 2010 unconsolidated financial statements used as the basis for the SG&A rates to calculate profit rates. Because one of the producers did not incur a profit, the petitioner did not include profit in the calculation of CV for that producer's washing machine model. We revised petitioner's calculation of the profit rate for the second Korean washing machine producer to exclude those income and expense items not included in the petitioner's calculation of that producer's COP.
Based on the data provided by the petitioner, there is reason to believe that imports of washing machines from Korea are being, or are likely to be, sold in the United States at less than fair value. Based on a comparison of U.S. price to home-market price, as discussed above, the estimated dumping margins range from 31.03 percent to 77.52 percent. Based on a comparison of U.S. price to CV, as discussed above, the
Pursuant to section 773(b)(3) of the Act, COP consists of COM; SG&A expenses; financial expenses; and packing expenses. The petitioner relied on its own production experience to calculate the raw material, packing, and freight costs included in the calculation of COM. The petitioner adjusted these inputs to account for known differences between U.S. and Mexican prices and for differences in weights and technologies between the petitioner's U.S. washing machine models and those of the Mexican producers' washing machine models sold in the comparison market and the United States. Inbound freight costs associated with procuring material inputs were calculated based on the petitioner's own experience adjusted for differences in weight between the washing machine models used to calculate COP/CV and the Mexican models.
The petitioner relied on its own labor costs, adjusted for known differences between the U.S. and Mexican hourly compensation rates for electrical equipment, appliance, and component manufacturing in 2007, as reported by the U.S. Bureau of Labor Statistics. The petitioner relied on its own experience to determine the per-unit factory overhead costs (exclusive of labor) associated with the production of washing machines.
The petitioner stated that the washing machine manufacturing processes in Mexico are very similar to its own manufacturing processes, and therefore it is reasonable to estimate the Mexican producers' usage rates based on the usage rates experienced by a U.S. washing machine producer.
To determine SG&A expense rates, the petitioner relied on the FY 2010 unconsolidated financial statements of a Mexican producer of washing machines. The petitioner relied on the FY 2010 unconsolidated financial statements of the same producer of washing machines to determine the financial expense rate. Consistent with Department practice, we revised the petitioner's calculation of the financial expense rate to reflect the FY 2010 consolidated financial statements of the Mexican producer's parent company.
Based upon a comparison of the prices of the foreign like product in the home market to the calculated COP of the most comparable product, we find reasonable grounds to believe or suspect that sales of the foreign like product were made below the COP, within the meaning of section 773(b)(2)(A)(i) of the Act. Accordingly, the Department is initiating a country-wide cost investigation.
Because it alleged sales below cost, pursuant to sections 773(a)(4), 773(b) and 773(e) of the Act, the petitioner calculated NV based on CV. The petitioner calculated CV using the same average COM, SG&A, financial expense, and packing figures used to compute the COP. As discussed above, we revised the financial expenses included in the petitioner's calculation of CV to reflect the financial expenses based on the FY 2010 consolidated financial statements of the Mexican producer's parent company. Because the producer did not incur a profit, the petitioner did not include profit in the calculation of CV.
Based on the data provided by the petitioner, there is reason to believe that imports of washing machines from Mexico are being, or are likely to be, sold in the United States at less than fair value. Based on a comparison of U.S. price to home market price, as discussed above, the estimated dumping margins are 27.21 percent and 58.62 percent. Based on a comparison of U.S. price to CV, as discussed above, the estimated dumping margins are 62.64 percent and 72.41 percent.
Based upon the examination of the petitions on washing machines from Korea and Mexico and other information reasonably available to the Department, the Department finds that these petitions meet the requirements of section 732 of the Act. Therefore, we are initiating antidumping duty investigations to determine whether imports of washing machines from Korea and Mexico are being, or are likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act, unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.
On December 10, 2008, the Department issued an interim final rule for the purpose of withdrawing 19 CFR 351.414(f) and (g), the regulatory provisions governing the targeted dumping analysis in antidumping duty investigations, and the corresponding regulation governing the deadline for targeted-dumping allegations, 19 CFR 351.301(d)(5).
In order to accomplish this objective, if any interested party wishes to make a targeted dumping allegation in any of these investigations pursuant to section 777A(d)(1)(B) of the Act, such allegations are due no later than 45 days before the scheduled date of the country-specific preliminary determination.
The petition identifies three Korean producers that export washing machines to the United States: Samsung Electronics Co., Ltd. (Samsung), LG Electronics, Inc. (LG), and Daewoo Electronics Corporation (Daewoo). There is no information indicating that there are other Korean producers/exporters of the subject merchandise. Accordingly, the Department is selecting Samsung, LG, and Daewoo as mandatory respondents in this investigation pursuant to section 777A(e)(1) of the Act. Interested parties may submit comments regarding respondent selection within five calendar days of publication of this notice. Comments should be filed electronically using IA ACCESS.
For this investigation, the Department intends to select respondents based on CBP data for U.S. imports under the Harmonized Tariff Schedule of the United States (“HTSUS”) number 8450.20.0090. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties with access to information protected by APO within five days of publication of this
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. Instructions for filing such applications may be found on the Department's Web site at
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the petitions and amendments thereto have been provided to the representatives of the Governments of Korea and Mexico. To the extent practicable, we will attempt to provide a copy of the public version of the petitions to each exporter named in the petition, as provided under 19 CFR 351.203(c)(2).
We have notified the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the petitions were filed, whether there is a reasonable indication that imports of washing machines from Korea and Mexico materially injure, or threaten material injury to, a U.S. industry. A negative ITC determination with respect to either country would result in the termination of the investigation with respect to that country;
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
Any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
This notice is issued and published pursuant to section 777(i) of the Act and 19 CFR 351.203(c).
The products covered by these investigations are all large residential washers and certain subassemblies thereof from Korea and Mexico.
For purposes of these investigations, the term “large residential washers” denotes all automatic clothes washing machines, regardless of the orientation of the rotational axis, with a cabinet width (measured from its widest point) of at least 24.5 inches (62.23 cm) and no more than 32.0 inches (81.28 cm).
Also covered are certain subassemblies used in large residential washers, namely: (1) All assembled cabinets designed for use in large residential washers which incorporate, at a minimum: (a) At least three of the six cabinet surfaces; and (b) a bracket; (2) all assembled tubs
Excluded from the scope are stacked washer-dryers and commercial washers. The term “stacked washer-dryers” denotes distinct washing and drying machines that are built on a unitary frame and share a common console that controls both the washer and the dryer. The term “commercial washer” denotes an automatic clothes washing machine designed for the “pay per use” market meeting either of the following two definitions:
(1)(a) It contains payment system electronics;
(2)(a) It contains payment system electronics; (b) the payment system electronics are enabled (whether or not the payment acceptance device has been installed at the time of importation) such that, in normal operation,
The products subject to these investigations are currently classifiable under subheading 8450.20.0090 of the Harmonized Tariff System of the United States (HTSUS). Products subject to these investigations may also enter under HTSUS subheadings 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Mid-Atlantic Fishery Management Council (Council) and its Surfclam, Ocean Quahog and Tilefish Committee, its Ecosystem and Ocean Planning Committee, and its Spiny Dogfish Committee will hold public meetings.
The meetings will be held Tuesday, February 14, 2012 through Thursday, February 16, 2012. See
Hilton Virginia Beach Oceanfront, 3001 Atlantic Avenue, Virginia Beach, VA; telephone: (757) 213-3001.
Christopher M. Moore, Ph.D. Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255.
On Tuesday, February 14—The Surfclam, Ocean Quahog and Tilefish Committee will meet from 1 p.m. until 3 p.m. The Ecosystem and Ocean Planning Committee will meet from 3 p.m. until 5 p.m. On Wednesday, February 15—The Spiny Dogfish Committee will meet from 9 a.m. until 10 a.m. Action on the Omnibus Framework/Supplemental Environmental Assessment (EA) will occur from 10 a.m. until 12 p.m. A review of the Advisory Panel Workgroup Report will be held from 1 p.m. until 3 p.m. Action on the Squid, Mackerel, and Butterfish Framework will occur from 3 p.m. until 4 p.m. A Highly Migratory Species (HMS) presentation will be held from 4 p.m. until 5 p.m. There will be a Public Listening Session from 5 p.m. until 6 p.m. On Thursday February 16—The Council will hold its regular Business Session from 9 a.m. until 1 p.m. to approve the October and December minutes, receive Organizational Reports to include a SAW/SARC 53 Summary on Black Sea Bass, the New England Liaison Report, the Executive Director's Report, the Science Report, Committee Reports, and conduct any continuing and/or new business.
Agenda items by day for the Council's Committees and the Council itself are:
On Tuesday, February 14—The Surfclam, Ocean Quahog and Tilefish Committee will discuss and identify the next steps for Amendment 15. The Ecosystem and Ocean Planning Committee will receive a presentation by Dr. Steve Ross of UNC Wilmington on Bureau of Ocean Energy Management-funded work on deep-sea corals and consider and approve the mission statement.
On Wednesday, February 15—The Spiny Dogfish Committee will update and review the range of alternatives for Amendment 3. The Council will take action to revise risk policy measures through framework adjustment or other action regarding the Omnibus Framework or Supplemental EA. The Council will receive an Advisory Panel Workgroup Report to review and approve workgroup recommendations to modify the current process for Advisory panel membership and governance. The Council will take action to modify vessel hold certification requirements regarding the Squid, Mackerel and Butterfish Framework. The Council will hear a presentation on an Amendment that proposes catch shares in the Atlantic shark fishery. The Council will hold a Public Listening Session.
On Thursday, February 16—The Council will hold its regular Business Session to approve the October and December minutes, receive Organizational Reports to include a SAW/SARC 53 Summary on Black Sea Bass, the New England Liaison Report, the Executive Director's Report, Science Report, Committee Reports, and conduct any continuing and/or new business.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit amendment.
Notice is hereby given that a major amendment to Permit No. 15126-01 has been issued to NMFS National Marine Mammal Laboratory (Responsible Party: Dr. John Bengtson, Director), Seattle, WA.
The permit amendment and related documents are available for review upon written request or by appointment in the following offices:
Tammy Adams or Amy Sloan, (301) 427-8401.
On November 25, 2011, notice was published in the
The permit has been amended to include harassment of ribbon seals (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the Marine Mammal Protection Act (MMPA), notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to the United States Navy (Navy) to take marine mammals, by harassment, incidental to conducting physical oceanographic studies in the southwest Indian Ocean.
Effective January 23, 2012, through March 7, 2012.
A copy of the IHA and application are available by writing to P. Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.
An electronic copy of the application containing a list of references used in this document may be obtained by writing to the above address, telephoning the contact listed here (see
Michelle Magliocca, Office of Protected Resources, NMFS, (301) 427-8401.
Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
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' 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:
NMFS received an application on August 15, 2011, from the United States Navy (Navy) for the taking of marine mammals, by Level B harassment, incidental to conducting physical oceanographic studies in the southwest Indian Ocean. Upon receipt of additional information, NMFS determined the application complete and adequate on September 14, 2011.
The Navy plans to use one source vessel, the R/V
Acoustic stimuli (
The Navy's physical oceanographic studies are scheduled to commence on January 23, 2012, and continue for approximately 17 days ending on February 8, 2012. Some deviation from this timeline is possible due to logistics and weather conditions. NMFS is issuing an authorization that extends from January 23, 2012, through March 7, 2012.
Within this time period, the Navy will conduct seismic oceanography surveys using a towed array of two low-energy
The
This section includes a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this document. Sound pressure is the sound force per unit area, and is usually measured in micropascals (μPa), where 1 pascal (Pa) is the pressure resulting from a force of one newton exerted over an area of one square meter. Sound pressure level (SPL) is expressed as the ratio of a measured sound pressure and a reference level. The commonly used reference pressure level in underwater acoustics is 1 μPa, and the units for SPLs are dB re: 1 μPa.
SPL (in decibels (dB)) = 20 log (pressure/reference pressure)
SPL is an instantaneous measurement and can be expressed as the peak, the peak-peak (p-p), or the root mean square (rms). Rms, which is the square root of the arithmetic average of the squared instantaneous pressure values, is typically used in discussions of the effects of sounds on vertebrates and all references to SPL in this document refer to rms unless otherwise noted. SPL does not take the duration of a sound into account.
The
Airguns function by venting high-pressure air into the water which creates an air bubble. The pressure signature of an individual airgun consists of a sharp rise and then fall in pressure, followed by several positive and negative pressure excursions caused by the oscillation of the resulting air bubble. The oscillation of the air bubble transmits sounds downward through the seafloor and the amount of sound transmitted in the near horizontal directions is reduced. However, the airgun array also emits sound that travels horizontally toward non-target areas. The nominal source levels of the airgun array that will be used by the Navy on the
Lamont-Doherty Earth Observatory (L-DEO) developed a verified model that predicts impulsive sound pressure field propagation and accurately describes acoustic propagation in marine waters of depths greater than 1,000 m. These model-generated sound propagation radii are routinely used for determination of received sound levels generated by impulsive sound sources, and have been previously applied in calculating the total ensonified area for use of two low-energy 105 in
For the ETP, one and three 105 in
Based on extant modeling, the proposed sound propagation radii for the two 105 in
Considering the circumference of the area ensonified to the 160 dB isopleth extends to 1,340 m (twice the 670 m radius); that the GI-gun array is towed approximately 2-9 m below the surface at a speed of 4 knots (7.4 km/hr), and that the seismic oceanographic surveys will be conducted for 14 days for 24 hrs/day, the Navy estimates that the seismic oceanographic survey distance will encompass 1,344 Nm (2,489 km). Multiplying the total linear distance of the seismic oceanographic survey by the area ensonified to the 160 dB isopleth (1,340 m), yields a total ensonified area of approximately 3,335 km
A hull-mounted Teledyne RD Instruments Ocean Surveyor ADCP (TRDI OS ADCP) will be operated at 38 kHz with acoustic output pressure of 224 dB re 1 µPa. The beamwidth will be 30 degrees off nadir and the acoustic pressure along each beam is estimated at 180 dB re 1 µPa at 114 m. The TRDI OS ADCP will operate concurrently with the GI-gun array and intermittently to map the distribution of water currents and suspended materials in the water column.
A lowered Teledyne RD Instruments ADCP (L-ADCP) will be mounted on a rosette with a conductivity-temperature-depth gauge. The beamwidth will be 30 degrees off nadir and the output pressure will be 216 dB re 1 µPa at 300 kHz. The L-ADCP will be deployed intermittently to collect hydrographic data.
Up to four long-range ADCPs (LR-ADCPs) will be anchored on the sea floor using 400 kilograms (kg) of scrap iron (assemblage of four scrap locomotive wheels). LR-ADCPs will be moored to the sea floor at an estimated 3,000 m, such that they float at a depth of 500 m below the sea surface. LR-ADCPs will be suspended from the iron anchorage assemblies by a single line comprised of
The
The
A proposed authorization and request for public comments was published in the
Due to lack of detailed information on marine mammal population distributions and densities in the research area, informed assumptions on the exact distribution patterns of animals cannot be made. Therefore, exposure estimates are based on uniform distribution of marine mammals over the area for which population data is available. Many species are unlikely to be found in numbers that peak population density estimates suggest. During the January-February period, when the ARC12 research project is planned, many marine mammals will be outside of the action area.
Forty marine mammal species are known to inhabit waters between South Africa and Antarctica. Six of these species are listed as endangered under the United States Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
Acoustic stimuli generated by the operation of airguns, which introduce sound into the marine environment, may have the potential to cause Level B harassment of marine mammals in the proposed 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 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 considered an injury but rather a type of Level B harassment (Southall
The notice of the proposed IHA (76 FR 71940, November 21, 2011) included a discussion of the effects of sounds from seismic activities on cetaceans and pinnipeds. NMFS refers the reader to the Navy's application and NMFS' EA (
The seismic survey will not result in any permanent impact on habitats used by the marine mammals in the survey area, including the food sources they use (
One reason for the adoption of airguns as the standard energy source for marine seismic surveys is that, unlike explosives, they have not been associated with large-scale fish kills. However, existing information on the impacts of seismic surveys on marine fish populations is limited. There are three types of potential effects of exposure to seismic surveys: (1) Pathological, (2) physiological, and (3) behavioral. A general synopsis of the available information on the effects of exposure to seismic and other anthropogenic sound as relevant to fish was provided in the notice of proposed IHA (76 FR 71940, November 21, 2011).
The existing body of information on the impacts of seismic survey sound on marine invertebrates is very limited. However, there is some unpublished and very limited evidence of the potential for adverse effects on invertebrates, thereby justifying further discussion and analysis of this issue. The three types of potential effects of exposure to seismic surveys on marine invertebrates are pathological, physiological, and behavioral. Based on the physical structure of their sensory organs, marine invertebrates appear to be specialized to respond to particle displacement components of an impinging sound field and not to the pressure component (Popper
In conclusion, NMFS has determined that the Navy's marine seismic survey is not expected to have any habitat-related effects that could cause significant or long-term consequences for marine mammals or the food sources that they utilize.
In order to issue an incidental take authorization (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 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.
The Navy will implement the following mitigation measures during the seismic survey:
The Navy used the exposure threshold isopleths applicable to cetaceans and pinnipeds, as well as extant models of same/similar GI-gun sources and water depths, as the basis for their exclusion zones. The exclusion zone will be 70 m for the 180 dB exposure thresholds and will be employed for monitoring.
If a marine mammal is observed moving on a path toward an exclusion zone, an attempt will be made to adjust the vessel speed or course in order to minimize the likelihood of an animal entering an exclusion zone. Speed and course alterations are not always possible when towing a long GI-gun array, but are considered possible options given the use of a dual GI-gun array.
The Navy will shut down the operating airgun array if a marine mammal is seen within or approaching an exclusion zone. The Navy will implement a shut-down if a cetacean is observed within or approaching the 180 dB isopleth (70 m). Airgun activity will not resume until the marine mammal has cleared the exclusion zone or has not been seen for 15 (dolphins) to 30 minutes (whales).
Ramp-up will be comprised of gradually activating the dual GI-guns in sequence over a period of about 30 min until the desired operating level is reached. This should allow any marine mammals in the area to avoid the maximum sound source. Airguns will be activated in a sequence such that the source level of the array will increase in steps not exceeding 6 dB per 5-min periods over a total duration of 30 min. During ramp-up, protected species observers will monitor the exclusion zones for marine mammals and a shutdown will be implemented if an animal is detected in or approaching an exclusion zone.
NMFS carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's proposed measures, NMFS determined that the above mitigation measures provide the means of effecting the least practicable 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
The Navy will sponsor marine mammal monitoring during the proposed activity, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the IHA. The Navy's monitoring plan is described below.
The Navy will continuously monitor the harassment isopleths during daytime and nighttime airgun operations. Visual monitoring will be comprised of three protected species observers (PSOs) typically working in shifts of 4-hr durations or less. A PSO platform is located one deck below and forward of the bridge (12.5 m [41 ft] above the waterline), providing a relatively unobstructed 180 degree view forward. Aft views can be obtained along both the port and starboard decks. During daytime operations, PSOs will systematically survey the area around the vessel with reticle and big-eye binoculars and the naked eye. A clinometer will be used to determine distances of animals in close proximity to the vessel, and hand-held fixed rangefinders and distance marks on the
The PSOs will be in wireless communication with ship's officers on the bridge and scientists in the vessel's operations laboratory, so they can promptly advise of the need for avoidance maneuvers or seismic source shutdown. Shutdown of GI-gun operations will occur immediately upon observation/detection of any marine mammal in an exclusion zone. Following a shutdown, GI-gun ramp-up will not be initiated until PSOs have confirmed the marine mammal is no longer observed/detected for a period of 15 or 30 minutes (depending on species). If a marine mammal is outside of an exclusion zone and observed by a PSO to exhibit abnormal behaviors consistent with signs of harassment (e.g., avoidance, dive patterns, multiple changes in direction), operation of the GI-guns will cease until the animal moves out of the area or is not resighted for a period of 30 min.
PSOs 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 nearing the exclusion zone.
When a sighting is made, the following information will be recorded:
1. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare;
2. Species, group size, age, individual size, sex (if determinable);
3. Behavior when first sighted and subsequent behaviors;
4. Bearing and distance from the vessel, sighting cue, exhibited reaction to the airgun sounds or vessel (
5. Fin/fluke characteristics and angle of fluke when an animal submerges to determine if the animal executed a deep or surface dive;
6. Type and nature of sounds heard; and
7. Any other relevant information.
When shutdown is required for mitigation purposes, the following information will be recorded:
1. The basis for decisions resulting in shutdown of the GI-guns;
2. Information needed to estimate the number of marine mammals potentially taken by harassment;
3. Information on the frequency of occurrence, distribution, and activities of marine mammals in the study area;
4. Information on the behaviors and movements of marine mammals during and without operation of the GI-guns; and
5. Any adverse effects the shutdown had on the research.
PSOs will provide estimates of the numbers of marine mammals exposed to the GI-gun source and any disturbance reactions exhibited, or the lack thereof. Observations and data collection will aim to provide estimates of the actual numbers of animals taken, verify the level of harassment, aide in assessment of impacts on populations on conclusion of the study, and increase knowledge of species in the study area. Observations and data collection will also aim to provide information that will allow for verifying or disputing that the takings are negligible.
The Navy will submit a report to NMFS within 90 days after the end of the cruise. The report will describe the operations that are 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.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), 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 hrs preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hrs preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities will not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with the Navy to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Navy may not resume their activities until notified by NMFS via letter, email, or telephone.
In the event that the Navy discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less
In the event that the Navy 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 (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Navy will report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS within 24 hrs of the discovery. The Navy will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
Only take by Level B harassment is authorized as a result of the physical oceanographic survey off the southern coast of Africa. Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the dual airgun array may have the potential to cause marine mammals in the survey area to be exposed to sounds at or greater than 160 dB or cause temporary, short-term changes in behavior. There is no evidence that the planned activities will result in injury, serious injury, or mortality within the specified geographic area for which the Navy seeks the IHA. NMFS determined that the required mitigation and monitoring measures will minimize any potential risk for injury or mortality.
NMFS included an in-depth discussion of the methods used to calculate the densities of marine mammals in the area of the survey in a previous notice for the proposed IHA (76 FR 71940, November 21, 2011). A summary is included here.
The estimates are based on a consideration of the number of marine mammals that could be disturbed appreciably by operations with the GI-gun array to be used during multiple transects totaling approximately 2,489 km (1,547 mi). Density estimates on the marine mammal species in the survey area are based on data derived from a number of sources: the Ocean Biogeographic Information System OBIS Seamap (OBIS-SEAMP); the International Union for Conservation of Nature (IUCN, 2010); the Convention on the Conservation of Migratory Species of Wild Animals (CMS, 2010); NatureServe Explorer (NatureServe, 2010); the International Whaling Commission (IWC); NOAA Fisheries Office of Protected Resources; and the Navy Marine Species Density Database (NMSDD); unless otherwise cited.
One method of estimating takes assumes marine mammals are uniformly distributed throughout a given area, although this is not representative of the real world distribution of marine mammals in any given geographic region. Marine mammals are typically found grouped in pods, concentrate around preferred breeding and foraging habitats, and most species follow seasonal migratory patterns and routes. However, due to lack of substantive information on marine mammal population distributions and densities in the area of the proposed action, informed assumptions on distribution patterns cannot be made, and exposure estimates are based on uniform distribution of marine mammals over the area for which population data are available. Bearing these factors in mind, the exposure estimates provided are considered reasonable approximations of potential exposure, and based on the best available information.
Table 3 provides estimates of the minimum, average (considered the best estimate), and maximum marine mammal population densities in the area of the proposed study during the austral summer, anticipated occurrence of each species, and requested take authorization. For all species evaluated, average population density estimates were used for calculation of the number of marine mammals that may be exposed. NMFS has used average (or best) population density estimates when analyzing the allowable harassment for ESA-listed marine mammals incidental to marine seismic surveys for scientific research purposes (
Because extant mathematical models poorly simulate and predict the natural meander of the AC, ARC, and ARC/ACC frontal system, and due to unpredictable weather conditions, it is not possible to accurately predict the exact location where seismic oceanographic survey transects would occur. For this reason, the minimum, average, and maximum population densities given in Table 3 are the mean of the population densities for each species within the coordinates of 36°S to 43°S, and 19°E to 30°E. The front is estimated to be phase-locked between 36°S to 40°S, and 21°E to 27°E; however, the position of the front can vary by up to 100 km (generally west, east, and south of this estimated location). Because the precise location of the seismic oceanography survey transects cannot be known in advance, it is not possible to accurately differentiate the numbers of marine mammals that may be exposed in waters of the global commons (high seas), as opposed to within the South African exclusive economic zone (EEZ). Because the specific location of research activities cannot be predetermined, due to the variables described, this assessment conservatively estimates that all exposures occur in waters of the global commons (high seas) where estimated population density estimates are higher.
Based on the best available population density estimates, 2,412 cetacea may potentially be exposed to sound pressure levels ≥160 dB re 1 μPa.rms. Of the total number of cetaceans that are estimated to be exposed, 62 are listed as endangered under the ESA: 29 fin (<0.2% of the southern hemisphere population), 1 humpback (<0.004% of the southern hemisphere population), 11 sei (<0.2% of the population south of 30°S), 1 southern right (<0.004% of the southern hemisphere population), and 20 sperm (<0.02% of the southern hemisphere population) whales. For all species, the number of individuals that would be exposed to sounds ≥160 dB re 1 μPa.rms is less than 0.2 percent of the given species' population for which regional population density estimates are known.
Exposure estimates are based on marine mammal population density estimates relative to the total area ensonified by the GI-gun array, and evaluated for exposure to the 160 dB isopleth. Multiplying the total area ensonified during the seismic oceanography survey by the population estimate for each species, yields the estimated number of marine mammals exposed to sound pressures >160 dB. The total ensonified area is about 3,335 km
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 considers a variety of factors, including but not limited to:
(1) The number of anticipated mortalities;
(2) The number and nature of anticipated injuries;
(3) The number, nature, and intensity, and duration of Level B harassment; and
(4) The context in which the takes occur.
As mentioned previously, NMFS estimates that 30 species of marine mammals could be potentially affected by Level B harassment over the course of the IHA. For each species, these numbers are small (less than one percent) relative to the population size.
No injuries, serious injuries, or mortalities are anticipated to occur as a result of the Navy's planned physical oceanographic survey, and none are authorized by NMFS. Additionally, for reasons presented in the notice of proposed IHA (76 FR 71940, November 21, 2011), temporary hearing impairment (and especially permanent hearing impairment) is not anticipated to occur during the proposed specified activity. Only short-term behavioral disturbance is anticipated to occur due to the brief and sporadic duration of the survey activities. No mortality or injury is expected to occur, and due to the nature, degree, and context of behavioral harassment anticipated, the activity is not expected to impact rates of recruitment or survival.
NMFS has determined, provided that the aforementioned mitigation and monitoring measures are implemented, that the impact of conducting a physical oceanographic survey off the southern coast of Africa, 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.
Of the ESA-listed marine mammals that may potentially occur in the survey area, blue and southern right whale populations are thought to be increasing; population trends for fin, humpback, sei, and sperm whales are not well known in the southern hemisphere. However, no take of blue whales was requested because of the low likelihood of encountering this species during the survey. There is no designated critical habitat for marine mammals in the survey area. There are also no important habitat areas (
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 the Navy's planned research activities (and the resulting total taking from the survey): (1) Will result in the incidental take of small numbers of marine mammals, by Level B harassment only; (2) will have a negligible impact on the affected species or stocks; and (3) will have mitigated impacts to affected species or stocks of marine mammals to the lowest level practicable.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Of the species of marine mammals that may occur in the proposed survey area, six are listed as endangered under the ESA, including the blue, fin, humpback, sei, southern right, and sperm whales. Under section 7 of the ESA, the Navy initiated formal consultation with NMFS, Office of Protected Resources, Endangered Species Act Interagency Cooperation Division, on this survey. NMFS' Office of Protected Resources, Permits and Conservation Division, also initiated formal consultation under section 7 of the ESA with NMFS' Office of Protected Resources, Endangered Species Act Interagency Cooperation Division, to obtain a Biological Opinion evaluating the effects of issuing the IHA on threatened and endangered marine mammals and, if appropriate, authorizing incidental take.
The Biological Opinion was issued on January 20, 2012, and concluded that the specified activity and issuance of the IHA are not likely to jeopardize the continued existence of blue, fin, humpback, sei, southern right, or sperm whales. The Biological Opinion also concluded that designated critical habitat for these species does not occur in the survey area and would not be affected by the survey. The Navy, in addition to the mitigation and monitoring requirements included in the IHA, will be required to comply with the Terms and Conditions of the Incidental Take Statement corresponding to NMFS' Biological Opinion issued to both the Navy and NMFS' Office of Protected Resources, Permits and Conservation Division.
To meet NMFS' NEPA requirements for the issuance of an IHA to the Navy, NMFS prepared an Environmental Assessment (EA), titled “Issuance of an Incidental Harassment Authorization to the Navy to Take Marine Mammals by Harassment Incidental to a Physical Oceanographic Survey in the Southwest Indian Ocean.” NMFS provided relevant environmental information to the public through the notice for the proposed IHA (76 FR 71940, November 21, 2011) and has considered public comments received in response prior to finalizing the EA and deciding whether or not to issue a Finding of No Significant Impact (FONSI).
NMFS concluded that issuance of an IHA would not significantly affect the quality of the human environment and has issued a FONSI. Therefore, it is not necessary to prepare an Environmental Impact Statement for the issuance of an IHA to the Navy for this activity. The EA and FONSI for this activity can be viewed on NMFS' Web site (
As a result of these determinations, NMFS has issued an IHA to the Navy for conducting a physical oceanographic survey off the southern coast of Africa, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Commodity Futures Trading Commission. Sunshine Act Meetings.
10 a.m., Friday February 17, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, (202) 418-5084.
Commodity Futures Trading Commission. Sunshine Act Meetings.
10 a.m., Friday February 24, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, (202) 418-5084.
Commodity Futures Trading Commission.
10 a.m., Friday February 10, 2012.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, (202) 418-5084.
Commodity Futures Trading Commission. Sunshine Act Meetings.
10 a.m., Friday February 3, 2012.
1155 21st St., NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, (202) 418-5084.
Thursday, February 2, 2012, 9 a.m.-12 p.m.
Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Commission Meeting—Open to the Public.
1.
2.
A live webcast of the Meeting can be viewed at
Thursday, February 2, 2012; 2 p.m.-3 p.m.
Hearing Room 420, Bethesda Towers, 4330 East West Highway, Bethesda, Maryland.
Closed to the Public.
The Commission staff will brief the Commission on the status of compliance matters.
For a recorded message containing the latest agenda information, call (301) 504-7948.
Todd A. Stevenson, Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504-7923.
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by February 10, 2012.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 12-C0006, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Room 820, Bethesda, Maryland 20814-4408.
Amy S. Colvin, General Attorney, Division of Enforcement and Information, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7639.
The text of the Agreement and Order appears below.
1. In accordance with 16 CFR 1118.20, Hewlett-Packard Company (“HP”) and the staff (“Staff”) of the United States Consumer Product Safety Commission (“Commission”) hereby enter into this Settlement Agreement (“Agreement”) under the Consumer Product Safety Act (“CPSA”). The Agreement and the incorporated attached Order (“Order”) resolve the Staff's allegations set forth below.
2. The Staff is the staff of the U.S. Consumer Product Safety Commission, an independent federal regulatory agency established pursuant to, and responsible for, the enforcement of the CPSA, 15 U.S.C. 2051-2089.
3. HP is a corporation, organized and existing under the laws of Delaware, with its principal executive office located in Palo Alto, California.
4. Between December 2004 and July 2006, HP imported approximately 32,000 lithium-ion battery packs (the “Products”) that were shipped with, sold as accessories for use with, or provided as spare parts for the following HP notebook computers: the HP Pavilion dv1000, dv8000, and zd8000 series; the Compaq Presario v2000 and v2400 series; and the HP Compaq nc6110, nc6120, nc6140, nc6220, nc6230, nx4800, nx4820, nx6110, nx6120, and nx9600 models. HP, in addition to computer and electronics stores nationwide, as well as various Web retailers, sold notebook computers that contained the Products for between $700 and $3,000. The Products that were sold separately for use with the
5. The Products are “consumer products” and, at all relevant times, HP was a “manufacturer” of these consumer products, which were “distributed in commerce,” as those terms are defined or used in sections 3(a)(5), (8), and (11) of the CPSA, 15 U.S.C. 2052(a)(5), (8), and (11).
6. The Products can overheat, posing a fire and burn hazard to consumers.
7. Between June 2005 and March 2007, HP received 17 reports of Product incidents, some of which involved flames or fires.
8. Between March 2007 and April 2007, HP conducted a study, from which it obtained additional information about the Products.
9. By September 2007, HP knew of approximately 22 reports of incidents involving the Products. In at least two of those incidents, the Products caused injury to consumers. In at least one of those incidents, the consumer apparently went to the hospital. HP did not receive any information on the consumer's injuries or treatment, if any.
10. Despite being aware of the information set forth in Paragraphs 6 through 9, HP did not report to the Commission until July 25, 2008. By that time, HP was aware of at least 31 reports of incidents involving the Products, which had caused injuries to at least two consumers. HP also was aware that at least one consumer apparently went to the hospital because of an incident involving the Product. Following consultation with the Commission from July to October 2008, the Products were recalled in October 2008.
11. Although HP had obtained sufficient information to reasonably support the conclusion that the Products contained a defect which could create a substantial product hazard, or created an unreasonable risk of serious injury or death, HP failed to immediately inform the Commission of such defect or risk, as required by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4). In failing to immediately inform the Commission, HP knowingly violated section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d).
12. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, HP is subject to civil penalties for its knowing failure to report, as required under section 15(b) of the CPSA, 15 U.S.C. 2064(b).
13. On or about October 30, 2008, the Commission, in cooperation with HP and other companies, announced a voluntary recall of the Products. The recall announcement can be accessed at:
14. HP denies all of the Staff's allegations, including, but not limited to, the allegations that the Products (or the notebooks with which the Products were used) could create an unreasonable risk of serious injury or death, or that HP violated the reporting requirements of the CPSA. HP further denies that it committed any violation of the CPSA “knowingly,” as that term is defined in Section 20(d) of the CPSA, 15 U.S.C. 2069(d). With respect to the voluntary recall of the Products and the communications/reports leading up to that recall, HP acted in accordance with the CPSA and in its customers' best interests.
15. Under the CPSA, the Commission has jurisdiction over this matter and over HP.
16. In settlement of the Staff's allegations, HP shall pay a civil penalty in the amount of four hundred twenty-five thousand dollars ($425,000.00) within 20 calendar days of receiving service of the Commission's final Order accepting the Agreement. The payment shall be made by check payable to the order of the United States Treasury.
17. In consideration of HP's payment, the Commission agrees to release HP, as well as its current and former directors, officers, trustees, employees, agents, and representatives from any civil claim that the Commission has or may have against those parties arising out of or relating to the recall of October 30, 2008, or the Staff's allegations that HP failed to report in a timely manner a potential hazard involving the Products.
18. The parties enter into this Agreement for settlement purposes only. The Agreement does not constitute an admission by HP or a determination by the Commission that HP knowingly violated the CPSA's reporting requirements. The Agreement by the parties of the terms and conditions set forth herein is without any adjudication of any issue of fact or law.
19. Upon provisional acceptance of the Agreement by the Commission, the Agreement shall be placed on the public record and published in the
20. Upon the Commission's final acceptance of the Agreement and issuance of the final Order, HP knowingly, voluntarily, and completely waives any rights it may have in this matter to the following: (i) An administrative or judicial hearing; (ii) judicial review or other challenge or contest of the Commission's actions; (iii) a determination by the Commission of whether HP failed to comply with the CPSA and the underlying regulations; (iv) a statement of findings of fact and conclusions of law; and (v) any claims under the Equal Access to Justice Act.
21. The Commission may publicize the terms of the Agreement and the Order.
22. The Agreement and the Order shall apply to, and be binding upon, HP and each of its successors and/or assigns.
23. The Commission issues the Order under the provisions of the CPSA, and a violation of the Order may subject HP and each of its successors and/or assigns to appropriate legal action.
24. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. The Agreement shall not be waived, amended, modified, or otherwise altered without written agreement executed by the party against whom such waiver, amendment, modification, or alteration is sought to be enforced.
25. If any provision of the Agreement and the Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and the Order, such provision shall be fully severable. The balance of the Agreement and the Order shall remain in full force and effect, unless the Commission and HP agree that severing the provision materially affects the purpose of the Agreement and Order.
26. This Agreement may be signed in counterparts.
Hewlett-Packard Company
Dated: December 15, 2011.
Dated: December 20, 2011.
Dated: January 9, 2012.
Upon consideration of the Settlement Agreement entered into between Hewlett-Packard Company (“HP”), and the U.S. Consumer Product Safety Commission (“Commission”) staff, and the Commission having jurisdiction over the subject matter and over HP, and it appearing that the Settlement Agreement and the Order are in the public interest, it is
Provisionally accepted and provisional Order issued on the 20th day of January, 2012.
By Order of the Commission:
U.S. Central Command, DoD.
Notice to Amend a System of Records.
The U.S. Central Command is amending a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action will be effective on February 27, 2012 unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
Follow the instructions for submitting comments.
*
Ms. Evlyn Hearne, USCENTCOM CCJ6-RDF, 7115 South Boundary Blvd., MacDill AFB, FL 33621-5101 or at (813) 827-7482.
The U.S. Central Command systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The U.S. Central Command proposes to amend one system of records notice from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The proposed amendment is not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Combined Mild Traumatic Brain Injury Registry (September 30, 2010, 75 FR 60431).
Change system ID to read “FCENTCOM 01”.
Department of the Army, DoD.
Notice.
The invention relates to preventing and/or reducing the incidence of transfusion-related malaria, and the use of magnetism to accomplish this. Announcement is made of the availability for licensing of the invention set forth in U.S. Provisional Patent Application Serial No. 61/584,977, entitled “Use of Magnetism to Inactivate, Kill and/or Remove Malaria Parasites from Transfused Blood and Apparatus and Kits for Accomplishing the same,” filed on January 10, 2012. The United States Government, as represented by the Secretary of the Army, has rights to this invention.
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, Frederick, MD 21702-5012.
For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808. For licensing issues, Dr. Paul Mele, Office of Research and Technology Applications (ORTA), (301) 619-6664, both at telefax (301) 619-5034.
The invention relates to methods of preventing or reducing the incidence of transfusion-related malaria, and, in particular, to inactivating, killing and/or removing malaria parasites from blood supplies such as whole blood, platelets, plasma or other components of blood.
Department of the Army, DoD.
Notice.
In accordance with 35 U.S.C. 209(e), and 37 CFR 404.7(a)(1)(i) and 37 CFR 404.7(b)(1)(i), announcement is made of the intent to grant an exclusive, revocable license to the invention claimed in International Patent Application No. PCT/US2009/060852 entitled “Method and Device for Detection of Bioavailable Drug Concentration In A Fluid Sample,” filed on October 15, 2009 (which claims the benefit of U.S. Provisional Patent Application Serial No. 61/105,604 filed October 15, 2008). The intended licensee is The University of Tennessee with its principal place of business at UT Conference Center, Suite 211, 600 Henley Street, Knoxville, TN 37996-4122.
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, MD 21702-5012.
For licensing issues, Dr. Paul Mele, Office of Research & Technology Applications, (301) 619-6664. For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808; both at telefax (301) 619-5034.
Anyone wishing to object to grant of this license can file written objections along with supporting evidence, if any, within 15 days from the date of this publication. Written objections are to be filed with the Command Judge Advocate (see
Department of the Army, DoD.
Notice of open meeting.
Under the provisions to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the following Federal advisory committee meeting will take place:
To request advance approval or obtain further information, contact COL Donald Myers, (717) 245-3907 or
This meeting is open to the public. Interested persons may submit a written statement for consideration by the U.S. Army War College Subcommittee. Written statements should be no longer than two type-written pages and must address: the issue, discussion, and a recommended course of action. Supporting documentation may also be included as needed to establish the appropriate historical context and to provide any necessary background information.
Individuals submitting a written statement must submit their statement to the Alternate Designated Federal Officer at the following address: Attn: Alternate Designated Federal Officer, Dept, of Academic Affairs, 122 Forbes Avenue, Carlisle, PA 17013. At any point, however, if a written statement is not received at least 10 calendar days prior to the meeting, which is the subject of this notice, then it may not be provided to or considered by the U.S. Army War College Subcommittee until its next open meeting.
The Alternate Designated Federal Officer will review all timely submissions with the U.S. Army War College Subcommittee Chairperson, and ensure they are provided to members of the U.S. Army War College Subcommittee before the meeting that is the subject of this notice. After reviewing the written comments, the Chairperson and the Alternate Designated Federal Officer may choose to invite the submitter of the comments to orally present their issue during an open portion of this meeting or at a future meeting.
The Alternate Designated Federal Officer, in consultation with the U.S. Army War College Subcommittee Chairperson, may, if desired, allot a specific amount of time for members of the public to present their issues for review and discussion by the U.S. Army War College Subcommittee.
U.S. Department of Energy.
Notice and request for OMB review and comment.
The Department of Energy (DOE) has submitted to the Office of Management and Budget (OMB) for clearance, a proposal for collection of information under the provisions of the Paperwork Reduction Act of 1995. The proposed collection will supersede the existing Form OE-781R, “Monthly Electricity Imports and Exports Report”. The Form OE-781R is currently suspended and would be terminated with the implementation of the proposed Form EIA-111.
Comments regarding this collection must be received on or before February 27, 2012. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, please advise the DOE Desk Officer at OMB of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at (202) 395-4650.
Written comments should be sent to the DOE Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10102, 735 17th Street, NW., Washington, DC 20503, and to Michelle Bowles. To ensure receipt of the comments by the due date, email (eia-111@eia.gov) is recommended. The mailing address is the U.S. Department of Energy, U.S. Energy Information Administration, Mail Stop: EI-23 (Form EIA-111), 1000 Independence Avenue SW., Washington, DC 20585. Alternatively,
Requests for additional information or copies of any forms and instructions (the draft proposed collection) should be directed to Michelle Bowles at the address listed above. Forms and instructions are also available on the internet at:
This information collection request contains: (1) OMB No.; (2) Information Collection Request Title; (3) Type of Request; (4) Purpose; (5) Annual Estimated Number of Respondents; (6) Annual Estimated Number of Total Responses; (7) Annual Estimated Number of Burden Hours; (8) Annual Estimated Reporting and Recordkeeping Cost Burden.
1. New.
2. Form EIA-111, Quarterly Electricity Imports and Exports Report.
3. Three-year approval.
4. Form EIA-111 collects U.S. electricity import and export data. The data are used to get an accurate measure of the flow of electricity into and out of the United States. The import and export data are reported by U.S. purchasers, sellers and transmitters of wholesale electricity, including persons authorized by Order to export electric energy from the United States to foreign countries, persons authorized by Presidential Permit to construct, operate, maintain, or connect electric power transmission lines that cross the U.S. international border, and U.S. Balancing Authorities that are directly interconnected with foreign Balancing Authorities. Such entities are to report monthly flows of electric energy received or delivered across the border, the cost associated with the transactions, and actual and implemented interchange. The data collected on this form may appear in various EIA publications.
5. 173 respondents surveyed quarterly.
6. 692 responses annually.
7. Annual total of 4,152 hours.
10. Annual total of $0.
Section 13(b) of the Federal Energy Administration Act of 1974, Pub. L. 93-275, codified at 15 U.S.C. 772(b).
Department of Energy, Office of Science.
Notice of open meeting.
This notice announces a meeting of the DOE/NSF High Energy Physics Advisory Panel (HEPAP). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Monday, March 12, 2012; 10 a.m.-6 p.m. and Tuesday, March 13, 2012; 9 a.m.-1 p.m.
Hotel Palomar, 2121 P Street NW., Washington, DC 20037.
John Kogut, Executive Secretary; High Energy Physics Advisory Panel; U.S. Department of Energy; SC-25/Germantown Building, 1000 Independence Avenue SW., Washington, DC 20585-1290; Telephone: (301) 903-1298.
Tentative Agenda: Agenda will include discussions of the following:
• Discussion of Department of Energy High Energy Physics Program
• Discussion of National Science Foundation Elementary Particle Physics Program
• Reports on and Discussions of Topics of General Interest in High Energy Physics
• Public Comment (10-minute rule)
Public Participation: The meeting is open to the public. If you would like to file a written statement with the Committee, you may do so either before or after the meeting. If you would like to make oral statements regarding any of these items on the agenda, you should contact John Kogut by phone at: (301) 903-1298 or by email at:
Minutes: The minutes of the meeting will be available on the High Energy Physics Advisory Panel Web site at:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Nevada. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, February 15, 2012, 5 p.m.
Atomic Testing Museum, 755 E. Flamingo Road, Las Vegas, Nevada 89119.
Denise Rupp, Board Administrator, 232 Energy Way, M/S 505, North Las Vegas, Nevada 89030. Phone: (702) 657-9088; Fax (702) 295-5300 or Email:
1. Discussion regarding U233 Waste Disposition at the Nevada National Security Site
Department of Energy; Office of Science.
Notice of Open Meeting.
This notice announces a meeting of the Biological and Environmental Research Advisory Committee (BERAC). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, February 16, 2012, 9 a.m. to 5 p.m.; Friday, February 17, 2012, 8:30 a.m. to 12 p.m.
Omni Shoreham Hotel, 2500 Calvert Street NW., Washington, DC 20008.
Dr. David Thomassen, Designated Federal Officer, BERAC, U.S. Department of Energy, Office of Science, Office of Biological and Environmental Research, SC-23/Germantown Building, 1000 Independence Avenue SW., Washington, DC 20585-1290. Phone (301) 903-9817; fax (301) 903-5051 or email:
Purpose of the Meeting: To provide advice to the Director, Office of Science, Department of Energy, on the many complex scientific and technical issues that arise in the development and implementation of the Biological and Environmental Research Program.
• Report from the Office of Science
• Report from the Office of Biological and Environmental Research
• News from the Biological Systems Science and Climate and Environmental Sciences Divisions
• Discussion on the Technology Implementation for Long-Term Vision charge
• Updates on the Joint Genome Institute, Environmental Molecular Sciences Laboratory, and Knowledgebase project
• New Business
• Public Comment
Office of Fossil Energy, Department of Energy (DOE).
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during December 2011, it issued Orders granting, amending and vacating authority to import and export natural gas and liquefied natural gas. These Orders are summarized in the attached appendix and may be found on the FE Web site at
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy (DOE).
Notice of Limited Waivers.
The U.S. Department of Energy (DOE) is hereby granting a nationwide limited waiver of the Buy American requirements of section 1605 of the Recovery Act under the authority of Section 1605(b)(2), (iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality), with respect to Recovery Act projects funded by EERE for: (1) 5-25 Watt LED Candelabra Bulbs (includes Flame tip, bent tip, A19, S11, G16.5 or G25 clear bulb enclosure); (2) 140 Watt LED fixtures with 10 degree beams capable of illuminating from 100 feet, UL certified; and (3) 27 Watt round LED fixtures, producing 1 foot-candle at 242 feet distance, UL certified. This waiver expires May 1, 2012.
Effective Date: 1/10/2012.
Christine Platt-Patrick, Office of Energy Efficiency and Renewable Energy (EERE), (202) 287-1553, Department of Energy, 1000 Independence Avenue SW., Mailstop EE-2K, Washington, DC 20585.
Under the authority of American Recovery and Reinvestment Act of 2009 (Recovery Act), Public Law 111-5, section 1605(b)(2), the head of a Federal department or agency may issue a “determination of inapplicability” (a waiver of the Buy American provision) if the iron, steel, or relevant manufactured good is not produced or manufactured in the United States in sufficient and reasonably available quantities and of a satisfactory quality (“nonavailability”). The authority of the Secretary of Energy to make all inapplicability determinations was re-delegated to the Assistant Secretary for Energy Efficiency and Renewable Energy (EERE), for EERE projects under the Recovery Act, in Redelegation Order No. 00-002.01E, dated April 25, 2011. Pursuant to this delegation the Acting Assistant Secretary, EERE, has concluded that: (1) 5-25 Watt LED Candelabra Bulbs (includes Flame tip, bent tip, A19, S11, G16.5 or G25 clear bulb enclosure); (2) 140 Watt LED fixtures with 10 degree beams capable of illuminating from 100 feet, UL certified; and (3) 27 Watt round LED fixtures, producing 1 foot-candle at 242 feet
In order to utilize this waiver, grantees must have taken substantial steps towards procurement of these items by May 1, 2012.
EERE has developed a robust process to ascertain in a systematic and expedient manner whether or not there is domestic manufacturing capacity for the items submitted for a waiver of the Recovery Act Buy American provision. This process involves a close collaboration with the United States Department of Commerce National Institute of Standards and Technology (NIST) Manufacturing Extension Partnership (MEP), in order to scour the domestic manufacturing landscape in search of producers before making any nonavailability determinations.
The MEP has 59 regional centers with substantial knowledge of, and connections to, the domestic manufacturing sector. MEP uses their regional centers to “scout” for current or potential manufacturers of the product(s) submitted in a waiver request. In the course of this interagency collaboration, MEP has been able to find exact or partial matches for manufactured goods that EERE grantees had been unable to locate. As a result, in those cases, EERE was able to work with the grantees to procure American-made products rather than granting a waiver.
Upon receipt of completed waiver requests for the three products in the current waiver, EERE reviewed the information provided and submitted the relevant technical information to the MEP. The MEP then used their network of nationwide centers to scout for domestic manufacturers. The MEP reported that their scouting process did not locate any domestic manufacturers for these exact or equivalent items.
In addition to the MEP collaboration outlined above, the EERE Buy American Coordinator worked with other manufacturing stakeholders to scout for domestic manufacturing capacity or an equivalent product for each item contained in this waiver. EERE also conducted significant amounts of independent research to supplement MEP's scouting efforts, including utilizing the solar experts employed by the Department of Energy's National Renewable Energy Laboratory. EERE's research efforts confirmed the MEP findings that the goods included in this waiver are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.
The nonavailability determination is also informed by the inquiries and petitions to EERE from recipients of EERE Recovery Act funds, and from suppliers, distributors, retailers and trade associations—all stating that their individual efforts to locate domestic manufacturers for these items have been unsuccessful.
Specific technical information for the manufactured goods included in this non-availability determination is detailed below:
(1) 5-25 Watt LED Candelabra Bulbs (includes Flame tip, bent tip, A19, S11, G16.5 or G25 clear bulb enclosure.
LED Candelabra or medium base, outdoor use, dimmable, mercury free, 2700 and/or 3000 Kelvin Correlated Color Temperature (CCT), 80+ Color Rendering Index (CRI), 5-25 watt Flame tip, bent tip, A19, S11, G16.5 or G25 clear bulb enclosure. Domestic manufacturers are working to enter the market in the near future, however, production cannot yet meet the needs of current projects. EERE is committed to assisting grantees to complete projects while supporting domestic manufacturing—thus this waiver will expire May 1, 2012.
(2&3) 140 Watt LED fixtures with 10 degree beams capable of illuminating from 100 feet, UL certified; and 27 Watt round LED fixtures, producing 1 foot-candle at 242 feet distance, UL certified.
The new LED fixtures represent a relatively new, emerging technology that can provide comparable light output at substantially lower energy levels. As a new technology, the number of manufacturers, though growing, is somewhat limited. Domestic manufacturers are working to enter the market in the near future, however, production cannot yet meet the needs of current projects. EERE is committed to assisting grantees to complete projects while supporting domestic manufacturing—thus this waiver will expire May 1, 2012.
In light of the foregoing, and under the authority of section 1605(b)(2) of Public Law 111-5 and Redelegation Order 00-002-01E, with respect to Recovery Act projects funded by EERE, I hereby issue a “determination of inapplicability” (a waiver under the Recovery Act Buy American provision) for: (1) 5-25 Watt LED Candelabra Bulbs (includes Flame tip, bent tip, A19, S11, G16.5 or G25 clear bulb enclosure); (2) 140 Watt LED fixtures with 10 degree beams capable of illuminating from 100 feet, UL certified; and (3) 27 Watt round LED fixtures, producing 1 foot-candle at 242 feet distance, UL certified. This waiver expires May 1, 2012.
Having established a proper justification based on domestic nonavailability, EERE hereby provides notice that on January 10, 2012, three (3) nationwide categorical waivers of section 1605 of the Recovery Act were issued as detailed
This waiver determination is pursuant to the delegation of authority by the Secretary of Energy to the Assistant Secretary for Energy Efficiency and Renewable Energy with respect to expenditures within the purview of his responsibility. Consequently, this waiver applies to all EERE projects carried out under the Recovery Act.
Public Law 111-5, section 1605.
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy (DOE).
Notice of limited public interest waiver.
The U.S. Department of Energy (DOE) is hereby granting a nationwide limited waiver of the Buy American requirements of section 1605 of the Recovery Act under the authority of section 1605(b)(1) (amended public interest waiver), with respect to donated manufactured goods.
Christine Platt Patrick, Weatherization and Intergovernmental Program, Office of Energy Efficiency and Renewable Energy (EERE), (202) 287-1553,
Under the authority of the Recovery Act, section 1605(b)(1), the head of a Federal department or agency may issue a “determination of inapplicability” (a waiver of the Buy American provisions) if the application of section 1605 would be inconsistent with the public interest. On April 25, 2011, the Secretary of Energy delegated the authority to make all inapplicability determinations to the Assistant Secretary for Energy Efficiency and Renewable Energy, for EERE Recovery Act projects.
Pursuant to this delegation, the Acting Assistant Secretary has determined that application of section 1605 restrictions would be inconsistent with the public interest for items donated (provided at zero cost) to EERE-funded Recovery Act projects.
This determination waives the Buy American requirements in EERE-funded Recovery Act projects for donated manufactured goods. This waiver Expires May 1, 2012.
Definitions—Donated means manufactured goods provided to the project at zero cost. These goods must not hold a caveat, expectation, or quid-pro-quo of any sort, nor may their donation bind the grant recipient in any way. The recipient, for example, may not agree to pay more for one item, so as to have another item donated, nor may they promise more business in the future in exchange for a donated item. The Contracting Officer and the Project Officer will be consulted to determine whether the goods qualify as donated; this will serve to prevent abuse of this waiver. This waiver applies only to the donated manufactured goods themselves. All funds used in the project are still subject to the Buy American requirements and other contract requirements.
The Buy American provision “prohibits use of recovery funds for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.” 2 CFR 176. However, in a number of cases, grant recipients and sub recipients have been able to secure offers of donation, for items already installed that are non-compliant with the Buy American provision of the Recovery Act. Offers of donation may free up the need to spend federal dollars that otherwise would have been spent on those donated items and that may also count towards the recipient's cost share (10 CFR § 600.224) for grants that require cost sharing. When donated items are used in a project, freeing up allocated Recovery Act funds, grantees will work with their Project Officers to allocate funds to other projects, or to broaden the existing project. The “freed-up” Recovery Act funds may not be used on the purchase of non-compliant manufactured goods in accordance with applicable laws.
For the reasons outlined above, I find that it is in the public interest to issue a waiver of the Recovery Act Buy American provisions that allows grantees to use donated manufactured goods in EERE funded projects. This waiver should not be used as a means to circumvent the Recovery Act Buy American provisions through encouraging recipients to knowingly accept non-compliant goods that would be used on a Recovery Act project to further leverage Recovery Act funds.
Issuance of this nationwide public interest waiver recognizes EERE's commitment to expeditious costing of Recovery Act dollars by enabling grantees and vendors to easily ascertain whether a project complies with the Buy American provision. Issuance of this waiver removes any need for EERE to issue a Recovery Act Buy American non-compliance finding and negates economic waste that would result by having a recipient uninstall or remove a donated good that is otherwise compliant with the Recovery Act Buy American provisions.
In light of the foregoing, and under the authority of section 1605(b)(1) of Public Law 111-5 and the Redelegation Order of April 25, 2011, with respect to Recovery Act projects funded by EERE, on December 6, 2011, the Assistant Secretary issued a new “determination of inapplicability” (a waiver under the Recovery Act Buy American provisions) for donated manufactured goods.
The Assistant Secretary reserves the right to revisit and amend this determination based on new information or new developments.
Public Law 111-5, section 1605.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
Take notice that the Commission received the following electric reliability filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than February 21, 2012.
A.
1.
B.
1.
1.
In connection with this application, Applicant also has applied to retain 100 percent of the voting shares of Pacific Trust Bank, fsb, Chula Vista, California, and thereby engage in operating a nonbank thrift subsidiary, pursuant to section 225.28(b)(4) of Regulation Y.
Department of Health and Human Services.
Notice.
This notice provides an update of the Department of Health and Human Services (HHS) poverty guidelines to account for last calendar year's increase in prices as measured by the Consumer Price Index.
Office of the Assistant Secretary for Planning and Evaluation, Room 404E, Humphrey Building, Department of Health and Human Services, Washington, DC 20201.
For information about how the guidelines are used or how income is defined in a particular program, contact the Federal, state, or local office that is responsible for that program. For information about poverty figures for immigration forms, the Hill-Burton Uncompensated Services Program, and the number of people in poverty, use the specific telephone numbers and addresses given below.
For general questions about the poverty guidelines themselves, contact Kendall Swenson or Gordon Fisher, Office of the Assistant Secretary for Planning and Evaluation, Room 404E, Humphrey Building, Department of Health and Human Services, Washington, DC 20201—telephone: (202) 690-7507—or visit
For information about the percentage multiple of the poverty guidelines to be used on immigration forms such as USCIS Form I-864, Affidavit of Support, contact U.S. Citizenship and Immigration Services at 1-(800) 375-5283.
For information about the Hill-Burton Uncompensated Services Program (free or reduced-fee health care services at certain hospitals and other facilities for persons meeting eligibility criteria involving the poverty guidelines), contact the Office of the Director, Division of Health Facilities, Health Resources and Services Administration, HHS, Room 10-105, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857. To speak to a staff member,
For information about the number of people in poverty, visit the Poverty section of the Census Bureau's web site at
Section 673(2) of the Omnibus Budget Reconciliation Act (OBRA) of 1981 (42 U.S.C. 9902(2)) requires the Secretary of the Department of Health and Human Services to update the poverty guidelines at least annually, adjusting them on the basis of the Consumer Price Index for All Urban Consumers (CPI-U). The poverty guidelines are used as an eligibility criterion by the Community Services Block Grant program and a number of other Federal programs. The
As required by law, this update is accomplished by increasing the latest published Census Bureau poverty thresholds by the relevant percentage change in the Consumer Price Index for All Urban Consumers (CPI-U). The guidelines in this 2012 notice reflect the 3.2 percent price increase between calendar years 2010 and 2011. After this inflation adjustment, the guidelines are rounded and adjusted to standardize the differences between family sizes. The same calculation procedure was used this year as in previous years. (Note that these 2012 guidelines are roughly equal to the poverty thresholds for calendar year 2011 which the Census Bureau expects to publish in final form in September 2012.)
The poverty guidelines continue to be derived from the Census Bureau's current official poverty thresholds; they are not derived from the Census Bureau's new Supplemental Poverty Measure (SPM).
The following guideline figures represent annual income.
For families/households with more than 8 persons, add $3,960 for each additional person.
For families/households with more than 8 persons, add $4,950 for each additional person.
For families/households with more than 8 persons, add $4,550 for each additional person.
Separate poverty guideline figures for Alaska and Hawaii reflect Office of Economic Opportunity administrative practice beginning in the 1966-1970 period. (Note that the Census Bureau poverty thresholds—the version of the poverty measure used for statistical purposes—have never had separate figures for Alaska and Hawaii.) The poverty guidelines are not defined for Puerto Rico or other outlying jurisdictions. In cases in which a Federal program using the poverty guidelines serves any of those jurisdictions, the Federal office that administers the program is generally responsible for deciding whether to use the contiguous-states-and-DC guidelines for those jurisdictions or to follow some other procedure.
Due to confusing legislative language dating back to 1972, the poverty guidelines sometimes have been mistakenly referred to as the “OMB” (Office of Management and Budget) poverty guidelines or poverty line. In fact, OMB has never issued the guidelines; the guidelines are issued each year by the Department of Health and Human Services. The poverty guidelines may be formally referenced as “the poverty guidelines updated periodically in the
Some federal programs use a percentage multiple of the guidelines (for example, 125 percent or 185 percent of the guidelines), as noted in relevant authorizing legislation or program regulations. Non-Federal organizations that use the poverty guidelines under their own authority in non-Federally-funded activities also may choose to use a percentage multiple of the guidelines.
The poverty guidelines do not make a distinction between farm and non-farm families, or between aged and non-aged units. (Only the Census Bureau poverty thresholds have separate figures for aged and non-aged one-person and two-person units.)
Note that this notice does not provide definitions of such terms as “income” or “family,” because there is considerable variation in defining these terms among the different programs that use the guidelines. These variations are traceable to the different laws and regulations that govern the various programs. This means that questions such as “Is income counted before or after taxes?”, “Should a particular type of income be counted?”, and “Should a particular person be counted as a member of the family/household?” are actually questions about how a specific program applies the poverty guidelines. All such questions about how a specific program applies the guidelines should be directed to the entity that administers or funds the program, since that entity has the responsibility for defining such terms as “income” or “family,” to the extent that these terms are not already defined for the program in legislation or regulations.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Assessing the Feasibility of Disseminating Effective Health Center Products through Mobile Phone Applications.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3521, AHRQ invites the public to comment on this proposed information collection.
This proposed information collection was previously published in the
Comments on this notice must be received by February 27, 2012.
Written comments should be submitted to: AHRQ's OMB Desk Officer by fax at (202) 395-6974 (attention: AHRQ's desk officer) or by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
The Agency for Healthcare Research and Quality (AHRQ) requests that the Office of Management and Budget (OMB) approve, under the Paperwork Reduction Act of 1995, this collection of information from users of work products and services initiated by the John M. Eisenberg Clinical Decisions and Communications Science Center (Eisenberg Center).
AHRQ is the lead agency charged with supporting research designed to improve the quality of healthcare, reduce its cost, improve patient safety, decrease medical errors, and broaden access to essential services. AHRQ's Eisenberg Center's mission is improving communication of findings to a variety of audiences (“customers”), including consumers, clinicians, and health care policy makers. The Eisenberg Center compiles research results into useful formats for customer stakeholders. The Eisenberg Center also conducts investigations into effective communication of research findings in order to improve the usability and rapid incorporation of findings into medical practice. The Eisenberg Center is one of three components of AHRQ's Effective Health Care (EHC) Program. The collections proposed under this clearance include activities to assess the feasibility of using specific media and awareness-raising processes to encourage consumers who are at risk for selected health problems for which EHC Program materials are available to access information about such materials using mobile phone technologies. The project will specifically focus on promoting awareness of eight consumer guides developed through the EHC Program. The guides are all published in English and Spanish-language versions. All of the guides are designed to help decision makers, including clinicians and health care consumers, use research evidence to maximize the benefits of health care, minimize harm, and optimize the use of health care resources.
The project will test the feasibility of using mobile telephone technology for the dissemination of EHC Program materials to underserved health consumer populations using: (a) Short message services (SMS), usually referred to as texting, that can be provided to people with basic cell phone service and texting support; and (b) mobile Web access that provides access to the Internet via a mobile interface.
Different methods and/or vehicles will be used to promote awareness of opportunities to obtain cell phone- or smart phone-based information about the availability of EHC Program materials including: (1) Wall posters in patient service areas of the three (3) participating clinics; (2) flyers about the products distributed in magazine racks and through patient kiosks in some areas of the clinics; (3) flyers/announcements given to patients at checkout from the clinic; and (4) health fairs convened to address general health issues, where the information can be provided. Promotional materials will invite potential users to send a specific text message with the keyword associated with the relevant health condition to the advertised number. Subjects will receive a response text with a brief message about the condition and an invitation to either (a) request a printed consumer guide or (b) access the mobile Web site to view the guide.
(1) Summarize marketing efforts in terms of total numbers of posters, flyers, and information sheets distributed through specific venues (
(2) Summarize the extent to which persons in targeted patient populations responded to marketing efforts;
(3) Assess patient satisfaction with: (a) The means by which patients were alerted as to the availability of EHC Program materials; (b) the methods patients used to request and access the EHC Program materials; and (c) the value and relevancy of the information that they obtained;
(4) Characterize perceptions of clinical care providers and clinical staff persons in terms of: (a) The value of efforts to promote patient awareness of EHC Program materials using marketing techniques described in this feasibility project; and (b) the effect of these efforts on workflow issues and related aspects of clinic operations.
This study is being conducted by AHRQ through its contractor, the Eisenberg Center—Baylor College of Medicine, pursuant to AHRQ's statutory authority to conduct and support research, and disseminate information, on healthcare and on systems for the delivery of such care, including activities with respect to both the quality, effectiveness, efficiency, appropriateness and value of healthcare services and clinical practice. 42 U.S.C. 299a(a)(1) and (4).
To achieve the goals of this project the following data collections will be implemented:
(1) Focus Groups with Clinicians. A focus group will be conducted at each of the three participating clinics during regularly scheduled internal clinic meetings, to determine how the introduction of marketing materials and related resources influenced, if at all, delivery of care in the clinical settings. Special emphasis will be placed on determining if introduction of the project materials changed the ways in which patients interacted with clinicians. It is expected that each focus
(2) Focus Groups with Support Staff. A focus group will be conducted with support staff working in each of the three participating clinics, during regularly scheduled meetings, to determine if the introduction of the project materials altered clinic workflows. It is expected that each focus group will include no more than 12 support staff (
(3) Patient Interviews. In-person interviews conducted immediately after the patient exits the clinic will be used to determine if patients: (a) Saw and understood the marketing materials (
(4) Feedback Questionnaire for Patients Requesting Mailed Guides. All persons that respond to the marketing materials by requesting any of the eight guides to be mailed to them will be asked to complete a brief paper questionnaire included with the guides. The purpose of the questionnaire is to assess the extent to which the guides were easy to read and understand, whether the guides provided the information they sought, and any suggestions for improving and delivering the guides.
(5) Feedback Questionnaire for Patients Visiting the Mobile Web Site. All persons that access the guides via the mobile Web site will be asked to complete a brief online questionnaire. Only subjects exposed to the promotion materials will receive the address of the mobile Web site during the text message conversation, and therefore we expect no other individuals to visit this site. The purpose of the questionnaire is to determine if the guides were useful, the mobile Web site was easy to use, whether they found the information they needed and experienced any difficulty in accessing the guides through their cell phone.
(6) Usage Log Data. Data from automated electronic log systems will be collected from two sources: (1) Mobile Commons, the contractor that manages the cell phone-related message delivery and cell phone-based communication; and (2) the Eisenberg Center at Baylor College of Medicine that manages the EHC Web site visits. Usage log data gathered from the cell phone service contractor will include: (1) Counts of text messages received from persons requesting information about consumer guides; (2) the distribution of message counts across originating clinics tracked through the use of distinctive call-in or short code numbers assigned to each clinic; and (3) the numbers and originating clinic-specific distributions of follow-up texts Because text communications will be date and time stamped, Eisenberg Center staff will be able to calculate mean durations in time from receipt of the initial messages and follow-ups, which may be useful in determining navigation patterns and suggesting connectivity barriers. Usage log data gathered from the mobile Web site will allow for identification of: (1) The number of visitors that originate from a specific uniform record locator (URL) associated with each clinic; (2) the duration of visits to the EHC Web site to gather desired information and explore other resources available through the Web site; (3) the number of pages viewed by each visitor; and (4) the number of downloads of the full report associated with each guide, which will also be made available. These data will be obtained using automated systems already in place, and no special effort will be needed to generate these data; this task is not included in the burden estimates in Exhibit 1 below.
The Eisenberg Center will determine the feasibility of this approach to encouraging patients and anyone else viewing the marketing materials to access information that may be helpful to them in understanding health care choices and engaging more fully in their own health care, and whether this approach should be pursued further. This information will be used to determine the feasibility of: (a) Mounting broader efforts to distribute consumer guides, as well as other EHC Program products, using mobile technologies as tools to heighten awareness of these resources by potential users who rely on mobile communication devices for information access; and (b) initiating additional studies to identify factors that encourage or deter effective use of increasingly pervasive communication modalities (
Exhibit 1 shows the estimated annualized burden for the respondents' time to participate in this research. Focus groups will be conducted with about 10 clinicians per each of the 3 participating clinics (30 total) and about 12 clinical support staff per clinic (36 total), and will last 45 minutes. Interviews will be conducted with about 100 patients per clinic (300 total) upon exit from the clinical visit, with each interview lasting about 15 minutes. The Feedback Questionnaire for the Mailed Guides will be completed by approximately 200 persons and will take 10 minutes to complete and the Feedback Questionnaire for the Mobile site will be completed by about 200 persons and also requires 10 minutes to complete. The total annual burden is estimated to be 191 hours. Exhibit 2 shows the estimated annualized cost burden associated with the respondent's time to participate in this research. The total annual cost burden is estimated to be $5,320.
The maximum cost to the Federal Government is estimated to be $203,531 annually. Exhibit 3 shows the total and annualized cost by the major cost components.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) 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 upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Nursing Home Survey on Patient Safety Culture Comparative Database.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3521, AHRQ invites the public to comment on this proposed information collection.
This proposed information collection was previously published in the
Comments on this notice must be received by February 27, 2012.
Written comments should be submitted to: AHRQ's OMB Desk Officer by fax at (202) 395-6974 (attention: AHRQ's desk officer) or by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
The Agency for Healthcare Research and Quality (AHRQ) requests that the Office of Management and Budget (OMB) approve, under the Paperwork Reduction Act of 1995, AHRQ's
The Nursing Home SOPS and the Comparative Database are supported by AHRQ to meet its goals of promoting improvements in the quality and safety of health care in nursing home settings. The survey, toolkit materials, and preliminary comparative database results are all made available in the public domain along with technical assistance provided by AHRQ through its contractor at no charge to nursing homes, to facilitate the use of these materials for nursing home patient safety and quality improvement.
The goal of this project is to create the Nursing Home SOPS Comparative Database. This database will (1) allow nursing homes to compare their patient safety culture survey results with those of other nursing homes; (2) provide data to nursing homes to facilitate internal assessment and learning in the patient safety improvement process; and (3) provide supplemental information to help nursing homes identify their strengths and areas with potential for improvement in patient safety culture. De-identified data files will also be available to researchers conducting patient safety analysis. The database will include 42 items that measure 12 areas, or composites, of patient safety culture.
This study is being conducted by AHRQ through its contractor, Westat, pursuant to AHRQ's statutory authority to conduct and support research on healthcare and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of healthcare services and with respect to quality measurement and improvement, and database development. 42 U.S.C. 299a(a)(1) and (2), and (a)(8).
To achieve the goal of this project the following activities and data collections will be implemented:
(1) Nursing Home Eligibility and Registration Form—The purpose of this form is to determine the eligibility status and initiate the registration process for nursing homes seeking to voluntarily submit their NH SOPS data to the NH SOPS Comparative Database. The nursing home (or parent organization) point of contact (POC) will complete the form. The POC is either a corporate level health care manager for a Quality Improvement Organization (QIO), a survey vendor who contracts with a nursing home to collect their data, or a nursing home Director of Nursing or nurse manager. Many nursing homes are part of a QIO or larger nursing home or health system that includes many nursing home sites
(2) Data Use Agreement—The purpose of this form is to obtain authorization from nursing homes to use their voluntarily submitted NH SOPS data for analysis and reporting according to the terms specified in the Data Use Agreement (DUA). The nursing home POC will complete the form.
(3) Nursing Home Site Information Form—The purpose of this form is to obtain basic information about the characteristics of the nursing homes submitting their NH SOPS data to the NH SOPS Comparative Database (
(4) Data Submission—After the nursing home POC has completed the Nursing Home Eligibility and Registration Form, the Data Use Agreement and the Nursing Home Site Information Form they will submit their data from the NH SOPS to the NH SOPS Comparative Database.
Data from the AHRQ Nursing Home Survey on Patient Safety Culture are used to produce three types of products: (1) A Nursing Home SOPS Comparative Database Report that is produced periodically and made available in the public domain on the AHRQ Web site (see
Exhibit 1 shows the estimated annualized burden hours for the nursing home to participate in the Nursing Home SOPS Comparative Database. The POC completes a number of data submission steps and forms, beginning with completion of the online Nursing Home SOPS Database Eligibility and Registration form and Data Use Agreement, which will be completed for 85 nursing homes or groups of affiliated nursing homes annually. The Nursing Home Site Information Form will be completed for each individual nursing home; since each POC represents an average of 5 nursing homes a total of 425 Information Forms will be completed annually and requires about 5 minutes to complete. The POC will submit data for all of the nursing homes they represent which will take about 5 and
Nursing homes administer the AHRQ Nursing Home Survey on Patient Safety Culture on a periodic basis. Hospitals submitting to the Hospital SOPS Comparative Database administer the survey every 16 months on average. Similarly, the number of nursing home submissions to the database is likely to vary each year because nursing homes do not administer the survey and submit data every year. The 85 respondents/POCs shown in Exhibit 1 are based on an estimate of nursing homes submitting data in the coming years, with the following assumptions:
• 30 POCs for QIOs submitting on behalf of 10 nursing homes each.
• 5 POCs for vendors outside of QIOs submitting on behalf of 10 nursing homes each.
• 50 independent nursing homes submitting on their own behalf.
Exhibit 2 shows the estimated annualized cost burden based on the respondents' time to submit their data. The cost burden is estimated to be $21,152 annually.
The estimated annualized cost to the government for developing, maintaining, and managing the database and analyzing the data and producing reports is shown below. The cost is estimated to be $310,000 annually. The total cost over the three years of this information collection request is $930,000.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ' s estimate of burden (including hours and costs) of the proposed collection(s) 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 upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Assessing the Feasibility of Disseminating Effective Health Care Products through a Shared Electronic Medical Record Serving Member Organization of a Health Information Exchange.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3521, AHRQ invites the public to comment on this proposed information collection.
This proposed information collection was previously published in the
Comments on this notice must be received by February 27, 2012.
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
The Agency for Healthcare Research and Quality (AHRQ) requests that the Office of Management and Budget (OMB) approve under the Paperwork Reduction Act of 1995 this collection of information from users of work products and services initiated by the John M. Eisenberg Clinical Decisions and Communications Science Center (Eisenberg Center).
AHRQ is the lead agency charged with supporting research designed to improve the quality of healthcare, reduce its cost, improve patient safety, decrease medical errors, and broaden access to essential services. AHRQ's Eisenberg Center's mission is improving communication of findings to a variety of audiences (“customers”), including consumers, clinicians, and health care policy makers. The Eisenberg Center compiles research results into useful formats for customer stakeholders. The Eisenberg Center also conducts investigations into effective communication of research findings in order to improve the usability and rapid incorporation of findings into medical practice. The Eisenberg Center is one of three components of AHRQ's Effective Health Care (EHC) Program. The collections proposed under this clearance include activities to assess the feasibility of disseminating materials developed by the Eisenberg Center through the use of an electronic medical record (EMR) shared by a network of clinical care providers that are part of a Health Information Exchange (HIE) operating in multiple sites in several states. Our Community Health Information Network (OCHIN) members include 30 clinical care organizations operating more than 230 primary care clinics in six states. Data will be gathered from three different OCHIN-member organizations representing a total of 10 primary care clinics. The information generated will be provided to AHRQ to guide decision making and planning for additional efforts to foster EHC Program product distribution via EMR prompting and product linkages.
(1) Identify facilitators and barriers to successful efforts to implement processes that: (a) Support use of EHC Program products by clinicians in practice, and (b) place relevant clinical information in the hands of patients and family members in languages and formats that are appropriate to patients' information needs;
(2) Examine ways in which EHC Program products can be used in concert with other support programs and products (
(3) Assess the extent to which EHC Program products are used (
(4) Document the perceived value of integrating EHC Program products into systems of care supported by an EMR system as self-reported by clinicians involved in direct care of patients and clinic support personnel who interact with patients.
This study is being conducted by AHRQ through its contractor, the Eisenberg Center—Baylor College of Medicine, pursuant to AHRQ's statutory authority to conduct and support research, and disseminate information, on healthcare and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of healthcare services and clinical practice. 42 U.S.C. 299a(a)(1) and (4).
To achieve the goals of this project the following data collections will be implemented:
(1) Automated Data Capture from EMR Usage Logs. Electronic usage data will be collected to determine the extent to which EHC Program guides for clinicians and patients were accessed to support shared decision making and patient education. The data will be retrieved from the existing EMR-linked database operated by the Kaiser Permanente staff in their coordination of activities related to the OCHIN HIE. Data will include: (a) Number and frequency of retrieval of EHC resource materials; (b) specific types of materials retrieved; and (c) health topic or condition targeted in the EHC materials. These data will inform the development of follow-up questions to be administered to clinicians and patients in the interviews and surveys described below. Because the data will be obtained using automated systems already in place, no special effort will be needed to generate these data, and thus this task is not included in the burden estimates in Exhibits 1 and 2.
(2) Interviews with Clinicians. Interviews will be held with clinical service providers for the following purposes: (a) Obtain perceptions of the overall value, relevancy, currency and appropriateness of EHC Program products in addressing the health service needs of patients treated in clinical settings; (b) assess ease of use of the materials in terms of access via the EMR; (c) determine perceived success of efforts to employ EHC Program products and related materials in addressing the needs of patients with limited language skills and/or low literacy levels; and (d) describe the relative success of efforts to use the EHC Program products in concert with other tools (
(3) Interviews with Support Staff. Interviews will be held with non-clinical support staff to characterize perceptions of how the introduction of EHC Program products: (a) Affected clinic workflows and influenced the work that staff was required to do in supporting clinician-patient interactions; and (b) facilitated or impeded efforts to inform patients about actions they could take in being more fully involved in their own health care.
(4) Interviews with Patients. Interviews will be held with recruited patients to determine if they: (a) Viewed the EHC Program products that they were provided as useful to them in understanding their health issues; (b) were able to understand the EHC Program-related information that was provided to them sufficiently to take actions in their own health care; and (c) have suggestions about how the EHC Program materials could be changed or the delivery of them done in a different way to make the materials more useful and/or accessible to patients.
(5) Survey of Clinicians. A questionnaire will be administered to clinical care providers near the end of the study to gather quantitative data around their assessments of: (a) The relevancy of the EHC Program materials to the patients they serve; (b) the appropriateness of the products in addressing specific clinical issues; (c) the ease of use of the system created to provide access to EHC Program products through the EMR; and (d) overall ratings of the approach in addressing patient needs with regard to specific conditions addressed by the products available.
The interviews with clinicians, clinical staff, and patients will be conducted throughout the project period, approximately every three months with different sets of participants, to inform and refine delivery mechanisms and monitor progress.
This information will be used to determine the feasibility of: (a) Mounting broader efforts to distribute clinician and consumer guides, as well as other EHC products using EMRs as the primary vehicle for providing product access at the point of care; and (b) initiating additional studies to identify factors that encourage or deter effective integration of EHC products into care processes using electronic tools and care delivery support systems, like the EMR, that are increasingly common in clinical work settings.
Exhibit 1 shows the estimated annualized burden for the respondents' time to participate in this research. Three rounds of interviews will be conducted during the project period (each round of interviews to be held approximately every three months with separate sets of participants) to assess progress and adjust methods or refine materials as needed. Interviews will be conducted with 100 patients, 50 clinicians and 50 clinical support staff. Each interview is estimated to last no more than 30 minutes. All clinicians in each participating clinic will have access to the EMR and will be invited to participate in an online questionnaire. Approximately 200 clinicians will complete the 10-minute questionnaire.
Exhibit 2 shows the estimated annualized cost burden associated with the respondents' time to participate in this research. The total annual cost burden is estimated to be $6,274.
The maximum cost to the Federal Government is estimated to be $217,451 annually for two years.
Exhibit 3 shows the total and annualized cost by the major cost components.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ healthcare research and healthcare information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) 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 upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Request for scientific information submissions.
The Agency for Healthcare Research and Quality (AHRQ) is seeking scientific information submissions from medical device manufacturers of natriuretic peptide measurement assays. Scientific information is being solicited to inform our Comparative Effectiveness Review of Use of Natriuretic Peptide Measurement in the Management of Heart Failure, which is currently being conducted by the Evidence-based Practice Centers for the AHRQ Effective Health Care Program. Access to published and unpublished pertinent scientific information on this device will improve the quality of this comparative effectiveness review. AHRQ is requesting this scientific information and conducting this comparative effectiveness review pursuant to Section 1013 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Public Law 108-173.
Submission Deadline on or before February 27, 2012.
Online submissions:
Robin Paynter, Research Librarian, Telephone: (503) 494-0147 or Email:
In accordance with Section 1013 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Public Law 108-173, the Agency for Healthcare Research and Quality has commissioned the Effective Health Care (EHC) Program Evidence-based Practice Centers to complete a comparative effectiveness review of the evidence for use of natriuretic peptide measurement in the management of heart failure.
The EHC Program is dedicated to identifying as many studies as possible that are relevant to the questions for each of its reviews. In order to do so, we are supplementing the usual manual and electronic database searches of the literature by systematically requesting information (
This notice is a request for industry stakeholders to submit the following:
• A current product label, if applicable (preferably an electronic PDF file).
• Information identifying published randomized controlled trials and observational studies relevant to the clinical outcomes. Please provide both a list of citations and reprints if possible.
• Information identifying unpublished randomized controlled trials and observational studies relevant to the clinical outcomes. If possible, please provide a summary that includes the following elements: Study number, study period, design, methodology, indication and diagnosis, proper use instructions, inclusion and exclusion criteria, primary and secondary outcomes, baseline characteristics, number of patients screened/eligible/enrolled/lost to withdrawn/follow-up/analyzed, and effectiveness/efficacy and safety results.
• Registered ClinicalTrials.gov studies. Please provide a list including the ClinicalTrials.gov identifier, condition, and intervention.
Your contribution is very beneficial to this program. AHRQ is not requesting and will not consider marketing material, health economics information, or information on other indications. This is a voluntary request for information, and all costs for complying with this request must be borne by the submitter. In addition to your scientific
The contents of all submissions, regardless of format, will be available to the public upon request unless prohibited by law.
The draft of this review will be posted on AHRQ's EHC program Web site and available for public comment for a period of 4 weeks. If you would like to be notified when the draft is posted, please sign up for the email list at:
1. What is the test performance of BNP and NT-proBNP for HF?
2. What are the optimal decision cut points for BNP and NT-proBNP to diagnose and exclude HF?
3. What determinants affect the test performance of BNP and NTproBNP (e.g., age, gender, comorbidity)?
1. What is the test performance of BNP and NT-proBNP for HF?
2. What are the optimal decision cut points for BNP and NT-proBNP to diagnose and exclude HF?
3. What determinants affect the test performance of BNP and NTproBNP (e.g., age, gender, comorbidity)?
Administration on Aging, HHS.
Notice.
The Administration on Aging (AoA) is announcing an opportunity for public comment on the proposed extension of an existing collection of information by the agency.
Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by March 26, 2012.
Submit electronic comments on the collection of information to:
Margaret Graves at (202) 357-3502 or
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 request 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
AoA estimates the burden of this collection of information as follows: Annual submission of the Program Performance Reports are due 90 days after the end of the budget period and final project period.
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) 639-7570 or send an
Racial and Ethnic Approaches to Community Health (REACH) US Evaluation—Revision — National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
From 2009-2011, CDC conducted annual risk factor surveys that tracked health trends among racial and ethnic minority groups (OMB No. 0920-0805, exp. 2/29/2012). The surveys were conducted in areas where community interventions were implemented as part of the Racial and Ethnic Approaches to Community Health across the U.S. (REACH US) program. The REACH US program is a national multilevel strategy to reduce and eliminate health disparities in racial and ethnic minorities. Priority areas for the program include breast and cervical cancer; cardiovascular disease; diabetes mellitus; adult/older adult immunization, hepatitis B, and/or tuberculosis; asthma; and infant mortality. Priority populations for the program are African American, American Indian, Alaska Native, Hispanic American, Asian American, and Pacific Islander citizens.
CDC is requesting OMB approval to conduct two additional cycles of data collection in 2012 and 2013. Risk factor information will be collected from a random sample of adults in 28 REACH US communities (900 individuals per community). After households have been selected through address-based sampling, health information will be collected through a self-administered, mailed questionnaire, or through interviews conducted by telephone or in-person with members of the selected households.
The estimated burden per response is 15 minutes. The surveys will help to assess the prevalence of various risk factors associated with chronic diseases, deficits in breast and cervical cancer screening and management, and deficits in adult immunizations. Survey results will be used for REACH US program evaluation and to assess progress towards the national goal of eliminating health disparities within minority populations.
OMB approval is requested for two years. Minor changes to the survey questions will be implemented, and adjustments will be made to the estimated number of respondents. Participation is voluntary and there are no costs to respondents other than their time. The total estimated burden hours are 9,460.
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) 639-7570 or send an email 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, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Validation of an Occupational Safety and Health Questionnaire—New—National Institute for occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The mission of the National Institute for Occupational Safety and Health (NIOSH) is to promote safety and health at work for all people through research and prevention. Under Public Law 91-596, Section 20 and 22 (section 20-22, Occupational Safety and Health Act of 1970), NIOSH has the responsibility to conduct research to advance the health and safety of workers. In this capacity, NIOSH will administer a questionnaire designed to assess differences in approaches to and perspectives of workplace safety between American-born and Latino immigrant workers.
The rapid growth of Latino immigrant population in the United States has increased the demand for Spanish-language occupational safety and health training materials. Typically, this need has been met by translating existing, English-language training materials into Spanish rather than developing new materials specifically designed for
A major obstacle to designing and assessing the impact of occupational safety and health training interventions with Latino immigrants is the lack of a rigorously validated questionnaire addressing the issues believed to be contributing to the occupational health disparities experienced by this group. In order to better understand some of the factors that may be contributing to the persistent occupational health disparities between Latino immigrant and American-born workers, NIOSH is developing a questionnaire that focuses on important occupational safety and health issues such as risk perception, risk acceptance and workplace coping strategies. The content of this questionnaire was guided, in part, by data collected from focus groups conducted with both Latino immigrants and American-born workers. Additionally, a review of the existing literature and feedback from experts in the field of occupational health disparities contributed to questionnaire content.
For validation purposes, this questionnaire will be administered to a sample of approximately 600 workers employed in a broad range of industries. In order to account for differences in level of acculturation, 200 of the workers will be Latino immigrants who have been in the United States less than 2 years and 200 of the workers will be Latino immigrants who have been in the United States more than 5 years. An additional 200 American-born workers will be given the questionnaire so that their responses may be contrasted with those of the Latino immigrants. Half of the workers will be male and the other half female. In order to account for potential regional differences, 300 of the workers will be from New Mexico, a state that has historically always had a large Latino population and 300 workers will be from Ohio, a state that has only recently experienced a large increase in its Latino population. The sample sizes are not based upon power analyses comparing expected group differences. Rather, the sample sizes are based upon recommendations related to validation of questionnaires, both on the basis of individual items and the analysis of the underlying structural elements.
Participants for this data collection will be recruited with the assistance of contractors who have successfully performed similar tasks for NIOSH in the past. The Latino immigrants will be assessed first so that an American-born workers sample can be recruited that can be matched in terms of occupation and industry. Depending upon literacy level and/or individual preferences, the questionnaire will be administered verbally or in “paper and pencil” format to participants in either English or Spanish. Based upon previous experiences working with these populations, it is estimated that each questionnaire will take approximately 75 minutes to complete.
The purpose of this information collection is to validate a questionnaire assessing factors that are thought to contribute to the persistent occupational health disparities experienced by Latino immigrant workers. Once validated, this questionnaire can be used in other efforts to assess the impact of occupational safety and health interventions aimed at the Latino immigrant community. Without the benefit of this data, NIOSH will be unable to assess variables related to the occupational health disparities experienced by Latino immigrants or to better assess the impact of occupational safety and health training interventions targeted at this group.
Once this study is complete, results will be made available via various means including print publications and the agency internet site. NIOSH expects to complete data collection no later than March 2012. There is no cost to respondents other than their time. The total estimated annual burden hours are 810.
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 Centers for Disease Control and Prevention (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) 639-7570 and send comments to Tony Richardson, CDC Reports Clearance Officer, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an email 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
Evaluation of Worker Notification Program (0920-0566, Expiration 2/28/2011)—Reinstatement—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The National Institute for Occupational Safety and Health (NIOSH), under Section 20(a)(1), (a)(4), (a)(7)(c), and Section 22(d), (e)(5)(7) of the Occupational Safety and Health Act (29 U.S.C. 669), has the responsibility to conduct research relating to occupational safety and health relating to innovative methods, techniques, and approaches for dealing with occupational safety and health problems.
Since the Right to Know movement in the late 1970s, NIOSH has been developing methods and materials to notify subjects of its epidemiological studies. Within NIOSH, notifying workers of past exposures is done to inform surviving cohort members of findings from NIOSH studies. Current NIOSH policy dictates how and when worker notification should occur. The extent of the notification effort depends upon the level of excess mortality or the extent of the disease or illness found in the study population. Current notification efforts range from posting results at the facilities studied to mailing individual letters to surviving members of the study population and other stakeholders. Each year, the NIOSH Industrywide Studies Branch (IWSB), Division of Surveillance, Hazard Evaluation, and Field Studies (DSHEFS) typically prepares materials for two to three completed studies. This often requires individual letters be mailed to study populations ranging in size from 200-20,000 workers each. An evaluation instrument would gauge the effectiveness of notification materials and improve future communication of risk information.
The purpose of the proposed evaluation tool is to obtain feedback from workers that would improve the quality and usefulness of the Institute's worker notification activities. Researchers from NIOSH propose to routinely include a Reader Response postcard with notification materials to assess the value and usefulness of said materials. We are requesting approval for three years. Participation is voluntary. There are no costs to respondents other than their time.
The meeting announced below concerns Epidemiology, Prevention and Treatment of Influenza and Other Respiratory Infections in Ghana, IP12-001, Studies at the Animal-Human Interface of Influenza and Other Zoonotic Diseases in Vietnam, IP12-002, The Incidence of Community Associated Influenza and Other Respiratory Infections in the United States, IP12-003, and Epidemiology, Prevention and Treatment of Influenza and Other Respiratory Infections in Panama and Central America Region, IP12-006, initial review.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting of the aforementioned committee:
8 a.m.-5 p.m., February 22, 2012 (Closed),
8 a.m.-5 p.m., February 23, 2012 (Closed).
Embassy Suites, 1900 Diagonal Road, Alexandria, Virginia 22314, Telephone: (703) 684-5900, Fax: (703) 684-0653.
The meeting will be closed to the public in accordance with provisions set forth in Section 552b(c) (4) and (6), Title 5 U.S.C., and the Determination of the Director, Management Analysis and Services Office, CDC, pursuant to Public Law 92-463.
The Safety and Occupational Health Study Section will review, discuss, and evaluate grant application(s) received in response to the Institute's standard grants review and funding cycles pertaining to research issues in occupational safety and health, and allied areas.
It is the intent of NIOSH to support broad-based research endeavors in keeping with the Institute's program goals. This will lead to improved understanding and appreciation for the magnitude of the aggregate health burden associated with occupational injuries and illnesses, as well as to support more focused research projects, which will lead to improvements in the delivery of occupational safety and health services, and the prevention of work-related injury and illness. It is anticipated that funded research will promote these program goals.
The meeting will convene to address matters related to the conduct of Study Section business and for the study section to consider safety and occupational health-related grant applications.
These portions of the meeting will be closed to the public in accordance with provisions set forth in Section 552b(c)(4) and (6), Title 5 U.S.C., and the Determination of the Director, Management Analysis and Services Office, Centers for Disease Control and Prevention, pursuant to Section 10(d) Public Law 92-463.
Agenda items are subject to change as priorities dictate.
Price Connor, Ph.D., NIOSH Health Scientist, 2400 Executive Parkway, Mailstop E-20, Atlanta, Georgia 30345, Telephone: (404) 498-2511, Fax: (404) 498-2571.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The meeting announced below concerns Evaluation of Dengue Epidemiology, Outcomes, and Prevention in Sentinel Surveillance and Research Sites in Puerto Rico, Funding Opportunity Announcement (FOA), CK12-001, initial review.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the Modeling and Analysis of Biological Systems Study Section, February 8, 2012, 8 a.m. to February 9, 2012, 5 p.m., Hyatt Regency Bellevue on Seattle, 900 Bellevue Way NE., Bellevue, WA 98004 which was published in the
The meeting will be held at the Renaissance Seattle Hotel, 515 Madison Street, Seattle, WA 98104. The meeting date and time remains the same. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Notice is hereby given of a change in the meeting of the National Advisory Council for Complementary and Alternative Medicine, February 3, 2012, 8:30 a.m. to February 3, 2012, 4 p.m., National Institutes of Health, Building 31, 31 Center Drive, Bethesda, MD, 20892 which was published in the
This meeting has been amended so that the open session will begin at 10 a.m. instead of 10:45 am. The public comment period will be from 3:30 p.m. to 3:45 p.m. The meeting is partially Closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to scheduling conflicts.
This notice is being published less than 15 days prior to the meeting due to scheduling conflicts.
Information is also available on the Institute's/Center's home page: http://deainfo.nci.nih.gov/advisory/sep/sep.htm, where an agenda and any additional information for the meeting will be posted when available.
Office of Chief Procurement Officer, DHS.
30-Day Notice and request for comments; Extension without Change, 1600-0003.
The Department of Homeland Security, Office of Chief Procurement Officer, DHS will submit the following information collection request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). DHS previously published this information collection request (ICR) in the
Comments are encouraged and will be accepted until February 27, 2012. This process is conducted in accordance with 5 CFR 1320.10.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to OMB Desk Officer, Department of Homeland Security and sent via electronic mail to
The Office of Management and Budget is particularly interested in comments which:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
If additional information is required contact: The Department of Homeland Security (DHS), Office of Chief Procurement Officer, Acquisition Policy and Legislation Office, DHS Attn.: Camara Francis, Department of Homeland Security, Office of the Chief Procurement Officer, Room 3114, Washington, DC 20528,
The Department of Homeland Security (DHS) Components and the Office of the Chief Procurement Officer collect information, when necessary in administering public contracts for supplies and services. The information is used to determine compliance with contract terms placed in the contract as authorized by the Federal Property and Administrative Services Act (41 U.S.C. 251
The information requested is used by the Government's contracting officers and other acquisition personnel, including technical and legal staffs to determine contractor's technical and management progress and controls of the firms holding public contracts to determine if the firms are making appropriate progress in work agreed to and are otherwise performing in the Government's best interest. Payment of a firm's invoices (or non-payment) and/or corrective action may result from such reviews. If this information were not collected, the Government would jeopardize its operations by failing to exercise its responsibility for a major internal control in its contracts' post-award phase. Many sources of the requested information use automated word processing systems, databases, spreadsheets, project management and other commercial software to facilitate preparation of material to be submitted, particularly in the submission of periodic (e.g., monthly) reports that describe contractor performance and progress of work . With Governmentwide implementation of e-Government initiatives, it is commonplace within many of DHS's Components for submissions to be electronic.
According to Federal Procurement Data System-Next Generation (FPDS-NG) the number of Post-Contract award information has increased each year over the past two years in annual respondent and burden hours. This increase is the result of a new estimate of awards, which contributes to the Post-Award information that is collected. This collection was previously approved by OMB on January 26, 2009. This collection will be submitted to OMB for review to request approval to extend the collection past the current expiration date of January 31, 2011. There are no proposed changes to the information being collected, instructions, frequency of the collection or the use of the information being collected.
Transportation Security Administration, DHS.
30-day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0030, abstracted below, to OMB for review and approval of an extension of the currently-approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by February 27, 2012. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Joanna Johnson, TSA PRA Officer, Office of Information Technology (OIT), TSA-11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6011; telephone (571) 227-3651; email
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Transportation Security Administration, DHS.
60-day notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0003, abstracted below, that TSA will submit to OMB for renewal in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. Aircraft operators must adopt and implement a TSA-approved security program. These programs require aircraft operators to maintain and update records to ensure compliance with security provisions outlined in 49 CFR part 1544.
Send your comments by March 26, 2012.
Comments may be mailed or delivered to Joanna Johnson, Business Management Office, Office of Information Technology, TSA-11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-4220.
Joanna Johnson at the above address, or by telephone (571) 227-3651 or facsimile (571) 227-2907.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
This information collection is mandatory for aircraft operators. As part of their security programs, affected aircraft operators are required to maintain and update, as necessary, records of compliance with the security program provisions set forth in 49 CFR part 1544. This regulation also requires affected aircraft operators to submit security program amendments to TSA when applicable and to make their
The information requested of aircraft operators has increased due to the security measures mandated by the Federal Government since September 11, 2001. The information TSA now collects includes identifying information on aircraft operators' flight crews, passengers and cargo. Specifically, TSA requires aircraft operators to submit the following information: (1) A master crew list of all flight and cabin crew members flying to and from the United States; (2) the flight crew list on a flight-by-flight basis; (3) passenger information on a flight-by-flight basis; (4) total amount of cargo screened; and (5) total amount of cargo screened at 100%. Aircraft operators may provide the information electronically or manually. Under this regulation, aircraft operators must ensure that flight crew members and employees with unescorted access authority to a Security Identification Display Area (SIDA) or who perform screening, checked baggage, or cargo functions submit to and receive a criminal history records check (CHRC). As part of the CHRC process, the individual must provide identifying information, including fingerprints. Additionally, aircraft operators must maintain these records, and records associated with compliance with Security Directives, and make them available to TSA for inspection and copying upon request.
TSA estimates that there will be approximately 800 respondents to the information requirements described above, requiring approximately 1,841,130 hours per year to process.
Bureau of Ocean Energy Management (BOEM), Interior.
Notice of meeting.
The OCS Scientific Committee will meet at the Sheraton Reston Hotel in Reston, Virginia. The meeting will serve as a venue to introduce the newest members of the committee to the Environmental Studies Program (ESP) and meet Headquarters and Regional staff.
Wednesday, February 8, 2012, from 8:30 to 5 p.m.; Thursday, February 9, 2012, from 9 a.m. to 4 p.m.
Reston Sheraton Hotel, 11810 Sunrise Valley Drive Reston, Virginia, 20191, telephone (703) 620-9000.
A copy of the agenda may be requested from BOEM by emailing Ms. Phyllis Clark at
In October 2011, 12 new members were appointed to the Committee. This will be the first of two meetings this year and will serve as a venue to introduce the newest members to the Environmental Studies Program (ESP) and meet Headquarters and Regional staff.
On Wednesday, February 8, the Committee will meet in plenary session from 8:30 a.m. to 11:45 a.m. There will be an election of officers, the recently-appointed Director for BOEM will address the Committee on the general status of BOEM and its activities, and the Chief Environmental Officer will present on new opportunities and challenges. From 1 p.m. to 5 p.m., the Committee will break out into disciplinary breakout groups to learn of BOEM's ongoing studies.
On February 9, the Committee will continue meeting in discipline breakout groups from 9 a.m. to 11:45 p.m. From 1 p.m. to 3:15 p.m., Committee business will be discussed and from 3:15 p.m. to 3:30 p.m., public comments will be welcomed.
The meetings are open to the public. Approximately 40 visitors can be accommodated on a first-come-first-served basis.
Federal Advisory Committee Act, Public Law 92-463, 5 U.S.C., Appendix I, and the Office of Management and Budget's Circular A-63, Revised.
U.S. Geological Survey (USGS), Interior.
Notice of an extension of a currently approved information collection (1028-0085).
To comply with the Paperwork Reduction Act of 1995 (PRA), the U.S. Geological Survey (USGS) is inviting comments on an information collection request (ICR) that we have sent to the Office of Management and Budget (OMB) for review and approval. The ICR concerns the paperwork requirements for the National Land Remote Sensing Education, Outreach and Research Activity (NLRSEORA) and describes the nature of the collection and the estimated burden and cost. As required by the PRA, and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this ICR. This Information Collection is scheduled to expire on February 29, 2012.
Submit written comments by February 27, 2012.
Please submit comments on this information collection directly to the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs,
To request additional information concerning this ICR, contact Thomas Cecere by email at
This notice concerns the collection of information that is sufficient and relevant to evaluate and select proposals for funding. We will protect information from respondents considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR Part 2), and under regulations at 30 CFR 250.197, “Data and information to be made available to the public or for limited inspection.” Responses are voluntary. No questions of a “sensitive” nature are asked. We intend to release the project abstracts and primary investigators for awarded/funded projects only.
We again invite comments concerning this information collection on:
(1) Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
(2) the accuracy of our estimate of the burden for this 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. Please note that the comments submitted in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public view, we cannot guarantee that it will be done.
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 Doyon, Limited. The decision approves conveyance of the surface and subsurface estates in the lands described below pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601,
Containing 1,905.99 acres.
Containing 505.60 acres.
Containing 635 acres.
Containing 1,776.06 acres.
Aggregating 4,822.65 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 February 27, 2012 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 email, 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: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, Alaska 99513-7504.
The BLM by phone at (907) 271-5960, by email at
Bureau of Land Management, Interior.
Notice of intent.
Pursuant to applicable provisions of the Federal Lands Recreation Enhancement Act (REA), the Bureau of Land Management's (BLM) Grand Junction Field Office is proposing to begin collecting fees in August of 2012 for overnight camping at the North Fruita Desert Campground within the North Fruita Desert Special Recreation Management Area (SRMA), North of Fruita, within Mesa County, Colorado. The North Fruita Desert was designated as an SRMA by the BLM in the North Fruita Desert Management Plan (August 2004).
To ensure that comments will be considered, the BLM must receive written comments on the BLM's proposal to collect fees in the North Fruita Desert Campground by February 27, 2012. Effective 6 months after publication of this notice, the BLM's Grand Junction Field Office would initiate fee collection in the North Fruita Desert Campground, unless the BLM publishes a
You may submit comments on this fee collection proposal by any of the following methods:
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Copies of the fee proposal are available in the Grand Junction Field Office at the above address and online at
Michelle Bailey, Assistant Field Office Manager, at the address above. 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 North Fruita Desert SRMA offers outstanding opportunities for world class mountain biking. The BLM's overall goal is to maintain the area's recreation experiences, quality social setting, and overnight camping while protecting natural resources requires substantial Federal investment. The BLM is committed to finding the proper balance between public use, reduction of user conflicts, and the protection of resources. The campground qualifies as a site wherein visitors can be charged a fee, authorized under Section 803(h) of REA, 16 U.S.C. 6802(h). In accordance with REA and implementing regulations at 43 CFR part 2930, visitors would obtain an individual Special Recreation Permit to camp within the North Fruita Desert Campground. This fee would be required to be displayed at each campsite. Permits would expire at the beginning of the subsequent calendar day. The suggested fee per campsite, per night is $10.
The BLM's goal for the North Fruita Desert Campground fee program is to ensure that funding is available to maintain the area in a naturally-appearing condition consistent with the recreation setting established by the North Fruita Desert Management Plan, to manage visitor use to provide a quality recreation experience under existing rules and regulations by providing for increased law enforcement presence, to develop additional services such as expanding interpretive/educational programming, and to protect resources. All fees collected would be used for expenses within the campground.
The BLM published the North Fruita Desert Campground Business Plan in August 2008 and updated it in November 2011, which outlines operational goals of the area and the purpose of the fee program. This Business Plan provides management direction for public enjoyment of these public lands through the recreational experience of overnight camping, while minimizing the potential for resource damage from authorized uses. The Plan also provides a market analysis of local recreation sites and sets the basis for the fee proposal. The plan is available online at:
The BLM welcomes public comments on this proposal. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
16 U.S.C. 6803(b) and 43 CFR 2932.13.
Notice is hereby given, in accordance with Public Laws 92-463 and 94-579, that the California Desert District Advisory Council (DAC) to the Bureau of Land Management (BLM), U.S. Department of the Interior, will meet in formal session on Saturday, Feb. 11, 2012, from 8 a.m. to 4:30 p.m. at the Primm Valley Resort, 31900 South Las Vegas Boulevard, Primm, NV 89019. There will be a field trip on Friday, Feb. 10, from 8 a.m. to 4:30 p.m. on BLM-administered lands. Field trip details will be posted on the DAC Web page,
All DAC meetings are open to the public. Public comment for items not on the agenda will be scheduled at the beginning of the meeting Saturday morning. Time for public comment may be made available by the council chairman during the presentation of various agenda items, and is scheduled at the end of the meeting for topics not on the agenda.
While the Saturday meeting is tentatively scheduled from 8 a.m. to 4:30 p.m., the meeting could conclude prior to 4:30 p.m. should the council conclude its presentations and discussions. Therefore, members of the public interested in a particular agenda item or discussion should schedule their arrival accordingly.
Written comments may be filed in advance of the meeting for the California Desert District Advisory Council, c/o Bureau of Land Management, External Affairs, 22835 Calle San Juan de Los Lagos, Moreno Valley, CA 92553. Written comments also are accepted at the time of the meeting and, if copies are provided to the recorder, will be incorporated into the minutes.
David Briery, BLM California Desert District External Affairs, (951) 697-5220.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
James R. Holbein, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received a complaint filed on behalf of Eastman Kodak Company on January 10, 2011. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain electronic devices for capturing and transmitting images, and components thereof. The complaint names Apple Inc. of Cupertino, CA; High Tech Computer Corp. (a/k/a HTC Corp.) of Taiwan; HTC America, Inc. of Bellevue, WA; and Exedea, Inc. of Houston, TX, as respondents.
The complainant, proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five pages in length, on any public interest issues raised by the complaint. Comments should address whether issuance of an exclusion order and/or a cease and desist order in this investigation would negatively affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;
(iii) Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
(iv) Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.
Written submissions must be filed no later than by close of business, eight business days after the date of publication of this notice in the
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Submissions should refer to the docket number (“Docket No. 2869”) in a prominent place on the cover page and/or the first page. The Commission's rules authorize filing submissions with the Secretary by
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.50(a)(4) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50(a)(4)).
By order of the Commission.
Notice is hereby given that on January 19, 2012, a proposed Second Agreement and Order Regarding Modification of the Consent Decree (“Second Consent Decree Modification”) in
This action was originally filed in 2001 by the United States and the State of Louisiana under Clean Water Act (“CWA”) Section 301, 33 U.S.C. 1311, seeking civil penalties and injunctive relief for violations related to the publically owned treatment works owned and operated by the City of Baton Rouge and the Parish of East Baton Rouge (collectively “the City/Parish”). On March 14, 2002, the Court entered a Consent Decree resolving all claims in the Complaint (“the 2002 Consent Decree”). Among other requirements, the 2002 Consent Decree required the City/Parish to complete implementation by January 1, 2015 of a project to improve its sewage collection system including addressing Unauthorized Discharges such as sanitary sewer overflows. Under the proposed Second Consent Decree Modification, the deadline would be extended to January 1, 2018 and the City/Parish would implement additional work including installation of a supervisory control and data acquisition system and installation of emergency generators at over 400 pump stations used in the sewage collection system.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Second Consent Decree Modification. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either emailed to
During the public comment period, the Second Consent Decree Modification, may also be examined on the following Department of Justice Web site:
National Science Foundation.
Notice of Permit Applications Received under the Antarctic Conservation Act of 1978.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978 Public Law 95-541. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 670 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by February 27, 2012. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Polly A. Penhale at the above address or (703) 292-7420.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
The applications received are as follows:
Take and Import into the U.S.A. The applicant plans to take from the Palmer Station area approximately 20 brown marine algae, 30 green marine algae, 10 red marine algae, and 10 diatom marine algae to sublimate cultures of
Palmer Station, Anvers Island, Antarctic Peninsula.
April 1, 2012 to July 31, 2013.
U.S. Office of Personnel Management.
Notice and request for comments.
The U.S. Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an extension of an already existing information collection request (ICR) 3206-0250, Certificate of Medical Examination. The information collection was previously published in the
Comments are encouraged and will be accepted until February 27, 2012. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
The Optional Form (OF) 178, Certificate of Medical Examination, is used to collect medical information about individuals who are incumbents of positions which require physical fitness/agility testing and/or medical examinations, or who have been selected for such a position contingent upon meeting physical fitness/agility testing and medical examinations as a condition of employment. This information is needed to ensure fair and consistent treatment of employees and job applicants, to adjudicate the medically-based passover of a preference eligible, and to adjudicate claims of discrimination under the Americans with Disabilities Act (ADA).
As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection to:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Wednesday, February 8, 2012, at 10 a.m.; and Thursday, February 9, at 8:30 a.m. and 10:30 a.m.
Washington, DC, at U.S. Postal Service Headquarters, 475 L'Enfant Plaza SW., in the Benjamin Franklin Room.
Wednesday, February 8 at 10 a.m.—Closed; Thursday, February 9 at 8:30 a.m.—Open; and at 10:30 a.m.—Closed.
1. Strategic Issues.
2. Financial Matters.
3. Pricing.
4. Personnel Matters and Compensation Issues.
5. Governors' Executive Session—Discussion of prior agenda items and Board Governance.
1. Approval of Minutes of Previous Meetings.
2. Remarks of the Chairman of the Board.
3. Remarks of the Postmaster General and CEO.
4. Appointment of Committee Members and Committee Reports.
5. Quarterly Report on Financial Performance.
6. Quarterly Report on Service Performance.
7. Tentative Agenda for the March 21, 2012, meeting in Washington, DC.
1. Continuation of Wednesday's closed session agenda.
Julie S. Moore, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260-1000. Telephone (202) 268-4800.
Postal Service.
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
January 26, 2012.
Elizabeth A. Reed, (202) 268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on January 19, 2012, it filed with the Postal Regulatory Commission a
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17Ac-2, pursuant to Section 17A(c) of the Exchange Act, generally requires transfer agents to register with their Appropriate Regulatory Agency (“ARA”), whether the Commission, the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, or the Office of Thrift Supervision, and to amend their registrations if the information becomes inaccurate, misleading, or incomplete.
Paragraph 1 of Rule 17Ac2-1, requires transfer agents to file a Form TA-1 application for registration with the Commission where the Commission is their ARA. Transfer agents must also file an amended Form TA-1 application for registration if the existing on their Form TA-1 becomes inaccurate, misleading, or incomplete. The Form TA-1s must be filed with the Commission electronically, absent an exemption, on EDGAR pursuant to Regulation S-T (17 CFR 232).
The Commission receives on an annual basis approximately 190 applications for registration on Form TA-1 from transfer agents required to register with the Commission. Included in this figure are amendments to Form TA-1 as required by Paragraph (c) of Rule 17Ac2-1 to address information that has become inaccurate, misleading, or incomplete. Based on past submissions, the staff estimates that the average number of hours necessary to comply with the requirements of Rule 17Ac2-1 and Form TA-1 is one and one-half hours with a total burden of 285 hours.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Comments should be directed to: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or by sending an email to: S
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 609 (17 CFR 230.609) under the Securities Act of 1933 (15 U.S.C. 77a
During the calendar year 2010, there was one filing of Form 2-E by one respondent. The Commission has previously estimated that the total annual burden associated with information collection and Form 2-E preparation and submission is four hours per filing. Based on the Commission's experience with disclosure documents generally, the Commission continues to believe that this estimate is appropriate.
Estimates of average burden hours are made solely for the purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even representative survey or study of the costs of Commission rules and forms. The collection of information under rule 609 and Form 2-E is mandatory. The information provided under rule 609 and Form 2-E will not be kept confidential. An agency may not
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
On February 12, 1935, the Commission adopted Rule 12d2-1,
Any such suspension may be continued until such time as the Commission may determine that the suspension is designed to evade the provisions of Section 12(d) of the Act and Rule 12d2-2 thereunder.
The trading suspension notices serve a number of purposes. First, they inform the Commission that an exchange has suspended from trading a listed security or reintroduced trading in a previously suspended security. They also provide the Commission with information necessary for it to determine that the suspension has been accomplished in accordance with the rules of the exchange, and to verify that the exchange has not evaded the requirements of Section 12(d) of the Act and Rule 12d2-2 thereunder by improperly employing a trading suspension. Without Rule 12d2-1, the Commission would be unable to fully implement these statutory responsibilities.
There are 15 national securities exchanges that are subject to Rule 12d2-1. The burden of complying with Rule 12d2-1 is not evenly distributed among the exchanges, however, since there are many more securities listed on the New York Stock Exchange, Inc., the NASDAQ Stock Exchange, and the American Stock Exchange LLC than on the other exchanges.
The collection of information obligations imposed by Rule 12d2-1 are mandatory. The response will be available to the public and will not be kept confidential.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Background documentation for this information collection may be viewed at the following link:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17f-2 (17 CFR 270.17f-2) under the Investment Company Act of 1940 (the “Act”) (15 U.S.C. 80a-1) is entitled: “Custody of Investments by Registered Management Investment Company.” Rule 17f-2 establishes safeguards for arrangements in which a registered management investment company (“fund”) is deemed to maintain custody of its own assets, such as when the fund maintains its assets in a facility that provides safekeeping but not custodial services. The rule includes several recordkeeping or reporting requirements. The fund's directors must prepare a resolution designating not more than five fund officers or responsible employees who may have access to the fund's assets. The designated access persons (two or more of whom must act jointly when handling fund assets) must prepare a written notation providing certain information about each deposit or withdrawal of fund assets, and must transmit the notation to another officer or director designated by the directors. Independent public accountants must verify the fund's assets at least three times a year and two of the examinations must be unscheduled.
The requirement that directors designate access persons is intended to ensure that directors evaluate the trustworthiness of insiders who handle fund assets. The requirements that access persons act jointly in handling fund assets, prepare a written notation of each transaction, and transmit the notation to another designated person are intended to reduce the risk of misappropriation of fund assets by access persons, and to ensure that adequate records are prepared, reviewed by a responsible third person, and available for examination by the Commission's examination staff. The requirement that auditors verify fund assets without notice twice each year is intended to provide an additional deterrent to the misappropriation of fund assets and to detect any irregularities.
The Commission staff estimates that each fund makes 974 responses and spends an average of 252 hours annually in complying with the rule's requirements.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms. Complying with the collections of information required by rule 17f-2 is mandatory for those funds that maintain custody of their own assets. Responses will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view the background documentation for this information collection at the following Web site,
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 9b-1 (17 CFR 240.9b-1) sets forth the categories of information required to be disclosed in an options disclosure document (“ODD”) and requires the options markets to file an ODD with the Commission 60 days prior to the date it is distributed to investors. In addition, Rule 9b-1 provides that the ODD must be amended if the information in the document becomes materially inaccurate or incomplete and that amendments must be filed with the Commission 30 days prior to the distribution to customers. Finally, Rule 9b-1 requires a broker-dealer to furnish to each customer an ODD and any amendments, prior to accepting an order to purchase or sell an option on behalf of that customer.
There are 9 options markets that must comply with Rule 9b-1. These respondents work together to prepare a single ODD covering options traded on each market, as well as amendments to
In addition, approximately 1,500 broker-dealers must comply with Rule 9b-1. Each of these respondents will process an average of 3 new customers for options each week and, therefore, will have to furnish approximately 156 ODDs per year. The postal mailing or electronic delivery of the ODD takes respondents no more than 30 seconds to complete for an annual compliance burden for each of these respondents of 78 minutes or 1.3 hours. Thus, the total compliance burden per year is 1,950 hours (1,500 broker-dealers × 1.3 hours). The estimated cost for a general clerk of a broker-dealer is $50 per hour,
The total compliance burden for all respondents under this rule (both options markets and broker-dealers) is 2,166 hours per year (216 + 1,950), and the total compliance cost is $173,964 ($76,464 + $97,500).
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Background documentation for this information collection may be viewed at the following Web site:
On October 5, 2011, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
Institution of these proceedings does not indicate that the Commission has reached any conclusions with respect to the proposed rule change, nor does it mean that the Commission will ultimately approve or disapprove the proposed rule change. Rather, as discussed below, the Commission seeks additional input from interested parties on the issues presented by the proposed rule change, as modified by Partial Amendment No. 1, and on FINRA's Response Letter.
FINRA is proposing to adopt FINRA Rule 5123, which, prior to Partial Amendment No. 1, would have required that members and associated persons that offer or sell any applicable private placement (as described in the proposed rule change), or participate in the preparation of a private placement memorandum (“PPM”), term sheet or other disclosure documents in connection with any such private placement, provide relevant disclosures to each investor prior to sale describing the anticipated use of offering proceeds, and the amount and type of offering expenses and offering compensation. If any issuer's disclosure documents did not contain the requisite information about the offering expenses and use of proceeds, the proposed rule change would have required the member to create and provide to any potential investor a separate disclosure document containing this information. FINRA Rule 5123 also would have required that each participating member file the PPM, term sheet or other disclosure document, and any exhibits thereto, with FINRA no later than 15 calendar days after the date of the first sale, and any material amendments to such document, or any amendments to any disclosures mandated by the proposed rule change, also were required to be filed no later than 15 calendar days after the date such document was provided to any investor or prospective investor, as discussed further below.
While some commenters expressed support for the goals of the proposed rule change,
• Several commenters argued that definition of private placement
• Several commenters suggested that the requirement that each member provide applicable disclosure documentation to each investor in a private placement prior to a sale could be interpreted to require a FINRA member to have primary responsibility for preparing disclosure documents in the event that an issuer does not prepare them.
• Two commenters argued that by requiring members to provide disclosures regarding private placements, the proposed rule change would be contrary to the intent of Congress and/or the federal securities laws, which do not otherwise prescribe these disclosures for many types of private placements.
• Three commenters stated that the proposed rule change could significantly affect the ability of many issuers to raise capital.
• Commenters expressed concerns regarding exemptions, in most cases advocating to broaden proposed exemptions or to add new exemptions. Two commenters urged FINRA to adopt an explicit exemption for merger and acquisition transactions.
• Several commenters stated that a single filing for each offering, rather than by each member, would be sufficient for the regulatory purposes of the proposed rule change and that the firm making the filing could be tasked with disclosing the other members of the selling group in offerings in which more than one firm participated.
FINRA responded to the comments in its Response Letter and filed Partial Amendment 1.
FINRA's proposed changes in response to comments, as set forth in Partial Amendment No. 1, are summarized below.
First, FINRA is proposing to amend proposed FINRA Rule 5123 to clarify that the term “private placement” in the proposed rule change would mean a non-public offering of securities conducted in reliance on an available exemption from registration under the Securities Act. Accordingly, the proposed rule's private placement definition would be consistent with
• Securities Act Sections 4(1), 4(3) and 4(4) (which generally exempt secondary transactions);
• Securities Act Sections 3(a)(2) (offerings by banks), 3(a)(9) (exchange transactions with an existing holder, where no one is paid to solicit the exchange), 3(a)(10) (securities subject to a fairness hearing), or 3(a)(12) (securities issued by a bank or bank holding company pursuant to reorganization or similar transactions); or
• Section 1145 of the Bankruptcy Code (securities issued in a court-approved reorganization plan that are not otherwise entitled to the exemption from registration afforded by Securities Act Section 3(a)(10)).
Second, FINRA is proposing to amend the filing and disclosure requirements of the proposed rule change for those private placements for which a disclosure document includes a description of the anticipated use of offering proceeds, the amount and type of offering expenses, and the amount and type of compensation provided or to be provided to sponsors, finders, consultants, and members and their associated persons in connection with the offering. Members would be required to provide, prior to any sale, the disclosure document to each investor other than those investors in a private placement that would be subject to an exemption, as provided by the proposed rule change, as amended. Each member participating in the offering or a member designated to make the filing on behalf of all members identified in the filing would also be required to file such document with FINRA no later than 15 calendar days after the date of first sale.
Third, FINRA is proposing to amend the filing and disclosure requirements of the proposed rule change for those private placements for which there is no disclosure document. If no disclosure document is used, the participating member (or a designated member acting on behalf of the member) would, however, be required to make a notice filing, identifying the private placement and the participating members and stating that no disclosure document was used, with FINRA no later than 15 calendar days after the date of first sale. The proposed rule change as amended would not prohibit a member from participating in such private placements. The proposed rule change would not require the member to make any additional disclosure to investors in such offerings.
Fourth, FINRA is proposing to add supplementary material to the proposed rule change that would clarify that the rule would not require delivery of multiple copies of a disclosure document to a single customer. Specifically, the proposed rule change would require an affected member to deliver disclosure documents only to persons to whom it sells shares in the private placement.
In view of the issues raised by the proposed rule change, the Commission has determined to institute proceedings pursuant to Section 19(b)(2) of the Exchange Act to determine whether to approve or disapprove FINRA's proposed rule change.
The Commission is asking that commenters address the changes that FINRA proposes in Partial Amendment No. 1, the comments received on the Notice of Filing, and FINRA's Response Letter, in addition to any other comments they may wish to submit about the proposed rule change. The Commission requests comment, in particular, on the following aspects of the proposed rule change, as modified by Partial Amendment No. 1:
(1) the categories of offerings that would be subject to the proposed rule change under the proposed definition of “private placement;”
(2) the potential impact on investors purchasing private placement securities through a broker-dealer subject to the proposed rule change;
(3) the potential impact on members of having to comply with the proposed rule change, including any burdens associated with implementing the obligations of the proposed rule change; and
(4) the potential impact on competition and capital formation, including: (a) Whether members would continue to participate in private placements subject to the proposed rule change; (b) whether the proposed rule change would encourage issuers to utilize unregistered firms to effect their covered offerings; and (c) whether the proposed rule change would affect access to capital, the costs of capital raising or the cost of capital for issuers.
Pursuant to Section 19(b)(2)(B) of the Exchange Act,
The Commission believes FINRA's proposed rule change, as amended, raises questions as to whether it is consistent with the requirements of Section 15A(b)(6) of the Exchange Act, including whether FINRA's proposed rule change, as amended, would prevent fraudulent and manipulative acts, promote just and equitable principles of trade, and protect investors and the public interest and also whether the proposed rule change is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers, to fix minimum profits, to impose any schedule or fix rates of commissions, allowances, discounts, or other fees to be charged by its members, or to regulate any matters not related to the purposes of the Exchange Act or the administration of FINRA.
The Commission also believes FINRA's proposed rule change, as amended, raises questions as to whether it is consistent with the findings that the Commission must make as set forth in Section 3(f) of the Exchange Act, including whether FINRA's proposed rule change, as amended, would promote efficiency, competition, and capital formation.
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues
Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments by [insert date 30 days from publication in the
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-FINRA-2011-057 and should be submitted on or before February 27, 2012. Rebuttal comments should be submitted by March 12, 2012.
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 relocate various fees within the Fee Schedule and provide more detail in the Table of Contents in order to group fees with other similar types of fees.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to relocate various fees within the Fee Schedule and add more detail to the Table of Contents to group fees so that those fees may be easily located within the Fee Schedule. The Exchange is not proposing any substantive amendments, but rather proposes to merely rearrange text within the Fee Schedule and add detail to the Table of Contents.
Specifically, the Exchange is proposing revisions to the Table of Contents, Section IV, entitled “PIXL Pricing”, Section VI, entitled “Access Service, Cancellation, Membership, Regulatory and other Fees”, and Section VIII, entitled, “Other Member Fees,” as specified below.
The Exchange proposes to amend the title of Section IV “PIXL Pricing” to “Other Transaction Fees” and also add three subsections: (1) A. PIXL Pricing; (2) B. Cancellation Fee; and (3) C. Options Regulatory Fee. The Exchange
The Exchange proposes to rename Section IV as “Other Transaction Fees.” The PIXL Pricing will remain in this Section as subsection A. The Exchange also proposes to add a subsection B for Cancellation Fees and a subsection C for the Options Regulatory Fees. The Cancellation Fees and the Options Regulatory Fees are currently located in Section VI, Access Service, Cancellation, Membership, Regulatory, and other Fees. The Exchange believes that these transaction fees are better suited to newly titled Section IV, Other Transaction Fees, because these fees would be located with other transaction fees in the front portion of the Fee Schedule.
The Exchange proposes to rename Section VI as “Membership Fees.” Currently Section VI contains numerous types of Fees including the: Cancellation Fee, Real-time Risk Management Fee, Options Regulatory Fee, Permit and Registration Fees,
The Exchange proposes to rename Section VII, which is currently reserved, as “Other Member Fees.” The Exchange proposes to relocate the Options Trading Floor Fees,
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File No. SR-Phlx-2012-02. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is proposing to amend its complex order processing rules to update existing price check protection features and include some additional ones. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange has in place various price check parameter features that are designed to prevent incoming orders from automatically executing at potentially erroneous prices. These price check parameter features are designed to help maintain a fair and orderly market. The Exchange is proposing to amend its complex order processing rules under Rule 6.13,
First, the Exchange is proposing to include descriptive headings in the rule text for each of the existing price check parameters. The Exchange is also proposing to break the description of the existing same expiration strategy price check parameters into two separate paragraphs instead of a single paragraph. We believe these changes will make it easier for users to read and understand the operation of these price protection features. These changes are simply non-substantive formatting changes and do not impact the operation of the various features.
Second, the market width parameter under Rule 6.13.04(a) currently provides that the complex order book (“COB”) will not automatically execute eligible complex orders that are market orders if the width between the Exchange's best bid and best offer (“BBO”) are not within an acceptable price range. In addition, the rule text currently provides that such market complex orders will be cancelled.
The Exchange is proposing to revise this provision to provide that the Exchange may determine to apply these price check parameters to market orders and/or marketable limit orders. However, whereas market orders that are subject to this price protection feature are cancelled, marketable limit orders would be held in the system. Any such orders held in the system would not be eligible to automatically execute until after the market width parameter condition is resolved. In addition, while being held in the system, such orders would be displayed in the COB as applicable. This functionality for marketable limit order is currently in use but not expressly covered in the rules. The Exchange believes that extending the same price check logic to not automatically execute such marketable limit orders but to continue to hold such orders in the system is reasonable and appropriate because, as with market orders, this feature should help to prevent executions of such limit orders at extreme and potentially erroneous prices. In contrast to market orders, marketable limit orders are able to be held in the system because they have a price associated with them. The Exchange also notes that applying market width price check logic to market orders and/or marketable limit orders is consistent with other existing price check parameters that apply to both market orders and marketable limit complex orders.
Third, the debit-to-credit (credit-to-debit) parameters under Rule 6.13.04(b) currently provide that (i) a market order that would be executed at a net credit price after receiving a partial execution at a net debit price would not be automatically executed (the “debit-to-credit” parameter), and (ii) a market order that would be executed at a net debit price after receiving a partial execution at a net credit price would not be automatically executed (the “credit-to-debit” parameter). The Exchange is proposing to eliminate the debit-to-credit parameter because it not possible for such a scenario to occur and therefore the parameter is unnecessary. (Because orders are executed at the best available price and then the next best price, a market order would never execute at a net debit price then at a net credit price.)
Fourth, the Exchange is proposing to change the existing same expiration strategy price check parameters to distinguish between its application to limit orders and to market orders. The Exchange is also proposing to eliminate a provision that would make this price check parameter feature available to ratio orders should the Exchange determine to do so. As the term implies, the “same expiration strategy” price protection parameters apply to certain complex order strategies where all the option series have the same expiration.
Currently the rule text provides that, if the conditions for this price check parameter exist when a complex order is routed to the COB, then the order will be rejected. The rule text also currently provides that, to the extent the parameters are triggered once an order is resting in COB or after an incoming order receives a partial execution, such a complex order will be cancelled. The provision does not distinguish between limit orders and market orders. The Exchange is proposing to amend the text to separately describe how the two categories of orders are processed.
With respect to limit orders, proposed changes to the text provide that incoming limit orders will be rejected under this parameter only if the conditions exist when the order is first routed to COB. The provisions about resting orders and partial executions are not applicable to limit orders because incoming limit orders that are priced at a net price that meets the conditions are rejected outright upon routing to COB and never get to the point where they are resting or partially executed. With respect to market orders, proposed changes to the text provide that, to the extent the parameters are triggered when an incoming market order is routed to COB or after an incoming market order is subject to a complex order RFR auction (“COA”), any part of the market order that may be executed within an acceptable price range will be executed automatically and the part of the order that would execute at a net debit price will be cancelled. (A market order would never rest in COB, so that provision will be removed from the rule text.) The following examples illustrate this price check parameter:
Assume a complex order to buy 50 Jan 45 XYZ calls and sell 50 Jan 50 XYZ calls is entered with a limit that is a net credit price (
Assume a butterfly spread to buy 50 Jan 45 XYZ calls, sell 100 Jan 50 XYZ calls and buy 50 Jan 55 XYZ calls is entered at a net credit price (
Assume a market order to buy 50 Jan 45 XYZ calls and sell 50 Jan 40 XYZ calls is entered. Also assume that the Jan 45 XYZ calls are quoted $4.00-$4.10 for 10 contracts and the next available offer is $4.30 for 100 contracts, and that the Jan 40 XYZ calls are quoted $4.50-$4.60 for 10 contracts and the next available bid is $4.20 for 100 contracts. Under this scenario, the incoming market order would receive an execution for 10 spreads at a net credit price of $0.40 each (
Assume a market order to buy 50 Jan 45 XYZ calls and sell 50 Jan 40 XYZ calls is routed to COA. Also assume that at the end of the COA the Jan 45 XYZ calls are quoted $4.00-$4.10 for 10 contracts and the next available offer is $4.30 for 100 contracts, and that the Jan 40 XYZ calls are quoted $4.50-$4.60 for 10 contracts and the next available bid is $4.20 for 100 contracts. To the extent the market order can execute at prices within the price check parameter, then that part of the order would execute (
As noted above, the Exchange is also proposing to delete a provision in the rule that provides that the Exchange may determine to make the same expiration strategy price check parameters available to applicable ratio orders (as such applicable ratios are determined by the Exchange on a class-by-class basis). The Exchange has not activated this feature for ratio orders and has no intention to do so at this time. Therefore, the Exchange is proposing to delete this provision from the rule at this time.
Finally, fifth, the Exchange is proposing to codify a price check parameter for orders processed via COA, which is currently in use but not
For example, the Exchange could determine that the acceptable percentage distance is 5%. Assume at the start of COA the individual leg market in Series A is $1.00-$1.20 and in series B is $2.00-$2.20 and the derived leg market is $0.80 (net debit)-$1.20 (net credit). The acceptable percentage distance would be $0.04 (5% × $0.80) for orders to buy Series A and sell series B and $0.06 (5% × $1.20) for orders to sell Series A and buy series B. As a result, COA would execute a COA-eligible order at prices ranging from $0.84 (net debit)—$1.26 (net credit), but not an order priced at a net debit of $0.85 or more or a net credit of $1.27 or more.
The proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposal.
Because the foregoing rule does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change or such shorter time as designated by the Commission, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is proposing to amend its automatic execution and complex order processing rules to update existing price check parameter and order handling features and include some additional ones. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange has in place various price check parameter features that are designed to prevent incoming orders from automatically executing at potentially erroneous prices. These price check parameter features are designed to help maintain a fair and orderly market. The Exchange believes that the price check parameter features assist with the maintenance of fair and orderly markets by helping to mitigate the potential risks associated with orders drilling through multiple price points (thereby resulting in executions at prices that are extreme and potentially erroneous) and complex orders trading at prices that are inconsistent with particular complex order strategies (thereby resulting in executions at prices that are extreme and potentially erroneous). The Exchange is proposing to amend its automatic execution and complex order processing rules to update existing price check protection and order handling features to provide additional clarity on the operation of the functionality and to include some additional features.
With respect to the CBOE Hybrid System Automatic Execution Feature, the Exchange is proposing to amend Rule 6.13 in various respects. By way of background, orders eligible for automatic execution through the CBOE Hybrid System may be automatically executed in accordance with Rule 6.13, Rule 6.13A, 6.14 or 6.14A, as applicable.
As for the proposed changes to Rule 6.13, first, the Exchange is proposing to delete unnecessary cross references within the rule in order to make the text consistent and easier to read.
With respect to the complex order process, the Exchange is proposing to amend Rule 6.53C, Complex Orders on the Hybrid System, to update the price check parameters in various respects. First, currently the rule is silent on what happens when a complex order attempts to route to PAR but is not eligible for PAR. Therefore, similar to the changes noted above for Rule 6.13, the Exchange is proposing to amend Rule 6.53C.08 to provide that, in instances where a complex order would normally route to PAR if a complex order price check parameter is triggered but the order is not eligible to route to PAR, then the remaining balance of the complex order will be cancelled.
Second, the Exchange is proposing to replace specific references in Rule 6.53C.08 to routing orders to BART (the booth automated routing terminal) and an order entry firm's booth printer with a general reference to an order entry firm's booth. The Exchange no longer utilizes the particular system that it had referred to as BART and believes that the general reference to routing an order to an order entry firm's booth is more accurate for its rules.
Third, the Exchange is proposing to include descriptive headings in the rule text for each of the existing price check parameters. The Exchange is also proposing to break the description of the existing same expiration strategy price check parameters into two separate paragraphs instead of a single paragraph. We believe these changes will make it easier for users to read and understand the operation of these price protection features. These changes are simply non-substantive formatting changes and do not impact the operation of the various features.
Fourth, the market width parameter under Rule 6.53C.08(a) currently provides that the complex order book (“COB”) will not automatically execute eligible complex orders that are market orders if the width between the Exchange's best bid and best offer are not within an acceptable price range. The rule text provides that the acceptable price range is no less than 1.5 times the corresponding bid/ask differential requirements determined by the Exchange on a class-by-class basis pursuant to Rule 8.7(b)(iv). In addition, the rule text currently provides that such market complex orders route on a class-by-class basis to PAR, BART or, at the order entry firm's discretion, to the order entry firm's booth.
The Exchange is proposing to revise this provision in various respects. As discussed above, the Exchange is proposing to make it clear that the remaining balance of a complex order will be cancelled if it would normally route to PAR but is not eligible and to delete references to BART. In addition, the Exchange is proposing to provide that the Exchange may determine to apply these price check parameters to market orders and/or marketable limit orders. However, whereas market orders that are subject to this price protection feature route to PAR, a booth or are cancelled, marketable limit orders would be held in the Hybrid System. Any such orders held in the Hybrid System would not be eligible to automatically execute until after the market width parameter condition is resolved. In addition, while being held in the Hybrid System, such orders would be displayed in the COB as applicable. This functionality for marketable limit orders is currently in use but not expressly covered in the rules. The Exchange believes that extending the same price check logic to not automatically execute such marketable limit orders but to continue to hold such orders in the Hybrid System is reasonable and appropriate because, as with market orders, this feature should help to prevent executions of such limit orders at extreme and potentially erroneous prices. In contrast to market orders, marketable limit orders are able to be
Fifth, the debit-to-credit (credit-to-debit) parameters under Rule 6.53C.08(b) currently provide that (i) a market order that would be executed at a net credit price after receiving a partial execution at a net debit price would not be automatically executed (the “debit-to-credit” parameter), and (ii) a market order that would be executed at a net debit price after receiving a partial execution at a net credit price would not be automatically executed (the “credit-to-debit” parameter). The Exchange is proposing to eliminate the debit-to-credit parameter because it is not possible for such a scenario to occur and therefore the parameter is unnecessary. (Because orders are executed at the best available price and then the next best price, a market order would never execute at a net debit price then at a net credit price.)
Sixth, the Exchange is proposing to change the existing same expiration strategy price check parameters to distinguish between its application to limit orders and to market orders. The Exchange is also proposing to eliminate a provision that would make this price check parameter feature available to ratio orders should the Exchange determine to do so. As the term implies, the “same expiration strategy” price protection parameters apply to certain complex order strategies where all the option series have the same expiration.
Currently the rule text provides that, if the conditions for this price check parameter exist when a complex order is routed to COB, then the order will be rejected. The rule text also currently provides that, to the extent the parameters are triggered once an order is resting in COB or after an incoming order receives a partial execution, such a complex order will route on a class-by-class basis to PAR, BART, or at the order entry firm's discretion to the order entry firm's booth printer. The provision does not distinguish between limit orders and market orders. The Exchange is proposing to amend the text to separately describe how the two categories of orders are processed.
With respect to limit orders, the proposed changes to the text provide that incoming limit orders will be rejected under this parameter only if the conditions exist when the order is first routed to COB. The provisions about resting orders and partial executions are not applicable to limit orders because incoming limit orders that are priced at a net price that meets the conditions are rejected outright upon routing to COB and never get to the point where they are resting or partially executed. With respect to market orders, proposed changes to the text provide that, to the extent the parameters are triggered when an incoming market order is routed to COB or after an incoming market order is subject to COA, any part of the market order that may be executed within an acceptable price range will be executed automatically and the part of the order that would execute at a net debit price will route on a class-by-class basis to PAR or, at the order entry firm's discretion, to the order entry firm's booth. If an order is not eligible to route to PAR, then the remaining balance will be cancelled. (A market order would never rest in COB, so that provision will be removed from the rule text.)
As noted above, the Exchange is also proposing to delete a provision in the rule that provides that the Exchange may determine to make the same expiration strategy price check parameters available to applicable ratio orders (as such applicable ratios are determined by the Exchange on a class-by-class basis). The Exchange has not activated this feature for ratio orders and has no intention to do so at this time. Therefore, the Exchange is proposing to delete this provision from the rule at this time.
Finally, seventh, the Exchange is proposing to codify a price check parameter for orders processed via COA, which is currently in use but not expressly covered in the rules. Under this parameter the Exchange may determine on a class-by-class basis (and announce to Trading Permit Holders via Regulatory Circular pursuant to Rule 6.53C.01) that COA will not automatically execute a COA-eligible order that is marketable if the execution would be at a price that is not within an acceptable percentage distance from the derived net price of the individual series legs that existed at the start of COA. For purposes of this provision, the “acceptable percentage distance” will be a percentage determined by the Exchange on a class-by-class basis and it shall be not less than 3 percent. The Exchange believes a 3 percent level is reasonable and appropriate because a marketable order that would deviate from the derived net market by that percentage or more may be indicative of an extreme or potentially erroneous price, and a broker would generally want to evaluate the order further before receiving an automatic execution. The Exchange also believes that a 3 percent minimum is reasonable and appropriate in comparison to other price check parameters it currently has available.
For example, the Exchange could determine that the acceptable percentage distance is 5%. Assume at the start of COA the individual leg market in Series A is $1.00-$1.20 and in series B is $2.00-$2.20 and the derived leg market is $0.80 (net debit)-$1.20 (net credit). The acceptable percentage distance would be $0.04 (5% × $0.80) for orders to buy Series A and sell series B and $0.06 (5% × $1.20) for orders to sell Series A and buy series B. As a result, COA would execute a COA-eligible order at prices ranging from $0.84 (net debit)-$1.26 (net credit), but not an order priced at a net debit of $0.85 or more or a net credit of $1.27 or more.
The proposed rule change is consistent with Section 6(b) of the Act
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposal.
Because the foregoing rule does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Real-Time Risk Management Fee to further clarify the application of the Fee. The Exchange also proposes to relocate the FLEX and Cabinet Options Transaction Fees within Section II of the Exchange's Fee Schedule and add clarifying text.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to memorialize the Exchange's practice of limiting the assessment of the Real-time Risk Management Fee to two (2) ports. The Exchange also proposes to add language to clarify the types of ports that are subject to this fee.
The Exchange initially filed to adopt a real-time, trade information fee (Real-time Risk Management Fee) for members receiving option trading information on-line (i.e., electronically) from the Exchange.
The Exchange also proposes to relocate the FLEX
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes that amending the Fee Schedule to memorialize the Exchange's practice of not assessing the Real-time Risk Management Fee on more than two ports is reasonable because this practice will be clearly stated on the Fee Schedule. Also, the Exchange believes that it is reasonable to clearly note the types of ports that are subject to this Fee. The Exchange also believes that this amendment is equitable and not unfairly discriminatory because the Exchange is uniformly assessing the Real-time Risk Management Fee on all members and member organizations. Every member or member organization will not be assessed the Real-time Risk Management Fee in excess of two ports, either an SQF Port or a CTI Port.
The Exchange believes that its proposal to relocate the Cabinet and FLEX Options section within Section II of the Fee Schedule and add more clarity concerning the assessment of these fees is reasonable, equitable and not unfairly discriminatory because the amendments will further clarify the application of Section II fees. The proposed amendments are not substantive. The Exchange believes the amendments would create a more user-friendly Fee Schedule.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and
• Use the Commission's Internet comment form (
• Send an email 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 November 16, 2011, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade the Shares of the Fund pursuant to NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares on the Exchange. The Shares will be offered by AdvisorShares Trust (“Trust”), a statutory trust organized under the laws of the State of Delaware and registered with the Commission as an open-end management investment company.
The Fund will seek long-term capital appreciation in excess of global equity benchmarks such as the MSCI All Country World Index. The Fund will be a “fund-of-funds” that seeks to achieve its investment objective by investing primarily in other U.S.-listed exchange-traded products (“Underlying ETPs”).
The Fund intends to invest primarily in the securities of Underlying ETPs consistent with the requirements of Section 12(d)(1) of the 1940 Act, or any rule, regulation or order of the Commission or interpretation thereof. The Fund will only make such investments in conformity with the requirements of Section 817 of the Internal Revenue Code of 1986, as amended (“Code”).
The Fund, through its investment in Underlying ETPs, may invest in equity securities, which represent ownership interests in a company or partnership and consist of common stocks, preferred stocks, warrants to acquire common stock, securities convertible into common stock, investments in master limited partnerships and American Depositary Receipts (“ADRs”), as well as Global Depositary Receipts (“GDRs,” and together with ADRs, collectively, “Depositary Receipts”).
The Underlying ETPs in which the Fund will invest will primarily hold substantially all of their assets in securities representing a country (or region) specific index. The Underlying ETPs may invest in complex securities such as equity options, index options, repurchase agreements, foreign currency contracts, swaps, and futures contracts.
The Sub-Adviser has developed its proprietary country ranking model around the premise that in the long run, country-specific effects are the most important drivers of global equity returns. Through its country ranking model, the Sub-Adviser ranks countries on a monthly basis in order to determine their relative merit.
The Sub-Adviser will use a four step process to create its portfolio allocations:
1. Qualify Countries: In order to determine which countries are to be included in the country ranking model, the Sub-Adviser will apply two consistent criteria. All qualified countries (a) must be part of the MSCI All Country World Index and (b) have a liquid Underlying ETP that tracks the performance of its equity market.
2. Analyze Factor Data: The Sub-Adviser will collect and analyze monthly factor data on every qualified country in the model. Currently, the Sub-Adviser uses nearly 40 factors that are classified within fundamental (
3. Rank Countries: Each month the Sub-Adviser will use the weighted individual factor scores for each country in the model to assign each country a relative attractiveness score. This monthly score will be used to rank countries from most attractive to least attractive.
4. Create Portfolio: The Sub-Adviser will create the portfolio based on the underlying attractiveness score of each country in the model. The most attractive five to six countries will receive allocations in the portfolio, and the Sub-Adviser will purchase single country Underlying ETPs that represent investments in those countries' equity markets. No single country Underlying ETP may receive more than a 25% allocation at purchase price.
To respond to adverse market, economic, political, or other conditions,
While under normal market conditions the Fund will primarily invest in Underlying ETPs, the Fund may, to a limited extent, invest directly in other investments. The Fund, or the Underlying ETPs in which it invests, may invest in U.S. government securities. The Fund may invest in exchange-traded notes (“ETNs”).
The Fund will seek to qualify for treatment as a regulated investment company under Subchapter M of the Code. The Fund may not (i) with respect to 75% of its total assets, purchase securities of any issuer (except securities issued or guaranteed by the U.S. Government, its agencies or instrumentalities or shares of investment companies) if, as a result, more than 5% of its total assets would be invested in the securities of such issuer, or (ii) acquire more than 10% of the outstanding voting securities of any one issuer. In addition, the Fund may not invest 25% or more of its total assets
The Fund will not purchase illiquid securities, including Rule 144A securities and loan participation interests. Further, in accordance with the Exemptive Order, the Fund will not invest in options contracts, futures contracts, or swap agreements. The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage. Except for Underlying ETPs that may hold non-U.S. issues, the Fund will not otherwise invest in non-U.S. issues.
Additional information regarding the Trust, Fund, Shares, Fund's investment strategies, risks, creation and redemption procedures, fees, portfolio holdings and disclosure policies, distributions and taxes, availability of information, trading rules and halts, and surveillance procedures, among other things, can be found in the Notice and the Registration Statement, as applicable.
The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the requirements of Section 6 of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission notes that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.
The Exchange further represents that the Shares are deemed to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including:
(1) The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) The Exchange's surveillance procedures applicable to derivative products, which include Managed Fund Shares, are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. All Underlying ETPs will be listed on national securities exchanges, all of which are members of the Intermarket Surveillance Group.
(4) Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (d) how information regarding the Portfolio Indicative Value is disseminated; (e) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(5) For initial and/or continued listing, the Fund will be in compliance with Rule 10A-3 under the Act,
(6) The Fund will not: (a) Purchase illiquid securities, including Rule 144A securities and loan participation agreements; (b) pursuant to the terms of the Exemptive Order, invest in options contracts, futures contracts, or swap agreements; and (c) except for Underlying ETPs that may hold non-U.S. issues, otherwise invest in non-U.S. issues.
(7) The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage.
(8) A minimum of 100,000 Shares of the Fund will be outstanding at the commencement of trading on the Exchange.
This approval order is based on the Exchange's representations.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
In the Matter of the Review and Amendment of the Designation of al-Qa'ida in Iraq, aka Jam'at al Tawhid wa'al-Jihad, aka The Monotheism and Jihad Group, aka The al-Zarqawi Network, aka al-Tawhid, aka Tanzim Qa`idat al-Jihad fi Bilad al-Rafidayn, aka The Organization of al-Jihad's Base of Operations in Iraq, aka al-Qaida of Jihad in Iraq, aka al-Qaida in Iraq, aka al-Qaida in Mesopotamia, aka al-Qaida in the Land of the Two Rivers, aka al-Qaida of the Jihad in the Land of the Two Rivers, aka al-Qaida of Jihad Organization in the Land of the Two Rivers, aka al-Qaida Group of Jihad in Iraq, aka al-Qaida Group of Jihad in the Land of the Two Rivers, aka The Organization of Jihad's Base in the Country of the Two Rivers, aka The Organization Base of Jihad/Country of the Two Rivers, aka The Organization of al-Jihad's Base in the Land of the Two Rivers, aka The Organization Base of Jihad/Mesopotamia, aka The Organization of al-Jihad's Base of Operations in the Land of the Two Rivers, aka Tanzeem qa'idat al Jihad/Bildad al Raafidaini, as a Foreign Terrorist Organization pursuant to Section 219 of the Immigration and Nationality Act.
Based upon a review of the Administrative Record assembled in this matter pursuant to Section 219(a)(4)(C) of the Immigration and Nationality Act, as amended (8 U.S.C. 1189(a)(4)(C)) (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, the Secretary of State concludes that the circumstances that were the basis for the 2004 designation of the aforementioned organization as a foreign terrorist organization have not changed in such a manner as to warrant revocation of the designation and that the national security of the United States does not warrant a revocation of the designation, and that there is a sufficient factual basis to find that al-Qa'ida in Iraq, also known under the aliases listed above, uses or has used an additional alias, namely, Islamic State of Iraq.
Therefore, the Secretary of State hereby determines that the designation of the aforementioned organization as a foreign terrorist organization, pursuant to Section 219 of the INA (8 U.S.C. 1189), shall be maintained, and in addition, effective upon the date of publication in the
In the Matter of the Amendment of the Designation of al-Qa'ida in Iraq, aka Jam'at al Tawhid wa'al-Jihad, aka The Monotheism and Jihad Group, aka The al-Zarqawi Network, aka al-Tawhid, aka Tanzim Qa`idat al-Jihad fi Bilad al-Rafidayn, aka The Organization of al-Jihad's Base of Operations in Iraq, aka al-Qaida of Jihad in Iraq, aka al-Qaida in Iraq, aka al-Qaida in Mesopotamia, aka al-Qaida in the Land of the Two Rivers, aka al-Qaida of the Jihad in the Land of the Two Rivers, aka al-Qaida of Jihad Organization in the Land of the Two Rivers, aka al-Qaida Group of Jihad in Iraq, aka al-Qaida Group of Jihad in the Land of the Two Rivers, aka The Organization of Jihad's Base in the Country of the Two Rivers, aka The Organization Base of Jihad/Country of the Two Rivers, aka The Organization of al-Jihad's Base in the Land of the Two Rivers, aka The Organization Base of Jihad/Mesopotamia, aka The Organization of al-Jihad's Base of Operations in the Land of the Two Rivers, aka Tanzeem qa'idat al Jihad/Bildad al Raafidaini, as a Specially Designated Global Terrorist entity pursuant to Executive Order 13224.
Based upon a review of the Administrative Record assembled in this matter pursuant to Executive Order 13224 and in consultation with the Attorney General and the Secretary of the Treasury, the Secretary of State concludes that there is a sufficient factual basis to find that al-Qa'ida in Iraq, also known under the aliases listed above, uses or has used an additional alias, namely, Islamic State of Iraq.
Therefore, the Secretary of State hereby amends the 2004 designation of al-Qa'ida in Iraq as a Specially Designated Global Terrorist entity, pursuant to Executive Order 13224, to include the following new alias and other possible transliterations thereof: Islamic State of Iraq.
Notice and request for comments.
The Department of the Treasury, on behalf of itself and the United States Bureau of Engraving and Printing (BEP) and as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on an proposed extension to an information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). The BEP intends to request approval from the Office of Management and Budget (OMB) for extension of an existing information collection, titled “Owner's Affidavit of Partial Destruction of Mutilated Currency.” The current information collection is assigned OMB Number 1520-0001. The information collection requests owners of partially destroyed U.S. currency to complete a notarized affidavit (BEP Form 5283) for each redemption claim submitted when substantial portions of notes are missing.
Written comments should be received on or before March 26, 2012 to be assured of consideration.
Comments regarding this information collection should be addressed to the BEP Contact listed below and to the Treasury Department PRA Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue NW., Washington, DC 20220.
Copies of the submission(s) may be obtained by contacting Sonya White, Deputy Chief Counsel, United States Department of the Treasury, Bureau of Engraving and Printing, 14th and C Streets SW., Washington, DC 20228, by telephone at (202) 874-8184, or by email at
United States Mint, Department of the Treasury.
Notice.
The United States Mint is announcing pricing for the 2012 Infantry Soldier Silver Dollar and 2012 Star-Spangled Banner Commemorative Coin Program products. Prices for the silver products are in the table below. The attached grid is the pricing for products that include gold coins based on the market price of gold.
A $10 surcharge for each 2012 Infantry Soldier Silver Dollar sold is authorized to be paid to the National Infantry Foundation.
A $35 surcharge for each gold coin sold and a $10 surcharge for each silver dollar sold under the 2012 Star-Spangled Banner Commemorative Coin Program are authorized to be paid to the Maryland War of 1812 Bicentennial Commission.
B. B. Craig, Associate Director for Sales and Marketing; United States Mint; 801 9th Street NW., Washington, DC 20220; or call (202) 354-7500.
31 U.S.C. 5111, 5112 & 9701
Food and Nutrition Service (FNS), USDA.
Final rule.
This final rule updates the meal patterns and nutrition standards for the National School Lunch and School Breakfast Programs to align them with the Dietary Guidelines for Americans. This rule requires most schools to increase the availability of fruits, vegetables, whole grains, and fat-free and low-fat fluid milk in school meals; reduce the levels of sodium, saturated fat and
William Wagoner or Marisol Aldahondo-Aponte, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service at (703) 305-2590.
This final rule modifies several key proposed requirements to respond to commenter concerns and facilitate successful implementation of the requirements at the State and local levels. The rule phases in many of the changes to help ensure that all stakeholders—the children, the schools, and their supply chains—have time to adapt. Most notably, this final rule provides additional time for implementation of the breakfast requirements and modifies those requirements in a manner that reduces the estimated costs of breakfast changes, as compared to the proposed rule. As a result, the final rule is estimated to add $3.2 billion to school meal costs over 5 years, considerably less than the estimated cost of the proposed rule.
When considered in the context of other related provisions of the Healthy Hunger-Free Kids Act (HHFKA) of 2010, sufficient resources are expected to be available to school food authorities to cover the additional costs of updated meal offerings to meet the new standards.
Specifically, in addition to improving nutritional quality, the HHFKA mandated that beginning July 1, 2011, revenue streams for a la carte foods relative to their costs be at least as high as the revenue streams for Program meals compared to their costs. Consequently schools should receive over $1 billion a year in new food revenues beginning in School Year 2011-2012. That will help schools work toward implementing the new standards effective the following year,
In addition, the six-cent per lunch performance-based reimbursement increase included in the HHFKA will provide additional revenue beginning October 1, 2012. The Congressional Budget Office estimated about $1.5 billion over 5 years will be provided in performance-based funding.
The Richard B. Russell National School Lunch Act (NSLA) in Section 9(a)(4), 42 U.S.C. 1758(a)(4), requires that school meals reflect the latest “Dietary Guidelines for Americans” (Dietary Guidelines). In addition, section 201 of the Healthy, Hunger-Free Kids Act of 2010 (Pub. L. 111-296, HHFKA) amended Section 4(b) of the NSLA, 42 U.S.C. 1753(b), to require the Department of Agriculture (USDA) to issue regulations to update the meal patterns and nutrition standards for school lunches and breakfasts based on the recommendations issued by the Food and Nutrition Board of the National Research Council of the National Academies of Science, part of the Institute of Medicine (IOM). On January 13, 2011, USDA published a proposed rule in the
The proposed rule sought to increase the availability of fruits, vegetables, whole grains, and fat-free and low-fat fluid milk in the school menu; reduce the levels of sodium, saturated fat and
In summary, the January 2011 proposed rule sought to improve lunches and breakfasts by requiring schools to:
• Offer fruits and vegetables as two separate meal components;
• Offer fruit daily at breakfast and lunch;
• Offer vegetables daily at lunch, including specific vegetable subgroups weekly (dark green, orange, legumes, and other as defined in the 2005 Dietary Guidelines) and a limited quantity of starchy vegetables throughout the week;
• Offer whole grains: half of the grains would be whole grain-rich upon implementation of the rule and all grains would be whole-grain rich two years post implementation;
• Offer a daily meat/meat alternate at breakfast;
• Offer fluid milk that is fat-free (unflavored and flavored) and low-fat (unflavored only);
• Offer meals that meet specific calorie ranges for each age/grade group;
• Reduce the sodium content of meals gradually over a 10-year period through two intermediate sodium targets at two and four years post implementation;
• Prepare meals using food products or ingredients that contain zero grams of
• Require students to select a fruit or a vegetable as part of the reimbursable meal;
• Use a single food-based menu planning approach; and
• Use narrower age/grade groups for menu planning.
In addition, the proposed rule sought to improve school meals by requiring State agencies (SAs) to:
• Conduct a nutritional review of school lunches and breakfasts as part of the administrative review process;
• Determine compliance with the meal patterns and dietary specifications based on a review of menu and
• Review school lunches and breakfasts every 3 years, consistent with the HHFKA.
The 2010 Dietary Guidelines were released on January 31, 2011, after USDA published the proposed rule. On March 21, 2011 USDA issued a Notice in the
USDA received a total of 133,268 public comments during the comment period January 13-April 13, 2011. This total included several single submissions with thousands of comments. The types of comments received included 7,107 unique letters, 122,715 form letters from 159 mass mail campaigns, 3,353 non-germane letters, and 93 duplicates. Comments were analyzed using computer software that facilitated the identification of the key issues addressed by the commenters, as well as by USDA policy officials.
Although USDA considered all comments, the description and analysis in this final rule preamble focuses on the most frequent comments and those that influenced revisions to the proposed rule, and discusses modifications made to the proposed rule in response to public input. USDA greatly appreciates the public comments as they have been essential in developing a final rule that is expected to improve school meals in a sound and practical manner. To view all public comments on the proposed rule go to
This final rule does not update the Pre-K school meal patterns. These are under review and will be updated in a future rulemaking amending regulations implementing the USDA's Child and Adult Care Food Program. However, two provisions in this final rule, menu planning approach and fluid milk requirements, impact Pre-K meals as discussed later in this preamble.
USDA received comments from nutrition, health, and child advocates at the national, state and local levels; SAs that administer the school meal programs; school districts/boards; schools; school food service staff; superintendents, principals, and teachers; food manufacturers and distributors; food industry representatives; food service management companies; academia; nutritionists/dietitians; community organizations; parents and students; and many other interested groups and individuals. Overall, the comments provided were generally more supportive of the proposed rule than opposed. Comments from nutrition, health and child advocates; community organizations; academia; and parents favor the proposed rule, citing concern about the national childhood obesity problem and the increased likelihood of preventable diseases such as cardiovascular disease, high blood pressure, high cholesterol, stroke, and type 2 diabetes, all of which increase the cost of healthcare nationally. Many comments enthusiastically supported the increase in fruits, vegetables, whole grains, fat-free milk/low-fat milk in the school menus, and most other proposed changes designed to improve the nutritional quality of school meals.
Comments from SAs and school food authorities (SFAs), food industry, industry representatives, food service management companies, and others in the public and private sectors associated with the operation of the school meals programs also supported improving school meals but voiced strong concerns about some aspects of the proposed rule. The proposed food quantities, meat/meat alternate component at breakfast, weekly vegetable subgroup requirement at lunch, starchy vegetables limit, sodium reductions, whole grains requirement, and frequency of administrative review were the parts of the proposal that prompted most of their concerns. Program operators also raised concerns about the rule cost and implementation timeline, the impact of the proposed changes on student participation in the meal programs, and the potential for increased plate waste if meals are not acceptable to students. A number of commenters suggested that USDA conduct additional research or pilot test the proposed changes before implementation. All of the above concerns are more prevalent in the SBP than the NSLP. Schools that operate the SBP voiced significant concern about the estimated 50 cents increase in food and labor costs for each reimbursable breakfast in FY 2015, when all the requirements will be in place as stated in the proposed rule.
USDA has taken into consideration the different views expressed by commenters and seeks to be responsive to the concerns raised by stakeholders, especially those responsible for the management and day to day operation of the school meal programs. At the same time, we are mindful that the overweight and obesity epidemic affecting many children in America requires that all sectors of our society, including schools, help children make significant changes in their diet to improve their overall health and become productive adults. This final rule makes significant improvements to the NSLP and SBP to facilitate successful implementation of the requirements at the State and local levels. This final rule modifies several key proposed requirements to respond to commenter concerns as well as to address requirements of the Consolidated and Further Continuing Appropriations Act, 2012, Public Law 112-55. Most notably, this final rule provides additional time for implementation of the SBP requirements and modifies those requirements in a manner that reduces the estimated costs of breakfast changes, as compared to the proposed rule.
No changes to the SBP meal pattern take effect immediately upon publication of this final rule, except limiting flavor to fat-free milk, and requiring the service of only fat-free and low-fat milk (the latter is a statutory requirement codified in the NSLA in the HHFKA. See the discussion on “Milk” for further details). Furthermore, this rule introduces selected requirements into the SBP beginning SY 2013-2014 (the second year of implementation) to ease the estimated increase in breakfast costs and minimize impact on SBP operations. This approach is intended to enable program operators to concentrate on improving school lunches first and then focus on the breakfast changes. It also allows USDA to meet the statutory requirement to offer meals that reflect the Dietary Guidelines while being responsive to the concerns raised by program operators and other stakeholders. However, SFAs that are able to implement the new meal requirements concurrently in the SBP and NSLP are encouraged to do so with SA approval.
Section G of the Regulatory Impact Analysis discusses in greater detail the key differences between the proposed and final rules. Most of the estimated reduction in cost is due to the policy changes discussed above, including the
The following is a summary of the key public comments on the proposed rule and USDA's response. Public comments unrelated to the specific provisions of the rule (
However, a number of SFAs that currently use the Nutrient Standard Menu Planning (NSMP) and some school advocacy organizations, trade associations, food manufacturers, nutritionists, and other commenters suggested that NSMP be allowed as an option. SFAs that use NSMP claimed that they would still have to conduct a nutrient analysis to assess if they are meeting the new dietary specifications (calories, sodium, and saturated fat levels). Several commenters also claimed that NSMP schools are better able to control costs and that changing to FBMP would result in increased training costs. Some stated that eliminating NSMP decreases menu planning flexibility and menu variety.
In response to commenters' concerns about the estimated cost increase of the breakfast meal, this final rule gives those SBP program operators not currently using FBMP additional time to convert to this planning approach. SBP operators who are not currently using FBMP may continue with their current menu planning approach through SY 2012-2013. However, all SBP operators must use a single FBMP approach beginning SY 2013-2014 (the second year of implementation).
This final rule sets forth the new food-based meal patterns in 7 CFR 210.10 for lunches and § 220.8 for breakfasts. In order to accommodate the extended implementation for non-FBMP operators, this final rule creates a new § 220.23 that restates the nutrition standards and menu planning approaches that apply to all SBP operators in SY 2012-2013 only. Individual SFAs wishing to adopt the provisions of § 220.8 prior to the required implementation date specified therein may do so with the approval of the SA.
Accordingly, this final rule implements the proposed FBMP approach and codifies the proposal under § 210.10(a)(1)(i) of the regulatory text for the NSLP and § 220.8(a)(1) for the SBP. Menu planning approaches applicable to the SBP in SY 2012-2013 are under § 220.23(a)(5).
Several commenters argued the proposed meal patterns offer too much food, especially for young children. Some commenters recommended different age/grade groups, and an SA recommended that USDA retain the current age/grade groups. Some SFAs requested flexibility in the use of the age/grade groups (
In the SBP, the new age/grade groups take effect in SY 2013-2014 (the second year of implementation) to ease the burden on program operators. Until then, schools have the option to continue the age/grade group K-12 for planning breakfasts. Meals planned for the age/grade group K-12 must meet the nutrition standards developed for that
Accordingly, this final rule implements the proposed age/grade groups and codifies the proposal under § 210.10(c)(1) of the regulatory text for the NSLP and § 220.8(c)(1) for the SBP. Age/grade groups applicable to the SBP in SY 2012-2013 are under § 220.23(b) for nutrient standards menu planning, and under § 220.23(g) for food based menu planning.
However, many commenters opposed the proposed minimum required fruit quantities, and were particularly concerned about the fruit requirement for breakfast. A number of commenters stated that one cup of fruit at breakfast is too much for young children to consume at one time and will result in significant plate waste. Commenters also emphasized that students usually have very little time to eat breakfast at school and are concerned about the logistics of offering more food through alternative breakfast delivery methods such as Breakfast in the Classroom or on the bus. In general, these commenters argued that the proposal to double the amount of fruit at breakfast would contribute to higher costs for food, labor, equipment, and storage.
Regarding the types of fruit to be offered, several commenters supported the proposed limitation on added sugar in frozen fruit to limit the sources of discretionary calories. Some commenters recommended a prohibition on canned fruit in light syrup. Some program operators asked how to credit whole fresh fruit, and other commenters requested that the quantities in the meal patterns be changed from cups to servings to better account for fresh whole fruit. A few suggested that USDA adopt the HealthierUS School Challenge Gold Level requirement to serve fresh fruit twice per week with school meals.
This rule also gives program operators additional time to meet the required minimum fruit quantity increase in the SBP. Schools are required to offer 1 cup of fruit to all age/grade groups at breakfast beginning in SY 2014-2015 (the third year of implementation). This modification gives program operators more time to prepare for this important change to SBP menus. This rule also gives schools the option to offer vegetables in place of all or part of the required fruit component for menu flexibility and as a potential cost control measure. However, the first two cups per week of any such substitution must be from the dark green, red/orange, beans and peas (legumes) or other vegetable subgroups. These vegetable subgroups have been identified as being under-consumed by school children, according to the IOM report. Starchy vegetables may also be offered in substitution of fruits, once the first two cups offering of non-starchy vegetables have been met. This change to the proposed rule allows schools flexibility and the option to offer vegetables in place of fruit in accordance with the substitution protocol specified here.
Although schools must offer the full amount of the required food component, to minimize the potential for food waste in the NSLP and SBP, all students are allowed to select
Schools may meet the fruit component at lunch and breakfast by offering fruit that is fresh; canned in fruit juice, water, or light syrup; frozen without added sugar, or dried. Through its USDA Foods Programs, USDA offers schools a range of fresh, frozen without added sugar, dried and canned fruits. Although 100 percent juice can be offered, no more than half of the per-meal fruit component may be juice because it lacks dietary fiber and when consumed in excess can contribute extra calories. Schools should offer fresh fruit whenever possible.
Although some commenters suggested that the meal patterns set the fruit and other food requirements as servings rather than cups, this final rule does not adopt this suggestion, as a serving can be any amount of food determined by the menu planner and does not ensure uniformity. The 2005 Dietary Guidelines recommended amounts were given in cups and ounce equivalents (oz. eq.), which are standard defined amounts. Menu planners must continue to use the
Accordingly, this final rule implements the proposed fruit requirements, with modifications, and codifies them under § 210.10(c) for the NSLP and under § 220.8(c) for the SBP. Fruit requirements applicable to the SBP in SY 2012-2013 are under § 220.23(g).
State and local program operators, however, suggested that the vegetable subgroups be encouraged, rather than required (similar to the approach in the HealthierUS School Challenge guidelines). Some commenters stated that the vegetable subgroup requirements are too complicated. Others argued that children will not eat vegetables they are not familiar with and, therefore, the vegetable subgroup requirements will result in plate waste. Several commenters expressed concern that procuring some vegetable subgroups will be difficult and costly during specific times of the year in certain parts of the country. Others requested clarification regarding when beans should be considered a legume versus a meat alternate.
Many State and local program operators opposed the starchy vegetable limit. They argued that all vegetables should be encouraged, and that a limit on starchy vegetables will lead to a decrease in vegetable consumption, or a decrease in participation in the NSLP. Some suggested that the weekly limit only apply to potatoes. Several suggested that instead of limiting starchy vegetables, USDA should prohibit French fries or deep-fried preparation methods for all vegetables. Others requested gradual introduction of the weekly limit on starchy vegetables. Many program operators argued that white potatoes are inexpensive and would need to be replaced by more expensive fruits and vegetables, which will be a costly strain on school/state budgets. A few asked that starchy vegetables in mixed dishes, such as soups, not count towards the weekly starchy vegetable limit.
Nutrition and health advocates favored allowing non-starchy vegetables in place of fruit in the SBP. However, numerous commenters opposed disallowing starchy vegetables at breakfast. These commenters, including SFAs, food industry, and some parents, stated that starchy vegetables such as potatoes are affordable and popular, and complement many breakfast dishes. They also noted that potatoes supply potassium and other minerals, vitamins and fiber, and are naturally low in fat and sodium. Many stakeholders suggested that USDA ease the proposed restrictions on starchy vegetables.
Program operators also addressed the use of salad bars to meet the vegetable requirement. They stated that salad bars are good ways to serve a wide variety of fruits and vegetables and are an effective strategy to increase children's consumption of these food groups. However, they expressed concern that the proposed vegetable requirements increase challenges with or could discourage the use of self-serve salad bars. Schools asked how to determine if the required foods/portions are being served.
This final rule also allows schools the option to offer vegetables in place of all or part of the fruits requirement at breakfast beginning July 1, 2014. This is consistent with the Dietary Guidelines' recommendation to eat a variety of vegetables, especially dark green, red and orange vegetables, and beans and peas (legumes). This recommendation is applicable to the school meals because most vegetables and fruits are major contributors of nutrients that are under-consumed in the United States, including potassium and dietary fiber. Consumption of vegetables and fruits is also associated with reduced risk of many chronic diseases, including obesity, heart attack, stroke, and cancer. By providing more and a variety of vegetables in a nutrient-dense form (without added solid fats, sugars, refined starches, and sodium), schools help students obtain important nutrients and maintain a healthy weight.
This final rule does not implement the proposed rule limitation on servings of starchy vegetables offered as part of the lunch and breakfast reimbursable meals. This change is in response to commenters' concerns and the requirements of the FY 2012 Agriculture Appropriations Act, which specifically prevented USDA from adopting the IOM recommendation for setting maximum limits on starchy vegetables, providing for fiscal year 2012 USDA appropriations. Therefore, schools are allowed to offer any vegetable subgroup identified by the 2010 Dietary Guidelines to meet the vegetables component required for each reimbursable school meal. The vegetable quantities in the lunch meal pattern have been modified to reflect this change to the proposal while remaining consistent with the Dietary Guidelines' focus on increasing the intake of vegetables that are under-consumed.
Commenters asked USDA to clarify when to credit beans and peas (legumes) toward the vegetable component. Local menu planners decide how to incorporate beans and peas (legumes) into the school meal but may not offer one serving of beans and peas (legumes) to meet the requirements for both vegetables and meat/meat alternate components. Beans and peas (legumes) can be credited toward the vegetable component because they are excellent sources of dietary fiber and nutrients such as folate and potassium. These nutrients are often low in the diets of many Americans. Because of their high nutrient content and low cost, USDA encourages menu planners to include beans and peas (legumes) in the school menu regularly, either as a vegetable or as a meat alternate (as discussed later). Some foods commonly referred to as beans and peas (
In response to commenter questions about how to use salad bars to meet the new meal requirements, the Department would like to emphasize that schools may continue to use salad bars to enhance the variety of vegetables in the school menu. See FNS memorandum SP 02-2010—Revised (January 21, 2011) for more information on how salad bars can be used effectively as part of the reimbursable meals. The memorandum is available online at
As with the proposed rule, this final rule allows schools to use fresh, frozen, and canned products to meet the vegetable requirement. Schools have access to nutritious vegetable choices through USDA Foods. For example, USDA Foods offers only reduced sodium canned vegetables at no more than 140 mg of sodium per half-cup serving, which is in line with the 2010 Dietary Guidelines. Schools also have the option to order frozen vegetables with no added salt, including green beans, carrots, corn, peas, and sweet potatoes.
Accordingly, this final rule implements the proposed vegetables requirements, with modifications, and codifies them under § 210.10(c) for the NSLP and under § 220.8(c) for the SBP. Vegetable requirements applicable to the SBP in SY 2012-2013 are under § 220.23(g).
For the NSLP, the whole grain requirement takes effect upon implementation of the rule. Therefore, in SY 2012-2013 and SY 2013-2014 (the first two years of implementation) whole grain-rich products must make up half of all grain products offered to students. During this time only, refined-grain foods that are enriched may be included in the lunch menu. In SY 2014-2015 (the third year of implementation) and beyond, schools must offer only whole grain-rich products.
In the SBP, this final rule provides that schools must offer the weekly grain ranges and half of the grains as whole grain-rich beginning July 1, 2013 (SY 2013-2014, the second year of implementation). All grains offered in the SBP must be whole grain-rich in SY 2014-2015 (the third year of implementation) and beyond. Once schools meet the daily minimum grain quantity required (1 oz. eq. for all age-grade groups) for breakfast, they are allowed to offer a meat/meat alternate in place of grains. The meat/meat alternate can count toward the weekly grains requirement (credited as 1 oz. eq. of meat/meat alternate is equivalent to 1 oz. eq. of grain). This modification is intended to retain the flexibility that menu planners currently have to offer a combination of grains and meats/meat alternates at breakfast. This final rule eliminates the proposed provision to require a meat/meat alternate daily at breakfast due to the cost concerns voiced by program operators. (For more details, please see the discussion on meat/meat alternate.)
In this final rule, to receive credit in the meal programs, a whole grain-rich food must contain at least 51 percent whole grains and the remaining grain content of the product must be enriched. Because current labeling regulations and practices may limit the school's ability to determine the actual whole grain content of many grain products, schools would use both elements of the following criterion to identify whole grain-rich foods. This is consistent with USDA's approach on whole grains in the HealthierUS School Challenge (HealthierUS School Challenge Whole-Grains Resource,
a. The whole grains per serving (based on minimum serving sizes specified for grains/breads in FNS guidance) must be ≥ 8 grams. This may be determined from information provided on the product packaging or by the manufacturer, if available. Also, manufacturers currently may apply for a Child Nutrition Label for qualifying products to indicate the number of grains/breads servings that are whole grain-rich.
b. The product includes the following Food and Drug Administration (FDA)-approved whole grain health claim on its packaging. “Diets rich in whole grain foods and other plant foods and low in total fat, saturated fat and cholesterol may reduce the risk of heart disease and some cancers.”
c. Product ingredient listing lists whole grain first, specifically:
I.
II.
For foods prepared by the school food service, the recipe is used as the basis for a calculation to determine whether the total weight of whole grain ingredients exceeds the total weight of non-whole grain ingredients.
Several commenters noted that the industry standard of identity for whole grain products is 14.75 grams, while the IOM recommendations for school meals were based on 16 grams per serving. They suggested that schools be permitted to round up to the nearest quarter on gram equivalents in products. USDA will continue to provide SAs and schools guidance on this subject.
Many program operators expressed concern about the increased quantity of
Commenters also expressed concerns regarding the cost and availability of whole grain-rich products. USDA would like to emphasize that such products are now available through USDA Foods, including: brown rice; parboiled brown rice; rolled oats; whole-wheat flour; whole-grain kernel corn; and whole-grain rotini, spaghetti, and macaroni.
This final rule modifies the provision in the proposed rule to allow schools the option to meet part of the weekly grains requirement with grain-based desserts. USDA had proposed to allow up to one serving of grain-based dessert per day to allow additional opportunities to incorporate whole grains in the lunch menu. However, the 2010 Dietary Guidelines cite grain-based desserts as a significant source of solid fats and added sugars in Americans' diets. Therefore, this final rule reduces the number of allowable grain-based desserts from five to two per school week, as recommended by several commenters.
Accordingly, this final rule implements the proposed grains requirements and codifies them under § 210.10(c) for the NSLP and under § 220.8(c) for the SBP. Grains requirements applicable to the SBP in SY 2012-2013 are under § 220.23(g).
Many of the public comments focused on the proposed requirement to offer a meat/meat alternate daily at breakfast. Commenters who favored the proposal stated that a breakfast with a meat/meat alternate would provide greater satiety and help increase the protein intake for children that do not drink milk. They said the protein requirement would result in a more nutritious and balanced breakfast.
However, many school districts expressed concerns about offering a daily meat/meat alternate at breakfast. Several of these commenters argued that there is insufficient scientific support for the proposed meat/meat alternate requirement at breakfast. Others asserted that the daily requirement would be costly, create logistical difficulties and food safety challenges for schools, make it difficult for schools to achieve the new sodium limits, and discourage new breakfast modalities and school participation in the SBP. Some also noted that children in most schools have very limited time to eat breakfast and offering more food would result in increased plate waste.
A few commenters also expressed concerns about the availability of meat/meat alternate products that will enable schools to offer meals that meet the dietary specifications for sodium, saturated fat, and
Commenters had different opinions on whether or not the meal pattern should require that schools offer the specific protein food subgroups identified in the 2010 Dietary Guidelines. Those in favor stated that it would diversify students' diet and provide health benefits. Those against it said that requiring protein food subgroups would be cost-prohibitive to many schools and that it might not be feasible in certain geographical areas. They also indicated that many parents do not recognize nuts, seeds, and soy products as a substitute for meats.
Many commenters suggested that USDA allow schools to offer tofu as a meat/meat alternate. A range of stakeholders, including SAs, nutrition professionals, advocacy organizations, and individual commenters, expressed support for allowing commercially prepared tofu in the school meal programs. Some commenters suggested a methodology for crediting commercially prepared tofu as a meat alternate. The predominant approach suggested is that USDA credit tofu based on the grams of protein per ounce equivalent.
The Department is mindful of the cost and operational concerns expressed by schools and other stakeholders regarding the proposed meat/meat alternate component in the SBP. Previously, schools have had the flexibility to offer one serving each of grains and meat/meat alternate, or two servings of either one at breakfast. We have seen a steady increase in the number of schools participating in the SBP and more schools are offering breakfast in the classroom and other creative delivery options. Therefore, this final rule retains some flexibility offered by the grains and meat/meat alternate combination available in the current SBP meal pattern, and does not require a daily meat/meat alternate in the SBP. Menu planners may offer a meat/meat alternate in place of grains after the minimum daily grains requirement is met. For example, for the K-5 age-grade group, the SBP minimum daily grain requirement is 1 oz. eq. As long as at least 1 oz. eq. of grain is served as part of the breakfast menu, a meat/meat alternate may also be served. The meat/meat alternate may count toward meeting the weekly grains requirement. For crediting, 1 oz. eq. of meat/meat alternate is equivalent to 1 oz. eq. of grains.
As suggested by many stakeholders, this final rule gives schools the option to offer commercially prepared tofu as a meat alternate in the NSLP and SBP. This provision, which is codified under § 210.10(c)(2)(i)(D) of the regulatory text for the NSLP, allows schools to diversify the sources of protein available to students and better meet the dietary
USDA wishes to clarify that schools have the option to offer mature beans and dry peas (
Note that a serving of beans and peas must not be offered as a meat alternate and as a vegetable in the same meal. Some foods commonly referred to as beans and peas (
Schools also have discretion to offer ready-to-eat foods such as cold cuts, cheese, and yogurt to meet the meat/meat alternate component. Regardless of the protein foods offered, schools must plan all meals with the goal to meet the dietary specifications for sodium, saturated fat,
To support school meal improvements, USDA Foods has reduced the upper salt limit on mozzarella cheese from 2 percent to 1.6 percent. The current range for mozzarella is 130-175 mg of sodium per 28 g (1 oz.) serving. The sodium in processed and blended cheeses has been reduced from 450 milligrams or more, to between 200 and 300 milligrams per 28 g (1 oz.) serving, which is closer to the sodium levels found in natural cheeses.
USDA had solicited comments on whether schools should be required to offer the protein food subgroups recommended by the 2010 Dietary Guidelines. In response to program operators' concerns, this final rule does not require the three protein food subgroups recommended by the 2010 Dietary Guidelines. However, USDA is developing technical assistance to assist schools in offering students a variety of protein foods consistent with the Dietary Guidelines.
Accordingly, this final rule implements the proposed meat/meat alternate requirements, with modifications, and codifies them under § 210.10(c) for the NSLP and under § 220.8(c) for the SBP. Meat/meat alternate requirements applicable to the SBP in SY 2012-2013 are under § 220.23(g).
However, more commenters stated that flavored low-fat (1 percent or
Several commenters addressed the need to accommodate lactose-intolerant students and, others requested USDA to clarify milk variety in school meals. Also, although the proposed rule did not address meal variations for special dietary reasons, some commenters discussed the nutrition standards for non-dairy milk substitutes (
Schools already have the option to offer lactose-free and reduced-lactose milk (fat-free and/or low-fat) as part of the reimbursable meal. Offering lactose free/reduced milk (fat-free or low-fat) is allowed and counts toward the milk variety requirement established by in the NSLA by the HHFKA. For the NSLP and SBP, variety (at least two choices of milk) can be accomplished by offering different allowable fat levels (fat-free and low-fat) and milk flavor in fat-free milk only. For additional guidance on milk variety, please see the FNS memorandum SP-29-2011, Child Nutrition Reauthorization: Nutrition Requirements for Fluid Milk, dated April 14, 2011.)
The milk fat restriction established by this final rule also applies to the meals for children in the age group 3-4 even though the meal patterns for preschoolers will be updated later through a separate rule. The amendments made to the NSLA by the HHFKA require fat-free and low-fat milk for all school lunches. Although this change was not addressed in the proposed rule due to the timing of publication, USDA notified program operators of this requirement for all school meals through implementation memorandum SP-29-2011. The milk flavor restriction also extends to the milk offered to children in age group 3-4.
As requested by commenters, we wish to clarify that this final rule does not change the nutrition standards for the optional non-dairy drinks offered to students with special dietary needs (not disabilities) in place of milk at the request from parents. Those products (
We also wish to clarify that although fluid milk must be offered with every school meal, students may decline milk under OVS. In addition, water may not be offered in place of fluid milk as part of the reimbursable meal, but must be available in the food service area for students who wish to drink it in accordance with the NSLA as amended by the HHFKA and as discussed in the memorandum “SP-28-2011 Revised Child Nutrition Reauthorization 2010: Water Availability During National School Lunch Program Meal Service” dated July 12, 2011.
Accordingly, this final rule implements the proposed milk requirements and codifies them under § 210.10(d) for the NSLP and under § 220.8(d) for the SBP.
A few commenters said many students are not active enough and recommended lower calorie limits. Others, however, indicated that the proposed maximum calorie limits for school lunch might not be adequate to meet the dietary needs of taller and active students. Several commenters asserted that the calorie levels must be adequate enough to support the dietary needs of children who may not have access to sufficient food outside of school. There is also a concern among commenters about the ability of schools to adhere to the minimum and maximum calorie limits in the absence of a nutritional analysis.
In order to control calorie intake, some commenters suggested that USDA establish limits on added sugars for products such as such ready-to-eat cereal, grain-based desserts, and dairy-based desserts to improve the diet of school children. A few commenters, including an advocacy organization, suggested adopting the World Health Organization's recommendation to limit added sugars to “no more than 10 percent of a person's daily caloric intake.” An advocacy organization and a professional association of health nutrition directors suggested adopting the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) breakfast standard, which sets the added sugars limit to no more than 6 grams of sugars per ounce of dry cereal.
USDA acknowledges the school meal programs provide a nutrition safety net for food-insecure children and agrees with commenters that meals must supply adequate calories for growth and development. IOM considered this aspect of the Child Nutrition Program missions when developing the minimum and maximum calorie levels for various age/grade groups in the NSLP and SBP. They also took into consideration other opportunities for food intake available to most children outside of school, and the role of community organizations and other groups in supporting the nutritional needs of low-income children.
Although some commenters suggested setting a limit on added sugars for products such as flavored milk, USDA, consistent with the Institute of Medicine recommendations, does not believe a standard is necessary and would unnecessarily restrict menu planning flexibility. The required maximum calorie levels are expected to drive menu planners to select nutrient dense foods and ingredients to prepare meals, and avoid products that are high in fats and added sugars. In addition, this final rule includes other provisions that limit the sources of discretionary calories.
We also wish to clarify that the calorie standards established for each age/grade group are to be met on average over the course of the week. On any given school day, the calorie level for the meal may fall outside of the minimum and maximum levels as long as the average number of calories for the week is within the required range. This provides some flexibility to menu planners, but careful procurement, planning and preparation are important to stay within the calorie ranges.
Accordingly, this final rule implements the proposed calorie requirements and codifies them under § 210.10(f) for the NSLP and under § 220.8(f) for the SBP. Calorie requirements applicable to the SBP in SY 2012-2013 are under § 220.23(b) and § 220.23(c).
This final rule implements two new requirements set forth in the proposed rule and are anticipated to encourage
This rule does not require schools to meet a total fat standard under current regulations. The IOM report did not recommend that USDA require a total fat standard for school meals. The expectation is that the new meal requirements, including the dietary specifications for calories, saturated fat and
Accordingly, this final rule implements the proposed saturated requirement and codifies it under § 210.10(f) for the NSLP and under § 220.8(f) for the SBP.
However, many commenters were concerned that schools will likely struggle to meet the proposed intermediate sodium limits and fail to achieve the final target within 10 years. Some commenters asserted that the final targets for each age/grade group are lower than the therapeutic levels set for certain high-risk populations and should be increased. A school advocacy organization and school districts argued that it would be difficult for schools to prepare palatable foods at the proposed final sodium targets and, therefore, students would be motivated to drop from the meal program and pack lunches that contain high levels of sodium.
Some commenters expressed concerns about the potential use of sodium substitutes in schools. Commenters also indicated that industry needs time for product development and testing, and schools need time for procurement changes, menu development, sampling, and to foster student acceptance. Two food manufacturers commented that pizza manufacturers would need to complete research in order to secure low sodium cheeses that adhere to the proposed final target and that children like. Some argued that many schools rely on canned and processed food items and have limited access to reduced-sodium products.
School food service staff, a food manufacturer, a nutrition professional and individual commenters suggested that USDA lengthen the time to reach the intermediate sodium targets, and eliminate or reevaluate the final target. Commenters also encouraged USDA to monitor the progress of sodium reductions toward targets before moving forward. Some offered various alternatives to the proposed sodium limits and timeline (
Some school districts and a child nutrition consultant stated that there is not enough scientific data linking sodium consumption with health issues in children, and did not agree with claims that children's early exposure to sodium leads them to develop a preference for salty foods. A child nutrition consultant, a school nutrition directors' association, a professional association, and a school district argued that further studies should be conducted so that the final target levels are science-based.
Schools will be required to meet the first intermediate sodium target for each age/grade group (target 1 in the chart) in the NSLP and SBP no later than July 1, 2014 (SY 2014-2015), two years post implementation of this final rule. To meet target 1, schools are expected to modify menus and recipes promptly to reduce the sodium content of school lunches by approximately 5-10 percent from their baseline.
Prior to the implementation of the second (target 2) and final sodium targets contained in this rule, USDA will evaluate relevant studies on sodium intake and human health, as required by Section 743 of the FY 2012 Agriculture Appropriations Act. The scheduled compliance date for target 2 is no later than July 1, 2017 (SY 2017-2018), five years post implementation of the final rule for both meal programs. In response to stakeholders' concerns, and the provisions of Section 743 of the FY 2012 Agriculture Appropriations Act, this final rule lengthens the time to reach the second intermediate targets from 4 to 5 years. This modification to the sodium proposal is intended to allow food manufacturers additional time to reformulate products and schools more time to build student acceptance of lower sodium meals. To meet target 2, schools have to reduce sodium in school lunches by approximately 15-30 percent from their baseline. We
The scheduled compliance date for the final sodium targets is no later than July 1, 2022 (SY 2022-2023), ten years post implementation of the final rule. To meet the final sodium target, schools will have to reduce the sodium content of the meals by approximately 25-50 percent from the school baseline. This will require innovation on the part of product manufacturers in the form of new technology and/or food products. As required by Section 743 of the FY 2012 Agriculture Appropriations Act, USDA will certify that it has evaluated relevant data on sodium intake and human health prior to requiring compliance with the second and final sodium targets.
Meeting the final sodium targets will enable schools to offer meals that reflect the 2010 Dietary Guidelines' recommendation to limit sodium intake to less than 2,300 mg per day. Nearly all schools have to reduce the sodium content of school meals to meet final sodium targets, but the extent of the needed reduction varies by school/district as sodium limits for school meals do not currently exist. The following chart illustrates the sodium reduction in school meals:
USDA is committed to helping program operators reduce sodium in school menus. USDA's Team Nutrition and the National School Food Service Management Institute have developed guidance for reducing sodium. USDA also continues to make low-sodium USDA Foods available to schools. For example, USDA offers only reduced sodium canned beans and vegetables at no more than 140 mg per half-cup serving, including spaghetti sauce, salsa, and tomato paste. Canned whole kernel corn, whole tomatoes, and diced tomatoes are being offered with no added salt. Frozen vegetables, including green beans, carrots, corn, peas, and sweet potatoes are available with no added salt. USDA has also reduced the upper salt limit on mozzarella cheese (current range is 130-175 mg of sodium per 1 oz. serving) and chicken fajita strips (220 mg per 2 oz serving).
Accordingly, this final rule implements the proposed sodium limits, with modifications, and codifies them under § 210.10(f) for the NSLP and under § 220.8(f) for the SBP.
However, State and local program operators expressed concern about the requirement to conduct administrative reviews every 3 years. Several commenters stated that SAs have limited time and resources to conduct more frequent administrative reviews and provide technical assistance to all SFAs. In addition, school districts, SAs, trade associations, advocacy organizations and others opposed removing responsibility to conduct a nutrient analysis from the SFAs, believing this change limit the SFAs' ability to assess their own efforts to reduce sodium and saturated fat, and comply with the calorie ranges. Other commenters also opposed the requirement for a weighted nutrient analysis because it would not identify issues in menu planning or reflect what students actually consume. Several commenters requested that a tool be developed for SAs to identify issues and help implement the new meal requirements for schools.
This rule requires SAs to conduct the nutrient analysis of school lunches and breakfasts as part of the administrative review, but does not limit SFA discretion to conduct a nutrient analysis of the school meals to determine if they are in line with the dietary specifications. We understand that many SFAs currently have the ability to conduct a nutrient analysis.
USDA is mindful of SA concerns about increased administrative burden. In response to concerns about the requirement to conduct a nutrient analysis of school meals using menus for a two-week period, this final rule reduces the time period to one-week, which is the current requirement. This modification to the proposed rule is expected to lessen the information collection burden on SAs without affecting their ability to assess the nutritional integrity of the meals offered and the general quality of the food service operation.
Accordingly, this final rule implements the proposed monitoring requirements, with modifications, and codifies them under § 210.18(c), § 210.18(g)(2), § 210.18(i)(3), § 210.18(m), and § 210.19(c) for the NSLP and under § 220.8(h), § 220.8(i), and § 220.8(j) for the SBP.
This requirement is intended to restrict synthetic
Accordingly, this final rule implements the proposed
However, many commenters expressed concerns about potential food waste and overall costs associated with this proposed requirement. The commenters that opposed this proposal included a State department of education, school districts, school food service staff, school advocacy organizations, a teachers union, students, a child nutrition industry consultant, a food manufacturer, food service industry firms, nutrition professionals, and individuals. Generally, these commenters argued the proposed requirement that a reimbursable meal include a fruit or a vegetable would result in increased plate waste and increased cost by requiring students to choose a food they do not intend to eat. School food service staff also argued that indirect costs such as more frequent trash collection would increase if the students throw away more food. These commenters asserted that this proposed requirement would negate the purpose of OVS.
Commenters asked USDA to clarify the minimum amount of fruit or vegetable that a student must take for a reimbursable meal. Many commenters suggested that USDA allows students to select less than the full fruit or vegetable component under OVS. Suggestions included a minimum of
However, in response to the commenters' concerns about potential food waste and cost increases, this final rule allows students to take
This rule continues the current OVS practice under FBMP to allow students to decline up to two food components at lunch (preferred OVS option presented in the IOM report). Some commenters suggested that USDA implement the second OVS option identified in the IOM report to allow
In the SBP, OVS applies to food items rather than food components because of the flexibility to substitute meats/meat alternates for grains (once the daily grain requirement is met). In SBP, schools must offer fruit, milk, and grains daily. On multiple days per week, schools will need to offer more than the minimum daily grains requirement of 1 oz. eq. per day to meet the weekly grain requirement. To accomplish this, schools will need to offer at least three or four food items on the breakfast menu. When a school offers four food items at breakfast, students may decline one food item. If only three food items are offered, students must take all the food items to preserve the nutritional integrity of the breakfast. More details about OVS will be provided in guidance.
Schools that offer salad bars must follow the OVS requirements. To ensure that students actually take the minimum required portion size from a salad bar, foods may be pre-portioned to allow staff to quickly identify if the student has a reimbursable meal under OVS. If not pre-portioning, then the cashier must be trained to judge accurately the quantities of self-serve items on student trays, to determine if the food item can count toward a reimbursable meal. For more information, see FNS memorandum SP 02-2010—Revised, dated January 21, 2011.
Accordingly, this final rule implements the proposed requirements, with modifications, and codifies them under § 210.10(e) for the NSLP and under § 220.8(e) for the SBP. The OVS requirements applicable to the SBP in SY 2012-2013 are under § 220.23(e)(2) and § 220.23(g)(4).
• State agencies must review school lunches and breakfasts every three years during scheduled administrative reviews to monitor compliance with the meal requirements (meal patterns and dietary specifications for calories, saturated fat, sodium and
• State agencies must conduct a weighted nutrient analysis for the schools selected for an administrative review to monitor compliance with the specifications for calories, saturated fat, and sodium. The analysis must cover menu and production records for a two-week meal period.
• State agencies must take immediate fiscal action if a required food component is not offered.
• For repeat violations of the vegetable subgroup and milk requirements, State agencies must take fiscal action if technical assistance and corrective action have not resolved these violations.
• For repeat violations of the food quantity and whole grain requirements, and the dietary specifications (calorie, sodium, saturated fat and
However, numerous commenters said that this proposal would not simplify monitoring because it increases the frequency of the review cycle and the meal review period, and requires SAs to conduct a nutrient analysis for the SFAs to determine compliance with the dietary specifications. Some commenters argued that SFAs would still have to conduct their own nutrient analysis to plan meals that meet the calorie, saturated fat, and sodium restrictions. They expressed concern that many food-based SFAs do not have the specialized tools to ensure compliance with the dietary specifications, and that SAs do not have enough time or resources to provide technical assistance to all SFAs.
Although some commenters supported establishing a 3-year review cycle, most commenters opposed increasing the frequency of the administrative reviews. Those in favor of the proposal (health and nutrition advocates and providers) stated that it would increase opportunities to provide technical assistance to the SFAs and result in improved meals. Those opposed included school districts, food service management companies, school food service staff, a school advocacy organization, State departments of education, and nutrition professionals. These commenters argued that retaining the 5-year review cycle would give SAs more time to provide training and technical assistance to the SFAs. They indicated that SAs would not have the staff to handle the increased workload of a 3-year review cycle and, therefore, the quality of the reviews could suffer.
Regarding the proposal to review menu and production records for a two-week meal period, most commenters expressed opposition. These commenters, including State and local operators, school food service staff, school advocacy organizations, professional associations, trade associations, and other groups argued that reviewing menus for one week is a reasonable amount of time to determine if an SFA is meeting the meal requirements. Some commenters estimated that the increased paperwork of a 3-year review cycle and a 2-week review of menus would triple the cost of completing the administrative review.
There was a mixed response to the proposal to include breakfast in the administrative reviews. Commenters that agreed school breakfasts should be included argued that these meals often contain less nutrient-dense foods than lunch. A similar number of commenters opposed the proposal because of cost concerns. The latter group stated that the reviews should only include lunch to offset the increased time and effort involved in conducting reviews every 3 years rather than every 5 years.
There were few and mixed opinions about the use of fiscal action. School food service staff argued that fiscal penalties are counterproductive and create an adversarial relationship between the SA and the SFA. They recommended that more emphasis be placed on providing technical assistance, not fiscal action. Other commenters favored increasing accountability to improve meal quality.
Commenters offered some suggestions regarding monitoring procedures, including that SAs monitoring report be made available on-line to the public. Another suggested that SAs target schools with prior non-compliance rather that assess a broad sample of schools.
In addition to observing the serving line and the meals counted at point of service during the administrative review, the SAs must conduct a nutrient analysis to ensure that the average levels of calories, saturated fat, and sodium in the meals offered over the school week are within the values specified in this final rule. However, in response to commenters' concerns, this final rule requires SAs to review menu and production records for one week only within the review period, instead of the two weeks stated in the proposed rule. This modification reduces the information collection burden for SAs. USDA is reviewing potential alternative approaches to nutrient analysis and will provide further guidance to SAs.
This final rule changes the administrative review cycle from 5 to 3 years in accordance with the NSLA, as amended by § 207 of the HHFKA. This change takes effect in SY 2013-2014, after the current 5-year review cycle ends. More frequent monitoring is intended to increase opportunities for the SAs to provide guidance and technical assistance to the SFAs during implementation of the new meal requirements. USDA is aware of program operators' concerns regarding increased monitoring and will provide technical assistance resources and guidance to SAs to facilitate transition to the 3-year review cycle.
This final rule also makes several improvements to the SBP to bring those meals closer to the recommendations of the Dietary Guidelines. Therefore, and in accordance with the NSLA as amended by the HHFKA, beginning SY 2013-2014, SAs must monitor breakfasts under the administrative review. However, because the new meal requirements (other than limiting types of milk) are being implemented gradually in the SBP, part of the compliance assessment must be based on prior nutrition standards (which are now in § 220.23) until new requirements in the SBP regulations at § 220.8 take effect. The requirement to conduct a nutrient analysis of breakfast menu records for one-week period begins July 1, 2013 (SY 2013-2014).
SAs must continue to use technical assistance and corrective action as the primary strategies to help schools comply with the meal requirements. However, this final rule gives SAs the ability to use fiscal action to enforce compliance with specific meal requirements. As currently done, SAs must apply immediate fiscal action if the meals offered are completely missing one of the required food components. SAs must also take fiscal action for repeated violations of the vegetable subgroup and milk type requirements when technical assistance efforts and required corrective action have not resolved these violations. However, SAs have discretion to take fiscal action for repeated violations of the food quantity and whole grain requirements, and for repeated violations of the dietary specifications (calories, saturated fat, sodium and
A commenter suggested public disclosure of the administrative review findings. The NSLA, as amended by the HHFKA, requires schools to post review final findings and make findings available to the public. Also, the NSLA requires local education agencies to report on the school nutrition environment to USDA and to the public, including information on food safety inspections, local wellness policies, school meal program participation, and nutritional quality of program meals. These statutory requirements will be implemented through a separate rule.
Accordingly, this final rule implements the proposed monitoring requirements, with the modification discussed above, and codifies them under § 210.18(a), § 210.18(c), § 210.18(g) and § 210.18(m) for the NSLP and under § 220.8(h) and § 220.8(j) for the SBP.
Accordingly, this final rule implements the proposed requirement and codifies it under § 210.10(a)(2) for the NSLP, and under § 220.8(h) and § 220.8(j) for the SBP.
• Disallow the crediting of any snack-type fruit or vegetable products (such as fruit strips and fruit drops), regardless of their nutrient content, toward the fruits component or the vegetables component.
• Require that all fruits and vegetables (and their concentrates, purees, and pastes) be credited based on volume as served with two exceptions: (1) Dried whole fruit and dried whole fruit pieces would be credited for twice the volume served; and (2) leafy salad greens would be credited for half the volume served.
Many commenters opposed the proposal that all fruits and vegetables (and their concentrates, purees, and pastes) be credited based on volume as served. These commenters included school districts, school advocacy organizations, trade associations, food manufacturers, a food service management company, a State department of education and others. They expressed concern over the potential cost increase due to product reformulation and reduced product acceptability. Many commenters recommended that USDA keep the current practice to credit tomato paste and puree based on their whole-food equivalency using the percent natural tomato soluble solids in paste and puree.
As a result of Section 743 of the FY 2012 Agriculture Appropriations Act, this final rule does not adopt the proposed crediting change for tomato paste and puree. USDA will credit tomato paste and puree as a calculated volume based on the whole food equivalency. Although this specific proposal was intended to promote consistency and improved nutrition by crediting all fruits and vegetables (and their concentrates, purees, and pastes) based on volume as served, this final rule must comply with the statutory provision.
Accordingly, this final rule disallows the crediting of any snack-type fruit or vegetable products, and continues the crediting of tomato paste and puree as a calculated volume under § 210.10(c)(2)(iii) of the regulatory text.
Accordingly, this final rule amends Appendix A to 7 CFR part 220 by removing Formulated Grain-Fruit Products in its entirety. It also makes a technical change to Appendix B to 7 CFR part 210 by removing the statement that affirms that Appendix B will be updated to exclude individual foods that have been determined to be exempted from the categories of Foods of Minimal Nutritional Value. Although USDA has published
Accordingly, this final rule implements the proposed change by removing the Formulated Grain-Fruit Products from Appendix A to 7 CFR part 220.
The following meal patterns must be implemented in SY 2012-2013 for the NSLP, and phased-in the SBP as specified in the footnotes and regulatory text.
The following chart provides a summary of the new requirements and the required implementation dates in the NSLP and SBP. Refer to the regulatory text for details.
With respect to resources for the changes, USDA estimates suggest that the common-sense revenue reforms for school food businesses included in the HHFKA will provide an additional $7.5 billion in non-Federal revenues over 5 years to the food service accounts of local school districts. This includes over $5.3 billion in additional revenue from a la carte foods, over $300 million in additional payments from paid lunches, and over $1.9 billion in additional revenue schools resulting from making school meals more competitive with a la carte foods.
Since the statute mandated that revenue streams from non-Program
The six-cent performance-based reimbursement increase included in the HHFKA will provide additional revenue beyond this amount. The Congressional Budget Office estimated about $1.5 billion over the same period in performance-based funding.
USDA will work with the SAs to facilitate transition to the new meal requirements. USDA and the National Food Service Management Institute are developing technical assistance resources and training to help school foodservice staff improve menus, order appropriate foods to meet the new meal requirements, and control costs while maintaining quality. Resources and training materials being developed include identifying and purchasing whole grain-rich foods, lowering the sodium on menus, and meeting the new meal pattern requirements. Training will be available through a variety of methods including webinars and online learning modules.
We are updating the Child Nutrition Database and will reevaluate nutrient analysis software systems available from industry to assist SAs with monitoring calories, saturated fat, and sodium in the meals offered to students in grades K through 12 during the administrative review. The Child Nutrition Labeling Program is being updated to report whole grain-rich contributions to the grains component and to provide standardized claims for the vegetable subgroups consistent with the 2010 Dietary Guidelines.
In addition, the HHFKA provides USDA $50 million for each of the first two years of the new meal requirements for use in assisting SAs implement the new requirements. These funds, combined with increases in State Administrative Expense funding, should assist States and local operators in improving the quality of school meals provided to children.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated an “economically significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Pursuant to that review, it has been determined that this rule will have a significant impact on a substantial number of small entities.
The requirements established by this final rule will apply to school districts, which meet the definitions of “small governmental jurisdiction” and “small entity” in the Regulatory Flexibility Act. A Regulatory Flexibility Act analysis is included in the preamble.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, USDA generally must prepare a written statement, including a cost/benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires USDA to identify and consider a reasonable number of regulatory alternatives and adopt the most cost-effective or least burdensome alternative that achieves the objectives of the rule. The Regulatory Impact Analysis conducted by FNS in connection with this final rule includes a cost/benefit analysis and explains the options considered to implement the Dietary Guidelines in the school meal programs.
USDA sought the assistance of the Institute of Medicine of the National Academies to recommend changes to school meal standards in the least burdensome and costly manner consistent with the Dietary Guidelines. However, this final rule contains Federal mandates (under the regulatory provisions of Title II of the UMRA) that could result in costs to State, local, or tribal governments or to the private sector of $100 million or more in any one year. The HHFKA authorizes $50 million over two years to help State agencies implement the new meal pattern requirements. These funds, combined with increases in State Administrative Expense funding, should assist States and local operators in implementing the requirements established by this final rule. Local program operators need to optimize the use of USDA Foods and adopt other cost-savings strategies in various areas of the food service operation, including procurement, menu planning, and meal production to meet the rule requirements in a cost-effective manner.
The NSLP is listed in the Catalog of Federal Domestic Assistance under No. 10.555 and the SBP is listed under No. 10.553. For the reasons set forth in the final rule in 7 CFR part 3015, Subpart V and related Notice published at 48 FR 29114, June 24, 1983, these Programs are included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
Since the NSLP and SBP are State-administered, federally funded programs, FNS headquarters staff and regional offices have formal and informal discussions with State and local officials, including ITO representatives, on an ongoing basis regarding program requirements and operation. This structure allows FNS to receive regular input which contributes to the development of meaningful and feasible Program requirements.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132.
FNS staff received informal input from various stakeholders while participating in various State, regional, national, and professional conferences. Various departments of education, boards of education, departments of health, and other state and local organizations provided input during the public comment period. The School Nutrition Association, School Food Industry Roundtable, National Alliance for Nutrition and Activity, Association of State and Territorial Public Health Nutrition Directors, and the Center for Science in the Public Interest shared their views about changes to the school meals. Numerous stakeholders also provided input at the public meetings held by the Institute of Medicine in connection with its school meals study.
State Agencies and school food authorities want to provide the best possible school meals through the NSLP and SBP but are concerned about program costs, food waste, and increasing administrative burden. While FNS is aware of these concerns, section 9(a)(4) and section 9(f)(1) of the National School Lunch Act, 42 U.S.C. 1758(a)(4) and (f)(1), require that school meals reflect the most recent “Dietary Guidelines for Americans” and promote the intake of the food groups recommended by the Dietary Guidelines.
Although there is general support for the meal requirements established by this final rule, State and local program operators, food industry, and others associated with the operation of the school meals programs expressed concern about the proposed increase in food quantities, limit on starchy vegetables, sodium reductions, and implementation timeline, as well as the estimated meal costs. USDA has taken into consideration these concerns, and the requirements of the FY 2012 Agriculture Appropriations Act, and has modified several of the key meal requirements to be responsive to the concerns of State and local program operators. This final rule makes significant improvements to the school meals, while modifying the following provisions to facilitate successful implementation of the final rule at the State and local levels:
• Reduce the proposed grains quantities at lunch to reduce food cost,
• Remove the proposed starchy vegetable restrictions at lunch and breakfast as required by the FY 2012 Agriculture Appropriations Act,
• Allow students to select
• Allow more time to comply with the second intermediate sodium targets,
• Remove the daily meat/meat alternate requirement at breakfast to reduce food cost,
• Provide additional time for implementation of the breakfast requirements, and
• Reduce the administrative burden by requiring State agencies to conduct a nutrient analysis of school meals using one week of menus, rather than two weeks as proposed.
This final rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This final rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule would permit State or local agencies operating the National School Lunch and School Breakfast Programs to establish more rigorous nutrition requirements or additional requirements for school meals that are not inconsistent with the nutritional provisions of the rule. Such additional requirements would be permissible as part of an effort by a State or local agency to enhance the school meals and/or the school nutrition environment. To illustrate, State or local agencies would be permitted to establish more restrictive saturated fat and sodium limits. For these components, quantities are stated as maximums (
FNS has reviewed this final rule in accordance with USDA Regulation 4300-4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex or disability. After a careful review of the rule's intent and provisions, FNS has determined that this final rule is not expected to affect the participation of protected individuals in the NSLP and SBP. This final rule is intended to improve the nutritional quality of school meals and is not expected to limit program access or otherwise adversely impact the protected classes.
USDA is unaware of any current Tribal laws that could be in conflict with the requirements of this final rule. However, we have made special efforts to reach out to Tribal communities. We held five consultations (webinars and conference calls) with Indian Tribal Organizations in 2011 to discuss implementation of the Healthy, Hunger-Free Kids Act of 2010. These sessions provided the opportunity to address Tribal concerns related to school meals, clarify that traditional foods and local products can be incorporated into the school meals, and highlight the proposed changes to the meal pattern (increase in whole grains, fruits and vegetables) that are expected to support Tribal efforts to reduce diabetes in the community.
In addition, USDA will undertake, within 6 months after this final rule implementation, a series of Tribal consultation sessions to gain input by elected Tribal officials or their designees concerning the impact of this rule on Tribal governments, communities and individuals. These sessions will establish a baseline of consultation for future actions, should any be necessary, regarding this rule. Reports from these sessions for consultation will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA will respond in a timely and meaningful manner to all Tribal government requests for consultation concerning this final rule and will provide additional venues, such as webinars and teleconferences, to periodically host collaborative conversations with Tribal leaders and their representatives concerning ways to improve this rule in Indian country.
The Paperwork Reduction Act of 1995 (44 U.S.C. chap. 35; see 5 CFR 1320) requires the Office of Management and Budget (OMB) approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This rule contains information
The average burden per response and the annual burden hours are explained below and summarized in the chart which follows:
The Food and Nutrition Service is committed to complying with the E-Government Act, 2002 to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
As required for all rules that have been designated significant by the Office of Management and Budget, a Regulatory Impact Analysis (RIA) was developed for this final rule. The following is a summary of the RIA. The complete RIA appears later in this document.
Under Section 9(a)(4) and Section 9(f)(1) of the NSLA, schools that participate in the NSLP or SBP must offer lunches and breakfasts that are consistent with the goals of the most recent Dietary Guidelines for Americans. School lunches must provide one-third of the Recommended Dietary Allowances (RDA) for protein, calcium, iron, and vitamins A and C, on average over the course of a week; school breakfasts must satisfy one-fourth of the RDAs for the same nutrients. Current nutrition requirements for school lunches and breakfasts are based on the 1995 Dietary Guidelines and the 1989 RDAs. School lunches and breakfasts were not updated when the 2000 Dietary Guidelines were issued because those recommendations did not require significant changes to the school meal patterns. The 2005 and 2010 Dietary Guidelines, provide more prescriptive and specific nutrition guidance than earlier releases, and require significant changes to school meal requirements.
The United States Department of Agriculture's Food and Nutrition Service (FNS) contracted with the National Academies' Institute of Medicine (IOM) in 2008 to examine current NSLP and SBP nutrition requirements. IOM formed an expert committee tasked with comparing current school meal requirements to the 2005 Dietary Guidelines and to current Dietary Reference Intakes. The committee released its recommendations in late 2009 (IOM 2009).
In developing its recommendations, the IOM sought to address low intakes of fruits, vegetables, and whole grains among school-age children, and excessive intakes of sodium and discretionary calories from solid fats and added sugar. The final rule addresses these concerns by increasing the amount of fruit, the amount and the variety of vegetables, and the amount of whole grains offered each week to students who participate in the school meals programs. The rule also replaces higher fat fluid milk with low-fat and skim fluid milk in school meals. And it limits the levels of calories, sodium, and saturated fat in those meals.
A proposed rule, published by USDA in January 2011, made only small changes to the IOM recommendations. The final rule makes additional changes. These changes respond primarily to comments received from school and State officials, nutrition and child advocates, industry groups, parents of schoolchildren, and the general public. The most significant of these changes reduce the immediate and long-term costs of implementing the rule. Additional changes respond to recommendations contained in the 2010 Dietary Guidelines which were released after development of the proposed rule.
The linkage between poor diets and health problems such as childhood obesity are a matter of particular policy concern, given their significant social costs. One in every three children (31.7 percent) ages 2-19 is overweight or obese. Along with the effects on our children's health, childhood overweight and obesity imposes substantial economic costs, and the epidemic is associated with an estimated $3 billion in direct medical costs. Perhaps more significantly, obese children and adolescents are more likely to become obese as adults. In 2008, medical spending on adults that was attributed to obesity increased to an estimated $147 billion.
Because of the complexity of factors that contribute both to overall food consumption and to obesity, we are not able to define a level of disease or cost reduction that is attributable to the changes in meals expected to result from implementation of the rule. As the rule is projected to make substantial improvements in meals served to more than half of all school-aged children on an average school day, we judge that the likelihood is reasonable that the benefits of the rule exceed the costs, and that the final rule thus represents a cost-effective means of conforming NSLP and SBP regulations to the statutory requirements for school meals. Beyond these changes a number of qualitative benefits—including alignment between Federal program benefits and national nutrition policy, improved confidence of parents and families in the nutritional quality of school meals, and the contribution that improved school meals can make to the overall school nutrition environment, are expected from the rule.
This final rule will increase the amount of fruits, vegetables, and whole grains offered to participants in the NSLP and SBP. The final rule will also limit certain fats and reduce calories and sodium in school meals. Because some foods that meet these requirements are more expensive than foods served in the school meal programs today, the food cost component of preparing and serving school meals will increase.
The biggest contributors to this increase are the costs of serving more vegetables and more fruit, and replacing refined grains with whole grains. We estimate that food costs will increase by 2.5 cents per lunch served, as compared with prior requirements, on initial implementation of the final rule requirements. There is no immediate increase in breakfast food costs. Two years after implementation, when the fruit requirement is phased in for breakfast, and when all grains served at breakfast and lunch must be whole grain rich, we estimate that food costs will increase by 5 cents per lunch served and 14 cents per breakfast, as compared with prior requirements.
Compliance with this rule is also likely to increase labor costs. Serving
The estimated overall costs of compliance are summarized below. Increased food and labor costs will be incurred by the local and State agencies that control school food service accounts. The rule will also increase the administrative costs incurred by the State agencies responsible for reviewing school district compliance with the new meal patterns. The analysis estimates that total costs may increase by $3.2 billion from fiscal year (FY) 2012 through fiscal year (FY) 2016, or roughly 8 percent when the rule's food group requirements are fully implemented in FY 2015. The estimated increases in food and labor costs are equivalent to about 10 cents for each reimbursable school lunch and about 27 cents for each reimbursable breakfast in FY 2015.
One alternative to the final rule is to retain the proposed rule without change. The proposed rule closely followed IOM's recommendations. IOM developed its recommendations to encourage student consumption of foods recommended by the Dietary Guidelines in quantities designed to provide necessary nutrients without excess calories. The final rule still achieves that goal. Students will still be presented with choices from the food groups and vegetable subgroups recommended by the Dietary Guidelines. In that way, the final rule, like the proposed rule, will help children recognize and choose foods consistent with a healthy diet.
The most significant differences between the proposed and final rules are in the breakfast meal patterns, and those differences are largely a matter of timing. The final rule allows schools more time to phase-in key IOM recommendations on fruit and grains at breakfast. Once fully implemented, the most important difference between the final and proposed rule breakfast meal patterns is the elimination of a separate meat/meat alternate requirement. That change preserves current rules that allow the substitution of meat for grains at breakfast. It also responds to general public comments on cost, and on the need to preserve schools' flexibility to serve breakfast outside of a traditional cafeteria setting.
Even with these changes, and with the less significant changes to the proposed lunch standards, the final rule remains consistent with Dietary Guidelines recommendations. The added flexibility and reduced cost of the final rule relative to the proposed rule should increase schools' ability to comply with the new meal patterns. The final rule's less costly breakfast patterns will make it easier for schools to maintain or expand current breakfast programs, and may encourage other schools to adopt a breakfast program. These changes reduce the estimated 5-year cost of the final rule, relative to the proposed rule, by $2.9 billion.
A second alternative would implement the final rule's lunch meal pattern changes, but retain the proposed rule's breakfast meal pattern recommendations. Adopting all of the lunch provisions contained in the final rule, but retaining the proposed rule's breakfast provisions, would cost an estimated $5.9 billion over 5 years, or $2.7 billion more than the final rule. This alternative responds less effectively than the final rule to comments received by USDA from SFA and school administrators who expressed concerns about the cost of the proposed rule.
An alternative that implements the final rule's breakfast meal pattern changes, but retains the proposed rule's lunch meal pattern recommendations, would cost $3.4 billion over 5 years, about $180 million more than the final rule.
a.
b.
c.
C. Administrative Impact
The following abbreviations are used throughout this document:
The National School Lunch Program (NSLP) is available to over 50 million children each school day; an average of 31.7 million children per day ate a reimbursable lunch in fiscal year (FY) 2010. The School Breakfast Program (SBP) served an average of 11.7 million children daily. Schools that participate in the NSLP and SBP receive Federal reimbursement and USDA Foods (donated commodities) for lunches and breakfasts that meet program requirements. In exchange for this assistance schools serve meals at no cost or at reduced price to income-eligible children. Federal meal reimbursements and USDA Foods totaled $13.7 billion in FY 2010. FNS projections of the number of meals served and Federal program costs are summarized in Table 1.
In FY 2010, schools served 2.9 billion free NSLP lunches, 0.5 billion reduced price lunches, and 1.8 billion full price or “paid” lunches. Schools served 1.5 billion free breakfasts, 0.2 billion reduced price breakfasts, and 0.3 billion paid breakfasts. These figures do not include non-Federally reimbursable à la carte meals or other non-program foods.
Reimbursement rates for meals served under the current meal patterns are established by law and are adjusted annually for inflation.
Under
The United States Department of Agriculture's Food and Nutrition Service (FNS) contracted with the National Academies' Institute of Medicine (IOM) in 2008 to examine current NSLP and SBP nutrition requirements. IOM formed an expert committee tasked with comparing current school meal requirements to the 2005 Dietary Guidelines and to current Dietary Reference Intakes. The committee released its recommendations in late 2009 (IOM 2009). For a summary discussion of the scientific standards that guided the committee, and the development of recommended targets for micro- and macronutrients, see the preamble to the proposed rule.
The proposed rule, published in January 2011, made only minor changes to the IOM recommendations. This final rule makes more significant changes. These changes respond primarily to comments received from school and State officials, nutrition and child advocates, industry groups, parents of schoolchildren, and the general public. Additional changes respond to recommendations contained in the 2010 Dietary Guidelines which were released after development of the proposed rule. As a group, these changes reduce program costs relative to the proposed rule. The final rule is effective at the start of SY 2012-2013.
The final rule, like the proposed rule, makes the following changes to current NSLP and SBP meal standards:
• Increases the amount and variety of fruits, vegetables, and whole grains;
• Sets minimum and maximum levels of calories; and
• Increases the focus on reducing the amounts of saturated fat and sodium provided in school meals.
Table 3 summarizes the breakfast and lunch meal standards with all provisions fully phased in. The following provisions are subject to a phased implementation; all other provisions are effective July 1, 2012:
• Minimum breakfast fruit requirement is effective July 1, 2014,
• Minimum breakfast grain requirement is effective July 1, 2013,
• Intermediate sodium targets take effect on July 1, 2014 and July 1, 2017; the final sodium target (in Table 3) takes effect on July 1, 2022. (See Table 3a.)
Key differences between current meal pattern requirements and the final rule include:
• The number of fruit and vegetable servings offered to students over the course of a week would double at breakfast and would rise substantially at lunch.
• Schools would no longer be permitted to substitute between fruits and vegetables; each has its own requirement, ensuring that students are offered both fruits and vegetables every day.
• A minimum number of vegetable servings would be required from each of 5 vegetable subgroups. The proposed rule included tomatoes in the “other” vegetable category, consistent with the 2005 Dietary Guidelines. The 2010 Dietary Guidelines and this final rule create a new “red/orange” group that combines tomatoes with all of the vegetables in the previous “orange” category.
• Initially, half of grains offered to students would have to be whole grain rich. Two years after implementation, all grain products offered would have to be whole grain rich.
• Schools would be required to substitute low fat and fat free milk for higher fat content milk. This is a separate requirement of the Healthy Hunger-Free Kids Act of 2010 (HHFKA).
The final rule will more closely align school meal pattern requirements with the science-based recommendations of the 2005 and 2010 Dietary Guidelines. These changes will increase the amount of fruits, vegetables, and whole grains offered to participants in the NSLP and SBP.
The biggest contributors to this increase are the costs of serving more vegetables and more fruit, and replacing refined grains with whole grains. We estimate that food costs will increase by 2.5 cents per lunch served, as compared with prior requirements, on initial implementation of the final rule requirements. There is no immediate increase in breakfast food costs. Two years after implementation, when the fruit requirement is phased in for breakfast, and when all grains served at breakfast and lunch must be whole grain rich, we estimate that food costs will increase by 5 cents per lunch served and 14 cents per breakfast, as compared with prior requirements.
The rule sets sodium targets that will not be fully implemented in the five year period covered by this analysis. The rule's initial sodium targets take effect in SY 2014-2015. Our cost estimate does not include an explicit adjustment to meet those targets. The rule's initial sodium targets impose relatively modest reductions from levels observed in SY 2004-2005.
Compliance with this rule is likely to increase labor costs. Serving healthier school meals that are acceptable to students may require more on-site preparation, and less reliance on prepared foods. IOM did not estimate the overall required increase in labor costs to implement its recommended changes in meal requirements, but noted an analysis of data from some Minnesota school districts that showed that “healthier” meals had higher labor costs—principally because of increased use of on-site preparation.
For purposes of this impact analysis, labor costs are assumed to grow so that they maintain a constant ratio with food costs, consistent with findings from a national study of school lunch and breakfast meal costs (USDA 2008). In practice, this suggests that food and labor costs may increase by nearly equal amounts relative to current costs. Additional costs of compliance with the rule are discussed in subsections III C and III D of this analysis.
The estimated overall costs of compliance are summarized in Table 6. For purposes of this analysis, the rule is assumed to take effect on July 1, 2012, the start of school year (SY) 2012-2013. The additional requirement to offer only whole grain rich grain products is assumed to begin in SY 2014-2015.
The analysis estimates that total costs may increase by $3.2 billion through fiscal year (FY) 2016, or roughly 8 percent when the rule's food group requirements are fully implemented in FY 2015. The estimated increases in food and labor costs are equivalent
The primary benefit of this rule is to align the regulations with the requirements placed on schools under NSLA to ensure that meals are consistent with the goals of the most recent Dietary Guidelines and the Dietary Reference Intakes. In increasing access to children for such meals it will address key inconsistencies between the diets of school children and Dietary Guidelines by (1) Increasing servings of fruits and vegetables, (2) replacing refined-grain foods with whole-grain rich foods, and (3) replacing higher-fat dairy products with low-fat varieties. It also results in a number of additional benefits, including alignment between Federal program benefits and national nutrition policy, improved confidence by parents and families in the nutritional quality of school meals, and the contribution that improved school meals can make to the overall school nutrition environment.
The data sources that we use in this analysis, and their contribution to our food cost estimate, are summarized in Table 7.
We first totaled the value of food served by food group, as reported by schools in a national school nutrition assessment (SNDA-III), separately for lunch and breakfast. SNDA-III provides an estimate of the amount or quantity (in grams) of foods offered and served in the school lunch and breakfast programs for SY 2004-2005, based on a nationally representative sample of all participating public schools.
We estimated the cost per gram within each food category using detailed price and quantity information collected as part of another nationally representative sample of public schools in SY 2005-2006 (SLBCS-II). SLBCS-II provides information on the number of servings, the average gram weight per serving, total grams served, and the cost per serving for a comprehensive list of single foods and combination entrees. The SLBCS-II dataset provides sufficient information to estimate weighted average prices for the same broad food categories identified in SNDA-III.
We computed preliminary per-meal baseline costs for breakfast and lunch as the product of the food quantities reported in SNDA-III and the unit prices computed from the SLBCS-II. Because the food prices available for this analysis are from SY 2005-2006, we inflated our estimates by the actual and projected increase in prices since that time. We computed a set of food group inflators weighted by SNDA-III's relative mix of foods served by schools in SY 2004-2005. We used the Consumer Price Index (CPI-U) for the specific food items in our weighted group averages. Because the mix of foods served in school breakfasts differs from the mix served at lunch (the grain group, for example, is weighted more heavily with bread at lunch, and more heavily with cereal at breakfast) we computed two sets of food group inflators. Through August 2011, these inflators are constructed with actual CPI values.
Our proposed rule analysis computed 5-year historic averages through FY 2009. Price inflation for most major food groups in the two years since FY 2009 was lower than inflation in the 5 years ending in September 2009. For our final rule cost analysis we use a 7-year average to project future prices. This 7-year average adds the most recent 2 years of price data to the 5 years used in the proposed rule methodology. We use a 7-year average, retaining all of the 5 years used in the proposed rule methodology, to avoid giving too much weight to the reduction in price inflation observed during the most recent two years, a period of weak economic growth and consumer demand. Use of a 5-year average ending in FY 2011 would produce a lower cost estimate than the one presented here.
Food group inflation factors are summarized in Table 8.
The value of USDA Foods and the value of cash in lieu of such food donations enters into both our baseline and final rule cost estimates; we treat them as food “costs” in both estimates. This is the same approach used in the SLBCS-II to estimate the cost of preparing and serving school meals.
We assume in the analysis that the types of commodities offered to schools in future years may satisfy the food group requirements of the final rule as effectively as they do now. USDA's annual commodity purchase plan, developed by FNS in consultation with the Agricultural Marketing Service and the Farm Service Agency, is driven by school demand for particular products as well as by current prices, available funds, and the variable nature of agricultural surpluses.
In large measure, USDA Foods offered to schools are already well positioned to support the final rule's requirements. In recent years USDA has purchased relatively more canned foods and meats with reduced levels of fat, sodium, and sugar for school distribution. As products such as butter and shortening have been removed from the USDA Foods available to schools, new products such as whole grain pasta have been added. The rule is likely to move school demand towards a greater emphasis on these new offerings as schools introduce new menus. We assume that the contribution of USDA Foods to the cost of preparing school meals will not change after implementation of the rule.
The final step in constructing the baseline cost estimate was to multiply the per-meal cost estimates by the projected number of breakfasts and lunches served through our 5-year forecast period. Projected growth in the number of NSLP and SBP meals served in the absence of the rule is shown in Table 9.
Appendix A contains a set of tables that detail the calculations described above. The appendix tables present baseline and final rule food prices, food quantities, and meals served for each year from FY 2012 through FY 2016.
Note that our baseline per-meal cost estimates are averages. They reflect the variety of meals served across all NSLP and SBP participating schools. Some schools may be much closer than others to serving meals that meet the requirements of the rule, and the costs of compliance with the rule may therefore vary at the school level. The use of an average baseline cost estimate is appropriate, however, for estimating the aggregate cost of compliance across all schools.
Food Costs: Both our baseline and final rule food cost estimates rely on quantity and price information reported by schools in SNDA-III and SLBCS-II. These datasets contain detailed information on the quantity, variety, and unit prices of foods offered and served to students. Many of the records on these datasets describe single item foods that are served alone or are used in school recipes. But other records describe prepared or heat-and-serve entrees and other “combination foods.” As described above, we developed our baseline cost estimate by multiplying the gram weight of food items served by their cost per gram. For both single item foods and combination foods, prices and quantities are given in SLBCS-II and SNDA-III; our baseline cost estimate required limited processing of these datasets.
For the final rule cost estimate we continue to rely on prices per gram from SLBCS-II. But for quantities served we need to look to the requirements of the rule rather than to SNDA-III. We use the midpoints of the rule's food group requirements, expressed in servings rather than grams, to estimate the quantities of food that schools must purchase.
A basic assumption underlying the estimated cost of reimbursable meals under the final rule is that schools will continue to serve entrees that have proven popular with students on current school menus. Some of these entrees may be modified to replace a portion of their refined grains with whole grains, or starchy vegetables with other vegetable varieties. But, because pizza, burritos, and salad bars are successful items today, this impact analysis assumes that they will remain on school menus after implementation of the rule.
We separated combination foods from single food items in the SNDA-III and SLBCS-II datasets.
CN labels are affixed to many of the commercially prepared and processed foods purchased by school food authorities. The labels provide information on serving size and the number of cup and ounce equivalents of meat, meat alternate (such as cheese, eggs, legumes, or soy protein), grains, or vegetables that schools may credit toward current reimbursable meal pattern requirements.
CN labels are not available for some combination foods. However, foods with similar descriptions are often found in USDA's recipe database. The USDA recipe database provides the same type of food crediting information found on CN labels. We used the crediting information from the recipe database when CN labels were unavailable for sampled combination foods. FNS averaged the crediting information from labels and recipes when both sources returned data for particular combination foods.
CN labels and USDA recipes do not indicate whether creditable grain servings are refined or whole grains, nor do they specify what fraction of creditable vegetable servings are satisfied by dark green, deep yellow, starchy, or other varieties. But, USDA's
With these average food credits, and with unit prices from the SLBCS-II, we estimated a price per creditable ounce or cup equivalent of meat, grain, vegetable, and fruit for each combination food served. We then computed a weighted average price per food credit for combination foods as a whole, using the SLBCS-II's relative gram weight of each item. Finally, we multiplied the average price and food credit per gram by SNDA-III's total gram weight of combination foods served per reimbursable meal at the elementary, middle, and high school levels.
These steps generate a price, and a set of food group credits, contributed by combination foods to the average elementary, middle, and high school lunch and breakfast.
We subtracted the food credits accrued by combination foods from a set of school-level food group targets that represent the requirements of the rule after adjustment for student selection. Under the final rule, as under current program rules, students need not take all of the food items offered to them in order for their lunch or breakfast to qualify for Federal reimbursement. The difference between what is offered to students and what they select is the “take rate.” We computed average take rates by school level for milk, meat/meat alternate, fruit, vegetables, and grains from SNDA-III and applied those
These adjusted requirements are estimates of what elementary, middle, and high schools are likely to serve to students after implementation of the rule. The unadjusted requirements are what schools must offer to their students to be in compliance.
The take-rate adjusted requirements not satisfied by combination foods must be met with single offerings of meat or meat alternates, grains, fruit, vegetables, and milk. We computed weighted average prices for these broad food groups, and for dark green, deep yellow and other vegetable varieties, from the SLBCS-II dataset. We estimated the cost of whole grains relative to all grain and bread products with information contained in a food price database developed by USDA's Center for Nutrition Policy and Promotion. The prices per unit of these foods, multiplied by the balance of the rule's requirements that are not met by combination foods, give a total cost per meal for single item foods.
Note that this analytic framework uses an identical set of combination foods in the baseline and final rule cost estimates; we do not attempt to construct a reformulated set of combination foods to satisfy the rule's requirements for whole grains or dark green, yellow, and other vegetable varieties. The deficits in whole grains and in dark green and other vegetable varieties are satisfied entirely through increased offerings of single foods.
In practice, we expect manufacturers will offer reformulated versions of popular combination foods, and that schools will incorporate more whole grains and vegetable varieties in their entree recipes, so that students will not be expected to consume all of their whole grains and healthier vegetables as single foods. Implicit in this modeling approach is the assumption that the cost of serving more whole grains and vegetable varieties is similar, whether those foods are part of combination recipes or single items. The reasoning behind this assumption is that the likely effect of these reformulations on the cost of combination foods is uncertain. While some varieties of combination foods may help schools meet the new requirements at lower cost than single foods, others may be developed to provide greater student acceptance or ease of preparation than single items. These products could command higher prices. We thus assume that, on average, these two propensities combine to result in no net difference in the cost of whole grains and vegetable varieties as combination foods or as single items.
The final rule requires that no more than half of the fruit requirement be met with fruit juice because juice lacks fiber and may contribute to excessive calorie consumption. Schools may therefore find it necessary to offer more whole or cut-up fruit relative to fruit juice than they offer today. For this reason, this cost estimate assumes that the rule's
The methodology outlined above generates a set of per-meal cost estimates for breakfast and lunch under the requirements of the final rule. Like our baseline estimates, these are multiplied by weighted food group inflation factors, then multiplied by the projected number of meals served to generate projected aggregate costs through FY 2016.
More local food preparation and the use of a greater proportion of fresh foods and frozen vegetables could result in acceptable school meals with a lower sodium content. However, many food production kitchens are designed to heat and hold food items rather than to prepare them.
In addition to the implied need for new kitchen equipment, IOM notes that
If schools choose to prepare more meals on-site to meet new requirements, IOM sees the need for “greater managerial skill,” and “more skilled labor and/or training.”
An empirical analysis of data from 330 Minnesota school districts found that “healthier” meals had higher labor costs (for on-site preparation) but lower costs for processed foods (Wagner,
The effect of the final rule's meal requirements on the mix of food and labor costs is unclear. The rule requires schools to offer relatively more foods with higher unit costs than schools now offer to their students. The rule requires, for example, that schools replace many of their refined grain foods with whole grain substitutes. Because prices for whole grain products tend to exceed the prices of similar products made with refined grains, savings from eliminating a particular refined grain product is more than offset by the cost of its whole grain counterpart. Where pre-baked whole grain foods are simply substituted for pre-baked refined grain products, or whole grain flour is substituted for refined flour in existing recipes, the added cost of serving these new foods is strictly a food cost; labor costs may not increase at all.
But the rule includes other provisions that are likely to increase both food and labor costs. One is the requirement that schools offer more vegetables, from a variety of vegetable subgroups, than schools tend to offer today. Some schools may choose to meet those targets by offering vegetables in school salad bars. It is possible that the cost of installing and maintaining a salad bar could increase the overall cost of school meal production. Similarly, to meet the rule's calorie and fat requirements, schools may find it necessary to rely less on pre-purchased entrees, and hire more central kitchen or cafeteria workers to prepare healthier meals from scratch.
SLBCS-II data show that the cost of purchasing food accounted for 45.6 percent of SFA reported costs, on average. Labor accounted for an additional 44.5 percent of reported SFA costs. The remaining 9.9 percent of reported costs are attributable to “supplies, contract services, capital expenditures, indirect charges by the school district, etc.”
For purposes of this analysis, we assume that the relative contributions of food and labor to the total cost of preparing reimbursable school meals will remain fixed at the levels observed in the SLBCS-II. As a result, we estimate that labor costs increase on a nearly dollar for dollar basis with estimated food costs.
Table 11 provides a breakdown in the estimated food costs of the final rule by seven broad food categories. Consistent with the Dietary Guidelines, the rule will require schools to offer more fruits, vegetables, and whole grains than they currently offer today.
Changes in school demand also impact food producers. The figures in Table 11 indicate that the economic costs and benefits of the rule may not be shared equally by producer groups.
This analysis estimates that the total amount of grain products served will be less after implementation of the final rule than the amount served in our baseline (the per-meal amount taken by students according to SNDA-III). The effect of this net reduction in total grains served is reflected in figures for fiscal years 2012 to 2014, where the cost decrease for refined grains is substantially greater than the cost increase for whole grains. Throughout the estimation period, we assume that the unit cost of whole grains exceeds the unit cost of comparable refined grain products. Despite this, the net reduction in total grain products served through FY 2014 more than offsets the increased unit cost of whole grains. After FY 2014, when the rule's 100 percent whole grain rich requirement takes effect, the added cost of serving higher priced whole grain products about equals the savings from a reduction in grains products served.
IOM prepared its own food cost estimate for its recommended meal pattern changes. The methodology behind that estimate is discussed in
Perhaps the most significant difference is in the establishment of baselines. We used all records on the SNDA-III dataset to estimate baseline quantities of food served and student take rates. IOM limited its analysis to a set of six representative baseline menus selected from the SNDA-III dataset. IOM selected one 5-day lunch menu and one 5-day breakfast menu for each of three age-grade groups (elementary, middle, and high school) at random from a subset that excluded practices identified as uncommon.
An initial increase in administrative staff time for training and implementation is anticipated at the SFA level. Most of these impacts will be limited to the transition to the rule's new requirements as a result of:
• Training staff on the required components of reimbursable lunches and breakfasts;
• Changes to menus and portion size may necessitate revisions to menus and recipes currently used by SFAs;
• Changes to food purchasing and commodity food use (for example, increasing purchases for fresh fruit and vegetables, whole grain products, and lower sodium products), as well as changes in the methods of preparation of food, may be necessary for many schools;
• Changes in SFA financial structure, as SFAs may need to review finances in order to determine how to deal with any cost changes associated with the rule's requirements;
• Forging new relationships with local farmers to supply fresh produce appealing to the tastes of school children; and
• Modifying a la carte foods and other foods at school to maintain NSLP and SBP participation rates.
The rule also increases the scope of State Agency administrative reviews of SFAs by combining the current Coordinated Review Effort (CRE) with the requirements of School Meals Initiative (SMI) reviews, and increases their frequency to once every three years. SFAs that previously held separate CREs and SMIs may experience a decrease in burden, because they will undergo just one State Agency administrative review every three years, rather than two reviews (one CRE and one SMI) every five years.
FNS expects these additional burdens on SFA staff time and budgets may be offset by other benefits. For instance, new age/grade groupings would require school districts to offer different portion sizes instead of the same portions to all ages/grades. While this could be an additional burden to some SFAs, it could also reduce plate waste with use of more appropriate age/grade groupings. Moreover, it is expected that, as food service workers gain experience and become comfortable with the new requirements, administrative efforts associated with implementation may decline. Therefore, although an initial administrative impact is anticipated, FNS does not expect any significant long-term increase in administrative burden.
State Child Nutrition Agencies (SAs) play a key role in the implementation of school meal programs through their agreements and partnership with local SFAs. FNS anticipates that SAs that administer the school meals programs will work closely with SFAs to meet the requirements of the rule, and to remove barriers that may hinder compliance.
Many changes associated with implementation of the rule may result in an increased burden and additional required level of effort from States, such as:
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Although SAs may meet most of this demand by modifying current training and technical assistance efforts, we recognize that SAs may incur additional costs assisting SFAs with the transition to the final rule requirements. Our cost estimate provides for an additional 80 hours per SA in each of fiscal years 2012 and 2013, for a total of $0.2 million.
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SAs are currently required to conduct a CRE for each SFA once every 5 years; to conduct a nutrient analysis via SMI review for only those SFAs with food-based menu planning systems (although approximately 30 percent of these SFAs elect to conduct the nutrient analysis themselves); to review menus from a one-week period preceding the review date; and to review a breakfast meal only in the case of a follow-up CRE (which is only conducted in those cases in which problems are noted in the initial CRE). Total costs for each SA to complete a CRE include costs for staff labor, travel (including transportation, accommodations, and meals/incidental expenses), and possible printing costs for those SAs that provide CRE results to SFAs and FNS in hard copy rather than electronically.
Limited discussion with a small number of SA and FNS Regional Office officials suggest that a typical CRE or SMI review costs about $2,000 in 2010, with about half of that cost used for staff travel. Because travel is a largely fixed cost, SAs that previously conducted separate CRE and SMI reviews should realize some savings once SMIs are ended and the nutrient analysis is made part of the consolidated administrative review. That may help offset some of the cost of increased review frequency. A mid-sized State that now conducts 100 CRE reviews might incur annual
FNS will assist State Agencies by providing nutrition education, training, guidance, and technical assistance to facilitate their work with local school food professionals. This may include developing training standards, materials, updated measures for nutrition analysis, and revisions to the food buying guide.
While we expect a small increase in administrative burden for FNS under the rule because of the need to provide additional training and technical assistance to SAs, and to support their role in the administrative review process, this may largely be met by adapting existing efforts to the new requirements.
Changes in meal pattern requirements may require some SFAs to replace or purchase additional foodservice equipment. For example, some SFAs may need to replace fryers with ovens or steamers. In FY 2009, FNS solicited requests from SFAs for food service equipment grants. In response to its solicitation, FNS received a total of approximately $600 million in grant requests from SFAs. FNS awarded grants for such purposes totaling $125 million, using $100 million from funds provided by the 2009 American Recovery and Reinvestment Act (ARRA) and $25 million provided by the FY 2010 Agriculture Appropriations Act. The strong response to these grant programs indicates that schools could make productive use of an even greater investment in kitchen equipment. FNS awarded grants for such purposes totaling $125 million, using $100 million from funds provided by the 2009 American Recovery and Reinvestment Act (ARRA) and $25 million provided by the FY 2010 Agriculture Appropriations Act. However, much of that demand is associated with the routine need to replace equipment that is nearing the end of its useful life—a cost that is appropriately covered by USDA meal reimbursements and other sources of food service revenue. Although some schools may need additional upgrades to prepare meals that meet the new standards, we do not have the data necessary to assess that need or to estimate the associated cost. The $125 million in kitchen equipment grants distributed to schools through ARRA funds and the FY 2010 appropriation should have addressed much of the most pressing need. For these reasons, we do not include additional incremental equipment costs in our final rule estimate.
Our decision not to include an additional equipment cost in our proposed rule estimate generated comments from school officials and foodservice industry representatives. Those comments do not provide enough information on which to base a reliable estimate of the need for additional kitchen equipment as a result of the rule. The comments confirm that the need, where it exists, will vary significantly. Although we cannot reliably estimate the aggregate cost of meeting the need for additional equipment, we provide one estimate in the Section F below. Additional detail on the comments received from schools and the foodservice industry on this point is discussed in Section E.
As noted in the preamble to the final rule, USDA received more than 130,000 comments on the proposed rule. Comments on the content of the rule itself are discussed in the preamble. Other comments, addressed specifically to the proposed rule's impact analysis, are discussed here.
Many commenters expressed concern that the proposed rule was too costly. Schools and school districts would not be able to meet the proposed rule's meal standards without additional resources from Federal, State, or local governments. Some of these commenters noted that the cost of the proposed rule exceeded the 6 cents per lunch that would follow adoption of the new meal requirements. Many also noted that State and local governments were not in a position to provide school districts with additional funding. The result, some commenters warned, was that schools might stop serving reimbursable breakfasts under the SBP. Other commenters suggested that schools might even stop serving reimbursable NSLP lunches.
In response to these comments, the final rule modifies the proposed rule's meal pattern requirements. The effect of those modifications is to reduce the cost to schools and SFAs of implementing the rule. The modifications are discussed in detail in the rule, and summarized in Section II of this impact analysis. The modifications offer schools short term savings, relative to the proposed rule, by phasing in the rule's breakfast fruit and grain requirements. As a result of elimination of the proposed rule's breakfast meat requirement, the ongoing cost of the final rule after full implementation is also reduced.
Eliminating the proposed limit on the amount of starchy vegetables that schools may offer at lunch has little effect on the cost of the final rule relative to the proposed rule. Significant savings are realized through a reduction in the lunch pattern's grain requirement.
Part of the difference in the estimated 5-year costs of the proposed and final rules is due to lower projected food cost inflation and increased student participation since preparation of the proposed rule estimate. To facilitate comparison of the estimated costs of the proposed and final rules, we prepared two estimates of the final rule's provisions. The first uses the most current food inflation and student participation figures; this is our primary estimate summarized in Table 6. The second applies the same food inflation and student participation estimates that we used in our proposed rule cost estimate. That is, we use the projections of food inflation for years after FY 2009 that we developed for the proposed rule. (Our primary estimate for the final rule uses actual inflation through August 2011, and an updated projection for years after FY 2011.) The difference between this second estimate and the estimated cost of the proposed rule provides a more direct measure of the reduction in cost due to changes in the content of the proposed and final rules. Using that difference as our basis of comparison, the final rule reduces costs over the first 5 years by almost $3 billion, or 44 percent, as compared to the proposed rule.
In response to comments that an additional 6 cents per reimbursable lunch
Some commenters felt that the cost estimate presented in the proposed rule is understated. As we describe in Section III.B.2., our methodology relies primarily on data collected by USDA in SNDA-III to estimate the types and quantities of food offered by schools to program participants. SNDA-III collected information from schools in SY 2004-2005. We believe that our use of the data from that study, which is several years old, presents a greater risk of overstatement than understatement of the cost of the rule, holding other factors constant. The Dietary Guidelines Advisory Committee completed its 2005 report in August 2004, just as SY 2004-2005 began. The 2005 Dietary Guidelines policy document was released by the U.S. Department of Health and Human Services and USDA in January 2005. These documents were released as SNDA-III data was being collected—too soon for substantial changes prompted by the Dietary Guidelines to be reflected in meals offered to students.
In the years since data was collected for SNDA-III, schools and USDA have taken steps to bring school meals into closer compliance with the 2005 Dietary Guidelines. One example, cited by IOM, is the recent improvement in USDA Foods offered to schools through the USDA's commodity programs.
95% of schools districts are increasing offerings of whole grain products.
90.5% are increasing availability of fresh fruits/vegetables.
69% of districts are reducing or eliminating sodium in foods.
66% of districts are reducing or limiting added sugar.
51% of districts are increasing vegetarian options.
Our use of SNDA-III data means that our cost estimate does not reflect the most recent progress that schools have made toward adoption of Dietary Guidelines recommendations. At least one non-profit organization offered a comment on the proposed rule that concurs with that assessment. The commenter's primary point was that we overstate the savings from replacing more expensive high fat milk with less expensive low fat and fat free varieties; the commenter notes that many schools have already made that transition. We acknowledge that the potential savings of the final rule's milk provision may be overstated in our cost estimate. But that savings is potentially overstated for the same reason that the costs of meeting the rule's other food group requirements may be overstated. Schools have taken recent steps to adopt Dietary Guidelines recommendations on vegetables, fruit, whole grains, and sodium; schools' gradual adoption of Dietary Guidelines recommendations has not been limited to milk. Because our projected savings from the rule's milk provision is much lower than our projected cost of the rule's vegetable, fruit, and whole grains provisions, we believe that the risk that we overstate the cost of the rule exceeds the risk that we understate its cost.
Some commenters argued that we understated or did not adequately account for food inflation in our proposed rule cost estimate. Both our proposed and final rule cost estimates use food group specific inflation figures from the BLS to estimate current year prices (FY 2011 prices for the final rule analysis) from a set of baseline prices paid by schools in SY 2005-2006 (taken from the SLBCS-II). Both analyses use
In our final rule estimate we use a 7-year historic average of food inflation, by food group, to project prices. Our proposed rule estimate used a 5-year historic average to inflate food costs. In developing our final rule estimate we recognized that actual food price inflation since we prepared our proposed rule estimate was substantially lower than inflation over the previous 5 years. We adopted a 7-year historic average in our final rule cost projections in order to temper the effects of relatively low recent food price inflation. This yields a slightly higher estimate for our final rule than we would have gotten had we used an updated 5-year average projection factor. We do this to avoid the risk of understating the cost of the final rule.
Some commenters referred specifically to the higher costs of whole grains and vegetables emphasized by the rule. Others referred to the additional costs necessary to produce low-sodium school meals. We address these separately.
Our proposed rule and final rule cost estimates develop separate prices for each of the food subgroups with specific standards in the rule. For example, we estimate separate prices for whole grains and refined grains, for whole fruit and fruit juice, and for the dark green, red-orange, starchy, and “other” vegetable subgroups. In each of these cases, we estimate higher unit prices for the food subgroups emphasized by the rule. In some cases the price premium for these food subgroups may reflect lower supply in the school food marketplace. As industry increases the supply of these products in response to higher school demand, economies of scale may reduce their cost. Our cost estimates for both the proposed and final rules discount the possibility that prices for these foods may moderate over time. Again, we do this to avoid understating the cost of the rule.
The proposed rule's first intermediate sodium targets were designed to be met by schools through menu and recipe changes using currently available foods. The proposed rule's second intermediate target was designed to be met with the help of the food industry through changes that can be met with current food processing technology. The proposed rule analysis stated that “a reduction in sodium can be achieved at minimal cost, at least over the short term, when sodium requirements are only partially phased-in.” But the analysis also noted that meeting the rule's sodium targets would likely require replacing some packaged foods with foods prepared from scratch. To clarify, we recognize that meeting even the first sodium target has some cost; however, we do not estimate that as a separate component cost in either the proposed or final rule analyses. Much of the cost of meeting the proposed and final rules' short term sodium targets is contained in the cost of substituting prepared foods for foods cooked from scratch in schools or central kitchens. We account for this in our labor cost estimate. Our proposed and final rule analyses estimate that labor costs will rise nearly dollar for dollar with food costs. Over 5 years, the final rule estimates that labor costs will increase by $1.6 billion.
Our cost estimate extends only through FY 2016, two years before the final rule's second sodium target takes effect. As a result, we do not estimate the cost of meeting that target in SY 2017-2018, or the rule's final sodium target in SY 2022-2023. However, two provisions in the final rule respond to the challenge of meeting those targets. The first is a delay in the second intermediate target from 4 years post-implementation in the proposed rule to 5 years in the final rule. Lengthening the transition to lower sodium foods is intended, in part, to facilitate student acceptance. But it also gives industry more time to develop products that meet the rule's standards. To the extent that limited supply is a school cost issue, delaying the second intermediate target to 5 years should help reduce costs. The final rule also promises USDA review of schools' progress toward the rule's final sodium target, and allows for modifications to the sodium targets if necessary.
School officials and others commented that our proposed rule analysis understated the need for additional investment in food preparation and storage equipment as schools move away from a “heat and hold” foodservice model, to a model that relies more on on-site preparation. Our proposed rule analysis discussed the $125 million for school foodservice equipment provided to schools through the 2009 American Recovery and Reinvestment Act (ARRA) and the FY 2010 Agriculture Appropriations Act. Although the proposed rule analysis recognized that the demand for ARRA grants greatly exceeded the amount available, the analysis noted that much of that demand was driven by the routine need to replace aging equipment, costs that are appropriately covered by USDA meal reimbursements and other sources of food service revenue. The proposed rule analysis did not include an additional cost tied specifically to meeting the proposed rule meal patterns.
Some commenters offered estimates of the cost required to equip schools to produce more foods on site. These costs ranged from $4,000 per school for new equipment, to $500,000 or more for a full kitchen and serving site renovation (an estimate given by a foodservice industry representative). Commenters indicated that preparing more meals on-site would require investment in additional refrigeration equipment, microwaves and combination ovens, storage space, sinks, cutting boards and knives. What these comments cannot tell us is the percent of schools in need of new equipment, or the average per-school cost to meet that need. If fully half of all schools require investments averaging $5,000, then the total cost of new equipment necessary to prepare meals that meet the final rule standards would be $250 million. In the end, we do not have the data necessary to develop a reliable estimate of need in excess of the routine costs of replacing outdated equipment. In Section F we present an alternate cost estimate of the final rule under a different assumption about the need for additional investment in school kitchen equipment.
We made several simplifying assumptions in developing this cost estimate, reflecting gaps in available data and evidence. The most significant simplifications are discussed in Table 13. In most cases, our primary estimate reflects conservative assumptions, to avoid understating the costs of the rule. In this section, we describe the impact of several alternative assumptions on the estimate. The cost impacts of these alternatives are presented in Table 14.
As discussed in Table 13 above, we assumed that student participation would not change following the introduction of new meal requirements. Table 14 Sections A and B model the effects of altering that assumption.
Section A estimates the effect of a two percent increase in student participation on the cost of the rule relative to our primary cost estimate in Table 6. The dollar figures in Section A are the estimated cost to schools of preparing all meals served under our baseline assumption plus an additional 2 percent; the costs are not just limited to the incremental per-meal costs of the final rule. The additional meals are eligible for USDA reimbursement at the appropriate free, reduced price, or paid rates. However, the figures shown in
Table 14, Section B models the effect of a two percent decrease in participation upon implementation of the new rule. A reduction in participation reduces the cost of compliance with the rule, relative to the primary cost estimate in Table 6.
Our primary cost estimate assumes that the ratio of labor to food costs will remain fixed at the ratio observed in the SLBCS-II. Because we estimate a substantial increase in school food costs, our fixed labor to food cost assumption leads to a substantial increase in labor costs.
Some increase in labor costs is likely. Schools may find it necessary to prepare more meals on site to incorporate added vegetables and whole grains, and to reduce levels of sodium and fat. In addition, schools are likely to incur additional expense to train foodservice workers on the new meal requirements. However, commercial suppliers can be expected to develop and introduce healthier products for the school market ahead of implementation of a final rule; other products may be introduced after implementation. Schools may find that new training replaces some training planned in existing budgets.
At least one change reflected in the final rule is intended, in part, to help reduce labor costs relative to the proposed rule. The proposed rule included a separate meat standard for breakfast. The final rule drops that requirement, preserving schools' ability to serve meat as a substitute for grains at breakfast, but not requiring schools to offer meat. USDA expects that this change will support schools that serve breakfast in the classroom, a model that may require less labor cost than breakfast served in the school cafeteria.
Although we believe that the risk that we overstate the labor costs necessary to implement the rule is as likely as the risk that we understate labor costs, comments received from school officials and foodservice and nutrition professionals argue that our labor cost estimate may be too low. Commenters cited the need to hire new kitchen staff to prepare more meals from scratch as a factor that might change the current ratio of labor to food costs.
Our primary labor cost estimate relies on the observation that the ratio of labor to food costs was about the same at two points measured 13 years apart. We acknowledge the uncertainty inherent in the assumption that this ratio will remain unchanged even as substantial changes to the meal patterns are implemented by schools. And we therefore recognize the risk that the absolute dollar cost for labor in our final rule estimate is too low. If the cost of labor needed to implement the final rule exceeds the amount in our primary estimate by 10 percent, then the cost of the final rule would rise by $160 million.
The final rule estimate's food inflation methodology in described section III.B.1. That discussion notes that inflation over the most recent 2 years was lower for most food subgroups than inflation over the five years prior to those two. Our proposed rule estimate used a 5-year historic average to project food costs through FY 2016. In an effort to limit the effects of low recent inflation on our cost estimate, our final rule methodology uses a 7-year average to project food costs, rather than a revised 5-year estimate using only the most recent food inflation figures. This methodology retains all of the 5 years of relatively high food inflation that we used in our proposed rule methodology. We took this step to minimize the risk of understating the cost of the final rule. It is possible, nevertheless, that food inflation will accelerate in the short term. If food prices from fiscal years 2012 through 2016 match the rate of inflation over the five years that ended in FY 2009, then the cost of the final rule would increase by $240 million.
The cost estimate in our proposed rule (and the primary estimate in this final rule analysis) does not include an additional cost for new foodservice equipment. As we discuss in section E above, commenters offer much different estimates of the need for new kitchen equipment to prepare more foods on site as a means of complying with the rule. These figures do not allow us to estimate the dollar value of that need with any certainty. Table 14 includes a revised final rule estimate that assumes half of all schools will need to invest $5,000 in new kitchen equipment soon after implementation of the rule. We show half of this $250 million cost as an upfront expense, and the other half as an expense incurred in the first full year of implementation of the rule.
The key differences between our proposed rule and final rule cost estimates are discussed in previous sections of this RIA. Most of the estimated reduction in cost is due to policy changes, but a significant reduction is also realized by lower food inflation since preparation of the proposed rule cost estimate.
The proposed rule used actual food price inflation through the end of FY 2009. The final rule incorporates nearly two additional years of actual food price inflation. Inflation over the two years ending in August 2011 was lower for most of the food groups affected by the rule than it was in the five previous years. This reduces our baseline cost of food as well as our projection of food prices through the RIA's forecast period. The final rule also uses USDA projections of school meal participation contained in the 2012 President's budget. The proposed rule relied on data in the 2011 President's budget. The more recent participation projections slightly increase the cost of the breakfast meal patterns and reduce the cost of the lunch meal patterns relative to the proposed rule. The net effect of changes to our food inflation and student participation projections is a 5-year $730 million reduction in the cost of the final rule relative to the proposal.
The most significant reduction in the estimated cost of the final rule relative to the proposed rule is due to changes in the final rule's breakfast provisions. The final rule's phased implementation of the meal pattern's fruit and grain requirements, and elimination of the proposed rule's separate meat and meat alternate requirement reduce the cost of the rule by $2.7 billion over 5 years.
Additional savings are realized through a reduction in the final rule's lunch meal pattern grain requirement relative to the proposed rule. The final
We estimate that the new meal patterns may raise the average cost of producing and serving school lunches by about 5 cents on initial implementation of the rule. By FY 2015, when the food group components are fully phased in, the cost per lunch may be 10 cents higher than our baseline estimate; the cost per breakfast may be 27 cents higher than our baseline.
As we discuss in Section E, the Healthy, Hunger-Free Kids Act contains a comprehensive package of school meal reforms that call for an update to the meal patterns and provide for increased SFA revenue. USDA estimates that the $3.2 billion 5-year cost of this rule is more than offset by the impact of other HHFKA provisions on SFA revenues.
HHFKA's meal pattern and revenue raising provisions are linked directly in the performance-based increase in Federal financing for school lunches. Schools that successfully implement the final rule standards will receive an additional 6 cent reimbursement for each lunch served. The Congressional Budget Office estimates that an additional 6 cents per lunch would raise $1.5 billion for SFAs in the first 5 years after implementation of the rule.
HHFKA contains two additional provisions to ensure that Federal reimbursements are used as intended to provide quality meals to program participants. The first requires schools to gradually raise the per-meal revenue generated from paid lunches to an amount equal to the Federal reimbursement for free lunches. That revenue could come from student payments or State or local sources. The second requires that the revenue generated from non-program foods as a percent of food costs match the revenue to food cost ratio of program meals. USDA estimates that these two provisions will raise a combined $7.5 billion in the 5 years following their July 1, 2011 effective date.
Schools will face different costs to implement this final rule. Schools with menus that already emphasize fruits, a variety of vegetables, and whole grains may need to make fewer changes, and the costs of implementation in those schools may be lower than average. Because the per-meal costs of complying with the new requirements are much higher for breakfast than for lunch, the overall costs of implementation in schools that serve more school breakfasts relative to lunches may be higher than the costs faced by schools that do not serve breakfast.
Schools will also benefit differently from HHFKA's revenue provisions. Schools with relatively few students who pay full price for program meals stand to gain little from HHFKA's paid lunch provision. Similarly, schools that sell few à la carte items will realize little revenue from an increase in à la carte prices. At the same time, schools that serve mostly free and reduced-price students and sell little à la carte can rely on significant Federal funding for each SFA dollar spent to purchase and prepare school foods.
The experience of some schools suggests that substantial progress toward implementation of the rule can even be achieved with existing resources. USDA's HealthierUS Schools Challenge (HUSSC) recognizes elementary schools that meet voluntary school meal and physical activity standards. HUSSC school meal standards exceed NSLP requirements on several levels, including requirements for a variety of vegetables each week, including dark green and orange vegetables and legumes; a variety of whole fruits, and limits on fruit juice; and whole grain and low fat milk requirements. USDA has certified more than 2,161 HUSSC schools since 2004. HUSSC schools have demonstrated an ability to operate cost-effective school meals programs that emphasize many of the same foods required by the final rule. These schools receive no financial assistance from USDA beyond the meal reimbursements and USDA Foods available to other schools that participate in the Federal school lunch and breakfast programs. Like other service businesses, schools may need to consider changes to their operations to increase efficiency and meet the requirements of the rule. HUSSC schools have demonstrated an ability to operate cost-effective school meals programs that meet many of the final rule's requirements. These schools may offer models for others as implementation moves forward.
As noted in Table 13, the cost estimate in this analysis assumes no net change in student participation following introduction of the rule's new meal pattern requirements. This assumption reflects uncertainties in a number of areas, including how schools will reflect the new requirements in menus, the acceptance of those changes by students, and potential changes in
Any revision to the content of school meals or the method of preparation may have an effect on the acceptance of school meals. Concerns are often raised that students may react negatively to changes designed to improve nutrition. USDA launched the School Meals Initiative for Healthy Children (SMI) in 1995 to help schools improve the nutritional quality of NSLP and SBP meals. The SMI offers an opportunity to examine how students react to substantial changes in school meal patterns.
As a result of the SMI many school food service directors reported making changes in procurement and preparation practices (Abraham, 2002). For example, they reported increased purchases of low-fat/reduced-fat foods (81 percent) and fresh fruits and vegetables (75 percent). The majority reported no change in food waste. However, to the extent that there was change in the amount of food wasted, more respondents reported a reduction rather than an increase in food waste (with the exception of cooked vegetables). School food service directors report that the SMI has generally had a neutral-to-positive impact on program performance.
SNDA-III found that “[c]haracteristics of NSLP lunches offered, including percent of calories from fat, whether dessert or French fries were frequently offered, and average number of fresh fruits and vegetables offered per day, were generally not significantly associated with NSLP participation.”
There is also a strong and growing school nutrition effort and infrastructure already in place.
For example, Team Nutrition is an FNS initiative to support healthier meals through training and technical assistance for food service, nutrition education for children and their caregivers, and school and community support for healthy eating and physical activity. Similarly, in 2004 Congress required all school districts to establish local wellness policies. Through these policies schools have made changes to their school nutrition environments and improved the quality of foods offered to students. In the context of these initiatives, implementation of the final rule is only the next step in a process of ongoing local, State, and Federal efforts to promote children's nutrition and health.
FNS estimates that the average cost of preparing and serving school meals may increase by 8 percent by FY 2015. Some SFAs may raise student prices for paid meals (above the paid lunch revenue target required by HHFKA) to compensate for some of this increase in cost. We recognize that increased paid meal prices may reduce NSLP paid meal participation. Mathematica®, Inc. modeled the effect of paid meal prices on student participation as part of the SNDA-III study.
The model's predicted student participation rate was 54 percent in schools that charged $2.00 for an NSLP lunch, compared to 59 percent in schools that charged $1.50. The study also predicts lower breakfast participation in schools that charged higher prices. Predicted participation was 10.3 percent in schools that charged $0.70 for an SBP breakfast versus 7.2 percent in schools that charged $1.00. Since meals meeting the new requirements will be improved in nutritional content it is not clear how this factor would balance against the effects of higher meal prices. Although price changes may be a necessary option for some SFAs, FNS expects that efforts designed to maintain participation would be concurrently implemented.
As noted in the preamble to this final rule, NSLA requires that schools serving lunches and breakfasts under its program authority ensure that those meals are consistent with the goals of the most recent Dietary Guidelines for Americans and the Dietary Reference Intakes. The final rule, by updating program regulations consistent with Dietary Guidelines goals and aligning the regulations with the requirements placed on schools under the statute, will ensure that school meal nutrition requirements reflect current nutrition science, increase the availability of key food groups, better meet the nutritional needs of children, and foster healthy eating habits.
In so doing, it also provides a clear means of meeting the statutory requirements through a food-based meal pattern designed with the particular circumstances and challenges of school food service in mind, to ensure that it is feasible for school foodservice operators and does not jeopardize student and school participation in the meal programs. A related benefit of the rule is that it simplifies meal requirements to create a single, food-based approach to meal planning. This approach helps to simplify menu planning and monitoring, and streamline training and technical assistance needs.
Once implemented by schools, USDA projects that this rule will change the types and quantities of foods prepared, offered and served through the school meals programs (the sources of the costs described in this analysis). The rule is expected to result in (1) increased servings of fruits and vegetables, (2) replacement of refined-grain foods with whole-grain rich foods, and (3) replacement of higher-fat dairy products with low-fat varieties. As documented in the IOM recommendations, each of these changes corresponds to an inconsistency between the typical diets of school-aged children in the United States and the Dietary Guidelines/
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In addition, the rule would make significant changes to the level of sodium in school meals over time. Research suggests that modest population-wide reductions in dietary salt could substantially reduce cardiovascular events and medical costs.
The rule also makes substantial changes in the calorie targets for meals that are designed to promote healthful energy balance for the children served by these programs. For the first time, the rule sets maximum as well as minimum calorie targets, and creates a finer gradation of calorie levels by age. As a result, minimum calorie requirements for some groups are reduced by as much as 225 calories per lunch.
This approach is fully consistent with the recommendations of the Dietary Guidelines for Americans. Recognizing that the Dietary Guidelines apply to a total diet, rather than a specific meal or portion of an individual's consumption, the intention of the rule is to make changes to school meals nutrition requirements to promote diets more consistent with the
In response, the report notes improvements in food at schools as a critical strategy to prevent obesity, and related health risks, among children. Indeed, the Committee recommends “[i]mprov[ing] foods sold and served in schools, including school breakfast, lunch, and after-school meals and competitive foods so that they meet the recommendations of the IOM report on school meals (IOM, 2009) and the key findings of the 2010 DGAC. This includes all age groups of children, from preschool through high school.”
The linkage between poor diets and health problems such as childhood obesity are also a matter of particular policy concern, given their significant social costs. One in every three children (31.7 percent) ages 2-19 is overweight or obese.
Because of the complexity of factors that contribute both to overall food consumption and to obesity, we are not able to define a level of disease or cost reduction that is attributable to the changes in meals expected to result from implementation of the rule. As the rule is projected to make substantial improvements in meals served to more than half of all school-aged children on an average school day, we judge that the likelihood is reasonable that the benefits of the rule exceed the costs, and that the final rule thus represents a cost-effective means of conforming NSLP and SBP regulations to the statutory requirements for school meals.
There are other, corollary benefits to improvement in school meals that are worthy of note. The changes could increase confidence by parents and families in the nutritional quality of school meals, which may encourage more families to opt for them as a reliable source of nutritious food for their children. Improved school meals can reinforce school-based nutrition education and promotion efforts and contribute significantly to the overall effectiveness of the school nutrition environment in promoting healthful food and physical activity choices. Finally, the new requirements provide a clearer alignment between Federal program benefits and national nutrition policy, which can help to reinforce overall understanding of the linkages between diet and health.
The proposed rule closely followed the recommendations contained in the 2010 report of the IOM committee commissioned by USDA to propose changes to the NSLP and SBP meal patterns. Those recommendations were designed to reflect current nutrition science, the Dietary Guidelines, and IOM's Dietary Reference Intakes. The reforms contained in the proposed rule were well received by health and nutrition professionals, child advocates, academics, and parents. But, as summarized in the preamble to the final rule and in this analysis, school and SFA officials, other public sector officials, and the food industry expressed concern about the cost and feasibility of the proposed rule. The final rule reflects those concerns by scaling back the quantity of food contained in the proposal, especially at breakfast, eliminating the proposed rule's limitations on starchy vegetables, phasing in some provisions, and extending target dates for meeting the proposed rule's sodium standards. Those changes result in a significantly less costly final rule.
One alternative to the final rule is to retain the proposed rule without change. The proposed rule closely
The most significant differences between the proposed and final rules are in the breakfast meal patterns, and those differences are largely a matter of timing. The final rule allows schools more time to phase-in key IOM recommendations on fruit and grains at breakfast. Once fully implemented, the most important difference between the final and proposed rule breakfast meal patterns is the elimination of a separate meat/meat alternate requirement. That change preserves current rules that allow the substitution of meat for grains at breakfast. It also responds to general public comments on cost, and on the need to preserve schools' flexibility to serve breakfast outside of a traditional cafeteria setting.
Even with these changes, and with the less significant changes to the proposed lunch standards, the final rule remains consistent with Dietary Guidelines recommendations. The added flexibility and reduced cost of the final rule relative to the proposed rule should increase schools' ability to comply with the new meal patterns. The final rule's less costly breakfast patterns will make it easier for schools to maintain or expand current breakfast programs, and may encourage other schools to adopt a breakfast program.
Table 16 estimates the cost of the proposed rule using updated projections of student participation and food inflation. The estimated 5-year cost of the final rule, from Table 6, is $2.9 billion lower than this updated cost estimate of the proposed rule.
[Note that the estimate in Table 16 is about 10 percent lower than our cost estimate for the same set of provisions in the proposed rule Regulatory Impact Analysis. The difference between the two estimates reflects lower food inflation for most food groups since preparation of the proposed rule estimate.
From Alternative 1, above, we estimate that cost of the final rule is $2.9 billion lower than the cost of the proposed rule. Table 17 makes clear that most of this reduction is due to the final rule's breakfast meal pattern changes. Adopting all of the lunch provisions contained in the final rule,
This alternative highlights the relatively small difference in the cost of the proposed and final rule lunch provisions. The two key differences in the proposed and final rule lunch provisions have largely offsetting costs. The combined effect of moving tomatoes to the new red/orange vegetable subgroup, and the associated changes in the minimum cup requirements of the red/orange, starchy, and “other” vegetable subgroups have the effect of increasing the cost of the final rule relative to the proposed rule. The final rule's reduction in the lunch meal pattern's grain ounce equivalent requirement reduces the cost of the final rule relative to the proposed rule.
As required by OMB Circular A-4 (available at
The following tables detail the major steps in the computation of food cost estimates described in the main body of the impact analysis. The tables develop both a baseline food cost estimate and an estimate under the proposed rule.
Table A-1 contains total food and labor cost estimates for the baseline and under the proposed rule. The difference is summarized in the shaded panel at the bottom of the table. That difference is the estimated cost of the rule, as presented in Table 6 in section III.A.1.
Table A-2 shows each of the major inputs into our baseline cost estimate. The first 5 columns give the estimated food cost per school meal served. We inflate each of the meal components by historic and projected changes in food group specific prices to estimate per meal costs through FY 2016. Inflation factors, not shown in Table A-2, are weighted averages, computed from CPI-U data from the Bureau of Labor Statistics. The next set of columns contains projections of meals served through FY 2016. Total baseline costs, in the five rightmost columns of Table A-2, are the product of the estimated costs per meal and FNS projections of the number of meals served.
Our estimate of total cost under the proposed rule is developed in Table A-3. Table A-3 summarizes the steps that we took to estimate a per-meal food cost in FY 2012, the year in which the rule is expected to take effect, and shows our projection of total costs through FY 2016.
Table A-3 resembles Table A-2. It takes the weighted average prices per meal by meal component for FY 2012, projects them through FY 2016 using food group specific inflation factors, then multiplies those inflated per meal figures by FNS projections of meals served. The final estimated cost of meals served under the proposed rule is displayed in the last five columns of the table.
Final Regulatory Flexibility Analysis
Final rule: Nutrition Standards in the National School Lunch and School Breakfast Programs
[RIN 0584-AD59]
The RFA does not require that agencies necessarily minimize a rule's impact on small entities if there are significant legal, policy, factual, or other reasons for the rule's having such an impact. The RFA requires only that agencies determine, to the extent feasible, the rule's economic impact on small entities, explore regulatory alternatives for reducing any significant economic impact on a substantial number of such entities, and explain the reasons for their regulatory choices.
Section 103 of the Child Nutrition and WIC Reauthorization Act of 2004 inserted Section 9(a)(4) into the National School Lunch Act requiring the Secretary to promulgate rules revising nutrition requirements, based on the most recent
Under Section 9(a)(4) and Section 9(f)(1) of the NSLA, schools that participate in the NSLP or SBP must offer lunches and breakfasts that are consistent with the goals of the most recent
This rule directly regulates the 55 State education agencies and 2 State Departments of Agriculture (SAs) that operate the NSLP and SBP pursuant to agreements with USDA's Food and Nutrition Service (FNS); in turn, its provisions apply to entities that prepare and provide NSLP and SBP meals to students. While SAs are not small entities under the RFA as State populations exceed the 50,000 threshold for a small government jurisdiction, many of the service-providing institutions that work with them to implement the program do meet definitions of small entities:
• There are currently about 19,000 School Food Authorities (SFAs) participating in NSLP and SBP. More than 99 percent of these have fewer than 50,000 students.
• Nearly 102,000 schools and residential child care institutions participate in the NSLP. These include more than 90,000 public schools, 6,000 private schools, and about 5,000 residential child care institutions (RCCIs).
• Food service management companies (FSMCs) that prepare school meals or menus under contract to SFAs are affected indirectly by the proposed rule. Thirteen percent of public school SFAs contracted with FSMCs in school year (SY) 2004-2005.
USDA received comments on the Initial Regulatory Flexibility Analysis from school, SFA, and State education officials, advocacy organizations, and foodservice industry representatives. Most of those individuals were concerned with the cost of complying with the rule. Commenters pointed to the particular cost challenges faced by small schools with few foodservice employees, limited space for storage and on-site meal preparation, and the inability to purchase food in quantities necessary to get the lowest prices. These comments are discussed in the relevant sections below.
The analysis below covers only those organizations impacted by the final rule that were determined to be small entities.
USDA estimates that the proposed rule will raise the average cost of producing and serving school lunches by 5 cents on initial implementation. Phased implementation of the rule's breakfast meal patterns results in no first year costs. By FY 2015, when all of the lunch and breakfast food group requirements are in place, the cost per lunch will be about 10 cents higher than our baseline estimate; the cost per breakfast will be about 27 cents higher. Across all SFAs we estimate that the total cost of compliance will be $3.2 billion over five years. Although about 99 percent of SFAs enroll fewer than
With exceptions for individual schools, USDA expects that the cost of the rule will increase with meals served and will not be proportionately higher for small schools. Small schools that face average labor and food costs, and have menus typical of the average school are expected to incur per-meal costs comparable to larger schools. We expect that those costs will equal our estimated cost per meal multiplied by the number of meals served.
The most important factors that separate schools with higher than average per-meal costs from those with lower than average costs are not necessarily associated with the size of the SFA. For instance, schools with menus that already emphasize fruits, non-starchy vegetables, and whole grains will need to make fewer changes, and the costs of implementation in those schools should be lower than average. Also, because the per-meal cost of complying with the proposed requirements is much higher for breakfast than for lunch, the overall costs of implementation in schools that serve the most school breakfasts relative to lunches will be higher than the costs faced by schools that do not serve breakfast.
Some commenters note that small districts pay more for food than larger districts that benefit from volume discounts. Others suggest that prices for whole grain and reduced fat products are higher in small, rural communities. USDA's School Lunch and Breakfast Cost Study II (SLBCS) finds that the per-meal costs of producing school breakfasts are higher in small districts than in large districts.
SLBCS finds that at least some of the higher cost incurred by small districts to produce a school breakfast is due to the fixed costs of operating a small program. The study does not, however, address how much might be due to higher food prices. USDA's School Food Purchase Study (SFPS) found that large districts do tend to pay less than small districts for food on a per-unit basis.
USDA expects that SFAs will incur additional administrative costs for staff training during implementation of the new standards. The final rule replaces the Coordinated Review Effort (CRE) and School Meals Initiative (SMI) with a combined State Agency administrative review. The new review will be held once every 3 years, instead of once every 5 years. The increased frequency of the combined review will increase administrative costs for many SFAs. However, SFAs that previously had separate CREs and SMIs may experience a decrease in burden, because they will undergo just one CRE every three years, rather than two reviews (one CRE and one SMI) every five years.
USDA estimates that the proposed rule will result in an average 8.2 hour net increase in the annual reporting and recordkeeping burden for each of 7,000 SFAs. That increase appears to fall below the threshold for recognition as a significant impact for RFA purposes.
SFAs may need to purchase new equipment to prepare and serve meals that comply with the proposed standards. For example, some SFAs may need to replace fryers with ovens or steamers. In FY 2009, FNS solicited requests from SFAs for food service equipment grants, awarding $100 million in 2009 American Recovery and Reinvestment Act (ARRA) Equipment Grants and an additional $25 million in one-time funds included in the FY 2010 Appropriations Act. In response to their solicitations for these funds, State agencies received a total of approximately $600 million in grant requests from SFAs. The strong response to these grant programs indicates a substantial demand for investment in kitchen equipment.
We do not have the data necessary to measure the remaining unmet demand in smaller SFAs or in SFAs that did not receive grants. However, much of that demand is driven by the routine need to replace equipment that is nearing the end of its useful life—a cost that is appropriately covered by USDA meal reimbursements and other sources of food service revenue. For recipient SFAs, the grants temporarily freed some of those revenue sources for other priorities. In the absence of additional Congressional action, SFAs must again turn to those sources to meet their ongoing equipment needs.
Data from the SLBCS confirm that small SFAs spend more, on average, to produce a school breakfast than do large SFAs.
If the fixed costs of starting up a breakfast program were the only factors responsible for higher average breakfast costs in small school districts, then we would not expect the final rule to have a disproportionate effect on those districts. The main costs of the rule are variable rather than fixed: Schools must offer a greater variety and additional quantities of certain foods to each student. Some commenters point out, though, that the rule might require additional investment in food preparation and storage equipment, and that this imposes a special burden on smaller districts. But these costs are variable too; larger districts will spend more than smaller districts on similar types of equipment to handle a greater volume of food. Of course, kitchen equipment is not variable in the same sense as food. Small districts may have to purchase new equipment as a result of the final rule that they may not use
USDA considered all comments submitted by the public on the proposed rule. Comments from school district and school officials, foodservice industry professionals, and others concerned with the cost of the proposed rule were instrumental in guiding USDA's development of a less costly final rule. The modifications offer schools short term savings, relative to the proposed rule, by phasing in the rule's breakfast fruit and grain requirements. As a result of elimination of the proposed rule's breakfast meat requirement, the ongoing cost of the final rule after full implementation is also reduced. Eliminating the proposed limit on the amount of starchy vegetables that schools may offer at lunch has little effect on the cost of the final rule relative to the proposed rule. Significant savings are realized through a reduction in the lunch pattern's grain requirement.
USDA estimated that the proposed rule would increase the costs of preparing and serving school meals by $6.8 billion over 5 years. With the changes discussed above, the 5-year cost of the rule is reduced to $3.2 billion.
Although changes to the final rule significantly reduce the implementation costs faced by SFAs, the rule still requires a substantial investment by schools and school districts to improve the nutritional quality of school meals.
The Healthy, Hunger-Free Kids Act of 2010 (HHFKA), which is one of the 2 statutory directives behind this rulemaking, also contains provisions intended to reform school meal financing. USDA estimates that those provisions will increase SFA revenues enough to fully offset the cost of this rule.
HHFKA's meal pattern and revenue raising provisions are linked directly in the performance-based increase in Federal financing for school lunches. Schools and SFAs that successfully implement the final rule standards will receive an additional 6 cent reimbursement for each lunch served. The Congressional Budget Office estimates that an additional 6 cents per lunch would raise $1.5 billion for SFAs in the first 5 years after implementation of the rule.
HHFKA contains two additional provisions to ensure that Federal reimbursements are used as intended to provide quality meals to program participants. The first requires SFAs to gradually raise the per-meal revenue generated from paid lunches to an amount equal to the Federal reimbursement for free lunches. That revenue could come from student payments or State or local sources. The second requires that the revenue generated from non-program foods as a percent of food costs match the revenue to food cost ratio of program meals. USDA estimates that these two provisions will raise a combined $7.5 billion in the 5 years following their July 1, 2011 effective date.
SFAs will benefit differently from HHFKA's revenue provisions. SFAs with relatively few students who pay full price for program meals stand to gain little from HHFKA's paid lunch provision. Similarly, schools that sell few à la carte items will realize little revenue from an increase in à la carte prices. At the same time, schools that serve mostly free and reduced-price students and sell little à la carte can rely on significant Federal funding for each SFA dollar spent to purchase and prepare school foods.
The experience of some schools suggests that substantial progress toward implementation of the rule can even be achieved with existing resources. USDA's HealthierUS Schools Challenge (HUSSC) recognizes elementary schools that meet voluntary school meal and physical activity standards. HUSSC school meal standards exceed NSLP requirements on several levels, including requirements for a variety of vegetables each week, including dark green and orange vegetables and legumes; a variety of whole fruits, and limits on fruit juice; and whole grain and low fat milk requirements. USDA has certified more than 1,600 HUSSC schools since 2004. HUSSC schools have demonstrated an ability to operate cost-effective school meals programs that emphasize many of the same foods required by the final rule. These schools receive no financial assistance from USDA beyond the meal reimbursements and USDA Foods available to other schools that participate in the Federal school lunch and breakfast programs. Like other service businesses, schools may need to consider changes to their operations to increase efficiency and meet the requirements of the rule. HUSSC schools have demonstrated an ability to operate cost-effective school meals programs that meet many of the final rule's requirements. These schools may offer models for others as implementation moves forward.
We recognize that small SFAs, like others, will face substantial costs and potential challenges in implementing the proposed rule. These costs should not be significantly greater for small SFAs than for larger ones, as implementation costs are driven primarily by factors other than SFA size. Nevertheless, we do not discount the special challenges that may face some smaller SFAs. As a group, small SFAs may have less flexibility to adjust resources in response to immediate budgetary needs. Phased implementation of the final rule's breakfast provisions, which will reduce up-front costs of implementation, may be particularly valuable to small SFAs.
FSMCs are potentially indirectly affected by the proposed rule. FSMCs that provide school meals under contract to SFAs will need to alter those products to conform to the proposed changes in meal requirements. In addition, FSMCs may find new opportunities to work with SFAs that currently do not contract for food service assistance. Consistent with SBA guidance, which notes that “[t]he courts have held that the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates them”,
FNS is unaware of any such Federal rules or laws.
One alternative to the final rule is to retain the proposed rule without change. The proposed rule closely
The most significant differences between the proposed and final rules are in the breakfast meal patterns, and those differences are largely a matter of timing. The final rule allows schools more time to phase-in key IOM recommendations on fruit and grains at breakfast. Once fully implemented, the most important difference between the final and proposed rule breakfast meal patterns is the elimination of a separate meat/meat alternate requirement. That change preserves current rules that allow the substitution of meat for grains at breakfast. It also responds to general public comments on cost, and on the need to preserve schools' flexibility to serve breakfast outside of a traditional cafeteria setting.
Even with these changes, and with the less significant changes to the proposed lunch standards, the final rule remains consistent with
Implementing the proposed rule, without changes, would increase the cost to SFAs of implementing the new meal patterns, relative to the final rule, by an estimated $2.9 billion over 5 years.
Grant programs—education, Grant programs—health, Infants and children, Nutrition, Penalties, Reporting and recordkeeping requirements, School breakfast and lunch programs, Surplus agricultural commodities.
Grant programs—education, Grant programs—health, Infants and children, Nutrition, Reporting and recordkeeping requirements, School breakfast and lunch programs.
Accordingly, 7 CFR parts 210 and 220 are amended as follows:
42 U.S.C. 1751-1760, 1779.
The revisions and additions read as follows:
(a)
(i)
(ii)
(2)
(3)
(b)
(1)
(ii) Food products or ingredients used to prepare meals must contain zero grams of
(iii) The meal selected by each student must have the number of food components required for a reimbursable meal and include at least one fruit or vegetable.
(2)
(ii) Average saturated fat content of the meals offered to each age/grade group must be less than 10 percent of total calories; and
(iii) Average sodium content of the meals offered to each age/grade group must not exceed the maximum level specified in paragraph (f) of this section.
(c)
(1)
(2)
(i)
(A)
(B)
(C)
(D)
(E)
(F)
(ii)
(iii)
(A)
(B)
(C)
(D)
(E)
(iv)
(B)
(C)
(v)
(3)
(4)
(5)
(6)
(7)
(d)
(ii) All fluid milk served in the Program must be pasteurized fluid milk which meets State and local standards for such milk. All fluid milk must have vitamins A and D at levels specified by the Food and Drug Administration and must be consistent with State and local standards for such milk.
(2)
(i) If emergency conditions temporarily prevent a school that normally has a supply of fluid milk from obtaining delivery of such milk, the State agency may allow the school to serve meals during the emergency period with an alternate form of fluid milk or without fluid milk.
(ii) If a school is unable to obtain a supply of any type of fluid milk on a continuing basis, the State agency may approve the service of meals without fluid milk if the school uses an equivalent amount of canned milk or dry milk in the preparation of the meals. In Alaska, Hawaii, American Samoa, Guam, Puerto Rico, and the Virgin Islands, if a sufficient supply of fluid milk cannot be obtained, “fluid milk” includes reconstituted or recombined fluid milk, or as otherwise allowed by FNS through a written exception.
(3)
(4)
(e)
(f)
(2)
(3)
(4)
(g)
(h)
(2)
(i)
(2)
(ii)
(3)
(ii)
(4)
(j)
(k)
(2)
(l)
(2)
(m)
(2)
(i)
(ii)
(B) A medical authority or the student's parent or legal guardian must submit a written request for a fluid milk substitute identifying the medical or other special dietary need that restricts the student's diet.
(iii)
(3)
(4)
(n)
(o)
(1) “Eligible schools” means schools that:
(i) Operate school lunch programs under the Richard B. Russell National School Lunch Act; and
(ii) Sponsor afterschool care programs as defined in § 210.2.
(2) Afterschool snacks shall contain two different components from the following four:
(i) A serving of fluid milk as a beverage, or on cereal, or used in part for each purpose;
(ii) A serving of meat or meat alternate. Nuts and seeds and their butters listed in FNS guidance are nutritionally comparable to meat or other meat alternates based on available nutritional data. Acorns, chestnuts, and coconuts are excluded and shall not be used as meat alternates due to their low protein content. Nut or seed meals or flours shall not be used as a meat alternate except as allowed under appendix A of this part;
(iii) A serving of vegetable(s) or fruit(s) or full-strength vegetable or fruit juice, or an equivalent quantity of any combination of these foods. Juice may not be served when fluid milk is served as the only other component;
(iv) A serving of whole-grain or enriched bread; or an equivalent serving of a bread product, such as cornbread, biscuits, rolls, or muffins made with whole-grain or enriched meal or flour; or a serving of cooked whole-grain or enriched pasta or noodle products such as macaroni, or cereal grains such as enriched rice, bulgur, or enriched corn grits; or an equivalent quantity of any combination of these foods.
(3) Afterschool snacks served to infants ages birth through 11 months must meet the requirements in paragraph (o)(3)(iv) of this section. Foods offered as meal supplements must be of a texture and a consistency that are appropriate for the age of the infant being served. The foods must be served during a span of time consistent with the infant's eating habits. For those infants whose dietary needs are more individualized, exceptions to the meal pattern must be made in accordance with the requirements found in paragraph (m) of this section.
(i)
(ii)
(iii)
(iv)
(4) The minimum amounts of food components to be served as meal supplements follow. Select two different components from the four listed in the Supplements for Infants table (Juice may not be served when fluid milk is served as the only other component). A serving of bread/bread alternate must be made from whole-grain or enriched meal or flour. It is required only when the infant is developmentally ready to accept it.
(p)
(ii)
(iii)
(2)
(i) Provision of one-third of the Recommended Dietary Allowances (RDAs) for protein, calcium, iron, vitamin A, and vitamin C in the appropriate levels for the ages/grades (see paragraph (p)(3) of this section).
(ii) Provision of the lunchtime energy allowances (calories) in the appropriate levels (see paragraph (p)(3) of this section);
(iii) The following dietary recommendations:
(A) Eat a variety of foods;
(B) Limit total fat to 30 percent of total calories;
(C) Limit saturated fat to less than 10 percent of total calories;
(D) Choose a diet low in cholesterol;
(E) Choose a diet with plenty of grain products, vegetables, and fruits; and
(F) Choose a diet moderate in salt and sodium.
(iv) The following measures of compliance:
(A) Limit the percent of calories from total fat to 30 percent of the actual number of calories offered;
(B) Limit the percent of calories from saturated fat to less than 10 percent of the actual number of calories offered;
(C) Reduce sodium and cholesterol levels; and
(D) Increase the level of dietary fiber.
(v) Compliance with the nutrition standards and the appropriate nutrient and calorie levels is determined by the State agency in accordance with the procedures in paragraph (p)(10) of this section.
(3)
(4)
(i)
(ii)
(A)
(B)
(C)
(iii)
(iv)
(B)
(C)
(D)
(E)
(5)
(6)
(7)
(ii)
(iii)
(8)
(9)
(10)
(11)
(B)
(ii)
(iii)
(iv)
(v)
The revisions read as follows:
(a)
(b) * * *
(2) * * *
(ii)
(c)
(1)
(2)
(3)
(g) * * *
(2)
(i) For the day of the review, observe the serving line(s) to determine whether all food components and food quantities required under § 210.10, as applicable, and § 220.8 and § 220.23, as applicable, are offered.
(ii) For the day of the review, observe a significant number of the Program meals counted at the point of service for each type of serving line to determine whether the meals selected by the students contain the food components and food quantities required for a reimbursable meal under § 210.10, as applicable, and
(iii) Review menu and production records for a minimum of five operating days (specified by the State agency); such review must determine whether all food components and food quantities required under § 210.10, as applicable, and §§ 220.8 and 220.23, as applicable, of this chapter have been offered.
(iv) Conduct a weighted nutrient analysis of the meals for students in age/grade groups K and above to determine whether the meals offered meet the calorie, sodium, and saturated fat requirements in § 210.10 and §§ 220.8 and 220.23 of this chapter, as applicable. The State agency must conduct the nutrient analysis in accordance with the procedures established in § 210.10(i) of this part. Until instructed by the Secretary, a nutrient analysis for the meals offered to
(i) * * *
(3) * * *
(ii) For Performance Standard 2—10 percent or more of the total number of Program lunches or Program breakfasts observed in a school food authority are missing one or more of the food components required under parts 210 and 220.
(m)
(1)
(2)
(i) For food component violations cited under paragraph (g)(2) of this section, the State agency must take fiscal action and require the school food authority and/or school reviewed to take corrective action for the missing component. If a corrective action plan is in place, the State agency may limit fiscal action from the point corrective action occurs back through the beginning of the review period for errors identified under paragraph (g)(2) of this section.
(ii) For repeated violations involving vegetable subgroups and milk type cited under paragraph (g)(2) of this section, the State agency must take fiscal action provided that:
(A) Technical assistance has been given by the State agency;
(B) Corrective action has been previously required and monitored by the State agency; and
(C) The school food authority remains in noncompliance with the meal requirements established in parts 210 and 220 of this chapter.
(iii) For violations involving food quantities and whole grain-rich foods cited under paragraph (g)(2) of this section and for violations of calorie, saturated fat, sodium, and
(A) Technical assistance has been given by the State agency;
(B) Corrective action has been previously required and monitored by the State agency; and
(C) The school food authority remains in noncompliance with the meal requirements established in parts 210 and 220 of this chapter.
(c)
(1)
(6)
School food authorities and schools desiring information about the Program should contact their State educational agency or the appropriate FNS Regional Office at the address or telephone number listed on the FNS Web site (
(b) * * *
(3) Written petitions should be sent to the Chief, Nutrition Promotion and Technical Assistance Branch, Child Nutrition Division, FNS, USDA, 3101 Park Center Drive, Room 632, Alexandria, Virginia 22302. * * *
42 U.S.C. 1773, 1779.
The revisions and additions read as follows:
(a)
(1)
(2)
(3)
(b)
(1) On a daily basis:
(i) Meals offered to each age/grade group must include the food components and food quantities specified in the meal pattern in paragraph (c) of this section;
(ii) Food products or ingredients used to prepare meals must contain zero grams of
(iii) Meal selected by each student must have the number of food components required for a reimbursable meal and include at least one fruit or vegetable.
(2) Over a 5-day school week:
(i) Average calorie content of the meals offered to each age/grade group must be within the minimum and maximum calorie levels specified in paragraph (f) of this section;
(ii) Average saturated fat content of the meals offered to each age/grade group must be less than 10 percent of total calories as specified in paragraph (f) of this section;
(iii) Average sodium content of the meals offered to each age/grade group must not exceed the maximum level specified in paragraph (f) of this section;
(c)
(1)
(2)
(i)
(A)
(B)
(C)
(D)
(E)
(F)
(ii)
(iii)
(iv)
(B)
(3)
(d)
(e)
(f)
(2)
(3)
(4)
(g)
(h)
(2)
(i)
(j)
(k)
(l)
(2) [Reserved].
(m)
(n)
(o)
(i) Provision of one-fourth of the Recommended Dietary Allowances (RDA) for protein, calcium, iron, vitamin A and vitamin C in the appropriate levels (see paragraph (o)(2) of this section);
(ii) Provision of the breakfast energy allowances (calories) for children in the appropriate levels (see paragraph (o)(2) of this section);
(iii) The following dietary recommendations:
(A) Eat a variety of foods;
(B) Limit total fat to 30 percent of total calories;
(C) Limit saturated fat to less than 10 percent of total calories;
(D) Choose a diet low in cholesterol;
(E) Choose a diet with plenty of grain products, vegetables, and fruits; and
(F) Choose a diet moderate in salt and sodium.
(iv) The following measures of compliance:
(A) Limit the percent of calories from total fat to 30 percent of the actual number of calories offered;
(B) Limit the percent of calories from saturated fat to less than 10 percent of the actual number of calories offered;
(C) Reduce sodium and cholesterol levels; and
(D) Increase the level of dietary fiber.
(v) School food authorities must follow the traditional food-based menu planning approach to plan breakfasts for preschoolers and provide daily the food components and quantities specified in paragraph (o)(3) of this section.
(vi) Schools must keep production and menu records for the breakfasts they produce. These records must show how the breakfasts contribute to the required food components and food quantities every school day. In addition, these records must show how the breakfasts contribute to the nutrition standards in paragraph (o)(1) of this section and the appropriate calorie and nutrient levels in paragraph (o)(2) of this section over the school week. Schools or school food authorities must maintain records of the latest nutritional analysis of the school menus conducted by the State agency.
(2)
(3)
(A) A serving of fluid milk as a beverage or on cereal or used partly for both;
(B) A serving of fruit or vegetable or both, or full-strength fruit or vegetable juice; and
(C) Two servings from one of the following components or one serving from each component:
(
(
(ii)
(iii)
(iv)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(ii)
(iii)
(iv)
(A)
(B)
(
(
(C)
(
(
(
(v)
(f) * * *
(3) For the purposes of compliance with the meal requirements in § 220.8 and § 220.23, the State agency must follow the provisions specified in § 210.18(g)(2) of this chapter, as applicable.
(a)
(1) Provision of one-fourth of the Recommended Dietary Allowances (RDA) for protein, calcium, iron, vitamin A and vitamin C in the appropriate levels (see paragraphs (b), (c), (e)(1), or (h) of this section);
(2) Provision of the breakfast energy allowances (calories) for children in the appropriate levels (see paragraphs (b), (c), (e)(1), or (h) of this section);
(3) These applicable recommendations of the 1995 Dietary Guidelines for Americans:
(i) Eat a variety of foods;
(ii) Limit total fat to 30 percent of total calories;
(iii) Limit saturated fat to less than 10 percent of total calories;
(iv) Choose a diet low in cholesterol;
(v) Choose a diet with plenty of grain products, vegetables, and fruits; and
(vi) Choose a diet moderate in salt and sodium.
(4) These measures of compliance with the applicable recommendations of the 1995 Dietary Guidelines for Americans:
(i) Limit the percent of calories from total fat to 30 percent of the actual number of calories offered;
(ii) Limit the percent of calories from saturated fat to less than 10 percent of the actual number of calories offered;
(iii) Reduce sodium and cholesterol levels; and
(iv) Increase the level of dietary fiber.
(5) School food authorities have several ways to plan menus. The minimum levels of nutrients and calories that breakfasts must offer depends on the menu planning approach used and the age/grades served. The menu planning approaches are:
(i) Nutrient standard menu planning (see paragraphs (b) and (e) of this section);
(ii) Assisted nutrient standard menu planning (see paragraphs (b) and (f) of this section);
(iii) Traditional food-based menu planning (see paragraphs (c) and (g)(1) of this section);
(iv) Enhanced food-based menu planning (see paragraphs (c) and (g)(2) of this section); or
(v) Alternate menu planning as provided for in paragraph (h) of this section.
(6) Schools must keep production and menu records for the breakfasts they produce. These records must show how the breakfasts contribute to the required food components, food items or menu items every day. In addition, these records must show how the breakfasts contribute to the nutrition standards in paragraph (a) of this section and the appropriate calorie and nutrient levels (see paragraphs (c), (d), or (h) of this section, depending on the menu planning approach used) over the school week. If applicable, schools or school food authorities must maintain nutritional analysis records to demonstrate that breakfasts, when averaged over each school week, meet:
(i) The nutrition standards provided in paragraph (a) of this section; and
(ii) The nutrient and calorie levels for children for each age or grade group in accordance with paragraphs (b) and (e)(1) of this section or developed under paragraph (h) of this section.
(b)
(2) Optional levels are:
(3) Schools may also develop a set of nutrient and calorie levels for a school week. These levels are customized for the age groups of the children in the particular school.
(c)
(2)
(d)
(2)
(i)
(ii)
(B) A medical authority or the student's parent or legal guardian must submit a written request for a fluid milk substitute, identifying the medical or other special dietary need that restricts the student's diet.
(iii)
(3)
(4)
(e)
(ii)
(2)
(ii)
(3)
(4)
(ii)
(5)
(ii)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(f)
(2)
(3)
(4)
(5)
(6)
(7)
(g)
(i) A serving of fluid milk as a beverage or on cereal or used partly for both;
(ii) A serving of fruit or vegetable or both, or full-strength fruit or vegetable juice; and
(iii) Two servings from one of the following components or one serving from each component:
(A) Grains/breads; and/or
(B) Meat/meat alternate.
(2)
(3)
(4)
(5)
(h)
(2)
(i)
(ii)
(iii)
(A) Five or more school food authorities in the State use it; and
(B) The State agency maintains on-going oversight of the operation and evaluation of the approach and makes any needed adjustments to its policies and procedures to ensure that the appropriate guidelines in paragraph (h)(3) of this section are met.
(3)
(i) Offer fluid milk, as provided in paragraph (i) of this section;
(ii) Include the procedures for offer versus serve if the school food authority chooses to implement the offer versus serve option. Alternate approaches should follow the offer versus serve procedures in paragraphs (e)(2)(ii) and (g)(4) of this section, as appropriate. If these requirements are not followed, the approach must indicate:
(A) The affected age/grade groups;
(B) The number and type of items (and, if applicable, the quantities for the items) that constitute a reimbursable breakfast under offer versus serve;
(C) How such procedures will reduce plate waste; and
(D) How a reasonable level of calories and nutrients for the breakfast as taken is provided.
(iii) Meet the Recommended Dietary Allowances and breakfast energy allowances (nutrient levels) and indicate the age/grade groups served and how the nutrient levels are met for those age/grade groups;
(iv) Follow the requirements for competitive foods in the definition of
(v) Follow the requirements for counting food items and products towards meeting the meal patterns. These requirements are found in paragraphs (g) and (i) of this section, in appendices A through C to this part, and in instructions and guidance issued by FNS. This only applies if the alternate approach is a food-based menu planning approach.
(vi) Identify a reimbursable breakfast at the point of service.
(A) To the extent possible, the procedures provided in paragraph (e)(2)(i) of this section for nutrient standard or assisted nutrient standard menu planning approaches or for food-based menu planning approaches provided in paragraph (g) of this section must be followed. Any instructions or guidance issued by FNS that further defines the elements of a reimbursable breakfast must be followed when using the existing regulatory provisions.
(B) Any alternate approach that deviates from the provisions in paragraph (e)(2)(i) or paragraph (g) of this section must indicate what constitutes a reimbursable breakfast, including the number and type of items (and, if applicable, the quantities for the items) which comprise the breakfast, and how a reimbursable breakfast is to be identified at the point of service.
(vii) Explain how the alternate menu planning approach can be monitored under the applicable provisions of § 210.18 of this chapter, including a description of the records that will be maintained to document compliance with the program's administrative and nutritional requirements. However, if the procedures under § 210.18 of this chapter cannot be used to monitor the alternate approach, a description of review procedures which will enable the State agency to assess compliance with the nutrition standards in paragraphs (a)(1) through (4) of this section must be included; and
(viii) Follow the requirements for weighted analysis and for approved software for nutrient standard menu planning as required by paragraphs (e)(4) and (5) of this section unless a State agency-developed approach meets the criteria in paragraph (h)(2)(iii) of this section.
(i)
(2)
(i) If emergency conditions temporarily prevent a school that normally has a supply of fluid milk from obtaining delivery of such milk, the State agency may allow the school to serve breakfasts during the emergency period with an alternate form of milk or without milk.
(ii) If a school is unable to obtain a supply of any type of fluid milk on a continuing basis, the State agency may allow schools to substitute canned or dry milk in the required quantities in the preparation of breakfasts. In Alaska, Hawaii, American Samoa, Guam, Puerto Rico, and the Virgin Islands, if a
(3)
(j)
(2)
(3)
(4)
(i)
(ii)
(A) Four to 8 fluid ounces of breastmilk or iron-fortified infant formula; and
(B) 0 to 3 tablespoons of iron-fortified dry infant cereal.
(iii)
(A) Six to 8 fluid ounces of breastmilk or iron-fortified infant formula; and
(B) Two to 4 tablespoons of iron-fortified dry infant cereal; and
(C) One to 4 tablespoons of fruit or vegetable.
(5)
(k)
(l)
(m)
(n)
(1) Fruits and vegetables component. The fruits and vegetables requirements in paragraphs (g)(1) through (3) will be superseded July 1, 2014; and
(2) Sodium specification. The sodium requirements in (a)(3)(vi) will be superseded July 1, 2014.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
We, the National Marine Fisheries Service (NMFS), issue a final rule to revise the current critical habitat for the leatherback sea turtle (
This rule becomes effective February 27, 2012.
This final rule and supporting documents (Economic Report, Endangered Species Act (ESA) Section 4(b)(2) Report and Biological Report) are available electronically on the NMFS Web site at
Sara McNulty, NMFS, Office of Protected Resources, (301) 427-8402; Elizabeth Petras, NMFS Southwest Region, (562) 980-3238; Steve Stone, NMFS Northwest Region, (503) 231-2317.
Under the ESA, we are responsible for determining whether certain species, subspecies, or distinct population segments (DPS) are threatened or endangered and for designating critical habitat for those species (16 U.S.C. 1533). The leatherback sea turtle was listed as endangered throughout its range on June 2, 1970 (35 FR 8491). Pursuant to a joint agreement, the U.S. Fish and Wildlife Service (USFWS) has jurisdiction over sea turtles on the land and NMFS has jurisdiction over sea turtles in the marine environment. The USFWS initially designated critical habitat for leatherbacks on September 26, 1978 (43 FR 43688). This critical habitat area consists of a strip of land 0.2 miles (0.32 kilometers) wide (from mean high tide inland) at Sandy Point Beach on the western end of the island of St. Croix in the U.S. Virgin Islands. On March 23, 1979, NMFS designated the marine waters adjacent to Sandy Point Beach as critical habitat from the hundred fathom (182.9 meters) curve shoreward to the level of mean high tide (44 FR 17710).
On October 2, 2007, we received a petition from the Center for Biological Diversity (CBD), Oceana, and Turtle Island Restoration Network to revise the leatherback critical habitat designation by adding areas in the Pacific Ocean. On December 28, 2007, we announced a 90-day finding that the petition provided substantial scientific information indicating that the petitioned action may be warranted (72 FR 73745). On January 5, 2010 we published a combined 12-month finding and proposed rule to revise the critical habitat designation for this species (75 FR 319), followed by a notification of public hearings (75 FR 5015, February 1, 2010), and a notification of the extension of the public comment period for an additional 45 days, (75 FR 7434, February 19, 2010). As proposed, this rule identified eight specific geographic areas in the U.S. EEZ off the U.S. West Coast as critical habitat for the leatherback turtle, based on the presence in these areas of certain biological or physical features essential to conservation of the species for which special management consideration or protection might be required. In determining the areas that may be eligible for designation as critical habitat, regulations published at 50 CFR 424.12(a)-(b) direct the Secretary to consider those physical or biological features that are essential to conservation of the species and that may require special management considerations or protection; and to focus on the principal biological or physical constituent elements within the area that are essential to the conservation of the species. Primary constituent elements (PCE's) in the proposed rule included migratory pathway conditions (i.e., the state of the areas through which leatherbacks traverse for feeding and reproduction), and the separate PCE of quality and quantity of prey.
This final rule describes the final critical habitat designation, including responses to comments, a summary of changes from the proposed rule, and supporting information on leatherback sea turtle biology, distribution, and habitat use, and the methods used to develop the final designation. Based on review and evaluation of the comments received this final designation differs from our proposed designation in the following ways. We: (1) Eliminated “migratory pathway conditions” as a primary constituent element (PCE); (2) clarified the prey PCE to explicitly identify density of prey as a characteristic of the PCE; and (3) revised the boundaries of the specific areas in which the PCE is found. As a result of these changes, several occupied areas no longer meet the definition of critical habitat, and we have eliminated those areas from consideration in this final rule. These changes are reflected throughout the rule, and are described in detail below in the section “Summary of Changes from the Proposed Rule.”
Under section 4(b)(2) of the ESA we must consider the economic impacts, impacts to national security, and other relevant impacts of designating any particular area as critical habitat before making a final designation. The Secretary has discretion to exclude an area otherwise meeting the definition of critical habitat from the designation if the benefits of the exclusion (i.e., the impacts that would be avoided if an area was excluded from the designation) outweigh the benefits of the designation (i.e., the conservation benefits to leatherbacks if an area was designated), so long as exclusion of the area will not result in extinction of the species.
This evaluation process introduced various alternatives for the revision of designated critical habitat for the leatherback sea turtle, all of which we
The second alternative, designating a subset of the areas that meet the definition of critical habitat and are therefore eligible for designation, our preferred alternative in the proposed rule, was also rejected. In our proposed rule we identified 8 particular areas meeting the definition of critical habitat and concluded that 5 out of these 8 areas were eligible for exclusion based on the ESA section 4(b)(2) analyses. We then proposed to exclude all 5 areas from the critical habitat designation. However, as detailed in subsequent sections of this final rule, after reviewing the public comments and subsequently eliminating the migratory conditions PCE, and making boundary adjustments that resulted in the addition of area 9, we concluded that 6 areas, including the 5 areas identified for exclusion in the proposed rule, did not contain the prey PCE and thus did not meet the definition of critical habitat. We confirmed that the three areas initially identified as critical habitat and proposed for designation continue to meet the definition of critical habitat. Our final 4(b)(2) analysis was revised to address only the three areas that meet the definition of critical habitat.
The third alternative, designating the three areas as meeting the definition of critical habitat (i.e., no areas excluded), was considered and selected. We selected this alternative after conducting an ESA section 4(b)(2) analysis, and determining that the benefits of exclusion, including the avoidance or reduction of economic impacts, did not outweigh the conservation benefits to the species. The total estimated annualized economic impact associated with this designation is estimated to range between $188,000 and $9.1 million U.S. dollars. However, as explained below and detailed in the ESA Section 4(b)(2) Report (see
The leatherback is the sole remaining member of the taxonomic family Dermochelyidae. All other extant sea turtles belong to the family Cheloniidae. Leatherbacks are the largest marine turtle, with a curved carapace length (CCL) often exceeding 150 cm and front flippers that can span 270 cm (NMFS and USFWS, 1998). The leatherback's slightly flexible, rubber-like carapace is distinguishable from other sea turtles that have carapaces with bony plates covered with horny scutes. In adults, the carapace consists mainly of tough, oil-saturated connective tissue raised into seven prominent ridges and tapered to a blunt point posteriorly. The carapace and plastron are barrel-shaped and streamlined. Leatherbacks display several unique physiological and behavioral traits that enable this species to inhabit cold water, unlike other sea turtle species. These include a countercurrent circulatory system (Greer
Leatherbacks have the most extensive range of any living reptile and have been reported circumglobally throughout the oceans of the world (Marquez, 1990; NMFS and USFWS, 1998). Leatherbacks can forage in the cold temperate regions of the oceans, occurring at latitudes as high as 71° N. and 47° S.; however, nesting is confined to tropical and subtropical latitudes. In the Pacific Ocean, significant nesting aggregations occur primarily in Mexico, Costa Rica, Indonesia, the Solomon Islands, and Papua New Guinea. In the Atlantic Ocean, significant leatherback nesting aggregations have been documented on the west coast of Africa, from Guinea-Bissau south to Angola, with dense aggregations in Gabon. In the wider Caribbean Sea, leatherback nesting is broadly distributed across 36 countries or territories with major nesting colonies (>1000 females nesting annually) in Trinidad, French Guiana, and Suriname (Dow
Migratory routes of leatherbacks are not entirely known. However, recent satellite telemetry studies have documented transoceanic migrations between nesting beaches and foraging areas in the Atlantic and Pacific Ocean basins (Ferraroli
We requested comments on the proposed rule and associated supporting reports to revise the critical habitat designation for leatherback sea turtles on January 5, 2010 (75 FR 319), and on February 19, 2010 (75 FR 7434), we extended the comment period through April 23, 2010. We held two public hearings to facilitate public participation, we made the proposed rule available on the NMFS Web site, and we accepted comments via standard mail, facsimile, and through the Federal eRulemaking portal. We received over 57,000 comments on the proposed rule
In August 2009, a draft biological report developed by the critical habitat review team (CHRT) was provided to five external scientists with expertise in leatherback sea turtles and leatherback prey species. All peer review comments were incorporated into the proposed rule and associated supplementary documents prior to publication in the
As a result of public comments on several sections of the draft biological report and the proposed rule, we updated the final biological report by adding detailed information on the presence of the prey feature considered a PCE in each of the areas identified in the proposed rule, as well as adding analysis and discussion on the usage of each area by leatherbacks for foraging.
A draft of the economic report was sent out to four peer reviewers in October of 2009. Many of the responses received prior to the publication of the proposed rule were incorporated into the economic report. The comments detailed below were received after the publication of the proposed rule, and have been addressed in this final rule.
Neritic waters off the central California coast were included to encompass a prominent oceanographic front that occurs between cool, nearshore upwelling-modified waters and warmer offshore waters of the California Current. The front is located within 60 miles of the coast, providing a mechanism for aggregating leatherback prey, primarily brown sea nettles that have been advected from neritic central California waters, and moon jellies (
In response to this and other comments, we have reviewed all boundaries of our proposed specific areas and made several adjustments. These changes are detailed in the final biological report and below in the section, “Summary of Changes from the Proposed Designation.”
Other commenters provided general suggestions that since leatherbacks do not have predictable migration routes NMFS should designate large sections of ocean as critical habitat, if those areas are used by leatherbacks during their migrations.
Some commenters also suggested that Area 5 should be included for its importance as a secondary foraging area, as well as its importance for access to both the northern and southern coastal foraging areas, while another group of commenters suggested that Area 8 should be designated, as it is an area in which leatherbacks wait for upwelling to subside and water in Area 7 to warm, and because it is used as a passage to and from coastal foraging areas.
In response to the comments focusing on the need to designate offshore areas for their value as migratory areas or corridors, we re-evaluated our analysis of all areas in terms of our proposed migratory pathway PCE. In our proposed rule, we recognized that to complete their life history, leatherback turtles must migrate through the offshore areas to access nearshore foraging areas; therefore, we proposed that an essential feature of leatherback habitat is “migratory pathway conditions.” We acknowledged, however, that based on the most current scientific information it was difficult to define specific migratory corridors, and we were therefore not able to provide any detail about what physical, biological, or hydrographic features specifically define “migratory pathway conditions.” We solicited additional information on this PCE during the public comment period. However, peer review and public comments did not provide any additional information leading us to identify such features, and many commenters agreed that available evidence indicates that leatherback turtles do not have predictable migration routes. While water temperature gradients may influence leatherback migration pathways, at this time we cannot identify any known or consistent physically defined migratory corridors or associated specific areas that would consistently contain features of a migratory corridor for leatherbacks off the U.S. West Coast. As such, we have eliminated the migratory pathway PCE from this critical habitat designation. Additional information detailing this change and the analysis can be found in the final Biological Report and below in the section “Summary of Changes from the Proposed Designation.”
Given the elimination of the migratory pathway PCE, we then focused our response to this comment on the prey PCE and the foraging activity that was occurring in offshore areas. In our proposed rule, we noted that there is a distinct difference between nearshore and offshore areas with regard to leatherback foraging behavior and the availability of the prey PCE to leatherbacks. The intention of our prey PCE in the proposed rule was to differentiate between foraging areas and determine which areas truly contain the prey feature essential to the conservation of the species. Through discussions evaluating these public comments, we determined that our evaluation of the prey PCE should more systematically consider the quality, quantity, and density of prey in each area. As such, we have added the term “density” to the prey PCE definition in order to explicitly recognize that density of the prey is a critical characteristic of the prey PCE. Further clarification with respect to the components of the prey PCE is provided in later sections of this rule (see “Summary of Changes from the Proposed Designation”).
Based on the elimination of the migratory pathway PCE, and the more systematic consideration of our prey PCE, we re-evaluated each area to determine if it contains the prey feature (including density) identified as essential to the conservation of the species. In our proposed rule, we made the determination that the prey PCE was present in every area. This determination was made based on information that leatherbacks forage periodically and opportunistically during migrations. However, during the proposed rule analysis we did not look further at the type of prey they forage on in those instances, and if that level of foraging is expected to support leatherback individual and population growth, reproduction, and development, as defined in our PCE. We found that the offshore areas 4, 5, 6, and 8 (in addition to nearshore areas 3 and 9) do not contain the prey PCE, and therefore do not meet the definition of critical habitat. Additional information on this analysis can be found in the final Biological Report and below in the section “Summary of Changes from the Proposed Designation.”
In response to the comments suggesting that Area 5 should be designated based on its use as a secondary foraging area, as described above, we specifically looked at leatherback behavior and foraging within Area 5, and found that although some foraging activity has been documented in this area, this activity has been brief and inconsistent and the available evidence does not indicate this areas contains the prey PCE. Therefore, Area 5 does not meet the definition of critical habitat and will not be included in the final designation.
The decrease in size of the designated critical habitat is largely due to the offshore boundary change for Area 7. This change was initiated in response to commenters that questioned how boundaries were drawn and the overall size of Area 7. Area 7 was adjusted to reflect the oceanographic differences north and south of Point Conception, California. The Biological Report includes detailed discussion of this change. The final designation of Areas 1, 2, and 7, with adjustments to the area boundaries from the proposed rule, better represents the coastal foraging areas that are used by leatherback sea turtles and that contain the prey PCE.
As such, we have determined that Area 3 does not contain the prey PCE. Therefore, this area is not eligible for designation as critical habitat.
As noted above, and in response to this and other comments, we re-evaluated the southern portion of Area 7, and determined that the waters south of Point Arguello, California are substantially different than the waters to the north; thus, we identified the waters south of Point Arguello to be a new area, Area 9. NMFS then evaluated Area 9 for its usage by leatherback sea turtles and for the presence of the prey PCE. It was found that Area 9 does not contain the prey PCE, as detailed below in the section “Summary of Changes from the Proposed Designation,” and thus does not meet the definition of critical habitat.
Between the proposed and final rule, we re-assessed several spatial and biological elements of the proposed critical habitat designation and determined that the line of extreme low water more accurately depicted the shoreward extent of areas occupied by leatherback turtles (i.e., they are foraging in these waters and not accessing the beaches). Given this boundary change, there is no longer an overlap between designated areas and areas that meet the definition of Indian lands.
NMFS acknowledges the presence of tribal usual and accustomed fishing grounds within Area 2. We considered the tribal concerns and concluded that the benefits of excluding these particular usual and accustomed fishing areas do not outweigh the benefits of designating these areas as critical habitat for leatherback turtles. The tribes have not identified any treaty-related activities in their usual and accustomed fishing areas that are likely to affect jellyfish and therefore likely to be affected by a critical habitat designation. Moreover, usual and accustomed fishing areas, while vitally important to the exercise of treaty-secured fishing rights, are not reserved by the United States for the exclusive use of a tribe, nor are they subject to the sovereign authority of a tribal government, as is the case with Indian lands. For these reasons, we conclude there are no impacts from this critical habitat designation on treaty-secured fishing rights, and little impact to tribal sovereignty and self-governance.
During the government-to-government consultation, the Makah tribe expressed concern for their ability to engage in cooperative projects, such as future alternative energy development, within their usual and accustomed fishing grounds, if designated as critical habitat. Through that discussion we informed the Makah tribe that the designation of critical habitat will not preclude such projects from moving forward; however, any projects that are federally funded or authorized and that may impact leatherback sea turtles or the PCE will be required to undergo an ESA section 7 consultation to evaluate the impact of the project on listed species and designated critical habitat.
We acknowledge that the Makah Indian Tribe disagrees with our assessment and is concerned about potential impacts to the tribe's fishing rights. We will continue to coordinate with the tribe as we implement our responsibilities under section 7 with respect to leatherback turtles and address any conflicts, if they arise, in a government-to-government consultation.
Both NMFS and the USFWS have identified some form of passage or migration corridors as PCEs in other critical habitat designations, but the species and the habitat involved differ significantly from leatherback sea turtles. For example, “migratory corridor” was identified as a PCE in NMFS' final critical habitat designation for the threatened southern distinct population segment (DPS) of North American green sturgeon. Through tagging studies and fisheries bycatch information, researchers found that green sturgeon are primarily associated with bottom habitats in the ocean and travel along the coast in a migration corridor that is defined by bathymetry (specifically, a 60 fathom contour) (74 FR 52300; October 9, 2009). Unlike green sturgeon, leatherback sea turtles are not well associated with bottom habitat or bathymetry, travel thousands of miles, and occupy the entire U.S. EEZ.
The final critical habitat designation for the DPS of Southern Resident killer whales (SRKW) identified “passage conditions to allow for migration, resting, and foraging” as a PCE (71 FR 229; November 29, 2006). For the SRKW, one specific area primarily defined by the passage feature was the Strait of Juan de Fuca, a relatively narrow marine corridor, through which all members of this DPS of killer whales must pass on their migrations between open ocean and coastal waters and inland waters and in which all of the members of this DPS forage in the late spring through the fall. Unlike this DPS of killer whales, leatherback sea turtles are able to use vast areas within the open ocean for migration.
In addition, the characteristics that cause leatherbacks to use an area for passage (i.e., the specific biological or physical features of habitat) are largely unknown. At this time, NMFS cannot identify any known and consistent geographically-defined migratory corridors for leatherbacks off the U.S. West Coast.
Without specific physical or biological features predictably occurring within a defined geographic area to define a passage corridor, such as depth, or even a specific location where many individuals are likely to pass through to access foraging areas, NMFS concludes that our previously defined passage PCE does not meet the statutory criteria in the ESA section 3(5)(A)(i) as implemented by our regulatory guidance for determining a PCE (50 CFR 424.12(b)).
Alternatively, other commenters suggested that water quality should not be identified as a PCE, as there is little or no information on the effects of water quality on sea turtles.
To ensure that our interpretation of water quality as a PCE was appropriate, we reviewed all recent NMFS critical habitat designations. Of note, the critical habitat designations for two marine mammals, the Cook Inlet beluga whale and the SRKW distinct population segment, include water quality as a feature essential to the conservation of the species. Both of these marine mammals have relatively small populations that forage on a seasonal basis in core areas, such as narrow inlets or inland waters adjacent to urban areas with large human populations or industrialization. Cook Inlet belugas are not known to migrate, and little is known of the offshore movements of SRKWs following their summer/fall residency in “core” inland areas. Research has shown that killer whales accumulate high concentrations of contaminants, including PCBs, DDT, heavy metals and flame retardants, which may induce immune suppression or reproductive impairment and this may be having population level effects and impeding their recovery. NMFS determined that water “free of toxins” was essential to the conservation of the Cook Inlet beluga and “water quality to support growth and development” was essential to the conservation of the SRKWs given these species' limited range during all or parts of the year.
In contrast to SRKWs, leatherbacks are wide ranging, and the population as a whole does not depend on one or more “core” areas to access their prey. In addition, leatherbacks do not use inland waterways, where land-based and nearshore sources of pollution may present a greater threat to their recovery.
In response to specific concerns regarding ocean acidification, we acknowledge that there is growing concern that rising concentrations of atmospheric carbon dioxide will change the ocean's carbonate chemistry system (e.g., acidification/declining pH), and that those changes are expected to affect various biological and geochemical processes in the marine environment (Kleypas
We question the claim that the benefits of a critical habitat designation for leatherback turtles are no more difficult to measure than costs, and that the methodology in the referenced papers by Loomis (2006) and Kroeger (2004) would be applicable to valuing the benefits of designating critical habitat for leatherbacks. The referenced papers both rely on a benefits transfer approach to obtain a monetary value of policy measures. Kroeger (2004) provides a list of conditions that must be met in order for the benefits transfer methodology to be valid.
Benefit transfer methodology is used in Loomis (2006) to measure the value of increasing the number of sea otters in a clearly defined geographic range of the California Coast, and in Kroeger (2004), to measure the value of improved lynx conservation and conservation of natural landscapes. In both cases, the type and magnitude of the expected policy impacts are simple to describe with respect to the nature of the impacts, the geographic region where they would be realized, and the population which would be directly affected. By contrast, the anticipated type and magnitude of expected policy impacts due to critical habitat designation for leatherbacks are far less certain.
The vast uncertainty regarding the scope of a potential conservation benefit from this designation calls into question whether the policy context can be defined to a level of precision that meets Kroeger's (2004) qualifications.
By contrast, potential costs of regulatory measures are relatively easier to assess, due to the existence of financial data for entities impacted by previous critical habitat designations. There are numerous precedents for using cost effectiveness analysis or similar approaches, including economic analysis to measure regulatory impacts of critical habitat designation for salmon and steelhead, and for green sturgeon.
We further note that the criticism of the use of an “apples and oranges” comparison of economic costs of designation with the biological benefits of designation ignores a similar problem with the benefits transfer approach utilized in the Loomis (2006) and Kroeger (2004) studies. The benefits transfer methodology relies on benefit estimates from stated preference valuation studies, which assign a monetary value to a policy change using data from a survey that asks respondents to make an “apples and oranges” comparison between a hypothetical monetary cost of the policy change (their “willingness to pay”) and the biological benefits the policy is supposed to create. It is unclear that asking untrained survey participants to report the subjective monetary cost they would be willing to bear in exchange for complicated and uncertain biological benefits will automatically result in a better policy assessment than relying on trained experts to subjectively compare biological benefits to monetary cost estimates.
Section 1.3.2 of the economic analysis discusses the assumptions made with regard to administrative costs of ESA section 7 consultations. For example, costs associated with re-initiation of consultation, which would occur solely because of the critical habitat designation, are assumed to be attributed wholly to the critical habitat designation, and further assumed to be approximately half the cost of the original consultation that considered only jeopardy to the ESA listed species. We feel this is a valid assumption because re-initiations are less time-consuming, since the groundwork for the project has already been considered in terms of its impact on the species. We feel this is also a valid assumption due to the efficiencies in conducting an ESA section 7 consultation on both jeopardy to the species and adverse modification
To assign incremental scores, we first systematically reviewed existing laws and regulations, overlap with previously designated critical habitat and other relevant information for each activity in each of the three specific areas of the leatherback critical habitat. The output of this analysis resulted in qualitative ratings (high, medium, low) for each of the seven economic activities in each area. This process and results are discussed in our economic report. Based on these ratings, we then relied on the best professional judgment of the CHRT, to calculate the probability that leatherback critical habitat would be the primary driver of project modifications identified for each economic activity in each area. This probability is dependent upon a number of factors, including the details of current and potential projects and conservation efforts and the number of sensitive species present. By excluding impacts for which leatherback critical habitat is not a key reason for a conservation effort, this analysis focuses the quantification of impacts on those associated specifically with leatherback habitat conservation. Because the probability that any given conservation effort is being driven by leatherback conservation as opposed to other laws or regulations is uncertain, the economic analysis report presents a sensitivity analysis for these assumptions. Appendix C of the economic analysis describes alternative results assuming the extreme case that leatherbacks are always a primary driver of the conservation efforts (e.g., that 100 percent of the time fish screens are installed, it is primarily due to leatherback conservation needs).
Reasonable and prudent alternatives of recent Biological Opinions that considered the effects of pesticides on listed salmonids indicate that total crop loss is not a realistic outcome. We also considered the recent economic analysis conducted in support of the critical habitat designation for black abalone along U.S. West coast areas (76 FR 66806; October 27, 2011). This analysis acknowledged that concentrations and effects of pesticide ingredients in marine waters are unknown. Based on this information, we cannot assume total crop loss is a reasonable outcome of any project modification due to leatherback critical habitat. There is currently insufficient data to determine what, if any, project modification would be required. Therefore, we have revised our economic analysis to include a qualitative discussion of potential impacts of pesticides and have removed the estimated costs associated with this activity.
All of the projects listed are in some sort of proposed stage and have not actually been built yet. It is uncertain which projects will actually be built and the number of future projects that may be proposed. The projects identified in the economic analysis are our best approximation of the number of tidal and wave energy projects that will exist in the applicable time period, based on available information. The economic report describes the methods we used to develop our estimates.
Section 2.6 of the Economic Report provides a revised discussion. The “Tidal and Wave Energy” activity is now known as “Tidal, Wave, and Wind Energy.” Leatherback sea turtles primarily use the west coast neritic waters for foraging, with the greatest density of turtles off the California coast within the 200 m isobath. Therefore, some overlap may be expected between the prey PCE and potential coastal wind energy projects.
The economic thresholds were re-evaluated during the final rule development and it was determined that the thresholds were appropriate for use in this final rule. Please see the section below, “Exclusion of Particular Areas Based on Economic Impacts,” for additional information.
As a result of this critical habitat designation, all Federal activities that occur within areas designated as leatherback critical habitat and that may impact the prey PCE will require consultation under ESA section 7. A critical habitat designation is not intended to determine which activities can and should occur within the designated area; rather, it provides a protective measure requiring consultation with NMFS to determine the impact to the habitat and any modifications of specific activities to avoid the adverse modification or destruction of critical habitat.
Further, as stated in response to comments above, and fully detailed in the section, “Summary of Changes from the Proposed Rule,” NMFS has eliminated the migratory pathway PCE from this critical habitat designation and analysis. We received no information during public comment that fisheries may affect leatherback prey. Therefore, we conclude that Federal fisheries will not have an impact on the leatherback prey PCE, and we have not considered the impact of fisheries on leatherback critical habitat in this final rule.
As additional information related to these comments, NMFS is engaged in the development of traffic separation schemes (TSS), which are voluntary shipping lanes. The TSS are developed by the United States Coast Guard (USCG), and thus represents a Federal action that may be subject to evaluation under section 7 of the ESA. NMFS has worked closely with the USCG on the development of their port access route studies for the Long Beach and Los Angeles area and the San Francisco area to provide technical assistance on the presence and abundance of various protected species, including leatherback sea turtles. The USCG has been advised of their responsibilities as a Federal agency taking an action that may affect species listed on the ESA and designated critical habitat. Thus, when and if the USCG proposes changes to the existing TSS, we anticipate that NMFS will conduct an ESA section 7 consultation.
With regard to the comment on America's marine highways, as a Federal agency, the Department of Transportation is already required to initiate consultation with NMFS if its actions, such as increasing shipping traffic, may impact listed species and designated critical habitat, such as leatherback sea turtles.
Oil spill response is guided by Area Contingency Plans (ACPs) and Regional Contingency Plans (RCPs), developed by the USCG in coordination with state and Federal partners, and usually focuses on nearshore waters and coastlines. While the plans may have some strategies for response in open ocean areas, specifically in situations where there is a threat to land and sensitive shoreline resources, there are no existing protocols for offshore oil spill response, and the decision on how and whether to respond is left to the Federal On Scene Coordinator.
There are many factors that influence the decision to respond to an oil spill, including the feasibility and efficacy of responding to a spill, particularly in offshore areas where weather, ocean conditions, and other factors can significantly restrict response options which the USCG must consider. A number of options are considered by the USCG regarding the type of response, but the most common method for controlling and eliminating surface oil wherever it is found is via the use of oil skimming vessels (referred to as mechanical recovery). In rare cases where the seas are relatively flat, in-situ
As mentioned previously, we have eliminated the migratory pathway PCE, and have determined that the offshore areas do not contain the prey PCE, as defined in this final rule. Therefore, the offshore areas are not eligible for designation as critical habitat. As such, this final designation only evaluates oil spill response and its potential impact on our prey PCE in Areas 1, 2, and 7. Since these areas are in the nearshore environment, it is likely that USCG will respond to a spill that occurs in these areas. In our proposed rule, we made the assumption that if critical habitat were designated, then the USCG may be more likely to launch a response to clean up the oil using chemical dispersants or other response techniques, and we developed associated costs for response based on this assumption. However, after additional research on oil spill response, we have determined that making this assumption does not necessarily reflect what is likely to occur in the event of an oil spill in Areas 1, 2 and 7. That is, the existence of leatherback critical habitat is likely to play a small part in the decision making on whether to respond and how to respond. Each spill is unique, and response is determined based on many complex factors, such as the type of oil, sea state, availability of mechanical or chemical materials, and risk to resources, particularly shoreline resources. Along the U.S. West Coast, NMFS is becoming more actively engaged in oil spill response planning and is reviewing ACPs and RCPs and providing information on protected species, including leatherbacks. Oil spill response is not like other Federal activities considered in this final rule. The ESA section 7 consultation occurs after the Federal activity (spill response) has occurred, through emergency consultation procedures, so there is limited opportunity to change activities during a response if a finding of jeopardy or adverse modification/destruction is made. NMFS' engagement at the ACP and RCP level is likely the optimal means of raising awareness of leatherback critical habitat and working within the spill response community to make changes to response protocols to protect critical habitat. At this time, we do not know what types of activities we would request that USCG modify to protect critical habitat during an oil spill response; therefore, we are unable to assign a dollar value to this activity.
In the proposed rule and draft economic report, the costs associated with spill response were based upon a model developed and published by Etkin (1999). The costs associated with spill clean-up using the model were quite low, less than $100,000. Since publication of the proposed rule, and as discussed above, we thoroughly evaluated several different options for oil spill costs, but there is no way to reliably predict what incremental effect, if any, critical habitat for leatherbacks would have on these costs. Accordingly, this rule includes no quantitative estimates of the incremental costs of critical habitat designation for leatherbacks on the cost of oil spill response.
With regard to existing oil platforms, we included the consideration of oil spills and leaks associated with existing platforms in our analysis of oil spill response.
Existing protections at the Federal, State, and local level were incorporated into the analysis via the incremental scores developed for economic analysis.
Based on the comments received and our review of the proposed rule, we (1) eliminated “migratory pathways” as a PCE; (2) refined the description of the prey PCE specifically to clarify that density is an important element of the feature; (3) revised the boundaries of the areas in which the PCE may be found; and (4) re-evaluated each area for the presence of the PCE and determined which areas meet the definition of critical habitat and are thus eligible for designation. The following discussion describes in detail the rationale for these changes.
(1) Eliminated as a PCE “migratory pathway conditions to allow for safe and timely passage and access to/from/within high use foraging areas.”
Several comments focused on migration routes as a PCE and our economic and biological analyses associated with that PCE. Such comments triggered our re-evaluation of this PCE. We reviewed available data and literature, evaluated public comments, and reevaluated the validity of the PCE based on applicable statutory and regulatory definitions and criteria. We explain our analysis in more detail below. In our proposed rule, we explained that while leatherbacks are known to migrate great distances on a seasonal basis across the Pacific Ocean to arrive at known foraging areas in the near-shore marine environment within the U.S. EEZ, the actual migratory routes to those areas are not well-known. We reviewed public comments to determine whether additional data were available to support our approach in the proposed rule. Our review of public comments and available data on leatherback turtle migration confirmed our general assumptions in the proposed rule regarding the seasonal migratory and forage behavior of leatherback sea turtles migrating long distances from nesting beaches and over-wintering areas in the western Pacific Ocean to arrive during the summer and fall off the U.S. West Coast to forage in areas of dense prey concentrations associated with the California Current Ecosystem. In other words, NMFS confirmed the existence of valid and useful data on the general migration of leatherbacks to and their occurrence in the geographic areas considered for designation as critical habitat. However, our review of public comments and the best available scientific data did not resolve the uncertainty regarding the occurrence and presence of any specific biological or physical features indicating that a given area constitutes a migratory pathway or provides defined migratory pathway conditions for leatherback sea turtles from offshore areas to near-shore high-use forage areas, movement within those areas, and transit among those areas.
In our proposed rule, we relied primarily on data indicating the presence of leatherbacks within the specified areas as a proxy for determining migratory pathway conditions (e.g., satellite telemetry, aerial surveys, nearshore ship-based research). While we recognized the importance of leatherback migration, we did not identify specific migratory pathway conditions, and acknowledged uncertainty regarding their occurrence and presence. Public comments and agency inquiry did not develop additional meaningful data to establish the occurrence or presence of such indicative conditions. Thus, while the general proxy approach was useful in identifying and framing the importance of leatherback seasonal migration to geographic areas off the U.S. West Coast, without further specific data regarding biological or physical features influencing migration to, from and among forage areas, it did not allow us to identify specific migratory conditions in any area under consideration. Rather, this approach indicated that the entire U.S. EEZ could be considered as a migratory corridor.
A PCE is a biological or physical feature essential to the conservation of the species for which special management consideration or protection might be required. These features must be reasonably specific and identifiable in order to be protected. Our analysis of migratory pathway conditions did not produce a reasonable description of the physical and biological feature itself, allow a reasonable demonstration of how the feature is essential to conservation of the leatherback sea turtle, provide an effective basis for identifying “specific areas” on which the feature is found, or inform our identification of the types of activities that might presently or prospectively pose a threat to the feature such that special management consideration or protections might be necessary. In addition, it presents the possibility of resulting in an over-designation of critical habitat. Accordingly, the migratory pathway conditions do not
Both NMFS and the USFWS have identified passage as a PCE in other critical habitat designations; however, the species and habitats involved differed significantly from leatherback sea turtles. In those instances, passage was more narrowly defined, and it was essential that the species have access to passage through a discrete and identifiable section of habitat. Please see our responses to Comments 12 and 13 for additional information.
We considered the impact of removing migratory pathway conditions as a PCE and the possible effects on conservation of leatherbacks. If there were threats to leatherback passage through the open ocean, and there were a federal nexus to those threats, they could potentially be mitigated through a section 7 consultation on the species. For example, some commenters cited ship strikes and fishing gear entanglement as a threat to passage. These threats do not alter habitat features as defined in this rule; however, because they pose a direct threat to the species, these threats can be addressed through a jeopardy analysis. We also note that in the proposed rule we had concluded, after conducting a 4(b)(2) analysis for each area, that offshore areas containing the migratory pathway conditions PCE, but low or medium ratings for the prey PCE due to low levels of quality prey, should be excluded from the designation (i.e., Areas 4, 5, 6, and 8). While the migratory pathway PCE would have been found in Areas 1, 2 and 7, we only identified a single activity type, construction of long-term or permanent structures (e.g., alternative energy projects), that might trigger section 7 consultation and project modifications to protect the passage feature. Section 7 consultation would likely still be required for such activities to consider effects to the species under the jeopardy standard as well as adverse modification of the prey PCE.
At this time, and in light of the data and analysis described above, the migratory pathway conditions PCE, as defined in the proposed rule, lacks the required defined physical and biological features and specific passage locations, and we cannot demonstrate that this feature is “essential to conservation of the species.” Nor can we determine whether and where such pathway conditions might reasonably be “known” to occur within the nine specific areas evaluated for designation. Based on this re-evaluation, we conclude that this feature fails to meet the regulatory guidance for determining a PCE and cannot serve to qualify geographic areas as critical habitat under the ESA, section 3(5)(A)(i).
(2) Refinement of the prey PCE. We have added the term density to our definition of the prey PCE to reaffirm the importance of this quality to the feature. In our proposed rule, we associated the prey PCE with each area given the general co-occurrence of leatherbacks with prey species and the corresponding likelihood of foraging activity. At the same time we recognized that certain areas, particularly the near-shore areas, are more heavily used for foraging and are of greater conservation value to the species. As we discussed in the proposed rule, prey is a feature off the U.S. West Coast that is essential to the conservation of leatherback sea turtles. In our proposed rule, we recognized that all areas containing the prey PCE were not equal in terms of the quantity and type of prey available and in their value for conservation of the species. We also provided data and analysis indicating that the areas where dense aggregations of prey occurred were the most important forage habitats for the species. We acknowledged a significant distinction between the conservation value of nearshore areas and offshore areas in relation to this feature, noting that some areas were of marginal conservation value due to the absence of prey in sufficient density to make forage energetically efficient for migrating turtles (e.g., Areas 4, 5, 6, 8 and 9). Specific nearshore areas were shown to have significant conservation value as they displayed a high density of prey species and corresponding patterns of regular leatherback use for sustained forage (e.g., Areas 1, 2 and 7). At the same time, we proposed finding that the prey PCE was present in all eight areas evaluated for designation. The proposed rule did so, without reflecting sufficiently the importance of density of prey species as a characteristic of the PCE due to differences in dense aggregations of prey species and predicted use by leatherbacks for sustained foraging.
During public hearings on the proposed critical habitat, we received questions about the amount or density of prey species necessary for an area to be considered critical habitat. We also received written public comments suggesting that any area in which scyphomedusae may be found in the U.S. West Coast EEZ should be designated as critical habitat.
In evaluating these comments and reviewing data related to the occurrence of prey species in specific areas and leatherback use of such areas for foraging, we have decided in the final rule to specifically include “density” in the prey PCE, thus reaffirming its biological significance as an element of the habitat feature considered essential to conservation of leatherbacks. This refinement is consistent with the available literature, including recent work by Benson
We further revised the eight areas evaluated for designation to ensure those areas took into account density in evaluating the prey PCE. While we cannot quantitatively describe the density of prey (e.g., number of jellyfish per square mile) necessary to support the energetic needs of leatherbacks that travel across the Pacific Ocean to forage off the U.S. West Coast, based on the available information, we know that not all areas in which jellyfish may be found provide sufficient condition, distribution, diversity, abundance and density to support leatherback individual and population growth, reproduction, and development. Please see (4) below for additional information on how the prey PCE was evaluated in each area.
(3) Adjustment to area boundaries and the addition of Area 9.
In our proposed rule, we identified the overall area occupied by the species. This did not change in the final rule. The proposed rule then identified eight specific areas within the U.S. West Coast EEZ, the limit of our regulatory authority for designating critical habitat, for evaluation to determine whether they qualified as critical habitat. We evaluated each of these areas to determine whether they contained a PCE, in which case the area would qualify as critical habitat. In our proposed rule, we explained that the boundaries for these areas were based on a best estimate of where leatherback sea turtles transition from migrating to foraging, and where there are changes in the composition or abundance of prey species. The boundaries were intended to reflect substantial data demonstrating leatherback presence in marine waters as well as oceanographic, hydrological and physical features that impact the location of prey.
During the public comment period, we received comments that questioned our rationale for drawing the original area boundaries. In response to these comments, we reviewed the literature and data available on leatherback foraging and movements, as well as new information on leatherback movements, to determine if the boundaries were drawn appropriately. After reviewing relevant oceanographic processes and
Boundary changes include the following: (1) We moved the offshore boundary of Area 7 east to the 3,000 meter isobath to better reflect where foraging is known to occur off the coast of central and southern California, and to better distinguish between nearshore and offshore habitat. Additionally, in an effort to be consistent with other area boundaries marked by geographic features, the offshore boundary of Area 7 has been moved east to the 3,000 m isobath. This boundary change resulted in a decreased overall size of Area 7 from 46,100 sq. mi to 13,102 sq. mi. (2) We moved the boundary between Areas 2 and 3 from the Umpqua River south to Cape Blanco. Cape Blanco is a well-documented “break” in coastal ocean physical and biological properties due to differences in primary bottom types and current patterns that influence the dispersal and retention of larval fishes and invertebrates (Barth
The following paragraphs describe each final area (shown in Figure 1) and summarize the data used to determine each area occupied by leatherbacks:
Area 1: Neritic waters between Point Arena and Point Sur, California extending offshore to the 200 meter isobath. The specific boundaries are the area bounded by Point Sur (36° 18′22″ N./121° 54′9″ W.), then north along the shoreline following the line of mean lower low water to Point Arena, California (38° 57′14″ N./123° 44′26″ W.), then west to 38° 57′14″ N./123° 56′44″ W., then south along the 200 meter isobath to 36° 18′46″ N./122° 4′43″ W., then east to the point of origin at Point Sur. As described in our final Biological Report, leatherback presence is based on aerial surveys, telemetry studies, and fishery interactions. This area is a principal California foraging area (Benson
Area 2: Nearshore waters between Cape Flattery, Washington, and Cape Blanco, Oregon extending offshore to the 2000 meter isobath. The specific boundaries are the area bounded by Cape Blanco (42° 50′4″ N./124° 33′44″ W.) north along the shoreline following the line of mean lower low water to Cape Flattery, Washington (48° 23′10″ N./124° 43′32″ W.), then north to the U.S./Canada boundary at 48° 29′38″ N./124° 43′32″ W., then west and south along the line of the U.S. EEZ to 47° 57′38″ N./126° 22′54″ W., then south along a line approximating the 2,000 meter isobath that passes through points at 47° 39′55″ N./126° 13′28″ W., 45° 20′16″ N./125° 21′ W. to 42° 49′59″ N./125° 8′ 10″ W., then east to the point of origin at Cape Blanco. As described in our final Biological Report, leatherback presence is based on aerial surveys, telemetry studies, and fishery interactions. This area is the principal Oregon/Washington foraging area and includes important habitat associated with the Columbia River Plume, and Heceta Bank, Oregon. Great densities of primary prey species, brown sea nettle (
Area 3: Nearshore waters between Cape Blanco, Oregon and Point Arena, California extending offshore to the 2000 meter isobath. This line runs from 42°49′59″ N./125°8′10″ W. through 42°39′3″ N./125°7′37″ W., 42°24′49″ N./125°0′13″ W., 42°3′17″ N./125°9′51″ W., 40°49′38″ N./124°49′29″ W., 40°23′33″ N./124°46′32″ W., 40°22′37″ N./154°44′19″ W., to 38°57′14″ N./124°11′50″ W., then east to Point Arena. As described in our final Biological Report, leatherback presence is based on aerial surveys, telemetry studies, and fishery interactions. This area includes upwelling centers between Cape Blanco, Oregon and Point Arena, California and is characterized by cold sea surface temperatures (<13° C). High densities of jellyfish have been documented between Cape Blanco and the Oregon-California border; however, species composition is dominated by moon jellies (
Area 4: Offshore waters west and adjacent to Area 2. Includes waters west of the 2000 meter isobath line to the U.S. EEZ from 47°57′38″ N./126°22′54″ W. south to 43°44′59″ N./125°16′55″ W. As described in our final Biological Report, leatherback presence is based on aerial surveys, telemetry studies, and fishery interactions. This area is used primarily as a region of passage to/from Area 2 (see above). No information is available regarding presence of jellyfish in this area; however, due to its distance from the coast and lack of persistent frontal habitat, prey species are likely limited to low densities of moon jellies (
Area 5: Offshore waters south and adjacent to Area 4, and north of a line consistent with the California/Oregon border. Includes all U.S. EEZ waters west of the 2000-meter isobath. As described in our final Biological Report, leatherback presence is based on aerial surveys, telemetry studies, and fishery interactions. The eastern edge of this polygon is strongly influenced by an oceanographic front west of Cape Blanco, Oregon. The position and intensity of the front is variable, dependent on the strength of upwelling at Cape Blanco, and can be located within the extreme eastern edge of Area 5 during strong upwelling events. The front likely acts as an aggregation mechanism for zooplankton; however, no information is available about jellyfish densities. Given its distance offshore, jellyfish densities are likely variable and dominated by moon jellies that may be advected from nearby coastal waters (Suchman and Brodeur 2005; Reese 2005), therefore, importance as a foraging area to leatherbacks is secondary. This area is also a region of passage to/from Area 2 (see above).
Area 6: Offshore waters south and adjacent to Area 5, west and adjacent to the southern portion of Area 3 (see above) offshore to a line connecting N42.000/W129.000 and N38.95/
Area 7: Offshore waters between the 200-3000 meter isobaths from Point Arena to Point Sur, California and waters between the coastline and the 3000 meter isobath from Point Sur to Point Arguello, California. This area includes waters surrounding the northern Santa Barbara Channel Islands (San Miguel, Santa Rosa, Santa Cruz, and Anacapa Islands). As described in our final Biological Report, leatherback presence is based on aerial surveys, telemetry studies, and fishery interactions. Offshore waters beyond the 200 meter isobath in this area are characterized by persistent ocean frontal habitat created by mesoscale retentive eddies and meanders associated with offshore-flowing squirts and jets anchored at coastal promontories between Point Arena and Point Sur, creating linkages between nearshore waters of Area 1 and offshore waters of the California Current. The recurrent oceanographic features at the edge of the continental shelf are occupied by aggregations of moon jellies (
Area 8: Offshore waters west and adjacent to Area 6, and west of the 3000 meter isobath adjacent to Areas 7, and 9 between Point Arena, California and the U.S. EEZ/Mexico maritime border. As described in our final Biological Report, leatherback presence is based on aerial surveys, telemetry studies, and fishery interactions. Although eddies and meanders originating from coastal capes and headlands may be present in this region after particularly strong upwelling events, frontal features are not persistent or abundant and the region is primarily characterized by warm, low salinity offshore waters. Due to its distance from the coast and lack of persistent frontal habitat, prey species are likely limited to low densities of moon jellies (
Area 9: Southern California Bight waters extending from the coast to the 3000 meter isobath between Point Arguello and Point Vicente, and from Point Vicente to N32.589/W117.463 extending to the 3000 meter isobath. As described in our Final Biological Report, leatherback presence is based on aerial surveys, telemetry studies, and fishery interactions. Upwelling originating from Point Conception creates offshore frontal near the northern Santa Barbara Channel Islands (San Miguel, Santa Rosa, Santa Cruz, and Anacapa) extending to San Nicolas Island; however, most of this region is characterized by warm, low salinity waters. Little information is available about the presence of jellies in the area; however, trawl samples performed by the California Cooperative Fisheries Investigations (CalCOFI) suggest that moon jellies are the dominant scyphomedusae; therefore, this area is of secondary importance to leatherbacks as a foraging area. Leatherbacks use this area primarily as a region of passage to Area 7, particularly during the spring and early summer months. This area was created in recognition of the southern California Bight biogeographic region (Parrish
Additionally, as mentioned in our response above, the shoreward extent of the areas was moved from the mean lower low water line to the extreme low water line. In our proposed rule, we identified the mean lower low water line as the shoreward boundary for this designation; however, leatherbacks are unlikely to pursue prey beyond the extent of extreme low water (S. Benson, NMFS, September 2000, unpublished data). In light of this information, we determined that extreme low water is a more appropriate boundary for the shoreward extent of this critical habitat.
As depicted in Figure 1, NMFS's adjustment of boundaries in the final rule do not either increase or decrease the total geographic area evaluated for potential designation as critical habitat identified in the proposed rule. Areas 1, 2 and 7 were identified for designation in the proposed rule. Areas 1, 2 and 7 are also included in the final designation though the boundaries for those areas have been adjusted as explained above. While the boundaries to Areas 1 and 2 remain largely unchanged from the proposed rule, the final rule's adjustment to the boundaries of Area 7 results in a substantial decrease in the spatial extent of the final designation when compared with the proposed rule.
(4) Determining which areas meet the definition of critical habitat after the elimination of our migratory pathway PCE and using our refined prey PCE.
As described above, we eliminated our proposed migratory pathway PCE and therefore re-examined each of our areas to determine if the prey PCE, as refined in this final rule to include density, could be found within each of the nine areas. For each of the nine occupied areas, we evaluated the co-occurrence of leatherback turtles and their prey species based on the best available data. We specifically evaluated each area to predict whether and where the prey jellyfish could be consistently found in sufficient abundance, condition, distribution, diversity and density to provide for foraging that is
Coastal nutrient input, high productivity, and shallow waters (less than 1000 meters depth) are favorable for the life history of many species of scyphomedusae. The consistent availability of abundant prey in relatively small geographic areas associated with fixed or recurrent physical features influenced by coastal geomorphology is likely a key factor causing leatherbacks to travel to the U.S. West Coast to forage. In contrast to coastal areas, prey patches in open ocean regions are likely more dynamic, ephemeral, and unpredictable and do not have consistent conditions that produce the abundance and densities necessary for providing sufficient energy for foraging leatherbacks.
In addition, a telemetry and behavioral study has become available since the proposed rule was published (Benson
The proposed rule described the general co-occurrence of leatherback turtles and their prey species in areas offshore, including Areas 3, 4, 5, 6 and 8, as well as the southern and offshore portion of Area 7. Based on the available data, we could not identify or reasonably predict whether or where the refined PCE could be consistently found in sufficient abundance, condition, distribution, diversity and density to provide for foraging that is essential to the conservation of the species in areas 3, 4, 5, 6, 8 and 9, in a manner consistent with our definition and explanation of the prey PCE in this final rule. As such these areas do not meet the definition of critical habitat and therefore are not eligible for further consideration in this designation. Please see our more specific evaluation of each area below.
Area 1. The preferred prey of leatherback sea turtles, brown sea nettles (
Area 2. The preferred prey of leatherback sea turtles, brown sea nettles (
Area 3. This area has features that produce an abundance of jellies, particularly during seasonal upwelling. However, south of Cape Blanco, Oregon to the Oregon-California border the area is dominated by moon jellies and egg yolk jellies. South of the Oregon-California border and north of Point Arena, moon jellies are the dominant species of jellies. These species are not the preferred prey for leatherbacks, although they may be consumed when brown sea nettles are not available. A recent publication analyzing movement of leatherbacks along the U.S. West Coast indicates that foraging behavior was not observed in Area 3 (Benson
Area 4. This area has been characterized as primarily a region of passage to/from Area 2; therefore, we evaluated it in terms of the prey PCE. Although there is limited information available regarding the presence of jellyfish in this area, the recent study by Benson
Area 5. This area was defined based on its use as passage for leatherbacks from far offshore waters to foraging sites in Area 2 and between Areas 1 and 2. The eastern edge of the area is influenced by an oceanographic front west of Cape Blanco, Oregon that is variable and dependent on the strength of upwelling at Cape Blanco. Although the front may act as an aggregation mechanism for zooplankton, no information is available on its impact on jellyfish densities or if it acts as a transport mechanism for jellyfish. Similar to other distant offshore areas, jelly densities are likely variable and dominated by moon jellies. Recent work by Benson
Area 6. Similar to Area 5, frontal intensity is variable and dependent on the strength of upwelling at Cape Mendocino (Castelao
Area 7. A quasi-stationary front occurs in this area near the 2000 m to 3000 m isobaths as warm offshore waters meet cooler coastal upwelled water. As upwelling winds relax, this front moves closer to the coast and likely aggregates sea nettles that have been advected from nearby coastal waters (Area 1). The neritic waters between Point Sur and Point Arguello are also strongly influenced by coastal upwelling processes that produce abundant and dense aggregations of leatherback prey. Telemetry data indicate that these offshore waters are utilized for foraging by leatherbacks (Benson
Area 8. This area has been identified primarily as an area of passage for leatherbacks moving from distant offshore waters to nearshore foraging Areas 1 and 7. Unlike Area 7, frontal features are less abundant and more ephemeral in Area 8. The region is primarily characterized by warm, low salinity offshore waters. Due to the great distance from the coast, prey species are likely limited to low densities of moon jellies (
Area 9. This area was identified as primarily an area of passage in our proposed rule. Therefore, we re-evaluated it in terms of the prey PCE. Most of this area is characterized by warm, low salinity waters, although upwelling originating from Point Conception creates offshore fronts near the northern Santa Barbara Channel Islands and extending south to San Nicolas Island. Little information is available regarding the presence of jellyfish in the area; however, trawl samples suggest that moon jellies are the dominant scyphomedusae. A recent report on telemetry work on leatherbacks indicates some limited foraging behavior around the Channel Islands, and within the southern California Bight by a single individual during spring while moving toward Areas 1 and 7 (Benson
The ESA defines critical habitat under section 3(5)(A) as: “(i) the specific areas within the geographical area occupied by the species, at the time it is listed * * *, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed * * * upon a determination by the Secretary that such areas are essential for the conservation of the species.”
If critical habitat is designated, section 7 of the ESA requires Federal agencies to insure they do not fund, authorize, or carry out any actions that will result in the adverse modification or destruction of that habitat. This requirement is in addition to the section 7 requirement that Federal agencies insure their actions do not jeopardize the continued existence of listed species.
In the following sections, we describe our methods for evaluating the areas considered for designation as critical habitat, our final determinations, and the final critical habitat designation. This description incorporates the changes described above in response to public comments and peer reviewer comments.
In accordance with section 4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12(a)), this final rule is based on the best scientific information available regarding leatherback sea turtles' present and historical range, habitat and biology, as well as threats to its habitat.
To assist with the consideration of revising leatherback critical habitat, we convened a CHRT consisting of biologists and managers from NMFS Headquarters, the Southwest and Northwest Regional Offices, and the Southwest Fisheries Science Center. The CHRT members had experience and expertise on leatherback biology, distribution and abundance of the species along the U.S. West Coast as it relates to oceanography, ESA section 7 consultations and management, and/or the critical habitat designation process. The CHRT used the best available scientific data and their best professional judgment to: (1) Verify the geographical area occupied by the leatherbacks at the time of listing; (2) identify the physical and biological features essential to the conservation of the species that may require special management considerations or protection; (3) identify specific areas within the occupied area containing those essential physical and biological features; (4) evaluate the conservation value of each specific area; and (5) identify activities that may affect any designated critical habitat. The CHRT evaluation and conclusions are described in detail in the following sections.
Joint NMFS and USFWS regulations (50 CFR 424.12(b)) state that in determining what areas are critical habitat, the agencies “shall consider those physical and biological features that are essential to the conservation of
We have identified one PCE essential for the conservation of leatherbacks in marine waters off the U.S. West Coast: The occurrence of prey species, primarily scyphomedusae of the order Semaeostomeae (e.g.,
As described above in the section “Summary of changes from the proposed designation,” public comments led us to take a closer look at the prey PCE to better describe the characteristics that make the PCE essential to the conservation of leatherbacks. Leatherbacks have high caloric needs, and their preferred gelatinous prey have low nutritional value individually, but consumed in large amounts can satisfy the energetic needs of subadult and adult leatherback sea turtles. As noted in our proposed rule, leatherbacks must consume 20 to 30 percent of their body weight each day, or roughly 50 large jellyfish. Adult leatherbacks (250-450 kg) may consume 70-90 kg of jellyfish per day to meet their energetic needs (Wallace
Therefore, we have refined our description of the leatherback prey PCE to specifically include density, along with sufficient condition, distribution, diversity, and abundance described in our proposed rule. Our approach is similar to the agency's designation of critical habitat for North Pacific right whales. Baleen whales and leatherback turtles both forage on relatively small prey. Baleen whales rely on dense aggregations of small fish and krill to satisfy their caloric needs, in the same way as leatherbacks rely on dense aggregations of jellyfish. For the North Pacific right whale critical habitat designation, we identified prey as the sole PCE. Although North Pacific right whales' preferred prey, copepods, are ubiquitous in the North Pacific, we identified the need for a certain density of prey, and located an area in the ocean where physical forcing mechanisms concentrate copepods in sufficient densities to allow for efficient feeding by whales (79 FR 19000, April 8, 2008).
One of the first steps in this critical habitat review process was to define the geographical area occupied by the species at the time of listing. As described above, leatherbacks are distributed throughout the oceans of the world including along the U.S. West Coast within the U.S. EEZ. The CHRT reviewed available data sources to identify locations within and adjacent to the petitioned area that contain the prey PCE. Information reviewed included: Turtle distribution data from nearshore aerial surveys (Peterson
Joint NMFS and FWS regulations provide that areas outside of U.S. jurisdiction not be designated as critical habitat (50 CR 424.12(h)), so any areas outside of the U.S. EEZ were excluded from our analysis. Thus, the occupied geographic area under consideration for this designation was limited to areas along the U.S. West Coast within the U.S. EEZ from the Washington/Canada border to the California/Mexico border.
Section 3(5)(A)(ii) of the ESA authorizes designation of “specific areas outside the geographical areas occupied by the species at the time it is listed” if those areas are determined to be essential to the conservation of the species.” In our proposed rule we stated that we did not identify any specific areas outside the geographic area occupied by leatherbacks that may be essential for the conservation of the species. We did not receive any public or peer review comments on this topic, therefore, no unoccupied areas will be included in this analysis.
An occupied area may be designated as critical habitat only if it contains physical or biological features essential to the conservation of the species that “may require special management considerations or protection.” Joint NMFS and USFWS regulations (50 CFR 424.02(j)) define “special management considerations or protection” to mean “any methods or procedures useful in protecting physical and biological features of the environment for the conservation of listed species.” We have identified a number of activities that may threaten or adversely impact our identified PCE. In our proposed rule, we grouped these activities into eight activity types: Aquaculture, pollution from point sources (e.g., National Pollution Discharge Elimination System (NPDES)); runoff from agricultural pesticide use; oil spill response; power plants; desalination plants; tidal, wave, and wind energy projects; and liquefied natural gas (LNG) projects.
In our proposed rule, aquaculture was described as an activity that may adversely impact our migratory pathway PCE. With the removal of that PCE, aquaculture is no longer considered an activity that may impact this critical habitat designation. As such, the remaining seven activity types have been evaluated for their potential to impact the prey PCE by altering prey abundance or prey contamination levels with Areas 1, 2, and 7. Based on the present and potential impacts from these activities, we have determined that the prey feature may require special
Section 4(b)(2) of the ESA requires the Secretary of Commerce (Secretary) to designate critical habitat based on the best scientific data available, after taking into consideration the economic impact, impacts on national security and any other relevant impact, of specifying any particular area as critical habitat. Section 4(b)(2) further states that the Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of designation, unless he determines that failure to designate will result in the extinction of the species.
The ESA does not define what “particular area” means in the context of section 4(b)(2), or the relationship of particular areas to “specific areas” that meet the statute's definition of critical habitat.
In previous sections of this final rule, we detailed the 9 occupied areas, within the geographic range of the species, that were initially evaluated for eligibility as critical habitat. Through that process, we determined that Areas 1, 2 and 7 are eligible for designation as critical habitat. As there was no biological basis to further subdivide these three “specific areas” into smaller units, we treated these areas as the “particular areas” for our initial consideration of the impacts of designation. The following sections detail the analysis that was done to consider economic and other impacts from this designation to determine if any particular areas should be excluded.
As described above, section 4(b)(2) of the ESA requires that we balance the benefit of designation against the benefit of exclusion for each particular area. The primary benefit of a critical habitat designation is the protection afforded under section 7 of the ESA, which requires that all Federal agencies insure that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of designated critical habitat. This is in addition to the requirement that all Federal agencies ensure that their actions are not likely to jeopardize the continued existence of any listed threatened or endangered species. The designation of critical habitat also provides other benefits, such as improving education and outreach by informing the public about areas and features important to species conservation. At this time, we lack information that would allow us to quantify or monetize the benefits of designating critical habitat for leatherback sea turtles and have instead relied on a qualitative review of the potential benefits.
In our proposed rule, we used the overall conservation value ratings that were developed for each area to represent the qualitative benefit of designation, and we requested public comments on methods for pursuing a quantitative analysis of the benefits of designation. Public comments suggested that there are examples of true cost and benefit analyses for other species, although the intrinsic value of a leatherback sea turtle and its habitat have not been quantified or given a specific monetary value. These comments prompted a review of the analysis done in the proposed rule to determine the overall benefit of designation.
The benefit of designation depends on several factors, including the conservation value of the area to the species, the seriousness of the threats to that conservation value, and the extent to which an ESA section 7 consultation or the educational aspects of designation will address those threats. We began this process by re-examining the conservation value of each specific area based upon the new area boundaries for Areas 2 and 7, as well as the elimination of the migratory pathway PCE. We reviewed the best available information to specifically evaluate each particular area in terms of density of prey, prey species composition, prey aggregating mechanisms within the area, and inter-annual variability (e.g., El Niño (Barber and Chavez, 1983), or Pacific Decadal Oscillation cycles (McGowan
As mentioned above, to determine the conservation value of each area based on the prey PCE, we scored each area for its importance in four main prey categories: Density of prey; composition of prey species; aggregation mechanism present; and inter-annual variation. We also acknowledge that these categories should be weighted for their relative importance in creating optimal foraging habitat. Therefore, density of prey was weighted at 40 percent of the total area conservation score, while prey species composition, aggregation mechanism, and inter-annual variability were weighted at 25 percent, 25 percent, and 10 percent, respectively.
We first scored each area from 1 to 5 for each prey category, with 5 representing a very high conservation value. Then each score was weighted based on its particular category. For
When considering the extent to which an ESA section 7 consultation will benefit the species in an area designated as critical habitat, we considered the importance of the area and the types of threats to the PCE that may be addressed through such consultation. Under ESA section 7, Federal agencies must insure that their actions will not result in destruction or adverse modification of critical habitat.
Educational benefits are included in this analysis to recognize that a critical habitat designation may provide educational benefits to leatherbacks, especially if it raises the awareness of Federal, state and local agencies that engage in or authorize activities that may affect the species or its habitat. Such awareness may lead to protective regulations or policies at the state or local levels that in turn help to educate the general public. After considering the types of activities that may affect leatherback habitat we believe that it is more likely that nearshore coastal areas would yield greater educational benefits than offshore areas simply due to their proximity and accessibility to the public.
U.S. West Coast states maintain jurisdiction offshore to 3 nm wherein occurs the vast majority of human activities in the marine environment (e.g., fishing, swimming, boating). All three states have agencies and entities that provide education and encourage public conservation of coastal resources, including marine species habitats. For example, the California Coastal Commission has active public education and outreach efforts focused on coastal beaches and waters, including an “Adopt-a-Beach” program and “California Coastal Cleanup Day” that annually draws tens of thousands of participants. The California Department of Fish and Game is actively involved in implementing the state's Marine Life Protection Act and the identification of Marine Protected Areas. Similar agencies, programs, and strategies exist in Washington and Oregon, including: the Washington Department of Ecology Coastal Zone Management Program; Oregon Division of State Lands Coastal Management Program; Oregon Coastal Zone Management Association; and the Oregon Nearshore Marine Resources Management Strategy (Oregon Department of Fish and Wildlife, 2006), which defines the “nearshore ocean” as the area from the coastal high tide line offshore to the 30-fathom (180 feet or 55 meter) depth contour (i.e., well within the Area 2 boundary). All of these agencies and entities produce and distribute numerous brochures, maps, and educational resources that emphasize actions to protect habitats in the nearshore coastal zone used by leatherbacks.
Leatherbacks in the Pacific expend tremendous time and energy migrating to and along the U.S. West Coast to forage on jellyfish. To gain insights into potential preferences, we reviewed the available data and literature to help quantify the use of each specific area for foraging. NOAA's Southwest Fisheries Science Center, (Benson
Area 1: Satellite data indicate foraging behavior between Bodega Bay and northern Monterey Bay, and between Bodega Bay and Point Arena when warmer water extends northward from Point Reyes (usually during September). Data were used from individuals that were captured off the central California coast, and that returned the following year.
Area 2: Satellite data indicate foraging in shelf waters between the 200 m and 2000 m isobaths. These data come from four individuals that moved into this area one year after the transmitters were deployed at Jamursba-Medi (Papua Barat, Indonesia). While this is a small sample size, it reflects the best available data at this time.
Area 7: Satellite data indicate that foraging behavior occurred near the 2000 meter isobath, west of Monterey Bay and Big Sur, and west of Morro and Avila Bays. Foraging typically occurs in Area 7 during the spring and early summer, when neritic waters are cool. Turtles that foraged in this area eventually moved further east or north, into Area 1 during the late summer.
When evaluating the overall Benefit of Designation, we considered the three factors outlined above: Conservation Value, Foraging Behavior, and Section 7 and Educational Benefits. Each factor was scored as high, medium or low for each particular area. We than assigned a number to each score, with high = 3, medium = 2 and low = 1. Therefore each
Areas 1, 2 and 7 all scored high (3) for each factor. These areas have a high conservation value, as determined in Table 2, they also have a high value for foraging, as documented in the literature, and due to their proximity to the coastline and the number of activity types that may impact the habitat, and they also have a high section 7 and educational benefit.
The economic report, supplemental to this final rule, details the specific costs and calculations used to determine the anticipated economic impacts or costs of the critical habitat designation, and therefore the economic benefit of excluding particular areas from designation. To determine the economic costs associated with the designation of each particular area, we first accounted for the baseline level of protection afforded to leatherbacks and their habitat. To determine the baseline we considered three major factors, (1) the overlap of previously designated critical habitat for other species within leatherback critical habitat, (2) the presence of other listed species and protected marine mammals within leatherback critical habitat, and (3) the Federal, State and local protections already in place to conserve and protect marine resources. Using these factors we assigned a qualitative rating of “high”, “medium” or “low” to each activity type in each area. The activities in each of the three specific areas received either a “high” or “medium” rating. Further discussion of how these ratings were assigned is presented in section 1.4.3 of our economic report.
Once we determined the baseline protections for each activity in each specific area, we assigned incremental scores to each activity in each area to estimate the portion of costs expected to be attributed to this critical habitat designation. The incremental scores were assigned based on the qualitative estimates of the baseline protections rating of high, medium or low. In areas where baseline protections were considered to be high, the portion of any project modification costs attributable to leatherback critical habitat designation would be low and thus the assigned incremental score was low. In areas where lower baseline protections exist, it is expected that the majority of any project modification costs would be associated with the leatherback critical habitat designation; thus the assigned incremental score should be high. Given the uncertainty of project modifications and associated costs, we used a conservative approach that would potentially over rather than under-estimate costs associated with leatherback critical habitat. For activities and areas with more existing protections (e.g., areas with marine sanctuaries or designated critical habitat for other listed species) and thus a “high” level of baseline protection, we estimated that 30 percent of any project modification costs would be attributable to leatherback critical habitat. Thus an incremental score of 0.3 was applied to these activities. For activities that occur in areas with fewer existing protections (e.g., areas overlapping the range of other listed species but not their critical habitat), and rated as having a “medium” level of baseline protections, we assumed that 50 percent of costs would be attributable to designation of leatherback critical habitat, and assigned an incremental score of 0.5. Sections 1.4.3 and 1.4.4 of our economic report provide more detail on incremental scoring.
For each potentially affected economic activity, we estimated the number of potentially affected projects and identified project modifications that may be necessary to avoid destruction or adverse modification of specific areas considered for designation as leatherback critical habitat. Where possible we also estimated the costs of potential project modifications. The majority of activity costs were projected 20 years into the future and, where applicable, costs were adjusted for inflation to reflect $2009 values (with a 3 and 7 percent discount rates applied to future costs). We then calculated low and high cost scenarios based on spatial considerations for activities that occur on land (e.g., agriculture pesticide application). Where applicable, the high cost scenario estimated costs for activities within 5 miles of the coastline; the low cost scenario estimated costs for activities within 1 mile of the coastline (i.e., a smaller subset of potential activities). Projections of future activities were developed using geographic information systems and other published data on existing, pending, or future actions (e.g., FERC permit license data for LNG projects). Estimated costs were calculated for all activities except power plants, wind energy projects, and LNG facilities and oil spill response; for these we relied on a qualitative assessment. The mid-point value between the high and low cost scenarios was used as the estimated incremental cost for the designation of each area.
The benefit of designation is not directly comparable to the economic benefit of excluding a particular area (i.e., avoiding economic costs). We had sufficient information to monetize the estimated economic benefits of exclusion, but were not able to monetize the conservation benefit of designation. To qualitatively scale the economic cost estimates in the same manner as the conservation benefit of designation, we created economic thresholds (see Table 4) and assigned each area an economic rating based on the mid-point of the estimated annualized costs.
As shown in Table 4 above, we did not change our economic thresholds from the analysis done in our proposed rule; however, the calculations behind these thresholds were re-evaluated to make sure they remained appropriate.
The high economic threshold was set at $20 million or more, based on an estimate of 3 percent of total revenue for activities associated with Area 2, the area with the highest estimated revenues and costs in this final designation. The economic threshold between medium and low economic costs was set at $700,000 based on the mid-point cost per area. A very low cost threshold was set at less than $25,000.
Each of the three areas evaluated were rated as having a medium economic impact (see Table 5). The dollar thresholds do not represent a judgment that areas with medium conservation value are worth no more than $19,999,999, or that areas with very low conservation value ratings are worth no more than $24,999. These thresholds represent the levels at which we believe the economic impact associated with a particular area would outweigh the conservation benefits of designating that area.
Our selection of dollar thresholds was intended to create an efficient process and not because of a judgment about absolute equivalence between a certain dollar amount and the benefit of designation. The statute directs us to balance dissimilar interests, and it emphasizes the discretionary nature of the weight to give any impact and the decision to exclude.
To weigh the benefits of designation against the benefits of exclusion, we compared the conservation benefit of designation against the economic benefit of exclusion. Areas were determined to be eligible for exclusion based on economic impacts using one simple decision rule: An area was eligible for exclusion based on economic impacts if the economic benefit of exclusion is greater than the conservation benefit of designation. The dollar thresholds and decision rule provided a relatively simple process for identifying specific areas warranting consideration for exclusion. Table 5 below provides information regarding each area's eligibility for exclusion based on our analysis.
As shown in Table 5, Areas 1, 2, and 7 are not eligible for exclusion based on economic benefits of exclusion, as these benefits do not directly outweigh the conservation benefit of designation. Areas 1, 2 and 7 all scored a high Benefit of Designation score. Area 1 scored a medium Economic Benefit of Exclusion, and Areas 2 and 7 scored a low Economic Benefit of Exclusion. Therefore for each of these areas the Benefit of Designation outweighs the Economic Benefit of Exclusion. NMFS has therefore determined that these 3 areas are not Eligible for exclusion based on economic impacts.
Section 4(b)(2) of the ESA directs the Secretary to consider possible impacts on national security when determining critical habitat. Discussions with the DOD indicated that there is an overlap between the areas originally proposed as critical habitat and areas off the Washington State and Southern California coasts where the U.S. Navy conducts training exercises. DOD proposed exclusion of the overlap areas from critical habitat designation based on national security. During this time frame NMFS revised its critical habitat designation to include only one Primary Constituent Element (PCE), the prey PCE. As required by section 4(b)(8) of the ESA, NMFS briefly evaluated and described in this final rule to the maximum extent practicable, those activities that might occur within the areas designated that may destroy or adversely modify critical habitat designated or be affected by such designation. NMFS concluded that the Navy's present training activities are not the types of activities which may adversely modify critical habitat designated for the leatherback, specifically the prey PCE, or likely to be affected by the designation. As a result, NMFS found that the present Navy training activities are not likely to be affected by this designation of critical habitat. Because designation is not likely to affect Navy activities, NMFS concluded that the designation of critical habitat will not cause an appreciable impact on national security, and therefore the benefits of exclusion do not outweigh the benefits of designation. No exclusion based on impacts to national security was warranted.
As noted, we are required to consider other relevant impacts of designating a particular area as critical habitat before a final designation. In the proposed rule, we explained that impacts to tribes, particularly those related to tribal sovereignty over management of natural resources on tribal lands and maintenance of relationships for cooperative conservation of such resources, were relevant impacts for evaluation in the ESA 4(b)(2) analysis to determine whether tribal lands were eligible for exclusion. We considered the impacts to tribal lands and resources and the relationship between the agency and affected Tribes. Based on comments from and coordination and consultation with federally recognized indian tribes in response to the proposed rule, we re-evaluated the potential impacts to affected Tribes with a focus on tribal
The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Pursuant to these authorities lands have been retained by Indian Tribes or have been set aside for tribal use. These lands are managed by Indian Tribes in accordance with tribal goals and objectives within the framework of applicable treaties and laws. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests. Indian lands are those defined in the Secretarial Order “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997), including: (1) Lands held in trust by the United States for the benefit of any Indian tribe; (2) land held in trust by the United States for any Indian Tribe or individual subject to restrictions by the United States against alienation; (3) fee lands, either within or outside the reservation boundaries, owned by the tribal government; and (4) fee lands within the reservation boundaries owned by individual Indians. When we consult with Tribes on matters affecting tribal interests including land and natural resources, we must do so on a government-to-government basis in recognition of the 1997 Secretarial Order.
As described in the proposed rule and documentation supporting this final rule, we acknowledge that the best available information on habitat use by leatherback turtles in the northeast Pacific Ocean is limited. As such we reviewed maps indicating that some Indian lands along the Washington coast likely overlap with areas under consideration as critical habitat for leatherback turtles. These overlapping areas consist of a narrow intertidal zone associated with several coastal Indian reservations, from the line of mean lower low water (the shoreward extent of the proposed critical habitat) to the extent of tribal land demarcated by the line of extreme low water. In consideration of Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments” and the 1997 Secretarial Order, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities and the Endangered Species Act,” we made numerous additional attempts to meet with members of the Makah and Quileute tribes. A government-to-government meeting with the Makah tribe was held in June 2011 to discuss the designation.
Between the proposed and final rule, we re-assessed several spatial and biological elements of the proposed critical habitat designation and determined that the line of extreme low water more accurately depicts the shoreward extent of areas occupied by leatherback turtles (i.e., they are foraging in these waters and not accessing the beaches). Given this boundary change, there is no longer an overlap between designated areas and areas that meet the definition of Indian lands. Thus, the benefits of exclusion identified in the proposed rule related to avoidance of impacts to tribal lands and related tribal sovereignty and management of resources are substantially reduced or avoided altogether with the absence of tribal lands in the final designation.
NMFS acknowledges the presence of tribal usual and accustomed fishing grounds within Area 2. We considered the tribal concerns and concluded that the benefits of excluding these particular usual and accustomed fishing areas do not outweigh the benefits of designating these areas as critical habitat for leatherback turtles. The tribes have not identified any treaty-related activities in their usual and accustomed fishing areas that are likely to affect jellyfish and therefore likely to be affected by a critical habitat designation. Moreover, usual and accustomed fishing areas, while vitally important to the exercise of treaty-secured fishing rights, are not reserved by the United States for the exclusive use of a tribe, nor are they subject to the sovereign authority of a tribal government, as is the case with Indian lands.
As required by section 4(b)(8) of the ESA, NMFS briefly evaluated and described in this final rule, to the maximum extent practicable, those activities that might occur within the areas designated that may destroy or adversely modify critical habitat designated or be affected by such designation. NMFS concluded that the tribes' present fishing activities are not the types of activities that may adversely modify critical habitat designated for the leatherback, specifically the prey PCE, or likely to be affected by the designation.
For these reasons, we conclude there is no impact of a critical habitat designation to treaty-secured fishing rights, and little impact to tribal sovereignty and self-governance. Given the high conservation value of Area 2, we have determined that the benefits of excluding the area overlapping with usual and accustomed fishing grounds do not outweigh the benefits of including this area in the final designation. We are making no exclusions under 4(b)(2) based on other relevant impacts.
Based on the information provided below, the public comments received and the further analysis that was done since the proposed rulemaking, we hereby designate as critical habitat for leatherbacks Areas 1, 2, and 7, which include approximately 41,913 square miles (108,558 square km) of marine habitat in California, Oregon, and Washington and offshore Federal waters. The designated critical habitat areas contain the physical or biological feature—prey species—essential to the conservation of the species that may require special management considerations or protection. We are not exercising our discretion to exclude any areas from this designation based on economic, national security or other relevant impacts.
Section 7(a)(2) of the ESA requires Federal agencies to insure that any action authorized, funded, or carried out by the agency (agency action) does not jeopardize the continued existence of any threatened or endangered species or destroy or adversely modify designated critical habitat. When a species is listed or critical habitat is designated, Federal agencies must consult with NMFS on any agency actions to be conducted in an area where the species is present and that may affect the species or its critical habitat. During the consultation, we would evaluate the agency action to determine whether the action may adversely affect listed species or critical habitat and issue our findings in a biological opinion or concurrence letter. If we conclude in the biological opinion that the agency action would likely result in the destruction or adverse modification of critical habitat, we would also recommend any reasonable and prudent alternatives to the action. Reasonable and prudent alternatives (defined in 50 CFR 402.02) are
Regulations (50 CFR 402.16) require Federal agencies that have retained discretionary involvement or control over an action, or where such discretionary involvement or control is authorized by law, to reinitiate consultation on previously reviewed actions in instances where: (1) Critical habitat is subsequently designated; or (2) new information or changes to the action may result in effects to critical habitat not previously considered in the biological opinion. Consequently, some Federal agencies may request reinitiation of a consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy critical habitat. Activities subject to the ESA section 7 consultation process include activities on Federal lands and activities on private or state lands requiring a permit from a Federal agency (e.g., an ESA section 10(a)(1)(B) permit from NMFS) or some other Federal action, including funding (e.g., Federal Highway Administration (FHA)). ESA section 7 consultation would not be required for Federal actions that do not affect listed species or critical habitat and for actions on non-federal and private lands that are not federally funded, authorized, or carried out.
Section 4(b)(8) of the ESA requires, to the maximum extent practicable, in a final regulation to designate or revise critical habitat, an evaluation and brief description of those activities (whether public or private) that may destroy or adversely modify such habitat or that may be affected by such designation. A variety of activities may affect leatherback critical habitat and, when carried out, funded, or authorized by a Federal agency, will require an ESA section 7 consultation. These Federal actions and/or regulated activities (detailed in the economic report and in previous sections of this rule) include: regulation of point source pollution, particularly NPDES facilities and pesticide application (e.g., EPA); oil spill response (e.g., U.S. Coast Guard and EPA have response authorities); power plants (e.g., Nuclear Regulatory Commission (NRC) regulates commercial nuclear power); desalination plants (e.g., EPA regulates discharge/USCG and U.S. Army Corps of Engineers are involved with permitting or approving structures or placing fill that may affect navigation); tidal/wave/wind energy (e.g., FERC or BOEM permitting, licensing or leasing); and LNG projects (e.g., FERC or USCG permitting requirement). Private entities' implementation of activities related to the foregoing categories could be affected to the extent those activities rely on federal funding, permitting or other authorization. These activities would need to be evaluated with respect to their potential to destroy or adversely modify critical habitat. Formal consultation under section 7(a)(2) of the ESA could result in changes to the activities to minimize adverse impacts to critical habitat or avoid destruction or adverse modification of such habitat. We believe this final rule will provide Federal agencies, private entities, and the public with clear notification of critical habitat for leatherback sea turtles and the boundaries of such habitat. This designation will also allow Federal agencies and others to evaluate the potential effects of their activities on critical habitat to determine if an ESA section 7 consultation with NMFS is needed.
The data and analyses supporting this designation have undergone a pre-dissemination review and have been determined to be in compliance with applicable information quality guidelines implementing the Information Quality Act (IQA) (Section 515 of Public Law 106-554). In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review pursuant to the IQA. The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. The peer review requirements of the OMB Bulletin apply to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the Biological and Economic Reports that support the designation of critical habitat for the leatherback sea turtle and incorporated the peer review comments prior to and within this rulemaking.
The Office of Management and Budget (OMB) has determined that this final rule is significant under Executive Order 12866. An economic report and 4(b)(2) report have been prepared to support the exclusion process under section 4(b)(2) of the ESA and our consideration of alternatives to rulemaking.
We have determined that an environmental analysis as provided for under the National Environmental Policy Act of 1969 for critical habitat designations made pursuant to the ESA is not required. See
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
The impacts to small businesses were assessed for the following six activities: NPDES activities; agriculture; oil spills; power plants; tidal, wave, and wind energy projects; and LNG projects. The impacts on small entities were not assessed for desalination plants facilities due to lack of information.
At the present time, little information exists regarding the cost structure and operational procedures and strategies in the sectors (noted above) that may be directly affected by the critical habitat designation. In addition, a great deal of uncertainty exists with regard to how potentially regulated entities will attempt to avoid the destruction or adverse modification of critical habitat. This is because relatively little data
Small entities are defined by the Small Business Administration size standards for each activity type. We identified a total of 3,385 entities as small businesses involved in the activities listed above that would most likely be affected by the critical habitat designation. The majority (> 97 percent) of these entities would be considered small entities. The estimated economic impacts on small entities vary depending on the activity type and location. The estimated annualized costs associated with ESA section 7 consultations incurred per small entity range from $0 to $25,350 per area-activity type combination, with the largest annualized impacts estimated for entities involved in tidal and wave energy projects ($0 to $25,350). These amounts are most likely overestimates, as they are based on assumptions that such actions may not be able to proceed if a consultation finds that the project adversely modified critical habitat.
As required by the RFA (as amended by the SBREFA), we considered various alternatives to the critical habitat designation for the leatherback. The first alternative, not designating critical habitat for leatherbacks, would impose no economic, national security, or other relevant impacts, but would not provide any conservation benefit to the species. This alternative was rejected because such an approach does not meet the legal requirements of the ESA and would not provide for the conservation of the species if such benefits could be gained through designation.
The second alternative, designating a subset of the areas eligible as critical habitat, was also rejected. The determination of which particular areas to exclude, if any, is subject to the Secretary's discretion after consideration of impacts of the designation in accordance with section 4(b)(2) of the ESA. After evaluating each of our particular areas through a ESA section 4(b)(2) analysis, it was determined that the economic benefits of exclusion did not outweigh the conservation benefit to the species of designation, therefore, we determined that no exclusions would be made.
The third alternative, our preferred alternative, of designating all potential critical habitat areas (i.e., no areas excluded) was considered and accepted. We accepted this alternative after conducting an ESA section 4(b)(2) analysis, and determining that the economic benefits of exclusion did not outweighed the conservation benefit to the species. We selected this third alternative because it would result in a critical habitat designation that provides for the conservation of the species, and meets ESA and joint NMFS and USFWS regulations concerning critical habitat at 50 CFR part 424.
Section 307(c)(1) of the Federal Coastal Zone Management Act of 1972 requires that all Federal activities that affect land or water use or natural resources of the coastal zone be consistent with approved state coastal zone management programs to the maximum extent practicable. We have determined that this designation of critical habitat is consistent to the maximum extent practicable with the enforceable policies of approved Coastal Zone Management Programs of California, Oregon, and Washington. The determination was submitted for review by the responsible agencies in the aforementioned states, and no objections were received.
Executive Order 13132 requires agencies to take into account any Federalism impacts of regulations under development. It includes specific consultation directives for situations where a regulation will preempt state law, or impose substantial direct compliance costs on state and local governments (unless required by statute). We have determined that the designation of critical habitat for the leatherback sea turtle under the ESA does not have federalism implications. Consistent with the requirements of Executive Order 13132, recognizing the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, and in keeping with Department of Commerce policies, the Assistant Secretary for Legislative and Intergovernmental Affairs has provided notice of this designation and requested comments from the appropriate officials in states where leatherback sea turtles occur.
This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
In accordance with the Unfunded Mandates Reform Act, we make the following findings: (a) The designation of critical habitat does not impose an “enforceable duty” on state, local, tribal governments or the private sector and therefore does not qualify as a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an “enforceable duty” upon non-federal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” Under the ESA, the only regulatory effect is that Federal agencies must ensure that their actions do not jeopardize the continued existence of the species or destroy or adversely modify critical habitat under section 7. While non-federal entities that receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid jeopardy and the destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; (b) We conclude that this final rule would not significantly or uniquely affect small governments because it is not likely to produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. In addition, the designation of critical habitat imposes no obligations on local, state or tribal governments. Therefore, a Small Government Agency Plan is not required.
Under Executive Order 12630, Federal agencies must consider the effects of their actions on constitutionally protected private property rights and avoid unnecessary takings of property. A taking of property includes actions that result in physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use. In accordance with Executive Order 12630, the critical habitat designation does not pose significant takings implications. A takings implication assessment is not required here. This designation affects only Federal agency
The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests. If NMFS issues a regulation with tribal implications (defined as having 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 must consult with those governments or the Federal Government must provide funds necessary to pay direct compliance costs incurred by tribal governments.
The critical habitat designation does not overlap with Indian lands (see Exclusions for Indian Lands section above). However, we acknowledge the presence of tribal usual and accustomed fishing grounds within Area 2. During both the public comment period and the government-to-government consultation process we heard the concerns of coastal tribes related to the overlap of critical habitat and the tribal usual and accustomed fishing areas. NMFS briefly evaluated and described in this final rule, to the maximum extent practicable, those activities that might occur within the areas designated that may destroy or adversely modify critical habitat designated or be affected by such designation. NMFS concluded that the tribes, present fishing activities are not the types of activities that may adversely modify critical habitat designated for the leatherback, specifically the prey PCE, or likely to be affected by the designation.
For these reasons, we considered the tribal concerns and concluded that the benefits of excluding these particular usual and accustomed fishing areas do not outweigh the benefits of designating these areas as critical habitat for leatherback turtles. The tribes have not identified any treaty-related activities in their usual and accustomed fishing areas that are likely to affect jellyfish and therefore likely to be affected by a critical habitat designation. Moreover, usual and accustomed fishing areas, while vitally important to the exercise of treaty-secured fishing rights, are not reserved by the United States for the exclusive use of a tribe, nor are they subject to the sovereign authority of a tribal government, as is the case with Indian lands. Additionally, other activities may occur within the tribal usual and accustomed fishing areas that may require a section 7 consultation for leatherback critical habitat; therefore, we conclude there is no impact of a critical habitat designation to treaty-secured fishing rights, and little impact to tribal sovereignty and self-governance.
We acknowledge that the Makah Indian Tribe disagrees with our assessment and is concerned about potential impacts to the Tribe's fishing rights. We will continue to coordinate with the Tribe as we implement our responsibilities under section 7 with respect to leatherback turtles, in the event a conflict does in fact arise between conservation of leatherback critical habitat and the exercise of tribal rights.
Executive Order 13211 requires agencies to prepare a Statement of Energy Effects when undertaking a “significant energy action.” According to Executive Order 13211, “significant energy action” means any action by an agency that is expected to lead to the promulgation of a final rule or regulation that is a significant regulatory action under Executive Order 12866 and is likely to have a significant adverse effect on the supply, distribution, or use of energy. We have considered the potential impacts of this action on the supply, distribution, or use of energy (see economic report). Activities associated with the supply, distribution, or uses of energy that may be affected by the critical habitat designation include the operation of: (1) Power plants; (2) proposed and potential tidal, wave and wind energy projects; and (3) liquefied natural gas projects.
The final economic analysis identified seven power plants that may be affected by this critical habitat designation. Future management and required project modifications for leatherback critical habitat related to power plants under ESA section 7 consultation include: cooling of thermal effluent before release to the environment; treatment of any contaminated waste materials; and modifications associated with permits issued under NPDES. All of the power plants are located on the California coast and are subject to existing regulations through the NRC and California Energy Commission.
The economic analysis identified eleven tidal, wave, or wind energy projects that may be affected by this critical habitat designation. Nine of these energy projects have received preliminary permits from the FERC, one of the projects has a pending application and one of the projects is proposed. Given the necessary timeframes for project construction, it may be reasonable to assume that this set of projects will incur modification costs related to leatherback critical habitat within the next 20 years. However, it should also be noted that other new permit applications are likely to be filed in the future, and that rate of application may be increasing.
Given that these projects are in their preliminary stages, it is not clear what effects the projects will have on habitats and natural resources, nor what effects a critical habitat designation would have on these projects. The exact nature of habitat impacts is difficult to predict; however, possible impacts to features of the potential leatherback critical habitat include disturbance to prey species during their benthic polyp stage.
The economic analysis identified two LNG projects that may be affected by leatherback critical habitat. FERC regulates LNG projects, and there is one proposed LNG project and one potential LNG project within the analyzed areas. Like the alternative energy projects, there is a high degree of uncertainty regarding whether these proposed projects will be implemented. As a result, it is unclear at this time what effects a critical habitat designation would have on these proposed LNG projects. However, available information indicates that project modifications may include: biological monitoring; spatial restrictions on project installation; and specific measures to respond to catastrophes. We have determined that the energy effects of this rule are unlikely to exceed the energy impact thresholds identified in Executive Order
A complete list of all references cited in this rule making can be found on our Web site at
Endangered and threatened species.
For the reasons set out in the preamble, this final rule amends part 226, title 50 of the Code of Federal Regulations as set forth below:
16 U.S.C. 1533.
Critical habitat is designated for leatherback turtles as described in this section. The textual descriptions of critical habitat in this section are the definitive source for determining the critical habitat boundaries. The overview map is provided for general guidance purposes only and not as a definitive source for determining critical habitat boundaries.
(a) The waters adjacent to Sandy Point, St. Croix, U.S. Virgin Islands, up to and inclusive of the waters from the hundred fathom curve shoreward to the level of mean high tide with boundaries at 17°42′12″ N. and 64°50′00″ W.
(b) All U.S. coastal marine waters within the areas in paragraphs (b)(1) and (2) of this section and as described in paragraphs (b)(3) and (4) of this section and depicted in paragraph (b)(5) of this section:
(1) California.
(i) The area bounded by Point Sur (36°18′22″ N./121°54′9″ W.) then north along the shoreline following the line of extreme low water to Point Arena, California (38°57′14″ N./123°44′26″ W.) then west to 38°57′14″ N./123°56′44″ W. then south along the 200 meter isobath to 36°18′46″ N./122°4′43″ W. then east to the point of origin at Point Sur.
(ii) Nearshore area from Point Arena, California, to Point Arguello, California (34°34′33″ N./120°38′41″ W.), exclusive of Area 1 (see above) and offshore to a line connecting 38°57′14″ N./124°18′36″ W. and 34°34′32″ N./121°39′51″ W along the 3000 meter isobath.
(2) Oregon/Washington. The area bounded by Cape Blanco, Oregon (42°50′4″ N./124°33′44″ W.) north along the shoreline following the line of extreme low water to Cape Flattery, Washington (48°23′10″ N./124°43′32″ W.) then north to the U.S./Canada boundary at 48°29′38″ N./124°43′32″ W. then west and south along the line of the U.S. Exclusive Economic Zone to 47° 57′38″ N./126° 22′54″ W. then south along a line approximating the 2,000 meter isobath that passes through points at 47° 39′55″ N./126°13′28″ W., 45°20′16″ N./125°21′ W. to 42°49′59″ N./125°8′10″ W. then east to the point of origin at Cape Blanco.
(3) Critical habitat extends to a water depth of 80 meters from the ocean surface and is delineated along the shoreline at the line of extreme low water, except in the case of estuaries and bays where COLREGS lines (defined at 33 CFR part 80) shall be used as the shoreward boundary of critical habitat.
(4) Primary Constituent Elements. The primary constituent element essential for conservation of leatherback turtles is the occurrence of prey species, primarily scyphomedusae of the order Semaeostomeae (
(5) A map of critical habitat for leatherback sea turtles follows.